Moore v. State, S92P1144

• Decision Date: 08 March 1993
• Docket Number: No. S92P1144,S92P1144
• Parties: MOORE v. The STATE.
• Court: Georgia Supreme Court

Page 766

427 S.E.2d 766

263 Ga. 11

MOORE v. The STATE.

No. S92P1144.

Supreme Court of Georgia.

March 8, 1993.

James R. McKay, William H. Newton, III, Rome, for Moore.

Stephen F. Lanier, Dist. Atty., Rome, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Dept. of Law, Atlanta, for the State.

Peggy R. Katz, Staff Atty., Atlanta.

Lisa W. Pettit, Asst. Dist. Atty., Rome Judicial Circuit, Rome.

Joseph L. Chambers, Sr., Pros. Attys.' Council, Smyrna, Patsy Morris, Atlanta, for other party representation.

BENHAM, Justice.

Appellant was sentenced to death after being convicted by a Floyd County jury of murder and theft. ¹ The murder victim was a man with whom Moore was living temporarily. The State presented evidence that Moore used a hammer and sledgehammer to bludgeon the victim, then took four dollars from the victim's wallet, and stole the victim's car. Moore was arrested in Arizona three days later. The evidence was sufficient to authorize a rational trier of fact to find appellant guilty of murder and two counts of theft by taking. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

1. Shortly after his arrest in Arizona, appellant gave a statement to Arizona law enforcement officers. Three weeks later, appellant gave a lengthier and more-detailed statement to Georgia officers who had driven to Arizona, at Moore's behest, to talk to him. Appellant now contends the trial court erred when it did not suppress the pretrial custodial statements.

Although Arizona counsel apparently had been furnished to Moore before he gave his second statement, the record clearly supports the trial court's finding that Moore himself initiated the questioning by Georgia law officers and that he waived his Miranda rights, including his right not to proceed without counsel present. Ward v. State, 262 Ga. 293(9), 417 S.E.2d 130 (1992). Moore, however, contends that the Arizona law officers failed to obtain a clear Miranda waiver at his first interrogation and that not only should this statement have been suppressed because of the violation of the Miranda rules, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), but the second statement should also have been suppressed as a "fruit of the poisonous tree."

Although Moore was advised of his Miranda rights at his first interrogation and he stated that he understood them, it is a close question whether the record shows an affirmative waiver of those rights by Moore. See Code v. State, 234 Ga. 90(IV), 214 S.E.2d 873 (1975). However, even if the trial court erred by concluding that there had been a valid Miranda waiver, it does not follow that the second statement was so "tainted" by the first that it, too, should have been excluded. As pointed out in Oregon v. Elstad, 470 U.S. 298, 306, 105 S.Ct. 1285, 1292, 84 L.Ed.2d 222 (1985), the Miranda exclusionary rule "sweeps more broadly than the Fifth Amendment itself." A statement presumptively "compelled" under the prophylactic Miranda rules is not "inherently tainted" so long as it satisfies the "due process voluntariness test." Id., 470 U.S. at 307-08, 105 S.Ct. at 1292-93. While such a statement is itself inadmissible in the prosecution's case in chief, a subsequent statement is not automatically rendered inadmissible under the "fruit of the poisonous tree" doctrine.

Because Moore's first statement clearly satisfies the "due process voluntariness test," it does not "taint" the second statement delivered over three weeks later, and the trial court did not err by denying the motion to exclude the later statement. Therefore, we need not decide whether the trial court erred by concluding that there was a valid Miranda waiver at the first interrogation. We conclude that any error in the admission of the first statement was harmless beyond a reasonable doubt. Foster v. State, 258 Ga. 736(8), 374 S.E.2d 188 (1988).

