Holiday v. State
| Decision Date | 23 June 1988 |
| Docket Number | No. 45440,45440 |
| Citation | 369 S.E.2d 241,258 Ga. 393 |
| Parties | HOLIDAY v. The STATE. |
| Court | Georgia Supreme Court |
Richard A. Malone, Dist. Atty., William H. McClain, Chief Asst. Dist. Atty., Swainsboro, Michael J. Bowers, Atty. Gen., Eddie Snelling, Jr., Asst. Atty. Gen., for the State.
Dallas Bernard Holiday was convicted by a jury of malice murder, armed robbery, two counts of burglary, and possession of a firearm by a convicted felon. He was sentenced to death for the murder. 1
1. On March 11, 1986, the victim, Leon Williams, went for his usual early-morning walk. His wife often accompanied him, but this time she remained home. Half an hour after he left, a nearby neighbor, Barbara Buckner, ran to the Williams' house and asked to use the telephone--someone was breaking into her house. The Williams' telephone was not working, so Mrs. Williams drove Mrs. Buckner to the police station.
The defendant was still in the Buckner home when the police arrived, but he ran out the back door and eluded capture for nearly an hour. A pistol he dropped during the chase turned out to have been one of two taken in another burglary the previous evening.
Meanwhile, Mrs. Williams returned home. By lunchtime, her husband still had not returned from his walk. She began checking around, trying to find him, and could not. His disappearance was reported to the police that afternoon.
Shortly after 5:00 p.m., the sheriff discovered signs of a struggle at an old pond site. He tracked blood drippings to the edge of a nearby woods, where he found Williams' body.
Williams had been hit on the head at least seven times with a blunt object. The autopsist testified the wounds were consistent with having been inflicted by the butt of a gun, or by a brick similar to one found near the body. Williams had a number of defensive wounds on his hands, including a laceration of one finger that almost completely severed the finger. The cause of death was a gunshot wound to the head.
A ballistics comparison showed that a bullet recovered from under the victim's scalp had been fired from the .32 caliber pistol dropped by Holiday as he attempted to elude the police. Pieces of another gun left at the scene of the struggle--a broken piece of the stock, a magazine spring and a follower--were compared to and fit the .380 automatic obtained from Holiday's female companion. Blood on the .380 pistol and on the brick found near the body was consistent with that of the victim.
Holiday was interrogated after his arrest, and he admitted stealing the two guns in a burglary the previous evening. He stated that he was riding his bicycle when he saw the victim walking, and decided to hit him on the head from the rear with one of the guns, knock him out, and take his money. The blow failed to render the victim unconscious, however, so Holiday ordered him toward the woods. While Williams begged him not to kill him, Holiday took his wallet and his watch and ordered him to lie down. Then he got a brick and hit him two or three times on the head. Williams was still alive, so Holiday took out his other gun--the one he had not hit him with--and shot him. Then, Holiday stated, he decided to burglarize another house. He rang the doorbell, and when no one answered (Mrs. Buckner was in the shower) he went to the rear, broke out the glass in a sliding-glass door, and entered the house. While he was looking for something to steal, the police arrived.
The evidence supports Holiday's conviction on all counts. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Holiday first contends this court lacks jurisdiction over the case because he has pending in the trial court a motion for 3. Upon his arrest, Holiday was taken to jail. Investigator Hattaway talked to him briefly, but Holiday stated that he was tired and asked for two aspirins. These were provided, and Holiday was taken to a cell and allowed to rest for over an hour. Then Hattaway talked to him again about the two burglaries, which Holiday admitted committing.
reconsideration of the denial of his motion for new trial. We do not agree. When the trial court denied the motion for new trial, the case became ripe for appeal. OCGA § 5-6-38. The trial court did not grant a stay of its order denying the motion for new trial, compare Austin v. Carter, 248 Ga. 775(1), 285 S.E.2d 542 (1982), and a defendant cannot force the case to remain in the trial court indefinitely by the continued filing of motions to reconsider.
Later that evening, after the body was found, the sheriff talked to Holiday for a few minutes. Holiday stated that he was sleepy and wanted to go to bed. He was allowed to do so, and the sheriff and investigator Williamson talked to Holiday early the next morning, and Holiday admitted killing Leon Williams.
