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Ellis Wayne FELKER

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer ?
Characteristics: Grave doubts concerning his guilt - Robbery - Rape
Number of victims: 1
Date of murder: November 23, 1981
Date of birth: 1948
Victim profile: Evelyn Joy Ludlum (female, 19)
Method of murder: Strangulation
Location: Houston County, Georgia, USA
Status: Executed by electrocution in Georgia on November 15, 1996
 
 
 
 
 
 

Ellis Wayne Felker (c. 1948 November 15, 1996) was convicted and executed for a murder he may have not committed.

History

Ellis Wayne Felker was a suspect in the 1981 disappearance of a Georgia woman, Evelyn Joy Ludlum. He was put under police surveillance for 2 weeks, during which time Ludlum's body was found in a creek, raped, stabbed and murdered. Felker had a prior conviction for aggravated sodomy, a sentence that he served twelve years for.

Controversy

An autopsy performed by an untrained technician determined that Ludlum had been dead for 5 days when found. Realizing that this finding would eliminate Felker as a suspect due to his surveillance, the findings were changed. Later study of the autopsy notes by independent analysis showed that Ludlum had been dead no more than 3 days when found.

After Felker's conviction, it came to light that prosecutors had illegally withheld boxes upon boxes of evidence, including possible DNA samples of the perpetrator and a signed confession made by another suspect who was mentally retarded. The District Attorney in charge denied under oath that such evidence existed and the presiding judge at one of Felker's hearing stated that Felker's right to a fair trial had been severely compromised.

Execution

Despite all the mounting evidence and doubts of his guilt, the Supreme Court of Georgia refused to order a new trial or even grant a stay long enough to sort through the mountains of paperwork in the case that had been withheld allowing the defense time to investigate the case further for possible exoneration.

This was due to the fact that he had been on death row for sometime and had not appealed any of the evidence until a death warrant was issued. As is common with murders they sit on death row and wait, hoping victims, evidence and witness will all eventually go away at which time they can appeal saying they did not do it and try to get a new trial with half the evidence.

Felker's execution was delayed during the Summer Olympics in Atlanta and he was eventually executed on November 15, 1996 at the age of 48, living some 17 years longer than he should have after being sentenced to death.

Ellis Wayne Felker was put to death by electrocution in Georgia's electric chair.

Exoneration attempt

In 2000, a Georgia judge ruled that DNA testing would be performed in the first-ever attempt by a court to exonerate an executed person in the United States. The results were ruled as inconclusive; however this finding alone would not have been enough to grant a new trial, or exoneration and release. The best evidence was used at trial and Felker was justly executed.

 
 

Georgia to execute Ellis Wayne Felker despite grave doubts concerning his guilt

The State of Georgia is scheduled to put Ellis Wayne Felker to death in the electric chair at 14.00 Thursday 14 November despite grave doubts about his guilt for the crime for which he was sentenced to die.

That Georgia should even contemplate this execution going ahead when there is serious concern about whether Ellis Wayne Felker is in fact guilty is unacceptable, Amnesty International said today.

No system of justice is infallible, and for this reason every justice system should strive to correct mistakes when they happen. By executing Ellis Wayne Felker, Georgia deprives him of his life and the state the opportunity to admit a mistake has been made at a later date, should the evidence newly discovered by defence attorneys prove his innocence.

Ellis Wayne Felker has survived two attempts by Georgia to have him executed in 1996. The most recent on 10 September was stayed by the courts -- less than 30 minutes before it was scheduled and after his head and leg had been shaved to take the electrodes -- after the discovery of five crates of police notes and evidence that the prosecution had failed to make available to defence attorneys at the original trial in 1982. The crates contained a signed confession from another suspect in the case and forensic samples from the victim and crime scene that, via DNA testing, could exonerate Ellis Wayne Felker.

Authorities in Georgia refuse to even consider that a mistake could occur in the administration of the death penalty. The Attorney General of Georgia, Michael Bowers, recently went on record as stating that there were no innocent prisoners on death row: There is rarely any question about the guilt of these people, virtually none. That is a myth...these guys on death row are the pits.

When asked specifically about the Ellis Wayne Felker case, Bowers replied: Ive talked to the cops who investigated him, and I asked them: Guys, is there any doubt about his guilt? And they told me, Bullshit.

Other evidence against Ellis Wayne Felker also appears weak. He was accused of murdering Joy Ludlum, who disappeared 14 days before the discovery of her body. Ellis Wayne Felker, who knew Joy Ludlum, was the main suspect and was put under police surveillance within hours of her disappearance. After the discovery of Joy Ludlums body in a creek, the first autopsy put her death within the previous five days. However, when it was realized that this would have ruled Ellis Wayne Felker out as a suspect as he had been under police surveillance for the pervious 13 days, the findings of the autopsy were changed. The autopsy was carried out by an unqualified laboratory technician.

Attorneys representing Ellis Wayne Felker during the appeals process showed the original notes from the autopsy and photographs of Ludlums body to pathologists who unanimously concluded that she could not have been dead for longer than three days. However, the appeal courts have upheld Ellis Wayne Felkers conviction.

Amnesty International is urging the Attorney General of Georgia to implement a full investigation into the possible innocence of Ellis Wayne Felker and not to oppose legal appeals for a stay of execution from defence attorneys representing him.

BACKGROUND INFORMATION

Georgia has executed 20 inmates since the resumption of executions in 1983: this is the sixth largest number for a state in the USA. Since the resumption of executions, four death row inmates in Georgia have been found innocent. Sixty-five death row inmates have been cleared and released by the federal appeal courts since 1973.Three hundred and forty-seven prisoners have been executed in the USA since 1977.

In June 1996 Amnesty International released a document The Death Penalty in Georgia: Racist, Arbitrary and Unfair detailing many concerns around the manner in which the death penalty is administered.

Several inmates have been released from death rows in the USA after being exonerated this year. Roberto Miranda was released in Nevada after 14 years and Dennis Williams and Verneal Jimerson were released in Illinois after 18 years. On 7 November the Governor of Virginia commuted the death sentence of Joseph Payne to life imprisonment without parole three hours before his scheduled execution after serious doubts were raised concerning his guilt. Retrials have been ordered in numerous death penalty cases.

