Rivers v. State
| Decision Date | 10 November 1982 |
| Docket Number | No. 38736,38736 |
| Citation | 250 Ga. 303,298 S.E.2d 1 |
| Parties | RIVERS v. The STATE. |
| Court | Georgia Supreme Court |
Kenneth E. Goolsby, Dist. Atty., Dennis C. Sanders, Asst. Dist. Atty., Thomson, Michael J. Bowers, Atty. Gen., Virginia H. Jefferies, Staff Asst. Atty. Gen., for the State.
William M. Wheeler, Robert E. Knox, Jr., Thomson, for Hill Rivers.
Hattie Watts, her son Rickey, and her granddaughter Alicia were murdered in McDuffie County on the evening of July 4, 1981. The defendant, Hill Rivers, was arrested on July 10 and charged with three counts of murder, one count of kidnapping with bodily injury and one count of aggravated sodomy. He was tried in November of 1981, convicted on all five counts, and sentenced to death for each of the three murders. At trial, the state presented the following evidence.
Hattie Watts resided in McDuffie County, approximately two miles south of the Columbia County line, at the intersection of State Highway 221 and a dirt road identified as Watts Road. Approximately one-half mile west of this intersection, Watts Road intersected Gay Road. Between Hattie's house and Highway 221 was a seldom used logging road which ran south from the Watts residence and roughly parallel to Highway 221.
Hattie's son, Bobby, lived just west of her on Watts Road. Bobby and Olin Johnson left Bobby's house at 6:00 p.m. They saw a white Ford stopped at the intersection of Watts Road and Highway 221, with a black man inside. As they approached, the car turned south on Highway 221.
Lillian Brewer, her husband Wallace, and their grandson Derek Holcomb spent the afternoon of the fourth with Hattie. As they were traveling home on Watts Road shortly before 7:00 p.m., they were forced to stop at the intersection of Watts Road and Gay Road because a "big white car was stopped right across the road." A black man with a shuffling gait walked to their car. Mr. Brewer asked the man to let them pass. After some hesitation and further conversation, the man started the car and left. Mr. and Mrs. Brewer and Derek later identified the occupant of the white car as the defendant, Hill Rivers.
At 7:00 p.m., Henry Miller saw a white Ford stopped on Gay Road. Miller stopped to see if the driver was lost and the car took off.
Bobby Watts, who had returned from his previous outing, left his house again shortly after 7:00 p.m. He saw a white Ford parked south of his mother's house on the logging road. A black man was walking nearby.
Alicia's mother called Hattie at 8:00 p.m. Alicia answered and told her mother that Hattie and Rickey were in the yard, talking to a black man. Alicia said she would call back. She never did. Her mother called again at 9:00 p.m. There was no answer. She called Bobby's wife, Kathy, and Kathy went to Hattie's house.
Hattie was sitting in a living room chair with two gunshot wounds in her head. Rickey was lying on the couch, nude except for his socks. He had been shot in the head and back. The living room had been ransacked and approximately $40 was missing, as well as Hattie's red clutch purse with her driver's license and other identification. Alicia was not in the house.
Rickey was later examined by Warren Tillman of the state crime lab. From contusions and distentions of the rectum, he concluded that Rickey had obviously been sodomized. Fluid, which could not be positively identified as seminal, but which was foreign to Rickey's body, was discovered in his rectum.
Frank and Kathy Overton lived approximately two and one-half miles north of Hattie on Highway 221, in Columbia County. They left their house around 4:00 p.m. on July 4. After they left, their neighbor observed a white car parked near the Overton residence for 15 or 20 minutes.
The Overtons returned home at approximately 1:30 or 2:00 a.m. on the fifth. Their house had been broken into and a cash box used as a jewelry box had been taken.
Law enforcement officers called to Hattie's house on the evening of the fourth were unable to find Alicia that night. The search continued the next morning. One pair of footprints was discovered leading to Hattie's house. Two pairs of footprints, one large and one small, were discovered in a garden behind Hattie's house and were picked up again in a cornfield further south. These footprints led away from the house. Further south, near the logging road, they discovered the same two sets of footprints and also tire tracks indicating that a car with one mud-grip tire on its left rear had turned around by driving up an embankment and coasting backwards. Not far from these last tracks, investigators discovered a cash box which was later identified as the one taken from the Overtons in Columbia County. The cash box was dusted for fingerprints. One print was later identified as belonging to the defendant, Hill Rivers.
