Redd v. State, 34020

• Decision Date: 23 January 1979
• Docket Number: No. 34020,34020
• Citation: 252 S.E.2d 383,242 Ga. 876
• Parties: REDD v. The STATE.
• Court: Georgia Supreme Court

Page 383

252 S.E.2d 383

242 Ga. 876

REDD v. The STATE.

No. 34020.

Supreme Court of Georgia.

Argued Sept. 19, 1978.

Decided Jan. 4, 1979.

Rehearing Denied Jan. 23, 1979.

Pierce & House, Stanley C. House, Augusta, for appellant.

Richard E. Allen, Dist. Atty., Arthur K. Bolton, Atty. Gen., Daryl Robinson, Asst. Atty. Gen., for appellee.

BOWLES, Justice.

The appellant, Bob Redd, was indicted by a Richmond County Grand Jury for the January 26, 1976 kidnapping and murder of Paul D. Eskew, Sr. He was tried by a jury and found guilty of both offenses. In sentencing Redd to death the jury found the statutory aggravating circumstance that the murder was committed while the offender was engaged in the commission of another capital felony. Code Ann. § 27-2534.1(b)(2). Appellant was also sentenced to life imprisonment for the kidnapping.

In Redd v. State, 240 Ga. 753, 243 S.E.2d 16 (1978), appellant's convictions and life sentence for kidnapping were affirmed however, because a violation of Hawes v. State, 240 Ga. 327, 240 S.E.2d 833 (1977) and Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977) was found to exist, appellant's sentence of death for the offense of murder was reversed and a new trial ordered on the issue of punishment for that offense.

Upon resentencing, the jury again found that the murder was committed while in the course of kidnapping with bodily harm to the victim and, in addition thereto, found that the murder was outrageously and wantonly vile, horrible and inhumane in that the offense involved depravity of mind of the defendant and torture to the victim. Code Ann. § 27-2534.1(b)(7). Based on these two aggravating circumstances the appellant was again found by the jury subject to death by electrocution.

This case is here on direct appeal and for mandatory review of the death sentence imposed. The facts surrounding the kidnapping and murder of Paul D. Eskew, Sr. are adequately set forth in Redd v. State, supra, and will be repeated here only as necessary in addressing appellant's enumerations of error.

1. In his first enumeration of error appellant contends that the trial court erred in questioning the jury panel concerning their opposition to capital punishment. Appellant argues that since the guilt phase of trial was concluded, and the only purpose of the new trial was for resentencing, the jury need no longer be qualified under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

In Witherspoon v. Illinois, supra, the Supreme Court of the United States made clear that, "(A) sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." Witherspoon, supra, at 522, 88 S.Ct. at 1777. Such a venireman cannot be excluded for cause unless he makes it unmistakably clear that (1) his attitude toward the death penalty would prevent him from making an impartial decision as to the defendant's Guilt, or that (2) he would automatically vote against the Imposition of the death penalty in the case regardless of the evidence that might be developed at trial.

In a death case, qualifying the jury protects against bias during both phases of the bifurcated trial. First, it assures During the guilt phase of trial that jurors who are unable to render an impartial verdict because of their opposition to capital punishment are excluded. Second, During the sentencing phase of trial, it assures that those jurors who although able to render an impartial verdict as to a defendant's guilt are excluded because their opposition to capital punishment make it impossible for them to consider the death penalty as punishment in the case, regardless of the evidence.

Appellant's contention that the trial court erred in qualifying the jury is, therefore, without merit.

2. In enumeration of error two, appellant contends that a prospective juror was improperly excused because of his beliefs concerning capital punishment.

