Walraven v. State

• Decision Date: 03 December 1985
• Docket Number: No. 42083,42083
• Citation: Walraven v. State, 255 Ga. 276, 336 S.E.2d 798 (Ga. 1985)
• Parties: WALRAVEN v. The STATE.
• Court: Georgia Supreme Court

Page 798

336 S.E.2d 798

255 Ga. 276

WALRAVEN v. The STATE.

No. 42083.

Supreme Court of Georgia.

Dec. 3, 1985.

Reconsideration Denied Dec. 19, 1985.

Don C. Keenan, Thomas M. West, Keenan & Associates, Atlanta, for James Samuel Walraven.

Robert E. Wilson, Dist. Atty., Decatur, Susan Brooks, Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., Atlanta, Eddie Snelling, Jr., Staff Asst. Atty. Gen., for the State.

SMITH, Justice.

In 1981, a DeKalb County jury convicted the appellant, James Walraven, for the murder of Giselle Clardy. Walraven was sentenced to death. On appeal, this court reversed the appellant's conviction. Walraven v. State, 250 Ga. 401, 297 S.E.2d 278 (1982). The appellant, after a change in venue, was convicted for a second time for Ms. Clardy's murder by a Whitfield County jury. He received a sentence of life imprisonment pursuant to the second conviction. On appeal, he raises four enumerations of error. We affirm. ¹

1. We set out the basic factual framework of this case in Walraven, supra. Although not raised upon appeal, we find the evidence sufficient to support the jury verdict under the standard set out in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Any substantial, material deletions from or additions to the evidence in the first trial occurring in this case will be noted where appropriate.

2. In his first enumeration of error, the appellant claims that the trial court erred in refusing to grant his motion to change the venue for a second time. ² "[U]nder 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." Street v. State, 237 Ga. 307, 311, 227 S.E.2d 750 (1976).

a) The physical distance of the crime in question from Whitfield County, ³ and the lapse of time between the majority of the news reports introduced by the defense pursuant to its motion, ⁴ and the second trial combine to negate any claim that Whitfield County was an "inherently prejudicial" setting for the appellant's second trial. See Brooks v. State, 244 Ga. 574, 578, 261 S.E.2d 379 (1979).

b) The defense challenged sixteen of the 62 prospective jurors in this case, and the trial court excused five of those challenged based upon their fixed expressions of bias. These ratios fall within the bounds previously set in Georgia as sufficient to show "the absence of prejudicial community bias." Waters v. State, 248 Ga. 355, 361, 283 S.E.2d 238 (1981).

3. In his second enumeration, the appellant claims that the trial court erred in refusing to grant his motion for individual and sequestered voir dire of all prospective jurors.

The trial court adopted a procedure for individual and sequestered voir dire of certain prospective jurors who responded to general questions in a particular manner. The attorneys in the case asked the jurors, in their respective panels, if any of them held opinions as to the case, or if any of them knew of any of the details of the case. Upon a positive response by a juror, that juror would then be subject to individual, sequestered voir dire. In addition, the trial court asked that the jurors only divulge the existence, and not the details, of any opinion or knowledge when questioned in the presence of other jurors.

The appellant cites four comments made by prospective jurors in front of other jurors as evidence of prejudice caused by the trial court's refusal to grant his motion for sequestration of all jurors. He asserts, in turn, that this showing of prejudice supports the finding of an abuse of discretion on the part of the trial court in its refusal to grant the motion. We find no error.

The first three comments cited by the appellant related to the appellant's earlier trial, the death sentence in the first case, or the reversal of the case by this court. While these jurors did violate the trial court's directions as to communicating the existence of the previous trial, the comments, standing alone would not lead to disqualification of any of the jurors. We thus do not find prejudice sufficient to support the finding of an abuse of discretion. Finney v. State, 253 Ga. 346, 347, 320 S.E.2d 147 (1984).

The final comment cited by the appellant divulged the existence of a "statement" made by the appellant to the police. The revelation of the existence of a statement, as opposed to an admission or confession, hardly constitutes prejudice to the appellant absent disclosure of the contents of the statement. We find no error.

