Jenkins v. State

• Decision Date: 23 February 1998
• Docket Number: No. S97P1474.,S97P1474.
• Citation: 498 S.E.2d 502,269 Ga. 282
• Parties: JENKINS v. The STATE.
• Court: Georgia Supreme Court

498 S.E.2d 502

269 Ga. 282

JENKINS v. The STATE.

No. S97P1474.

Supreme Court of Georgia.

February 23, 1998.

Reconsideration Denied April 2, 1998.

G. Terry Jackson, Pattie J. Williams, Steven L. Sparger, Jackson & Schiavone, Savannah, Kenneth R. Carswell, Howard, Carswell & Bennett, P.C., Jesup, for Larry L. Jenkins, Jr.

John B. Johnson, III, Chief, Asst. Dist. Atty., Jesup, Paige Reese Whitaker, Beth Attaway, Asst. Attys. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State.

Michael Mears, MultiCounty Public Defender, Atlanta, for other interested parties. HUNSTEIN, Justice.

Larry L. Jenkins, Jr. was convicted of the malice murders and kidnappings with bodily injury and armed robbery of Terry and Michael Ralston, and theft of $600 in coins. The jury recommended two death sentences for the murders, finding the following nine aggravating circumstances: the murder of Michael Ralston was committed during the commission of a kidnapping and in the commission of the murder, kidnapping, and armed robbery of Terry Ralston; the murder of Terry Ralston was committed during the commission of a kidnapping and in the commission of the murder and kidnapping of Michael Ralston; and that each murder was committed for the purpose of receiving money. OCGA § 17-10-30(b)(2), (4). The trial court sentenced Jenkins to death and Jenkins appeals.¹ We affirm.

1. The evidence adduced at trial showed that at 8:30 p.m. on January 8, 1993, Terry Ralston and her fifteen-year-old son Michael left their home in Ms. Ralston's white Chevy Lumina van to drive to their family-owned laundromat in Jesup in order to collect coins from the machines and otherwise close the store. Two hours later, when they failed to return home, a family member went to the laundromat and discovered the establishment locked but only partially cleaned. The next day the bodies of Terry and Michael Ralston were found lying face down in a ditch near the railroad tracks. Michael had been shot six times from behind at close range, including once in the back of the head. His mother was shot once at the base of the skull. A piece of fresh onion was found next to the bodies. A witness residing in the vicinity where the bodies were discovered testified that she heard shots fired between 9 and 10 p.m. on January 8.

Witnesses testified that they observed Jenkins driving Ms. Ralston's white van after 10:30 p.m. on the night of January 8 as he drove around Jesup picking up some friends to go to a club. He picked up David Wilkerson at 11:30 p.m. after Wilkerson's job shift ended and picked up Burnies Durden shortly thereafter from an apartment where Durden had been playing cards since 5 p.m. Jenkins informed his friends that the van belonged to his mother. Jenkins carried a .22 Grendel magnum pistol and the van contained a duffle bag holding over $600 in quarters. Jenkins drove his friends to a nearby town in the van where they went to a club and spent the night at a woman's house. The next day, Jenkins discussed the incident with Durden telling him that he had robbed a laundromat and shot and killed a lady and her son with a.22 along some railroad tracks after the boy "started to buck" and the woman began screaming. Jenkins drove the van back to Jesup where he, Durden and Wilkerson placed the quarters in coin wrappers. Jeramon Campbell joined the others and, after being told by Durden about Jenkins' admission to robbing and killing two people, asked Jenkins if it was true. Jenkins replied that he was "just kidding," but he later showed Campbell and Durden Michael Ralston's learner's permit.

Thereafter, the four men drove around Jesup and tried to cash in the quarters. At one store that Campbell entered, the cashier refused the coins because some people had been robbed the night before and were missing. When questioned by Campbell about this comment, Jenkins did not answer and told Wilkerson, who was driving, to back out so the cashier could not see the van's license plate number. The police subsequently spotted the van and pulled it over; the passengers escaped on foot, but Wilkerson turned himself in to police at a nearby police station. Rolls of quarters, a clip from a .22 automatic weapon, a sportsbag, a box of .22 cartridges and two onion peels were found in the van. Jenkins threw the murder weapon into some bushes when he ran from the van and dropped a backpack which contained $142 in quarters. When he was arrested later that day the police discovered Michael Ralston's learner's permit in his pocket.

