Rower v. State

• Court: Georgia Court of Appeals
• Writing for the Court: BIRDSONG
• Citation: Rower v. State, 466 S.E.2d 897, 219 Ga.App. 865 (Ga. App. 1995)
• Decision Date: 18 December 1995
• Docket Number: No. A95A2075,A95A2075
• Parties: ROWER v. The STATE.

Page 897

466 S.E.2d 897

219 Ga.App. 865

ROWER v. The STATE.

No. A95A2075.

Court of Appeals of Georgia.

Dec. 18, 1995.

Reconsideration Denied Jan. 19, 1996.

Certiorari Denied April 25, 1996.

Murder, etc. Cobb Superior Court. Before Judge Kreeger.

Kennedy & Kennedy, David M. Simpson, Marietta, Edwin Marger, Jasper, Gordon E. Billheimer, Jr., Marietta, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Russell J. Parker, Assistant District Attorneys, Marietta, for appellee.

BIRDSONG, Presiding Judge.

Curtis Alfonzo Rower was indicted for murder, kidnapping with bodily injury, two counts of kidnapping, and armed robbery, for kidnapping Sarah Ambrusko Tokars and her two young sons, Ricky and Michael, from her home and shooting Sarah Ambrusko Tokars to death. He was convicted on all charges except murder, as to which a mistrial was declared.

The evidence shows that at about 10:00 or 11:00 p.m. on November 29, 1992, Mrs. Tokars and her two sons Ricky and Michael were ambushed by appellant as they arrived home after a Thanksgiving trip. Appellant brandished a shotgun at Mrs. Tokars and her sons and ordered them to get back in the car. Appellant got in the car with Mrs. Tokars and her sons. Appellant, sitting in the back seat next to the sleeping Michael and brandishing his gun, ordered Mrs. Tokars to drive. He shot Mrs. Tokars in the head from a distance of only five inches. Her car careened out of control and landed in a field. The abrupt stop of the car caused Ricky to hit his head and Michael to wake up. In a state of panic, screaming and crying, nervous, scared and distraught, the boys ran to a nearby house and yelled for help, saying "Our mom's been shot." The occupants of the house could see Mrs. Tokars' car about 120 yards away. The man who opened the door saw brain matter, a "mixture of blood and some kind of white material" on top of the older boy's head. The older boy said a man had shot his mother because she would not turn right when he told her to turn right. Some of the occupants of the house called 911 and went to Mrs. Tokars' car. Two men opened the driver's door and Mrs. Tokars slumped out. Other occupants of the house also ran to the car. One man was holding Mrs. Tokars up, keeping her from falling out of the vehicle; another man shifted her body back into the vehicle. When a policeman arrived and spoke to the two boys, he saw a considerable amount of blood on the older boy's hands and face and what appeared to be brain matter in his hair. The boy told the policeman that the black man told his mother to turn at a certain location "and she refused. At that point his mother screamed and pushed him down into the floorboard. He heard a loud shot" and the black man got out of the car but the boy did not know where he went. There was abundant evidence identifying appellant as the man who committed these crimes. On appeal of the convictions, Rower enumerates three errors. Held:

1. Appellant contends the trial court abused its discretion in denying his motion to strike for cause the prospective juror Pepin, who indicated in his written juror questionnaire that he held "strong racial prejudice views" which would prevent him from being an impartial juror but later, on voir dire explained that he gave such answers because he wanted to avoid jury duty. This juror did not serve in the case, but appellant's position is that he was erroneously forced, to his harm, to use a peremptory strike to remove this prospective juror. Appellant urges that a juror may be disqualified even though he insists he is not biased (Lively v. State, 262 Ga. 510, 421 S.E.2d 528) and that blatant racial prejudice has no place in the jury box. See Tennon v. State, 235 Ga. 594, 220 S.E.2d 914. Appellant contends the very fact that Pepin admitted he was dishonest in his questionnaire proves false his later statements on voir dire that he could be a fair and impartial juror.

Under assiduous questioning on voir dire, under oath, Pepin stated that despite what he had written on his questionnaire, he "could make a fair decision." He admitted he had not been honest in his responses to the questionnaire because he did not want to sit on the jury as he works on commission and had just started a job and if he does not work he does not get paid. He admitted to having used a certain vulgar racial epithet when referring to African-Americans. He admitted to a degree of racial prejudice but said he would listen to the evidence. Under oath he said the fact that appellant is black and Mrs. Tokars was white would not impair his ability to consider the case fairly; that the fact that he held strong Christian beliefs would not impair his ability to consider the evidence fairly; that he could fairly consider the issue of punishment and could "make a fair decision"; that, despite his questionnaire response that persons he knows including himself exhibit strong racial prejudice views, he did not have any prejudice that would prevent him from serving as a juror, as he believed "everybody has a little prejudice in them, but I feel that ... you know, if I was selected, I could make a fair decision." The defense put questions to Pepin as to whether he had had "problems with black people" and he said he had socialized with them well, had no problem in school, and that his problems with black persons "if any" had occurred while he was in college; that he felt white males were oppressed by other ethnic groups who made it seem white males were oppressing them; that he believed, from watching news programs, that Muslims were feisty, rough-natured trouble-causers but that he knew nothing about Buddhists and felt "each to their own beliefs." He stated that he is a Christian and that if he found appellant was not a Christian, he would listen to everything to make a fair decision and would give appellant the same consideration as a Christian, and that he would take into account the defendant's views but he would deal with appellant as he would a Christian white male and that he would not treat appellant any differently than he would a white man who was a member of his church; that he has black friends and although he had used a vulgar racial epithet many times in the past year, he thought this was "normal" behavior for some people and he did not feel there was anything particularly wrong with it. He said that based on a news report he had seen, he did not think black people were as "bright" as white people but he explained this was because they do not have the opportunity to study and he thought that if black people had equal education they would "come out with the same type of reasoning as [white people]" but they do not have such education because of "a lack of motivation to go and they're taught to believe that, you know, they are not going to get ahead"; that he does not think blacks are more of a problem in schools and could not say whether they cause more crime in schools than do whites and in his experience in school, blacks and whites are in a same level on everything; that black teachers are as good as white teachers; that he could listen to mitigating evidence and would take the defendant's background and upbringing into consideration as mitigating circumstances relevant to the crime committed; that the mere fact that he had found a person had committed felony murder would not dictate whether he would give him a death sentence. These are the statements and elaborations he made under oath.

The prospective juror Pepin did not possess any characteristic or fit any category of persons which would authorize or require a challenge for cause as expressly provided in OCGA § 15-12-163. As to whether Pepin's prejudice was so great he should have been stricken as a matter of law, the Supreme Court has held: "Before a juror can be disqualified for cause, it must be shown that an opinion held by the potential juror is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court's charge upon the evidence." Johnson v. State, 262 Ga. 652, 653, 424 S.E.2d 271. In order to obtain a new trial for failure of the trial court to strike...