 
 

Ellis Wayne Felker 

Georgia - Nov 15, 1996

Late in the morning of December 8, 1981, the body of 19-year-old Evelyn Joy Ludlam was found floating in Scuffle Creek, in Twiggs County, near a bridge on the "Cochran short route."

She had been missing for two weeks and the last person known to have seen her alive was the appellant, Ellis Wayne Felker. Felker was charged in Houston County with murder, robbery, rape, aggravated sodomy, and false imprisonment.

At trial, a verdict of not guilty was directed on the robbery count, and a jury convicted Felker on the remaining counts. Felker was sentenced to death for the murder. We affirm.

The victim, Joy Ludlam, was a student at Macon Junior College and worked as a cocktail waitress at the Holiday Inn in Warner Robins. Her parents were residents of Macon but, about 10 months prior to her death, Joy had moved to Warner Robins to live with an older woman whom Joy had met through church.

Not being entirely satisfied with her job at the Holiday Inn (her religious beliefs did not allow her to work Friday nights or Saturdays), Joy had begun to seek other employment prior to her death.

On Monday evening, November 23, 1981, between 11.00 and 11:30 p.m., Wayne Felker visited the lounge where Joy worked. He was wearing a T-shirt advertising "The Leather Shoppe," a business that he owned in Warner Robins. Felker had been convicted in 1976 of aggravated sodomy.

In April of 1981, shortly after his release from prison, Felker opened his leather shop. A neighboring businessman testified that from April until June, Felker's business gradually increased. Felker began to lose interest in the business, however, and, from September onward, was seldom there. His neighbor collected his mail for him. Felker attributed his disinterest to his romance with Patricia Woods, whom he met not long after he opened his business.

Felker testified that after he and Ms. Woods began living together, he "more or less let the business fail." He admitted that the shop's checking account was overdrawn the night he met Joy Ludlam and that he had been making ends meet by borrowing money from his parents (who owned the house in which he lived), and by selling some of his furniture.

Nonetheless, when Joy noticed Felker's T-shirt advertising his business, a conversation ensued which culminated in an offer of employment, pursuant to which they were to meet the next day. Pat Woods had left Felker the previous Saturday after he had blackened both of her eyes, so he was alone Tuesday morning when Joy arrived.

A neighbor, who had been asked by Felker's mother to keep track of the cars visiting Felker's house, noticed Joy's arrival at approximately 9:00 a.m. and wrote down the tag number of her car. The neighbor testified that the car was gone by 11:00 a.m.

Felker testified that he was at home awaiting a hoped-for call from Pat Woods. He testified that, when Joy arrived and wanted to see the shop, he told her that he was expecting a call and could not go then. Joy returned to her residence at approximately 2:00 p.m. A visitor to the residence, Ms. Akins, testified that, some time after 2:30 p.m., Joy made a telephone call during which she mentioned that she "would like to see the shop."

According to Ms. Akins, Joy left around 5:00 p.m. wearing a long, plaid coat. At approximately 6:30 p.m., Joy called the manager of the Holiday Inn lounge and told him that the mother of the lady with whom she lived was in the hospital and that Joy wanted to stay with her.

The manager gave her the night off. When Guy Starling, office manager of the Trust Company Bank in Warner Robins, left work Tuesday evening, between 6:30 and 7:30 p.m., he noticed an automobile parked in the bank's parking lot that did not belong to any of the bank's employees. He wrote down the tag number. The car was still there the next day. Irma Anthony, with whom Joy lived, spent Tuesday night at the hospital with her mother.

She returned home Wednesday morning to discover that Joy was not there. As evening approached and Joy still had not returned, she went to the police, taking with her a photograph of Joy and a napkin on which had been written Felker's telephone number and the address of his leather shop.

Two officers visited Felker Wednesday evening at approximately 5:30 p.m. Felker told them that he had met Joy the previous evening pursuant to his offer of employment. He told them that she had left his shop at around 6:00 p.m. because that was when the shop closed. He said that they had traveled in separate cars and that, although he had opened and closed the door for her, he never got into her car, nor had she got into his.

He stated that when he last saw her, she was wearing a plaid coat and a red dress. Joy's mother, having been informed of her daughter's disappearance, drove to Warner Robins on Thursday to search for her. Mrs. Ludlam found Joy's car parked in the parking lot of the Trust Company Bank at about 2:30 p.m. The car was locked.

She notified the police, who subsequently searched the car and found, on the front seat, a notebook opened to a page on which was written, in Joy's handwriting: "I'm going to Atlanta to eat dinner with Wayne and some of his friends. They are GS-11's on base. Joy." On December 1, with Joy still unlocated, investigators questioned Pat Woods, who had resumed her cohabitation with Felker. Soon afterwards, Felker collected some of his pornographic magazines and his bondage cuffs (3-inch wide leather straps with "watch-band" buckles) and threw them in a garbage dumpster.

On Tuesday, December 8, 1981, two weeks after she disappeared, Joy's body was discovered in Scuffle Creek by a mechanic who was searching the right-of-way along the Cochran short route, looking for discarded bottles and cans. She was clothed in the same plaid coat and red dress that she had been wearing when last seen alive.

An autopsy was conducted the following morning. Warren Tillman, a medical examiner with the state crime lab, observed that pantyhose and underwear were still on the body but that the crotch of each had been ripped out. On her face, around her eyes and mouth, were lines of a whitish material which, on examination, appeared to be an adhesive substance.

Tillman noted hemorrhaging inside the eyelids indicative of asphyxiation, and contusions at the junction of the lips indicative of some sort of force against her mouth. On her neck was a long, narrow area of bruising. On her breasts, he observed ecchymotic hemorrhage consistent with having been induced by suction. There were bruise marks on her left shoulder and on her right thigh. There were marks on her left wrist and on her ankles consistent with their having been bound.

