Pace v. State

• Decision Date: 03 December 1999
• Docket Number: No. S99P0647.,S99P0647.
• Citation: Pace v. State, 524 S.E.2d 490, 271 Ga. 829 (Ga. 1999)
• Parties: PACE v. The STATE.
• Court: Georgia Supreme Court

524 S.E.2d 490

271 Ga. 829

PACE v. The STATE.

No. S99P0647.

Supreme Court of Georgia.

December 3, 1999.

Reconsideration Denied December 20, 1999.

Michael Mears, Charlotta Norby, Atlanta, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Peggy R. Katz, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Allison B. Goldberg, Assistant Attorney General, for appellee. HINES, Justice.

A jury convicted Lyndon Fitzgerald Pace of four counts of malice murder, four counts of felony murder, four counts of rape, and two counts of aggravated sodomy. The jury recommended a death sentence for each malice murder conviction after finding beyond a reasonable doubt the existence of 19 statutory aggravating circumstances. OCGA § 17-10-30(b)(2), (7). Pace appeals and we affirm.¹

1. The evidence adduced at trial shows that four women were murdered in their Atlanta homes in 1988 and 1989. On August 28, 1988, a roommate found the nude body of 86-year-old Lula Bell McAfee lying face-down on her bed. She had been sexually assaulted and strangled to death with a strip of cloth. On September 10, 1988, Mattie Mae McLendon, 78 years old, was found lying dead on her bed covered by a sheet. She had been sexually assaulted and strangled to death. No ligature was found. On February 4, 1989, the police discovered the body of 79-year-old Johnnie Mae Martin lying on her bed nude from the waist down. She had been sexually assaulted and strangled to death with a shoelace. On March 4, 1989, the brother-in-law of 42-year-old Annie Kate Britt found her body lying on her bed. She had been sexually assaulted and strangled to death with a sock that was still knotted around her neck.

The police determined that the killer entered each victim's home by climbing through a window. Each attack occurred in the early morning hours. Vaginal lacerations and the presence of semen indicated that the victims had been raped and two of the women had been anally sodomized. The medical examiner removed spermatozoa from each victim and sent the samples to the FBI lab. DNA testing revealed the same DNA profile for each sperm sample, indicating a common perpetrator.

At 3:00 a.m. on September 24, 1992, 69-year-old Sarah Grogan confronted an intruder in her kitchen. She managed to obtain her gun and fire a shot which forced him to flee. The police discovered that the intruder entered Ms. Grogan's house by climbing through a window. A crime scene technician lifted fingerprints from Ms. Grogan's kitchen. At 2:00 a.m. on September 30, 1992, Susie Sublett, an elderly woman who lived alone, awoke to discover an intruder taking money from her purse in her bedroom. Although the intruder was armed and threatened to "blow [her] brains out," she fought with him and managed to flee to a neighbor's house. The neighbor called the police. The police determined that the intruder entered Ms. Sublett's house by climbing through a window. A crime scene technician lifted fingerprints from Ms. Sublett's window screen.

The fingerprints from the Sublett and Grogan crime scenes matched Pace's fingerprints, which were already on file with the police. Pace was arrested and agreed to give hair and blood samples to the police. Pace's pubic hair was consistent with a pubic hair found on the sweat pants Annie Kate Britt wore on the night she was murdered, and with a pubic hair found on a sheet near Johnnie Mae Martin's body. A DNA expert also determined that Pace's DNA profile matched the DNA profile taken from the sperm in the McAfee, Martin, McLendon, and Britt murders. The expert testified that the probability of a coincidental match of this DNA profile is one in 500 million in the McAfee, Martin, and Britt cases, and one in 150 million in the McLendon case.²

The evidence was sufficient to enable a rational trier of fact to find beyond a reasonable doubt proof of Pace's guilt of four counts of malice murder, four counts of felony murder, four counts of rape, and two counts of aggravated sodomy. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The evidence was also sufficient to authorize the jury to find beyond a reasonable doubt the 19 statutory aggravating circumstances which support his death sentences for the murders. Jackson v. Virginia, supra; OCGA § 17-10-35(c)(2).

