Mincey v. State
| Decision Date | 07 July 1983 |
| Docket Number | No. 39612,39612 |
| Parties | MINCEY v. The STATE. |
| Court | Georgia Supreme Court |
Willis B. Sparks III, Dist. Atty., Macon, Thomas J. Matthews, Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., Janice G. Hildenbrand, Staff Asst. Atty. Gen., for the State.
The defendant, Terry Mincey, was convicted in Bibb County for the offenses of murder, armed robbery and aggravated battery. The death penalty was imposed for the murder. This case was tried and is reviewed under the Unified Appeal Procedure. We affirm.
1. Appellant does not attack the sufficiency of the evidence supporting his convictions. This court, however, has nonetheless reviewed the evidence pursuant to Rule IV(B)(2) of the Unified Appeal Procedure. The evidence can be summarized as follows.
Robert Jones, Timothy Jenkins and the defendant met in the evening of April 12, 1982, and discussed committing a robbery. Each was armed, Jones with a .12 gauge shotgun, Jenkins with a .38 caliber pistol and the defendant with a .380 caliber semi-automatic Llama pistol. After several possibilities were discussed and rejected, the trio drove by a Mini Food Store located at the intersection of Houston Avenue and Hartley Bridge Road in Bibb County. They circled back to the store and parked. The defendant entered the store briefly and returned to the car. He told the others that Fourteen-year-old Mischell Cook and her 15-year-old brother, "Bubba," were inside the store, visiting the cashier, Mrs. Riggs. When the defendant entered the store, they recognized him as the same young white male who had entered the store 10 or 15 minutes previously. He told Mrs. Riggs to "put the money in the bag" and told the kids to go to the car.
there were only a female clerk and two teenagers inside and it looked like a good place to rob. He informed the others that he didn't plan on leaving any witnesses. When Jenkins protested, the defendant told him, "If you're talking about not wasting nobody, you're in the wrong ... car." They waited, hoping the kids would leave. When, after a few minutes, they didn't, the defendant reentered the store. Jenkins positioned himself outside, between the ice machine and the dumpster. Jones, the driver, stayed in the car
Jenkins, standing outside, saw two teenagers walk out of the store just as a pickup truck pulled up to the gas pumps. The driver, Russell Peterman, got out and began to fill his tank. Meanwhile, Mrs. Riggs, followed by the defendant, exited the store. When the defendant saw Peterman at the gas pumps, he turned Mrs. Riggs over to Jenkins and walked toward the pumps.
Peterman testified that as he was pumping gas, he was confronted by a young white man with a pistol in his hand, who said, "come go with me." Peterman was so surprised that he failed to respond. The man said, "You think I'm joking, don't you?" Then he shot Peterman in the chest. Peterman fell to the ground, and the man walked over and shot him in the face.
When this happened, Jenkins proceeded toward the getaway car and the teenagers ran. Jones, sitting in the car, saw Mrs. Riggs run after them, but she ran too late. The defendant came back across the parking lot and fired at her. Jones saw Mrs. Riggs grab her neck and fall behind the dumpster. The defendant walked behind the dumpster and bent down. Jones heard a second shot.
The defendant ran to the car, got in, and they left. They counted the money taken from the store--about $40. Jones asked if the victims were dead. The defendant answered, Then the defendant asked where the kids were. When he found out they had escaped, he said, "Well, I just got a death sentence."
Jones' car was a multi-colored Mustang with mag wheels, no hood, one working headlight and a loud muffler. When police arrived at the scene a few minutes after the robbery, witnesses were able to describe the car and identify its owner. Jones was soon located and placed under arrest. After he named the defendant as a participant, officers went to the defendant's residence and placed him under arrest. The defendant thereafter admitted to law enforcement officers that he had shot Peterman and Mrs. Riggs.
Mrs. Riggs died. An autopsy revealed that she had been shot twice. One bullet entered her left ear, went through her head, and lodged in her right cheek. This bullet was recovered. The other entered the right side of her head through the temporal bone (driving bone fragments into her brain), deflected, and exited on the right side of her neck. This bullet, which inflicted the fatal wound, was not recovered.
