Lewis v. State

• Decision Date: 01 July 1980
• Docket Number: No. 35997,35997
• Citation: 246 Ga. 101,268 S.E.2d 915
• Parties: LEWIS v. The STATE.
• Court: Georgia Supreme Court

Page 915

268 S.E.2d 915

246 Ga. 101

LEWIS v. The STATE.

No. 35997.

Supreme Court of Georgia.

Argued April 14, 1980.

Decided July 1, 1980.

William Cain, Sr., William Cain, Jr., Columbus, for appellant.

William J. Smith, Dist. Atty., Arthur K. Bolton, Atty. Gen., for appellee.

PER CURIAM.

William Spicer Lewis, III, the appellant, was convicted of the offenses of murder, armed robbery and motor vehicle theft by a jury in the Superior Court of Muscogee County. He was sentenced to death for murder. The case is before this court on appeal and for mandatory review.

From the evidence submitted at trial, the jury was authorized to find the following facts:

During the night of March 31, 1979, or the early morning hours of April 1, 1979, a 1977 Pontiac automobile was stolen from the Lynwood American Service Station located in Columbus, Georgia.

Close to midnight on April 3, 1979, the appellant, age 16, and a co-defendant, Robert Scott Jackson, age 15, entered a Majik Market also located in Columbus, Georgia. Mrs. Doris Kennedy was the only employee in the store at that time. She was sweeping the store when she noticed Jackson come in. Thereafter, appellant entered with his face partially covered with a scarf and a .38 caliber pistol in his hand. Appellant ordered Mrs. Kennedy to go behind the cash register. Jackson followed, and stood in front of the counter, posing as a customer. Mrs. Kennedy was forced at gunpoint to open the cash register. When she did, Jackson, who was unarmed, reached across and took a twenty dollar bill. That particular bill triggered a silent alarm when it was removed. Jackson told her to put the money, except the dimes and nickels, into a paper sack, which she did. The appellant then ordered Mrs. Kennedy into a large walk-in beverage cooler. While the robbery was transpiring, a couple entered the store. Appellant approached them and ordered them at gunpoint into the cooler. The cooler was glass faced and had racks holding beverages and other items. It was possible to see the interior of the store from inside the cooler.

Officer James N. Bowers of the Columbus Police Department had just come off duty and was returning in his patrol car to the station to check out. Being in very close proximity to the store when the radio call was broadcast, he responded to investigate the silent alarm. When he arrived at the store another vehicle had pulled in. The officer cautioned the driver not to enter the store. He cleared his gun from his raincoat but left it holstered. The officer entered the store and was met by appellant. When asked if he worked there the appellant answered by an affirmative nod. Although the officer could not see it, the appellant was holding his pistol by his side. Without warning he raised the gun and shot the officer in the head. The officer never drew his weapon. He died from the wound during the early morning hours of the next day. Thereafter, the appellant and Jackson fled with approximately $108.00.

Other officers arrived at the scene in response to the alarm and began an investigation. The 1977 Pontiac was found a few blocks away. The tag had been replaced by a stolen tag that was covered with cardboard. Appellant's fingerprints were on the rear view mirror of the car and a .44 caliber magnum cartridge was found inside.

Approximately four hours after the robbery, the police stopped the appellant and Jackson in the area. Upon determining that they fit the description of the robbers, both were patted down. A .38 caliber revolver was found in appellant's pocket. It had one spent cartridge and cigarette filters in the remaining chambers to simulate a fully loaded weapon. A .44 caliber magnum cartridge identical to that found in the car was also taken from the appellant's person.

Jackson had the stolen money in the paper sack upon his person. Tests revealed that appellant recently had fired a weapon. His fingerprints were found on the cooler door and expert testimony established that, although badly mutilated, the fatal bullet was probably fired from his gun. The four eyewitnesses identified the appellant as the perpetrator.

1. In his first enumeration of error, appellant contends that the trial court erred in denying his motion to quash the indictment or in the alternative for a commitment hearing.

Appellant was arrested on April 4, 1979, on charges of murder and armed robbery, and was held in juvenile detention facilities. Code Ann. § 24A-1403 (b).

