West v. State

• Decision Date: 15 February 1984
• Docket Number: No. 40134,40134
• Citation: 313 S.E.2d 67,252 Ga. 156
• Court: Georgia Supreme Court
• Parties: WEST v. The STATE.

Page 67

313 S.E.2d 67

252 Ga. 156

WEST v. The STATE.

No. 40134.

Supreme Court of Georgia.

Feb. 15, 1984.

Rehearing Denied March 6, 1984.

W. Benjamin Ballenger, Summerville, Clifton M. Patty, Jr., Ringgold, for Samuel Tony West.

David L. Lomenick, Dist. Atty., David J. Dunn, Herbert E. Franklin, Jr., Asst. Dist. Atty., Lafayette, Michael J. Bowers, Atty. Gen., Paula K. Smith, Staff Asst. Atty. Gen., Atlanta, for the State.

GREGORY, Justice.

Appellant, Samuel Tony West, was convicted in Chattooga County of two counts of murder and one count of armed robbery. He was sentenced to death for each of the murders and to life imprisonment for the armed robbery.

The evidence presented at trial showed that on the evening of December 12, 1982, appellant and Avery Brock visited the victims at their hand-built "castle," known as "Corpeswood," on Taylor's Ridge in Chattooga County. They were welcomed by one of the victims, Dr. Charles Scudder, a pharmacologist and former professor at Loyola University in Chicago, who offered them some of his homemade wine, which they accepted. They had brought with them a bag of "tootalu" or toluene, and they spent the next hour or two drinking Dr. Scudder's wine and "huffing" their tootalu. Then Dr. Scudder was bound and gagged while Brock searched out and shot Dr. Scudder's live-in companion, Joseph Odum. After unsuccessful attempts were made to get Dr. Scudder to tell them where his money was, appellant shot Dr. Scudder and he and Brock ransacked the house. They loaded Dr. Scudder's jeep with articles taken from the house and drove it to Mississippi, where they stole another car after killing its driver. They later surrendered, when their money ran out.

In statements made to authorities after his arrest, appellant claimed the murders were part of a planned act of revenge for the embarrassment suffered by Brock when he had allowed Dr. Scudder to perform oral sex on him during an earlier visit. At trial, however, appellant contended the crimes were the product of hallucinations resulting from Dr. Scudder having spiked their wine with LSD.

1. We have reviewed the evidence pursuant to Rule IV(B)(2) of the Unified Appeal Procedure and find it sufficient to support the convictions. However, because appellant's challenge to the array of the grand jury is meritorious, his convictions and sentences must be set aside and this case remanded for reindictment and retrial.

Appellant alleges a violation of OCGA § 15-12-40(a)(1) (Code Ann. § 59-106), which specifies the responsibilities of the board of jury commissioners in compiling, maintaining and revising jury lists, as follows: "In composing such list the commissioners shall select a fairly representative cross section of the intelligent and upright citizens of the county...." It provides also: "If at any time it appears to the jury commissioners that the jury list, so composed, is not a fairly representative cross section of the intelligent and upright citizens of the county, they shall supplement the list by going out into the county and personally acquainting themselves with other citizens of the county, including intelligent and upright citizens of any significantly identifiable group in the county which may not be fairly represented on the jury list."

In Devier v. State, 250 Ga. 652, 300 S.E.2d 490 (1983), we recognized that the statute applies to the grand jury list and requires that the list be a fairly representative cross section of the intelligent and upright citizens of the county.

In this case, it was stipulated by the parties that 52% of the total population of Chattooga County is female but that women comprise only 34.3% of the grand jury list from which appellant's grand jury was selected. ¹ These figures demonstrate that women are underrepresented on this grand jury list. Measured as an absolute disparity, the underrepresentation is 17.7%.

The disparity shown in this case is less than the 36% shown in Devier v. State, supra, which we found to be violative of OCGA § 15-12-40(a)(1) (Code Ann. § 59-106). However, it is greater than the 14.4% absolute disparity shown by the defendant in Barrow v. State, 239 Ga. 162(2a), 236 S.E.2d 257 (1977), which we found sufficient to establish a prima facie case of illegal underrepresentation. Moreover, the 17.7% disparity of this case falls "within the approximate boundaries delineated in [numerous federal] cases holding that the statistical disparities established prima facie violations. [Cits.]" Machetti v. Linahan, 679 F.2d 236 (11th Cir.1982).

