Rucker v. State

• Decision Date: 19 January 1999
• Docket Number: No. S98A1634.,S98A1634.
• Citation: 510 S.E.2d 816,270 Ga. 431
• Parties: RUCKER v. The STATE.
• Court: Georgia Supreme Court

510 S.E.2d 816

270 Ga. 431

RUCKER v. The STATE.

No. S98A1634.

Supreme Court of Georgia.

January 19, 1999.

Kenneth D. Kondritzer, Clarkesville, for Tony Rucker.

Michael H. Crawford, Dist. Atty., Clarkesville, Thurbert E. Baker, Atty. Gen., Frank Anthony Ilardi, Asst. Atty. Gen., Paula K. Smith, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State. BENHAM, Chief Justice.

A jury convicted appellant Tony Rucker of malice murder in connection with the 1997 death of Linda Gail Tate, the mother of Rucker's son.¹ Police responding to an emergency call placed by the victim's nine-year-old son found the victim in the back passenger seat of a car parked in front of the home she shared with appellant and their son. The boy testified that he and his parents had driven to a nearby town where he and his mother had dropped appellant off at a pool hall. The child testified that when he and the victim returned to pick up appellant, appellant got in the driver's seat of the car, the victim got in the back passenger seat, and appellant pulled a gun from his pocket. He showed it to the victim and shot her five or six times. The police chief of the town testified that he had encountered appellant in the parking lot near the pool hall just before the victim and her son had picked up appellant. The chief had heard a metal object land on the asphalt and found a handgun that appellant and another man with him in the lot both denied owning. Believing the gun to belong to one of the men, the chief gave the gun to the second man because appellant appeared to the chief to be angry and offensive. That man testified that the gun belonged to appellant and that he had returned the weapon to appellant as soon as the chief left, shortly before appellant got into the car with the victim and the child. The medical examiner who performed the autopsy testified that the victim died from gunshot wounds to her chest, stomach, and arm.

1. The evidence was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that appellant was guilty of malice murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. During voir dire, a venireperson responded affirmatively to trial counsel's suggestion that the venireperson's former employment in a sheriff's office and her marriage to a police officer had caused her to believe that an indicted individual would have to prove the incorrectness of the indictment. Thereafter, the venireperson responded affirmatively to the trial court's inquiry whether she would be able to lay aside any feeling or opinions she had about law enforcement and render a verdict based solely on the evidence presented. The trial court denied appellant's motion to excuse the venireperson for cause and denied appellant's motion for new trial based on that ruling. Appellant contends on appeal that the venireperson clearly indicated her lack of impartiality, making it error for the trial court to refuse to excuse her for cause.

The decision to excuse a potential juror for cause lies within the sound discretion of the trial court. Garland v. State, 263 Ga. 495(1), 435 S.E.2d 431 (1993). A prospective juror may be excused for cause upon a showing that the venireperson holds an opinion "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(2), 424 S.E.2d 271 (1993). Since the venireperson's response to the trial court's questions demonstrated that she could set aside her initially-expressed opinion and could decide the case on the evidence, the trial court did not abuse its discretion in denying the motion to excuse for cause. Raulerson v. State, 268 Ga. 623(4), 491 S.E.2d 791 (1997).

3. Appellant contends that the trial court's instruction on reasonable doubt, a nearly verbatim recitation of the pattern jury instruction (Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (D) (2d Ed. 1997)), infringed upon appellant's constitutionally-guaranteed due process rights by erroneously diminishing the State's burden of proof when it stated that a "doubt of the law" authorizing acquittal of the defendant exists if the jurors' "minds are wavering or unsettled or unsatisfied...."

"In all state criminal trials, the Due Process Clause of the Fourteenth Amendment `protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the accused] is charged.'" Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990). The charge with which the U.S. Supreme Court found fault in Cage used words which suggested a higher degree of doubt for acquittal than is required under the reasonable doubt standard. Id., 498 U.S. at 39, 111 S.Ct. 328. In the case at bar, the description of the quantum of doubt necessary for acquittal (wavering, unsettled, or unsatisfied minds) did not authorize the jury, explicitly or implicitly, to find guilt by a standard less than that required by the Due Process Clause. Potts v. State, 261 Ga. 716(14), 410 S.E.2d 89 (1991). See also Payne v. State, 233 Ga. 294, 310-311, 210 S.E.2d 775 (1974).

4. Appellant next contends that the trial court erroneously admitted allegedly inflammatory and prejudicial pre-incision autopsy photographs of the victim. According to the testimony of the medical examiner, the photos at issue depicted entry and exit wounds, one of which contained a bra stay that had penetrated the wound as a result of the gunshot. Pre-incision photos such as the ones currently at issue which depict the location and nature of the victim's wounds are admissible because they are relevant and material. Williams v. State, 266 Ga. 882(2), 471 S.E.2d 888 (1996). See also Johnson v. State, 266 Ga. 775(8), 470 S.E.2d 637 (1996). There was no error in admitting the photos into evidence.

5. Appellant next complains that his rights to due process and a fair trial were denied by the use of a preprinted verdict form which appeared as follows:

VERDICT

We, the jury, find the defendant:

Guilty of the offense of malice murder. OR

Guilty of the offense of felony murder. OR

Not guilty.

The jury completed the form by placing a checkmark on the uppermost line. Appellant finds support for his position in Smith v. State, 249 Ga. 228(5), 290 S.E.2d 43 (1982) and Chapman v. State, 258 Ga. 214(4), 367 S.E.2d 541 (1988). In dicta in Smith,² this Court urged that care be given when supplying a preprinted jury verdict form to a jury "lest the jury draw an inference, however unfounded, of pre-disposition on the part of the trial judge." 249 Ga. at 232,290 S.E.2d 43. Expressing concern that some jury "might perceive the antecedence of the word `guilty' over the words `not guilty' to be an expressive view of the court[,]" the Court suggested that the "safer" practice would be to omit "guilty" and "not guilty" from the verdict form and have the jury write in its verdict. Six years later, the Court reiterated its suggestion about the relative safety of having the jury complete the verdict form by hand, but found no error in the use of a verdict form that did not comport with the Court's suggestion since the form "show[ed] a clear option of a not guilty verdict so that no reasonable juror could have been misled into believing that option was not available...." Chapman v. State, 258 Ga. 214(4), 367 S.E.2d 541 (1988). More recently, in Jackson v. State, 267 Ga. 130(13), 475 S.E.2d 637 (1996), we ruled that it was not error to supply the jury with a preprinted verdict form which "did not suggest to the jury how to fill in the form, and [on which] the word `guilty' was not antecedent over the words `not guilty.'"

Prior to publication of the Court's suggestion in Smith, this Court had determined that providing the jury a preprinted verdict form was a matter of convenience and did not intimate any opinion as to guilt or innocence if the jury clearly understood the verdict was to be based on the evidence in the case. Jackson v. State, 237 Ga. 663, 664, 229 S.E.2d 345 (1976). Justice Carley, while a member of the Court of Appeals, interpreted Jackson as holding that "[u]se of a printed verdict form ... is not reversible error absent erroneous instructions to the jury...