Mobley v. State

• Decision Date: 17 March 1995
• Docket Number: No. S94P1271,S94P1271
• Parties: MOBLEY v. The STATE.
• Court: Georgia Supreme Court

Page 61

455 S.E.2d 61

265 Ga. 292

MOBLEY v. The STATE.

No. S94P1271.

Supreme Court of Georgia.

March 17, 1995.

Michael Kennedy McIntyre, Atlanta, Daniel A. Summer, Summer & Summer, Gainesville, Charles E. Taylor, Atlanta, for Mobley

Lydia J. Sartain, Dist. Atty., Leonard C. Parks, Jr., Asst. Dist. Atty., Gainesville, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Michael D. Groves, Asst. Attys. Gen., Atlanta, for State.

Michael Mears, Atlanta, amicus curiae.

FLETCHER, Justice.

Stephen Anthony Mobley was convicted of murder, armed robbery, aggravated assault, and possession of a firearm during the commission of a crime. The jury recommended the death penalty for the murder, finding the aggravating circumstance of armed robbery. OCGA § 17-10-30(b)(2). The trial court sentenced Mobley to death and Mobley appeals. ¹ We affirm.

1. The evidence established that shortly after midnight on February 17, 1991, Mobley robbed a Hall County pizza store and shot John C. Collins, the store manager, in the back of the head with a Walther .380 semi-automatic pistol. The physical evidence from the scene was consistent with a statement Mobley later made to a cellblock inmate that Collins was on his knees when Mobley shot him. Approximately three weeks after the crimes in issue, Mobley used the pistol while robbing a dry cleaning store, and tried to dispose of it by tossing it out his car window onto the side of a road when he realized he was being followed by an unmarked police car. The pistol was later recovered and Mobley arrested, after a high-speed chase. Mobley made statements to the police confessing to the murder of Collins and the robbery of the pizza store. In response to Mobley's statement to police that on the night of the crimes he was en route from his residence to a family member's home (where he was not expected) and that he robbed the pizza store because it was the only open establishment he passed, the state introduced testimony establishing that out of the three routes available to Mobley, only one passed the pizza store, and that this route exceeded by over 10 miles the next shortest route to the family member's house.

When considered in the light most favorable to the verdict, we conclude that the evidence was sufficient to permit a rational trier of fact to find Mobley guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Mobley made a motion seeking funds for expert witnesses to conduct preliminary testing to determine the existence of a genetic disorder. ² Mobley based his motion on "very recently" published articles and scientific 3. Mobley's arguments regarding the trial court's ruling as to the constitutionality of OCGA § 17-10-16, the life-without-parole statute, are without merit. See Freeman v. State, 264 Ga. 27, 28(2)(a), 440 S.E.2d 181 (1994).

                studies "that suggest a possible genetic basis for violent and impulsive behavior in certain individuals."   After reviewing the documentation submitted by Mobley, the trial court denied the motion and the motion for reconsideration, finding that the theory behind the request for funds will not have reached a scientific stage of verifiable certainty in the near future and that Mobley could not show that such a stage will ever be reached.  See Harper v. State, 249 Ga. 519, 525-526(1), 292 S.E.2d 389 (1982).  Compare Caldwell v. State, 260 Ga. 278(1), 393 S.E.2d 436 (1990).  Additionally, the trial court correctly assumed that evidence in mitigation in the sentencing phase of a capital case "may not have to have reached a scientific stage of verifiable certainty normally required for the introduction of scientific evidence."   See Bright v. State, 265 Ga. 265, 455 S.E.2d 37 (1995) ("the determination whether expert assistance is required at the penalty phase requires consideration of a different set of factors than the determination whether expert assistance is necessary at the guilt phase").  Even under this assumption, the court found that a greater showing of certainty was required than that shown by Mobley.  We find no error in the trial court's ruling.  See generally Williams v. State, 251 Ga. 749, 750(1), 312 S.E.2d 40 (1983) ("[i]t is for the trial court to determine whether a given scientific principle or technique is competent evidence")
                

4. Mobley contends the trial court erred in granting the state's 1991 motion pursuant to Sabel v. State, 248 Ga. 10, 282 S.E.2d 61 (1981) and OCGA § 17-7-211 for a copy of "any and all scientific reports" prepared by Mobley's experts. We held in Rower v. State, 264 Ga. 323(5), 443 S.E.2d 839 (1994), that with regard to scientific reports, "the state is entitled to only those discovery rights specifically granted to the defendant by OCGA § 17-7-211." Id. at 325, 443 S.E.2d 839. We pointed out that, consistent with discovery rights granted the defendant, the state may discover only those written reports generated by defense experts that the defense intends to introduce at trial and overruled Sabel to the extent it conflicted with this holding. Id. Although Rower was decided after Mobley's case was tried, because Mobley's appeal was "in the pipeline," see Taylor v. State, 262 Ga. 584(2)(b), 422 S.E.2d 430 (1992), the Rower rule applies, id., and there was error. See Thornton v. State, 264 Ga. 563(16), 449 S.E.2d 98 (1994).

