Ingram v. State

Decision Date27 November 1984
Docket NumberNo. 41100,41100
Citation323 S.E.2d 801,253 Ga. 622
PartiesINGRAM v. The STATE.
CourtGeorgia Supreme Court

Dennis C. O'Brien, William L. McCulley, Marietta, for Nicholas Lee ingram.

Thomas J. Charron, Dist. Atty., Marietta, James F. Morris, Debra H. Bernes, Fonda C. Saxon, Asst. Dist. Attys., Michael J. Bowers, Atty. Gen., Atlanta, for the State.

HILL, Chief Justice.

This is a death penalty case. Defendant Nicholas Lee Ingram was tried by a jury in Cobb County for murder, aggravated assault, and two counts of armed robbery ($60 and a pickup truck). He was convicted on all counts and sentenced to death for the murder. This is his appeal. 1

Facts

At approximately 6:30 p.m. on June 3, 1983, a young white man armed with a pearl-handled pistol entered the home of J.C. and Mary Sawyer and demanded the use of their phone. This young man, whom Mrs. Sawyer later identified as the defendant, Nicholas Ingram, stated that he wanted money and the keys to their car. He fired a shot through the floor of the living room to prove that the gun was not a toy and threatened to blow their heads off if they did not comply with his demands. In response, Mrs. Sawyer gave Ingram $60 and J.C. gave him the keys to his blue-and-white Chevrolet pickup truck. Ingram then marched them outside and into the woods which surrounded their home. Using rope and some wire, Ingram tied his victims' hands behind them and then tied them to a tree. He told Mrs. Sawyer to remember a tattoo that she had noticed on his arm because it was going to get her killed. As the Sawyers begged for their lives, the defendant continued his threats, saying that he liked to torture people as he took off his shirt, tore it in two, and stuffed the two halves into their mouths. Then he shot them both in the head. J.C. Sawyer was killed; however, Mrs. Sawyer was only wounded. She fell to the ground and pretended she was dead until she heard the truck drive off. Realizing that her husband was dead, Mrs. Sawyer managed to untie herself and went to a neighbor's house to call the police.

Earlier that day, Ingram had gone to a pawn shop with his friend Kevin Plummer, in the latter's car, to sell some automobile wheels and a ring. Then they went to see a friend of Ingram's who worked at a convenience store. Afterwards, Ingram and Plummer drove to Ingram's father's house, where Ingram retrieved a pearl-handled .38 revolver. He told Plummer that he knew where he could get a vehicle that he was going to use to go to California. He directed Plummer to a driveway that led through the woods and up Blackjack Mountain in Cobb County. They drove a short distance up the driveway and stopped. Ingram got out and told Plummer to wait for him. He told Plummer that he might have to pistol-whip them but he wasn't sure he could shoot them. He walked up the driveway and out of sight. Plummer decided not to wait and drove home.

At around 8 p.m., Ingram showed up at the convenience store he had visited earlier that day. He remained only a few moments, then left, driving a blue-and-white pickup truck. The pickup truck was recovered on Interstate 20 in Mississippi three days later. Inside was a motel receipt from Lincoln, Alabama, dated June 3, 1983. The motel's portion of the receipt was later obtained and the handwriting on it was identified as Ingram's.

Ingram stole another car in California and was eventually arrested in Nebraska for DUI. While being questioned about the stolen automobile, Ingram told the police that he could save them some time; that if they would check with Cobb County, Georgia, they would find that he was wanted for two murders. Questioning stopped then, and was resumed by Georgia authorities after they had been contacted and had returned Ingram to Georgia.

Ingram gave them a long statement in which he admitted remembering some of the events of the afternoon of June 3, including being dropped off at the Sawyer driveway, returning to find Plummer gone, getting into a truck and backing out of the driveway. He stated that he woke up the next morning in a shopping center parking lot in Alabama in the truck. He contended that he had blacked out from drinking and could not remember shooting or robbing anyone.

We have reviewed the evidence pursuant to Rule IV(B)(2) of the Unified Appeal Procedure, as amended, 252 Ga. A-13 et seq. It is sufficient to support the guilty verdicts. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Pre-Trial Issues
1. Defendant's first seven enumerations of error stem from the trial court's denial of his pleas in abatement and challenges to the arrays of the grand and traverse juries.

(a) The foreman of the grand jury which returned the indictment in this case was Mack Henderson, a director of the Marietta Downtown Development Authority (hereafter, MDDA). In his first enumeration of error, defendant argues that Henderson's service on the grand jury rendered the indictment invalid under Ga.L.1982, p. 779, OCGA § 15-12-60(b)(1), which provides that "[a]ny person who holds any elective office in state or local government ..." is incompetent to serve as a grand juror.

