Mathis v. State

• Decision Date: 18 May 1982
• Docket Number: No. 38308,38308
• Parties: MATHIS v. The STATE.
• Court: Georgia Supreme Court

Page 489

291 S.E.2d 489

249 Ga. 454

MATHIS v. The STATE.

No. 38308.

Supreme Court of Georgia.

May 18, 1982.

Rehearing Denied June 2, 1982.

[249 Ga. 461] John L. Coney, Douglasville, for James Mathis.

W. A. Foster, III, Dist. Atty., Dallas, Michael J. Bowers, Atty. Gen., Atlanta, for the State.

MARSHALL, Justice.

The defendant was indicted on two counts of murder, two counts of kidnapping, two counts of armed robbery and one count of rape. He was convicted on all counts except the rape charge. The jury returned a verdict at the sentencing phase finding three aggravating circumstances: that each murder was committed during the commission of armed robbery; that each was committed during the commission of kidnapping; and that the murders were outrageously and wantonly vile, etc. Defendant was sentenced to death on each of the murder convictions, life on each of the kidnapping convictions and 20 years each on the armed-robbery convictions.

The victims were an elderly couple who lived in the same housing authority complex in which the defendant's sister lived. The defendant had Thanksgiving dinner with his sister. After dinner, the sister left the room for a short time and when she returned the defendant was gone, whereupon she looked out of the window and saw him in the rear seat of the victim's car as it drove out of the complex. The victims intended to have a late Thanksgiving dinner with one of their children, which was in the same direction as the defendant's home. When the victims were found in a wooded area, it was in the opposite direction from their intended route. The defendant was identified as having solicited a ride at a beer store about a mile from where the victims were found. The male victim's knife and pistol were recovered and identified as having been acquired from the defendant. Further facts will be related where necessary to an understanding of the enumeration of error.

1. Enumerations of error 1, 2 and 6 contend that the trial court erred in denying the defendant's motion for individual sequestered voir dire, sequestered voir dire by panels and by requiring general questions to be asked to the entire panel rather than repeating the same question to each individual juror.

" 'Code Ann. § 59-705 gives defense counsel the right to examine jurors individually after the usual voir dire questions have been put by the trial court to the jury as a panel. The right does not encompass isolated examination. The single purpose for voir dire is the ascertainment of the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination. The control of the pursuit of such determination is within the sound legal discretion of the trial court, and only in the event of manifest abuse will it be upset upon review.' Whitlock v. State, 230 Ga. 700, 705 (198 SE2d 865) (1973). See also, Finney v. State, 242 Ga. 582 (250 SE2d 388) (1978)." Messer v. State, 247 Ga. 316(5), 276 S.E.2d 15 (1981).

In this case, the individual voir dire by the defendant's counsel covers some 200 pages in the transcript. We can not say that he was unduly restrained in his individual questioning of the jurors nor has he shown any prejudice resulting from the procedure used here or abuse of discretion. Whitlock v. State, supra.

2. Enumeration of error 3 contends that the trial court erred in denying the defendant's motion to swear and sequester all state's witnesses prior to the beginning of the trial.

Code § 38-1703 provides: "In all cases either party shall have the right to have the witnesses of the other party examined out of the hearing of each other. The court shall take proper care to effect this object as far as practicable and convenient, but no mere irregularity shall exclude the witness." Thus we see that the rule provides only that witnesses be examined out of the hearing of each other, and there is no requirement that prospective witnesses remain free of other contact or communications. In a trial that is expected to last several days, it would not be "practicable and convenient" to require all witnesses to be sworn and sequestered for a long period of time, as juries are segregated from all outside influences. See Byrd v. Brand, 140 Ga.App. 135(4), 230 S.E.2d 113 (1976).

There is no contention here that any witness violated the rule of sequestration nor is there any contention that the defendant was harmed by the ruling of the trial court. We find no merit in this enumeration.

3. Enumerations 4 and 5 contend that the trial court erred in allowing the sheriff to remain in the courtroom after the rule of sequestration had been invoked, and thereafter not requiring him to testify first.

