Solomon v. State

• Decision Date: 14 November 1980
• Docket Number: No. 36363,36363
• Citation: 277 S.E.2d 1,247 Ga. 27
• Parties: SOLOMON v. The STATE.
• Court: Georgia Supreme Court

Page 1

277 S.E.2d 1

247 Ga. 27

SOLOMON v. The STATE.

No. 36363.

Supreme Court of Georgia.

Decided Nov. 14, 1980.

Rehearing Denied Jan. 19, 1981.

Certiorari Denied May 18, 1981.

See 101 S.Ct. 2348.

Judson R. Knighton, Marietta, for appellant.

Thomas J. Charron, Dist. Atty., Mary E. Staley, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Susan V. Boleyn, Asst. Atty. Gen., for appellee.

UNDERCOFLER, Chief Justice.

Van Roosevelt Solomon appeals from the sentence of death imposed on September 27, 1979, following his conviction for the murder of Roger Dennis Tackett committed on June 17, 1979, in Cobb County, Georgia. Following conviction, the jury found the following aggravating circumstances; that the offense of murder was outrageously vile, horrible or inhuman in that it involved torture, depravity of mind, and an aggravated battery to the victim; and that the offense of murder was committed while the offender was engaged in the commission of another capital felony, to wit: armed robbery.

The State presented evidence authorizing the jury to find the following facts: The victim, Roger Dennis Tackett, was the manager of a Tenneco self-service gasoline station. Two employees, Linda Rosenfield and Carol Menfee, were working the evening shift and realized that they did not have the keys to lock the station when it closed at midnight. One employee talked to the victim by phone who then came into the station at 11:20 p. m. in order to lock the store after closing. After the station closed, the two employees left and the victim locked the station but remained to catch up on some paper work in order that he could be with his family the next day, which was Father's Day. At approximately 1:00 a.m., Linda Rosenfield drove by the Tenneco station and noticed the victim's car still parked in front of the store.

Early in the evening on the 16th of June, Jill Cindy Rhoda picked up her dinner date at an apartment complex located near the Tenneco station. She drove her date back to his apartment at approximately 12:30 a.m. They argued and her date took her car keys and went to his apartment. Ms. Rhoda contacted the police in order to get her keys back. Officer Kendle of the Cobb County Police Department accompanied her to the apartment complex, but she could not find her boyfriend's apartment. She did, however, remember his phone number. At approximately 1:50 a.m., the officer drove her to the Tenneco station in order to call and find out where the apartment was. When they arrived at the station, Ms. Rhoda went to use the pay phone. Officer Kendle noticed an unattended green Dodge automobile parked in front of the station with its door open and a loaf of bread in the front seat. As he went to investigate, he noticed a black male, later identified as Wilbur May, open the back storeroom door inside the station, quickly look out and then close the door. He found the front door of the station to be unlocked, drew his weapon, and proceeded inside. As he walked through the store, he heard three closely spaced shots, a pause, and then another shot. The officer ordered the person in the storeroom to come out but did not get a response. He opened the door and standing near a walk-in cooler were two black males, Wilbur May and the appellant. He placed both persons under arrest and asked what they were doing there. The defendant said that "they were burglarizing." The officer handcuffed May, however, the officer was unable to cuff the appellant as he only had one pair of cuffs. The appellant was taken to the officer's patrol car and secured in the back seat. Wilbur May was then taken out of the store and was placed spread-eagle on the hood of the officer's patrol car. The officer then advised both the appellant and his co-defendant of their Miranda rights. A private security guard in the area who had heard the call for backup units arrived at the Tenneco station and helped to effectuate the arrest. Later, other units of the Cobb County Police Department arrived. Officer Kendle then had the police radio operator call the emergency number listed on the door of the Tenneco station. He learned that the victim was supposed to be in the store at the time. The officer and the security guard then broke into the back of the store using a crowbar. When they entered, they found the victim's body. He had been beaten and shot five times. There was a time interval of approximately twenty to thirty-five minutes between the arrest and the discovery of the victim's body. Near the body the officers found two guns, one of which still had the hammer cocked. One of the guns, a Colt .38 short revolver, had four spent rounds in the chambers. The other, a Smith & Wesson .38, had one spent round. Also, discovered near the scene, well hidden in underbrush, was a van that the appellant and his co-defendant were driving. It contained a large number of tools.

