Lemley v. State
| Citation | 372 S.E.2d 421,258 Ga. 554 |
| Decision Date | 05 October 1988 |
| Docket Number | No. 45923,45923 |
| Parties | LEMLEY v. The STATE. |
| Court | Supreme Court of Georgia |
Harry J. Fox, Jr., Perry, for Melvin Brent Lemley.
James L. Wiggins, Dist. Atty., James E. Turk, Asst. Dist. Atty., Cordele, Michael J. Bowers, Atty. Gen., Dennis R. Dunn, Asst. Atty. Gen., for the State.
Lemley appeals from his second conviction for the murder of a deputy sheriff who came to his home with a warrant for his arrest. 1 His first conviction was affirmed on appeal, Lemley v. State, 245 Ga. 350, 264 S.E.2d 881 (1980). However, a writ of habeas corpus was granted because of the habeas judge's finding that the sheriff had packed the courtroom with law enforcement officials. The district attorney's attempt to intervene in this habeas action was denied in Wiggins v. Lemley, 256 Ga. 152, 345 S.E.2d 584 (1986). The court held that only the attorney general may appeal from a grant of habeas corpus. This court affirmed and a new trial resulted in the conviction appealed here.
Lemley's defense to the charge of murder was that the deputy fired first as he came to the house to execute a warrant for the arrest of Lemley on a charge of smuggling marijuana cigarettes to an inmate in the Houston County jail. Two neighbors testified that appellant fired first. There was testimony that approximately two weeks before the shooting Lemley remarked, "The next time one of the God damn pigs comes down here, I'm going to kill him." There was testimony that after he was arrested Lemley bragged about killing a cop and making him beg.
1. There was sufficient evidence of Lemley's guilt to satisfy the requirements of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Appellant contends that the court erred in admitting the autopsy photographs in evidence. The photographs do not offend the guidelines set out in Brown v. State, 250 Ga. 862, 302 S.E.2d 347 (1983). The pictures show the body as it existed after the shooting, unaltered by the autopsy examination. There was no error in admitting these photographs. Sanders v. State, 257 Ga. 239, 357 S.E.2d 66 (1987).
3. In his next enumeration of error appellant claims that the court erred in denying his motion to suppress his statement that "The next time one of the God damn pigs comes down here, I'm going to kill him." The motion to suppress also included his response to a question as to how appellant's having large boulders in his yard would further this plan: "Well, they'll have to park the car on the side of the road and walk down through my yard, and that will give me time to get ready in the dark so I can take care of it." The motion to suppress was based on the appellant's contention that the statement was made when he was illegally in custody. At the time of the statement the appellant was in the custody on a charge of carrying a concealed weapon without a license. The arrest followed an officer's observation of a pistol in appellant's pocket and discovery of another pistol in his underwear after a pat down. Appellant admitted he had no license. He made the statement to the arresting officer when he took appellant to his home to look for more weapons. Appellant had received Miranda warnings before making the statement. The denial of the motion to suppress was not error.
4. Appellant contends that the court erred in failing to grant his motion for the change of venue. Appellant insists that the volume of publicity through the first trial, the habeas, and prior to the second trial was such that the community was prejudiced. He relies heavily upon a survey taken by a retired University of Alabama professor to support his contentions. In this survey of 300 households in Houston County, the surveyor found that only 1% remembered nothing of the shooting which had occurred nine years previously. He further found that of those who remembered a great deal about the incident, 92% believed Lemley to be guilty. Of those who remembered only a little, 54% believed him to be guilty.
Besides the publicity which occurred between the time of the murder on September 1, 1978, and the trial in March of 1979, there was publicity surrounding the habeas hearing, the decision to grant habeas corpus, and the decision of the attorney general not to appeal. There was further publicity at the time of the retrial of the case. Besides factual news stories there were editorials criticizing the appellate courts and the attorney general. In these editorials the details of the case were of course discussed.
The inquiry into a request for a change of venue is two pronged. First, the court must consider whether the atmosphere in the community is so inherently prejudicial due to pretrial publicity that the defendant cannot receive a fair trial in the community. Secondly, the court must consider whether the defendant cannot receive a fair trial due to the prejudice of individual jurors. Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (19...
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...[Cits.] ... Situations which are made inherently prejudicial by pretrial publicity are extremely rare. [Cit.]" Lemley v. State, 258 Ga. 554, 555(4), 372 S.E.2d 421 (1988). Berry and Monroe failed to show that the pretrial publicity, which largely occurred right after the murder, resulted in......
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