Lance v. State

• Decision Date: 25 February 2002
• Docket Number: No. S01P1813.,S01P1813.
• Citation: 275 Ga. 11,560 S.E.2d 663
• Parties: LANCE v. The STATE.
• Court: Georgia Supreme Court

560 S.E.2d 663

275 Ga. 11

LANCE v. The STATE.

No. S01P1813.

Supreme Court of Georgia.

February 25, 2002.

Reconsideration Denied March 28, 2002.

J. Richardson Brannon, The Brannon Law Office, Gainesville, for appellant.

Timothy Grant Madison, Dist. Atty., Patricia B. Attaway Burton, Dept. of Law, Atlanta, Thurbert E. Baker, Atty. Gen., Romin Alavi, Asst. Atty. Gen., for appellee. BENHAM, Justice.

A jury found appellant Donnie Cleveland Lance guilty of murdering Sabrina "Joy" Lance and Dwight "Butch" Wood, Jr., and of burglary and possession of a firearm during the commission of a crime.¹ The jury fixed the sentence for the murder of Joy Lance at death after finding beyond a reasonable doubt that the murder was committed while appellant was engaged in another capital felony (the murder of Butch Wood), was committed while appellant was engaged in a burglary, and was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, and an aggravated battery to the victim. See OCGA § 17-10-30(b)(2) and (7). The jury fixed the sentence for the murder of Butch Wood at death after finding beyond a reasonable doubt that the murder was committed while appellant was engaged in another capital felony (the murder of Joy Lance) and while appellant was engaged in a burglary. See OCGA § 17-10-30(b)(2).

1. The evidence presented at trial showed the following. The bodies of the victims were discovered in Butch Wood's home on November 9, 1997. Butch had been shot at least twice with a shotgun and Joy had been beaten to death by repeated blows to her face. Expert testimony suggested they had died earlier that day, sometime between midnight and 5:00 a.m. The door to Wood's home had imprints consistent with size 7½ EE Sears "Diehard" work shoes. Joy's father testified he told appellant Joy was not at home when appellant had telephoned him looking for Joy at 11:55 p.m. on November 8. A law enforcement officer testified he saw appellant's car leave appellant's driveway near midnight. When questioned by an investigating officer, Lance denied owning Diehard work shoes; however, a search of Lance's shop revealed an empty shoe box that had markings showing it formerly contained shoes of the same type and size as those that made the imprints on Wood's door, testimony by Sears personnel showed that Lance had purchased work shoes of the same type and size and had then exchanged them under a warranty for a new pair, and footprints inside and outside of Lance's shop matched the imprint on Butch Wood's door. Officers also retrieved from a grease pit in Lance's shop an unspent shotgun shell that matched the ammunition used in Wood's murder.

Joe Moore testified he visited Lance at his shop during the morning of November 9, 1997, before the victims' bodies were discovered. Referring to Joy, Lance told Moore that "the bitch" would not be coming to clean his house that day. Lance stated regarding Butch Wood that "his daddy could buy him out of a bunch of places, but he can't buy him out of Hell." Lance also informed Moore that Joy and Butch were dead. Moore disposed of several shotgun shells for Lance, but he later assisted law enforcement officers in retrieving them. The State also presented the testimony of two of appellant's jail mates who stated appellant had discussed his commission of the murders.

The State also presented evidence that appellant had a long history of abuse against Joy, including kidnapping, beatings with his fist, a belt, and a handgun, strangulation, electrocution or the threat of electrocution, the threat of burning with a flammable liquid and of death by a handgun and with a chainsaw, the firing of a handgun at or near her, and other forms of physical abuse. Several witnesses testified that appellant had repeatedly threatened to kill Joy if she divorced him or was romantically involved with Butch, and that Lance had also beaten and threatened to kill Butch's wife and several other persons related to Joy. A relative of Joy testified that Lance once inquired how much it would cost to "do away with" Joy and Butch.

Towana Wood, who was Butch's former wife, and Joe Moore testified about an invasion of Butch's home committed by Joe Moore and appellant in 1993. The invasion was prompted in part by appellant's belief that Butch was romantically involved with Joy. In the 1993 incident, appellant kicked in a door to the home, entered carrying a sawed-off shotgun, and loaded the chamber of the shotgun.

