Rhode v. State

• Decision Date: 01 October 2001
• Docket Number: No. S01P0708.,S01P0708.
• Citation: 552 S.E.2d 855,274 Ga. 377
• Parties: RHODE v. The STATE.
• Court: Georgia Supreme Court

552 S.E.2d 855

274 Ga. 377

RHODE v. The STATE.

No. S01P0708.

Supreme Court of Georgia.

October 1, 2001.

Reconsideration Denied October 22, 2001.

John Frederick Nebl, Decatur, Francis N. Ford, Eatonton, Holly Lynn Geerdes, Atlanta, for appellant.

Fredric Daniel Bright, Dist. Atty., Gregory Lyn Bushway, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Karen Anderson Johnson, Asst. Atty. Gen., for appellee. HINES, Justice.

A jury found Brandon Joseph Rhode guilty of three counts of malice murder, three counts of felony murder, two counts of burglary, and one count of kidnapping with bodily injury.¹ The jury found beyond a reasonable doubt that the murder of Bryan Moss was committed while Rhode was engaged in the murder of Kristin Moss, was committed while Rhode was engaged in a burglary, was committed while Rhode was engaged in a kidnapping with bodily injury, and was outrageously or wantonly vile, horrible, or inhuman in that it involved depravity of mind. See OCGA § 17-10-30(b)(2) and (7). The jury found beyond a reasonable doubt that the murder of Kristin Moss was committed while Rhode was engaged in the murder of Steven Moss and while Rhode was engaged in a burglary. See OCGA § 17-10-30(b)(2). The jury found beyond a reasonable doubt that the murder of Steven Moss was committed while Rhode was engaged in the murder of Bryan Moss and while Rhode was engaged in a burglary. Id. The jury fixed the sentence for each murder at death. For the reasons set forth below, this Court affirms Rhode's convictions and sentences.

1. The evidence presented at trial suggested the following account of the crimes. Rhode and his co-perpetrator, Daniel Lucas, burglarized the home of Steven and Gerri Ann Moss on April 23, 1998, fled the scene when Rhode discovered an alarm system, and returned later that day to burglarize the home again. While Rhode and Lucas were ransacking the home searching for valuables, eleven-year-old Bryan Moss arrived, observed Rhode and Lucas through a front window, and entered through a back door, armed with a baseball bat. Rhode and Lucas subdued Bryan at gunpoint, sat him in a chair, and began discussing what to do with him. Lucas turned and fired at the boy, inflicting a non-fatal shoulder wound. As Kristin Moss was approaching the house, Lucas took Bryan into a back bedroom. Rhode met Kristin as she arrived, sat her in a chair, and shot her twice with a .357 caliber pistol. Lucas repeatedly shot Bryan with a.25 caliber pistol. Rhode later shot Steven Moss with the .357 caliber pistol when Steven arrived. Finally, Lucas obtained a .22 caliber pistol from Rhode's automobile and shot Bryan and Kristin again.

Chad Derrick Jackson, Rhode's roommate, testified that he observed Rhode and Lucas handing rifles and other items out of Jackson and Rhode's bedroom window and loading them into Rhode's automobile on the evening of the crimes. Jackson further testified that Rhode and Lucas admitted to him the next day that Lucas first shot Bryan in the shoulder, that Lucas then shot Bryan while Rhode simultaneously shot Kristin, that Rhode next shot Steven Moss, and that lastly Lucas shot each victim to ensure their deaths.

Danny Ray Bell, who also lived in the same house as Rhode, testified that Rhode and Lucas spoke to him between the two burglaries and that Bell advised Rhode not to return to burglarize the same home. Bell testified that, at the time of this conversation, Rhode had a .357 caliber pistol in his waistband. According to Bell, when Rhode returned from the second burglary, Rhode said that he had "messed up big time" and needed to dispose of some weapons and other items. Rhode admitted to Bell that Lucas shot a young boy and that Rhode shot a girl and a man.

Several witnesses testified that they saw an automobile similar to Rhode's at or near the victims' home on the day of the murders. A search of Rhode's automobile revealed damage to the front and rear bumpers and a spare tire in the trunk that showed signs of use. A photograph of the crime scene suggested a vehicle had backed into a gas tank at the victims' home. Expert testimony disclosed that paint on a cement block at the victims' home matched the paint on Rhode's automobile, including two layers applied at the factory and a third layer likely applied later. Additional expert testimony indicated that a crime scene imprint could have been made by Rhode's spare tire.

Rhode made a statement admitting he fired two times at Kristin with the .357 caliber pistol, and he led law enforcement officers to two locations where he and Lucas had secreted weapons and other items. Expert testimony matched the found .357 and .25 caliber pistols to bullets retrieved from the crime scene and the victims' bodies.