Tillman observed areas of contusion around the vagina and anus, which was distended, indicating traumatic entry of these orifices. On internal examination, Tillman noticed an area of hemorrhage near the second, left rib, that had no associated surface bruising, which was consistent with force having been applied by an object such as a fist or a foot. He observed a number of areas of subgaleal hemorrhage on the inside of the scalp.

However, there was no evidence of brain hemorrhage. Examination of the lungs indicated that Joy had been dead when she was placed in the water. Tillman concluded that the cause of death was asphyxiation from strangulation. Establishing a time of death proved difficult.

Tillman's original estimate, based on the state of decomposition of the body, was that Joy had been dead 3 to 5 days, or possibly longer -- the immersion of the body in the water complicated the determination. After receiving information regarding air temperature, and reviewing other case histories involving bodies immersed in water, Tillman concluded that Joy had been dead at least three to five days, and that she could have been dead for two weeks.

On February 4, 1982, Joy's body was exhumed. Sections of tissue were taken from bruised areas on her body. Dr. James Whitaker, medical examiner for Houston County, microscopically examined these tissue samples to ascertain the extent of "margination." Dr. Whitaker concluded that the bruises had been inflicted within 4 to 6 hours prior to death.

On February 16, 1982, a hunter found Joy's purse on the north side of Highway 96, near the Houston-Twiggs county line, 3 to 4 miles west of the intersection of Highway 96 and the Cochran short route. Besides her driver's license and college I.D., the purse contained a "Mickey Mouse" pendant which Joy habitually wore on a chain necklace. The necklace itself was never found.

Between December 8, 1981, and March 29, 1982, Felker's house and car were searched several times. Hairs and fibers were collected and microscopically compared with hairs and fibers found on the body. Fibers found on the victim's coat were consistent with fibers present in a yellow and orange blanket first observed in Felker's home and later retrieved by police from his parents.

Fibers similar to those of the victim's coat material were found in the hatchback area of Felker's automobile. Hairs were found on the victim's clothes, including her underclothes, and on her body, that were similar to Felker's head and beard hair. Hairs adhering to two handkerchiefs in the victim's pocketbook were similar to Felker's head hair.

In addition, several hairs discovered in the bedroom of Felker's home were similar to the victim's head and pubic hair. Felker had been involved in an earlier incident involving bondage and forcible sex. This incident was described at trial by the victim.

On October 3, 1976, Jane W., a cocktail waitress, stopped by a Sambo's restaurant for coffee after she got off work. Then she drove home, alone. As she pulled into her driveway, a car stopped in front of her house and the driver called to her. The driver (she later discovered) was Wayne Felker, who told her that he was lost, and that he was looking for a party on Navarro Drive. Ms. W., who had recently moved to Warner Robins, had heard of Navarro Drive and knew that it was nearby.

Felker, a lifelong resident of Warner Robins, told Ms. W. that he had no idea how to get to Navarro Drive, that he was in a friend's car, and that he was supposed to meet the friend at the party. Ms. W. agreed to get him to the general area. She got in her car and proceeded towards Navarro Drive, followed by Felker in his car. She was unable to find the right street.

Eventually, they drove by Sears, and Felker passed her car and turned into the Sears parking lot. She pulled in behind him. He got out, approached her car, and told her that he was too drunk to drive anymore and that he would get in trouble if he damaged his friend's car. He asked Ms. W. if she could drive him to his friend's wife's house, which he knew to be just down the road.

Ms. W. testified that, "he was so nice . . ., he acted so lost . . ., [he] sounded so convincing . . . [that] I unlocked the door [and] he got in the car." Felker directed her to a trailer on Porkie Drive. She waited in the car while he went inside.

A few minutes later, he returned. The friend's wife was getting dressed and would take him to the party after she woke the baby up. He asked Ms. W. if she could wait a few more minutes, so that she could take them back to the friend's car.

She answered that she could, but that she had to use the bathroom. Felker invited her inside. She accepted his invitation and, leaving her pocketbook in the car, entered the house and began walking down the hall, followed by Felker.

About halfway down the hall, she "realized that there didn't seem to be anybody else in there . . . there was no light; there was no lady; there was no child; . . . there didn't even seem to be . . . another bedroom . . ." She turned around.

Felker grabbed her around the neck and started choking her. He carried her to the bedroom and threw her, face down, onto the bed. As he held her head down with one hand, he pulled one of her arms behind her back. He tied a rope around it, pulled the other hand back, and then tied her hands together.

Next, he laid her, face down, on the floor and tied her feet together. Felker placed some cotton over her eyes and taped her mouth and eyes with duct tape. Then he tied her to the bed, and left. Ms. W. heard him drive off. Ten or 15 minutes later, she heard him return, driving a different car. He proceeded to the bedroom, where he untied her feet and laid her on the bed. He took her necklace off.

He tied her hands to the corners of the bed and undressed her from the waist down, ripping her underwear. He cut and then ripped off her shirt and bra, and tied her legs to the other two corners of the bed. Then he asked her, in effect, whether she had ever been anally sodomized. When she did not answer (she was still gagged), he punched her on her right thigh with his fist, pounded her on her chest, and said, "I'm talking to you."

Felker then attempted to anally sodomize Ms. W. She testified that she struggled so much that Felker was unsuccessful in this attempt, but that after Felker violently struggled with her, and grabbed her and punched her with his fists, he became sufficiently aroused that he was able to rape her. 

Then, after Felker obtained a vibrator or some similar object and "rammed" it inside Ms. W., he removed the duct tape from her mouth and orally sodomized her. Afterwards, Ms. W. talked to Felker and finally convinced him to untie her hands and feet so that she could use the bathroom. Untied, but still blindfolded, she was guided to the bathroom and then back to bedroom.

Felker lay down beside her and fell asleep. Ms. W. left and called the police. As she left, she picked up her pocketbook, which was in the bathroom. She later discovered, in the bottom of her purse, the pendant from her necklace. She never recovered the necklace itself.

Evidence was offered by Felker in support of his contentions that the 1976 incident involved consensual sex, that he last saw Joy Ludlam at approximately 6:00 p.m. on November 24, 1981, and that she had not been dead for two weeks when her body was discovered.

