Ledford v. State, S93P1262

Citation439 S.E.2d 917,264 Ga. 60
Decision Date21 February 1994
Docket NumberNo. S93P1262,S93P1262
PartiesLEDFORD v. The STATE.
CourtSupreme Court of Georgia

[264 Ga. 70] Sam F. Little, Little & Adams, P.C., Matthew D. Thames, Kinney, Kemp, Pickell, Sponcler & Joiner, Dalton, for Ledford.

Jack O. Partain, Dist. Atty., Conasauga Judicial Circuit, Melvin Hyde, Asst. Dist. Atty., Dalton, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Dept. of Law, Paige M. Reese, Staff Atty., Atlanta, for State.

Patsy Morris, Atlanta, Joseph L. Chambers, Sr. Pros. Attys.' Council, Smyrna, for other party representation.

[264 Ga. 60] BENHAM, Justice.

The defendant, J.W. Ledford, Jr. was convicted of the malice [264 Ga. 61] murder of Dr. Harry Buchanan Johnston, Jr, as well as two counts of armed robbery, one count of burglary, and one count of kidnapping Dr. Johnston's wife, Antoinette. 1 The jury recommended that a sentence of death be imposed for the conviction of malice murder, and the trial court sentenced him to death. The trial court also sentenced the defendant to two consecutive life sentences and two twenty-year concurrent terms for the remaining offenses.

The defendant and victims were neighbors. At the time of the murder, the defendant was 20 years old and Dr. Johnston was 73. According to trial testimony, Dr. Johnston was "rather feeble." The evidence presented at trial shows that on January 31, 1992, the defendant came to the Johnston home, asking to speak to Dr. Johnston. Mrs. Johnston had previously seen her husband drive away in his truck with a passenger she was unable to identify. When she informed the defendant that Dr. Johnston was not at home, the defendant left, but returned approximately ten minutes later. This time the defendant asked Mrs. Johnston to have her husband come to his home that evening. Approximately ten minutes after the second visit, the defendant returned and forced his way into the Johnston home at knife-point. Mrs. Johnston testified that he threatened to kill her, and demanded money and guns. Mrs. Johnston gave him the money from her purse. The defendant then pushed her throughout the house gathering up a shotgun, rifle and two pistols. He forced her on the bed and bound her wrists with a rope he had in his pocket. When Mrs. Johnston heard the door close, she managed to get up from the bed in time to see the defendant driving away in her husband's truck. Because her wrists were loosely tied together, she was able to sever the rope and telephone the sheriff's office.

The defendant was apprehended later that afternoon. Law enforcement officers subsequently discovered the body of Dr. Johnston near a small building located on the Johnston

property. According to the pathologist who performed the autopsy, the victim had suffered either "one continuous or two slices to the neck" which destroyed virtually all the muscle and tissue on the left side of his neck, and nearly severed his head from his body. Additionally, the victim sustained a small knife wound in the back and a number of other knife wounds in the neck. There were no defensive wounds on the victim's hands. The pathologist testified that it took "a significant amount of force" to [264 Ga. 62] inflict the wounds in question. Additionally, he opined that the victim bled to death, but lived approximately 8 or 9 minutes after the injuries were inflicted, in "an extremely painful" condition

The defendant and victim shared the same blood type. However, based on an enzyme analysis, a GBI forensic serologist testified that the blood found on the defendant's clothing and the knife in his possession at the time of arrest was consistent with the victim's blood and could not have come from the defendant.

The day following his arrest the defendant sent word to officers that he wished to make a statement. After receiving warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the defendant stated that he had gone to Dr. Johnston's house to ask for a ride to the grocery store. Once in the truck, Dr. Johnston accused the defendant of stealing from him. Dr. Johnston returned to his home and told the defendant he wished to show him something on the property. Dr. Johnston then struck the victim and unsnapped a knife pouch on his belt. The defendant drew his own knife and "stuck" the victim in the neck. The defendant stated that "[a]s I was pulling my knife back from sticking him, it went over and cut the.... out of him." The defendant stated that he then dragged the body to the building where the victim was found and covered it up. He then went to Dr. Johnston's house, his knife still drawn, and demanded money from Mrs. Johnston. He tied her up, took money and four guns, and left in Dr. Johnston's truck. Shortly thereafter he pawned the shotgun and rifle.

