Street v. State

• Decision Date: 09 July 1976
• Docket Number: No. 30644,30644
• Citation: 237 Ga. 307,227 S.E.2d 750
• Parties: George STREET v. The STATE.
• Court: Georgia Supreme Court

Page 750

227 S.E.2d 750

237 Ga. 307

George STREET v. The STATE.

No. 30644.

Supreme Court of Georgia.

July 9, 1976.

Rehearing Denied July 22, 1976.

E. Kontz Bennett, Jr., Dennis J. Strickland, Waycross, for appellant.

Dewey Hayes, Dist. Atty., Douglas, Dean Strickland, Asst. Dist. Atty., Douglasville, Arthur K. Bolton, Atty. Gen., Kirby G. Atkinson, Staff Asst. Atty. Gen., Atlanta, for appellee.

UNDERCOFLER, Presiding Justice.

The appellant, George Street, was indicted by the Pierce County Grand Jury for murder and armed robbery occurring on October 14, 1974. Following a trial by jury from December 16, 1974, to December 19, 1974, the appellant was convicted on both counts and sentenced to death for murder and life for armed robbery. The case is here on appeal and for review of the death sentence imposed.

I. Summary of the Evidence.

On the morning of October 14, 1974, the appellant's common-law wife, Ruby Taylor, went into labor and was taken to the Pierce County Hospital for delivery. The hospital policy required that before a patient could be transferred from the emergency room (treatment room) into the hospital, proper arrangements had to be made to cover the hospital expense.

The appellant was seen at the hospital at 6:30 a.m., 9:00-9:30 a.m., and again at 2:00-2:30 p.m. on October 14, 1974. On the latter occasion, the appellant was noticed to have a bandage wrapped around two fingers of his left hand. He also paid $29.00 on the hospital bill of Ruby Taylor.

Mr. M. B. 'Red' Herrin, the victim, drove a school bus and operated a taxi service. Herrin's unattended cab was first noticed at 12:30 p.m. A subsequent search for the victim resulted in finding his body, with his throat cut and fourteen other stab wounds, placed head first in an old well behind an abandoned house. There were numerous blood stains in the cab and around the house where the crime occurred.

The appellant had been seen in the victim's cab.

The appellant was subsequently apprehended and after being advised of his constitutional rights he made a statement, in summary as follws:

After leaving the hospital, and before lunch, the appellant contacted Mr. Herrin to drive him to his mother-in-law's home. When they arrived at her home, the appellant stayed for a few minutes before returning to the taxi. Mr. Herrin then drove him back into town where Street attempted to telephone his mother, who did not answer the phone. The appellant then had Mr. Herrin return him to his mother-in-law's home, and thereafter drive him back into town where he again tried unsuccessfully to call his mother. At that point, Mr. Herrin informed the appellant that his fare was now $38.00. The appellant knew he had only $20.00 so he instructed Mr. Herrin to drive him to his brother-in-law's where he would get the money. He directed Mr. Herrin to the abandoned house under the pretense that his brother-in-law resided there. When they arrived at the house the appellant went inside, returned and told Mr. Herrin that his brother-in-law had apparently moved. Mr. Herrin then informed Street that he must pay the fare or he would take him to the sheriff. The appellant stated that he was not goint to the sheriff's office, at which time Mr. Herrin got out of the taxi and they started tussling. The appellant drew his hawk bill knife and slashed Mr. Herrin. He then ran into the house followed by Mr. Herrin. The appellant ran through the house and circled behind Mr. Herrin. Mr. Herrin continued Personal items belonging to the victim, including a billfold and a watch that appellant had been seen wearing were found in a search of the house where the appellant was living as well as the murder weapon, a hawk bill knife.

through the house and went over near the well and as he turned, George Street pushed him head first into the well. The appellant then ran to the taxi and drove it back into Blackshear where he abandoned it.

An autopsy revealed that Mr. Herrin suffered numerous knife wounds. The cause of death was multiple deep knife wounds and drowning.

II. Enumerations of Error.

1. In Enumeration 1 the appellant alleges the court erred in overruling his motion for change of venue.

The grounds of the motion were extensive adverse pre-trial publicity making a fair trial in the county or surrounding counties unobtainable, and danger of violence to the defendant.

