Pope v. State, 42863

Citation345 S.E.2d 831,256 Ga. 195
Decision Date16 July 1986
Docket NumberNo. 42863,42863
PartiesPOPE v. The STATE.
CourtSupreme Court of Georgia

William A. Foster III, Dist. Atty., Buchanan, Jeffrey L. Ballew, Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., for State.

GREGORY, Justice.

This is a death penalty case. Appellant, John David Pope, was indicted in Haralson County for murder, armed robbery, kidnapping with bodily injury, kidnapping, and two counts of aggravated assault. A change of venue was granted and the case was tried before a jury in Cobb County. Pope was convicted on all counts and sentenced to death on the murder count. 1

Facts

Just before closing time in the evening of February 27, 1984, Pope entered a Reed Drugstore in Bremen, Georgia, armed with a pistol that his sister had purchased for him. The only other people in the drugstore at the time were 17-year-old Lisa Kirk and the pharmacist, Lee Webb. Drawing his pistol, Pope demanded and received cash from the front register and the register in the pharmacy area, and a quantity of drugs (Demerol, according to Pope). At Webb's suggestion, the store lights were turned off (since it was by now past closing time), and Pope put Webb and Kirk into a bathroom located in the stockroom in the rear of the store.

Webb and Kirk waited a few minutes and then Webb, thinking the robber had left, re-entered the store area. Kirk waited in the bathroom. She testified that "almost immediately ... I heard a struggle ... and I wanted to go out and help." She picked up a "metal ... roll-o-matic mop" and entered the store. Seeing Webb and the defendant engaged in a struggle for a gun, she began hitting the latter with the mop. She testified she hit him 10 to 20 times without appreciable effect. Webb lost his balance and fell, and was shot as he rose. Pope then turned and shot Kirk and left.

Webb died from a gunshot wound which passed through his jaw and into his neck. Kirk was shot in the neck, but survived.

Pope ran to a nearby convenience store, pulled out his pistol, and ordered the two occupants to lie on the floor. As they did so a customer drove up, and Pope went outside and forced the man to drive him to Marietta. Pope eventually was arrested in a stolen pickup truck in Phoenix, Arizona. A pistol found in the pickup was identified by ballistics examination as the murder weapon.

The evidence supports the conviction. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Enumerations of Error

1. Enumerations 1 through 4 and 37 question the selection of grand and traverse

jurors in Haralson and Cobb counties.

(a) Pope's contention that blacks and women have been discriminated against in the selection of grand jury forepersons in Haralson County is answered by Ingram v. State, 253 Ga. 622(1c), 323 S.E.2d 801 (1984).

(b) Pope's contention that blacks are unconstitutionally underrepresented on the Cobb County traverse jury list is answered by Cook v. State, 255 Ga. 565 (11), 340 S.E.2d 843 (1986), wherein we found the underrepresentation of blacks on the Cobb County jury lists, involving the same percentages shown here, to be constitutionally insignificant whether analyzed absolutely or comparatively.

As to the remaining groups allegedly underrepresented on the Haralson County grand jury list and on the Cobb County traverse jury list--young persons, single persons, persons having recently moved into the respective counties, the marginally educated, and the unemployed--we find that Pope has failed to establish as a matter of fact that in either county any of these groups are cognizable for purposes of jury selection. See Parks v. State, 254 Ga. 403(6b), 330 S.E.2d 686 (1985). 2

(c) Relying upon OCGA § 15-12-62, Pope contends the Cobb County traverse jury venire was improperly drawn and that his challenge to the array was erroneously overruled. Inasmuch as OCGA § 15-12-62 clearly applies to the selection of grand jurors, we find defendant's contention to be without merit. Nor do we find any violation of OCGA § 15-12-42, which applies to the selection of trial jurors.

Nor can we agree with Pope's further contention that this case must be reversed because at the time the venire was drawn there were only four jury commissioners in Cobb County. Although OCGA § 15-12-20 prescribes six-member boards of jury commissioners, it also provides that the court can by rule establish a board having less than six members. Pope contends that because no rule was promulgated, the board in Cobb County should have had six members. We note that Pope has not shown that there were fewer than six members on the board when the jury list was last revised (and the board is not involved in the drawing of individual venires from the list) but, in any event, we "do not find here such disregard of the essential and substantial provisions of the statute as would vitiate the arrays." Franklin v. State, 245 Ga. 141, 147(1), 263 S.E.2d 666 (1980).

