Gibson v. State

• Decision Date: 18 May 1976
• Docket Number: No. 30761,30761
• Citation: 226 S.E.2d 63,236 Ga. 874
• Parties: Samuel GIBSON, III v. The STATE.
• Court: Georgia Supreme Court

Page 63

226 S.E.2d 63

236 Ga. 874

Samuel GIBSON, III v. The STATE.

No. 30761.

Supreme Court of Georgia.

May 18, 1976.

Charles Marchman, Jr., Macon, for appellant.

Joseph H. Briley, Dist. Atty., Gray, Arthur K. Bolton, Atty. Gen., Issac Byrd, Atty., Dept. of Law, Atlanta, for appellee.

UNDERCOFLER, Presiding Justice.

The appellant, Samuel Gibson, III, was indicted by the Jones County Grand Jury for murder and rape occurring on April 10, 1975. Following a trial by jury from May 12, 1975, to May 14, 1975, the appellant was convicted and sentenced to death on both counts. The case is here on appeal and for review of the death sentences imposed.

I. Summary of the Evidence

The deceased victim, Joan Delight Bryan, was married to Mr. Thomas Bryan. They lived in a farmhouse in Gray, Georgia, with four-year-old Stacy Nadine White, the daughter of the deceased from a previous marriage.

On the morning of April 10, 1975, Mr. Bryan went to work in Milledgeville, Georgia, as usual. Mrs. Bryan and Stacy stayed at the farmhouse where Mrs. Bryan was in charge of renting some trailers located near the farmhouse.

In the early afternoon some ten or more miles away, the appellant was walking in the rain toward Wayside, Georgia. Several persons encountered the appellant as he walked and some of them positively identified him and noted the long dark coat he was wearing that extended below his knees.

The appellant arrived at the farmhouse and knocked on the door. When Mrs. Bryan, the victim, answered the door, the appellant indicated that he wanted to look at some trailers. She showed the appellant the trailers and told him the rental charge. Subsequently, the appellant asked the deceased for a glass of water and she let him into the living room.

The appellant then approached the victim sexually by 'brushing against' her breast. He ended up shooting her in the head in the presence of her four-year-old child. He also had sexual intercourse with her despite her resistance which is evident and committed sodomy on her. Whether these sexual acts occurred before or after the victim was fatally shot is in conflict but there is no conflict concerning their occurrence.

Dr. James Dawson came to examine the victim's body. He first noticed that there was a considerable amount of blood in the general vicinity of the body. He also noticed some blood spots on the bed in the room where the deceased was found and there was also a bullet hole in the wall above the bed. There was some lividity on the body indicating that the victim was in the position in which it was found at the time blood circulation stopped.

The victim had received three wounds to the head. Two were lacerations, one located in the back of the head which almost penetrated the entire thickness of the scalp. The second laceration was similar to the first. The third would was a gunshot wound by a .32 caliber bullet which entered the right side of the head and traveled leftward and downward, lodging in the general area of the left ear. This wound caused her death.

There were also wounds on the right hand and arm that were probably caused by a bullet because particles of lead were found in the wounds. There were also injuries to the victim's vagina and anus, at least the latter of which was damaged while her heart was still beating.

Plaster casts of shoe prints in the road in front of the Bryans' home established that the shoe prints matched some shoes of the appellant. Appellant's foster mother had a .32 caliber pistol that the appellant had used and had access to. A cleanser can appellant said he took from the Bryans' home along with a towel was found where the appellant said he had thrown it away.

The appellant admitted to his grandfather that he killed Mrs. Bryan but said it was an accident.

Dr. James Dawson testified to his belief that the lacerations in the deceased's head were inflicted before the gunshot, but there was no way to be certain. The testimony of Dr. Dawson further showed that although brain tissue was present in the hair of the deceased none was found on the bed in the room where she died.

Tests on the body showed strong indications of the presence of seminal fluid in the anus and vagina of the deceased. The blanket from a bed in the Bryans' home was found to contain seminal fluid.