We note there was no violence toward the appellant during the trial. That much of the ground for change of venue is moot.

The appellant based his motion on news articles in the Blackshear Times on October 17, 1974, October 24, 1974, and November 14, 1974, and the Waycross Journal Herald on October 17, 19, and 24, and November 11, 1974.

Long-time residents of the county, called by the state, testified that they believed the appellant could get a fair trial in the county.

The resulting prejudice alleged by the appellant is, 'During the jury selection procedure at the trial itself on December 16, 1974, a juror, Mrs. J. P. Knowlton, indicated that she had a fixed opinion as to the guilt of the appellant. (Tr. 2) Although it is not reflected in the record, numerous jurors indicated on voir dire that they were acquainted with the facts of the case either through having read about it in the newspaper or some other means.'

We note that the juror, Mrs. J. P. Knowlton, was not considered until after twelve jurors and the first alternate had been selected. She was then excused by the defense. There is no indication of how this could have prejudiced the appellant.

In Jarrell v. State, 234 Ga. 410, 415, 216 S.E.2d 258, 264 (1975) this court held, '. . . the grant or denial of motions for change of venue in criminal cases lies largely within the discretion of the trial judge. The exercise of that discretion will not be reversed on appeal unless it is made to appear that there has been an abuse of discretion. . . .' citing Anderson v. State, 222 Ga. 561, 150 S.E.2d 638 (1966) and cases cited therein. No abuse of discretion is demonstrated here. Code Ann. § 27-1101.

Although we are satisfied that the trial court did not err under Georgia law, the increasing coverage of criminal matters by the news media and the attendant litigation justifies an examination of the standards developed by the Supreme Court of the United States under the Due Process Clause of the Fourteenth Amendment and the right to trial by jury under the United States Constitution.

In Marshall v. U.S., 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959), a case involving conviction in federal court, the Supreme Court of the United States held that the harm to the petitioner that resulted when prejudicial information denied admission into evidence was brought before the jurors through newspapers (during the trial) requires a new trial be granted. The Marshall decision was based on the court's supervisory power to formulate and apply proper standards for enforcement of the criminal law in the federal courts. In Murphy v. Florida, 421 U.S. 794, 798, 95 S.Ct. 2031, 2034, 44 L.Ed.2d 589 (1975) the court held, 'We cannot agree that Marshall had any application beyond the federal courts.'

Likewise, we must conclude that the recent case of United States v. Williams, 523 F.2d 1203 (Fifth Cir., 1975) involving a conviction in federal court was based on an The cases pertinent to the due process standards for state trials have been placed in perspective by the United States Supreme Court in Murphy v. Florida, supra. The court there held that juror exposure to information about a state defendant's prior convictions or to news accounts of the crime with which he is charged do not alone presumptively deprive the defendant of due process. The court distinguishes its recent cases dealing with state court convictions.

application of those standards for enforcement of the criminal law in the federal courts.

In Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961) eight of the twelve jurors who tried the case had formed an opinion that the defendant was guilty before the trial began. The court there found actual prejudice to a degree that rendered a fair trial impossible.

In Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) the court held it was a denial of due process of law to refuse a request for a change of venue after the people of the parish had been exposed repeatedly (3 times on television) and in depth to the spectacle of the petitioner personally confessing in detail to the crimes with which he was later to be charged.

In Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1966), and Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) the news media saturated the surrounding community with publications, inundated the courtroom with their presence and activity, and created a 'carnival atmosphere' of the trials.

In each of these cases the Supreme Court of the United States overturned the state court conviction obtained in a trial atmosphere that had been utterly corrupted by press coverage.

From Murphy, supra, we conclude that under the decisions of the Supreme Court of the United States, to find that the petitioner did not receive a fair trial, petitioner must show (1) that the setting of the trial was inherently prejudicial or (2) that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible.

The appellant Street has shown neither.

We conclude that the trial court did not err under either Georgia or federal law in denying the motion for change of venue.

Likewise appellant's Enumeration 3 that the court erred in refusing to excuse a juror who stated that she had a preformed opinion as to the guilt or innocence of the appellant is without merit.

2. In Enumeration 2 the appellant alleges the court erred in overruling the appellant's objection to the qualification by the state of the jury as to opposition to capital punishment, and in Enumeration 39 ...