O'Kelley v. State

• Citation: 284 Ga. 758,670 S.E.2d 388
• Decision Date: 03 November 2008
• Docket Number: No. S08P0916.,S08P0916.
• Parties: O'KELLEY v. The STATE.
• Court: Supreme Court of Georgia

670 S.E.2d 388

284 Ga. 758

O'KELLEY v. The STATE.

No. S08P0916.

Supreme Court of Georgia.

November 3, 2008.

Reconsideration Denied December 16, 2008.

Steven Beauvais, Zipperer, Lorberbaum & Beauvais, Brian Lawrence Daly, Daly, Bowen & Calhoun, Michael Lanier Edwards, Savannah, for Appellant.

Thurbert E. Baker, Atty. Gen., Kristin Schmit White, Asst. Atty. Gen., Spencer Lawton, Jr., Dist. Atty., David T. Lock, Gregory M. McConnell, Asst. Dist. Attys., for Appellee.

CARLEY, Justice.

A jury found Dorian Frank O'Kelley guilty of two counts of malice murder in connection with the deaths of Susan Pittman and her thirteen-year-old daughter, Kimberly Pittman. The jury also found O'Kelley guilty of two counts each of burglary and of arson in the first degree, one count of cruelty to children, one count of possession of a controlled substance, and five counts of entering an automobile with intent to commit a theft. The jury recommended a death sentence for the murder of Susan Pittman based on the following statutory aggravating circumstances: the murder was committed while the defendant was engaged in the commission of a burglary; the murder was committed while the defendant was engaged in the commission of arson in the first degree; and the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture and an aggravated battery to the victim and involved the depravity of mind of the defendant. OCGA § 17-10-30(b)(2), (7). The jury also recommended a death sentence for Kimberly Pittman's murder based on its finding of these same statutory aggravating circumstances and, in addition, a finding that her murder was committed while the defendant was engaged in the commission of another capital felony, namely, the murder of Susan Pittman. OCGA § 17-10-30(b)(2), (7). The trial court entered judgments of conviction and sentences in accordance with the jury's verdicts and recommendations. O'Kelley's motion for new trial was denied, and he appeals. For the reasons set forth below, we affirm the convictions in part and reverse in part with direction, and we affirm the death sentences.^*

1. The evidence presented at trial shows that, shortly before midnight on April 10, 2002, O'Kelley and his co-defendant, Darryl Stinski, were observed at a convenience store by two Chatham County police officers. The officers noticed the defendants because they were dressed in black clothing, they carried a black duffle bag that appeared empty, and Stinski had several facial and ear piercings. Shortly after O'Kelley and Stinski left the store, the officers responded to a burglar alarm at a residence within walking distance of the store and discovered a broken window there. The occupant of the residence, who was not home at the time, testified at trial that she returned to find that someone had apparently tried to kick in her back door and had broken a window and bent the curtain rod inside the home. O'Kelley admitted in his first statement to police that he and Stinski went to a residence in order to commit a theft therein on the night in question but fled after the alarm went off.

A few hours later, at approximately 5:30 a.m. on April 11, the same police officers were leaving the convenience store when they spotted a fire in the distance. Rushing to the scene, they found the Pittman residence engulfed in flames. This home was in close proximity to the residence which had been burglarized earlier. In the headlights of the police car, one of the officers again observed O'Kelley and Stinski, this time standing in a wooded area across the street from the burning house. However, they had disappeared by the time the officers exited the vehicle. Once the fire was extinguished, officials discovered the remains of the victims.

That evening, O'Kelley and Stinski brought a duffle bag to the mobile home where Stinski was staying, and O'Kelley told the group of people present that he and Stinski had stolen items from automobiles in the neighborhood. He also confided in one member of the group that he had burglarized and set fire to the Pittman residence, and he claimed to have slit Ms. Pittman's throat and to have raped Kimberly. O'Kelley then removed from his wallet a tooth in a ziplock bag and stated that he had "busted it out of the little girl's mouth." After O'Kelley and Stinski left the mobile home, the group opened the duffle bag and discovered several items, including compact discs marked with Kimberly's initials and prescription pill bottles containing oxycodone with Ms. Pittman's name and address on the labels. A group member phoned the police and advised them of the bag's contents and O'Kelley's comments. After the contents of the bag were identified by a family member as belonging to the victims, O'Kelley and Stinski were arrested, and a human tooth later determined through DNA evidence to belong to Kimberly was found inside O'Kelley's wallet.

