Green v. State

• Decision Date: 31 October 1980
• Docket Number: No. 36115,36115
• Citation: 246 Ga. 598,272 S.E.2d 475
• Parties: GREEN v. The STATE.
• Court: Georgia Supreme Court

Page 475

272 S.E.2d 475

246 Ga. 598

GREEN v. The STATE.

No. 36115.

Supreme Court of Georgia.

Argued April 15, 1980.

Decided Oct. 7, 1980.

Rehearing Denied Oct. 31, 1980.

Richard Milam, Jackson, Stephen P. Harrison, McDonough, Jack Greenberg, John Charles Boger, New York City, for appellant.

E. Byron Smith, Dist. Atty., Kenneth R. Waldrep, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Daryl A. Robinson, Asst. Atty. Gen., for appellee.

JORDAN, Presiding Justice.

Roosevelt Green, Jr., the appellant, was convicted and sentenced to death in Monroe County for the murder of Teresa Carol Allen, and the conviction and sentence were affirmed on appeal by this court, Green v. State, 242 Ga. 261, 249 S.E.2d 1 (1978). The Supreme Court of the United States, however, reversed as to sentence and remanded the case for a new trial on said issue. Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979); remand 244 Ga. 27, 257 S.E.2d 543 (1979) (The United States Supreme Court reversed the sentence on the sole ground that a conversation between co-defendant Moore and Thomas Pasby was excluded during the pre-sentence hearing).

At the new sentencing trial, at which Pasby testified, the jury again returned a verdict for the death sentence, and the case is presently before this court for mandatory review of the same. Code Ann. § 27-2537. The facts surrounding the death of the victim, including the statement of Thomas Pasby, are amply set out in Green v. State, supra, and its companion case, Moore v. State, 240 Ga. 807, 243 S.E.2d 1 (1978) and will not be repeated here.

Enumerations of Error

1. Appellant contends that the trial court's denial of his motion for a change of venue violated his right to an impartial jury. The appellant notes that there was widespread pre-trial publicity such that every prospective juror had heard about the case.

We note, however, that while each prospective juror had heard something about the case, each prospective juror not struck for prejudice expressly indicated that he or she could lay aside any opinion that he or she had formed and render a sentence based upon the evidence. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1960); Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979); Tucker v. State, 244 Ga. 721, 261 S.E.2d 635 (1979).

We note further that only seventeen of the sixty-four veniremen were excused for cause, and that only four of the seventeen were excused for prejudice.

This low percentage of veniremen excused for prejudice (approximately 5%) strongly corroborates the expressions of impartiality by the other jurors not so excused. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Tucker v. State, supra (5% dismissal rate corroborates absence of prejudicial bias); Collier v. State, supra (20% dismissal rate corroborates absence of prejudicial bias); Coleman v. State, 237 Ga. 84, 226 S.E.2d 911 (1976) (49% dismissal rate corroborates absence of prejudicial bias); Butler v. State, 231 Ga. 276, 201 S.E.2d 448 (1973) (cert. den. 420 U.S. 907, 95 S.Ct. 825, 42 L.Ed.2d 836 (1974) (36% dismissal rate corroborates absence of prejudicial community bias; cf. Irvin v. Dowd, supra (1960) (62% dismissal rate corroborates actual juror partiality).

We note finally that the evidence shows only one recent newspaper article concerning the appellant. Eighteen pages of exhibits concern articles published during the first trial-that is, two years prior to resentencing, and three pages of exhibits concern the United States Supreme Court's reversal of sentence. There is no evidence of a "total inundation of the judicial process by the media." Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).

Furthermore, the appellant failed to exhaust all of his peremptory challenges. Coleman v. State, supra; Davis v. State, 241 Ga. 376, 247 S.E.2d 45 (1978).

This enumeration of error is without merit.

2. Appellant contends that the trial judge erred in failing to grant his challenge to the array. He asserts that sixty of the traverse jurors serving in the present case had served in the August term of the Monroe County Superior Court and that their service in the present case therefore violated Code Ann. § 59-803. The present trial, however, began on November 5, 1979, which was still within the August term of the Monroe County Superior Court. The jurors were properly summoned (Code Ann. § 24-3009). Also, the mere fact of prior jury service is no basis for a challenge to the array. See Harris v. State, 191 Ga. 243, 12 S.E.2d 64 (1940); Dickerson v. State, 151 Ga.App. 429, 260 S.E.2d 535 (1979). Finally, we note that the appellant cannot complain that his jury panel did not represent a cross-section of the community, as there was no showing that the August jury list or the panels put upon the appellant were constitutionally inadequate. Appellant's second enumeration of error is without merit.

