Walraven v. State

• Decision Date: 23 November 1982
• Docket Number: No. 38749,38749
• Parties: WALRAVEN v. The STATE.
• Court: Georgia Supreme Court

Page 278

297 S.E.2d 278

250 Ga. 401

WALRAVEN v. The STATE.

No. 38749.

Supreme Court of Georgia.

Nov. 23, 1982.

Rehearing Denied Dec. 14, 1982.

Robert E. Wilson, Dist. Atty., Jonathan C. Peters, Asst. Dist. Atty., Decatur, Michael J. Bowers, Atty. Gen., Virginia H. Jeffries, Staff Asst. Atty. Gen., for the State.

Richard M. Loftis, Michael E. Hancock, Decatur, for James Samuel walraven.

SMITH, Justice.

Appellant, James Samuel Walraven, was convicted of the "bathtub" murder of Gisele Clardy and sentenced to death. Finding four of appellant's enumerations of error to be meritorious, we reverse.

FACTS

Gisele Clardy was employed as assistant manager of the Cherry Hill Apartments in DeKalb County. On the afternoon of May 28, 1981, Gisele left her office to post certain notices and to inspect vacant apartments. James Buffington, an auto mechanic working in the parking lot near building "U," saw Gisele drive into the parking lot shortly after 4:00 p.m. Behind her was a car with two men inside. Both cars parked. The passenger, whom Buffington later identified as the appellant, James Walraven, got out and talked briefly with Gisele. Both walked out of sight toward building U. Ten or fifteen minutes later, appellant ran back to the car, got in, and departed.

Gisele did not report to work the next day. Her body was discovered that morning in apartment U-1, lying face down in the bathtub in three or four inches of water. She was nude except for her blouse. Cause of death was strangulation. No sperm or seminal fluid was discovered during the autopsy, but bruises and contusions around her vagina indicated that she had been sexually attacked.

The state contended at trial that the murder of Gisele Clardy was one of a series of similar crimes. In support of its contention, the state offered the following evidence.

Margaret Finnerty resided at Windermere Apartments on Roswell Road. On March 3, 1981, a man claiming to be a maintenance man knocked on her door and asked to be admitted so he could check her On March 16, 1981, a man in a tan uniform, wearing black gloves and carrying a flower box under his arm, rang the doorbell to Constance Harrold's home. When she opened the door, the man stated, "I have a delivery for Mrs. Robinson." Then he tried to force his way into the home. Mrs. Harrold managed to close the door, run out the back, and call the police at a neighbor's house. The flower box was caught in the door. No flowers were inside, but when the police arrived they discovered a coil of rope lying on her front porch.

water. Mrs. Finnerty opened the door and the man, whom she later identified as the appellant, choked her with a kerchief or bandana until she passed out.

A man who jogged in the area resembled the description given by Mrs. Harrold to the police. Based upon her identification of this man, he was arrested, but was later released when Mrs. Harrold decided she had identified the wrong man. Subsequently, Mrs. Harrold identified appellant as the man who had assaulted her.

On April 15, 1981, Dario Dal Santo found the body of his sister, Louise, lying face down in the bathtub of the Woodcreek apartment where the two of them resided. She was nude. Sperm was discovered in her vagina and mouth. Cause of death was manual strangulation. A pubic hair recovered from the bath rug was compared with a sample later taken from appellant. The two hairs were sufficiently similar that they could have had a common origin. The semen sample obtained from Louise's body was examined as was a sample of appellant's blood. Appellant could not be eliminated as donor of the seminal fluid. ¹

On the afternoon of June 5, 1981, Meredith Nelson saw appellant in the hallway near her Windemere apartment. She followed him downstairs. When she stopped to check her mail he told her, "I just thought I'd let you know I was in your apartment earlier today ... I was working on your pipes."

On June 15, 1981, the body of Patricia Berry, who had lived across the hall from Meredith Nelson, was discovered face down in her bathtub, partially submerged in water. She was nude above the waist. Cause of death was manual strangulation. Joseph Gann saw a man sneaking around the corner of the apartments about 2:15 p.m. of June 15. This man, Gann testified, was about 6' 1"'" or 6'2""' with blondish hair, had a good tan, looked very strong, and was wearing a gold medallion around his neck. Gann was 70 to 80% sure that the man he saw that day was the appellant, James Walraven.

Appellant was arrested July 14, 1981, and interrogated. During the interrogation, appellant stated that "the only person he had ever had sex with in his life was his sister," some years before.

