King v. State

• Decision Date: 30 November 2000
• Docket Number: No. S00P1146.,S00P1146.
• Citation: 539 S.E.2d 783,273 Ga. 258
• Parties: KING v. The STATE.
• Court: Georgia Supreme Court

539 S.E.2d 783

273 Ga. 258

KING v. The STATE.

No. S00P1146.

Supreme Court of Georgia.

November 30, 2000.

Reconsideration Denied December 15, 2000.

Jackson & Schiavone, George T. Jackson, Steven L. Sparger, George B. Hagood, Savannah, for appellant.

Stephen D. Kelley, District Attorney, John B. Johnson, III, Assistant District Attorney, Thurbert E. Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Allison B. Vrolijk, Assistant Attorney General, for appellee. HINES, Justice.

Warren King was convicted of malice murder, armed robbery, burglary, aggravated assault, false imprisonment, and possession of a firearm during the commission of a felony.¹ The jury fixed his sentence for the murder at death after finding the following statutory aggravating circumstances to exist: the murder was committed during the commission of the capital felony of armed robbery and during the commission of a burglary; the murder was committed for the purpose of receiving money or other things of monetary value; and the murder was committed by King as the agent of another, Walter Smith. OCGA § 17-10-30(b)(2), (4), (6). For the reasons set forth below, this Court affirms.

1. A surveillance camera videotape and witness testimony identifying the persons recorded on the videotape, showed that on the night of September 13, 1994, King and his cousin, Walter Smith, visited a convenience store in Surrency, Georgia, at approximately 10:45 p.m. Smith testified that he found King later that night and that King suggested they rob the convenience store. Smith had previously obtained a .380 caliber handgun from a relative's home, and, according to Smith's testimony, King took the handgun from the seat of Smith's vehicle and carried it with him as the two parked and walked to the convenience store.

Shortly after midnight on September 14, 2000, Karen Crosby, an employee of the convenience store, set the store's alarm, locked the door, and walked toward her automobile. King and Smith confronted her in the store's parking lot, and King ordered her at gunpoint to "give it up." Crosby recognized King and spoke to him by name. Crosby then threw her keys to Smith, who entered the convenience store as King continued to hold Crosby at gunpoint. The store's surveillance camera recorded Smith entering the store, the sounding of the store's alarm, Smith running from the store, and, approximately twenty-four seconds later, the sound of two gunshots. King testified, during the sentencing phase, that Smith yelled at him repeatedly to shoot Crosby but that he, instead, handed the gun to Smith. However, Smith testified that, as he was running from the store, he heard the two shots, turned, and saw Crosby falling to the ground. Smith also testified that, as he and King were fleeing the scene, King exclaimed, "I hope I killed the bitch."

Viewed in the light most favorable to the verdicts, this Court finds that the evidence introduced at trial was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that King was guilty of the crimes of which he was convicted and that the aforementioned statutory aggravating circumstances existed; also, the evidence was such that a rational trier of fact would be authorized to find that King had failed to show beyond a reasonable doubt that he was mentally retarded. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Pittman v. State, 269 Ga. 419, 420, 499 S.E.2d 62 (1998); OCGA § 17-10-30(b)(2), (4), (6); OCGA § 17-7-131(c)(3).

Pretrial Proceedings

2. King moved the trial court to quash his indictment because all grand jury forepersons in Appling County over a number of years have been Caucasian males. The trial court denied the motion, finding that grand jury forepersons in the county were selected by the grand jury members themselves from among their own number, that neither the district attorney nor the court participated in the selection process, and that grand jury forepersons performed duties that were essentially ministerial. These circumstances distinguish King's situation from that addressed by the United States Supreme Court in Rose v. Mitchell, 443 U.S. 545, 551-552, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979), and, accordingly, the trial court's refusal to quash King's indictment does not require the reversal of the verdicts reached by his traverse jury, which was properly selected. Bishop v. State, 268 Ga. 286, 288-289(4), 486 S.E.2d 887(1997); Spivey v. State, 253 Ga. 187, 199-200(7)(b), 319 S.E.2d 420 (1984); see Hobby v. United States, 468 U.S. 339, 104 S.Ct. 3093, 82 L.Ed.2d 260 (1984).