Regarding the 1976 incident, Felker testified that he had stopped in front of Ms. W.'s home to ask directions to a party on Navarro Drive, even though he was a life-long resident of Warner Robins. (In fact, during the sentencing phase of the trial, it was revealed that his aunt lived on Navarro Drive in 1976).

Felker claimed that he invited Ms. W. to the party and that she accepted. He testified that they stopped at the Sears parking lot when they could not find the party, and decided to go to his trailer. He parked his car for fear that, because he had been drinking, he was going to be stopped by the police if he continued driving. They proceeded to his trailer in her car.

Upon their arrival, she went to the bathroom. Felker (presumably, no longer worried about being stopped for DUI) decided to drive to the store to get cigarettes. After discovering that her car was low on gas and remembering that there were cigarettes in his car, he drove to Sears and switched cars.

When he returned, Ms. W. was looking at his bondage magazines and expressed an interest in having sex while being tied up. Everything that followed, Felker said, was with her consent. On cross-examination, Felker admitted that he might possibly have inflicted the circular bruise on her right thigh and other bruises on her body, and that he "might have gotten too rough."

He admitted that he had been at Sambo's earlier, but claimed that he had not followed Ms. W. and that their meeting had been coincidental. He admitted removing her necklace, but did not know why he had done so, nor could he explain how the pendant wound up in her purse, absent its necklace. He explained that he had taped her mouth because she "was giggling."

He did not recall why he had taped her eyes. He did not know why he tied her up before removing her clothes, nor did he know what she was going to wear home after her clothes had been cut. Regarding the disappearance of Joy Ludlam, Felker testified that when she called Tuesday morning, he was asleep in a recliner in the living room, covered up with his orange and yellow blanket.

After her morning visit, he went to his shop to retrieve a compressor, some spray guns, paint and so forth, that he intended to use to refinish some furniture. He loaded these items into the hatchback area of his car and returned home.

When Joy stopped by his house later that day, she took off her coat and laid it on the recliner. She made a telephone call while he changed clothes. When they exited the house, Felker realized that he had not yet unloaded his car.

Although Joy "seemed to be in a hurry," Felker nonetheless took the time to unload his car before they left. As he was doing so, she observed a number of leather catalogs in the back of his car. Felker told her to go ahead and take one. She still had her coat on her arm as she leaned into the hatchback area of the car to reach "all the way to the back part of the back seat."

Then she went to her car and sat in the driver's seat thumbing through her catalog. (No such catalog was discovered in the search of her car two days later.)

According to Felker, he last saw Joy Ludlam as she left his leather shop that evening. On his way home he stopped by Sears. (Sears is across the street from the Trust Company Bank where Joy's car was parked when Guy Starling left work between 6:30 and 7:00 p.m.) Felker testified that he left his house twice that night. The first time, he went to a convenience store to purchase beer and cigarettes. Sometime after midnight, he left to "drive around looking for Pat [Woods]."

Felker admitted that Pat had called him around 10:30 p.m. and that they had agreed to meet the next morning. He knew that she had no car. When asked by the district attorney how he expected to find her, Felker answered that he was "[h]oping she'd be in a yard somewhere."

Felker denied that the real purpose of the trip was to dispose of Joy Ludlam's body. He admitted that he was unable to find Pat Woods standing out in someone's yard in the wee hours of the morning, and that he returned home alone.

 
 

Georgia executes Ellis Wayne Felker

The Associated Press

By Elliott Minor

JACKSON, Ga. (AP) -- A killer whose bid to avoid the electric chair became a test case for a new federal law expediting death penalty cases was executed Friday for the 1981 rape and murder of a college student.

Ellis Wayne Felker was electrocuted hours after the Supreme Court unanimously rejected his final appeal. His body stiffened and fists clenched as the current passed through his body for two minutes. He was declared dead at 7:39 p.m.

He declined to make a final statement, but left a taped message for his family and girlfriend. "He stated he was innocent and said the state was putting an innocent man to death,'' said Mike Light, a Corrections spokesman.

Felker, 48, was first spared from the electric chair in May when the Supreme Court agreed to hear his case as a test of the Anti-Terrorism and Effective Death Penalty Act of 1996.

The act cracked down on death row inmates and other state prisoners who file numerous appeals in federal court after losing their initial appeals. In June, the court upheld a key part of the law and rejected Felker's appeal.

Felker was convicted of raping and killing Evelyn Joy Ludlam, a waitress in a bar and a student at Macon Junior College. She was looking for other work, and Felker offered her a job at his leather shop.

She disappeared the next day. Before she left her home to meet Felker, she wrote his telephone number on a napkin and a note telling her landlady where she was going.

Two weeks later, a man collecting aluminum cans found her body. Prosecutors said she had been repeatedly raped and sodomized.

Felker's execution was Georgia's second in as many days. Larry Lonchar, 45, was electrocuted early Thursday for killing a 54-year-old man, the man's girlfriend and his son in 1986 over a $10,000 gambling debt.

 
 

DNA testing ordered in case of man already executed

By Rhonda Cook

Atlanta Journal-Constitution Staff Writer

Nearly four years after his execution, Ellis Wayne Felker is becoming part of the debate over DNA evidence and capital punishment.

A Middle Georgia judge has ordered evidence in Felker's case be made available for DNA testing, a technology that did not exist when he was tried for murder 17 years ago in Houston County. 

Houston County District Attorney Kelly Burke still must approve an agreement between four news organizations, including The Atlanta Journal-Constitution, to determine how the testing and distribution of the results will be handled. The prosecutor, who was not in office when Felker was tried, said Wednesday he was satisfied with all but one component of the agreement and that problem should be worked out soon.

The evidence could be prepared for shipping this week. 

The judge's order is believed to be a first nationally for a case in which a suspect was convicted and executed for murder. DNA evidence has exonerated eight inmates across the country who were under death sentences but has not yet been used to shed light on the guilt of someone who has been put to death. 

The results of the Felker tests, if conclusive, could raise the stakes of a national discussion about the fairness and fallibility of the death penalty. One state -- Illinois -- has formally suspended executions while officials study reforms, and five others are considering whether to keep their capital punishment laws. 

