Gissendaner v. State

• Decision Date: 05 July 2000
• Docket Number: No. S00P0289.,S00P0289.
• Parties: GISSENDANER v. The STATE.
• Court: Georgia Supreme Court

532 S.E.2d 677

272 Ga. 704

GISSENDANER v. The STATE.

No. S00P0289.

Supreme Court of Georgia.

July 5, 2000.

Reconsideration Denied July 28, 2000.

Edwin J. Wilson, Snellville, Steven M. Reilly, Lawrenceville, Charlotta Norby, Kenneth D. Driggs, Atlanta, Michael Mears, Thomas H. Dunn, for appellant.

Thurbert E. Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Frank Anthony Ilardi, Assistant Attorney General, Daniel J. Porter, District Attorney, Phil Wiley, Chief Assistant District Attorney, George Forman Hutchinson, III, Assistant District Attorney, Nancy J. Dupree, Senior Assistant District Attorney, Allison B. Vrolijk, Atlanta, for appellee. THOMPSON, Justice.

Kelly Renee Gissendaner was convicted of the malice murder of her husband, Douglas Morgan Gissendaner.¹ The jury fixed Gissendaner's sentence at death, finding as statutory aggravating circumstances that the murder was committed during the commission of kidnapping with bodily injury, a capital felony, and that Gissendaner caused or directed another to commit the murder. OCGA § 17-10-30(b)(2) and (6). For the reasons set forth below, we affirm both the conviction and the death sentence.

1. Gissendaner and the victim had been married, divorced, remarried, separated, and reunited between 1989 and 1997. Ms. Gissendaner was in a relationship with Gregory Bruce Owen and at one point stated to a co-worker that she was unhappy with her husband and in love with Owen.

Prior to Gissendaner's trial, Owen entered an agreement not to seek parole within 25 years, pled guilty, and received a sentence of life in prison. Owen testified at Gissendaner's trial that it was she who first raised the idea of murder and that she later raised the idea again several other times. Owen suggested divorce as an alternative, but Gissendaner insisted upon murder because she believed she would receive insurance money from her husband's death and because she believed he "wouldn't leave [her] alone by just divorcing him." Gissendaner had previously stated to Owen's sister that she intended to use the victim's credit to get a house and then "get rid of him."

During the days leading up to the murder, Gissendaner made 47 telephone calls to Owen and paged him 18 times. Telephone records also showed that the pair were together at a bank of payphones several hours before the murder.

On the evening of February 7, 1997, Gissendaner drove Owen to her family's home, gave him a nightstick and a large knife, and left him inside the home to wait for the victim. Gissendaner then drove to a friend's house, and, upon Gissendaner's insistence that the group keep their plans for the evening, she and her friends went out to a nightclub.

The victim arrived home shortly after 10:00 p.m. Owen confronted the victim from behind, held a knife to his throat, forced him to drive to a remote location, forced him to walk into the woods and kneel, and then killed him by striking him with the nightstick and then stabbing him repeatedly in the back and neck with the knife. As instructed by Gissendaner, Owen took the victim's watch and wedding ring before killing him to make the murder appear like a robbery.

Gissendaner returned home from the nightclub at about the time the murder was being carried out, paged Owen with a numeric signal, and then drove to the crime scene. After inquiring if her husband was dead, she took a flashlight and went toward the body to inspect it. Owen burned the victim's automobile with kerosene provided by Gissendaner, and the pair returned to their respective homes in Gissendaner's automobile. Owen disposed of the nightstick, the knife, a pair of his own jeans, and the victim's stolen jewelry by placing them in the garbage. A pair of Owen's sweat pants also worn on the night of the murder was recovered, however, and DNA analysis of blood found on them showed a likely match with the victim's and Owen's blood.

After the murder, Gissendaner concealed her relationship with Owen from police and claimed not to have initiated contact with him for some time. Telephone records, Owen's testimony, and other witness testimony proved otherwise. After her arrest, Gissendaner called her best friend and confessed to her active and willing role in the murder, although she then called a second time and claimed that she was coerced into participating. Gissendaner wrote a letter while in jail in an effort to hire someone to give perjured testimony and to rob and beat witnesses.

Viewed in the light most favorable to the verdict, we find that the evidence introduced at trial was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that Gissendaner was guilty of the crimes of which she was convicted and that statutory aggravating circumstances existed. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); OCGA § 17-10-30(b)(2) and (6).

