Rogers v. State

• Decision Date: 25 June 1986
• Docket Number: No. 42826,42826
• Citation: Rogers v. State, 256 Ga. 139, 344 S.E.2d 644 (Ga. 1986)
• Parties: ROGERS v. The STATE.
• Court: Georgia Supreme Court

Page 644

344 S.E.2d 644

256 Ga. 139

ROGERS v.The STATE.

No. 42826.

Supreme Court of Georgia.

June 25, 1986.

Reconsideration Denied July 15, 1986.

David Smith, Jr., Kenneth C. Fuller, Rome, for James Randall rogers.

Stephen F. Lanier, Dist. Atty., Rome, Michael J. Bowers, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., for the State.

WELTNER, Justice.

This is a death penalty case.James Randall Rogers was convicted in Floyd County of murder and aggravated assault.He was sentenced to death for the murder and a term of ten years for the aggravated assault.¹The case is here on direct appeal, for review under the Unified Appeal Procedure (252 Ga. A-13 et seq.), and for the sentence review required by OCGA § 17-10-35.

Facts

At approximately 11:45 P.M. on May 21, 1980, Edith Polston, the assault victim, returned from work to the home she shared with the murder victim, Grace Perry.She found a rake on the front steps with a liquid substance on the handle and Ms. Perry lying on a bedroom floor.Before she could summon the police, she was seized from behind, forced to remove her clothing and to lie down beside Ms. Perry.She then was taken outside and struck in the face.She managed to escape, and the police were called.

The first investigating officer arrived on the scene at approximately eleven minutes after midnight on the morning of May 22, 1980, and found Rogers attempting to climb a fence at the rear of the victim's property.The officer employed moderate force to subdue Rogers, then handcuffed Rogers to the railing of the front porch while he began a search of the house.He found Ms. Perry lying naked on the floor of a bedroom with a large puddle of blood between her legs.He then gave Rogers Miranda warnings and placed him in a patrol car for transportation to police headquarters.

Rogers' mother came to the crime scene.Ms. Polston overheard Rogers tell his mother, "Ma--Mama, I'm gone this time; I'm gone."En route to the police station, Rogers volunteered that he had killed Ms. Perry but "there's not anything you can do about it, I'm crazy and I've got papers to prove it."

The autopsist testified that an external examination of the victim's body revealed a large amount of dry blood on the legs and traumatic infliction of wounds on the lower portion of the body.An internal examination disclosed a laceration to the back exterior portion of the vagina, which was approximately an inch and a half long.The autopsy further revealed a total perforation of the wall of the vagina.This perforation also extended through the liver, the diaphragm and into the right lung.The autopsist testified that the perforation caused a sudden and massive hemorrhaging into the right chest cavity which, in turn, caused the death of the victim.

Testimony indicated that the trauma to the victim's body was consistent with the use by the assailant of a blunt instrument in the shape of a pole which was at least two feet long and no more than two inches in diameter.Testimony indicated that the trauma would have required a considerable, purposeful force to be employed.The officer who recovered the rake from the front porch testified that two to four feet of the rake's handle was covered with what appeared to be blood and other fluid.

A fingerprint taken from the handle of the rake subsequently was identified as Rogers'.Human blood found on the handle of the rake, and hairs found on Rogers' body, were consistent with Ms. Perry's.Bite marks on one of Rogers' arms were consistent with the dentures worn by the elderly victim.

The sufficiency of the evidence was not raised on appeal.However, we have reviewed the evidence pursuant to Rule IV(B)(2) of the Unified Appeal Procedure, and find it sufficient to sustain the convictions.Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).

Enumerations of Error

1.Rogers first contends that one prospective juror, Mr. Compton, should have been excused for bias in favor of the death penalty.Mr. Compton first raised his hand, then responded, "Yes, sir, I believe in it," to this question by defense counsel: "Let me ask you, ladies and gentlemen, with regard to the death penalty--Mr.Weaver asked you were there any of you who are conscientiously opposed to the death penalty--what I'd like to ask you is, do any of you--do any of you have strong feelings about the death penalty, about the imposition of the death penalty, that it ought to be imposed more often--or that it is the proper punishment for any particular crime?If--if you have those kinds of feelings, could I see your hand?"Mr. Compton also responded, "Yes, sir," to this defense question: "Let me ask you, is what you're stating to me that you feel that if a murder--if a murder conviction is had by the jury--in other words, if the jury decides that--that the defendant is guilty, then it is--is it your feeling that death is the only proper punishment?"