(d) Drawing the venire was not a "critical stage" of the proceedings requiring Pope's presence.

2. Contrary to Pope's 5th enumeration, the trial court did not err by denying defendant's motion to sever the offenses. Gober v. State, 247 Ga. 652(1), 278 S.E.2d 386 (1981).

3. Prior to trial, Pope was held in the Douglas County Jail. On January 14, 1985, Pope was in an area known as "Cell Block 2 Max." At about 5:00 p.m. that

day, the chief jailer noticed contraband 3 in the cell next to the one Pope was in, and also that something appeared to be wrong with the ceiling grate. Pope had made prior escape attempts and the jailer had information that he and another inmate were planning to try again. The jailer ordered a search of the cell block. Everything was removed from the cell block and searched. The prisoners were given new mattresses and linen for the night and the next day those items which the prisoners were entitled to have in their cells were returned to them.

The search turned up a sawblade, a flashlight, and some "buck" (homemade alcohol), none of which was introduced in evidence at trial.

Pope testified, "I got back all of the motions that I had and all the letters that [my attorneys] had sent me. But I did not receive--get the Unified Appeal Act [sic] back that the Court had issued me. I did not get my personal things that I wrote down [at the request of my attorneys]." When asked on cross-examination whether everything he had lost could be reproduced, Pope answered, "I guess so."

The chief jailer testified that the Douglas County Jail holds prisoners for other counties and for the U.S. Marshall Service. When he learned that some of Pope's effects were missing after the search, he made efforts to locate them, but, he testified, "You have to realize we are about like a train station and we have usually 50 persons moving in our book-ins a day ... We have a tremendous [number] of inmates in and out, and a tremendous amount of property we handle ... There has been an occasion when there's been property lost. .... "

In his 6th enumeration, Pope argues that the personnel at the Douglas County Jail attempted to prejudice his right to a fair trial and that their misconduct violated various of his constitutional rights.

We do not agree that the search was improper. Jail personnel are entitled to maintain jail security, and to take reasonable steps to prevent prisoners from escaping.

The loss of some of Pope's notes was unfortunate, but the record simply does not support Pope's contention that the loss was intentional, and, moreover, it is clear from Pope's own testimony that he was not prejudiced by the loss.

Finally, the record does not support the accusation that the Douglas County sheriff and the jail personnel were fabricating stories about Pope's escape attempts.

4. In his 7th, 8th and 9th enumerations of error, Pope argues that the court erred by changing venue to Cobb County, and that the case was tried in a "circus" atmosphere.

Venue was changed from Haralson County at Pope's request, after it became obvious during an attempted voir dire proceeding that prospective jurors in Haralson County had been exposed to extensive pre-trial publicity. It is clear from the subsequent voir dire proceedings in Cobb County that prospective jurors there had not been exposed to prejudicial levels of pre-trial publicity. See Kesler v. State, 249 Ga. 462, 471-72, 291 S.E.2d 497 (1982). The court did not err by finding that Pope could get a fair trial in Cobb County. Devier v. State, 253 Ga. 604(4), 323 S.E.2d 150 (1984).

We find no merit to Pope's accusation that "the bailiffs rendered the courtroom atmosphere a circus, by frisking defense counsel for weapons, [and] the Court took no action." What the record shows is that immediately before voir dire began in Haralson County, defense attorney Clive Stafford-Smith orally supplemented the motion for change of venue by pointing out that OCGA § 17-7-150(b) requires a change of venue where there is a "probability or danger of violence." He stated: "Now they've got this gun thing out here to check for weapons. And upon my request, they told me that was because there was a threat to the defendant ... [W]e're adding this to our request for change of venue."

It is not at all clear from the foregoing that defense counsel were frisked, but, in any event, the court did take action, since venue, ultimately, was changed and the case was not tried in Haralson County. Moreover, the actions of the bailiffs during the ultimately aborted voir dire proceedings in Haralson County plainly had no effect on the atmosphere of the trial, which was held in Cobb County.

Pope makes other factual allegations that equally lack record support. We find no merit to any of them.

