Skipper v. State, 44802

• Decision Date: 12 February 1988
• Docket Number: No. 44802,44802
• Citation: 257 Ga. 802,364 S.E.2d 835
• Parties: SKIPPER v. The STATE.
• Court: Georgia Supreme Court

Page 835

364 S.E.2d 835

257 Ga. 802

SKIPPER v. The STATE.

No. 44802.

Supreme Court of Georgia.

Feb. 12, 1988.

Luman C. Earle, Hazlehurst (court-appointed), for Gilbert skipper, jr.

Glenn Thomas, Jr., Dist. Atty., Jesup, Michael J. Bowers, Atty. Gen., Atlanta, Dennis R. Dunn, Asst. Atty. Gen., for the State.

HUNT, Justice.

This is a death penalty case. Appellant, Gilbert Skipper, Jr., was convicted by a jury in Appling County of murder, aggravated sodomy and rape. He appeals. ¹ For reasons which follow, we affirm the conviction on all counts, but we vacate the death sentence and remand for a resentencing.

1. The evidence, considered in the light most favorable to the state, showed the following:

The victim, William Randall Morris, along with his wife Gretchen and their infant child, lived in a rented house with no telephone in rural Appling County, near the defendant. Approximately two weeks prior to the murder, the defendant and the victim got into an argument concerning whether the defendant had dropped the latter's baby. The victim told him to leave and not to return. The defendant left, stating, "Good luck living out here; you're going to need it."

Following certain incidents of harassment, the victim left a note in the defendant's mailbox that said, "Skipper, this ... better stop. I have already talked to the landlord about you. If I catch you doing anything else, I'm going to the law."

The next day, the defendant told his friend Homer Lane about the note and stated to him that he had to get rid of the victim, and that he "might have to kill the whole bunch ... his wife and baby."

The defendant borrowed a pickup truck and went to the victim's home armed with a .12 gauge shotgun and a pistol. The defendant pointed the shotgun at the victim, and when the latter ran, chased him around the house and shot him in the head. The defendant then dragged the wife and child through a cornfield to an area under a pecan tree. He forced the wife to orally sodomize him and then he raped her.

They returned to the house. The defendant broke out the porch light by striking it with his shotgun. Then, threatening to kill both the wife and the baby, he demanded a drink. He took her into the bedroom and continued to threaten her, at one point choking her with the belt of her bathrobe. Finally, he told her he would let them live, provided that she follow his specific instructions--she was to wait 30 minutes, and then run to the defendant's house to report that an unknown assailant had murdered her husband. He then left.

Thirty minutes later, the wife went to the defendant's house and reported the murder. Law enforcement officers were summoned, and the wife reported the crime as she had been instructed to, while the defendant stood by her side. One G.B.I. agent testified that "we couldn't separate the company of Mr. Skipper and Mrs. Morris ... everywhere Gretchen Morris went, the Skippers were around her." When a deputy sheriff prepared to take the wife to the station, the defendant attempted to get into the car with her, but was not allowed to do so.

After the law enforcement officers left, Homer Lane, who had stopped by in the meantime, asked the defendant "if he done it?" Lane testified that the defendant laughed and replied, "What do you think?"

After being removed from the presence of the defendant and being assured that her baby was safe in the custody of the police, the wife identified the defendant as the assailant and gave a lengthy statement recounting the attacks on her and her husband.

Investigators at the scene of the crime found tracks, including marks indicating someone had been dragged, leading from the house through a cornfield to an area under a pecan tree. There was an area "beat out underneath the pecan tree where it appeared some activity had taken place." The investigators noted that the front porch light had been broken out, and, entering the house, noted that the bed had vegetable debris on it, including a pecan leaf on the pillow.

Several months after his arrest, the defendant called the sheriff and admitted that he had killed the victim with his shotgun.

a. The defendant contends that the evidence is insufficient to support the murder verdict. He points to evidence tending to show that the victim, and not the defendant, was the real troublemaker, and that the victim had threatened to kill the defendant. The defendant testified that he shot the victim only when it appeared to him that the victim was reaching for a weapon, and he therefore acted in self-defense. At most, he argues, he is guilty of voluntary manslaughter.