In response to questioning by the court and the defense, Mr. Compton indicated three times that he could set aside his feelings about the death penalty and be governed by the court's instructions as to sentencing options, including any limitations imposed by the court; that his feelings would not affect his ability to be a fair and impartial juror.

"The voir dire of ... [Mr. Compton] presents the reverse of the Witherspoon question."Spivey v. State, 253 Ga. 187, 194, 319 S.E.2d 420(1984).Although he first indicated that he would automatically vote for the death penalty if Rogers were found guilty, he subsequently swore that he could set aside his feelings favoring the death penalty and be governed by the court's sentencing instructions, including limitations imposed by the court on the jury's discretion to impose the death sentence.We find here no error.Cargill v. State, 255 Ga. 616, 340 S.E.2d 891(1986);Hance v. State, 254 Ga. 575, 576, 332 S.E.2d 287(1985);Spivey v. State, supra.

2.Rogers contends next that the trial court should have excused the entire panel when one prospective juror responded to a defense voir dire question by saying he had heard that Rogers had been convicted by a previous jury.The court immediately took corrective action, including a determination that each panel member would follow his instructions.We find no error in the court's refusal to excuse the entire panel.Parker v. State, 255 Ga. 167, 169(3), 336 S.E.2d 242(1985);Wilson v. State, 250 Ga. 630, 636(6), 300 S.E.2d 640(1983).²

3.Rogers contends that two prospective jurors erroneously were excluded for cause under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776(1968).In response to questions of the trial court, each indicated that her beliefs would prevent her from following the court's instructions and her oath as a juror.This reply satisfies the standard for exclusion adopted by the Supreme Court of the United States in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841(1985), as followed by this court in Alderman v. State, 254 Ga. 206, 207, 327 S.E.2d 168(1985).

The Supreme Court of the United States recently has held that "the Constitution does not prohibit the States from 'death qualifying' juries in capital cases."Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137(1986)." 'Death qualification,' unlike the wholesale exclusion of blacks, women, or Mexican-Americans from jury service, is carefully designed to serve as the State's concededly legitimate interest in obtaining a single jury that can properly and impartially apply the law to the facts of the case at both the guilt and sentencing phases of a capital trial."At ----, ----, 106 S.Ct. at 1766.In reliance on Wainwright, the court indicated that "an impartial jury consists of nothing more than 'jurors who will conscientiously apply the law and find the facts.' "At ----, 106 S.Ct. at 1767.The court reiterated that it has "upheld against constitutional attack the Georgia capital sentencing plan which provided that the same jury must sit in both phases of a bifurcated capital murder trial."At ----, 106 S.Ct. at 1768.

The Wainwright standard for exclusion was clarified further by the court in Lockhart: "It is important to remember that not all who oppose the death penalty are subject to removal for cause in capital cases; those who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law....[T]he group of 'Witherspoon excludables' includes only those who cannot and will not conscientiously obey the law with respect to one of the issues in a capital case...."At ----, 106 S.Ct. at 1766.

The two prospective jurors whose exclusion by the trial court is challenged by Rogers indicated that they would not lay aside their opposition to the death penalty and would not decide the case according to the court's instructions.The court properly struck them for cause.

4.Rogers contends that the court should have excluded his statements because he was only nineteen years of age, is mentally impaired, was on drugs, was beaten, did not understand his Miranda rights, and that his statements resulted from an illegal arrest, coercion, promises, and extended questioning while he had no access to his mother or counsel.He also contends that certain of his statements were given before Miranda warnings were administered.

The trial court's factual determinations during the Jackson-Denno hearing will be accepted on appeal unless they are clearly erroneous.Hance v. State, 245 Ga. 856, 268 S.E.2d 339(1980).

Investigating officers came to the scene in response to a report that someone may have been killed.Officer Brock testified that at about midnight, he discovered Rogers attempting to climb a fence behind the victim's house and took him into custody; that Rogers was "a little nervous"...