Presnell v. State, 32995

• Decision Date: 07 March 1978
• Docket Number: No. 32995,32995
• Citation: 241 Ga. 49,243 S.E.2d 496
• Parties: Virgil Delano PRESNELL, Jr. v. The STATE.
• Court: Georgia Supreme Court

Page 496

243 S.E.2d 496

241 Ga. 49

Virgil Delano PRESNELL, Jr. v. The STATE.

No. 32995.

Supreme Court of Georgia.

March 7, 1978.

Rehearing Denied March 28, 1978.

Adele W. Platt, Grubbs & Platt, William P. Holley, Marietta, for appellant.

Thomas J. Charron, Dist. Atty., Joseph L. Chambers, Asst. Dist. Atty., Marietta, Arthur K. Bolton, Atty. Gen., John W. Dunsmore, Jr., Asst. Atty. Gen., Atlanta, for appellee.

HILL, Justice.

This is a death case. Virgil Delano Presnell, Jr. was convicted by jury of four crimes against two girls, aged eight and ten years old. He was convicted of kidnapping and murdering the younger child, and of kidnapping with bodily injury and raping the older child. The jury found that the murder of the younger child was committed while the offender was engaged in the commission of the kidnapping with bodily injury of the older child, that the kidnapping with bodily injury of the older child was committed while the offender was engaged in the commission of the rape of that child, and that the rape of the older child was committed while the offender was engaged in the commission of the murder of the younger child. The jury imposed the penalty of death for the murder of the younger child, the kidnapping with bodily injury of the older child, and the rape of the older child. The defendant was sentenced to twenty years in prison for the kidnapping of the younger child.

There was evidence from which the jury was authorized to find the following facts:

The defendant was seen the day before the crimes by a lady who was picking up her children from school. He was returning to his blue car which was parked a short distance away from the school. At trial the defendant took the stand and explained that he had walked to the wooded area across from the school where he watched the little girls through binoculars while he played with himself. He testified that he had frequently visited adult bookstores and movies, and that he was reading a book entitled "He Warmed Her Young Body." He returned the next day, the day of the crimes, and saw two little girls walk from the school down a road beside the woods. The defendant was again seen by the same lady who had observed him the day before. The defendant testified that he had driven to the wooded area near the school where he again watched the little girls. He had brought a sleeping bag, a rug, a jar of lubricant and rope. He waited for the two children, one of whom he said reminded him of the girl in his book. The girls entered the wooded area on a path which led to their homes on the other side, a distance of less than five hundred yards. The older child was ten years old, the younger child was eight. The defendant grabbed them The mother of the younger child became concerned and drove to the school. Finding the lights out in her daughter's schoolroom, she walked the path through the wooded area. On the trail she found school books in which the older child's name had been written. She contacted the school principal, her husband, and the police. With neighbors and other volunteers the parents of the two children continued searching for them.

from behind, covered their mouths with his hand and told them he would use the gun in his pocket if they did not do as told. He tied them but then untied them and took them to his car and drove away with them.

After stopping for gasoline at a self-service station, the defendant drove to an unpopulated wooded area. He testified that on the way and while he was driving, he had the older child place his sex organ in her mouth. At the secluded area, he took a blue rug and jar of lubricant from the car trunk and went into the wooded area with the children. He had the children remove their clothing and caused the older child to lie on the rug. He testified that he then removed his clothes and penetrated the older child. When he stopped she was bleeding. Her vagina was torn and required surgery for repair. He let the children dress. The older child was slower, so he took the younger child back toward the car first.

Along the way the younger child ran away from the trail. He chased her across a narrow, shallow creek. In his taped confession he said, "Well, when we got down to the creek, I don't really know why, but I just pushed her down into the creek and held her there. Well, she was kicking and trying to get out but I just held her there until she stopped kicking. Well, I figured she was dead and for some reason I didn't want to leave her in the creek and that is the reason I carried her out of the creek and layed her down." At trial the defendant testified that he accidentally fell on top of the fallen younger child who was still gasping for air as he pulled her to the creek bank and departed. The autopsy indicated that the cause of her death was drowning.

