Jefferson v. State

• Decision Date: 03 March 1987
• Docket Number: No. 43735,43735
• Parties: JEFFERSON v. The STATE.
• Court: Georgia Supreme Court

Page 468

353 S.E.2d 468

256 Ga. 821

JEFFERSON v. The STATE.

No. 43735.

Supreme Court of Georgia.

March 3, 1987.

Reconsideration Denied March 24, 1987.

Ralph W. Kearns, Jr., Kearns & Reeves, Marietta, for Lawrence Joseph Jefferson.

Thomas J. Charron, Dist. Atty., Marietta, Michael J. Bowers, Atty. Gen., Atlanta, J. Michael Davis, Asst. Atty. Gen., for the State.

GREGORY, Justice.

Appellant, Lawrence Jefferson, was convicted of felony murder during the commission of an armed robbery, and sentenced to death. He now appeals. ¹ We affirm.

Facts

Soon after 4:00 p.m. on May 1, 1985, Jefferson and co-worker Ed Taulbee quit work for the day, and went to Lake Allatoona in Taulbee's car to do some fishing. Later that evening, Jefferson returned home, alone, in Taulbee's car.

A neighbor dropped by and observed clothes soaking in Jefferson's bathtub and discovered that Jefferson's wallet contained some $100 in cash, although he had not yet cashed his paycheck. The neighbor testified that Jefferson told him "his little fat buddy was dead."

Another neighbor testified that he took Jefferson to Lake Allatoona later that night, and that Jefferson disappeared into some woods and returned a few minutes later carrying a fishing pole and tackle box. Next, he took Jefferson to an automatic teller machine where Jefferson, asking whether it took "pictures," put on a straw hat and sunglasses and attempted to make a cash withdrawal.

Jefferson subsequently gave Taulbee's bank card to a third neighbor and told her to get rid of it. It was recovered from the neighbor's window air-conditioning unit.

On the morning of May 2, 1985, Taulbee's body was discovered lying face down in some woods near Lake Allatoona. A large log lay across his head, and two large wooden sticks lay nearby, one of which was shattered and had hair and blood on it. The victim's pockets were empty except for his paycheck receipt.

Jefferson admitted to the police that he owed the victim some money, and, although he denied killing him, he stated that "[Taulbee] did not need to be around other people, that he wanted to be executed, and that he wanted to be put to sleep."

The sufficiency of the evidence is not questioned on appeal, and we find that it supports the conviction. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Enumerations of Error

1. In his 7th and 8th enumerations of error, Jefferson contends the trial court should have granted his challenges to the grand and petit jury arrays.

The racial percentages of the jury lists are essentially the same as those dealt with in Cook v. State, 255 Ga. 565(11), 340 S.E.2d 891 (1986). ² The defendant's contentions regarding comparative disparity were dealt with in Cook, and we find no error in the trial court's finding that the Cobb County jury lists meet constitutional standards with regard to race.

Jefferson also contends that young persons are underrepresented on the lists. His evidentiary presentation was somewhat vague as to what group of young persons might constitute a cognizable, underrepresented class, and his evidence related, variously, to persons between the ages of 18 and 30, 18 and 24, and 25 and 34. The trial court found as a matter of fact that Jefferson failed to establish the cognizability of any group of young persons, and the record supports this finding. See Parks v. State, 254 Ga. 403(6), 330 S.E.2d 686 (1985).

The trial court did not err by denying the defendant's jury challenges.

2. In his 1st enumeration, Jefferson contends that three prospective jurors were improperly excused for bias against the death penalty. Their answers, he argues, failed to meet the standard for exclusion announced in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).

As has been pointed out, " 'determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism.' Wainwright v. Witt, supra. Often, the answers of a prospective juror will to some degree be contradictory. [Cit.]" Curry v. State, 255 Ga. 215, 220, 336 S.E.2d 762 (1985).

Prospective juror Newkirk at first testified that she could not "honestly" say whether she was conscientiously opposed to capital punishment, and would not automatically vote against a death sentence. She subsequently testified, however, that although she would try to be fair and impartial on the question of sentence, she was "in general" opposed to the death penalty, she would "just hate" to consider it, and her feelings about the death penalty would "substantially impair" the performance of her duties as a juror. See Alderman v. State, 254 Ga. 206, 207, 327 S.E.2d 168 (1985). When asked by the defense whether she could vote for a death sentence, she stated that she hated to give a yes or no answer, but if pressed would say no; if given a choice as to sentence, she "guess[ed]" she would "say life."

