Whatley v. State

• Decision Date: 04 December 1998
• Docket Number: No. S98P1308.,S98P1308.
• Citation: 270 Ga. 296,509 S.E.2d 45
• Parties: WHATLEY v. The STATE.
• Court: Georgia Supreme Court

509 S.E.2d 45

270 Ga. 296

WHATLEY v.The STATE.

No. S98P1308.

Supreme Court of Georgia.

December 4, 1998.

Johnny Baxter Mostiler, Griffin, for Frederick Ramone Whatley.

William T. McBroom, III, Dist. Atty., Daniel A. Hiatt, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Christopher L. Phillips, Asst. Atty. Gen., Department of Law, Atlanta, Richard Allen Vandever, Shepherd & Johnson, Griffin, for the State.

Stephen C. Bayliss, Georgia Resource Center, Atlanta, Joseph L. Chambers, Sr., Prosecuting Attorney's Council of GA, Smyrna, Michael Mears, MultiCounty Public Defender, Atlanta, for other interested parties.

SEARS, Justice.

A jury convicted Frederick Ramone Whatley of malice murder, aggravated assault (two counts), armed robbery, motor vehicle hijacking, and possession of a firearm during the commission of a crime.The jury recommended death sentences for the murder and armed robbery after finding the following statutory aggravating circumstances: the offense of murder was committed while the defendant was engaged in the commission of an armed robbery, OCGA § 17-10-30(b)(2); the offense of armed robbery was committed while the defendant was engaged in the commission of a murder, id.; and the offense of murder was committed by a person who has escaped from a place of lawful confinement, id. at (b)(9).The trial court sentenced Whatley to death for malice murder and, after recognizing that a death sentence cannot be imposed for armed robbery (Jarrell v. State,234 Ga. 410, 424-425(11), 216 S.E.2d 258(1975)(death sentence for armed robbery is excessive and disproportionate)), to life imprisonment for armed robbery.Whatley received terms of years for his other convictions.He appeals, and we affirm.¹

1.The evidence showed that Whatley entered Roy's Bait Shop in Griffin at about 8:45 p.m. on January 26, 1995.Whatley brandished a .32 caliber silver revolver and forced employee Tommy Bunn to lie face-down on the floor behind the counter.Whatley pressed the gun against Bunn's head and instructed the owner of the store, Ed Allen, to hand over the money in the cash register.Allen put money in a paper sack and placed the sack on the counter.Whatley moved to the front of the counter, retrieved the paper sack, and fired two shots.One shot struck Allen in the chest and pierced his left lung.Expert testimony established that this shot was fired from a distance of 18 inches.The second shot was fired at Bunn's head (Bunn was still lying prone behind the counter), but the bullet deflected off the counter top and missed.Whatley then exited the store.

Outside the store, Whatley encountered Ray Coursey, who was getting out of his car near the store's doorway.Whatley held his gun to Coursey's head, forced him back into the driver's seat of the car, and told him, "take me ... where I want to go."Whatley got in the back seat.Although mortally wounded, Allen obtained a hidden .44 caliber handgun, rushed to the front of the store, and fired several shots at Whatley, who returned fire.After the exchange of gunfire, Allen collapsed and died from internal bleeding caused by the previously-inflicted gunshot wound.Whatley exited Coursey's car, dropped the paper sack after it tore open, and fled on foot.Coursey observed that Whatley was limping.

Coursey and Bunn told the officers who arrived on the scene that the assailant had used a silver revolver.One of the officers had taken a report the previous day from Franklin White, who said that his silver revolver was missing and he suspected that his cousin, Whatley, had taken it.The officers went to the house where Whatley was staying with a relative, and found him during a consent search.Whatley had a bullet wound in his leg that was still bleeding.Franklin White's .32 caliber silver revolver, determined by a firearms expert to be the murder weapon, was found under Whatley's mattress.The police also found a bloody pair of thermal underwear with a bullet hole in the leg, a bloody towel, and bloody boxer shorts in a trash can behind the house.Fibers on a.44 caliber bullet removed from Coursey's car were consistent with fibers from the thermal underwear, and DNA taken from blood on the fibers matched Whatley.A palm print on the paper sack dropped next to Coursey's car also matched Whatley.In the penalty phase, the state introduced evidence that Whatley was an escapee from a Washington D.C. halfway house, where he had been serving time for robbery.

