Tucker v. State

Decision Date21 November 1979
Docket NumberNo. 34814,34814
Citation244 Ga. 721,261 S.E.2d 635
PartiesTUCKER v. The STATE.
CourtGeorgia Supreme Court

Richard O. Smith, Columbus, for appellant.

William J. Smith, Dist. Atty., J. Gray Conger, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., W. Davis Hewitt, Staff Asst. Atty. Gen., for appellee.

HALL, Justice.

William Boyd Tucker, Jr., was indicted for murder, armed robbery, kidnapping with bodily injury and aggravated sodomy in connection with the August 21, 1977, slaying of Kathleen Perry. After the state presented its evidence, the trial court directed a verdict of not guilty of aggravated sodomy. The other counts of the indictment were submitted to the jury, which convicted appellant of murder, robbery by intimidation and kidnapping with bodily injury. In the sentencing phase of the trial, the jury imposed a death sentence as punishment for murder, finding as the single aggravating circumstance that the murder was committed while the defendant was engaged in the commission of another capital felony, to wit: kidnapping with bodily injury. The trial court subsequently imposed a sentence of life imprisonment for robbery by intimidation and 20 years for kidnapping with bodily injury. Tucker appeals from his convictions and from the denial of his motion for new trial.

I. Guilt-Innocence Phase

1. The evidence introduced at trial authorized the jury to find that after drinking heavily during the day and evening of August 20, 1977, and smoking several joints of marijuana, Tucker went to a Majik Market around 11 p. m. where he drank two more beers and played pinball. After waiting at the store some 45 minutes, Tucker sneaked behind its operator and sole occupant, Kathleen Perry, and stuck his finger in her back. She began putting money from the cash register into a paper bag. Tucker and the victim then got into his red Volkswagen and drove to Pierce Chapel Road. There Tucker killed Kathleen Perry by stabbing her four times.

Reuben Culpepper, Robert McLong, and McLong's sister were driving on Pierce Chapel Road when they passed a red Volkswagen with its lights on, parked in the road. The three saw Tucker in the car and a woman's shoe in the road beside the car. Shortly after passing, McLong and Culpepper decided to return to investigate. The Volkswagen passed them as they returned to the place where it had been parked. At the parking spot, McLong found a vest with a "Majik Market" insignia and then discovered Kathleen Perry's body, face-down in a ditch about 10 feet from the road. The three left, called the police and then returned to Pierce Chapel Road to await the arrival of the police. Shortly after the police reached the scene of the crime, Culpepper saw Tucker returning in the same red Volkswagen. He identified both the car and driver to the police. Tucker was immediately taken into custody. Shortly thereafter, appellant made an incriminating statement, in which he admitted the robbery by intimidation and the kidnapping. In his statement to police, Tucker stated that he could not remember what happened after Perry got out of the car but did recall a knife with long brown handles and lots of blood. At trial, Tucker again confessed to robbery by intimidation and kidnapping but testified that he could not remember a knife or the murder.

In enumeration of error 17, appellant contends that his convictions and death sentence are contrary to law, justice and equity. We will consider the death sentence in detail below; however, we find that the evidence in the record authorized a rational trier of fact to find appellant guilty beyond a reasonable doubt of murder, kidnapping with bodily injury and robbery by intimidation. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Stinson v. State, 244 Ga. 219, 259 S.E.2d 471 (1979).

2. In enumerations of error 9 and 15, appellant contends that his jury was improperly selected because the record affirmatively shows that thirteen jurors, including Georgia Gaines, were chosen. The poll of the jury after the sentencing phase was by name, and Georgia Gaines' name was not called. Pursuant to Code Ann. § 6-805(f), this court asked the trial court to certify from memory or after a hearing (1) whether Georgia Gaines was excused from the jury, (2) and if so, why, and (3) whether defense counsel objected. After a hearing, the trial judge determined that Gaines was excused because of her husband's severe illness and that defense counsel either moved for her dismissal or consented to it. There was no error in excusing the juror and proceeding until a panel of twelve and two alternates were selected. Ozburn v. State, 87 Ga. 173(1), 13 S.E. 247 (1890); Hanvey v. State, 68 Ga. 612(1) (1882).

