Lee v. State

• Decision Date: 25 February 1988
• Docket Number: No. 44930,44930
• Citation: Lee v. State, 365 S.E.2d 99, 258 Ga. 82 (Ga. 1988)
• Parties: LEE v. The STATE.
• Court: Georgia Supreme Court

Page 99

365 S.E.2d 99

258 Ga. 82

LEE v. The STATE.

No. 44930.

Supreme Court of Georgia.

Feb. 25, 1988.

Reconsideration Denied March 16, 1988.

Michael R. Jones, Loganville, Charles E. Day, Monroe, for jessie lee.

John M. Ott, Dist. Atty., Monroe, Michael J. Bowers, Atty. Gen., Mary Beth Westmoreland, Asst. Atty. Gen., for the State.

SMITH, Justice.

Appellant, Jesse Lee, was convicted of malice murder and armed robbery by a Walton County jury and sentenced to death. We affirm. ¹

Late in the morning of August 5, 1986, Spec Prather, who operated a wrecker service for H & W Motors in Monroe, Georgia, received a telephone call concerning a disabled automobile at the Rolling Hills trailer park.

At noon that day, the wrecker stopped on Davis Street in Monroe, picked up the defendant and his brother Roy, and left in the direction of the trailer park.

Later that afternoon, the defendant showed some friends a large amount of money, which he claimed to have won. However, Doug Robinson testified that "I talked to [the defendant] and took him aside and we talked and I asked him where did he get the money ... and he finally came out and told me he shot somebody."

When Spec Prather failed to return that afternoon, a search was conducted, and his wrecker was found on a dirt road not far from the Rolling Hills trailer park. Prather lay slumped over inside the wrecker, shot in the head with a .22 caliber pistol.

The defendant was questioned by law enforcement officers the next day (August 6), and he told them where to find the victim's wallet. He denied being present when the victim was shot, claiming that his brothers Roy and Jimmy handled that part of it while he waited a short distance up the road in a blue-grey Ford automobile that Roy had borrowed. The defendant stated that Roy gave him $305 to hold overnight but that he was to return it to Roy the next day.

Later that day, the defendant gave a second statement. This time, he claimed he was driving a blue Chevrolet that his girlfriend Sue Nett Williams borrowed from her daughter and son-in-law. Sue Nett and the defendant drove past the wrecker, turned around, and stopped to pick up Roy and Jimmy. He and Sue Nett got out and looked inside the wrecker. The defendant stated: "She [looked] in there [and] she freaked out. Like at the time I didn't know he was shot." The defendant got $330, and gave $30 to Sue Nett for borrowing the car.

On August 7, the defendant called the Monroe Chief of Police and requested an interview. He then gave a third account of the crime, in which he and Sue Nett borrowed a green 1962 Chevrolet without the owner's knowledge. They drove up to the wrecker, and the defendant saw Roy pointing a gun at the driver. He let Sue Nett out. As he was turning around, he heard the shot, and then he saw Sue Nett push the driver over and take his wallet. In this statement the defendant admitted knowing ahead of time that the driver was going to be killed.

1. The defendant argues that the evidence does not support his conviction for malice murder. He notes that in none of his statements to law enforcement officers did he admit killing the wrecker driver himself, and his admission that he knew there was going to be a killing "is clearly just a conclusion of the defendant based on his knowledge of his brother's personality." Brief of appellant, p. 10.

The defendant, however, did not merely draw an after-the-fact conclusion of the inevitability of the killing. Rather, he admitted to law officers that the killing "was in the plan," that everyone involved knew what the plan was, and that it was a necessary step in the commission of the crime to eliminate the only possible witness against them.

Moreover, the jury was not required to accept as true everything the defendant said--in fact, the jury could not have, given the inconsistencies in his statements, but aside from that, the state offered credible evidence establishing that (1) contrary to the defendant's statements, Jimmy Lee and Sue Nett Williams were elsewhere when the crime was committed and could not have participated in the crime, (2) the defendant and his brother Roy rode in the wrecker to the scene of the crime and walked back to town, (3) on his return home, the defendant had blood on his shirt and shoes, took a bath and made Sue Nett wash his shirt, and (4) notwithstanding his denials to law enforcement officers, the defendant admitted to Doug Robinson that he had shot somebody in order to obtain money.