Felker, professing his innocence until the end, died in the electric chair Nov. 15, 1996, for the murder of 19-year-old Evelyn Joy Ludlam, a college student and cocktail waitress. The evidence against him was largely circumstantial. The strongest| physical| evidence| -- hair the State Crime Lab said might have been Felker's -- was found on Ludlam's clothes and can now be analyzed to determine whether it actually contains his DNA.

Prosecutors conceded their case against Felker was circumstantial. They argued he was the last person known to have seen Ludlam before she disappeared in November 1981 and fibers from a blanket and her wool coat showed she had been in his house. The attack was similar, they added, to a 1976 assault for which Felker was convicted of aggravated sodomy. 

Felker had told police Ludlam came to his house twice and his leather shop once on the day authorities believe she disappeared. He said they had met the night before in a Warner Robins lounge and had talked about her working at his shop. Felker said he last saw Ludlam when she left his shop. 

During the past 10 years, DNA testing has become recognized as a technology that can unequivocally tie a suspect to evidence such as hair, tissue or bodily fluids. DNA -- deoxyribonucleic acid -- is the genetic material contained in human cells and, except for identical twins, is unique to each individual.

When Felker was tried, analysis of hair evidence was a highly subjective process in which a technician examined hairs under a microscope looking for similarities. With the advent of DNA testing, some states -- though not Georgia -- have limited the use of microscopic hair analysis in criminal trials.

The most reliable DNA test can analyze bodily fluids or hair roots and identify the source to a certainty of one in several billion. Another method, used on less substantial specimens such as hair fragments, is less precise but can determine that a sample came from either an individual or one of his maternal relatives. In the final months before Felker's execution, his lawyers tried to get a delay and the court's permission to do a DNA analysis of the hair and other evidence. The courts refused, saying the request should have been made sooner. The courts allow for such last-minute requests only when there is a new law that has not been reviewed by the federal courts or new evidence that had not been available sooner.

Felker might have won a delay if there had been as much attention then on DNA testing in death penalty cases as there is today, said Mike Mears, one of the attorneys involved in Felker's appeals. 

"I think the courts would have given the evidence to us then. Unfortunately, it's too late for Wayne," Mears said. "But they owed it to the victim to turn it over. As it is, this poor innocent victim is still being bandied around."

Although DNA testing is becoming a new hope of anti-death penalty activists and lawyers, it is only an option in cases with hair or bodily fluids as evidence. In Georgia, only 20 of the 130 people on death row were also convicted of a sex crime that would indicate the availability of suitable evidence for testing.

DNA testing has worked against some inmates under a death sentence. Texas Gov. George W. Bush stopped the execution of Ricky McGinn on June 1 until evidence found on his victim, his 12-year-old stepdaughter, could be tested. This month, preliminary results said the DNA was either McGinn's or a maternal relative's, according to published reports. 

Until now, the courts have allowed post-conviction DNA testing only before an execution. In Virginia, death-penalty opponents failed in May to get court approval for DNA testing in the case against Joseph O'Dell III, who had been executed in 1997. Once the appeals were over, Virginia authorities destroyed the evidence.

In the Felker case, Houston County Senior Superior Court Judge L.A. McConnell determined that the evidence was a "public record" and available for testing. 

McConnell signed court orders specifying that two newspapers -- The Atlanta Journal-Constitution and The Boston Globe -- can have the evidence tested. The Macon Telegraph and CBS-TV's "60 Minutes" newsmagazine also are petitioning the court to gain access to the evidence.

Experts said McConnell's ruling is the first of its kind in the country. 

"I don't know of anywhere it's been done," said Jane Siegel Greene, executive director of the New York-based Innocence Project at the Benjamin Cardozo Law School. "It's great that the state [of Georgia] is at least taking the stance that they aren't afraid to let the truth come out."

 
 

Wayne Felker

JusticeDenied.org

"The judge characterized the police handling of the case as a 'Kafkaesque nightmare,' and said that [defendant Neil] Ferber's 1982 criminal trial was a 'malevolent charade.'" -- from a  Philadelphia Inquirer editorial, August 16, 1996, on the settlement of a wrongful-imprisonment suit by a prisoner released from death row.

Another probable frame-up victim was also subjected to a Kafkaesque nightmare, but didn't end up as fortunate as Neil Ferber. On November 15, 1996, Ellis Wayne Felker was executed by the state of Georgia.

Wayne Felker was accused of the 1981 rape and murder of Joy Ludlam, an acquaintance. Felker was the main suspect and was put under police surveillance within hours of her disappearance, which occurred fourteen days before the discovery of her body in a creek. An autopsy then put her death within the previous five days. However, when police realized this would have ruled Felker out as a suspect because he had been under police surveillance for the previous two weeks, the findings of the autopsy were changed.

An unqualified lab technician with no medical training conducted the autopsy. Attorneys representing Felker during the appeals process showed notes and photographs of Ludlam's body to pathologists who unanimously concluded that she could not have been dead for longer than three days. In spite of this, the appeal courts upheld Felker's conviction.

Felker received a stay of execution in June, 1996, when his case became a test of the provisions of the 1996 Anti-Terrorism and Effective Death Penalty Act that limited federal habeas appeals. The Supreme Court accepted the Act's limitation on such appeals.

Another execution date was not set until after the 1996 Olympic Games in Atlanta, which had brought international attention to the state's death-penalty record. Felker received another stay in September, 1996, minutes before he was to be electrocuted and after he had been shaved for the electrodes, and just after several boxes of evidence concerning the murder of Joy Ludlum were discovered in the offices of the district attorney and sheriff responsible for the case. Under Georgia's Open Records Act, the evidence should have been made available years earlier to the defense attorneys representing Felker in his post-conviction appeals. The September stay was only for forty days, prompting one of his attorneys to state, "There are numerous possible leads which we have had no time to investigate. The stack of new paperwork is more than two feet thick."

The boxes contained a signed confession from another suspect in the crime. Forensic samples from Joy Ludlum's body and from the crime scene, which might have proven Felker innocent if they had been subjected to DNA testing, were also among this previously withheld evidence.