3. The appellant argues that the trial court erred in refusing to allow him to question each prospective juror on voir dire outside of the presence of the other jurors, and, in refusing to allow him to use written juror information forms to obtain extensive background information on each juror.

Such matters are necessarily within the sound discretion of the trial court. Finney v. State, 242 Ga. 582, 250 S.E.2d 388 (1978). The trial court did not abuse its discretion in denying the appellant's motion. This enumeration is without merit.

4. Appellant contends that jurors were removed for cause in violation of the Witherspoon rule. The responses of the excluded jurors, however, clearly established that they would automatically vote against the imposition of the death penalty regardless of the facts and circumstances of the case. Their exclusion by the trial court was not error. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

Appellant's additional argument that irrespective of Witherspoon such exclusions deprived him of a representative cross-section of the community is also without merit. Bowen v. State, 244 Ga. 495, 260 S.E.2d 855 (1979).

5. The appellant argues that the trial court erred in not striking for prejudice two prospective jurors, the first of whom had been a spectator not only at the appellant's previous trial, but also at the trial of his co-defendant, Moore, and the second of whom was a secretary in the law firm that had represented the appellant's co-defendant. While the second juror had formed his opinion as to guilt, neither juror had formed an opinion as to sentence.

Appellant had been tried and convicted of the crime of murder. The sole question to be tried was that of punishment. Since neither juror had any opinion as to sentence, neither was subject to a challenge for prejudice. Code Ann. §§ 59-804, 59-806 and 59-807. Appellant's fifth enumeration of error is without merit.

6. Appellant complains that the five armed deputies present in the courtroom conveyed to the jury that the defendant was dangerous in violation of his right to an impartial jury. We do not agree.

The appellant was a convicted murderer with a record of escape. The courtroom contained numerous doors and windows.

"A defendant has a right to be tried in an atmosphere free of partiality created by the use of excessive guards except where special circumstances exist..." Allen v. State, 235 Ga. 709, 711, 221 S.E.2d 405 (1975) citing Kennedy v. Cardwell, 487 F.2d 101 (6th Cir. 1973). One such special circumstance is a history of escape. Allen v. State, supra.

Appellant also argues that the trial judge abdicated the security of the courtroom to the discretion of law enforcement personnel. The trial judge's order reads as follows: "The security of the courtroom is a matter which addresses itself to the Sheriff, in his discretion, as to the type of security required and will not be interfered with by the court in the absence of a flagrant abuse of this discretion." (Emphasis supplied.) It is apparent from the trial court's order that while the sheriff was charged with the security of the courtroom, the trial court continued to oversee the sheriff's security measures. We hold that the trial court neither abused nor abdicated its discretion and that this enumeration of error is without merit.

7. Appellant argues that the trial court erroneously admitted into evidence three statements which he had given involuntarily and without waiver of his Miranda rights. This argument was decided adversely to the appellant on his previous appeal and he, therefore, cannot raise this issue in the present appeal. Burger v. State, 245 Ga. 458, 265 S.E.2d 796 (1980).

8. The appellant contends that his right against double jeopardy was violated by the introduction of evidence which supported two aggravating circumstances charged to, but not found by, the jury in appellant's initial trial. The statutory aggravating circumstances set forth in Code Ann. § 27-2534.1(b)(1-10) are not offenses within the meaning of the double jeopardy clause. Redd v. State, 242 Ga. 876, 252 S.E.2d 383 (1979). The trial court did not err in admitting the contested evidence.

9. Appellant alleges error in the admission into evidence of certain portions of the victim's body. This evidence was admitted at the initial trial and found upon appeal to be admissible. Green v. State, supra. The appellant cannot now raise the same issue on appeal of the resentence hearing. Burger v. State, supra.

10. The appellant contends that the admission of evidence which does not support a statutory aggravating circumstance violates the Eighth and Fourteenth Amendments by allowing the sentencing body to sentence in the standardless manner condemned in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

Under our statute, a jury cannot impose...