Appellant's pretrial statement to officers was substantially the same as his testimony. He testified as follows. He had decided to move from his foster mother's home. He knew where some trailers were being rented and decided to go there to rent one. Since he knew he would be walking alone down a country road, he carried Joe Powell's .32 caliber pistol for protection. He arrived at the deceased's home safely and asked to see trailers.

After he (the appellant) saw the trailers he asked the deceased for a glass of water. She gave him some water and began talking with him. In the course of the conversation she mentioned she was in charge of the place because a certain Mr. Dewitt was in New York. At that time the appellant 'grabbed her . . . kinda rubbed across her breasts.'

The appellant further testified that the deceased became hysterical and tried to get a rifle from the mantel in the living room near where they were standing. He pulled his gun out and prevented deceased from getting the rifle. The victim then turned and grabbed the appellant's gun. The gun fired once and the struggle continued. The gun fired again and the deceased sank to the floor of the living room. As the deceased fell, he (the appellant) asked her where she was hit and she answered 'head.'

The appellant testified that he then became frightened and decided to cover up his presence. 'I tried to make it look like somebody raped her.' He testified that he dragged the deceased by her arms into the back bedroom and laid the top part of her body on the bed and took her clothes off. He then had intercourse with her body and attempted anal intercourse.

On cross-examination the appellant testified to the following: When he went out to see the trailers he did not have any money and did not have a job at the time; he said that he would earn the rent by playing pool, although he was not proficient at the game. When asked how he planned to transport himself back and forth to Gray, Georgia, a distance of about fifteen miles, he stated that he would walk and hitchhike. The appellant admitted that he slapped four-year-old Stacy as he left because she was crying.

II. Enumerations of Error

1. In enumerations of error numbers 1, 2, 3, and 5, the appellant complains of the exclusion of several prospective jurors because of their opposition to the death penalty.

In Owens v. State, 233 Ga. 869, 214 S.E.2d 173 (1975) we said that Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), as amplified in Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1968), and Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970) held that "a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.' Witherspoon, supra, 391 U.S. pp. 521-523, 88 S.Ct. p. 1777. Such a venireman cannot be excluded unless he makes it unmistakably clear that he would vote against the death penalty regardless of what transpires at trial, or that his attitude on the death penalty would prevent him from impartially passing on the issue of guilt, or that he could not subordinate his personal feelings on the death penalty to his oath as a juror to obey the law of the state as charged by the trial court.' Each of the prospective jurors excused makes it unmistakably clear that he would vote against the death penalty regardless of what transpires at trial. See also Eberheart v. State, 232 Ga. 247, 206 S.E.2d 12 (1974).

These enumerations are without merit.

2. Enumerations of error numbers 11, 12, and 13 are argued together and will be considered together here.

Enumeration of error no. 11 contends that the court erred in charging the jury that they could find the death penalty on both cases, using the commission of the murder as the aggravating circumstance for the rape, and using the commission of the rape as the aggravating circumstance for the murder and in its recharge to the jury and in overruling his exceptions thereto.

Enumeration of error no. 12 contends that the court erred in receiving verdicts not in proper form, as to punishment inasmuch as the jury used each capital felony conviction as the aggravating circumstance for the other, and in allowing both death penalties to stand.

Enumeration of error no. 13 contends that the court erred in imposing the death penalty on each count.

In support of these enumerations the appellant directs all of his argument to the constitutionality of the Georgia Death Penalty Statute that has been considered and upheld by this court in Coley v. State, 231 Ga. 829, 204 S.E.2d 612 (1974) and subsequent cases. No new matter is presented here that convinces us to reconsider that issue.

The thrust of these enumerations is that the imposition of two death sentences on the basis of mutually aggravating circumstances was not authorized in this case. This aspect of the case will be considered by this court on sentence review.

3. In enumerations of error nos. 14 and 15 the appellant contends that the court erred in overruling his challenge to the array of the grand and traverse juries because they were not legally constituted.

The contentions remaining of both challenges are the same-that the composition of the jury lists in Jones County are illegally, unlawfully and unconstitutionally composed because there was a systematic, intentional and discriminatory exclusion of certain identifiable segments of the community which caused the jury lists to violate...