Romine v. State

• Decision Date: 30 June 1983
• Docket Number: No. 39345,39345
• Citation: 251 Ga. 208,305 S.E.2d 93
• Court: Georgia Supreme Court
• Parties: ROMINE v. The STATE.

Page 93

305 S.E.2d 93

251 Ga. 208

ROMINE v. The STATE.

No. 39345.

Supreme Court of Georgia.

June 30, 1983.

Rehearing Denied July 21, 1983.

[251 Ga. 219] George Thomas II, Canton, for Larry Romine.

Rafe Banks III, Dist. Atty., Cumming, Michael J. Bowers, Atty. Gen., Mary Beth Westmoreland, Asst. Atty. Gen., for the State.

CLARKE, Justice.

Appellant, Larry Romine, was indicted in Pickens County for the murder of his parents and the armed robbery of his mother. His case was tried under the Unified Appeal Procedure. The jury convicted him on all three counts and recommended that he be sentenced to death.

1. Appellant and his wife separated a few weeks prior to the murders. He spent most nights thereafter with Ginger McEntire. In this and other respects, appellant's lifestyle met with parental disapproval. After an argument with his father the weekend before the murders, appellant told Ginger not to worry about it; it wouldn't go on much longer.

He and Ginger met Thursday, March 19, 1981, shortly after 6:30 p.m., and spent that night in a motel. The next morning, appellant told Ginger, "I bet you mama and daddy didn't work today."

They did not. When appellant's mother, Avilee, failed to appear Friday morning, members of her carpool called her home. There was no answer. They contacted Reverend McClure, who lived nearby, and he entered the house through the open front door. Inside, he found the bodies of Avilee and appellant's father, Roy.

Roy, whose body lay in the kitchen, had been shot in the back. Avilee was in the bedroom, shot in the chest. Two .16 gauge shotgun waddings were recovered from the kitchen and bedroom. They were later identified as having been fired from a shotgun owned by Ginger McEntire.

Avilee's purse was missing, as was a paycheck she had received Thursday. On Monday, March 23, appellant was observed burning the contents of a box in a trash barrel. When law enforcement officers thereafter searched the trash barrel, they found a metal tool identical to one used by Avilee in her work, and a metal frame, rings and zipper that looked like the metal portions of her coin purse and pocket book. After appellant was arrested Tuesday, March 24, he asked his wife to retrieve a packet of papers from his car. She did, and turned it over to the GBI. The packet contained a $500 certificate of deposit payable to Avilee, her paycheck of March 19, her savings passbook, and various title and insurance papers bearing her name or Roy's.

In a statement given to law enforcement officers Tuesday evening, appellant admitted borrowing Ginger's shotgun, without her knowledge, on Thursday afternoon. He said that when he got home, he took two hits of LSD and loaded the gun. Then he walked the quarter mile from his house to his parents' house. No one was home and he used his key to enter. Hearing his mother drive up, he waited for her to enter the bedroom, and then he shot her. He went into the living room and waited on the couch. The next thing appellant remembered was hearing his father drive up. (Other evidence presented at trial indicated that approximately two hours had elapsed.) Roy entered the house and went to the kitchen, carrying several sacks of groceries. Appellant shot him and left.

Appellant does not challenge the sufficiency of the evidence with regard to his convictions. However, we have reviewed the evidence pursuant to Rule IV(B)(2) of the Unified Appeal procedure and we conclude that the evidence supports appellant's convictions for armed robbery and two counts of murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. The "first proceeding," contemplated by Rule II(A) of the Unified Appeal Procedure, was conducted June 19, 1981. Motion hearings were thereafter conducted on August 5, September 25 and October 5, 1981. See Rule II(B) of the Unified Appeal Procedure. At the October 5 hearing, appellant's trial, originally scheduled for October, was continued until the March, 1982, term of court.

On February 10, 1982, appellant filed a motion to recuse Judge Frank C. Mills, III, who had presided over all of the proceedings in the case. Appellant alleged in his motion that prior to being named to the bench in February of 1981, Judge Mills had been the district attorney for seven years; that because of his prosecutorial experience, Judge Mills was biased against the appellant; and that his bias was demonstrated by his conduct in handling the case. In a supporting affidavit appellant alleged:

"Specifically, in the pre-arraignment hearing on June 19, 1981, during the testimony of Ms. Linda Hames, the transcript shows that after five brief questions by the District Attorney, Judge Mills proceeded to ask eighteen questions.