The evidence supports the defendant's conviction for malice murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. The defendant challenged the array of the grand and traverse juries on the ground that persons aged 18 through 29 are significantly underrepresented on the jury lists in Walton County. His challenge was overruled. Inasmuch as the defendant presented no evidence from which the trial court could have found as a fact that young persons are a cognizable group in Walton County, the trial court did not err by overruling the challenge. Hicks v. State, 256 Ga. 715(7), 352 S.E.2d 762 (1987).

3. The day after the crime, law enforcement officers searched the residence shared by the defendant and Sue Nett Williams. They discovered and seized a pair of blood-stained shorts. The blood was examined as to type and two identifiable enzymes and found to be consistent with that of the victim. The defense contended that the shorts belonged to Sue Nett and not to the defendant. A few days before the trial, the prosecutor asked Sue Nett if they were hers. She said they were, and that the blood on them was hers, from where she had cut her hand on a screen door several days prior to the crime. A sample of her blood was drawn and examined. She was found to have the same blood type (O) as the victim, but the trial began before the enzyme comparison was completed.

The defendant moved for a continuance, on the ground that the enzyme comparison would be highly relevant to his contention that Sue Nett was involved in the crime. The district attorney responded that the enzyme results "should be back tomorrow morning," and he was confident that she was not involved in the crime, and that the results would be consistent with the blood being hers.

The defendant's attorney then stated to the court: "We ask you to reserve your decision on the motion for continuance and I don't think we will get into it in the morning, just see how it develops, but I felt compelled to bring it up today."

The trial court denied a continuance, stating, "Of course, if there is not a sufficient break during the trial itself for you to examine the scientific evidence when it does come in tomorrow, I will consider any motion at that time for a recess for that purpose."

As the district attorney predicted, the enzyme comparison showed that the blood on the shorts was consistent in all identifiable respects with that of Sue Nett, as well as that of the victim. However, although the defendant made no further motion in this regard at trial, he contends on appeal that the court reversibly erred by denying his motion for continuance.

Contrary to the defendant's contention, the results of the enzyme comparison did not "radically alter" either the state's theory or that of the defense; the results were equally consistent with both. The defendant has failed to demonstrate any harm from the denial of the continuance. We find no abuse of discretion in the trial court's ruling. Ealy v. State, 251 Ga. 426(3), 306 S.E.2d 275 (1983).

4. The trial court did not abuse its discretion at the voir dire examination by requiring the defendant to rephrase his question relating to the credibility of police officers. See, e.g., Boyer v. State, 178 Ga.App. 372(3), 343 S.E.2d 146 (1986).

5. Edward "Teenie" Towler testified for the state at the guilt phase of the trial. Towler saw the defendant and Roy Lee standing by his mailbox on Davis Street on the morning of August 5, 1986. He knew the defendant, having been imprisoned with him, and talked to him briefly. The defendant told him he was waiting for a wrecker. As they were talking, the wrecker drove up, and the defendant and his brother got in and rode off.

Before Towler testified about this incident, the district attorney asked for a bench conference and warned the court that the witness had known the defendant in prison. The court sent the jury to the jury room and instructed the witness that he was "not to mention the fact that you knew [the defendant] in prison...." The examination resumed, and the state asked Towler what the defendant was waiting for. Towler answered: "Well, you know, I came out my door to the mailbox and I seen them standing out there. I didn't have to talk to them, I asked Jesse, I say when is the last time you been in trouble; he said well, I ain't been in no trouble, I said...."

The defendant objected and moved for a mistrial on the ground that impermissible character evidence had been elicited. The court denied the motion for mistrial. The answer was not so prejudicial as to require a mistrial. Sabel v. State, 250 Ga. 640(5), 300 S.E.2d 663 (1983).

6. There is no merit to the defendant's contention that the state argued facts not in evidence, in violation of OCGA § 17-8-75. There was testimony in evidence that the defendant had purchased a number of items with the proceeds of the crime, and the state was entitled to refer to these purchases in its closing argument notwithstanding that the items themselves were not admitted in evidence.

7. It is well settled that the state is not limited to proving statutory aggravating circumstances. See e.g., Zant v. Stephens, 250 Ga. 97, 100, 297 S.E.2d 1 (1982). Sentencing proceedings in death penalty cases are governed not only by OCGA § 17-10-30, but also by OCGA § 17-10-2, which authorizes the factfinder to hear additional evidence in aggravation, "including the record of any prior criminal...