During the voir dire examination the trial court asked all prospective jurors the following question: "Are you conscientiously opposed to capital punishment? If so, please raise your hand." Juror Phillips raised his hand and was then asked: "Would your reservations about capital punishment prevent you from making an impartial decision on the issue of punishment . . . for defendant's conviction of murder according to the evidence and the instructions of the court?" Juror Phillips responded: "I believe it would, sir." The trial court then asked this juror: "Are your reservations about capital punishment such that you could never vote to impose the death penalty regardless of the evidence and the instructions of the court?" Juror Phillips again responded, "Yes." The juror was then asked, "Are your reservations about capital punishment such that you would refuse even to consider its imposition in the case before you, regardless of the evidence and instructions of the court?" Juror Phillips responded, "Yes, sir, I would be completely against it." Finally, Juror Phillips was asked, "Are you irrevocably committed before the trial has even begun on the issue of punishment for the conviction of murder to vote against the penalty of death regardless of the evidence, facts, and circumstances that emerge in the course of the proceedings and instructions of the court?", and in response he answered "I couldn't vote for capital punishment."

It is clear that this juror's responses satisfy the test set forth in Witherspoon v. Illinois, supra, and Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1977) and, therefore, the trial court did not err in excusing this juror for cause.

3. Enumeration of error three complains of the trial court's refusal to allow in evidence, for the purpose of impeachment, a written report containing an alleged inconsistent statement made by a state's witness.

John Morris, the state's chief witness, testified at trial that he was with Redd when they both followed the victim, Paul Eskew, Sr., from a bar, blocked his attempted exit in his automobile, dragged him to Redd's automobile and drove him to the woods where Redd took the victim's wallet and killed him by beating him with a tire tool and hammer, and slashing his throat twice. On cross examination, Morris admitted that he had talked with investigator James Johnson on March 5, 1976, but denied that he had told him that he had taken the victim's wallet and placed it on the dashboard of appellant's car.

The defense, in presenting its case, called investigator Johnson for the purpose of introducing a statement made by Morris while under the influence of sodium pentothal for the purpose of showing that while drugged Morris had stated that he, not Redd, had removed the victim's wallet and placed it on the dashboard of appellant's car. ¹ Over the state's objection, the trial court ruled that appellant could present such testimony for the jury to give such weight and consideration as it saw fit. When questioning resumed, appellant sought to have investigator Johnson recite from a report of the interrogation written by Johnson and his partner. Upon objection by the state, the trial court ruled that it would not allow the witness to read from the report. The witness was, however, allowed to read the report in order to refresh his memory and, after doing so, was asked what John Morris had told him during the interrogation. The witness replied, "I do not recall exactly what John Morris said that day." Appellant then attempted to offer the written report in evidence in order to impeach the testimony of John Morris, but the trial court refused to allow appellant to do so over the state's objection.

"A written document previously made and signed by a witness, which is contrary to his testimony, may be introduced in evidence for the purpose of impeachment on the ground of contradictory statements . . ." (Emphasis supplied.) Manley v. Combs, 197 Ga. 768(2), 30 S.E.2d 485 (1944). Code Ann. § 38-1803. See also: Washington v. State, 124 Ga. 423(7), 52 S.E. 910 (1905).

The written report sought to be introduced in the instant case was not previously made by nor signed by John Morris, the witness that appellant sought to impeach and, therefore, the trial court properly excluded its introduction in evidence for the purpose of impeaching this witness' prior testimony.

4. In enumeration of error four the appellant contends that the trial court erred in failing to grant appellant's motion for mistrial after the district attorney, in his closing argument to the jury, stated, ". . . and having heard what you've heard in this resentencing trial, you've got to decide whether you're going to fairly and adequately and appropriately punish this defendant, Bob Redd, or whether you're going to give him another chance."

Appellant objected to the district attorney's remarks for the reason that they allegedly violated Code Ann. § 27-2206 which prohibits any attorney in a criminal case from arguing that, by reason of parole, the defendant may not be required to suffer the full penalty imposed by the jury. The district attorney, however, argued that giving the defendant a life sentence, was giving him "another chance to do harm to fellow human beings regardless of where." Although the trial judge overruled appellant's motion for mistrial, he did instruct the district attorney to confine himself to the evidence and reasonable deductions to be drawn therefrom.

The district attorney's remarks made no reference to parole of any nature. As we read these remarks the district attorney was simply attempting to convince the jury that the only appropriate punishment in the case was a sentence of death since, if a life sentence were imposed, the defendant would have "another chance" to do harm, even if in prison. Such argument is not...