Early that afternoon, assistant district attorney McClain talked to Holiday for two reasons: to obtain more details about Holiday's activities, and to discuss the recently-discovered fact that the victim had been shot, as well as beaten. The result of this interview was a lengthy written statement that was read into evidence at trial.
The trial court conducted a pre-trial Jackson-Denno hearing, and determined that the statements were voluntarily made, after the defendant had knowingly and intelligently waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Holiday contends this finding was erroneous, claiming that his interrogators failed to honor "scrupulously" his invocation of his right to remain silent. See Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). In fact, the record shows that Holiday's rights were honored and that he was given the opportunity to "control the time at which questioning occur[red], the subjects discussed, and the duration of the interrogation." Id., 96 S.Ct. at 326. The record supports the trial court's findings. Berry v. State, 254 Ga. 101, 104, 326 S.E.2d 748 (1985).
Holiday also complains of testimony at trial in reference to custodial statements allegedly not dealt with at the Jackson-Denno hearing. However, he did not object contemporaneously to any of this testimony, 2 and we have held that, absent a contemporaneous objection, the trial court is not required to conduct a Jackson-Denno hearing sua sponte. Moreover, we note that except for Holiday's spontaneous statement, upon his capture, that he "knew his rights," which was not the product of interrogation, and therefore is not covered by Miranda, see Findley v. State, 251 Ga. 222(1), 304 S.E.2d 898 (1983), the testimony complained of here was based on statements made by Holiday during his interview with investigator Hattaway on the afternoon of March 11, and this interview was dealt with at the Jackson- Denno hearing. 3
4. Absent a motion to sever, there was no error in trying together five of the six counts of the indictment. 4 McCloud v. State, 174 Ga.App. 672(3), 331 S.E.2d 54 (1985).
5. The trial court did not err by excusing a prospective juror who stated, after reflection, that she simply could not vote to impose a death sentence. Alderman v. State, 254 Ga. 206(4), 327 S.E.2d 168 (1985).
6. Holiday was not denied an effective and thorough voir dire examination. Curry v. State, 255 Ga. 215(2b), 336 S.E.2d 762 (1985). His contention that the trial court "precluded defense counsel from asking jurors whether they could sentence Mr. Holiday to life imprisonment 'even if there were aggravating circumstances there,' " Appellant's brief, p. 33, is factually incorrect; that was not the question he asked and the trial court did not sustain the objection to the question that he did ask. Further, the court did not err by finding both a husband and wife to be qualified to serve as jurors. Childs v. State, 257 Ga. 243(10), 357 S.E.2d 48 (1987).
7. Law enforcement officers testified that based on certain, unspecified information they uncovered during their investigation, they went to the home shared by the defendant and his brother, and obtained the victim's wallet, and they went to the home of Rosa Gibbons, who gave them a bag containing items taken in the burglaries. The brother testified that he had found the wallet under the sofa in their house. Gibbons testified that she had been asked by Shirley Sanders (the defendant's female companion) to hold the bag. Holiday contends that all of this testimony was hearsay.
Gibbons' testimony that she was keeping something at the request of someone else was not hearsay; it was simply a statement of fact. See Reed v. State, 249 Ga. 52(4), 287 S.E.2d 205 (1982); Cleary, McCormick on Evidence, Ch. 24. § 249, p. 733 (3rd Ed.1984). The defendant's brother testified to no hearsay, and since the law officers testified only that they received certain information (and not what that information was) and, based on that information, took certain action, they testified to no hearsay either. Compare OCGA § 24-3-2.
8. Assistant district attorney McClain took the final pretrial statement from Holiday. He was listed as a witness on the list furnished to the defendant under OCGA § 17-7-110. Holiday moved to disqualify McClain from acting as an attorney in the case. See DR 5-102 of the Georgia Code of Professional Responsibility, 252 Ga. at 613. The district attorney consented to the motion, and took McClain off the case, stating that henceforth he would not be involved in the case other than as a witness.
When McClain testified at trial, Holiday's attorney attempted to cross-examine him about the motion for disqualification. In response to the state's objection, he stated to the court that he wished to ask McClain "whether [the motion] was granted and whether or not he agreed with it; whether it has anything to do with his partiality and...
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