Thus, while precise mathematical standards for gauging disparity have not been formulated, we conclude that the variance in this case is sufficient to demonstrate a violation of the statutory fair-cross-section requirement.

The state contends that we should find any deficiency in the composition of the grand jury list to be harmless in this case. We note that the grand jury which indicted appellant was 69.6% male and 30.4% female and that appellant's grand jury was thus slightly less representative than the list from which it was drawn.

The United States Supreme Court has held that a violation of equal protection in the selection of a grand jury is not cured by a subsequent conviction by a properly constituted traverse jury. Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979). This court, in Devier v. State, supra, as well as in Wright v. State, 251 Ga. 457, 306 S.E.2d 920 (1983), has clearly established the same rule regarding a violation of our statutory fair-cross-section requirement in the selection of a grand jury. Thus, we cannot find the error in this case to be harmless.

2. Although this case must be re-indicted and retried, we find it necessary to rule on one additional enumeration of error, in which appellant contends that the trial court's sentencing charge defining depravity of mind was error.

Citing Black's Law Dictionary (3rd Ed.1933), the court charged:

"... [T]he word depraved means to defame, vilify, exhibit contempt for.

"I am quoting now from this case cited in the law dictionary, a mind which may become inflamed by alcohol, drugs, or passion to such a degree that it ceases to care for human life and safety is a depraved mind."

We have noted that the phrase "depravity of mind" contained in OCGA § 17-10-30(b)(7) (Code Ann. § 27-2534.1) is a term having a common meaning and subject to common understanding, unlike "aggravated battery," which has been given a special meaning by statute. See, e.g. Gilreath v. State, 247 Ga. 814(16), 279 S.E.2d 650 (1981). Thus, absent a request, depravity of mind need not be defined in the court's charge. Compare Rivers v. State, 250 Ga. 303(8a), 298 S.E.2d 1 (1982). If, however, the court undertakes to do so, it should do so correctly.

Turning now to the first definition given by the court, we note that the verb "deprave" once meant: "To speak ill of; depreciate; malign; revile." Webster's New International Dictionary (2nd Ed.1940). This usage is now obsolete. Ibid. In England, it was once (and perhaps still is) a criminal offense to deprave, despise or contemn "the sacrament of the supper and table of the Lord," or to say anything "in derogation, depraving, or despising of the Book of Common Prayer ..." Stephens, A Digest of the Criminal Law (Soule, Thomas & Wentworth, 1877) at 110-111. ²

This obsolete usage and these criminal offenses are the sources of the definition of "deprave" in Black's Law Dictionary, supra, which, in turn, was the source of the trial court's definition of "depraved." We conclude that this definition was incorrect in the context of a charge on the § (b)(7) aggravating circumstance.

The case cited in Black's Law Dictionary as authority for the second definition given by the trial court is State v. Weltz, 155 Minn. 143, 193 N.W. 42 (1923). In Weltz, the Minnesota Supreme Court was asked to determine whether the evidence was sufficient to support a conviction of third degree murder, which was defined as the "killing of a human being ... when perpetrated by an act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual." 193 N.W. at 42-43. The facts of the case were that the defendant got into an argument with his non-drinking female companion over the quantity of alcohol that he had consumed at various speakeasies; that in response, the defendant angrily got into his Cadillac and drove in a rage down Winfred Street in St. Paul at a high rate of speed variously estimated at between 30 and 50 miles per hour; and that as he was doing so, he struck one Mrs. Peabody while she was crossing the street, killing her.

The Minnesota Supreme Court noted that, under Minnesota law, unless the defendant had been so drunk as to be incapable of knowing the nature of his act or that it was wrong, his act was nonetheless criminal. Id. at 44. The court concluded, "A mind which may become inflamed by liquor and passion to such a degree that it ceases to care for human life and safety is a depraved mind. The jury were justified in finding that [Weitz] was guilty of something more serious than culpable negligence and that his acts evinced a depraved mind in the sense in which that term is used in the statute defining third degree murder." Ibid.

The "depraved mind" contemplated by the aforementioned Minnesota statute defining a species of unintentional homicide clearly does not describe the same level of culpability as the phrase "depravity of mind" included in OCGA § 17-10-30(b)(7) (Code Ann. § 27-2534.1). Nor, in our opinion, does the definition derived from the aforementioned 1923 Minnesota case come within the commonly understood meaning of the phrase "depravity of mind." Thus, we conclude that this definition was also incorrect.

Although, as we noted previously, instructions clarifying the statutory language of the (b)(7)...