Wright v. State
| Decision Date | 30 October 1985 |
| Docket Number | No. 42024,42024 |
| Parties | WRIGHT v. The STATE. |
| Court | Georgia Supreme Court |
L. David Wolfe, Atlanta, for Calvin Wright.
Lewis R. Slaton, Dist. Atty., Chris Jensen, Asst. Dist. Atty., and Michael J. Bowers, Atty. Gen., Atlanta, Dennis R. Dunn, Staff Asst. Atty. Gen., for the State.
This is a death penalty case. 1 On October 14, 1983, Carolyn Richards and a number of other people were at her apartment in Atlanta. Richards sold liquor and beer at her apartment, and different people came and went. Shortly after midnight on October 15, seven people were there: Richards, Ricky Scott, Taylor Pippins and Alvin Brimidge were at the dining room table playing cards; Ruby Watts, Eugene Beasley, and the victim, Angela Spears, were on stools at a bar. A man came to the door. Watts went to answer it but would not let him in because she did not recognize him. Richards looked through the peep hole and thought she recognized him as someone who had played cards there before. Later she realized that she had never seen him before. Richards let the newcomer in and Watts got him a beer, for which he paid.
Suddenly, the newcomer pulled a .38 caliber revolver from his pocket, fired a shot at Spears, shouted that it was a holdup, and ordered everyone to hit the floor. He then walked over to where Beasley was lying, held the gun to his head, and demanded money. He pulled a second gun, a .22 caliber pistol, and took $82 from Watts. He then robbed Taylor of his wallet, and Richards of her money. He then looked under the table and demanded money from Brimidge, who saw $20 on the floor and picked it up and gave it to him. At that point he tried to leave, but had trouble with the locks on the door. Scott told him to take his time and turn the locks. After he had fled, everyone in the group got up, except Spears. Expert medical testimony established that she died as a result of wounds from a .38 caliber bullet which passed through her left arm into her chest, where it caused internal bleeding, and lodged in her spine.
While Watts called the police, Richards straightened up the apartment. She put beer from the refrigerator in a plastic bag, placed the chairs at the table, and threw away the open beer cans, including the one used by the newcomer. The beer and trash were taken outside, and the discarded cans were never recovered. The police arrived at about 1 a.m. and obtained a description of the perpetrator.
Officers investigating the case learned that Willie Mizell had been at Richards' apartment earlier on the evening of the 14th. He told officers that after leaving Richards' he saw the defendant and loaned him his .38 caliber revolver. 2
The defendant's picture was included in a nine-picture photographic array assembled by the police and shown to the witnesses at different times within a few days of the shooting and robberies. Five of the six witnesses who were in the apartment selected the defendant as the perpetrator. The sixth selected two pictures, one of which was of the defendant. At trial, five of these witnesses identified the defendant and confirmed that they had selected his picture. The sixth, Eugene Beasley, did not testify.
The defendant presented a witness, Donald Hill, who testified that he was with him almost continuously from 11:30 p.m. on October 14, 1983, until 2 a.m. on October 15, 1983, with the exception of an interval of about five minutes around 1 a.m. Hill testified that he and the defendant were headed to Candy's bar at about 11:30 p.m. when they met two girls and instead went to a party, but after about 15 minutes they left the party and proceeded to Candy's bar, leaving there about 12:45 a.m.
The jury convicted the defendant of malice murder and three counts of armed robbery. 3 The jury also found two statutory aggravating circumstances: "That the offense of murder was committed by a person with a prior record of conviction for a capital felony," OCGA § 17-10-30(b)(1), a 1977 armed robbery, and "that the offense of murder was committed while the offender was engaged in the commission of another capital felony," OCGA § 17-10-30(b)(2), and recommended the death penalty. 4 The defendant was sentenced to death for the murder of Angela Spears and to three concurrent life sentences for each of the armed robberies.
1. Having reviewed the evidence in the light most favorable to the jury's determination, we conclude that a rational trier of fact could have found the defendant guilty of the crimes for which he was convicted, malice murder and three armed robberies, beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In this connection, see Division 6, below. Similarly, the evidence was sufficient for the jury to impose the death penalty upon the aggravating circumstances found.
2. The defendant's first enumeration of error is that the trial court erred in overruling his motion to quash the indictment on the ground that black males are significantly underrepresented in the grand and petit jury pools. He points out that the pools are chosen from the list of registered voters (supplemented by 81 persons), and that only 63% of eligible black males were registered to vote in Fulton County, whereas 74%, 75% and 73% of eligible black females, white females, and white males respectively, were registered to vote. He concludes that this establishes at least a ten percent disparity between black males and the other denoted groups. We disagree. The figures he is citing, while demonstrating some underrepresentation of black males on the voter's list and hence in the jury pools, do not establish a ten percent disparity as contended.
The proper analysis follows. The evidence showed that there are 87,904 black males over 18 in Fulton County. Since the total population of the county, over 18, is 430,742, black males over 18 constitute 20.4% of the total. There were 4,781 persons in the grand jury pool, of whom 807 were black males. Thus black males constituted 16.8% of the jury pool. The disparity at issue, then, is the difference between 20.4% and 16.8%, or 3.6%. This does not show that black males are unconstitutionally underrepresented. 5 Unified Appeal, 252 Ga. A 13, A 18-21 (1984); See Ingram v. State, 253 Ga. 622, 629, 323 S.E.2d 801 (1984).
3. Defendant contends that the pretrial identification procedures were impermissibly suggestive, resulting in a substantial likelihood of misidentification. The evidence does not support this contention; in fact, there is no evidence that suggests that the pretrial identification was tainted in any way. See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
The defendant also complains of the state's use of a photographic array instead of using a lineup. But the state is not required to utilize a physical lineup as opposed to a photographic array. He likewise complains that the trial court erred in so charging the jury, and in not charging on mistaken identification. We have reviewed the court's charge on identification and conclude that it was accurate, fair and complete.
4. As recounted in the facts, Donald Hill testified to an alibi for the defendant; that is, Hill testified that he was with the defendant almost constantly during the time when the crimes were committed. On cross-examination, the prosecutor asked Hill when he first learned that the defendant had been arrested. Hill responded that on October 28, 1983, while he was in Pittsburgh he was told by the defendant's sister that the defendant was in jail on charges of murder and armed robbery, and that the crimes had occurred on the night of October 14. The prosecutor then asked if he went right to the police to report that he had been with the defendant, and Hill said he did not.
When asked whether he had ever told anybody, other than the defendant's trial counsel, about the alibi, before today, Hill testified that he attended the defendant's preliminary hearing but that the defendant's lawyer there, whom Hill could not name or describe, told him he would not call Hill as he was going to wait and see what the outcome of the preliminary hearing would be.
Subsequently, in his closing argument, the prosecutor challenged the credibility of the alibi witness; the defendant contends that the following two paragraphs of his argument involved facts not in evidence and made the prosecutor a witness for the state:
By not objecting to this argument until after the jury had reached its verdict, the defendant waived this objection. Rivers v. State, 250 Ga. 303(7) 298 S.E.2d 1 (1982); Mincey v. State, 251 Ga. 255(14), 304 S.E.2d 882, cert. denied, 464 U.S. 977, 104 S.Ct. 414, 78 L.Ed.2d 352 (1983). We note, however, that the defendant is not harmed by this waiver because the prosecutor's deductions, although emphatically phrased in his own words, were not illogical. See Ladson v. State, 248 Ga. 470(6), 285 S.E.2d 508 (1981).
5. The defendant enumerates as error the trial court's refusal to give three charges on circumstantial evidence which he had...
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