Viewing all of the evidence adduced at the guilt/innocence phase in the light most favorable to the jury's guilt/innocence phase verdicts, we conclude that the evidence was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that Lance was guilty on all charges of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We apply the same standard of review to conclude that the trial court did not err by denying Lance's motion for a directed verdict at the conclusion of the guilt/innocence phase. Miller v. State, 270 Ga. 741, 742(1), 512 S.E.2d 272 (1999).

Pretrial Issues

2. After receiving briefs from Lance and conducting an ex parte hearing, the trial court issued an ex parte order granting Lance $ 4,000 for investigative assistance and denying his request for funds to hire several experts. Lance argues on appeal that the trial court erred by denying his request for funds to hire experts on the issues of time of death and latent footprint analysis.

This Court has held the following:

A motion on behalf of an indigent criminal defendant for funds with which to obtain the services of a scientific expert should disclose to the trial court, with a reasonable degree of precision, why certain evidence is critical, what type of scientific testimony is needed, what that expert proposes to do regarding the evidence, and the anticipated costs for services.

Roseboro v. State, 258 Ga. 39(3d), 365 S.E.2d 115 (1988). The decision whether to grant or deny an indigent criminal defendant's motion for the appointment of an expert rests within the trial court's sound discretion, and the trial court's decision will be upheld in the absence of an abuse of discretion. Crawford v. State, 267 Ga. 881(2), 485 S.E.2d 461 (1997). Our review of the record indicates that Lance's request for the contested funds was too unspecific, uncertain, and conclusory to support a finding that the trial court abused its discretion in concluding that the requested funds were not necessary to a fair trial. See Thomason v. State, 268 Ga. 298(7), 486 S.E.2d 861 (1997).

3. After reviewing the record, we conclude the trial court did not abuse its discretion by denying Lance's motion for a continuance filed one month before trial. See OCGA § 17-8-22; Johnson v. State, 271 Ga. 375(8), 519 S.E.2d 221 (1999).

4. Appellant sees error in the trial court's denial of appellant's pre-trial motion to preclude the State from seeking the death penalty. Appellant's motion was based on his assertion that the State would not be able to prove its case against appellant. In order for the trial court to have granted appellant's motion, appellant would have had to prove that the State could not prove its case against him. See Speed v. State, 270 Ga. 688(49), 512 S.E.2d 896 (1999); Jenkins v. State, 269 Ga. 282(2), 498 S.E.2d 502 (1998) (motion to preclude State from seeking death penalty properly denied when movant did not prove grounds on which motion was based). Appellant did not carry his burden; accordingly, the trial court did not err in denying the motion.

Voir Dire

5. Contrary to appellant's assertion, the process of qualifying potential jurors on the basis of their death penalty views is not unconstitutional. DeYoung v. State, 268 Ga. 780(11), 493 S.E.2d 157 (1997).

6. The trial court did not err by denying appellant's request that he be permitted to conduct voir dire about potential jurors' views on the meaning of a life sentence. In Zellmer v. State, 272 Ga. 735(1), 534 S.E.2d 802 (2000), this Court held that criminal defendants and the State are entitled to examine potential jurors on their inclinations and biases regarding parole, but the examination

should be limited to jurors' willingness to consider both a life sentence that allows for the possibility of parole and a life sentence that does not. Exposure to the complexities of the future role of the Board of Pardons and Paroles is not an appropriate matter for voir dire. Likewise, because OCGA § 17-10-31.1(d) authorizes the trial court to charge the jury on the meaning of life imprisonment without parole and life imprisonment, "the jurors' beliefs regarding the meaning of those options (are) not a proper subject for voir dire."

7. Lance complains that both the trial court and the prosecutor asked questions during voir dire that amounted to improper "coaching" of potential jurors on issues related to the jurors' death penalty qualifications. Since appellant did not object to any of the allegedly improper questions, this claim has been waived. See Whatley v. State, 270 Ga. 296(5), 509 S.E.2d 45 (1998).

8. Lance contends the trial court erred when it qualified three potential jurors who appellant believes automatically would have imposed a death sentence upon a conviction for murder. Because Georgia law entitles a defendant to a panel of forty-two qualified jurors, the erroneous qualifying of a single juror for the panel from which the jury was struck requires reversal. Lively v. State, 262 Ga. 510(2), 421 S.E.2d 528 (1992). "A juror who will automatically vote for the death penalty in every case" upon a conviction for murder is not qualified to serve. Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). This is true because such a juror, instead of giving consideration to mitigating circumstances, begins the trial with an unwavering bias in favor of one of...