Pulliam v. State

• Decision Date: 24 February 1976
• Docket Number: No. 30594,30594
• Court: Georgia Supreme Court
• Parties: Jessie Lewis PULLIAM v. The STATE.

Page 8

224 S.E.2d 8

236 Ga. 460

Jessie Lewis PULLIAM v. The STATE.

No. 30594.

Supreme Court of Georgia.

Feb. 24, 1976.

Rehearing Denied March 11, 1976.

Certiorari Denied July 6, 1976. See 96 S.Ct. 3225.

[236 Ga. 467] Allison W. Davidson, Columbus, for appellant.

William F. Lee, Jr., Dist. Atty., Newnan, Arthur K. Bolton, Atty. Gen., B. Dean Grindle, Jr., Asst. Atty. Gen., Atlanta, for appellee.

INGRAM, Justice.

Appellant was convicted by a jury in the Superior Court of Troup County for the offenses of murder and armed robbery. He received a death sentence for the crime of murder and a sentence of life imprisonment for the armed robbery. This appeal considers appellant's enumerations of error and a review of the death sentence imposed in this case, as the trial court overruled appellant's motion for a new trial.

Summary of the Evidence

The state presented evidence from which the jury could find the following:

On Sunday, March 9, 1975, the appellant, Jessie Lewis Pulliam, and Willie Joe Harris 'talked about calling a cab and we was going to shoot him and rob him.' About dark, the appellant called a Wadkins Cab. James L. Johnson, a driver for Wadkins Cab Company, responded to the call and picked up appellant and his companion, Willie Joe Harris, at Givens' Store in Lanette, Alabama. 'We told him to take us to the club across I-85. This was where we planned to shoot and rob him. The cab stopped on Cherry Drive and picked up another man and carried him to the water works in West Point. Then he carried us to the (Elks) club. When we got there, the club was closed. Then we told him to take us to the project in West Point, over in Pine Ridge. When the cab got to the Coca-Cola Plant, Willie Joe shook his head and I thought he couldn't do it and Willie Joe handed me the gun. When we got up by the school, that's when I fired. I remember firing twice. Willie Joe got out of the car and went around on the other side and picked the man up and I was holding him and Willie Joe went in his pockets and got Harris took the money that the cab driver Johnson had on his person and gave appellant two five-dollar bills and some change. The victim was found slumped over in the front seat of his cab in West Point, Troup County, Georgia, by a passerby and the police were alerted. The victim died several days later as a result of the gunshot wound made by a bullet which entered the victim's head behind his ear on the left side.

the money.' (From appellant's written confession).

Appellant was arrested a few hours after the cab driver, James Johnson, was shot. At the time of his arrest, the pistol from which the fatal shot was fired fell out of appellant's trousers. Appellant presented evidence that during his incarceration he had 'fits.' The defendant testified that Willie Joe Harris gave him some money and the pistol and told him to stick the pistol in his pants. He testified the gun belonged to his mother but that Willie Joe Harris had stolen it. Appellant also testified that he has had 'fits' (epileptic seizures) since age seven.

Sufficiency of Evidence

In his first enumeration of error, appellant urges the general grounds, to wit, that the verdict is contrary to law and the evidence, and is strongly against the weight of the evidence.

In support of this contention, appellant argues that the evidence was circumstantial and does not exclude every reasonable hypothesis except guilt. He relies on Diggs v. State, 90 Ga.App. 853, 84 S.E.2d 611 (1954); Pitts v. State, 17 Ga.App. 836, 88 S.E. 712 (1916); and Wheeler v. State, 228 Ga. 402, 185 S.E.2d 900 (1971). The facts of these cases and the present case are significantly different. The evidence is not all circumstantial in this case. When arrested, appellant had on his person a pistol. The evidence indicates a bullet fired from that pistol caused the death of the cab driver. In a pre-trial statement, appellant confessed to shooting the victim and holding him up while his partner in crime, Willie Joe Harris, went through the victim's pockets and took his money which he divided with appellant. In our opinion, the evidence is legally sufficient to support the jury's findings of guilt. See Lindsey v. State, 234 Ga. 874, 876, 218 S.E.2d 585 (1975).

Continuance

Appellant urges in his second enumeration of error that the trial court erred in not granting his motion for a continuance of the case for trial to the November, 1975, Term. The trial took place in August, 1975.

