Presnell v. State

• Decision Date: 16 July 2001
• Docket Number: No. S01P0590.,S01P0590.
• Citation: 274 Ga. 246,551 S.E.2d 723
• Parties: PRESNELL v. The STATE.
• Court: Georgia Supreme Court

551 S.E.2d 723

274 Ga. 246

PRESNELL v. The STATE.

No. S01P0590.

Supreme Court of Georgia.

July 16, 2001.

Reconsideration Denied September 19, 2001.

Marc D. Cella, Mitchell D. Durham, Marietta, Charlotta Norby, John R. Greco, Atlanta, for appellant.

Patrick H. Head, Dist. Atty., Maria B. Golick, Dana J. Norman, Russell J. Parker, Jack E. Mallard, Asst. Dist. Attys., Thurbert E. Baker, Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Beth A. Burton, Asst. Atty. Gen., for appellee. HUNSTEIN, Justice.

Virgil Delano Presnell, Jr. was convicted in 1976 of malice murder, kidnapping with bodily injury and other crimes and was sentenced to death for the murder. Presnell v. State, 241 Ga. 49, 243 S.E.2d 496 (1978), reversed and remanded as to sentence, Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978), opinion vacated in part and death sentence upheld, Presnell v. State, 243 Ga. 131, 252 S.E.2d 625 (1979). In 1992, Presnell's death sentence was vacated during Federal habeas corpus proceedings. Presnell v. Zant, 959 F.2d 1524 (11th Cir.1992). A re-sentencing trial was held in 1999 and the jury recommended a death sentence after finding beyond a reasonable doubt that Presnell committed the murder while engaged in the commission of kidnapping with bodily injury and that the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture and depravity of mind. OCGA § 17-10-30(b)(2), (7). Presnell appeals from the re-sentencing verdict.¹

1. The evidence adduced at trial authorized the jury to find that on April 23, 1976, Presnell attempted to abduct a ten-year-old girl in Clayton County as she was walking home from school on a wooded trail. Although he grabbed her and threatened her with a knife, the girl managed to break free and escape. On May 3, 1976, Presnell staked out an elementary school in Cobb County and observed a ten-year-old girl walking home on a wooded trail. He returned the following day and waited on the trail. In his car, he had a rug and a jar of lubricant. When the ten-year-old girl came walking down the trail with her eight-year-old friend, Lori Ann Smith, Presnell abducted both girls. He taped their mouths shut and threatened to kill them if they did not cooperate; he also said he had a gun. They got into Presnell's blue Plymouth Duster. While Presnell was driving, he forced the older girl to orally sodomize him and inserted his finger into her vagina. They drove to a secluded area and Presnell walked the children into the woods. He carried the rug and the jar of lubricant. He made both girls undress and he raped the older girl on the rug. Her vagina was torn during the rape and began bleeding. Presnell then said that he was going to take Lori Ann back to his car and that the older girl should wait for him. On the way back to the car, Lori Ann tried to run away, but Presnell caught her and forced her face underwater in a creek, drowning her. The medical examiner testified that there was water, sand and plant matter in her lungs and stomach and that it would have taken one to several minutes for her to die. She had bruises on her neck and a bruise on her back from where Presnell apparently placed his knee. Presnell returned to the older girl and again forced her to orally sodomize him. He then locked her in his car trunk and began driving, but a tire went flat so he dropped her off in another wooded area after forcing her to commit oral sodomy again. Although Presnell told her he would return, the older girl heard the sound of a nearby gas station and walked there. She later gave police a description of Presnell and his blue Duster and stated that his tire was flat. Shortly thereafter the police spotted Presnell changing a tire on his blue Duster at his apartment complex not far from where he dropped off the older girl. Presnell initially denied everything but later admitted that he knew the location of the missing girl and led the police to Lori Ann's body. He also confessed. A search of Presnell's bedroom uncovered a handgun and child pornography depicting young girls.

