Lingo v. State, 24569
| Decision Date | 09 May 1968 |
| Docket Number | No. 24569,24569 |
| Citation | 224 Ga. 333,162 S.E.2d 1 |
| Parties | Joe LINGO, Jr. v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. Providential cause being shown, the motion to dismiss the appeal because the enumerations of error were not timely filed is denied.
2. There was no error in denying the motion to change the venue for the trial of this case.
3. The evidence does not show any systematic exclusion of Negroes from the grand and petit juries but shows that the jury commissioners complied with Georgia law for their selection.
4. The verdict finding against the plea of insanity was supported by the evidence and there were not errors made during the trial of that issue.
5. No reversible error was committed during the trial of the case.
H. B. Edwards, Valdosta, for appellant.
Marcus B. Calhoun, Sol. Gen., Thomasville, Arthur K. Bolton, Atty. Gen., Marion O. Gordon, Asst. Atty. Gen., Joel C. Williams, Jr., Deputy Asst. Atty. Gen., Atlanta, for appellee.
The defendant was convicted of the murder of John Clarence Willis and was sentenced to death. He appeals and enumerates as error: (1) The refusal to grant a change of venue, (2) The denial of a motion to quash the indictment and challenge the array of grand and petit jurors, (3) The verdict finding against a plea of insanity and certain alleged errors in that proceeding, and (4) Certain alleged errors committed during the trial of the case.
The evidence shows that on Saturday, November 11, 1967, at 2:50 a.m., the Valdosta Police Department in Lowndes County Georgia, received a telephone call from a man saying that he had been shot and robbed at the Sing Oil East Hill station. A patrol car was dispatched to the scene and arrived there at 2:55 a.m. The officers found John Clarence Willis lying on the floor and still talking on the telephone with an officer of the Valdosta Police Department. He said that a young, slender, colored man, about 20 years of age and wearing a long dark overcoat, drove a light blue Chevrolet to the side of the gasoline station, went into the restroom, came back out, returned to the automobile, and purchased a gallon of gasoline from him. When he went back into the station to make change for the purchase and when he opened the cash register, the man shot him four times. He saw him reach for the money and he tried to get up from the floor whereupon the man shot him again in the head. The victim was removed to a hospital where he died about 2 1/2 hours later from the gunshot wounds.
The evidence further shows that on the night of the crime the defendant drove a 1963 blue Chevrolet into the Sing Oil East Hill station. He was accompanied by another man named Mathis who was asleep on the back seat. Mathis testified that as the automobile entered the station it 'bumped' and woke him up, that he heard the attendant put gasoline in the car, that he then heard two shots and raised up, that he saw the defendant's arm extended and then heard another shot, that he fell back in the seat, that the defendant returned to the automobile and they drove to the defendant's mother's house where they spent the night, that the defendant refused to tell him what had happened, and that later he (Mathis) hid the automobile in the woods.
The defendant's mother testified that about a week after the crime she found certain of the defendant's clothes with blood on them, his shoes, and a gun under her stove, that she buried the shoes and gun, that she later disclosed this information to the police officers, that she also gave the officers a long dark overcoat of the defendant's which was hanging in a closet. Ballistics tests showed the gun was the one used in the crime. The defendant had been seen with the same type of gun. There was evidence that the defendant had only $1 before the crime but 'seemed to have money' afterwards. The defendant was attempting to hide at the time he was apprehended. A description of the defendant shows him as 20 years of age, 6 feet tall, 158 pounds, with black hair, brown eyes and brown complexion.
1. Providential cause being shown, the motion to dismiss the appeal because the enumerations of error were not timely filed is denied.
2. The defendant moved for a change of venue alleging that he could not obtain a fair and impartial trial in Lowndes County for the reason that the jurors would have formed an opinion of his guilt from the publicity given his case. After a hearing, the trial court denied the motion.
The defendant in four separate enumerations of error setting forth specific circumstances complains in effect that the trial judge erred in not granting his motion for change of venue because the 'massive, pervasive and prejudicial publicity' by the news media prevented him from obtaining a fair and impartial trial and that he was denied due process of law as guaranteed by the United States Constitution.