Pretrial Proceedings

2. Gissendaner contends that the trial court erred in denying her motion for a change of venue. The trial court reserved its ruling until after voir dire had been completed and then denied the motion. We find that the trial court acted properly within its discretion in denying the motion. Tolver v. State, 269 Ga. 530, 532-533(4), 500 S.E.2d 563 (1998) (recognizing trial court's discretion in considering a motion for a change of venue).

A capital defendant seeking a change of venue must show that the trial setting was inherently prejudicial as a result of pretrial publicity or show actual bias on the part of the individual jurors. Jenkins v. State, 269 Ga. 282, 286(3), 498 S.E.2d 502 (1998); Jones v. State, 267 Ga. 592, 594(1)(a), 481 S.E.2d 821 (1997); Jones v. State, 261 Ga. 665, 666(2), 409 S.E.2d 642 (1991) (holding a change of venue is required when a "defendant can make a substantive showing of the likelihood of prejudice by reason of extensive publicity").

The trial court acted properly in reserving its ruling on Gissendaner's motion for a change of venue until voir dire had been conducted because "[t]he decisive factor in determining whether a change of venue is required is `the effect of the publicity on the ability of prospective jurors to be objective.'" Wilson v. State, 271 Ga. 811, 822(19), 525 S.E.2d 339 (1999) (quoting Freeman v. State, 268 Ga. 185, 186-187(2), 486 S.E.2d 348 (1997)). During voir dire, it became apparent that a large portion of the pretrial publicity had occurred long before the case was ready for trial. See Freeman v. State, 268 Ga. at 186-187(2), 486 S.E.2d 348; see also Thornton v. State, 264 Ga. 563, 574(17), 449 S.E.2d 98 (1994). Furthermore, this early publicity did not implicate Gissendaner in her husband's death. As law enforcement authorities developed their evidence, the publicity became unfavorable to Gissendaner, but we note that the coverage was mostly accurate and largely involved aspects of the case that were not to be disputed at trial. See Barnes v. State, 269 Ga. 345, 347(2), 496 S.E.2d 674 (1998). Nevertheless, we must acknowledge, as did the trial court, that some of the later publicity was potentially damaging to Gissendaner and that its effect upon the jury pool warrants careful consideration. We most carefully consider the publicity surrounding this Court's ruling on interim review that an inculpatory statement by Gissendaner should be suppressed. Gissendaner v. State, 269 Ga. 495, 500 S.E.2d 577 (1998); see Tolver, 269 Ga. at 533(4), 500 S.E.2d 563; see also Tyree v. State, 262 Ga. 395, 395-397(1), 418 S.E.2d 16 (1992). Upon our review of the newspaper and television coverage documented in the record, we conclude that it was neither so extensive and inflammatory nor so reflective of "an atmosphere of hostility" as to require a change of venue. Cromartie v. State, 270 Ga. 780, 782(2), 514 S.E.2d 205 (1999).

The trial court excused the following 13 jurors upon Gissendaner's motion based primarily upon their exposure to pretrial publicity: Waldrip; Myers; Krug; Jones; Chapman; Chappell; Henderson; Bullock; Teehan; Moreno; Hill; Hoffman; and Jackson. The trial court excused juror Foster based upon two defense arguments, one being the juror's exposure to pretrial publicity. Gissendaner argues that her challenges for cause concerning jurors Johnston and Mason were improperly denied, but we find that the trial court did not err in qualifying these jurors because their exposure to pretrial publicity was limited and their memories of what they had been exposed to were vague. Thus, 14 jurors of the 111 jurors questioned during voir dire were excused for cause based upon their exposure to pretrial publicity. We conclude that the number of excusals, particularly in light of the exacting standard applied by the trial court in reaching its decision to excuse certain jurors, is not indicative of the kind of inherently prejudicial environment requiring a change of venue. See Tharpe v. State, 262 Ga. 110, 111(5), 416 S.E.2d 78 (1992); compare Jones v. State, 261 Ga. at 665-666(1), 409 S.E.2d 642.

3. We find that the trial court did not err in refusing to strike for cause the jurors discussed in Gissendaner's appeal.

(a) Shortly before voir dire began, juror Mason had seen a newspaper article reporting on Gissendaner's upcoming trial, including the fact that a statement made by Gissendaner had been suppressed. However, Ms. Mason stated that she had "just skipped through" the article and could not remember details from it. She did vaguely recall something about "whether rights were read," but she had no recollection of the substance of Gissendaner's suppressed statement or anything else prejudicial to Gissendaner. Furthermore, she stated clearly that she would set aside any prior knowledge of the case and consider only the evidence presented at trial.

A prospective juror need not be "totally ignorant of the facts and issues involved" in a criminal proceeding in order to be qualified to serve. Irvin v....