Employees from two pawn shops identified the defendant as the person who pawned the guns in question on the day of the murder.

1. A rational trier of fact could have found the defendant 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).

2. (a) The indictment against the defendant alleged that he committed a burglary in that he entered the victims' home with the intent to commit an armed robbery. The defendant argues that the indictment is unconstitutionally vague in that it failed to specify which of the two counts of armed robbery he was accused of committing. However, the record shows that the parties stipulated at a hearing that the armed robbery in question was the one specified in Count 4 of the indictment. As the defendant has not shown that he was prejudiced or misled by this deficiency in the indictment, we find no reversible error. State v. Eubanks, 239 Ga. 483, 484, 238 S.E.2d 38 (1977).

(b) The defendant also argues that the indictment is unconstitutionally vague in that it failed to place him on notice of the acts used to support the charge of kidnapping. Where, as here, a defendant fails to show that he was "misled to his prejudice by any imperfection in the indictment [he] cannot obtain reversal of his conviction on this [264 Ga. 63] ground." Id.

3. The trial court did not abuse its discretion in refusing to sever trials of the offenses relating to the separate victims in this case. Stewart v. State, 239 Ga. 588(3), 238 S.E.2d 540 (1977).

4. (a) Prior to trial the defendant filed a motion for change of venue. Pursuant to USCR 19.2(B), the trial court ordered that the trial take place in Murray County, where the crimes were committed, with a jury selected from the Gordon County. The defendant maintains that the trial court's action was insufficient to protect his ability to receive a fair trial due to the pre-trial publicity in Murray County. However, we find no error because the defendant did not "make a substantive showing of the likelihood of prejudice by reason of extensive publicity."

Jones v. State, 261 Ga. 665, 666, 409 S.E.2d 642 (1991)

(b) The defendant also argues that the trial court created the perception of adverse publicity in stating to the jury,

Now, ladies and gentlemen, the court has granted a partial change in venue in the case to assure a fair trial untainted by any pre-trial publicity.

However, the defendant failed to object to these remarks at trial, and any error relating to them will not be considered on appeal. Martin v. State, 262 Ga. 312(2), 418 S.E.2d 12 (1992). Further, the trial court made these remarks in context of admonishing the jury to not "read, listen to or watch any media accounts of the case."

5. The trial court did not unduly restrict the defendant's voir dire examination of Juror Jones. The record shows that the state did not object to, and the trial court did not restrict, the defendant's questions with regard to mitigating circumstances. Rather, the state objected to the question of whether a death sentence was an appropriate penalty in cases of "first degree murder," on the ground that no such offense exists in this state.

6. The defendant argues that the trial court erred in excusing seven jurors on the ground that they were so opposed to the death penalty that they could not be impartial jurors, and in qualifying to serve five jurors whom the defendant argues showed a predisposition to automatically impose the death penalty.

We note that some of the answers given by each of these challenged jurors were equivocal, in response to the phrasing of the questions, the manner in which the questions were asked, and the distinctions which they asked the jurors to draw. "Often the answers of a prospective juror will to some degree be contradictory." Jefferson v. State, 256 Ga. 821(2), 353 S.E.2d 468 (1987).

The party seeking exclusion of a juror need not demonstrate bias [264 Ga. 64] with "unmistakable clarity." Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985). As the U.S. Supreme Court has recognized, "many veniremen simply cannot be asked enough questions to reach the point where their bias has been made 'unmistakably clear.' ..." Id. at 426, 105 S.Ct. at 853. It is because veniremembers "may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings[,]" id. at 425, 105 S.Ct. at 852, that deference must be paid to the trial court's determination of whether the views of a prospective juror will "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Id., at 424, 105 S.Ct. at 852; Wade v. State, 261 Ga. 105(9), 401 S.E.2d 701 (1991).

(a) With regard to jurors Thomas, Buttrum, Hunt, Glass, Bohannon, Phillips, and Shumacher, the record supports the trial court's findings that each expressed a bias in opposition to the death penalty which would render him or her incapable of serving as an impartial juror in this...

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