Lynd v. State
| Decision Date | 27 February 1992 |
| Docket Number | No. S91P1120,S91P1120 |
| Citation | 262 Ga. 58,414 S.E.2d 5 |
| Parties | LYND v. The STATE. |
| Court | Georgia Supreme Court |
Roger E. Douglas, Valdosta, J. Reese Franklin, Nashville, William Earl Lynd, Jackson, Clyde W. Royals, Douglas, for Lynd.
Robert B. Ellis, Jr., Dist. Atty., Nashville, for the State.
Michael J. Bowers, Atty. Gen., Atlanta.
Mary H. Hines, Staff Atty., Atlanta.
Patsy Morris, Atlanta, Joseph L. Chambers, Sr., Pros. Attys.' Council, Smyrna, for other interested parties.
William Earl Lynd was convicted in Berrien County of kidnapping with bodily injury and murder and sentenced to death. He appeals. We affirm. 1
1. Lynd and the victim lived together in her home in Berrien County. Following an argument three days before Christmas of 1988, Lynd shot the victim in the face and went outside to smoke a cigarette. The victim regained consciousness and followed him outside. Lynd shot her a second time, put her into the trunk of her car and drove away. Hearing the victim "thumping around" in the trunk, Lynd got out, opened the trunk and shot the victim a third time, killing her.
Lynd returned home, cleaned up the blood, and drove to Tift County, where he buried the victim in a shallow grave. He then drove to Ohio. Lynd shot and killed another woman in Ohio and then sold the gun he used to kill her and the victim in this case. Eventually, Lynd returned to Georgia to surrender to Berrien County authorities. The murder weapon was recovered and identified by ballistics examination, and the victim's body was located based on information provided by Lynd.
The evidence supports the conviction. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. The denial of sequestered voir dire was not an abuse of discretion. Sanborn v. State, 251 Ga. 169(3), 304 S.E.2d 377 (1983). There was no denial of individual voir dire. State v. Hutter, 251 Ga. 615, 307 S.E.2d 910 (1983).
3. The record supports the trial court's conclusion that the defendant could receive a fair trial in Berrien County and that a fair and impartial jury was selected in this case. There was no error in the denial of the defendant's motion for change of venue. Isaacs v. State, 259 Ga. 717(15), 386 S.E.2d 316 (1989).
4. "A trial court retains the discretion to determine how late to hold court before recessing for the evening." Spencer v. State, 260 Ga. 640, 647(9), 398 S.E.2d 179 (1990). Lynd has not shown that the trial court maintained an "oppressive" trial schedule which left defense counsel insufficient time to review each day's proceedings or to prepare for the next.
5. The trial court did not err by excusing for cause a prospective juror who testified he was opposed to the death penalty and could not vote for a death sentence in any case regardless of the evidence. Alderman v. State, 254 Ga. 206(4), 327 S.E.2d 168 (1985).
6. Nor did the court err by refusing to disqualify another prospective juror for pro-death penalty bias. Although the juror was somewhat confused by the initial questions about the death sentence, the juror ultimately testified that he could consider and possibly vote for a life sentence after hearing all the evidence, and that he would "not just automatically" vote for a death sentence in the event the defendant was convicted. The trial court was authorized to conclude that the juror's views would not Alderman v. State, supra. Compare Pope v. State, 256 Ga. 195(7e), 345 S.E.2d 831 (1986).
7. In the final enumeration of error of his original brief, Lynd contends the evidence fails to support the jury's findings of statutory aggravating circumstances. The jury found:
(1) The offense of murder was committed while the offender was engaged in the commission of another capital felony, to wit: kidnapping with bodily injury [see OCGA § 17-10-30(b) (2) ].
(2) The offense of murder was committed while the offender was engaged in the commission of an aggravated battery. [See ibid.].
Lynd argues he did not commit the offense of kidnapping with bodily injury because the victim was unconscious after the second shot. However, even if we were to accept the untenable assumption the victim could not have been taken "against her will," see OCGA § 16-5-40(a) (defining kidnapping), if she were unconscious the entire time, see Taylor v. State, 194 Ga.App. 871(2), 392 S.E.2d 57 (1990), the evidence is persuasive that she regained consciousness and vigorously protested her confinement in the trunk of her car before Lynd shot her a third time and killed her.