3. King argues that the trial court erred in denying his motion to suppress statements he made to authorities during the two days following the murder. Upon a review of the record, this Court finds no error.

Before King gave his first statement on September 14, 1994, he was told he was not under arrest, was told he could leave, was read his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and signed a waiver of those rights. After giving a statement in which he denied knowledge of the crimes, he was returned to his residence. King was arrested later that day on an unrelated warrant for aggravated assault, and he was questioned for a second time on the evening of September 15, 1994, after hearing his Miranda rights read again and signing another waiver of those rights. King was interviewed a third time in the early morning hours of September 16, 1994, and admitted being present during the armed robbery. Before this third interview, King once again was read his Miranda rights and signed a waiver of those rights. A law enforcement officer testified at the suppression hearing that King did not appear to be suffering from any mental incapacity and did not appear to be "sleepy or confused or muddled." In light of the foregoing and upon a review of the record, this Court concludes that the trial court did not err in finding that King knowingly waived his Miranda rights and that his statements were voluntary. Miranda, 384 U.S. 436,86 S.Ct. 1602; OCGA § 24-3-50.

This Court has held that Riley v. State, 237 Ga. 124, 226 S.E.2d 922 (1976), does not apply to adults. McDade v. State, 270 Ga. 654, 656(3), 513 S.E.2d 733 (1999). Alleged cognitive impairment is one factor to be considered by a trial court as part of the totality of the circumstances surrounding a statement; however, the trial court's finding that King was capable of understanding his rights was not clearly erroneous. Lyons v. State, 271 Ga. 639, 640-641(3), 522 S.E.2d 225 (1999); Brown v. State, 262 Ga. 833, 834-835(6), 426 S.E.2d 559 (1993).

Investigators, who presented waiver of rights forms referring only to the robbery of the convenience store, were under no duty to inform King specifically that he was suspected of murder before accepting his signed waivers and subsequent statements. Colorado v. Spring, 479 U.S. 564, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987); Christenson v. State, 261 Ga. 80, 85-86(3), 402 S.E.2d 41 (1991).

Because there is no dispute that King was in custody at the time of his third statement and because King knowingly and voluntarily waived his rights, it is irrelevant that a warrant for his arrest on the charge of murder had been taken out but was not executed before he made his statement. See United States v. Yunis, 859 F.2d 953, 966-67(II)(B) (D.C.Cir.1988) (pretermitting question of whether rights had attached because those rights were affirmatively waived); see also Hodges v. State, 265 Ga. 870, 872(2), 463 S.E.2d 16 (1995) ("[T]he proper inquiry is whether the individual was formally arrested or restrained to the degree associated with a formal arrest, not whether the police had probable cause to arrest.").

4. King argues that the trial court erred by denying his motion for a change of venue. King concedes that media coverage of the murder was limited, but he contends that a "small town syndrome" created strong prejudice against him.

"A capital defendant seeking a change of venue must show that the trial setting was inherently prejudicial as a result of pretrial publicity or show actual bias on the part of the individual jurors." Gissendaner v. State, 272 Ga. 704, 706(2), 532 S.E.2d 677 (2000). This Court finds that King failed to make either showing and, therefore, that the trial court did not abuse its discretion in denying King's motion. Tolver v. State, 269 Ga. 530, 532-533(4), 500 S.E.2d 563 (1998) (recognizing trial court's discretion in considering a motion for a change of venue).

The trial court denied King's motion in a detailed order following voir dire. The trial court noted its prior finding that media coverage of the murder had been "non-inflammatory" and, therefore, that it provided no basis for granting the motion. The trial court then found that, although most of the prospective jurors had heard about the murder in very general terms, "almost every juror ... had learned more about the case during the jury selection process than they had known before they entered the courthouse." A review of the record confirms this finding of fact, and this Court approves of the trial court's legal conclusion that jurors were not unfit to serve simply because they had heard that the crimes had occurred and that King had been arrested. In fact, a review of the record reveals that a large number of the jurors knew almost nothing about the crimes and did not remember King's name. Accordingly, this Court accepts the trial court's finding that King failed to show that the trial setting was inherently prejudicial. This Court also concludes that the trial court did not err by declining to change venue when only 8.4 percent of the prospective jurors were excused because of opinions formed from their exposure to pretrial publicity and rumors, particularly in light of the soundness of the trial court's rulings on King's...