We conclude that the evidence, considered in the light most favorable to the state, was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

b. He argues next that the evidence is insufficient to support his conviction for rape and aggravated sodomy. He relies on the lack of notable physical harm such as lacerations or bruises on the wife's body, on the fact that no sperm or seminal fluid was discovered when she was examined by a doctor, and on the fact that she did not immediately report these offenses.

Other than the penetration of the female sex organ by the male sex organ, the infliction of physical injury is not an element of the offense of rape. OCGA § 16-6-1; Searcy v. State, 158 Ga.App. 328(2), 280 S.E.2d 161 (1981).

The crime of rape is completed when, forcibly and against the will of the victim, the defendant penetrates the female sex organ with his male sex organ. Ejaculation is not an element of rape, and "[i]t is not necessary that the examining physician find semen in the victim's body. [Cit.]" Perry v. State, 154 Ga.App. 385, 386, 268 S.E.2d 747 (1980).

The lack of an "immediate outcry," is a relevant circumstance. However, the jury was entitled to determine from the evidence in this case that the wife's delay in reporting the rape and aggravated sodomy was the result of her fear of the defendant, and did not indicate subsequent fabrication.

The evidence supports the defendant's conviction for these offenses. Jackson v. Virginia, supra.

2. We find no error in the denial of severance. Childs v. State, 257 Ga. 243(1), 357 S.E.2d 48 (1987).

3. The defendant complains of a number of instances of prosecutorial misconduct. However, he did not object at trial to any of these alleged instances of misconduct. Many of his examples of alleged misconduct (e.g., referring to the sheriff in closing argument as "your" sheriff), were not objectionable. Moreover, some of the matters that could have been objected to, as, for example, certain instances of cross-examination, see Cargill v. State, 255 Ga. 616, 631(17a), 340 S.E.2d 891 (1986), did not amount to prosecutorial misconduct; they were merely matters that could have been, but were not, objected to. See Spivey v. State, 253 Ga. 187, 191, 319 S.E.2d 420 (1984). We find no reversible error here. Davis v. State, 255 Ga. 598, 610(17), 340 S.E.2d 869 (1986).

4. The trial court did not abuse its discretion by granting a request for excusal to a 72-year-old juror with a heart condition who had a doctor's appointment the next day in another town. Compare OCGA § 15-21-1(b).

5. Inasmuch as the defendant is white, the trial court did not err by declining to address the defendant's claim that the prosecutor discriminated against blacks in the exercise of his peremptory challenges. "In Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 1764-65, 90 L.Ed.2d 137 (1986), the Supreme Court refused to extend the fair-cross-section requirement to petit juries, and we decline to do so here." Lindsey v. Smith, 820 F.2d 1137, 1145 (11th Cir.1987). Under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), a defendant may raise an equal-protection claim of discrimination only with respect to the removal from the venire of members of his own race. Pope v. State, 256 Ga. 195, 202(7f), 345 S.E.2d 831 (1986).

6. During its direct examination of G.B.I. agent Sweat, the state asked, "[D]id you appear before the grand jury of this county and testify regarding this particular indictment, sir?"

The defendant objected and moved for a mistrial. The trial court sustained the objection, denied the motion for mistrial, and instructed the jury to disregard the question. During its charge to the jury, the court gave the usual instruction that the indictment is not evidence, but is merely the manner in which charges are brought before the court for trial.

It is not clear from the record why the state asked the question or what its relevance may have been, but any possible error was cured by the court's response to the defendant's objection.

7. The state also asked agent Sweat a question concerning what the victim's wife had said to him after she was brought to the Appling County Sheriff's office. Sweat answered, "I explained again who I was, told her that we needed to talk with her about the situation, and asked her to tell me what had happened. The initial statement she gave was rehearsed."

The defendant objected to the last sentence of this answer on the ground that whether or not the initial statement was rehearsed was a question for the jury and that the witness was not qualified to give such an opinion. The state conceded the validity of the objection and offered to rephrase the question. The questioning continued with no further objection or motion in this regard by the defendant.

He now claims the answer violated the rule set forth in Fordham v. State, 254 Ga. 59, 325 S.E.2d 755 (1985), prohibiting the giving of opinions...