Viewing the evidence produced at trial in the light most favorable to the jury's verdicts, this Court finds that it was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that Rhode was guilty of all charges brought against him and that statutory aggravating circumstances existed as to each of the murders. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Sands v. State, 262 Ga. 367, 368(2), 418 S.E.2d 55 (1992); OCGA § 17-10-30(b)(2) and (7).

Jury Selection

2. The trial court did not err by allowing a Harris County jury commissioner, who testified that she participated in revising the electronically-generated jury list, to certify the jury list nunc pro tunc. Jackson v. State, 76 Ga. 551, 565(3) (1886); see also Pope v. State, 256 Ga. 195, 197(1)(c), 345 S.E.2d 831 (1986) ("[W]e `do not find here such disregard of the essential and substantial provisions of the statute as would vitiate the arrays.'") (quoting Franklin v. State, 245 Ga. 141, 147(1), 263 S.E.2d 666 (1980)), overruled on other grounds by Nash v. State, 271 Ga. 281, 281, 519 S.E.2d 893 (1999).

3. The process of qualifying jurors as to their views on the death penalty is not unconstitutional. DeYoung v. State, 268 Ga. 780, 790(11), 493 S.E.2d 157 (1997).

4. Upon a review of the voir dire of prospective jurors in this case, particularly the portions highlighted by Rhode in this appeal, this Court concludes that the trial court did not abuse its discretion in limiting voir dire and that a thorough examination of each prospective juror, particularly of each prospective juror's death penalty views, was permitted. See Barnes v. State, 269 Ga. 345, 351-352(10), 496 S.E.2d 674 (1998). The trial court properly sustained objections and gave cautionary directions to counsel when counsel's questions called for a prejudgment of the case or failed to set forth the entire context within which jurors would consider a death sentence, including any mitigating evidence presented and the charge of the trial court, and the voir dire permitted after each sustained objection or cautionary direction was more than adequate. See Thornton v. State, 264 Ga. 563, 572(13)(a), 449 S.E.2d 98 (1994).

5. Rhode contends that the trial court erred by not excusing fourteen specific prospective jurors based upon their death penalty views. The trial court did not err by failing to excuse sua sponte twelve contested prospective jurors who were not challenged for cause based upon their death penalty views. Childs v. State, 257 Ga. 243, 249(7), 357 S.E.2d 48 (1987). Furthermore, one of the twelve prospective jurors was actually excused for reasons unrelated to his death penalty views. This Court finds, as to the two contested prospective jurors who were challenged for cause, that the trial court did not abuse its discretion in determining that the jurors' views on capital punishment would not "`prevent or substantially impair... [their] duties as [jurors] in accordance with [their] instructions and [their] oath.'" Greene v. State, 268 Ga. 47, 48, 485 S.E.2d 741 (1997) (quoting Wainwright v. Witt, 469 U.S. 412, 424(II), 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)); see also Waldrip v. State, 267 Ga. 739, 743-744(8)(a), 482 S.E.2d 299 (1997) ("A prospective juror's inability to recite circumstances which might lead her [or him] to vote for a life sentence is not dispositive of her [or his] qualifications to serve as a juror.").

6. Rhode complains that three prospective jurors were erroneously excused for cause when they expressed an unwillingness or inability to consider a death sentence that was based on their understanding that Georgia law required execution by electrocution. A review of the record reveals that one of these prospective jurors was unwilling to consider a death sentence regardless of the method of imposition, and, furthermore, Rhode has waived his right to complain about that prospective juror by failing to object to the trial court's excusing her. Earnest v. State, 262 Ga. 494, 495(1), 422 S.E.2d 188 (1992). Regarding the other two prospective jurors, Rhode correctly argues that jurors in Georgia death penalty trials play no role in determining the method by which a death sentence is carried out. However, where a prospective juror is unable or unwilling, for any reason, to consider one or more of the sentences authorized by law, that juror should be excused for cause upon motion by one of the parties. See Wainwright, 469 U.S. at 429(III), 105 S.Ct. 844 ("[E]xcluding prospective capital sentencing jurors because of their opposition to capital punishment is no different from excluding jurors for innumerable other reasons which result in bias...."); Zellmer v. State, 272 Ga. 735, 534 S.E.2d 802 (2000). Here, the unwaivering biases of two of the prospective jurors against a death sentence, which arose both from personal knowledge and a preliminary charge about electrocution that had been requested by Rhode, rendered them unqualified. In fact, one of them was further unqualified because she was unwilling to consider a sentence of life with the possibility of parole. See Zellmer, 272 Ga. 735, 534 S.E.2d 802. The fact that the...