Ward v. State

• Decision Date: 09 June 1977
• Docket Number: No. 31993,31993
• Parties: Edward WARD, Jr. v. The STATE.
• Court: Georgia Supreme Court

Page 365

236 S.E.2d 365

239 Ga. 205

Edward WARD, Jr. v. The STATE.

No. 31993.

Supreme Court of Georgia.

June 9, 1977.

R. David Botts, Atlanta, for appellant.

M. Randall Peek, Dist. Atty., Calvin A. Liepold, Asst. Dist. Atty., Decatur, Arthur K. Bolton, Atty. Gen., John W. Dunsmore, Jr., Asst. Atty. Gen., Atlanta, for appellee.

HALL, Justice.

Appellant was originally tried for the murders of Edward Surgalski and Sharynn Denise, found guilty and sentenced to life imprisonment on both counts. The case was reversed by this court because of an erroneous alibi charge. Ward v. State, 234 Ga. 882, 218 S.E.2d 591 (1975). Appellant's second trial ended in a mistrial as to guilt. This appeal is from appellant's third trial where he was again convicted of the murders of Surgalski and Denise, but this time sentenced to death by electrocution, upon a finding by the jury that the offense of murder was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." See Code Ann. § 27-2534.1(b)(7).

The evidence presented by the state in the third trial was essentially the same as that presented at the first trial and summarized in Ward v. State, supra. The main difference in the third trial was the introduction of testimony from a DeKalb County jail inmate who testified that appellant confessed to the murders while they were both incarcerated.

1. Appellant contends that the trial court did not comply with the requirements of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and did not preliminarily determine that statements made by the defendant without counsel were freely and voluntarily made.

The record indicates that a Jackson v. Denno hearing was held out of the presence of the jury. Evidence of the Miranda warnings given appellant and of the statements he made to the police were heard at that time. Thereafter the trial judge admitted appellant's statements into evidence. Appellant contends that the trial judge's failure to specifically make a voluntariness ruling prior to admitting this evidence for the jury's consideration was error.

Because the transcript was unclear as to the trial judge's ruling on the voluntariness issue, we ordered him to clarify his ruling pursuant to our authority under Code Ann. § 6-809(b). The trial court certified that the appellant's statements were voluntarily made. ¹ Therefore, this enumeration has been cured and no longer has any validity.

2. Appellant contends that the trial court erred in not allowing into evidence testimony of a psychiatrist regarding the mental competency of a state witness. We find this contention to be without merit.

The defense offered the testimony of a staff psychiatrist at the Veteran's Administration Hospital in Atlanta, presumably to impeach the credibility of Ron Ash who testified that the appellant had made certain admissions to him while they were incarcerated in the DeKalb County jail. The trial court conducted a hearing out of the presence of the jury in order to determine whether or not the testimony of this witness would be admissible; it decided it would not. The record supports the trial judge's ruling that because the psychiatrist was unable to make a definite diagnosis of Ash's mental state because of insufficient observation, her testimony regarding Ash's mental competency should not go to the jury. See Jones v. State, 232 Ga. 762, 765, 208 S.E.2d 850 (1974).

3. In enumerations of error 3, 4 and 5 the appellant contends that the trial court made errors in its charge to the jury.

In error number 3 the appellant challenges the trial court's instruction on the credibility of witnesses; in particular, that portion of the charge which allows intelligence to be considered as a credibility indicator. The court's charge shows that the intelligence factor was not highlighted or singled out; it was one of several factors which could be considered. The charge given was identical to the pattern charge prepared by the Council of Superior Court Judges and very similar to the charge approved by this court in Campbell v. State, 237 Ga. 76, 77-78, 226 S.E.2d 601 (1976). We find the contention to be without merit.

In error number 4 the appellant contends that the trial court incorrectly charged the jury that a witness is unworthy of belief when it is established that he has been convicted of a felony.

