Greene v. State

• Decision Date: 15 March 1996
• Docket Number: No. S95P1366,S95P1366
• Parties: GREENE v. The STATE.
• Court: Georgia Supreme Court

Page 129

469 S.E.2d 129

266 Ga. 439

GREENE v. The STATE.

No. S95P1366.

Supreme Court of Georgia.

March 15, 1996.

Reconsideration Denied March 28, 1996.

[266 Ga. 463] William L. Kirby, II, Columbus, Charlotta Norby, Stephen B. Bright, Atlanta, Herbert L. Wells, Perry, for Greene.

Douglas C. Pullen, Dist. Atty., Columbus, Michael J. Bowers, Atty. Gen., Atlanta, J. Gray Conger, Dist. Atty., Lori L. Canfield, Asst. Dist. Atty., Columbus, Susan V. Boleyn, Senior Asst. Atty. Gen., Atlanta, for State.

CARLEY, Justice.

Daniel Greene was convicted of the murder of a customer in a convenience store and he was also convicted of armed robbery and of committing an aggravated assault against the store clerk. As an aggravating circumstance, the jury found that the murder had been committed during the course of the armed robbery and Greene was sentenced to death. OCGA § 17-10-30(b)(2). For the armed robbery, he received a life sentence and, for the aggravated assault, a 20-year sentence. Greene appeals from the judgments entered by the trial court. ¹

Pre-Trial Rulings

1. The trial court did not abuse its discretion in denying Greene's motion for funds for investigative assistance, since Greene failed to show that an investigator was necessary to his defense or that his trial was rendered unfair because he was denied funds for investigative assistance. See Isaacs v. State, 259 Ga. 717, 725(13), 386 S.E.2d 316 (1989); Rogers v. State, 256 Ga. 139, 145(8), 344 S.E.2d 644 (1986).

Likewise, Greene also failed to make a threshold showing that his mental health would be an issue in either phase of trial. Compare Bright v. State, 265 Ga. 265(2)(e, f), 455 S.E.2d 37 (1995). Instead, his attorneys merely made conclusory statements that they needed assistance to determine whether Greene's mental health would be a significant issue, and they offered no evidence or testimony to support those conclusory statements. See Todd v. State, 261 Ga. 766, 772(11), 410 S.E.2d 725 (1991); Roseboro v. State, 258 Ga. 39, 41(3)(d), 365 S.E.2d 115 (1988). It follows that the trial court did not err in denying Greene's request for funds for a mental health evaluation.

Jury Selection

2. Greene contends that the trial court erred in excusing five prospective jurors for cause based upon their opposition to the death penalty.

Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) is the controlling authority as to the death-penalty qualification of prospective jurors and its holding is unmistakably clear and unambiguous. The proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment

is whether the juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." We note that, in addition to dispensing with Witherspoon [v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968),] reference to "automatic" decisionmaking, this standard likewise does not require that a juror's bias be proved with "unmistakable clarity." This is because determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism. What common sense should have realized experience has proved: many veniremen simply cannot be asked enough questions to reach the point where their bias has been made "unmistakably clear"; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.... [T]his is why deference must be paid to the trial judge who sees and hears the juror.

Wainwright v. Witt, supra at 424-426 (II), 105 S.Ct. at 852-53.

Contrary to Greene's contentions, the transcript of voir dire does not show that any of the prospective jurors were disqualified merely for expressing "qualms" about the death penalty or for "leaning" toward a life sentence. Rather, the prospective jurors were disqualified only after the trial court undertook an exhaustive and conscientious effort to determine whether their views on the death penalty would prevent or substantially impair the performance of their duties in accordance with their instructions and oaths. It is not determinative that, at some point during voir dire, each of the prospective jurors may have given answers which, if considered in isolation, would indicate that his or her opposition to the death penalty was not "automatic." Likewise, it is not necessary that the disqualification of each of the prospective jurors may not appear with "unmistakable clarity." The relevant inquiry is whether the trial court's finding that the proper standard for death-penalty disqualification was met as to each of the prospective jurors is "fairly supported" by the record "considered as a whole." Wainwright v. Witt, supra at 433 (IV), 105 S.Ct. at 857. On review, an appellate court should not substitute its findings for those of the trial court. Wainwright v. Witt, supra at 434 (IV), 105 S.Ct. at 857. The conclusion that a prospective juror is disqualified for bias is one that is based upon findings of demeanor and credibility which are peculiarly within the trial court's province and such findings are to be given deference by appellate courts. Wainwright Greene's contention that the trial court erred in excusing the prospective jurors is based upon a fundamental misconstruction of Witherspoon v. Illinois, supra. Witherspoon did not create any new ground for challenging a prospective juror in a death-penalty case, but merely addressed the long-recognized ground of disqualification for bias in the context of a death-penalty case. Wainwright v. Witt, supra at 423 (II), 105 S.Ct. at 851-52.