2. Pace was arrested for the crimes against Ms. Sublett on October 2, 1992. At that time, the police were investigating the September 1992 murder of an elderly woman named Mary Hudson that they believed might be connected to the murders of McAfee, McLendon, Martin, and Britt. Because of the similarities between the Sublett robbery and the Hudson murder, the police sought Pace's consent to obtain hair and blood samples. The consent form that Pace signed states, in part: "I fully understand that these hair and bodily fluid samples are to be used against me in a court of law and I am in agreement to give these hair samples for further use in this particular investigation." The form further stated that Pace was a suspect in a murder which occurred on September 17 and the "name of the murder victim in this case is Mary Hudson." There was no mention of the other four murders. The FBI and GBI crime labs were subsequently unable to match Pace's DNA or hair to any evidence from the Hudson murder, but were able to obtain matches with evidence from the McAfee, McLendon, Martin, and Britt cases.

Pace claims that he did not voluntarily consent to the drawing of his blood and the collection of his hair for use in the investigation of the four murders for which he was convicted. He argues that the police exceeded the bounds of his consent by using his blood and hair in investigations of murders other than the Hudson murder, and that the police obtained his consent through deceit because he believed that his hair and blood would be used only in the Hudson investigation. See State v. Long, 232 Ga.App. 445, 502 S.E.2d 298 (1998); State v. Jewell, 228 Ga.App. 825, 492 S.E.2d 706 (1997); State v. Gerace, 210 Ga.App. 874, 437 S.E.2d 862 (1993); Beasley v. State, 204 Ga.App. 214(1), 419 S.E.2d 92 (1992). After a suppression hearing, the trial court found that Pace's consent was voluntary, and we agree with the trial court. Most of the cases cited by Pace in support of his argument involve the giving of consent under the implied consent statute to test blood for the presence of alcohol or drugs while operating a motor vehicle. See OCGA § 40-5-55; Long, supra (defendant charged with possession of cocaine after consenting to blood test upon receiving implied consent warning); Gerace, supra (defendant charged with rape and aggravated sodomy based on DNA obtained from blood sample drawn after consent under implied consent statute). The implied consent warning specifically limits the purpose of the testing to a determination of whether the driver is under the influence of alcohol or drugs. OCGA § 40-5-67.1.

Pace's situation is distinguishable from an implied consent case. See Bickley v. State, 227 Ga.App. 413(1)(b), 489 S.E.2d 167 (1997); Gadson v. State, 223 Ga.App. 342(4), 477 S.E.2d 598 (1996). The consent form signed by Pace states that his blood and hair will be used against him in a court of law and that he was a suspect in the Hudson murder. However, unlike an implied consent warning, the form does not limit the use of the blood or hair to only the Hudson murder investigation or to any particular purpose, and there is no evidence that Pace placed any limits on the scope of his consent. See Gadson, supra. Compare Beasley, 204 Ga.App. at 214-217(1), 419 S.E.2d 92 (defendant's consent involuntary because he was told his urine sample would be used to determine bond eligibility, not for criminal prosecution). The police were not required to explain to Pace that his blood or hair could be used in prosecutions involving other victims, or that he had a right to refuse consent. Gadson, supra; Woodruff v. State, 233 Ga. 840(3), 213 S.E.2d 689 (1975). Further, like a fingerprint, DNA remains the same no matter how many times blood is drawn and tested and a DNA profile can be used to inculpate or exculpate suspects in other investigations without additional invasive procedures. It would not be reasonable to require law enforcement personnel to obtain additional consent or another search warrant every time a validly-obtained DNA profile is used for comparison in another investigation. See Bickley, supra.

Additional evidence at the suppression hearing shows that when Pace gave his consent he was 28 years old, was advised of and waived his rights, was not coerced or threatened, was not under the influence of drugs or alcohol, and was not handcuffed. The evidence does not support Pace's claim that there was deceit involved in obtaining his consent. Upon viewing the totality of the circumstances, we conclude that the trial court did not err in finding Pace's consent to be voluntary. See Raulerson v. State, 268 Ga. 623(2)(a), 491 S.E.2d 791 (1997). In addition, Pace was arrested pursuant to a valid arrest warrant for the armed robbery of Ms. Sublett. We find no error with the trial court's rulings regarding Pace's consent to the police obtaining samples of his hair and blood.

3. The trial court did not abuse its discretion by denying Pace's motion to sever the murder counts.

Two or more offenses may be joined in one charge when the offenses are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan and where it would be almost impossible to present to a jury evidence of one of the crimes without permitting evidence of the other.

Bright v. State, 265 Ga. 265(7), 455 S.E.2d 37 (1995). See also Williams v. State, 251 Ga. 749(16), 312 S.E.2d 40 (1983); Dingler v. State, 233 Ga. 462, 211 S.E.2d 752 (1975). Even if severed, evidence of all four...