Messer v. State
| Decision Date | 03 March 1981 |
| Docket Number | No. 36836,36836 |
| Citation | 247 Ga. 316,276 S.E.2d 15 |
| Parties | MESSER v. The STATE. |
| Court | Georgia Supreme Court |
W. A. Foster, III, Dist. Atty., Cedartown, Arthur K. Bolton, Atty. Gen., for the State.
This is a death case. The defendant was convicted of the murder and kidnapping with bodily injury of his eight year old niece. The jury fixed the defendant's punishment as death for the murder, finding as the aggravating circumstances that the offense of murder was committed while the offender was engaged in the capital felony of kidnapping with bodily injury (Code Ann. § 27-2534.1(b)(2)), and that the offense of murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture to the victim (Code Ann. § 27-2534.1(b)(7)). The jury found that the kidnapping with bodily injury was outrageously or wantonly vile, horrible or inhuman in that it involved torture to the victim and an aggravated battery to the victim and sentenced the defendant to death for this offense. Code Ann. § 27-2534.1(b)(7).
The jury was authorized to make the following findings of fact:
On February 13, 1979, the date of the murder, the defendant left his home to attend a doctor's appointment. He waited at the doctor's office briefly, then departed before the time for his appointment arrived. Around mid-day he went to an electrical supply store. There he told the saleswoman that he worked for a construction company in Rome and needed a specialized light fixture. After inspecting the light fixtures on display in the store he appeared dissatisfied, and told her that he wanted to look at "more stuff ... that will probably be in the back." The saleswoman invited him to examine the light fixtures in the supply room, located at the back of the store, but informed him that she could not assist him as she was alone in the store and needed to supervise the unloading of a delivery truck that had just arrived. When the defendant persisted in his requests that the saleswoman assist him in the back of the store, she became nervous. Suspecting the defendant's motives, the saleswoman telephoned her husband, who worked nearby, and asked him to come to her assistance. During this period of time the defendant did not venture into the supply room. When the defendant saw the saleswoman's husband enter the store, he left. The saleswoman testified that she observed the defendant shake his head and mouth the word "damn" as he left.
At trial the saleswoman testified that she had seen defendant in the store three months prior to this incident. At that time he had also attempted, unsuccessfully, to get her to go into the back room of the store to look for a specialized item.
Around 2:30 that afternoon the saleswoman saw the defendant drive slowly by the electrical supply store. She ran out into the street and took down his license plate number. The saleswoman testified that she watched the defendant turn in the direction of College Street Elementary School which is located a few blocks from the electrical supply store. That night she and her husband telephoned the police to report this suspicious incident and to request that the police investigate the defendant. The following night the police asked the couple to examine photographs at the police station to see if they could identify the man. Both selected a picture of the defendant. The license plate number taken down by the saleswoman matched the license number of defendant's car.
On the date of her death the victim was attending College Street Elementary School. The victim's teacher testified at trial that the victim had an "uneasy, nervous" nature which had complicated her adjustment to school routine. The victim apparently cried most of the day, had difficulty socializing with other children, and frequently Between 2:45 and 3:00 that afternoon the victim's mother arrived at the school, alarmed that the victim had not come home on the schoolbus. The mother denied authorizing the victim's uncle, or anyone else, to pick her up. The victim's mother testified that the principal's description of the man "fit (the defendant) to a 'T'." The victim's mother telephoned the defendant's wife to see if the child was at their home as the defendant and his wife frequently baby-sat for the victim. Defendant's wife told her that she had not seen the victim that day and that the defendant had gone to the doctor.
voiced her fear that her mother would desert her and that she would be left alone at home after school. At 2:30 that afternoon the victim was preparing to board the school bus that would take her home when the principal called the victim's homeroom to say that her uncle, the defendant, was there to take her home. The defendant had informed the principal that the victim's father had been injured on a construction job and that the victim's mother, too upset to drive herself, had requested that the defendant pick the victim up at school. When the victim saw her uncle she ran up to him and, according to an observer, began "prancing around him." The principal testified that the victim took the defendant's hand and "petted" it. The victim excitedly told her teacher that she would not have to ride the bus as her uncle would take her home. Subsequently the victim and the defendant left the school together. The principal later identified a police photograph of the defendant as the man who had picked up the victim.
At trial a witness testified that at about 3:30 that afternoon she observed the defendant walking away from the woods where the victim's body was later found.
Arriving home the defendant spoke at length to his family about his long and futile wait at the doctor's office. When informed of the victim's abduction, defendant told the victim's family that he had seen a child resembling the victim in a "dark colored car ... headed north," but that he otherwise knew nothing of the circumstances surrounding her absence.
The following day the victim's family conducted an extensive search for the child. A sister-in-law of defendant, driving by the wooded area where defendant had taken the victim, spotted the victim's coat. A police search ensued and subsequently the victim's book and crayons were found. Further search uncovered the body of the victim, clad only in a knit shirt.
The victim had been stabbed numerous times in the chest and abdomen. Her face had been so severely beaten that it was not readily recognizable. Her abdomen had been slashed five times by a knife, and bruises and lacerations covered her face, neck and upper chest. Spermatozoa were found in the victim's vaginal area, but there was no evidence to indicate that she had been raped. Autopsy results showed that she had bled to death.
That night the defendant and his wife voluntarily accompanied GBI agents to the police station for questioning. Although not under arrest at that time, the defendant was given Miranda warnings and subsequently signed a waiver form. After being confronted with the fact that he had been identified as the person who removed the victim from school, the defendant confessed to the murder of his niece. A GBI agent testified that defendant told him "after not getting anywhere ... with the female employee" at the electrical supply store, "the first thing that came to his mind was (the victim) and that's why he went to the school to get her." The defendant stated that he had driven the victim to a wooded area and parked the car. He told her that he was having trouble with the battery cables in his car and needed to find a rock to fix them. She accompanied him into the woods to search for a rock.
Telling her that he "wanted to play a game with her" the defendant pushed the victim down to the ground, removed her slacks and began touching her "between the legs." The defendant repeatedly stated to the GBI agents that he had originally intended to "just molest" the victim and to After the defendant confessed to the crime, he was placed under arrest and reminded of his Miranda warnings. The police accompanied defendant to a nearby hospital where blood samples and hair specimen were taken. Expert testimony presented at trial established that the hair found on the shirt and pants defendant had been wearing on the day of the murder belonged to the victim. The shoes defendant had been wearing at that time corresponded to the plaster cast of a partial shoe track found at the scene of the crime. Traces of blood were found on defendant's pocketknife, but were of an amount too small to type.
"make her promise not to tell her father," but that the victim refused to cooperate with him and began to scream. He stated that he hit her repeatedly with his fist to quiet her. He masturbated on the left side of the victim's abdomen and finally stabbed her with his pocketknife to silence her. The defendant then kicked the victim in the face until she lay motionless. The defendant told the agents that he washed his pocketknife in a nearby stream, then returned to his parked car where he removed the victim's coat, book and crayons and threw them into the woods.
(1) Defendant first contends that the trial court erred in failing to grant his motion for an independent psychiatric examination at government expense.
In March, 1979 the defendant underwent a psychiatric examination at Central State Hospital. It was determined at that time that he was competent to stand trial. An indictment was returned against defendant in November, 1979. The following month defendant entered a special plea of insanity and simultaneously made a motion for independent psychiatric evaluation, stating that, without it, he would be unable to adequately prepare his defense. The trial court denied the motion, finding that the defendant had not shown sufficient grounds in support of his motion. Defendant's motion for reconsideration was also denied, but the trial court...
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