However, it is an old and sound rule that error to be reversible must be harmful. Dill v. State, 222 Ga. 793(1), 152 S.E.2d 741 (1966). Mobley does not assert, nor does the record reflect, that Mobley was required to provide or did in fact provide the state with any scientific reports in violation of the Rower rule. Accordingly, because Mobley cannot show that harm resulted from the error, reversal is not required.

5. Mobley's enumerations nos. 20 and 21 are controlled adversely to him by our previous decision in his case. See Mobley v. State, 262 Ga. 808(1) and (3), 426 S.E.2d 150 (1993) ("Mobley I ").

6. In Mobley I, this court held that Mobley failed to prove that Latinos are underrepresented on jury lists in Hall County. Id. at 810, 426 S.E.2d 150. Upon return of the remittitur, Mobley again filed motions challenging the grand jury composition and seeking to quash the indictment, and also, in a motion that complied with this court's holding in Roseboro v. State, 258 Ga. 39(3)(d), 365 S.E.2d 115 (1988), sought funds for an expert witness to conduct a study to prove the alleged underrepresentation of Latinos on Hall County jury lists.

The trial court found no evidence that Latinos were a cognizable group in Hall County under the 1980 census, which was the census applicable at the time of Mobley's indictment, see generally Walraven v. State, 250 Ga. 401, 405, 297 S.E.2d 278 (1982); that there is no allegation of intentional exclusion of Latinos from the jury lists; that Latinos are included on the jury lists but there is uncertainty as to the numbers, see Mobley Based on these findings the trial court held that Mobley had not shown that a legitimate issue existed regarding the alleged underrepresentation of eligible Latinos on the Hall County jury list and denied his motion for funds to hire an expert. In the absence of any more reliable evidence than that submitted at the first hearing on the motion to quash, the trial court denied the renewed motion to quash the indictment.

262 Ga. at 810 n. 1, 426 S.E.2d 150; and that even using the 1990 census and the testimony of Mobley's witnesses, the percentage of Latinos eligible to serve in Hall County represented 0.8 percent of the persons over 18 in the county. The trial court also noted that the alleged underrepresentation of Latinos in the 1990 census occurred notwithstanding defense witnesses' own efforts to have all Hall County Latinos reflected in that census.

Because the record supports the trial court's rulings, we find no abuse of the trial court's discretion in denying Mobley's motion for funds to obtain an expert. Roseboro, 258 Ga. at 39, 365 S.E.2d 115. The trial court did not err by denying the renewed motion to quash the indictment. See Hicks v. State, 256 Ga. 715(7), 352 S.E.2d 762 (1987).

7. Mobley maintains the trial court erred in failing to excuse seven prospective jurors for cause for indicating they would automatically impose the death penalty under certain circumstances posed by counsel. A careful review of the responses reveals that each of these jurors was, to varying degrees, equivocal regarding their beliefs about the death penalty, the circumstances under which they would favor imposing it, and whether they would favor it over a sentence of life imprisonment. However, the record supports the trial court's findings that each juror in question was capable of serving impartially, and would consider both the evidence in mitigation and the trial court's instructions in determining the appropriate sentence. "These findings are entitled to deference from this court." Ledford v. State, 264 Ga. 60, 64(6)(b), 439 S.E.2d 917 (1994). We find no error. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); Thornton, 264 Ga. at 573, 449 S.E.2d 98.

8. Mobley contends the trial court erred by refusing to allow him to question potential jurors during voir dire about their understanding of the meaning of a life sentence and the meaning of a death sentence.

[A] prospective juror's personal views regarding the meaning of a life sentence or [a death sentence] are extraneous to his or her ability to serve as a juror, unless it can be shown that those views would seriously impair the juror's performance of his or her duties.

Burgess v. State, 264 Ga. 777(3), 450 S.E.2d 680 (1994). Because Mobley made no such showing with regard to any of the prospective jurors in this case, the trial court did not err by refusing to allow the challenged questions. We do not agree with Mobley that a different result is demanded by Simmons v....