Durden, Wilkerson and Campbell were interrogated separately and each gave corroborating statements about Jenkins' actions and comments on January 8 and 9. The police were able to establish that none of the men had been with Jenkins or in the white van before 11:30 p.m. on the night of the murders. During the time Jenkins was incarcerated prior to conviction, inmate Curtis Mathis saw and heard Jenkins arguing with another prisoner. According to the inmate, Jenkins told the other prisoner that he had "already killed two [people] and it wouldn't bother him again if he killed another one."

The evidence adduced was sufficient to enable a rational trier of fact to find Jenkins guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

PRETRIAL PROCEEDINGS

2. Jenkins contends the trial court erred in denying his motion to preclude the State from seeking the death penalty due to the alleged unconstitutionality of the prosecutor's criterion for determining when to seek it. The record reflects the position of the district attorney to seek the death penalty in every murder case in which there is a statutory aggravating circumstance, with the exception of cases involving outrageously or wantonly vile, horrible or inhuman circumstances, OCGA § 17-10-30(b)(7), which are evaluated individually.² Jenkins argues that a system where a prosecutor automatically seeks the death penalty if certain statutory aggravating circumstances are present is as arbitrary and unconstitutional as a mandatory sentencing scheme. See Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (statute providing for mandatory death sentence for certain crimes struck down as unconstitutional). Compare Gregg v. Georgia, 428 U.S. 153, 199, 96 S.Ct. 2909, 2937, 49 L.Ed.2d 859 (1976) (appellant claimed that exercise of prosecutorial discretion made imposition of death sentence wanton and capricious). We disagree. A prosecutor's decision to seek the death penalty is limited by the jury's ultimate decision to impose it. McClain v. State, 267 Ga. 378(12), 477 S.E.2d 814 (1996). Jenkins has not produced any proof that the district attorney is motivated by anything other than the strength of the evidence.³

Absent facts to the contrary, it cannot be assumed that prosecutors will be motivated in their charging decision by factors other than the strength of their case and the likelihood that a jury would impose the death penalty if it convicts.

Gregg, supra, 428 U.S. at 225, 96 S.Ct. at 2949 (White, J., concurring). The U.S. Constitution and Georgia law authorize the death penalty for Jenkins' crimes and Jenkins has failed to show that the prosecutor acted in an unconstitutional manner with respect to his case. Rower v. State, 264 Ga. 323(2), 443 S.E.2d 839 (1994).

3. Jenkins contends the trial court erred in changing venue to a county tainted by prejudicial pretrial publicity. Jenkins moved for a change of venue beyond a 50-mile radius due to pretrial publicity in Wayne County. The State conceded there had been prejudicial pretrial publicity in Wayne County and agreed to a venue change, but the parties were unable to reach agreement on the location of the trial. Pursuant to OCGA § 17-7-150(a)(1), the court ruled that the trial would be moved to neighboring Glynn County. The court noted that the two counties receive their news from different media markets,⁴ have a similar racial breakdown, and Glynn County is convenient to the parties and witnesses. Jenkins asserts that this ruling was error because the county seats are only 40 miles apart, the counties share a common border, and 13 prospective Glynn County jurors had heard about or were familiar with the case.

To prevail on his claim, Jenkins had to present sufficient evidence to show that the setting of the trial was inherently prejudicial due to pretrial publicity or that any juror displayed actual prejudice against him. Jones v. State, 267 Ga. 592(1)(a), 481 S.E.2d 821 (1997). The only evidence proffered by Jenkins that it would be inherently prejudicial to have the trial in Glynn County is that county's proximity to Wayne County and the prosecutor's admission that there had been prejudicial pretrial publicity in Wayne County. This evidence, by itself, does not support Jenkins' assertion that there must have been a "spill-over" of prejudice into Glynn County. With regard to actual bias by prospective jurors, the record reveals that only 13 of 75 prospective jurors could remember hearing any news about the crimes; most of these jurors had only sketchy memories of what had been reported; none had formed a fixed opinion about the case; and Jenkins did not move to strike any jurors for cause due to pretrial publicity. Id; Woodbury v. State, 264 Ga. 31(3), 440 S.E.2d 461 (1994). Because there was no proof either that the trial setting in Glynn County was inherently prejudicial or that there was actual bias on the part of jurors, the trial court did not abuse its discretion by changing venue to Glynn County.

4. The trial court correctly denied Jenkins' request for access to the State's juror files. Wansley v. State, 256 Ga. 624(2), 352 S.E.2d 368 (1987).

5. Jenkins filed a "Motion to Bar Unreliable Testimony of an Informant" before trial, claiming that Curtis Mathis, the inmate who overheard Jenkins say he...