The MDDA was created by 1971 Ga.Laws 3459, as amended. Consistent with Section 2 of that statute, Mack Henderson was elected by a "caucus" of property owners, and defendant contends that Henderson therefore held an "elective office" within the meaning of OCGA § 15-12-60(b)(1). We disagree.

"Elective" offices generally are taken to be "those which are filled by the direct exercise of the franchise of the voters." In re Opinion of the Justices, 83 N.H. 589, 139 A. 180 (1927). See also, State ex rel Smith v. Bowman, 184 Mo.App. 549, 170 S.W. 700, 701 (1914); State ex rel. Duryee v. Howell, 59 Wash. 634, 110 P. 543 (1910). We hold that the "elective office" referred to in OCGA § 15-12-60(b)(1) is an office filled by citizens registered to vote and voting at an election. See 1983 Const. Art. II, Sec. I, Par. II; OCGA § 21-2-2(25); OCGA § 21-3-2(12); Op.Atty.Gen. 76-100. To rule otherwise would open the possibility that a person elected by grand jurors to serve as chairperson of the grand jury pursuant to OCGA § 15-12-67 would be ineligible to serve on the grand jury (see Division 1(c), below).

Henderson's selection by votes cast at a caucus of property owners was not an election by citizens registered to vote and voting at an election. Therefore, pretermitting whether Henderson holds an "office in state or local government" within the meaning of OCGA § 15-12-60(b)(1), he does not hold an "elective office" within the purview of that code section and he was not incompetent to serve as a grand juror.

Defendant's 1st enumeration therefore is without merit.

(b) Another grand juror was an attorney who had filed no written request either for inclusion on the jury list or for exemption from jury duty.

At all relevant times during the proceedings below, two code sections made provision for exemptions from jury duty. OCGA § 15-12-1(a) provided that attorneys were exempt from jury duty but that upon an attorney's written request, he could be included on the jury list. OCGA § 15-12-1.1(a) provided that in "any county for which a plan for selection of jurors by electronic or mechanical means has been established pursuant to Code Section 15-12-42," the court could "by rule direct" that OCGA § 15-12-1.1(b) would apply to jury exemptions. OCGA § 15-12-1.1(b) provided that an attorney would remain on the jury list but could, upon written request, claim an exemption from jury duty. 2

Defendant acknowledges that Cobb County utilizes a plan for selection of jurors pursuant to OCGA § 15-12-42(b), but contends that since the superior court failed to expressly direct that the exemption provisions of OCGA § 15-12-1.1(b) would apply, exemption procedure should have followed OCGA § 15-12-1(a). Therefore, defendant argues, attorney Melodie Clayton should not have been included on the jury list absent a written request for inclusion, and her service on defendant's grand jury was reversible error. We disagree.

Under neither code section was Ms. Clayton disqualified. Instead, she enjoyed the privilege of claiming an exemption and the code sections differed only in the methods by which that privilege might be asserted. Regardless of which section applied, we find here no disregard of the substantive provisions of the law as would vitiate the array. Cf. Franklin v. State, 245 Ga. 141(1), 263 S.E.2d 666 (1980). Moreover, the privilege of exemption belonged to the juror and does not provide defendant with grounds to object to her service on the grand jury. Smith v. State, 225 Ga. 328(1), 168 S.E.2d 587 (1969). 3 Thus, defendant's 2nd enumeration is without merit.

(c) In his 3rd enumeration, defendant alleges unconstitutional discrimination in the selection of grand jury forepersons.

Between January 1980 and October 1983, 23 grand juries were empaneled in Cobb County. Twenty-two of the forepersons were white men and one was a white woman. Consistent with the discretion given to judges of the superior courts by OCGA § 15-12-67, some of the forepersons were appointed by the court and others were elected by the members of the grand jury.

We note, first, that defendant does not contend that the grand jury list contains a significant underrepresentation of blacks or women, nor has he attempted to prove the composition of the grand jury list. Assuming, however, that the grand jury list contains the same percentages of blacks as does the traverse jury list (see below), then approximately one in 33 persons on the grand jury list is black. It follows that defendant's showing that none of the 23 grand jury forepersons was black fails in any event to demonstrate such an underrepresentation of blacks as would support a prima facie case of racial discrimination in the selection of grand jury forepersons.

Moreover, it is doubtful that he has shown...

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