The jury charge of the trial judge must be viewed as a whole. Proctor v. State, 235 Ga. 720, 726, 221 S.E.2d 556 (1975). Reading the trial judge's instructions in context, the trial judge properly charged that a witness could be impeached by proof of a prior conviction, but that an impeachment determination rested solely with the jurors and that they alone determined the weight to be given each witness' testimony. The charge as a whole was in accordance with Code Ann. § 38-1805. We find no error.

In error number 5 the appellant alleges that the trial court erred in charging the jury that they could find intent to commit the crime charged upon consideration of motive, thereby inferring that in the court's opinion there was a motive. The charge challenged is a direct quotation of Code Ann. § 26-605; motive is only one of several things that may be considered in finding intent. This court has recently upheld a similar charge of that Code section in Dodd v. State, 236 Ga. 572, 576, 224 S.E.2d 408 (1976). The charge was not erroneous.

4. In enumeration of error 6 appellant argues that because two jurors were excused for cause after voicing general objections to the death penalty, he was deprived of his right to a representative jury of his peers in violation of the Sixth and Fourteenth Amendments. In enumeration of error 7 appellant contends that the two jurors excused for cause did not meet the minimum standard set forth in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

Both jurors excused made it clear that they were unalterably opposed to the death penalty and would not vote to impose it under any circumstances. This complies fully with the requirements of Witherspoon, supra, and its progeny, including Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976). See also Gibson v. State, 236 Ga. 874(1), 226 S.E.2d 63 (1976); Smith v. State, 236 Ga. 12(8), 222 S.E.2d 308 (1976). Appellant's contention regarding a representative jury is therefore also without merit.

5. In enumeration of error 8 appellant contends that his constitutional rights were violated when he received a death sentence at his third trial, since the first jury to convict him found no aggravating circumstances. We reverse the sentence in this case on a nonconstitutional ground.

This court is required to review all death sentences whether or not there is an appeal. We must inquire into not only enumerated errors in the proceedings as shown by the record, but we must inquire into two additional matters which may not have been raised by the enumerations of error.

The first of these two inquiries is to determine whether the death sentence was "imposed under the influence of passion, prejudice or other arbitrary factor." Code Ann. § 27-2537(c)(1); Prevatte v. State, 233 Ga. 929, 214 S.E.2d 365 (1975).

The second of these two inquiries is to determine whether the sentence is "excessive or disproportionate to the penalty imposed in similar cases considering both the crime and the defendant." Code Ann. § 27-2537(c)(3); Gregg v. State, 233 Ga. 117, 210 S.E.2d 659 (1974), affirmed in 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Coley v. State, 231 Ga. 829, 204 S.E.2d 612 (1974). To affirm the death penalty we must find that the death penalty is not disproportionate to the penalty imposed in similar cases. That is impossible here because we have an identical case involving the same defendant in which the death penalty was not imposed. The same defendant was tried previously on the same charges and the jury imposed a life sentence. Therefore the death sentence in the case under review is obviously disproportionate to the life sentence previously imposed against the same defendant in the same case. Accordingly, the law requires us to vacate the death sentence and direct the imposition of a life sentence. See generally Gregg v. State, supra (sentence of death reversed in armed robbery case for disproportionateness); Coley v. State, supra (sentence of death reversed in rape case for disproportionateness). To do otherwise would be incongruous and contrary to the clear mandate of the law. For as was said by the United States Supreme Court in Gregg, "(t)he provision for appellate review in the Georgia capital-sentencing system serves as a check against the random or arbitrary imposition of the death penalty. In particular, the proportionality review substantially eliminates the possibility that a person will be sentenced to die by action of an aberrant jury." Gregg, supra, 428 U.S. at 206, 96 S.Ct. at 2940.

The fact that a new trial was granted after the first conviction and life sentence does not permit a different conclusion. The new trial does not erase that case from the list of cases we must consider in our determination of whether the sentence in the instant case is disproportionate to similar cases.

Therefore, as prescribed by ...