Young v. State

• Decision Date: 12 May 1977
• Docket Number: No. 31932,31932
• Citation: 239 Ga. 53,236 S.E.2d 1
• Parties: John YOUNG v. The STATE.
• Court: Georgia Supreme Court

Page 1

236 S.E.2d 1

239 Ga. 53

John YOUNG v. The STATE.

No. 31932.

Supreme Court of Georgia.

May 12, 1977.

Rehearing Denied May 26, 1977.

James, Shipp & Wilcox, Tommy Day Wilcox, Jr., Macon, for appellant.

Walker P. Johnson, Jr., Dist. Atty., Tommy H. Hinson, Graham A. Thorpe, Asst. Dist. Attys., Macon, Arthur K. Bolton, Atty. Gen., Daryl A. Robinson, Staff Asst. Atty. Gen., Atlanta, for appellee.

NICHOLS, Chief Justice.

John Young was tried by a jury in the Superior Court of Bibb County and convicted of three counts of murder. As to each murder conviction, the jury found as aggravating circumstances (1) the offense of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree; and (2) 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. He was sentenced to death on each count. He is before this court on appeal and for mandatory review of the death sentence imposed.

SUMMARY OF THE EVIDENCE

The State presented evidence from which the jury was entitled to find the following:

On the night of December 7, 1974, six elderly persons were attacked, severely beaten, kicked, and stomped in their homes in the City of Macon, Bibb County, Georgia. All lived in the same neighborhood. Three of those people pieced together a description of their assailant. The other three victims died as a result of attacks upon them.

The appellant was connected to the crimes by watches and jewelry taken during the commission of the crimes, a fingerprint, and statements to his friends that he did it. When asked if he was the one who had jumped on those people, he replied: "Yeah, man and I'm going to get me some more." When asked if they were white or black, he responded: "White." When asked: "Why, John?" he replied: "I don't know. The only thing that I am sorry is that they caught me before I got through."

The evidence will be examined in more detail as necessary in addressing the enumerations of error.

The appellant filed a special plea of insanity before trial, and on June 30, 1975, a jury returned a verdict against the special plea of insanity. The court granted a new trial on such issue, and on October 21, 1975, a second jury returned a verdict against the plea. During the sentencing phase of the trial, the appellant again presented the testimony of the psychiatrist who had performed the psychiatric examination.

ENUMERATIONS OF ERROR

1. The appellant was arrested December 9, 1974, indicted December 19, 1974 and counsel was not appointed until December 23, 1974. Accordingly, the challenge to the array of the grand jury filed after indictment was properly considered by the trial court where the allegations therein to the effect that the defendant had no knowledge, either actual or constructive, of the alleged illegal composition of the grand jury prior to the time the indictment was returned. See Estes v. State, 232 Ga. 703, 708, 208 S.E.2d 806 (1974); Wooten v. State, 224 Ga. 106(1), 160 S.E.2d 403 (1968).

While the original challenge to the composition of the grand jury included attacks based upon the exclusion of youth as well as racial discrimination, neither of these attacks has been argued in this court and are considered abandoned. If these contentions had not been abandoned, they would be without merit. Compare White v. State, 230 Ga. 327, 196 S.E.2d 849 (1973) cert. denied, 414 U.S. 886, 94 S.Ct. 222, 38 L.Ed.2d 134; State v. Gould, 232 Ga. 844, 209 S.E.2d 312 (1974).

In support of the contention that the grand jury, which indicted him, was unconstitutionally constituted as a result of an underrepresentation of women, the defendant relies upon the decision of the United States Supreme Court in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), and Sanders v. State, 237 Ga. 858, 230 S.E.2d 291 (1976). The defendant's reliance upon these cases is misplaced. The defendant here was indicted in December, 1974. The Taylor decision was not rendered until January, 1975 and in the later decision of Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975), the United States Supreme Court held: "The decision in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690, wherein it was held that the Sixth and Fourteenth Amendments require petit juries to be selected from a source fairly representative of the community and that such requirement is violated by the systematic exclusion of women from jury panels, is not be to applied retroactively, as a matter of federal law, to convictions obtained by juries empaneled prior to the date of that decision. DeStefano v. Woods, 392 U.S. 631, (88 S.Ct. 2093, 20 L.Ed.2d 1308)."

