Harris v. State
| Decision Date | 28 September 1976 |
| Docket Number | No. 30982,30982 |
| Citation | 230 S.E.2d 1,237 Ga. 718 |
| Parties | Kenneth Allen HARRIS v. The STATE. |
| Court | Georgia Supreme Court |
Sidney A. Emerson, Sallie Rich Jocoy, Decatur, for appellant.
Richard Bell, Dist. Atty., Thomas O. Duvall, Jr., Asst. Dist. Atty., Decatur, Arthur K. Bolton, Atty. Gen., G. Stephen Parker, Asst. Atty. Gen., Atlanta, for appellee.
Kenneth Allen Harris, the appellant, was indicted by the Grand Jury of DeKalb County for the murder of Mrs. Xara Catherine Ward occurring on October 2, 1974. (A second count of the indictment was severed on motion of the appellant's attorney and never considered by the jury.) In a trial by jury that lasted from March 10-13, 1975, the appellant was found guilty of murder on March 12, 1975, and after finding a statutory aggravating circumstance the jury recommended the death penalty. On March 13, 1975, he was sentenced to death. He is before this court on appeal and for mandatory review of the death penalty imposed.
On the morning of October 2, 1974, Mrs. Xara Catherine Ward of Decatur, Georgia, entertained her regular Wednesday morning Bible study group. Afterwards, the women went to lunch at a nearby shopping center and discussed the Harvest Sale then in progress at Rich's. The women finished lunch about 12:45 and went their separate ways. Approximately an hour later Mrs. Ward bought a coat at Rich's Department Store in the South DeKalb Mall. That was the last time anyone (except the appellant) saw her alive.
Her body was discovered around 3:00 a.m. the following morning in her parked car at the rear of the mall. She was lying across the front seat of her automobile with a black coat over her head. There were two bullet holes in the bloodstained coat.
It was medically determined that Mrs. Ward died as a result of two gunshot wounds to the head. The two projectiles were found during an autopsy and removed.
Approximately two weeks later, DeKalb police investigators, acting on information supplied by Mr. Terry Moreland, the appellant's brother-in-law, obtained a warrant for Kenneth Allen Harris. He was arrested on October 14 at the construction site where he was employed.
Moreland testified that Harris picked him up at his job on Whitehall Street in Atlanta about 3:50 p.m. on October 2, 1974. As they drove out Interstate 20 towards Rockdale County, appellant asked Moreland whether he would have 'the guts to walk up and shoot someone in the head.' When Moreland replied that he could not, appellant told him that he had shot a woman at the South DeKalb Mall. He showed Moreland the .32 caliber pistol he had used with two empty chambers. Then, as they drove past the mall, Harris pointed to Mrs. Ward's car in the parking lot. 'There's the car,' he told his brother-in-law. A few days later Moreland called the police.
The gun used by the appellant was later found buried near a creek bank in Rockdale County. An employee from the State Crime Laboratory determined that the two bullets taken from the body of Xara Ward were fired from Harris' revolver.
Immediately following the appellant's arrest on October 14, 1974, he was advised of his rights and indicated that he understood. He was again advised after they got to police headquarters, and again indicated that he understood. He then made a statement to officers which was tape-recorded.
The tape was played in open court. At the beginning of the tape, Harris was asked whether he had any objections to the conversation being recorded. He stated that he did not. He then told the officers that he didn't know what made him do it, that it 'was something I always wanted to do.'
Harris continued telling officers how he had hated his former stepmother and how he wished he had killed her. He really wanted to kill someone who resembled his stepmother, he told them. So he bought a hunting knife and went out to South DeKalb Mall several times looking for a woman who reminded him of the hated stepmother. Women who bragged a lot and argued with their husbands particularly irritated him, he told police. He wanted to 'just mutilate the hell out of them.'
He spotted Mrs. Ward on the second floor of Rich's, he said, 'talking like she owned the god damn world.' He followed her to her car, where he pulled the gun on her and told her to do exactly as he said. Then, he said, he directed her to drive to the back of the mall and park near a tree. When she offered him money, he told her, 'I don't want nothing you've got, except your life.' Then he took the coat out of one of her shopping bags, covered her head with it, said 'Bye Lady,' and shot her.