The supplemental transcript affirmatively shows that Gaines was excused for family illness and not because of any scruples related to imposition of the death penalty. No claim of error under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and its progeny exists.

Appellant contends that Owens v. State, 233 Ga. 869(2), 214 S.E.2d 173 (1975), prohibits this court from using a supplemental transcript, developed through post-trial examination of attorneys or excused veniremen, to determine if veniremen were improperly excused at trial. We do not agree with this expansive reading of the case. In Owens, the Witherspoon examination of jurors was not reported in the record and was not available. We refused to allow a wholesale re-examination of veniremen and attorneys to determine basic juror qualifications for a case in which the state asked for and received the death penalty, and jurors were excused because of their opposition to the death penalty. See Coker v. State, 234 Ga. 555(7), 216 S.E.2d 782 (1975), death sentence reversed on other grounds, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). In this case, however, the statutory method of completing the record was used only to supply the reason for excuse of one juror, completely unrelated to Witherspoon.

Enumerations of error 9 and 15 are without merit.

3. Appellant enumerates as error the failure of the court reporter to record bench conferences. The record does not reveal whether or not the trial court ever granted appellant's motion to compel recordation of all proceedings, including bench conferences. While we agree that recording all proceedings is the best practice, we cannot reverse this case for failure to do so here. Appellant was obligated both to ensure that his pre-trial motion for complete recordation was ruled upon and that if granted, was properly followed. Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), death sentence vacated on other grounds and remanded, 243 Ga. 244, 253 S.E.2d 707 (1979).

Moreover, we ruled in Davis v. State, 242 Ga. 901, 252 S.E.2d 443 (1979), that failure to record bench conferences cannot constitute reversible error unless appellant demonstrates harm. The harm appellant attempted to show is that failure to record bench conferences meant that no reason for excusing Georgia Gaines appeared in the record and that such excuse could have been error. Since the supplemental transcript supplies the reason for her excuse (Division 2), it is clear that there was no error. Enumeration of error 1 is without merit.

4. In enumeration of error 8, appellant contends that the trial court erred in overruling the motion for mistrial. The district attorney called James May, who testified that he had been in the Majik Market the night of the murder where he had seen a man playing pinball. The district attorney then asked, "Can you identify this person today?" May replied, "I believe so." The district attorney then asked, "Do you see him here in the courtroom? Seated up here at the table?" Defense counsel immediately moved for a mistrial based upon the suggestive question on identification. The trial court overruled the motion and admonished the jury: "Ladies and gentlemen of the jury, I have admonished the District Attorney not to suggest to any witness what his testimony should be. And in weighing the testimony of this witness insofar as it relates to identification of any person in this particular case, you would have to consider the suggestion as to where the particular person might have been seated, and determine after all of the evidence that this witness gives, and after a cross-examination of the witness, the credibility and weight you would give to the testimony."

Appellant argues that the trial court erred in overruling the motion for mistrial, but he has not illustrated any error. Appellant admitted in his statement to police and in his testimony at trial that he had been in the Majik Market playing pinball on the night of the slaying. This admission removes any issue from the case relating to the identity of the pinball player. The prosecutor's leading question could not, therefore, prejudice the defendant. See Hall v. State, 243 Ga. 207(1), 253 S.E.2d 160 (1979). Moreover, the trial court's careful admonition to the jury to weigh the identification testimony in light of the prosecutor's leading question was sufficient to dissipate the harmful effect, if any, of the question.

Enumeration of error 8 is without merit.

5. Appellant argues that several errors occurred in connection with the admission into evidence of the inculpatory statement he made to police shortly after his arrest. We will consider these enumerations together.

At trial, Tucker moved to suppress his statement arguing that it was not voluntarily made and that he had not understood his constitutional rights, especially his right to have the advice of counsel, at the time he made the statement. After holding a hearing outside the presence of the jury, as required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), the trial court ruled that the confession was voluntarily made and was admissible.

At the hearing, Detective...

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