Appellant was arrested on March 10, 1975, and arraigned on May 9, 1975. Appellant's counsel was retained in June prior to the death of the former district attorney, the Honorable Eldridge W. Fleming, on June 13, 1975. Prior to that time, but during June, appellant's counsel contacted Mr. Fleming about the possibility of having his client examined by a psychiatrist at Central State Hospital, in Hardwicke, Georgia. District Attorney Fleming indicated that he would not oppose a motion for such an examination if Dr. Majors, a local physician, recommended an examination at Central State Hospital. Appellant's counsel acknowledged that the knew Dr. Majors had examined appellant but contends he never received a written report by Dr. Majors which did not recommed an examination of appellant at Central State Hospital.

The present district attorney, who was appointed June 19, 1975, and tried the case on behalf of the state, reported that Dr. Majors did not recommend sending appellant to Central State Hospital and that appellant's counsel had not contacted him about a continuance. Appellant did not subpoena Dr. Majors to testify nor did he make any timely effort to seek private consultation. On August 8, 1975, defense counsel sought a continuance on the ground that he had not had an opportunity to have appellant examined by a psychiatrist. Appellant offered no evidence to support his assertion that 'we had a question here as to whether or not the defendant is capable of standing trial at this time.'

A motion for continuance, pursuant to Code Ann. § 27-2002, is addressed to

the sound discretion of the trial court. We find no abuse of discretion by the trial court that would justify our reversal of the trial court's judgment. See Domingo v. State, 211 Ga. 691, 88 S.E.2d 1 (1955); Harris v. State, 221 Ga. 327, 85 S.E.2d 770 (1955); and, Griffin v. State, 208 Ga. 746, 69 S.E.2d 192 (1952).

Juror Selection

Appellant insists the trial court erred in excluding potential jurors who had conscientious objections to capital punishment.

In our examination of the voir dire transcript, we find that four prospective jurors were excused for cause based on scruples against imposition of the death penalty. Each juror excused had expressed unalterable opposition to capital punishment under all circumstances.

The opposition of the excused jurors comports with the standards of jury selection applicable in death cases set forth in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1967); Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1968); and, Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1969). See, also, Owens v. State, 233 Ga. 869, 871, 214 S.E.2d 173 (1975); Ross v. State, 233 Ga. 361, 211 S.E.2d 356 (1974); Simmons v. State, 226 Ga. 110(12), 172 S.E.2d 680 (1970); and, Dobbs v. State, 236 Ga. 427, 224 S.E.2d 3 (1976). We find no violation of the Witherspoon standards in this case.

Admissiblity of Confession

Appellant argues, in enumeration of error No. 4 that, 'The court erred in admitting into evidence the alleged confession of the defendant.' Prior to admission of the appellant's pre-trial confession the trial court held a hearing out of the presence of the jury in compliance with Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). The evidence indicated that appellant was arrested on a warrant, unchallenged by appellant, for armed robbery and attempted murder. At the time of his arrest, on March 10, 1975, appellant was advised of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

In the Jackson v. Denno hearing, Lt. Carmack of the West Point, Georgia, Police Department, testified that he had a conversation with appellant on March 19, 1975, in which he again advised appellant of his Miranda rights. Lt. Carmack testified that no promise of reward was offered to appellant to induce a statement and no threat to harm appellant was made if he did not make a statement. Appellant voluntarily confessed to Lt. Carmack, and his confession was then reduced to writing and signed by appellant. On the other hand, appellant testified that he was tricked into making the statement and that he was never informed by Lt. Carmack of his right to remain silent and of his right to counsel. Later, before the jury, there was testimony of a third warning given to appellant at the jaile on the morning of March 10, 1976.

These warnings fully complied with Miranda v. Arizona, supra, and the renewed warning to appellant on the 19th of March would have been sufficient in the absence of the earlier warnings on the 9th and 10th of March. See Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). The trial court resolved the conflict in the evidence in favor of the admissibility of the confession in the jury trial and his decision is supported by a preponderance of the evidence. See Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); High v. State, 233 Ga. 153, 210 S.E.2d 673 (1974); and, Brown v. State, 233 Ga. 171, 210 S.E.2d 706 (1974). We find no merit in this enumeration of error.

Mistrial

Appellant also contends, 'The court erred in not declaring a mistrial due to the appeal to the emotions of the jury by the district attorney.' Appellant relies on four occurrences during the trial as improper appeals to the emotions of the jury. The first occurrence complained of was during the Jackson...