The evidence was sufficient to enable a rational trier of fact to find proof beyond a reasonable doubt of Whatley's guilt of malice murder, aggravated assault (two counts), armed robbery, motor vehicle hijacking, and possession of a firearm during the commission of a crime.Jackson v. Virginia,443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).The evidence was also sufficient to authorize the jury to find the statutory aggravating circumstances beyond a reasonable doubt.Id.;OCGA § 17-10-35(c)(2).

2.Whatley claims that the trial court erred by failing to excuse for cause three prospective jurors due to bias.The record shows that Whatley did not move to strike two of these prospective jurors for cause, and the trial court did not err by failing to excuse them sua sponte.Spencer v. State,260 Ga. 640, 641(1)(a), 398 S.E.2d 179(1990).The third prospective juror admitted that he had "a little" racial prejudice (Whatley is African-American).This juror also stated that his prejudice would not prevent him from giving Whatley a fair trial, and that he could put aside Whatley's race in making his decisions in the case."`Before a juror can be disqualified for cause, it must be shown that an opinion held by the potential juror is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court's charge upon the evidence.'"Rower v. State,219 Ga.App. 865, 868(1), 466 S.E.2d 897(1995), quotingJohnson v. State,262 Ga. 652, 653(2), 424 S.E.2d 271(1993).The juror's responses showed that he was able to decide the case based upon the evidence, regardless of his admitted racial prejudice.Therefore, the trial court did not abuse its discretion by refusing to strike this juror for cause.SeeRower,supra at 866-869(1), 466 S.E.2d 897.

3.Whatley claims that three prospective jurors should have been excused for cause because they favored a death sentence.Whatley did not object to the qualification of two of these prospective jurors, and the trial court did not err by failing to excuse them sua sponte.Spencer,260 Ga. at 641(1), 398 S.E.2d 179.The third prospective juror stated that her brother had been killed in a convenience store by a robber, and that she believed that the death penalty should be given for a "wilful killing."However, she also explained that the murderer of her brother had been given a life sentence, which was fair because the murder had taken place during a robbery so it had not been "wilful."She further stated that she would listen to the evidence and consider mitigation evidence.Viewing her responses as a whole and giving deference to the trial court's decision, we conclude that the trial court did not err by finding that this juror's views would not substantially impair her duties as a juror in accordance with her instructions and oath.Wainwright v. Witt,469 U.S. 412, 424(II), 105 S.Ct. 844, 83 L.Ed.2d 841(1985);Greene v. State,268 Ga. 47, 48-50, 485 S.E.2d 741(1997).

4.A prospective juror stated that she would vote with the other jurors if her views were in the minority.Whatley objected that this juror was too willing to surrender her beliefs to the majority.The trial court stated that the juror may not have understood the question, and elicited from the juror that she would not surrender to a majority if she believed that Whatley was not guilty.The juror also stated that she would not surrender to a death-sentence majority if she believed that life without parole was the appropriate sentence.The trial court did not abuse its discretion in finding that this prospective juror was qualified.McClain v. State,220 Ga.App. 474, 477(6), 469 S.E.2d 756(1996)(trial court's decision on a prospective juror's qualification not disturbed on appeal absent a manifest abuse of discretion).

5.Whatley complains that the state improperly asked prospective jurors on voir dire whether Whatley's relatively young age (28) would prevent them from returning a death sentence.Whatley did not object to this question, so this argument is waived on appeal.Earnest v. State,262 Ga. 494, 495(1), 422 S.E.2d 188(1992).

6.Whatley argues that the state used scientific evidence that was inherently unreliable.However, the record shows that all of the state's experts who testified were properly qualified as expert witnesses by the trial court, and Whatley had no objection to any witness' qualification.Harper v. State,249 Ga. 519, 533(10), 292 S.E.2d 389(1982).Furthermore, "[o]nce a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature."Harper,supra at 526(1), 292 S.E.2d 389.The hair comparison, fiber comparison, fingerprint comparison, and ballistics evidence introduced in this case is not novel, and has been widely accepted in Georgia courts.In addition, Whatley did not object that any of the scientific evidence was unreliable, or that any testing procedure was improper.These issues are therefore waived on appeal.Harper,supra at 533(10), 292 S.E.2d 389.The trial court did not make the DNA findings required by Caldwell v. State,260 Ga. 278, 286-287(1)(b), 393 S.E.2d 436(1990), but Whatley did not object to the admission of the DNA evidence at trial and therefore cannot raise this error on appeal.Smith v....