Absent a showing of an abuse of discretion, it is not error to allow the chief investigating officer to remain in the courtroom or to not require him to testify first. Davis v. State, 242 Ga. 901(3), 252 S.E.2d 443 (1979).

4. Enumeration of error 7 contends that the trial court erred in disqualifying a juror under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The panel was asked: "Are you conscientiously opposed to the infliction of capital punishment? Are you so opposed to capital punishment that you would vote against the death penalty regardless of the facts and circumstances that might emerge in the course of these proceedings? Juror: Yes, Sir. The court: Would you vote against it regardless of what the facts and circumstances are? Juror: Yes, Sir."

The prospective juror was clearly disqualified, and the trial court did not err in excusing him. See Ruffin v. State, 243 Ga. 95(3), 252 S.E.2d 472 (1979), and compare Blankenship v. State, 247 Ga. 590(4), 277 S.E.2d 505 (1981), where the answers were ambiguous.

5. Enumerations of error 8 and 9 contend that it was error to deny the defendant's motions for directed verdict as to the kidnapping charges and the armed-robbery charges. There was evidence presented that the defendant was in the car with the victims when they left the premises where they lived; that they were seen preparing to turn left onto the highway leading to their daughter's home; and that the victims and their car were found in the opposite direction from where they were last seen and from their intended route. There was also evidence that the defendant sold property belonging to the male victim. Additionally, there was the defendant's admission to a fellow cellmate admitting these offenses. The evidence being sufficient to submit these issues to a jury, there is no merit in these contentions. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

6. Enumeration of error 10 objects to the trial court's charge on alibi. The defendant testified that the victims let him out of the car at the C & R Grocery Store and that he stayed there about an hour and a half before he got a ride home. This would raise an issue of the defendant's presence at the scene of the crime. Also, the charge was favorable to the defendant, and he can not now complain. Hance v. State, 245 Ga. 856(4), 268 S.E.2d 339 (1980).

7. Enumeration of error 11 complains of the charge on confessions. The defendant argues that, at most, his statement to the interrogating officer would be considered as contradictory or incriminating.

The defendant made statements to Sammy Owensby, a cellmate, admitting both killings and the rape of the female victim. The statements did not contain anything exculpatory, and it is not necessary that the inculpatory statements be made to a law enforcement officer to warrant a charge on confessions. Johnson v. State, 242 Ga. 822(1), 251 S.E.2d 563 (1979); Bonds v. State, 232 Ga. 694(3), 208 S.E.2d 561 (1974). There is no merit in this contention.

8. Enumeration of error 12 complains of the charge on robbery by intimidation. Robbery by intimidation being a lesser included offense of armed robbery, and absent an objection, it is not error to charge a lesser included offense. Holcomb v. State, 230 Ga. 525, 198 S.E.2d 179 (1973). In the present case, when asked if there was any objection to charging on robbery by intimidation, counsel stated: "I am not either excepting to or requesting such a charge. The court asked me if I felt it was in the case, and I do not under the evidence, but it's up to the court to make that determination about the charge." After the jury was charged, counsel was again asked if he had any objection to this charge, and he replied, "No." We find no merit in this enumeration of error. See Jackson v. State, 246 Ga. 459, 271 S.E.2d 855 (1980).

9. Enumerations of error 22 and 23 contend that the trial court erred in overruling the defendant's motion for new trial and in entering judgment on the verdict. We have reviewed the evidence, and find that it amply supports the verdict beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, supra. There is no merit in these enumerations of error. Enumerations of error 13 through 21--complaining of admitting former convictions, allowing the sheriff to testify, and the charge on aggravating circumstance, all of the sentencing phase of the trial--will be dealt with in the sentence review.

SENTENCE REVIEW

As mandated by the statute, Georgia Law 1973, pp. 159, 165 (Code Ann. § 27-2537), we have reviewed the transcript and record in this case as we have in all prior cases under this statute. We find that the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor.

10. In his enumerations 13-16, the appellant contends that it was error for the trial court to admit over objection prior convictions of the appellant in aggravation during the sentencing phase of the trial. He argues that: Even though the prior convictions were correctly certified and showed upon their face that the defendant therein was represented by counsel, each case was a plea of guilty, and the...