                v. Witt, supra at 428 (III), 105 S.Ct. at 854.   Applying this controlling authority here, it is clear that, whatever ambiguity may exist in the record of the voir dire, "the trial court, aided as it undoubtedly was by its assessment of [the prospective jurors'] demeanor[s], was entitled to resolve it in favor of the State."  Wainwright v. Witt, supra at 434 (IV), 105 S.Ct. at 857
                

[T]here is nothing talismanic about juror exclusion under Witherspoon merely because it involves capital sentencing juries. Witherspoon is not grounded in the Eight Amendment's prohibition against cruel and unusual punishment, but in the Sixth Amendment. Here, as elsewhere, the quest is for jurors who will conscientiously apply the law and find the facts. That is what an "impartial" jury consists of, and we do not think, simply because a defendant is being tried for a capital crime, that he is entitled to a legal presumption or standard that allows jurors to be seated who quite likely will be biased in his favor.

Wainwright v. Witt, supra at 423 (II), 105 S.Ct. at 851-52. Because a contrary holding would be based upon an unauthorized "talismanic" interpretation of Witherspoon and a misapplication of the controlling authority of Wainwright, the trial court's finding that the prospective jurors were disqualified must be affirmed.

3. Greene urges that it was error to fail to disqualify a prospective juror based upon her purported bias in favor of the death penalty. However, this enumeration likewise is controlled by Wainwright and the trial court was authorized to find that the "final distillation" of the prospective witness' thoughts demonstrated her qualification. Taylor v. State, 261 Ga. 287, 292(5), 404 S.E.2d 255 (1991).

4. Contrary to Greene's contentions, the record reflects that the trial court was even-handed in its efforts to obtain a jury whose members would not be biased either for or against the imposition of the death penalty.

5. In the State's exercise of its peremptory strikes, Greene established a prima facie case of discrimination against six African-American prospective jurors. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Osborne v. State, 263 Ga. 214, 215(3), 430 S.E.2d 576 (1993); Davis v. State, 263 Ga. 5, 7(10), 426 S.E.2d 844 (1993). Therefore, the trial court properly required the prosecutor to articulate the reasons for each of these peremptory strikes. Greene contends that the trial court erred in accepting the prosecutor's articulated reasons, urging that those reasons were neither supported by the record nor applied to white prospective jurors.

Contrary to Greene's contention, a thorough review of the voir dire of each of the six prospective jurors reveals a valid racially-neutral basis for the employment of a peremptory strike. Batson does not demand that the explanation proffered by a prosecutor be "persuasive, or even plausible." Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). "[A] 'legitimate reason' is not a reason that makes sense, but a reason that does not deny equal protection." Purkett v. Elem, supra at ----, 115 S.Ct. at 1771. The prosecutor correctly noted that the first prospective juror expressed sympathy for cocaine users who engage in uncharacteristic criminal activity, the second failed to disclose a criminal conviction, the third failed to report for jury duty the first day and reported a kidney problem which would interfere with her service, the fourth was a single mother with no family in town to assist with child care, the fifth expressed reservations about the death penalty, and the sixth was a single mother with doubtful child care arrangements who expressed hesitation about the death penalty. The white prospective jurors to whom Greene points for comparison did not in fact give comparable answers on voir dire. For example, those with Although Greene did respond to the reasons articulated by the prosecutor, he...