Nor does the decision of this court in Sanders v. State, 237 Ga. 858, 230 S.E.2d 291, supra, wherein this court applied the decision in Taylor, supra, to grand jurors selected in Georgia, aid the defendant. A review of the record in Sanders discloses that the grand jury indicting the defendant there was impaneled after the decision in Taylor, supra.

The decision of the Court of Appeals in Gould v. State, 131 Ga.App. 811, 207 S.E.2d 519 (1974) affirmed in part and reversed in part; State v. Gould, 232 Ga. 844, 209 S.E.2d 312 (1974) does not support the defendant's contention that his challenge to the grand jury should be sustained. In that case, unlike White v. State, supra, and the present case, there was evidence introduced showing a pattern of exclusion of persons from significantly identifiable groups. Thus, the evidence, relating to the make-up of the particular grand jury box from which the panel which indicted the defendant was drawn, would not support such contention.

As to the traverse jury which actually convicted the defendant, such jury was composed of seven men and five women. Under these circumstances it cannot be said that the appellant has been harmed by the exclusion of women at any stage of the jury selection process. The first enumeration of error is without merit.

2. The second enumeration of error complains that the trial court erred in failing to grant a pretrial motion for change of venue because of unfavorable pre-trial publicity.

In Coleman v. State, 237 Ga. 84, 226 S.E.2d 911 (1976), this court held: "In considering this question this court fully recognizes the well established principle that a trial before a fair and impartial jury is a basic requirement of due process. We also recognize the right of the news media to report the factual happenings surrounding a crime and to report accurately a trial based thereon. To restrict the right of the press in this regard would be inconsistent with the First Amendment and with the right of the public to a free flow of information. This right of the media, however, must not be allowed to interfere with the judicial calm which must surround a trial free from emotionalism and sensationalism. The courts have attempted to balance these equities. It was stated in United States v. McNally, 485 F.2d 398, 403 (8th Cir., 1973), 'Just because, however, there has been widespread or even adverse publicity is not in itself grounds to grant a change of venue. As stated in Irvin v. Dowd, 366 U.S. 717, (722), 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961), an important case draws public attention through "swift, widespread and diverse methods of communication" and hardly any prospective juror "will not have formed some impression or opinion as to the merits of the case. " The proper test is whether the prospective juror "can lay aside his impression or opinion and render a verdict based on the evidence presented in court. " Irvin v. Dowd, supra, at 723, 81 S.Ct. at 1643.' . . . 'The test as to whether unfavorable newspaper publicity had so prejudiced a case against one accused of a crime that a fair trial cannot be had is whether the jurors summoned to try the case have formed fixed opinions as to the guilt or innocence of the accused from reading such unfavorable newspaper publicity . . .' Krist v. Caldwell, 230 Ga. 536, 198 S.E.2d 161 (1973)."

The trial transcript clearly shows that there were no such preconceived opinions as to the guilt or innocence of the appellant here. Ten of the twelve jurors stated at the trial on voir dire (either) that they had not read or heard any pre-trial publicity or, if they had, they were not influenced by it. Of the two remaining jurors, one stated that he would require the State to prove the defendant's guilt beyond a reasonable doubt. Questioning of the other remaining juror on voir dire fails to show that she had any fixed opinion as to the guilt or innocence of the appellant. In addition, the entire panel of prospective jurors was asked the following questions on voir dire: (1) "(H) ave you any prejudice or bias resting on your mind either for or against this defendant?" (2) "Is your mind perfectly impartial between the State and the accused?" Only one prospective juror answered the first question in the affirmative, and he was excused for cause. There was no negative response to the second question.

Most of the media coverage surrounding this case was during the month of December, 1974. The trial was not begun until January 5, 1976, almost 13 months later. At trial, the appellant's counsel conceded to the trial court, during the hearing of a different motion, that after extensive research, he did not feel that there was sufficient ground for a change of venue under legal precedent in this state, but that he was going to file a change of venue motion only because appellant had requested him to do so.

The appellant's motion for a change of venue was properly denied by the trial court, and therefore, the second enumeration of error is without merit.

3. The third enumeration of error alleges: "The trial court erred in failing to dismiss the indictment against the appellant and declare the death penalty...