Patrick v. State

• Decision Date: 13 March 1980
• Docket Number: No. 35200,35200
• Parties: PATRICK v. The STATE.
• Court: Georgia Supreme Court

Page 553

265 S.E.2d 553

245 Ga. 417

PATRICK v. The STATE.

No. 35200.

Supreme Court of Georgia.

Argued Sept. 12, 1979.

Decided Jan. 24, 1980.

Rehearing Denied March 13, 1980.

Deryl D. Dantzler, Macon, for appellant.

William J. Smith, Dist. Atty., Doug Pullen, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Daryl A. Robinson, Asst. Atty. Gen., for appellee.

BOWLES, Justice.

James Richard Patrick was indicted by the grand jury of Muscogee County for the January 10, 1977 murder of Gertruda "Truly" Johnson. Following a jury trial, Patrick was found guilty. Upon the jury's finding of the statutory aggravating circumstances of kidnapping and aggravated battery to the victim, Patrick was sentenced to death. The case is here on direct appeal and for review of the death sentence.

There was evidence presented from which the jury was authorized to find the following facts: On the afternoon of January 10, 1977, Truly Johnson, a 15-year-old high school student, rode with a friend to a local convenience store to buy a package of cigarettes. This was the last time Truly was seen alive. The appellant owned and operated a record shop across the street from the convenience store.

On January 11, 1977, appellant asked Cathy Granger to go into the woods with him to walk the dog. Appellant's wife and Cathy Granger's husband were cousins. The two couples lived in appellant's house. Appellant and Mrs. Granger went on their walk in the woods behind appellant's store, near the area where Truly's body was subsequently found. They stopped several times to shoot birds and targets with a pellet gun.

Upon returning to appellant's record shop, Mrs. Granger realized that she was missing her wallet and car keys. She returned to the woods to look for them. While she was searching, she heard appellant scream and call out to her because he had uncovered a body in the clearing.

Appellant gave varying accounts of how he found the body. He told Mrs. Granger that his dog had found the body and was tugging on a portion of the clothes. He told James Bishop that the dog was tugging on the pants leg. Two days later, in making a statement to the police, appellant said he saw a bit of clothing under a pile of leaves and he then went over and uncovered the body. This was also appellant's story at trial.

After telling Mrs. Granger about his discovery, Patrick and Mrs. Granger ran to a nearby barbeque restaurant operated by Cleo Chevalier and notified the police. Appellant, Mrs. Granger, Chevalier and James Bishop, a local shopkeeper, returned to the clearing where the body was found. Both Bishop and Chevalier testified that when they arrived, the body was completely covered with leaves.

Police investigation revealed that at the time her body was found, Truly was wearing both shoes but only one sock. The other sock was found underneath the body. She was naked from the waist up except for a jacket. Her sweater had been used to tie her hands to a tree. Her brassiere was found tied around a tree next to the body. Her panties were on inside out, with leaves inside.

Dr. Joe M. Webber, Medical Examiner for Muscogee County testified that the cause of death was cerebral shock brought on by any one of three blows to the victim's head. The body suffered extensive trauma to the right side of the head, neck and upper torso, shoulders and chest, with multiple lacerations on the face. There was also internal injuries to the groin area. The injuries were so extensive that Truly's father did not recognize her from the exhibits displaying her as she was found.

On February 1, 1979, appellant and a female accomplice kidnapped Kelly Leigh Maley for ransom. Kelly was a thirteen-year-old junior high school student, picked up on her way home from school. Kelly was taken to an apartment where she was held until the ransom was paid. During this time, appellant told Kelly that he had kidnapped and killed Truly Johnson. At trial, appellant admitted that he had told Kelly this, but that he did so only trying to scare her. Appellant also told Kelly he would kill her if her parents did not pay the ransom. Appellant was convicted for the kidnapping of Kelly Maley.

1. In his first enumeration of error, appellant complains that the trial court erred in failing to excuse for cause Jurors Bickerstaff and Laudermilk who testified on voir dire that they would not consider a life sentence in the event of a conviction.

Juror Bickerstaff was directly asked if, following a verdict of guilty, he would consider both the death penalty and life imprisonment.