David Zorda, a convicted forger and a prisoner at the Henry County jail at the time of the trial, testified that in July of 1981 he was incarcerated in the DeKalb County Jail. On July 24, 1981, he and appellant were the only white inmates at the jail store and talked together briefly. Appellant told Zorda that he had "killed those goddamn bitches."

After the state rested appellant presented his case.

Martha Delagarza lived at Cherry Hill apartments, where Gisele Clardy had worked. About a week before Gisele was killed, Martha was followed home by a strange man in a telephone van. When she turned left into the apartment complex, he passed her, made a u-turn, and followed her all the way to building U, where she lived. The driver was a large, muscular looking man with straw-colored hair. She testified that he was not the appellant, James Walraven.

Dr. Richard Rasche, a clinical psychologist, testified that at the request of the DeKalb police, he placed James Buffington (the mechanic who had seen appellant with On the afternoon of March 16, 1981 (the day Constance Harrold was attacked), Helen Whitehead was working at a house up the street from Mrs. Harrold's residence. Ms. Whitehead testified that a man came to the door and asked for a coathanger to unlock his car. She described the man as being in his late 20's, having blond hair, and wearing a beige jumpsuit. A long white box was sitting on top of his car. She testified that the man she saw was not the appellant, James Walraven.

Gisele Clardy on the afternoon of her death) under hypnosis, in an attempt to heighten his recall of the events of that afternoon. Under hypnosis, Buffington stated that the man he saw talking to Gisele was only a couple of inches taller than she and was wearing a watch on his right wrist. Buffington recalled seeing a telephone company van parked nearby.

Peggy Brodsky, the manager of Glenlake Tennis Center, testified that on April 15, 1981 (the day Louise Dal Santo was killed), appellant manned the phones at the tennis center from 4:00 p.m. to 10:00 p.m.

Jonathan Linton testified that he saw appellant at Blackburn Park between 4:15 and 4:30 p.m. on June 15, 1981 (the day Patricia Berry was killed). He and appellant warmed up together and both played in a tennis tournament later that evening.

Robert Melton, commander of the jail division of the DeKalb County Sheriff's Department, testified that David Zorda spent approximately three days in the DeKalb County Jail and that Zorda and appellant were both in the jail store on July 24, 1981, and no other time. They both would probably have been placed in the same holding area of the store.

Wayne Krier ² testified that he was the "house man" for the "Northeast Max" cell block of the DeKalb county jail. Appellant was incarcerated in the same cell block. Krier testified that during the first six weeks of appellant's incarceration, appellant never went to the store without Krier being present. Krier never saw appellant talking to David Zorda and never heard appellant confess to Zorda or anyone else.

G.L. Smith, an investigator with the DeKalb County Police Department, testified that he searched appellant's apartment on July 14, 1981, and found nothing that connected appellant with Gisele Clardy's murder or any other crime.

Appellant testified on his own behalf. He denied being at the Cherry Hill Apartments on May 28, 1981, and claimed he had not been there in over three years. He testified that he is right-handed and wears his watch on his left wrist. He testified that he never wore any other jewelry, including medallions. He never saw David Zorda until the latter testified; he did not know the whereabouts of Windermere Apartments; he did not own a car; and he did not kill Gisele Clardy, Louise Dal Santo, or Patricia Berry, or attack Mrs. Finnerty or Mrs. Harrold.

ISSUES

1. In his tenth enumeration of error, appellant contends the trial court erred in refusing to hear the challenge to the array of the grand jury.

Rule II(A)(5) of the Unified Appeal Procedure states that at the "first proceeding," which is to be held at "the earliest possible opportunity after indictment and before arraignment," "[t]he court shall determine whether or not the defendant intends to challenge the arrays of the grand or traverse juries ... If a challenge is presented, the court shall hear the asserted factual and legal basis of challenge although under law the right to challenge may have been waived."

The first proceeding in this case was conducted September 10, 1981. In response to the court's query, counsel for appellant stated that he needed additional time to complete his investigation to determine whether or not any jury challenge would be appropriate. The state responded that it was satisfied with this preliminary statement, so long as appellant gave a definite answer at the time of the motion hearing. See Rule II(B). The court allowed appellant additional time to answer the question.

Appellant filed his challenge to the arrays of the grand and traverse juries on September 25. On September 28, the court granted appellant's motion for continuance with regard to his motion to change venue and his jury challenges.

The court convened October 16, 1981, for the purpose of...