Michael Bowers, Georgia's attorney general, denied the possibility that anyone on death row was innocent. When asked about Felker, Bowers said, "I've talked to the cops who investigated him, and I asked them, 'Guys, is there any doubt about his guilt?' And they told me, 'Bullshit.'"

Felker's final appeal to the Georgia Supreme Court drew a strong dissent from Presiding Judge Norman Fletcher, who condemned the prosecution's behavior and said that the state had "repeatedly misrepresented its entire file."

According to the opinion, the district attorney in charge of the case had even denied under oath that the new evidence existed, and "the State's repeated failure to comply with well-settled constitutional principles deprived Felker of a fair trial."

A final stay of execution was granted by the Supreme Court on November 14, 1996, again minutes before the scheduled execution and after Felker had been shaved for the electrodes. The unanimous decision denying the appeal was issued late the next day because the judges had had a long, "leisurely" lunch. The seven-minute electrocution was conducted a few hours later.

 
 

FELKER v. THE STATE.

40350.

(252 Ga. 351)

(314 SE2d 621)

DECIDED MARCH 15, 1984 -- REHEARING DENIED MARCH 29, 1984.

BELL, Justice.

Murder. Houston Superior Court. Before Judge Hunt.

Late in the morning of December 8, 1981, the body of 19-year-old Evelyn Joy Ludlam was found floating in Scuffle Creek, in Twiggs County, near a bridge on the "Cochran short route." She had been missing for two weeks and the last person known to have seen her alive was the appellant, Ellis Wayne Felker.

Felker was charged in Houston County with murder, robbery, rape, aggravated sodomy, and false imprisonment. At trial, a verdict of not guilty was directed on the robbery count, and a jury convicted Felker on the remaining counts. Felker was sentenced to death for the murder. We affirm.

The victim, Joy Ludlam, was a student at Macon Junior College and worked as a cocktail waitress at the Holiday Inn in Warner Robins. Her parents were residents of Macon but, about 10 months prior to her death, Joy had moved to Warner Robins to live with an older woman whom Joy had met through church. Not being entirely satisfied with her job at the Holiday Inn (her religious beliefs did not allow her to work Friday nights or Saturdays), Joy had begun to seek other employment prior to her death.

On Monday evening, November 23, 1981, between 11:00 and 11:30 p.m., Wayne Felker visited the lounge where Joy worked. He was wearing a T-shirt advertising "The Leather Shoppe," a business that he owned in Warner Robins.

Felker had been convicted in 1976 of aggravated sodomy. In April of 1981, shortly after his release from prison, Felker opened his leather shop. A neighboring businessman testified that from April until June, Felker's business gradually increased. Felker began to lose interest in the business, however, and, from September onward, was seldom there. His neighbor collected his mail for him. Felker attributed his disinterest to his romance with Patricia Woods, whom he met not long after he opened his business. Felker testified that after he and Ms. Woods began living together, he "more or less let the business fail." He admitted that the shop's checking account was overdrawn the night he met Joy Ludlam and that he had been making ends meet by borrowing money from his parents (who owned the house in which he lived), and by selling some of his furniture.

Nonetheless, when Joy noticed Felker's T-shirt advertising his business, a conversation ensued which culminated in an offer of employment, pursuant to which they were to meet the next day.

Pat Woods had left Felker the previous Saturday after he had blackened both of her eyes, so he was alone Tuesday morning when Joy arrived. A neighbor, who had been asked by Felker's mother to keep track of the cars visiting Felker's house, noticed Joy's arrival at approximately 9:00 a.m. and wrote down the tag number of her car. The neighbor testified that the car was gone by 11:00 a.m.

Felker testified that he was at home awaiting a hoped-for call from Pat Woods. He testified that, when Joy arrived and wanted to see the shop, he told her that he was expecting a call and could not go then.

Joy returned to her residence at approximately 2:00 p.m. A visitor to the residence, Ms. Akins, testified that, some time after 2:30 p.m., Joy made a telephone call during which she mentioned that she "would like to see the shop." According to Ms. Akins, Joy left around 5:00 p.m. wearing a long, plaid coat.

At approximately 6:30 p.m., Joy called the manager of the Holiday Inn lounge and told him that the mother of the lady with whom she lived was in the hospital and that Joy wanted to stay with her. The manager gave her the night off.

When Guy Starling, office manager of the Trust Company Bank in Warner Robins, left work Tuesday evening, between 6:30 and 7:30 p.m., he noticed an automobile parked in the bank's parking lot that did not belong to any of the bank's employees. He wrote down the tag number. The car was still there the next day.

Irma Anthony, with whom Joy lived, spent Tuesday night at the hospital with her mother. She returned home Wednesday morning to discover that Joy was not there. As evening approached and Joy still had not returned, she went to the police, taking with her a photograph of Joy and a napkin on which had been written Felker's telephone number and the address of his leather shop.

Two officers visited Felker Wednesday evening at approximately 5:30 p.m. Felker told them that he had met Joy the previous evening pursuant to his offer of employment. He told them that she had left his shop at around 6:00 p.m. because that was when the shop closed. He said that they had traveled in separate cars and that, although he had opened and closed the door for her, he never got into her car, nor had she got into his. He stated that when he last saw her, she was wearing a plaid coat and a red dress.

Joy's mother, having been informed of her daughter's disappearance, drove to Warner Robins on Thursday to search for her. Mrs. Ludlam found Joy's car parked in the parking lot of the Trust Company Bank at about 2:30 p.m. The car was locked. She notified the police, who subsequently searched the car and found, on the front seat, a notebook opened to a page on which was written, in Joy's handwriting: "I'm going to Atlanta to eat dinner with Wayne and some of his friends. They are GS-11's on base. Joy."

On December 1, with Joy still unlocated, investigators questioned Pat Woods, who had resumed her cohabitation with Felker. Soon afterwards, Felker collected some of his pornographic magazines and his bondage cuffs (3-inch wide leather straps with "watch-band" buckles) and threw them in a garbage dumpster.