We find that the evidence presented at Presnell's re-sentencing trial was sufficient to enable any rational trier of fact to find the existence of the statutory aggravating circumstances beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also OCGA § 17-10-35(c)(2). Contrary to Presnell's contention, the evidence was sufficient to authorize the jury to find beyond a reasonable doubt the two subparts of the (b)(7) aggravating circumstance, torture and depravity of mind. Presnell stalked elementary school children; planned his crimes; abducted the victim, an eight-year-old child, as she was walking home from school; taped her mouth shut; threatened to kill her; took her to a remote area; made her strip naked; forced her to watch as he raped and forced other sex acts on her friend; chased her as she tried to escape; and held her head underwater where she struggled for several minutes before dying. See Hance v. State, 245 Ga. 856, 861(3), 268 S.E.2d 339 (1980) (psychological abuse inflicted by the defendant on the victim where it is shown to have resulted in severe mental anguish in anticipation of physical harm may amount to torture and depravity of mind); Thomas v. State, 245 Ga. 688(7), 266 S.E.2d 499 (1980) (the young age of the victim is relevant to a consideration of torture and depravity of mind).

2. Presnell challenged the composition of the Cobb County Board of Jury Commissioners, which authorized Presnell's jury pool, on the basis that the board was composed of only five members instead of the six members required by OCGA § 15-12-20. Presnell has failed to show reversible error in the five-member composition of the board. See Pope v. State, 256 Ga. 195(1)(c), 345 S.E.2d 831 (1986) (requiring a showing of such disregard of the essential and substantial provisions of OCGA § 15-12-20 as would vitiate the jury arrays); Dillard v. State, 177 Ga.App. 805(4), 341 S.E.2d 310 (1986) (provisions of statute are merely directory and were not intended to vest procedural rights in criminal defendants). Moreover, OCGA § 15-12-20(c) allows for each county to establish a lesser number of jury commissioners by local rule, and the trial court found that Cobb County had indeed promulgated such a rule requiring only five jury commissioners which, contrary to Presnell's contention, was not repealed or otherwise set aside.

3. Presnell complains that the trial court erroneously excused several prospective jurors for cause.

(a) Prospective jurors Brennan, Kidwell, Chun, Green, Fuller, and Allen were excused by the trial court due to their inability to vote for the death penalty as a possible sentence.

The proper standard for determining the disqualification of a prospective juror based upon his views on capital punishment "is whether the juror's views would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" [Cit.]

Greene v. State, 268 Ga. 47, 48, 485 S.E.2d 741 (1997). A juror's bias for or against the death penalty does not need to be proved with unmistakable clarity; the relevant inquiry on appeal is whether the trial court's finding that a prospective juror is disqualified is supported by the record as a whole. Id. at 48-49, 485 S.E.2d 741. Often the trial court must resolve equivocal and contradictory answers by the prospective juror in determining whether his views would substantially impair his ability to consider all possible sentences. Id. at 49, 485 S.E.2d 741. For this reason, an appellate court must pay deference to the trial court's finding that a particular prospective juror is qualified or not qualified to serve on the jury. Id. "Whether to strike a juror for cause is within the discretion of the trial court and the trial court's rulings are proper absent some manifest abuse of discretion. [Cit.]" Id. at 50, 485 S.E.2d 741.

Prospective jurors Brennan, Chun, Green, Fuller, and Allen unequivocally stated that they could never vote to impose a death sentence under any circumstances. The trial court correctly found that they were disqualified. Greene, supra, 268 Ga. at 48-50, 485 S.E.2d 741; Wainwright v. Witt, 469 U.S. 412(II), 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). Prospective juror Kidwell initially stated that he did not "weigh strongly either way," but he then stated that he would pick life if given the choice between life or death and that he was "swaying" toward a conscientious objection to the death penalty as voir dire progressed. He reiterated that he would always pick life, then stated that he could perhaps vote for the death penalty for Adolf Hitler, but immediately reconsidered and stated that he could never vote for the death penalty in any fact situation that he could think of. Although Presnell correctly argues that a prospective juror is not disqualified for merely leaning for or against the death penalty, Mize v. State, 269 Ga. 646(6)(d), 501 S.E.2d 219 (1998), the trial court was authorized to find from the totality of prospective juror Kidwell's responses that he would be substantially impaired in the performance of his duties as a juror because he could not vote for a death sentence. See Greene, supra at 48-50, 485 S.E.2d 741. The trial court did not abuse its discretion by excusing him. Id. at 50, 485 S.E.2d 741.

(b) Prospective juror Morton initially stated that she would be uncomfortable voting for death and was "probably" substantially impaired in her ability to vote for a death sentence. She then responded to a question about whether she could follow the judge's instructions by stating that she did not think she could put her beliefs aside in a death penalty situation and she said, "I don't know that I could follow [the instructions] exclusively." She said she would not always vote for life, but sh...