2. Moore argues the prosecutor discriminated racially when he struck two of three black prospective jurors peremptorily. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The prosecutor explained at trial that he struck one juror because he had been arrested for aggravated assault and he had testified he was "against the death penalty" and had "strong reservations" about it. The prosecutor stated he had struck the other juror because he seemed less than certain he could impose a death sentence, and had answered his jury questionnaire untruthfully. The juror had stated in response to the questionnaire that neither he nor his family had been a victim of a crime; however, the prosecutor had prosecuted a case involving the juror's daughter as a victim of an aggravated assault.

Especially since the record shows that white jurors were struck for similar reasons, we conclude the prosecutor has successfully defended himself against appellant's Batson claim. Davis v. State, 263 Ga. 5(10), 426 S.E.2d 844 (1993); Ford v. State, 262 Ga. 558, 423 S.E.2d 245 (1992).

3. There was no error in the admission in evidence of color photographs or of clothing worn by the victim. Moses v. State, 245 Ga. 180(6), 263 S.E.2d 916 (1980); Todd v. State, 261 Ga. 766(9), 410 S.E.2d 725 (1991).

4. There was no error in the court's charge on felony murder. Barbour v. State, 21 Ga.App. 243(1), 94 S.E. 272 (1917). Cf. Zant v. Stephens, 250 Ga. 97(1), 297 S.E.2d 1 (1982).

5. Absent proof that Moore was denied effective assistance of counsel, attorney fees are not an issue on this appeal. Moon v. State, 258 Ga. 748(6), 375 S.E.2d 442 (1988).

6. There was no improper limitation of defense voir dire. Blankenship v. State, 258 Ga. 43(6), 365 S.E.2d 265 (1988).

7. Evidence was presented at the sentencing phase concerning statements Moore made to law officers returning him to Georgia from Arizona about an earlier motor vehicle theft, which, like the one on trial, involved an aggravated assault. Moore argues that since he was not charged with or convicted of aggravated assault in connection with the earlier auto theft, testimony about the assault should have been excluded.

The assault was a circumstance of the commission of the prior motor vehicle theft (for which Moore was convicted). Moreover, as the state argued at trial, Moore's statements about these offenses explain "how he can just block out something when he is doing a crime and not think about it afterward." Evidence about a defendant's attitudes concerning his crimes is admissible in aggravation. Fair v. State, 245 Ga. 868(4), 268 S.E.2d 316 (1980). Moore's statements were properly admitted. Frazier v. State, 257 Ga. 690(21), 362 S.E.2d 351 (1987).

8. At the sentencing phase of the trial, the state offered the testimony of the victim's mother, over Moore's objection, for the specific purpose of demonstrating the personal characteristics of the victim and the psychological, emotional and physical impact of the crime on the victim's family.

Moore contends this kind of testimony is not admissible in aggravation in a death-penalty case, citing Sermons v. State, 262 Ga. 286(1), 417 S.E.2d 144 (1992). We agree. Although Sermons was decided after Moore's case was tried, Sermons relied on what has been the law of this state at least since 1974 to exclude the kind of "victim-impact" testimony at issue here.

Defense complaints about alleged "victim-impact" testimony have been numerous ever since the U.S. Supreme Court seriously restricted the use of victim-impact evidence in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987) and South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989). As we explained, however, even before Booth and Gathers were overruled in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991):

[While] the prosecution may not introduce in aggravation a "victim impact statement" setting forth in detail the impact of the crime on the victim's family.... The fact that there is a victim, and facts about the victim properly developed during the course of the trial, are not so far outside the realm of "circumstances of the crime" that mere mention will always be problematic. [Moon v. State, 258 Ga. 748, 756(16), 375 S.E.2d 442 (1988) (quoting from Brooks v. Kemp, 762 F.2d 1383, 1409 (11th Cir.1985)).]

See also Holiday v. State, 258 Ga. 393(11(f)), 369 S.E.2d 241 (1988); Kinsman v. State, 259 Ga. 89(10), 376 S.E.2d 845 (1989); Potts v. State, 259 Ga. 96, 104(23), 376 S.E.2d 851 (1989). These cases are consistent with Sermons. In none of these cases did we approve the admission of victim-impact-specific testimony of the kind introduced in ...