In his second statement to police, O'Kelley confessed to killing Ms. Pittman by repeatedly beating and stabbing her, to beating and stabbing Kimberly, to setting the Pittman residence on fire while Kimberly was still alive, and to taking numerous items from the residence. O'Kelley told police that items stolen from the home and from automobiles in the neighborhood were located in the attic of his house and that he had discarded the clothing and shoes that he was wearing during the murders in a garbage bag on top of an abandoned mobile home near his house. Police located these items as O'Kelley described. Blood on the clothing was identified as Ms. Pittman's, and blood on the shoes was identified as that of both victims.

Four witnesses testified that, early on the day following the murders, they discovered that someone had broken into and removed personal belongings from their automobiles parked in O'Kelley's neighborhood. O'Kelley's fingerprint was found inside one of these vehicles, and the witnesses identified their stolen property from items recovered by the police from O'Kelley's attic. After reviewing the evidence in the light most favorable to the jury's verdict, we conclude that there was sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that O'Kelley was guilty of the crimes for which he was convicted, including the first burglary during which the alarm was triggered. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Gude v. State, 213 Ga.App. 573-574(1), 445 S.E.2d 355 (1994) (finding evidence sufficient to prove an entry to support appellant's burglary conviction where blood was found inside a broken window, curtains were hanging outside as if pulled through the broken window, and part of appellant's jersey was hanging from inside window); Mullinnix v. State, 177 Ga.App. 168, 338 S.E.2d 752 (1985) (finding evidence sufficient to prove an entry with intent to commit theft where, when responding to silent alarm, police found defendant hiding outside the door with burglar tools and the trip string to the silent alarm device, which could not have been removed without inserting an instrument in the open door knob hole because the door was locked by a deadbolt).

The trial court erred, however, by not merging for sentencing the two first degree arson counts. Count 5 charged O'Kelley with first degree arson committed by knowingly damaging by fire the dwelling house of Susan Pittman under OCGA § 16-7-60(a)(1), and Count 6 charged him with first degree arson committed by knowingly damaging by fire the same structure on the same date as Count 5 under such circumstances that it was reasonably foreseeable that human life might be endangered under OCGA § 16-7-60(a)(5). Although the evidence shows that O'Kelley set the Pittman residence afire by setting multiple fires in succession throughout the house, his conduct constituted one act of arson, that of the burning of the Pittman residence. Thus, there is only one crime of arson in the first degree. Altman v. State, 156 Ga.App. 185, 186(1), 273 S.E.2d 923 (1980). The trial court erred in imposing two consecutive twenty-year sentences for the single first degree arson offense and is directed to strike the sentence imposed on Count 6.

2. O'Kelley contends that the trial court erroneously qualified six potential jurors based upon their views on sentencing.

The proper standard for determining the disqualification of a prospective juror based upon his views on capital punishment "is whether the juror's views would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" [Cits.] On appeal, the relevant inquiry is whether the trial court's qualification of the prospective juror is supported by the record as a whole. [Cit.] An appellate court must pay deference to the finding of the trial court; this deference includes the trial court's resolution of any equivocations or conflicts in the prospective juror's responses on voir dire. [Cit.] "Whether to strike a juror for cause is within the discretion of the trial court and the trial court's rulings are proper absent some manifest abuse of discretion." [Cit.]

Nance v. State, 272 Ga. 217, 222(6), 526 S.E.2d 560 (2000).

(a) Prospective juror Hopkins. This juror was not substantially impaired merely because he expressed a leaning toward either the death penalty or a life sentence without parole in the event that a defendant was found guilty of an "intentional killing without a justification in an aggravated fashion." See Pace v. State, 271 Ga. 829, 834(7), 524 S.E.2d 490 (1999) (stating that "[a] prospective juror is not subject to excusal for cause for merely leaning for or against a death sentence"). A review of Mr. Hopkins' voir dire shows that he stated that, under those same circumstances, "[a]s an open-minded adult," he could reasonably consider the sentence of life with the possibility of parole, and he indicated several times that he...