4. The appellant asserts that the trial court erred in admitting into evidence a number of crimes independent of the subject murder.

The similarity here between the independent crimes and the subject crime rested upon: a) the sex, race, and appearance of the victims; b) the proximity of the crimes to tennis courts and interstate highways; c) in some instances, eyewitness testimony identifying the appellant near the crime scene, and; d) in some instances a nearly identical modus operandi. The similarity, in all cases here, draws a sufficient thread between the independent crimes and the subject crime, and renders the independent crimes admissible. Williams v. State, 251 Ga. 749, 312 S.E.2d 40 (1983). This court finds no error.

5. The appellant contends that the trial court should have excluded all or part of the testimony of James Buffington.

Buffington worked as an auto mechanic. He spent May 28, 1981, the day of Ms. Clardy's murder, working on a customer's car outside of building U at the Cherry Hill Apartments, Buffington's residence at that time and the site of the Clardy murder. He first discovered that someone had been murdered in the apartments on May 29, the day after the murder, when he saw a large number of policemen and a fire truck in the parking lot outside of building U. He gave his business card to one of the policemen and told the policeman that he had been in the parking lot most of the previous day.

The DeKalb County police interviewed Buffington later that day. He generally described the events that he had observed in the parking lot the previous day. That evening, Buffington went to the police station for further interviews, and to view photographic arrays.

His first signed statement, made at 8:45 PM on May 29, contained his description of a number of cars that he had seen in the apartment parking lot on May 28. The last sentence of the statement reads, "I vaguely remember a car coming, vehicle # 7, about 3:30-4:00 PM but nothing specific."

His second signed statement, delivered shortly after midnight on the morning of May 30, described a meeting around 4:00 or 4:30 on May 28 between a man and a woman in the apartment parking lot. The woman, "a lady dressed as a [neat] business woman," was approached by a white male, about thirty years old, who had arrived at the parking lot in a small white car, "proba[b]ly a convertible," which was driven by another white male of approximately the same age. The man and the woman walked around a corner together. Shortly thereafter, the man trotted back around the corner, jumped in the passenger seat of the car, and was driven away.

After returning to the Cherry Hill Apartments with a police officer during the day on May 30, Buffington again described certain events of the 29th. A police officer made notes of his observations of the conversation with Buffington, but Buffington apparently did not adopt the notes by signature. The first page of the notes, the page that purportedly contained Buffington's detailed description of the man who accosted the woman in the parking lot at the apartment building, was lost at some point prior to the second trial.

The second page of notes describing Buffington's conversation during the day on May 30 contains a description of the clothes worn by the man who accosted the woman. That page also contains a description of the man as, "close to his (Buffington's) height--large wrists--muscled forearms with light colored hair on arms--light hair visible on chest in V-opening of shirt."

Buffington subsequently agreed to undergo hypnosis in an attempt to clear up or draw out certain details lacking from his description of the events that took place in the parking lot on May 28. A DeKalb County investigator testified, at the hearing on the appellant's motion to suppress Buffington's testimony at the second trial, that he had suggested hypnosis to aid Buffington in remembering the license tag number of the car in which the two men arrived. Buffington testified at the same hearing that he may have suggested the hypnosis session in an attempt "to give every bit of information that [he] could possibly recall from what [he] had seen." He also stated that he had "faith" in the hypnosis procedure, and that he felt that he was a suspect in the Clardy murder at the time that he was hypnotized. At the time of the hypnosis session, police apparently had no solid leads in the Clardy murder beyond Buffington's descriptions.

Dr. Rasche, a psychologist in private practice, hypnotized Buffington on June 4, 1981. A police officer was present at the session, but did not participate. Buffington and the police officer claim that no new material evidence, save a very slight amount of added detail involving a car, developed during the session. An audio tape was made of the session, but it proved inaudible. The only record of the session consists of the police officer's notes made during the session.

Patricia Berry was found strangled, half-naked, and face down in the bathtub of her apartment on June 15, 1981. Johnny Gann provided the Fulton County police a description of a man he saw in the area of Ms. Berry's apartment near the time of her murder. The police developed a composite drawing of the man from the...