As to the aggravated battery finding, the evidence shows that Lynd seriously disfigured the victim with his first shot beneath her left eye. See OCGA § 16-5-24 (defining aggravated battery).
The evidence supports the jury's findings of statutory aggravated circumstances. OCGA § 17-10-35(c)(2).
8. Over two months after this case was argued orally to this court, Lynd filed a "supplemental brief" raising and arguing eight additional enumerations of error not raised or argued previously. The Attorney General has moved to exclude these supplemental enumerations as untimely, relying on Cohran v. Carlin, 254 Ga. 580(1a), 331 S.E.2d 523 (1985), which holds that "[a]rguments asserted for the first time in a post-oral argument brief are untimely, and will not be considered." Id. at 584, 331 S.E.2d 523.
Our Georgia Unified Appeal Procedure states:
If assertions of error "not raised" are waived, it follows that assertions of error not timely raised are also waived. Because there may have been some reasonable question about the applicability of the Cohran v. Carlin rule to death penalty cases, we will not apply it to this case, and we therefore deny the Attorney General's motion to exclude. See Ford v. State, 257 Ga. 661, 665, 362 S.E.2d 764 (1987) (Gregory, J., dissenting). In the future, however, except in cases of "plain error," 2 enumerations of error not timely raised and/or argued shall be waived.
9. Initially, an attorney was appointed for the defendant. Soon thereafter, the defendant retained an attorney to represent him. At a hearing on March 24, 1989, the trial court questioned the two attorneys about their experience and qualifications. The retained attorney testified that he had graduated from law school in 1986 and had been admitted to the Georgia bar in September of 1987. He had maintained a law office and a full-time practice in the year and a half since being admitted to the bar. He testified that although he had handled "probably" 25 criminal cases, he had actually tried only one felony case before a jury. This was his first death-penalty case.
The appointed attorney had been admitted to the bar for a little longer than 6 months and had not tried any cases before a jury.
After questioning these two attorneys, the trial court told Lynd it was troubled by his attorneys' lack of experience. As a consequence, notwithstanding that Lynd had expressed his satisfaction with his two attorneys, the court was going to require Lynd either to retain a more experienced attorney (in addition to or in lieu of his present retained attorney) or--if he could not afford to do that--to accept the appointment of a more experienced attorney to act as lead counsel in the case.
At the next hearing, on May 19, 1989, the court announced for the record that Lynd's original appointed attorney had been "relieved of any further responsibility in this case" and that another, more experienced attorney had been appointed by the court to represent the defendant and to act as lead counsel. Although he had been satisfied with his previous court-appointed attorney, Lynd now objected to the appointment of a "government-paid" attorney to represent him. According to his retained attorney, Lynd had been in "trouble in a lot of states, had a lot of trouble with the government, and he just does not trust a court-appointed attorney."
Late in July, the defendant told the court he was financially "capable now of hiring my own attorney," and asked the court to relieve his appointed attorney. However, when the court asked Lynd whom he intended to retain, Lynd stated he had only become "aware" of his new resources the previous evening and had not yet contacted any attorneys. The court declined to relieve Lynd's appointed attorney at that time, stating Lynd could not "just take lawyers on and off" and "drag" the case on for years. Later (hearing of August 25, 1989 at p. 5), when the defendant again claimed he could retain an additional attorney, 3 the court ruled that the appointed attorney
is going to stay on the team until such time as I see who this attorney is. And if such attorney that's employed is [sufficiently capable and experienced] ... then at such time, I will remove [the appointed attorney].
The defendant, however, never retained any additional attorneys, and was represented at trial by the appointed attorney as lead counsel and by his retained attorney as associate counsel.
(a) Lynd contends he was denied his 6th Amendment right to retain and be represented by the attorney of his own choosing.
A criminal defendant who is financially able to retain the services of an attorney has a constitutional right under the Sixth Amendment to "secure counsel of his own choice." U.S. v. Friedman, 849 F.2d 1488, 1490 (D.C.Cir.1988). However, "[t]his does not mean that a defendant may...
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