On April 5, 1979, he was indicted by the Muscogee County Grand Jury. The record shows that less than 72 hours elapsed from arrest to indictment. Therefore, Code Ann. § 27-210 was not applicable, and the court did not err in denying appellant's motion. Johnson v. State, 215 Ga. 839, 114 S.E.2d 35 (1959); Whisman v. State, 223 Ga. 124, 153 S.E.2d 548 (1967). Appellant further argues that he should have received a transfer hearing. A transfer hearing is not required where the offense is one over which the juvenile and superior courts have concurrent jurisdiction and the superior court first takes jurisdiction. Hartley v. Clack, 239 Ga. 113, 236 S.E.2d 63 (1977).

2. In his second enumeration of error, appellant contends that six veniremen were erroneously held to be disqualified under the rule of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Each of the stricken veniremen was subjected to the following (or substantially identical) voir dire questions by the state and gave substantially the same response.

Q. "If the evidence in this case should develop that the defendant was 16 years of age at the time of the crime, would this one factor alone, standing alone, not taking into account any of the other factors . . . cause you to be unable to fairly and fully weigh the death penalty as one of the possible punishments?" A. "I couldn't, I couldn't vote to impose the death penalty on a 16 year old." Q. ". . . no matter what the other facts and circumstances might be?" A. "No."

Upon the state's motion, each of the six veniremen responding that they could not impose the death penalty on a 16-year-old was stricken for cause. It is clear from the transcript that the six stricken jurors would refuse to consider the death penalty in the case before them due to the appellant's age.

In Witherspoon v. Illinois, 391 U.S. 510, 522 (fn. 21), 88 S.Ct. 1770 (fn. 21), 20 L.Ed.2d 776, supra, the Supreme Court held that: "(V)eniremen . . . cannot be excluded for cause simply because they indicate that there are some kinds of cases in which they would refuse to recommend capital punishment. And a prospective juror cannot be expected to say in advance of trial whether he would in fact vote for the extreme penalty in the case before him. The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. If the voir dire testimony in a given case indicates that veniremen were excluded on any broader basis than this, the death sentence cannot be carried out . . ." (Emphasis supplied.) Veniremen who are irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the trial, may be excluded for cause. But veniremen who are not irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances "cannot be excluded for cause simply because they indicate that there are some kinds of cases in which they would refuse to recommend capital punishment." 391 U.S. at 522 (fn. 21), 88 S.Ct. at 1777 (fn. 21). A venireman cannot be excluded for cause simply because he indicates that he would refuse to recommend capital punishment for a 16-year-old. Monserrate v. Indiana, 271 N.E.2d 420, 423 (S.Ct.Ind.1971).

The holding of Witherspoon is particularly applicable to our post-Furman (Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)) death penalty statute (Ga.L.1973, pp. 159, 163; Code Ann. § 27-2534.1(b)). Adams v. Texas, --- U.S. ----, ----, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980). The jury must be allowed to consider mitigating circumstances. Jurek v. Texas, 428 U.S. 262, 271, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Hawes v. State, 240 Ga. 327(9), 240 S.E.2d 833 (1977); Spivey v. State, 241 Ga. 477(2), 246 S.E.2d 288 (1978). Age (youth) is a mitigating circumstance. Yet here the state was permitted to strike for cause those veniremen who would have given utmost consideration to the mitigating factor of the age of the appellant.

A simple illustration explains the problem. If the state were permitted to exclude for cause those veniremen who said they could not impose the death penalty upon a sixteen year old with no prior criminal record who was an orphan, all veniremen who would consider that the mitigating circumstances outweighed the aggravating circumstances could be excluded by the state for cause.

The death penalty imposed in this case (not the conviction for the crime of murder) must be vacated due to the exclusion for cause of the six veniremen. Witherspoon v. Illinois, supra.

Appellant also argues that while seventeen additional jurors were properly stricken for cause under Witherspoon, five jurors should have been stricken due to prejudice in favor of the death penalty. In effect, it is asserted, the trial court used a "double standard" which resulted in a panel prejudiced in favor of the death penalty. However, each of these five jurors clearly and unequivocally answered that they would consider both penalties authorized by law in their deliberation. They were not "irrevocably committed" to impose the sentence of death no matter what the facts and...