Stevens v. State, 36943

• Decision Date: 02 June 1981
• Docket Number: No. 36943,36943
• Citation: 247 Ga. 698,278 S.E.2d 398
• Court: Georgia Supreme Court
• Parties: STEVENS, a/k/a Stephens v. The STATE.

Page 398

278 S.E.2d 398

247 Ga. 698

STEVENS, a/k/a Stephens v. The STATE.

No. 36943.

Supreme Court of Georgia.

June 2, 1981.

Rehearing Denied June 23, 1981.

[247 Ga. 710] Charles L. Wilkinson, III, Augusta, for William Kenny Stevens.

Richard Allen, Dist. Atty., Arthur K. Bolton, Atty. Gen., Harrison, Kohler, Asst. Atty. Gen., Augusta, for State.

JORDAN, Chief Justice.

The defendant was indicted on one count of murder and three counts of aggravated assault: the victim in each count being a police officer. He was found guilty on all charges and sentenced to death for the murder and to twenty years on each count of aggravated assault to be served consecutively.

The record establishes that on January 22, 1979, the police stopped the defendant for questioning regarding the burglary of a department store in which several weapons had been taken. It was discovered that he was driving under the influence and without a license, whereupon he was arrested. After being questioned at the police station, the defendant agreed to ask around and find out who was involved in the burglary in exchange for his release upon his own recognizance. As a condition to his release, he was to report back by a certain time. When he did not contact the officer at the appointed time, nor for two days thereafter, the police began to look for him. On January 24, investigator Larry Stevens of the Richmond County Sheriff's Department located the defendant, followed him a short way and then stopped him. When the officer stopped the defendant, he radioed this fact and his location to fellow officers.

After the investigator stopped his automobile, he opened his car door and apparently leaned back to do something with his radio. The defendant fired into the car through the windshield striking investigator Stevens in the right forearm and rendering his right arm below the elbow useless. The police officer managed to get his gun out and fired wild shots through his automobile at the defendant. The defendant fired a second shot striking the officer in the right side. Then the defendant walked to the rear of the investigator's automobile, turned, raised the weapon up to shoulder height, and fired in a very calm, deliberate manner through the rear window. The round hit the officer in the chest and was almost immediately fatal. The defendant then went to his car and drove off at a high rate of speed. He intended to go to his mother's house, but stopped on the way at a store to purchase more ammunition. When he approached his mother's house, authorities were waiting for him, and a high speed pursuit then occurred. This occurred approximately twenty-five minutes after the murder. Officers finally trapped the defendant in a cul-de-sac, and a gun battle with the police then ensued. The defendant maintained that when investigator Stevens stopped him, he exited his automobile with a loaded rifle in order to show the officer that he had recovered some of the guns from the burglary and that as he approached the officer's car, the officer, for no reason, shot at him at which instance the defendant then opened fire shooting the officer in self-defense.

"Monkey" Warren testified that the defendant and Paul Lewis came to him on the Sunday night before the victim was killed and showed him some guns they wanted to sell him. The defendant showed him a rifle of the same type that killed the victim and when he didn't want to buy it, the defendant shot through the floor and left.

ENUMERATIONS OF ERROR

1. In enumeration of error 1, the appellant contends the trial court erred in overruling his motion to sever the murder count from the aggravated assault counts for trial. The defendant relies on Dingler v. State, 233 Ga. 462, 211 S.E.2d 752 (1975) in support of his argument. In Dingler, supra, p. 463, 211 S.E.2d 752, the court held: "The ABA Standards on Joinder of Offenses provides: 'Two or more offenses may be joined in one charge, with each offense stated in a separate count, when the offenses ... (b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.' "

All the present charges against the defendant arise out of a continuous course of conduct and therefore come within the above quoted standard for joinder of offenses, escape being necessarily a part of the crime. See Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979). There is no merit in From the nature of the entire transaction, it would be almost impossible to present to a jury evidence of one of the crimes without also permitting evidence of the other crimes to be introduced, as the murder of the police officer was the probable cause for the chase and the stopping of the defendant which resulted in the shootout. Owens v. State, 233 Ga. 869, 214 S.E.2d 173 (1975). Cf. Padgett v. State, 239 Ga. 556, 238 S.E.2d 92 (1977); Haisman v. State, 242 Ga. 896, 252 S.E.2d 397 (1979).

this enumeration of error. Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975).