"Further, in the pre-trial hearing held August 5, 1981, Judge Mills, after the District Attorney had completed his questions of [defense witness] Millard Farmer, engaged the witness in extensive questioning and argument as to the matters at issue."

The trial court denied appellant's motion to recuse. Appellant contends in his sixth enumeration that this denial was error.

In State v. Fleming, 245 Ga. 700(1), 267 S.E.2d 207 (1980), this court elected to follow the federal rule that "when a trial judge in a case pending in that court is presented with a motion to recuse accompanied by an affidavit, the judge's duty will be limited to passing upon the legal sufficiency of the affidavit, and if, assuming all the facts alleged in the affidavit to be true All the facts alleged as a basis for the disqualification of Judge Mills were known prior to August 5, 1981. Appellant filed his motion six months later. Appellant's motion was untimely and the trial court did not err in denying the motion to recuse or in denying appellant's request to allow another judge to hear the motion.

                recusal would be warranted, then another judge must be assigned to hear the motion to recuse."  Id. at 702, 267 S.E.2d 207.   In Hunnicutt v. Hunnicutt, 248 Ga. 516, 283 S.E.2d 891 (1981), this court further held that the motion must not only be legally sufficient, but timely, i.e., made "as soon as the facts demonstrating the basis for disqualification become known."  Id. at 516, 283 S.E.2d 891
                

3. In his ninth enumeration of error, appellant contends the Unified Appeal Procedure is unconstitutional. We do not agree with appellant's contention that the Unified Appeal Procedure "forces the trial court out of its traditional role of neutral overseer, aligning it with the prosecution." His remaining contentions have been decided adversely to him in Brown v. State, 250 Ga. 66(3), 295 S.E.2d 727 (1982) and Sliger v. State, 248 Ga. 316, 282 S.E.2d 291 (1981).

4. The trial court did not err by failing to grant appellant's motion for change of venue. Of the 66 jurors impaneled, only 11 were excused for bias or prejudice. These 11 jurors constituted 16.7% of the entire panel. This percentage corroborates the absence of such prejudicial publicity as would require the grant of a motion for new trial. Messer v. State, 247 Ga. 316(4), 276 S.E.2d 15 (1981). Appellant's eighth enumeration of error is meritless.

5. On July 21, 1981, appellant filed a motion in which he sought discovery of relationships or other ties to prospective jurors by law enforcement officers, witnesses and bailiffs. The motion was granted. The court's order of February 12, 1982, contemplated that interrogatories be submitted to the district attorney for dissemination by him to witnesses, bailiffs and law enforcement officers, and that the interrogatories be returned to the defense prior to voir dire.

A copy of the jury list was mailed to the appellant and his attorney on February 26, 1982. Appellant thereafter submitted his interrogatories to the district attorney. When the voir dire commenced the morning of March 29, the completed interrogatories had not yet been furnished to appellant because the district attorney had neglected to disseminate them to anyone. Appellant moved to continue the case so that the interrogatories could be furnished prior to voir dire. The motion was denied, but the trial court ordered that the interrogatories be completed and furnished to appellant prior to the selection of the jury.

At 8:45 p.m. on the 29th, 45 completed interrogatories were furnished to appellant. Appellant then made another motion for continuance so that he could have additional time to examine the interrogatories. This motion was denied. Voir dire continued the next day and the jury was selected March 31.

Appellant contends in his fifth enumeration of error that the trial court erred in denying his motions for continuance. We cannot agree.

The district attorney should have complied with the clear terms of the February 12 order. Nonetheless, his failure to do so was not brought to the court's attention until immediately before the voir dire was scheduled to begin; the court thereafter did what it could to enforce compliance with its order, short of further delaying the case.

The information sought by appellant is ordinarily obtained from the voir dire of potential jurors. Appellant has failed to demonstrate that he relied to his detriment on an order that was discretionary, or that he was harmed by the belated compliance with the order. Motions for continuance are addressed to the sound discretion of the trial court. Marshall v. State, 239 Ga. 101(1), 236 S.E.2d 58 (1977). We find no abuse of discretion here.

6. In his seventh enumeration of error, appellant contends the fast pace of The trial began with voir dire Monday morning and ended Saturday evening. Court was in session, according to appellant, until 8:30 p.m. Monday, 9:00 p.m. Tuesday, 6:30 p.m. Wednesday, 7:00 p.m. Thursday, 10:00 p.m. Friday and 5:00 p.m. Saturday.

the trial denied him effective assistance of counsel.

We note that appellant's attorney was appointed April 13, 1981, almost a year prior to the trial. His investigation was aided by...