We cannot agree with the defendant's argument that this prospective juror merely expressed "qualms" about capital punishment, see Alderman v. State, supra; nor can we agree that the trial court erred by excusing the juror.

Prospective juror Williamson equivocated about her ability to impose a death sentence, saying at first that although her present feeling was that she could not, she could "change her mind," particularly if the victim were a member of her family or someone she "loved very deeply." However, she finally stated, "I wouldn't want him to have the death penalty. I don't think I could live with it if I sentenced somebody to the death penalty ... I wouldn't want to make that decision."

The issue of this juror's excusal for bias against the death penalty is within the deference due the trial judge's determination, and the juror was properly excused under the Wainwright v. Witt standard.

After prospective juror Beck testified that he was conscientiously opposed to capital punishment, he was asked if he would automatically vote against the imposition of a death sentence no matter what the evidence might show, and he answered, "Yes sir, I believe I would." There was no further voir dire on the point by either side.

We cannot agree with Jefferson's contention that Beck's testimony was too "equivocal, uncertain and qualified" to justify his excusal. See Castell v. State, 250 Ga. 776 (7b), 301 S.E.2d 234 (1983). The juror's excusal was proper.

3. One prospective juror, asked whether she had formed and expressed an opinion with respect to the defendant's guilt, answered, "I don't like the appearance of the accused."

Jefferson contends in his 3rd enumeration that this juror should have been excused on the ground that she was prejudiced and biased against the defendant. However, the defendant did not object to the juror on this ground at trial, ³ and in view of her testimony that she had formed and expressed no opinion as to the guilt or innocence of the defendant, and could be fair and impartial, the trial court did not err by failing to excuse her. Spivey v. State, 253 Ga. 187(6d), 319 S.E.2d 420 (1984).

4. In his 5th enumeration, the defendant contends that OCGA § 15-12-164(a)(4), which specifies the statutory voir dire question to be asked concerning conscientious objection to the death penalty, does not state the proper test for disqualification and is unconstitutional.

OCGA § 15-12-164(a) provides that "on voir dire examination in a felony trial, the jurors shall be asked the following questions ... [including] (4) 'Are you conscientiously opposed to capital punishment?' If the juror answers this question in the negative, he shall be held to be a competent juror."

As we pointed out in Curry v. State, supra, 255 Ga. at 219, 336 S.E.2d 762, "an affirmative answer to the question would, by itself, disqualify no juror, and the purpose of further voir dire is precisely to clarify the juror's views on capital punishment."

In any event, inasmuch as no juror in this case was excused simply because he answered the question in the affirmative (or was declared competent in all respects simply because he answered in the negative, compare, e.g. Pope v. State, 256 Ga. 195(7e), 345 S.E.2d 831 (1986)), Jefferson lacks standing to challenge the constitutionality of OCGA § 15-12-164(a)(4). Stover v. State, 256 Ga. 515, 350 S.E.2d 577 (1986).

5. The failure to give a requested instruction is not reversible error where the charge given substantially covers the same principles of law. Fox v. State, 238 Ga. 387(2), 233 S.E.2d 341 (1977). Enumeration 2 is without merit.

6. The trial court did not err by refusing to exclude the testimony of a state's witness for his alleged violation of the rule of sequestration. Exclusion of testimony simply is not an appropriate remedy for a violation of the rule. See OCGA § 24-9-61; Hicks v. State, 256 Ga. 715(12), 352 S.E.2d 762 (1987). A violation of the rule goes to the credibility of the witness, and renders him amenable to the court for contempt in disobeying the court's order, but does not render him incompetent or permit the exclusion of his testimony. May v. State, 90 Ga. 793, 800(2), 17 S.E.2d 108 (1892); Shelton v. State, 111 Ga.App. 351(1), 141 S.E.2d 776 (1965); Thomas v. State, 7 Ga.App. 615(1), 67 S.E. 707 (1910).

Contrary to the defendant's contention, the trial court did instruct the jury that violations of the rule could be considered in evaluating the credibility of witnesses. Jefferson's 4th enumeration is without merit.

7. Contrary to the defendant's 6th enumeration, the trial court did not err by allowing the state to buttress the testimony of two of its witnesses by proving prior consistent statements. Cuzzort v. State, 254 Ga. 745, 334 S.E.2d 661 (1985).

8. In his 9th and 10th enumerations of error, Jefferson complains of certain evidence presented by the state at the sentencing phase of the trial, specifically, state's exhibits 75 and 81, pertaining to prior criminal activity by the defendant. Resolution of...