"Q. . . . could you if you felt that it was a just verdict based on the law as given you in charge by the court, and the evidence that had been produced to you, could you vote to impose the death penalty?

"A. Yes, sir.

"Q. And contrary-wise, if you felt the appropriate punishment was life in the penitentiary, could you vote to impose a life penalty on him?

"A. Right."

Juror Laudermilk answered the same two questions in the same way, indicating that he would consider both life imprisonment and the death penalty should the defendant be found guilty of murder.

Having examined the entire voir dire examination of the two prospective jurors we conclude that no error was committed by the trial court in failing to excuse the two jurors for cause.

2. Appellant complains that the trial court erred in preventing voir dire of a publicity-exposed juror concerning his prejudgment of issues in this case.

The juror was asked about any news coverage he had seen or heard about in appellant's case and the influence it had had on him in connecting appellant with the death of Truly Johnson. He answered that he knew of no connection between appellant and the case other than the accusation.

Thereafter, appellant's counsel asked, "(i)n connection with the circumstances that you have read and heard about in this case, can you tell me what your opinion of the appropriateness or inappropriateness of the death penalty and the State's request therefor?" In sustaining the state's objection, the court ruled the question was impermissible because it called on the juror to prejudge the case. We agree.

While Code Ann. § 59-705 permits broad questioning of a potential juror, it does not allow counsel for either side to ask the juror to guess what his verdict will be before any evidence has been presented. The question asked was designed to have the juror prejudge the case based on hearsay. The refusal to allow such a question was not an abuse of the court's discretion. Pinion v. State, 225 Ga. 36(4), 165 S.E.2d 708 (1969).

3. Appellant complains that the trial court erred in preventing voir dire of publicity-exposed jurors concerning their perceptions of the biases of the community in connection with the case. During voir dire appellant's counsel was prevented from asking jurors who had been exposed to pretrial publicity, "Do you have an opinion as to what most other people think about whether or not the defendant in this case is guilty?"

We find no error in the trial court's refusal to allow the question. Pinion v. State, supra. Extensive voir dire was allowed as it pertained to the juror's own personal feelings and biases. However, we find no provision of Code Ann. § 59-705 which permits questioning as to other peoples' feelings. Such responses would be merely hearsay, and highly unreliable. There was no abuse of the trial court's discretion.

4. Appellant complains that the trial court erred by commenting adversely on his credibility during the state's cross examination of him in violation of Code Ann. § 81-1104. In reviewing the transcript, we find no error.

Appellant was being questioned as to whether he had maintained innocence to the kidnapping of Kelly Maley, after entering a plea of guilty to the offense. Appellant's counsel objected to the question as being irrelevant. In ruling on the objection, the trial judge said, "I think that goes to his credibility . . ." Appellant concedes in his brief that it would not have been error for the judge to state, "It goes to his credibility."

A mere statement that evidence is being admitted for purpose of impeachment does not constitute expression of an opinion by the court that the witness would thereby be impeached. Beckworth v. State, 183 Ga. 871(5), 190 S.E. 184 (1937). By prefacing his remark by the words "I think," the trial judge did not change the ruling on the objection to an opinion as to appellant's credibility.

5. Appellant complains that the court erred in sustaining an objection to testimony by the defendant concerning his emotions. Appellant was asked on direct examination how he was feeling at that moment. He testified that he was scared. Appellant's counsel then asked him to elaborate on that answer by asking him if he was nervous. State's counsel objected and the trial court sustained the objection, ruling that the jury could gather this information from watching appellant's demeanor on the stand.

Later during direct-examination, appellant was asked how he felt when he saw the body of Truly Johnson uncovered. The state objected, and the trial court ruled that appellant could testify as to what he did or said, but not as to his emotions at the time. Appellant was allowed to testify that he was not faking any emotions on January 10 and 11, 1977, and that his responses were natural and not contrived.

We find no error in excluding appellant's testimony as to his emotions. Appellant failed to show that the evidence was relevant to the issues in the case. On appeal, appellant has cited no law, nor do we know of any, which would have permitted a description of emotions by the witness while testifying.

6. Appellant complains that the evidence was insufficient as a matter of law to support a verdict of guilty. We find, however, that there was sufficient evidence to justify a rational trier of fact to find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99...