Wallace v. State

• Citation: 248 Ga. 255,282 S.E.2d 325
• Decision Date: 30 September 1981
• Docket Number: No. 37517,37517
• Parties: WALLACE v. The STATE.
• Court: Supreme Court of Georgia

Page 325

282 S.E.2d 325

248 Ga. 255

WALLACE v. The STATE.

No. 37517.

Supreme Court of Georgia.

Sept. 30, 1981.

[248 Ga. 265] Katrina L. Breeding, August Siemon, Atlanta, for Robert lewis wallace.

Joseph H. Briley, Dist. Atty., Gray, Arthur K. Bolton, Atty. Gen., Nicholas G. Dumich, Asst. Atty. Gen., for the State.

JORDAN, Chief Justice.

This is a death case. The appellant, Robert Lewis Wallace, was indicted for the murder of a Union Point police officer, an aggravated assault committed upon another Union Point police officer, the theft of a Union Point police vehicle, and driving under the influence. Although the offenses occurred in Greene County, a change of venue was granted and the appellant was tried in Baldwin County Superior Court. He was found guilty of all charges. The jury found the existence of three aggravating circumstances and returned a death sentence. The trial court sentenced the appellant to death for the murder, twenty years imprisonment for the aggravated assault, seven years for the motor vehicle theft, and one year for driving while intoxicated all sentences to be served consecutively.

The case is here on direct appeal, and for mandatory review of the death sentence.

From the evidence presented at trial, the jury was authorized to find the following facts:

The appellant was at the home of his girlfriend, Teresa Herring, on May 15, 1979. He was drinking and around midnight decided to drive to Atlanta to find a job. His girlfriend gave a statement to the GBI in which she said that she did not want him to leave and told him he would be stopped by the police for driving while intoxicated. He replied to the effect that if he were to be stopped by the police he would "shoot hell out of them." At trial she partially recanted her statement. The appellant had a shotgun, a pistol and three rifles in the car when he left Teresa Herring's home.

Just after midnight on May 16, 1979, officers Rowry and Cook were patrolling the City of Union Point. The officers observed the appellant's car weaving across the centerline and going on and off the shoulder of the road. The officers stopped the appellant and, smelling alcohol on his breath, gave him a field test which was positive. They asked appellant for his driver's license. Appellant told the officers it was not on his person and started to rummage through a box in the back of the car. The officers ordered him to stop and transported him to jail for a formal breath test.

After being transported, appellant was given a breath test which revealed a .11% blood alcohol content. He was told by the police that they would have to lock him up for driving under the influence and that he could be released on bond after four hours. Officer Rowry then left the room and went to prepare a cell. The appellant, alone with Officer Cook, begged not to be locked up. Officer Cook then took the appellant by the arm and told him to come on. At that point, appellant grabbed the officer's .357 magnum pistol and they grappled. Officer Rowry, hearing the scuffle, came back to help just as Officer Cook was shot in the lower abdomen. Officer Cook fell and momentarily lost consciousness. Appellant then shot Officer Rowry in the neck. Officer Rowry turned and ran, at which time appellant again fired but missed. He then turned and pointed the gun in Officer Cook's face from a distance of less than 2 feet and fired. However, Officer Cook moved his head and was not shot but received cuts from debris and powder burns. The appellant fled the scene in a patrol car.

Officer Cook was able to summon help. He was transported to a hospital and survived. Officer Rowry's body was found down the street from the jail.

Appellant hid the patrol car in the woods in Wilkes County and then made his way to his brother's home. He told his brother of the shooting and asked him to look into it. The brother found out that one of the officers died and that it was dangerous for appellant to stay around. Appellant decided to go to Atlanta. His brother gave him a .22 magnum pistol, which appellant took to Atlanta, along with a shotgun he had taken from the patrol car.

In Atlanta, appellant could not find a place to stay. Finally, he found a vacant basement apartment which he thought was in a deserted building. However, a woman lived upstairs. When she heard noises she called the Atlanta police, who investigated. They found the appellant behind a barricaded door. When he was arrested, he was reaching for the shotgun. When asked about the incident in Union Point, the appellant said he shot one officer in the stomach but didn't remember shooting anyone else. He stated he shot the officer because they were too lax and not paying attention to what they were doing. However, he said they had been nice to him. He further stated he had started to shoot the arresting officers but surrendered instead.