2. In enumerations of error 2 and 6, the appellant contends the trial court erred in overruling defendant's motion for sequestration of the jury panel during individual voir dire and his renewed motion for the same. The defendant argues that presence of peer pressure, when jurors are questioned in the presence of each other, could result in bias or prejudice, although he cites no incident of actual bias or prejudice.

In Whitlock v. State, 230 Ga. 700(5), 198 S.E.2d 865 (1973), this court held that the right to individual examination of jurors given by Code Ann. § 59-705, "... does not encompass isolated examination." The court affirmed its holding in Finney v. State, 242 Ga. 582(4), 250 S.E.2d 388 (1978) and held: "... that whether or not this individual questioning of the jurors is to take place outside of the presence of the other jurors is one of those matters lying within the sound discretion of the trial court. Cf. Arnold v. State, 236 Ga. 534(6), 224 S.E.2d 386 (1976)."

The defendant does not show an abuse of discretion or any prejudice resulting from the failure to allow individual examination of the jurors; there is no merit in these enumerations of error. Messer v. State, 247 Ga. 316, 276 S.E.2d 15 (1981); High v. State, 247 Ga. 289, 276 S.E.2d 5 (1981).

3. In enumeration of error 3, the defendant argues that the trial court erred in overruling his motion to quash the indictment which was premised on the indictment's listing of three other names for the defendant under "also known as." The defendant argues that this was done in a deliberate attempt to prejudice the jury into thinking that before them stood, not just a man accused of a serious crime, but a desperado, i. e. one with many aliases. All but one of the listed names were different spellings or abbreviations of the appellant's names.

A motion to quash is not a proper remedy for striking an alias from an indictment. The defendant should have filed a special plea of misnomer averring that he had never been known by any of the names set out in the indictment. Andrews v. State, 196 Ga. 84, 110, 26 S.E.2d 263 (1943). Where an accused is known by different names, however, it is lawful for the indictment to identify the accused by such names as aliases. Allen v. State, 231 Ga. 17, 200 S.E.2d 106 (1973).

In the present case, two of the former convictions introduced at the sentencing phase of the defendant's trial were in the names of two of the aliases listed in the indictment. There is no merit in this enumeration of error.

4. In enumeration of error 4, the appellant contends the trial court erred in overruling his motion for change of venue. In the present case, there were some four articles about the shooting and two editorials and four letters from the public concerning the death penalty as related to the killing of police officers. All of these appeared within a three-week span after the death of the officer, and defendant's trial was not until one year later. Additionally, there were several news reports on radio and television stations at the time of the occurrence.

Although thirty-four of the forty-six jurors stated that they had either read or heard a news broadcast of the occurrence, none of them thought it would influence their decision in the case.

In Mooney v. State, 243 Ga. 373, 385, 254 S.E.2d 337 (1979), in a very lengthy analysis of pre-voir dire motions for change of venue, this court reiterated the holding set out The defendant has failed to show a "pattern of deep and bitter prejudice created by pretrial publicity present throughout the community." Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1960). This enumeration of error is without merit. See Coleman v. State, 237 Ga. 84, 226 S.E.2d 911 (1976); Collier v. State, supra; Green v. State, 246 Ga. 598, 272 S.E.2d 475 (1980); Dick v. State, 246 Ga. 697, 273 S.E.2d 124 (1980).

in Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1974) that a defendant is entitled to a panel of impartial jurors, but that this does not require that they be totally ignorant of the facts and issues involved. Review of the voir dire reveals that most of the jurors had very little recollection of any articles appearing over a year ago. Most of the prospective jurors answered that they vaguely remembered reading something about a deputy being killed. All of the jurors answered upon careful [247 Ga. 702] examination by the court that they were not influenced in any way by listening to recent radio broadcasts. "The test as to whether the pretrial publicity has so prejudiced a case that an accused cannot receive a fair trial is whether the jurors summoned to try the case have formed fixed opinions as to guilt or innocence of the accused from reading such publicity." Dampier v. State, 245 Ga. 427, 265 S.E.2d 565 (1980). No juror was excused by the court for prejudice arising out of pre-trial publicity. See Messer v. State, supra.

5. In...