The evidence shows that Lowndes and adjacent counties are widely 'covered' by a local daily newspaper, radio and television facilities, and that they reported the events surrounding this crime and the apprehension of the defendant. The publisher of the newspaper testified that, 'We tried to report the events as the facts presented themselves'; that they tried to be very careful to point out that any person arrested is a suspect and to avoid any expression of guilt. The news director of one radio station testified that his station reported the events surrounding the crime on a factual basis. Four witnesses testified that the defendant could obtain a fair trial in Lowndes County; three of them further testified that they came into contact with a great number of people in the county from day to day and generally there was little discussion of the case. Four other witnesses testified that the defendant could not obtain a fair trial in Lowndes County and that most of the people they came in contact with had expressed an opinion that the defendant was guilty. Two of these witnesses stated that from reading the newspaper articles they had formed an opinion that the defendant was guilty. Two of them stated that, if they were to serve on the jury, they would decide the case on the evidence introduced in court and they believed that other jurors would do the same. One Negro witness stated: 'I feel like he (the defendant) would not get the chance he'd have elsewhere' but he further stated that if he were a juror he would decide the case on the evidence submitted at the trial.
Three newspaper articles dated December 4, 1967, December 12, 1967, and January 25, 1968, were introduced in evidence. The trial on the plea of insanity was held January 31, 1968. The trial on the murder indictment was held on January 31 through February 1, 1968. The newspaper articles were concerned primarily with a psychiatric examination and a neurological examination of the defendant. They reported that the examinations had been ordered by the trial judge; when, where and by whom the examinations had been made; that the results of the examinations showed the defendant was sane and had no brain damage; and that the solicitor general quoted the neurologist as saying that the defendant was 'all right.' The articles consistently referred to the defendant as the accused and expressed no opinion as to his guilt.
We have carefully reviewed the evidence, including the newspaper articles, introduced in support of the motion for change of venue. We find there was no pervasive prejudice in the community which denied the defendant a fair and impartial hearing and that he was not denied due process of law. Morgan v. State, 211 Ga. 172(1), 84 S.E.2d 365; Chatterton v. State, 221 Ga. 424, 144 S.E.2d 726; and Williams v. State, 222 Ga. 208(1), 211, 149 S.E.2d 449. Compare Estes v. State of Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543; Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600.
3. The defendant moved to quash the indictment and he challenged the array of grand and petit jurors on the ground that Negroes were systematically and arbitrarily excluded from such juries. After a hearing, the trial court denied the motion. The defendant in two separate enumerations of error complains that the trial judge erred in not granting the motion because the jury commissioners did not properly revise the jury list in Lowndes County in accordance with Georgia law, and that he has been denied due process and equal protection of the law under both the State and Federal Constitutions.
Code Ann. § 59-106 (Ga.L.1967, p. 251) directs the board of jury commissioners to prepare a jury list of a fairly representative cross section of upright an intelligent citizens of the county from the official registered voters' list and, if they deem it necessary, to supplement the jury list through other inquiry.
The evidence shows that the 1960 census reports 26,943 persons over 21 years of age living in Lowndes County, of whom 7,809 are non-white; that there are 14,659 registered voters but they are not separated according to race and it is impossible without evidence on the question to ascertain how many are non- white; that the grand jury which indicted the defendant consisted of 22 members, 3 of whom were Negroes; that the petit jury drawn in November 1967 consisted of 175 members; that it was not known how many of them were Negroes, however, Negroes served on that jury and had served on Lowndes County juries for the last 15 to 20 years; that the jury commissioners revised the jury list in Lowndes County in conformance with and shortly after the enactment of the 1967 Act; that the commissioners met five or six times consolidating the list and worked independently on portions of the list; that in addition to the voters' list they referred to telephone books, the city directory, made inquiry of individuals both white and non-white, and generally sought upright and intelligent citizens to include...
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