Farther down the logging road more tire tracks, made by a car with one mud-grip tire on its left rear, were discovered. The road led to an area in which the woods had been thinned out. The same tire tracks circled around a tree. Footprints, one set large and the other set small, led from the tire tracks to a brush pile, where Alicia's body was found. She had been shot once in the head. Logan Marshall, who discovered Alicia's body, noticed a slight discoloration circling the left wrist. The larger footprints had always been to the left of the smaller ones, and the small footprints indicated that the person who made them had been dragged.
More tire tracks made by a car with one mud-grip tire on its left rear were discovered circling a silo next to Gay Road, not far from where Henry Miller had seen a white Ford. Another mud-grip track was discovered in the Overton's dirt driveway. All of these tire tracks were made by a car which never traveled in reverse. It was subsequently established that on July 4, 1981, the defendant owned a white 1969 Ford with one mud-grip tire on its left rear and no reverse gear.
Footprints similar in size to the larger footprints discovered in McDuffie County, exhibiting a similar defect in the heel and a similar characteristic protrusion around the toe, were discovered at the scene of a double murder in Burke County which had occurred July 3. Ballistics tests showed that the bullets removed from the body of Hattie Watts and from her living room had been fired from the same gun used to kill Alan Reeves and Alan Shirley in Burke County. 1
Four rings taken from the Overtons in Columbia County were discovered in the defendant's pocket when he was arrested July 10. Other items stolen from the Overtons and from the Reeves' home were found in the defendant's car and trailer.
1. In his first five enumerations of error, the defendant contends that the evidence is insufficient to support his convictions. We disagree. The evidence, viewed in the light most favorable to the state, was sufficient to enable the jury to find the defendant guilty on all five counts beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. In his sixth enumeration of error, the defendant contends that the trial court erred in admitting evidence relating to crimes in Burke and Columbia counties over his objection. We find no error. Rivers v. State, 250 Ga. 288 (5), 298 S.E.2d 10 (1982).
3. In his ninth enumeration of error, the defendant contends that the trial court erred in denying his motion for change of venue based upon pre-trial publicity.
The defendant first contends that the percentage of jurors excused because of prejudice, 16 2/3 percent, indicates prejudicial bias to a degree rendering a fair trial impossible. We disagree. On the contrary, the low percentage of veniremen excused for cause corroborates the absence of such prejudicial publicity as would require the grant of a motion for change of venue. Messer v. State, 247 Ga. 316(4), 276 S.E.2d 15 (1981). Nor has the defendant otherwise demonstrated that the setting of the trial was inherently prejudicial. See Kesler v. State, 249 Ga. 462(7), 291 S.E.2d 497 (1982).
4. In his tenth enumeration of error, the defendant contends that the trial court erred in allowing three witnesses, Derek Holcomb, Lillian Brewer and Wallace Brewer, to identify him at trial because their identifications were tainted by an impermissibly suggestive pretrial photographic display.
On July 7, 1981, these witnesses were shown a photographic lineup containing six pictures of black men of approximately the same age. Picture five and picture six were both of the defendant. The fifth picture was a mug shot of the defendant with short hair and no glasses. The sixth picture was a profile showing the defendant with long hair and wearing glasses, leaning against an automobile. The remaining four pictures were mug shots.
After the defendant was arrested, these three witnesses were again shown a photographic display; this one contained seven pictures, only one of which was the defendant.
The state conceded during the trial that the first photographic display should not have contained two photographs of the defendant, but contended then, as now, that the in-court identifications were reliable even though the confrontation procedure was suggestive. 2 See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).
The testimony given by Mr. and Mrs. Brewer and Derek Holcomb was summarized in the statement of facts. Mr. and Mrs. Brewer accurately described the defendant to investigators the day after the murder, before they saw either photographic display, and helped construct a composite drawing of the defendant. All three witnesses accurately and without hesitation selected photographs of the defendant from both photographic displays. They testified that they were able to get a good look at the defendant as he approached their car and were positive that the defendant was the man in the white...
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