Peterman lived. One bullet entered his chest and lodged in a muscle close to his spine, where it remains. The other bullet entered the left side of his head and travelled across his face. Two weeks after he was shot, his condition had stabilized sufficiently that this wound could be operated on. The bullet was removed from under his right eyebrow. His left optic nerve was damaged by the passage of the bullet and he is now totally blind in his left eye. His right eye suffered severe retinal damage and has a drooping upper lid, which may or may not eventually elevate on its own. With the lid lifted out of the way, his right eye has approximately 40% of its original vision.
A .380 Llama pistol was recovered from the defendant's trailer. Ballistics examination The evidence presented was more than sufficient to support the verdicts of guilty. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
showed it to be the pistol which had fired the bullets recovered from Peterman and Mrs. Riggs.
2. The defendant filed a pre-trial "motion challenging death qualification of jurors during voir dire." In the motion, the defendant alleged that the practice of excusing, for cause, potential jurors who are unalterably opposed to the death penalty denies a defendant his right to a jury drawn from a fair cross-section of the community, results in a jury more likely to convict than one not "death-qualified," and violates a defendant's right to equal protection because death qualification only occurs in death penalty cases. No evidence was presented on this motion. At a pre-trial motion hearing conducted pursuant to Rule II(B) of the Unified Appeal Procedure, the court announced, before any evidence was proffered on behalf of this motion, that it was denied.
The defendant does not contend that his Sixth Amendment fair-cross-section challenge or his equal-protection challenge to the practice of death qualification of jurors presented any factual questions requiring the presentation of evidence. He contends, however, that Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), impliedly entitles him to an evidentiary hearing with regard to his contention that death-qualified juries are more likely to convict than non-death-qualified juries. 1 The failure of the court to conduct such an evidentiary hearing, appellant argues, was reversible error.
We cannot agree. In the first place, had the court erred by refusing to conduct an evidentiary hearing, the error could be cured by a remand for an evidentiary hearing. Only if the defendant prevailed at that hearing (an unlikely event, as will hereinafter be demonstrated) would reversal be required. Second, in view of the defendant's failure to proffer any evidence in support of this motion, it is less than clear that an evidentiary hearing was, in fact, denied. Most importantly, had the defendant been allowed to present evidence that death-qualified juries are more likely to convict than non-death-qualified juries, and had this evidence "suppl[ied] the persuasiveness found lacking by the Supreme Court and by many other courts, both federal and state, since Witherspoon," the defendant still would not have been entitled to the relief sought. Smith v. Balkcom, 660 F.2d 573, 578 (5th Cir.1981); Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978). In each of these cases, the Fifth Circuit assumed, without deciding, that a death-qualified jury is more likely to convict than a non-death-qualified jury and held that, nonetheless, the practice of excluding for cause those potential jurors so unequivocally opposed to the death penalty that they would automatically vote against it, no matter what the evidence might reveal, does not deny a defendant his constitutional right to an impartial jury.
As the state suggests, "[t]he attack upon the death qualification of jurors as producing conviction-prone juries is past the stage of old hat, and has now become merely a 3. The trial court did not err by overruling the defendant's challenge to the constitutionality of Georgia statutes relating to the imposition of the death penalty. He argues that Georgia law improperly allows the state to prove non-capital felonies in aggravation during the sentencing phase of the trial and gives too much discretion to the jury. Citing our response to a question certified to us by the United States Supreme Court (Zant v. Stephens, 250 Ga. 97, 297 S.E.2d 1 (1982)), the defendant contends that the premises underlying our statutory scheme for the imposition of the death penalty will not withstand constitutional scrutiny. Since the defendant submitted his brief, however, the United States Supreme Court has resolved these contentions adversely to the defendant. Zant v. Stephens, --- U.S. ----, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). Thus, the defendant's third enumeration of error is meritless.
part of the familiar repertoire of death defendants, a sort of 'golden oldie' of death penalty attacks." A plethora of United States Supreme Court, Fifth Circuit and Georgia cases have upheld the practice of excusing jurors who are so unalterably opposed to the death penalty that they could
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