On Tuesday, December 8, 1981, two weeks after she disappeared, Joy's body was discovered in Scuffle Creek by a mechanic who was searching the right-of-way along the Cochran short route, looking for discarded bottles and cans. She was clothed in the same plaid coat and red dress that she had been wearing when last seen alive.

An autopsy was conducted the following morning. Warren Tillman, a medical examiner with the state crime lab, observed that pantyhose and underwear were still on the body but that the crotch of each had been ripped out. On her face, around her eyes and mouth, were lines of a whitish material which, on examination, appeared to be an adhesive substance. Tillman noted hemorrhaging inside the eyelids indicative of asphyxiation, and contusions at the junction of the lips indicative of some sort of force against her mouth. On her neck was a long, narrow area of bruising. On her breasts, he observed ecchymotic hemorrhage consistent with having been induced by suction. There were bruise marks on her left shoulder and on her right thigh.

There were marks on her left wrist and on her ankles consistent with their having been bound. Tillman observed areas of contusion around the vagina and anus, which was distended, indicating traumatic entry of these orifices. On internal examination, Tillman noticed an area of hemorrhage near the second, left rib, that had no associated surface bruising, which was consistent with force having been applied by an object such as a fist or a foot. He observed a number of areas of subgaleal hemorrhage on the inside of the scalp. However, there was no evidence of brain hemorrhage. Examination of the lungs indicated that Joy had been dead when she was placed in the water. Tillman concluded that the cause of death was asphyxiation from strangulation.

Establishing a time of death proved difficult. Tillman's original estimate, based on the state of decomposition of the body, was that Joy had been dead 3 to 5 days, or possibly longer -- the immersion of the body in the water complicated the determination. After receiving information regarding air temperature, and reviewing other case histories involving bodies immersed in water, Tillman concluded that Joy had been dead at least three to five days, and that she could have been dead for two weeks.

On February 4, 1982, Joy's body was exhumed. Sections of tissue were taken from bruised areas on her body. Dr. James Whitaker, medical examiner for Houston County, microscopically examined these tissue samples to ascertain the extent of "margination." Dr. Whitaker concluded that the bruises had been inflicted within 4 to 6 hours prior to death.

On February 16, 1982, a hunter found Joy's purse on the north side of Highway 96, near the Houston-Twiggs county line, 3 to 4 miles west of the intersection of Highway 96 and the Cochran short route. Besides her driver's license and college I.D., the purse contained a "Mickey Mouse" pendant which Joy habitually wore on a chain necklace. The necklace itself was never found.

Between December 8, 1981, and March 29, 1982, Felker's house and car were searched several times. Hairs and fibers were collected and microscopically compared with hairs and fibers found on the body. Fibers found on the victim's coat were consistent with fibers present in a yellow and orange blanket first observed in Felker's home and later retrieved by police from his parents. Fibers similar to those of the victim's coat material were found in the hatchback area of Felker's automobile. Hairs were found on the victim's clothes, including her underclothes, and on her body, that were similar to Felker's head and beard hair. Hairs adhering to two handkerchiefs in the victim's pocketbook were similar to Felker's head hair. In addition, several hairs discovered in the bedroom of Felker's home were similar to the victim's head and pubic hair.

Felker had been involved in an earlier incident involving bondage and forcible sex. This incident was described at trial by the victim. On October 3, 1976, Jane W., a cocktail waitress, stopped by a Sambo's restaurant for coffee after she got off work. Then she drove home, alone. As she pulled into her driveway, a car stopped in front of her house and the driver called to her. The driver (she later discovered) was Wayne Felker, who told her that he was lost, and that he was looking for a party on Navarro Drive. Ms. W., who had recently moved to Warner Robins, had heard of Navarro Drive and knew that it was nearby. Felker, a lifelong resident of Warner Robins, told Ms. W. that he had no idea how to get to Navarro Drive, that he was in a friend's car, and that he was supposed to meet the friend at the party. Ms. W. agreed to get him to the general area. She got in her car and proceeded towards Navarro Drive, followed by Felker in his car. She was unable to find the right street. Eventually, they drove by Sears, and Felker passed her car and turned into the Sears parking lot. She pulled in behind him. He got out, approached her car, and told her that he was too drunk to drive anymore and that he would get in trouble if he damaged his friend's car. He asked Ms. W. if she could drive him to his friend's wife's house, which he knew to be just down the road. Ms. W. testified that, "he was so nice . . ., he acted so lost . . . [he] sounded so convincing . . . [that] I unlocked the door [and] he got in the car."

Felker directed her to a trailer on Porkie Drive. She waited in the car while he went inside. A few minutes later, he returned. The friend's wife was getting dressed and would take him to the party after she woke the baby up. He asked Ms. W. if she could wait a few more minutes, so that she could take them back to the friend's car. She answered that she could, but that she had to use the bathroom. Felker invited her inside. She accepted his invitation and, leaving her pocketbook in the car, entered the house and began walking down the hall, followed by Felker. About halfway down the hall, she "realized that there didn't seem to be anybody else in there . . . there was no light; there was no lady; there was no child; . . . there didn't even seem to be . . . another bedroom . . ." She turned around. Felker grabbed her around the neck and started choking her.

He carried her to the bedroom and threw her, face down, onto the bed. As he held her head down with one hand, he pulled one of her arms behind her back. He tied a rope around it, pulled the other hand back, and then tied her hands together.

Next, he laid her, face down, on the floor and tied her feet together. Felker placed some cotton over her eyes and taped her mouth and eyes with duct tape. Then he tied her to the bed, and left.

Ms. W. heard him drive off. Ten or 15 minutes later, she heard him return, driving a different car.

He proceeded to the bedroom, where he untied her feet and laid her on the bed. He took her necklace off. He tied her hands to the corners of the bed and undressed her from the waist down, ripping her underwear. He cut and then ripped off her shirt and bra, and tied her legs to the other two corners of the bed.

Then he asked her, in effect, whether she had ever been anally sodomized. When she did not answer (she was still gagged), he punched her on her right thigh with his fist, pounded her on her chest, and said, "I'm talking to you."