The appellant at the time of his arrest was wearing brown cotton gloves. As he was transported to the jail, he hid them in the patrol vehicle but they were later retrieved by the officer.

The appellant later gave a statement in which he said that he and Wilbur May had been driving around, and he wanted to show Mr. May the Atlanta area. He said that he did not know how the van got to the Tenneco station, because he was tied up in the back of the van by Mr. May. He stated that Mr. May untied him and made him go into the Tenneco station and put him into the cooler. He did not hear any sounds nor did he remember having gloves on.

Both the appellant and his co-defendant were subjected to neutron activation tests, and both were determined to have recently fired weapons.

Enumerations of Error

1. In his first enumeration of error, the appellant contends that his retained trial counsel failed to render reasonably effective assistance in the trial of his case. Appellant advances eight acts or omissions which he contends illustrate ineffective assistance of counsel. This court concludes after careful review of the record that the alleged acts or omissions did not constitute ineffective assistance of counsel. Jones v. State, 243 Ga. 820, 256 S.E.2d 907 (1979).

While other counsel, had they represented appellant, may have exercised different judgment, the fact that the trial counsel chose to try the case in the manner in which it was tried and made certain difficult decisions regarding the defense tactics to be employed with which appellant and his present counsel now disagree, does not require a finding that the representation below was so inadequate as to amount to a denial of effective assistance of counsel. Estes v. Perkins, 225 Ga. 268, 167 S.E.2d 588 (1969).

It is apparent from the record that the defense counsel was familiar with the facts of appellant's case and that he filed numerous pre-trial motions and argued them vigorously. At trial, he conducted an extensive voir dire examination, cross examined witnesses and argued in defense of his client. He objected during trial and presented evidence in mitigation during the sentencing phase. See Lewis v. State, 246 Ga. 101, 268 S.E.2d 915 (1980).

Appellant argues that trial counsel should have objected to the introduction of prior convictions during the pre-sentence hearing. He contends that one of these convictions was rendered when the appellant was fifteen years old, and therefore, a juvenile. He also argues that the Oklahoma statute defining males as juveniles until the age of sixteen and females as juveniles until the age of eighteen was declared to be in violation of the equal protection clause of the United States Constitution. Therefore, the convictions were invalid. However, in Case No. C960, assault with a deadly weapon, the sentence plainly showed that the appellant was represented by counsel and was tried as an adult. In Case No. C1053, the appellant was tried also as an adult and was age seventeen. He was represented by counsel in that case. The same is true in Case No. C1118, armed robbery. Furthermore, the records were properly authenticated in that the prior convictions were proved by the records of the Oklahoma Department of Corrections and such records bore the attestation of the custodian and of the Secretary of State. Code Ann. § 38-630; see Smith v. Hart, 243 Ga. 59, 252 S.E.2d 470 (1979). The fact that the records of the Department of Corrections of Oklahoma contained multiple photographs commonly known as mug shots of the appellant was not grounds to exclude them. The records of prior convictions being admissible, it follows that appellant's retained counsel was not ineffective for failing to object to them. Appellant contends that his retained counsel should have voir dired prospective jurors on racial prejudice in that the county in which he was being tried was predominantly white while the appellant was a black man. Furthermore, appellant asserts that counsel should have stricken a juror who stated on voir dire that he heard privileged information as to the case but that he could not remember it. Trial counsel extensively voir dired prospective jurors and the range of voir dire examination and the use of preemptory strikes are matters that address themselves to trial tactics. Trial counsel submitted to the court a pre-evidentiary charge which instructed the jury that opening statements were to assist the jury in understanding the evidence but that such statements were not evidence and were not to be considered evidence unless they were found to be supported by the evidence. See Sears v. Smith, 221 Ga. 47(6), 142 S.E.2d 792 (1965). The trial court in its charge at the close of the guilt-innocence phase of the trial charged as to the weight to be given argument of counsel. The pre-evidentiary charge when considered as a whole was favorable to the defendant, and it is apparent that trial counsel benefited his client by submitting the same to the court.

Although it is noted herein that the trial counsel filed numerous ...