Appellant led officers back to the stolen patrol car but refused to show the officers where he hid the gun. He said in reply to their request, "No murder weapon, no case."

Appellant's father testified that appellant was nice unless he didn't get his way and then he becomes upset. Appellant presented evidence of mental disease that had been diagnosed as schizophrenia, latent-type. However, appellant did not contend that he was insane at the time of the commission of the offense.

1. Appellant filed a special plea of insanity contending that he was incompetent to stand trial. A competency hearing was held and the jury determined that appellant was competent. His first enumeration of error asserts the general grounds as to the jury's finding that he was competent to stand trial.

"The issue raised in a plea of mental incompetency to stand trial is whether an individual is capable of understanding the nature and object of the proceedings, whether he comprehends his own condition in reference to such proceedings and whether he is capable of rendering his counsel assistance in providing a proper defense. The question is not whether he will assist in his defense, but whether he is capable of doing so." Banks v. State, 246 Ga. 178, 269 S.E.2d 450 (1980). Appellant did not contest the first two issues, but asserted below through counsel that he was incapable of rendering his counsel assistance in providing a proper defense.

The defense presented evidence from the appellant's father, sister and minister during the hearing on the special plea. The father and sister testified that appellant had sniffed gas as a child but had stopped. They also testified that he worked and drove a car. His sister testified that if you did not know appellant, he was hard to talk to because he carried on conversations about multiple subjects. However, she also testified that if you "go back and find out what he is talking about then it starts to make sense." The Reverend General Lee Avery testified that he observed appellant in jail and that he complained of having venereal disease and other phantom illnesses, that his conversations at times did not make sense and he was getting progressively worse. Appellant's attorneys, both presently retained counsel and former appointed counsel, testified he sometimes would not talk about the case, his conversation would wander off the subject, and he could not effectively communicate relevant facts regarding his defense.

Appellant also introduced expert psychiatric testimony. Dr. B. H. Hirane and Dr. Louis Jacobs examined appellant on three occasions at Central State Hospital. After each of the first two examinations, the doctors found appellant competent to stand trial. However, on his last examination, they found appellant incompetent in that his condition had progressed to the point that his thought processes were so "loose" he could not communicate. A private psychiatrist, Dr. Baccus, also testified that appellant was incompetent to stand trial. His conclusion was reached at a time when the other psychiatrists had found appellant competent. He further testified that appellant became more physically unkempt on each interview.

However, the State elicited evidence that appellant had been advised by his attorneys not to talk to the medical staff about the elements of the crime. Appellant also refused Testimony from jailors and another prisoner established that the appellant read, wrote coherent letters, made phone calls, painted in his cell, carried on ordinary conversations, and displayed proper personal hygiene. The State also presented evidence that appellant gave a detailed, accurate, and lucid description of the crime and where the car was hidden to officers after his arrest.

to participate in any psychological testing. Furthermore, the private psychiatrist testified that his evaluation was based in part on appellant's previous history, which in some instances was not entirely correct, especially as to prior audio hallucinations. The appellant knew of the purpose of the examinations, that two of the examining physicians were employed by the State and that if found to be incompetent he could not stand trial. All the expert witnesses testified appellant was intelligent enough to fake his condition but they were of the opinion he was not faking.

The trial of a special plea of insanity is in the nature of a civil proceeding and the burden of producing evidence is on the defendant. Spencer v. State, 236 Ga. 697, 224 S.E.2d 910 (1976); Corn v. State, 240 Ga. 130(6), 240 S.E.2d 649 (1977); Banks v. State, supra. We do not agree with appellant's argument that in a death case the State should have the burden of disproving all mitigating circumstances, including competency. In this context, incompetency at time of trial is not a mitigating circumstance. See Fair v. State, 245 Ga. 868, 268 S.E.2d 316 (1980).

The constitutionality of placing the burden of proving insanity upon the defendant has been recognized by this court and by the Supreme Court of the United States. Durham v. State, 239 Ga....