Harris stated that he felt so good afterwards that he wanted to do it again but left when he saw a car coming. He was happy, he said, because 'I had done . . . what I set out to do.' He told the officers that he was glad they caught him because he would have done it again. He also told them that he was on medication at the time, but stated it had no effect on his decision. He said he would have done it if he had been 'stone sober.'
The defense presented three medical doctors and the appellant's brother-in-law, Terry Moreland.
Moreland testified that the appellant had had a recent tonsillectomy and was on medication at the time of the murder. He said that Harris appeared drunk after taking the medication-that he could not walk or speak normally, and that his reflexes were slow.
Dr. George Roach testified that he had performed a tonsillectomy on Harris on September 24. Following the surgery, he prescribed penicillin and Sedapap, an alcohol/barbiturate combination. An overdose of this medication could cause drunkenness and/or drowsiness, he testified.
Dr. Carl Smith, a psychiatrist at Central State Hospital, testified that he observed the appellant over a period of 41 days. He concluded that Harris was suffering from a schizoid personality, but not from any delusional compulsion. In Dr. Smith's opinion, Harris could distinguish right from wrong.
Dr. Julius Ehik, psychiatrist, testified that he examined Harris on November 16, 1974, and again on November 23. In his opinion, Harris suffered from a 'pronounced personality disorder' where he harbored hostility toward a certain type of female. He did not feel that he was psychotic, however. Dr. Ehik stated that a combination of alcohol and barbiturates could lessen an individual's controls but stated that appellant knew right from wrong and was not delusional.
1. In appellant's first enumeration he avers the trial court erred in its pre-sentence charge to the jury regarding imposition of the death penalty, thereby depriving appellant of due process of law under the Fifth and Fourteenth Amendments to the Constitution of the United States.
The thrust of the appellant's argument in support of this enumeration is that the presentence instructions to the jury by the trial court were death-oriented. Specifically he complains that the judge should have told the jury that even if they found a statutory aggravating circumstance they did not have to impose the death penalty.
As we noted in Eberheart v. State, 232 Ga. 247, 206 S.E.2d 12 (1974) the statute, Ga.L.1973, pp. 159, 163-165 (Ga.Code Ann. Sec. 27-2534.1(c) requires: In non-jury cases the judge shall make such designation. Except in cases of treason or aircraft hijacking unless at least one of the statutory aggravating circumstances enumerated in Sec. 27-2534.1(b) is so found, the death penalty shall not be imposed.
The trial court complied with the statute and as we read his instruction at the beginning and at the end he instructed that they could return a life sentence and how it should real. Appellant's allegation that the instructions were death-oriented or slanted toward death is without merit. Likewise his allegation that the court erred in furnishing the jury multiple copies of his instruction pursuant to the statutory requirement that the instructions be given in charge and in writing to the jury for its deliberation. Multiple copies of the instructions could at most be considered as no more than a convenience to the jury because each juror must reach a verdict based on his own conscience.
2. In Enumeration 2 the appellant alleges the trial court erred in its charge to the jury on the consequences of a verdict of not guilty by reason of insanity, thereby denying the appellant due process of law under the Fifth and Fourteenth Amendments to the Constitution of the United States and the equal protection of the laws under the Fourteenth Amendment to the Constitution of the United States.
The appellant contends that the trial court erred in charging the jury in the language of Code Ann. Sec. 27-1503 on the effect of a verdict of acquittal by reason of insanity in its entirety. As we said in Graham v. State, 236 Ga. 378, 384, 223 S.E.2d 803, 808 (1976), '' Although we recognize that those cases involved life sentences and the sentence imposed on Harris was death, the instruction was on the issue of guilt or innocence and was no longer an issue at the sentence determination stage of the proceedings. This enumeration is without merit.
3. Appellant's third enumeration alleges the trial court erred in failing to charge the jury on the burden of...
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