The defendant returned to the older child and took her towards a nearby section of the creek where he again had her place his sex organ in her mouth. Next, the defendant put the older child in the trunk of his car.

After driving some distance, a tire on the defendant's car lost air pressure. He left the older child in another wooded area near a service station and drove to his mother's nearby residence to repair the tire. The child found help at the service station. She told police that the man was driving a blue car and had had tire trouble. The defendant was found by police installing a tire on his car.

During the course of his testimony at trial the defendant admitted acts showing commission of each of the crimes (except the murder) for which he was convicted. (In his confession to police he admitted facts showing murder.) He testified that because the children did not protest, he did not believe at the time of the crimes that his acts were wrong. The court's expert witness, who had supervised a court-ordered psychiatric examination of the defendant, testified that he had no reason to believe that the defendant did not know right from wrong.

The jury found the defendant guilty of kidnapping and murdering the younger child and of kidnapping with bodily injury and raping the older child. The prosecutor sought and obtained three death penalties. On appeal, the defendant urges forty-seven enumerations of error. In an effort to simplify the issues, we will deal first with matters favorable to the defendant.

1. The only evidence of bodily injury, to support the crime of the kidnapping with bodily injury of the older child, is the bodily injury which resulted from the rape of that child. Thus, the convictions for both kidnapping with bodily injury and forcible rape cannot be upheld. State v. Estevez, 232 Ga. 316(1), 206 S.E.2d 475 (1974). Because the jury was instructed as to statutory rape as well as forcible rape but was not instructed to show by their The death penalty for rape therefore is vacated. Compare Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). On remand, the court below is directed to enter sentence for the crime of statutory rape, not less than one nor more than 20 years. Code Ann. § 26-2018.

verdict which offense was found, the latter conviction cannot be upheld. Drake v. State, 239 Ga. 232(1), 236 S.E.2d 748 (1977); Reed v. State, 238 Ga. 457(7), 233 S.E.2d 369 (1977).

As a consequence of the foregoing, there is evidence of bodily injury, not a part of the crime of statutory rape, to support the crime of kidnapping with bodily injury.

The evidence supports convictions for the murder and kidnapping of the younger child and kidnapping with bodily injury and statutory rape of the older girl. The state's erroneous identification of the creek where the murder occurred, called Nickajack Creek in the indictment, is not a fatal variance. Dobbs v. State, 235 Ga. 800, 221 S.E.2d 576 (1976). The state's attempted reliance upon sodomy as constituting the bodily injury associated with the kidnapping of the older child is not ground for retrial.

2. The defendant contends that the trial court erred in denying his motion to change venue. He contends that the media publicized the crimes, attempted to link the defendant with similar crimes and publicized the results of his court-ordered psychiatric examination. He emphasizes that of forty-six jurors examined, thirty-nine had read of or discussed this case. After review of the transcript of the voir dire, we find that the trial court did not abuse its discretion in finding that the jury selection process revealed no degree of actual prejudice such as would render a fair trial impossible. Street v. State, 237 Ga. 307(1), 227 S.E.2d 750 (1976); Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975).

3. The defendant contends that the trial court erred in excusing a juror for cause. In Dobbs v. State, 236 Ga. 427, 224 S.E.2d 3 (1976), we examined the tests set forth in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), for determining whether a juror is " irrevocably committed, before trial has begun, to vote against the penalty of death . . . ." Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976). If a juror makes it unmistakably clear that any of these accurately describe his position then he may be excused for cause: "(1) that he would vote against the death penalty regardless of what transpires at trial, or (2) that his attitude on the death penalty would prevent him from impartially passing on the issue of guilt, or (3) that he could not subordinate his personal feelings on the death penalty to his oath as a juror to obey the law of the State as charged by the trial court." Dobbs v. State, supra, 236 Ga. at 431, 224 S.E.2d at 6. Witherspoon v. Illinois, supra, 391 U.S. at 522-523, n. 21, 88 S.Ct. 1770.

The juror whose excuse for cause is challenged was asked the general question "Are any of you conscientiously opposed to capital punishment?" When this juror responded "I am" the following occurred:

District Attorney: ". . . . Have...