5. On March 19, 1985, some three weeks after the crime, after Pope had been identified as a...

To continue reading

Request your trial
153 cases
  • State v. Santiago, No. 17413.
    • United States
    • Supreme Court of Connecticut
    • June 12, 2012
    ......Esposito, supra, 192 Conn. at 179–80, 471 A.2d 949; are inapposite in this context.          112. In Stripling v. State, supra, 261 Ga. at 6, 401 S.E.2d 500, the Supreme Court of Georgia followed Pope v. State, 256 Ga. 195, 345 S.E.2d 831 (1986), cert. denied, 484 U.S. 873, 108 S.Ct. 207, 98 L.Ed.2d 159 (1987), overruled on other grounds by Nash v. State, 271 Ga. 281, 519 S.E.2d 893 (1999). In Pope v. State, supra, at 212, 345 S.E.2d 831, the court considered a capital defendant's claim ......
  • Willis v. State
    • United States
    • Supreme Court of Georgia
    • October 22, 2018
    ...262 Ga. 694, 696 (2), 424 S.E.2d 782 (1993) ; Hayes v. State, 261 Ga. 439, 441 (2), 405 S.E.2d 660 (1991) ; Pope v. State, 256 Ga. 195, 202 (7) (e), 345 S.E.2d 831 (1986).The following cases from the Court of Appeals are also overruled or disapproved to the extent that they relied on or ref......
  • King v. Lynaugh
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 27, 1988
    ...F.2d 271 (5th Cir. Unit A 1981).5 Anderson, 743 F.2d at 308; Hickerson v. Maggio, 691 F.2d 792, 794-95 (5th Cir.1982).6 Pope v. State, 256 Ga. 195, 345 S.E.2d 831 (1986).7 Paduano & Stafford Smith, Deathly Errors: Juror Misperceptions Concerning Parole in the Imposition of the Death Penalty......
  • Smith v. State
    • United States
    • Supreme Court of Georgia
    • November 9, 1998
    ...determined that evidence on the nature of death by electrocution is inadmissible in the sentencing phase. Id.; Pope v. State, 256 Ga. 195, 203(9), 345 S.E.2d 831 (1986). 17. Smith's claim that execution by electrocution constitutes cruel and unusual punishment under the United States and Ge......
  • Request a trial to view additional results
4 books & journal articles
  • Death Penalty Law - Michael Mears
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 54-1, September 2002
    • Invalid date
    ...284. Id. 285. 274 Ga. at 452, 553 S.E.2d at 577 (citing Mize v. State, 269 Ga. 646, 501 S.E.2d 219 (1998); Pope v. State, 256 Ga. 196, 345 S.E.2d 831 (1986)). 286. O.C.G.A. Sec. 17-10-30(b)(7) (1997). 287. 274 Ga. at 649, 555 S.E.2d at 449. 288. 275 Ga. at 23, 560 S.E.2d at 677. 289. Id. 29......
  • Criminal Law - Frank C. Mills, Iii
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 46-1, September 1994
    • Invalid date
    ...of mind, course of conduct, etc.). 530. 209 Ga. App. 572, 434 S.E.2d 132 (1993). 531. Id. at 573, 434 S.E.2d at 133. 532. Pope v. State, 256 Ga. 195, 345 S.E.2d 831 (1986); Gadson v. State, 198 Ga. App. 315, 398 S.E.2d 409 (1990). 533. Davis v. State, 209 Ga. App. 572, 434 S.E.2d 132 (1993)......
  • Death Penalty Law - Holly Geerdes and David Lawless
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 56-1, September 2004
    • Invalid date
    ...277 Ga. 403, 590 S.E.2d 122 (2003). 20. See Brady v. Maryland, 373 U.S. 83 (1983). 21. Stripling, 277 Ga. at 403, 590 S.E.2d at 124. 22. 256 Ga. 195, 345 S.E.2d 831 (1986) (holding that defendant's need to uncover and present mitigating evidence trumps policy reasons for preserving the secr......
  • Criminal Law - Franklin J. Hogue and Laura D. Hogue
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 52-1, September 2000
    • Invalid date
    ...Fleming. Id. at 606, 527 S.E.2d at 256. 307. A felony conviction is valid if it was made pursuant to a voluntary waiver of rights. 308. 256 Ga. 195, 345 S.E.2d 831 (1986). 309. Id. at 209, 345 S.E.2d at 844. 310. Boykin v. Alabama, 395 U.S. 238 (1969). 311. 506 U.S. 20 (1992). 312. Id. at 2......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT