Ross v. State

• Decision Date: 08 February 1985
• Docket Number: No. 41204,41204
• Citation: 326 S.E.2d 194,254 Ga. 22
• Parties: ROSS v. The STATE.
• Court: Georgia Supreme Court

Page 194

326 S.E.2d 194

254 Ga. 22

ROSS v. The STATE.

No. 41204.

Supreme Court of Georgia.

Feb. 8, 1985.

Rehearing Denied Feb. 26, 1985.

John G. Harkins, Jr., for appellant.

Virginia W. Tinkler (court-appointed), Decatur, for Eddie Lee Ross.

Robert E. Wilson, Dist. Atty., Decatur, Michael J. Bowers, Atty. Gen., J. Michael Davis, for the State.

MARSHALL, Presiding Justice.

This is a death penalty case. Eddie Lee Ross was convicted in DeKalb County of murder, rape, burglary, forgery in the first degree, and financial transaction card fraud. He was sentenced to death for the murder. The 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. ¹

Facts

Shortly before 10:00 a.m. on September 2, 1983, Vivian Turner stopped by the home of her 87-year-old mother, Ellen Funderburg. Upon entering the house, she discovered that the house had been ransacked and she found the partially nude body of her mother lying on the bedroom floor. The handle end of a pair of scissors protruded from the victim's chest.

Later that morning, Eddie Lee Ross was arrested at the South DeKalb Mall after he had used the victim's Rich's credit card to purchase a $170 radio. On his person, officers found a check payable to Ross for $80 which bore a signature ostensibly that of Betty Jean Funderburg (one of the victim's daughters who had been deceased for seven years). Subsequently, other personalized checks, some blank and some filled out, belonging either to Ellen or Betty Jean Funderburg, as well as some of their jewelry, were found in the trunk of Ross's automobile.

An autopsy of the victim showed that her skull had been fractured by repeated blows from a blunt object (a broken vase was found near the body), she had been stabbed numerous times (at least once in the heart), and deep in her vagina were small tears consistent with forced penetration by a blunt object such as a male sex organ.

After his arrest, Ross was interrogated, and gave three statements, the last of which was introduced at trial. See Division 3, below. In the last statement, Ross recounted the circumstances of the crime as follows: Sometime after 5:30 a.m., Ross pried open a back window of the Funderburg home with a screwdriver, entered the house, and began searching for money. He entered the bedroom to check on the victim, and for some reason began hitting her with a vase. She woke up and screamed, to which he responded by stabbing her with a pair of scissors. She quit screaming. Then he "started to have sex with her." However, he only "juked about one or two times," and quit, because he "realized that wasn't me, you know." Ross got $11 in cash and some credit cards out of the victim's purse, took a wedding ring off the victim's finger, and took some other jewelry and some checks that he found in the house. He pawned one of the rings for $15 and then filled out one of the checks and tried unsuccessfully to cash it at a bank across the street from South DeKalb Mall. Next, he went to the mall and bought the radio, using the victim's credit card. That purchase, Ross recognized with regret, led to his arrest.

The sufficiency of the evidence is 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 support the convictions. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Enumerations of Error

1. In his first enumeration of error, Ross contends that two prospective jurors were improperly excused under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). We do not agree. The voir dire testimony of these two jurors clearly shows that they could not vote for the death penalty no matter what the evidence. Mincey v. State, 251 Ga. 255(8), 304 S.E.2d 882 (1983); Allen v. State, 248 Ga. 676(2), 286 S.E.2d 3 (1982).

Regarding one of the two jurors, Ross additionally complains that his attempted rehabilitation was prematurely cut off by the court. See Spivey v. State, 253 Ga. 187, 197 (n. 3), 319 S.E.2d 420 (1984). However, we find no reversible error here, inasmuch as the attempt to rehabilitate the prospective juror was limited to whether or not the juror could "consider" the death penalty. "We adhere to our previously stated position that: 'It is not sufficient that the juror be willing to "consider" the death penalty if he or she is committed to automatically vote against the death penalty after having "considered" it.' Cofield v. State, 247 Ga. 98, 103(2) (274 SE2d 530) (1981)." Spivey v. State, supra, 253 Ga. at 193-194, 319 S.E.2d 420.

2. The second enumeration of error, in which Ross complains of the practice of Witherspoon-disqualification of jurors, is without merit. Mincey v. State, supra, (2), 304 S.E.2d 882.

3. Soon after his arrest, on September 2, Ross was brought to the DeKalb Police Department headquarters. Police officer Cunningham gave Ross the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Ross signed a written waiver form reciting that he understood his Miranda rights, waived them, and was willing to make a statement. Officer Cunningham reduced the ensuing statement to writing and the interrogation was temporarily concluded. However, upon talking with his supervisors, Cunningham decided to talk to Ross again in order to obtain from him a more detailed explanation of the events of the crime. Officer Cunningham was joined in this effort by officer Thomas, whom Ross knew from a previous case. The second interrogation followed the first one by approximately 15 minutes and resulted in another statement, again reduced to writing, that was approximately three times as long as the first, and included, at the end, two paragraphs written by Ross himself, in which he swore that the statement was true and stated that he was very sorry and that no one had made him write the note. The interrogation concluded at approximately 5 p.m.

On September 4, Ross was brought before a DeKalb County magistrate for a "first appearance" (see OCGA §§ 17-4-26 and 17-4-62), at which a date was set for his committal hearing (see OCGA § 17-7-23 and 17-7-24). Although the usual practice in the DeKalb magistrate court was to hold a committal hearing within seven days of the first appearance, Ross eschewed representation by the public defender and requested additional time so that, with the help of his father, he could retain the services of an attorney of his own choosing. This request was granted, and a committal hearing was set for October 3.

That afternoon, officer Thomas decided that it might be a good idea to talk to Ross one more time and, this time, to tape-record the statement. Ross was willing and, after re-advising Ross of his Miranda rights and eliciting from Ross that he understood those rights, Thomas tape-recorded a third statement.

At trial, the admissibility of the confessions was contested, and the court conducted a Jackson-Denno hearing outside the presence of the jury. At the conclusion of the hearing, the court ruled that all three were voluntary, but, presented together, would be unduly cumulative. The court offered the state the choice of presenting to the jury only the first two, or only the third. The state chose the latter alternative, and, thus, the jury heard only the third, tape-recorded confession.

In his third enumeration of error, Ross contends that the third statement was taken in violation of his Fifth and Sixth Amendment rights to counsel, and should therefore have been suppressed.

(a) In Miranda v. Arizona, supra, the United States Supreme Court decided that an accused in police custody has a Fifth Amendment right not to incriminate himself and that to protect this right, any custodial interrogation must be preceeded by the now-familiar Miranda warnings, which include a right to counsel during the interrogation. See New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 2634-35, 81 L.Ed.2d 550 (1984) (O'Connor, J., concurring in part and dissenting in part). This Miranda right to counsel can be waived; however, "a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Miranda, supra, 384 U.S. at 475, 86 S.Ct. at 1628.

The determination whether an accused has intentionally relinquished or abandoned a known right or privilege, such as a Miranda right to counsel, is determined by reference to " 'the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.' Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019 [1023], 82 L.Ed. 1461 [ (1938) ]; [Cits.]" North Carolina v. Butler, 441 U.S. 369, 374-375, 99 S.Ct. 1755, 1757-1758, 60 L.Ed.2d 286 (1979). If, however, an accused asserts his Fifth Amendment right to counsel, that is, if he "expresse[s] his desire to deal with the police only through counsel, [then he] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communications, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S. 477, 484-485, 101 S.Ct. 1880, 1884-1885, 68 L.Ed.2d 378) (1981).

Ross insists that he invoked his Fifth Amendment right to counsel at his first appearance in the DeKalb magistrate court. As a consequence, Ross argues, since the subsequent interrogation was initiated by the police and not by Ross, the admissibility of the taped statement should have been governed by the "per se" rule established by Edwards v. Arizona (see Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984)), rather than by the waiver standard of North Carolina v. Butler, supra.

Ross's argument is premised upon an assumption with...