Felker then attempted to anally sodomize Ms. W. She testified that she struggled so much that Felker was unsuccessful in this attempt, but that after Felker violently struggled with her, and grabbed her and punched her with his fists, he became sufficiently aroused that he was able to rape her.

Then, after Felker obtained a vibrator or some similar object and "rammed" it inside Ms. W., he removed the duct tape from her mouth and orally sodomized her.

Afterwards, Ms. W. talked to Felker and finally convinced him to untie her hands and feet so that she could use the bathroom. Untied, but still blindfolded, she was guided to the bathroom and then back to bedroom. Felker lay down beside her and fell asleep. Ms. W. left and called the police. As she left, she picked up her pocketbook, which was in the bathroom. She later discovered, in the bottom of her purse, the pendant from her necklace. She never recovered the necklace itself.

Evidence was offered by Felker in support of his contentions that the 1976 incident involved consensual sex, that he last saw Joy Ludlam at approximately 6:00 p.m. on November 24, 1981, and that she had not been dead for two weeks when her body was discovered.

Regarding the 1976 incident, Felker testified that he had stopped in front of Ms. W.'s home to ask directions to a party on Navarro Drive, even though he was a life-long resident of Warner Robins. (In fact, during the sentencing phase of the trial, it was revealed that his aunt lived on Navarro Drive in 1976). Felker claimed that he invited Ms. W. to the party and that she accepted. He testified that they stopped at the Sears parking lot when they could not find the party, and decided to go to his trailer. He parked his car for fear that, because he had been drinking, he was going to be stopped by the police if he continued driving. They proceeded to his trailer in her car. Upon their arrival, she went to the bathroom. Felker (presumably, no longer worried about being stopped for DUI) decided to drive to the store to get cigarettes. After discovering that her car was low on gas and remembering that there were cigarettes in his car, he drove to Sears and switched cars. When he returned, Ms. W. was looking at his bondage magazines and expressed an interest in having sex while being tied up. Everything that followed, Felker said, was with her consent.

On cross-examination, Felker admitted that he might possibly have inflicted the circular bruise on her right thigh and other bruises on her body, and that he "might have gotten too rough." He admitted that he had been at Sambo's earlier, but claimed that he had not followed Ms. W. and that their meeting had been coincidental. He admitted removing her necklace, but did not know why he had done so, nor could he explain how the pendant wound up in her purse, absent its necklace. He explained that he had taped her mouth because she "was giggling." He did not recall why he had taped her eyes. He did not know why he tied her up before removing her clothes, nor did he know what she was going to wear home after her clothes had been cut.

Regarding the disappearance of Joy Ludlam, Felker testified that when she called Tuesday morning, he was asleep in a recliner in the living room, covered up with his orange and yellow blanket. After her morning visit, he went to his shop to retrieve a compressor, some spray guns, paint and so forth, that he intended to use to refinish some furniture. He loaded these items into the hatchback area of his car and returned home.

When Joy stopped by his house later that day, she took off her coat and laid it on the recliner. She made a telephone call while he changed clothes. When they exited the house, Felker realized that he had not yet unloaded his car.

Although Joy "seemed to be in a hurry," Felker nonetheless took the time to unload his car before they left. As he was doing so, she observed a number of leather catalogs in the back of his car. Felker told her to go ahead and take one. She still had her coat on her arm as she leaned into the hatchback area of the car to reach "all the way to the back part of the back seat." Then she went to her car and sat in the driver's seat thumbing through her catalog. (No such catalog was discovered in the search of her car two days later.)

According to Felker, he last saw Joy Ludlam as she left his leather shop that evening. On his way home he stopped by Sears. (Sears is across the street from the Trust Company Bank where Joy's car was parked when Guy Starling left work between 6:30 and 7:00 p.m.)

Felker testified that he left his house twice that night. The first time, he went to a convenience store to purchase beer and cigarettes. Sometime after midnight, he left to "drive around looking for Pat [Woods]." Felker admitted that Pat had called him around 10:30 p.m. and that they had agreed to meet the next morning. He knew that she had no car.

When asked by the district attorney how he expected to find her, Felker answered that he was "[h]oping she'd be in a yard somewhere." Felker denied that the real purpose of the trip was to dispose of Joy Ludlam's body. He admitted that he was unable to find Pat Woods standing out in someone's yard in the wee hours of the morning, and that he returned home alone.

Regarding the length of time that Joy Ludlam had been dead when her body was discovered, Felker retained the services of a geologist and Dr. Joseph Burton, the chief medical examiner for Fulton and DeKalb counties.

The geologist measured air and water temperatures at Scuffle Creek from November 28 through December 2, 1982. Air temperatures varied from lows of around 60 (Fahrenheit) to highs of about 80. Water temperature remained fairly constant about 60. On December 11 and again on December 19, the water temperature was again measured and a low water temperature of 43 was recorded.

Air temperatures for 1981 were available through the National Weather Service, which indicated that the comparable period in 1981 was colder. Between November 24, 1981, and December 8, 1981, low temperatures ranged from 31 to 50 (seven days having lows in the 30's and six days having lows in the 40's) and high temperatures ranged from 55 to 75 (four days having highs in the 50's and seven days having highs in the 60's).

Dr. Burton -- based upon his examination of the autopsy photographs; the report of Warren Tillman and the latter's description of the extent of decomposition; an assumption (having some support in the evidence) that there was stiffness in the body when it was removed from the water; an assumption that the water temperature remained relatively constant in the mid-50's; the lack of skin slippage; 1 the lack of bloating; and the lack of signs that animal life had fed upon the body -- testified that, although his estimate was "fraught with error" because of the number of variables that had to be considered, in his opinion, death occurred between three and five days before the body was discovered.

Dr. Whitaker, the medical examiner for Houston County, testified for the state in rebuttal. His early experience was in Baltimore, Maryland, and, perhaps due to the proximity of Chesapeake Bay, he had observed over "200 drowning or immersion-type cases." Dr. Whitaker testified that -- considering the air temperatures in the relevant time period; the fact that most missing and murdered persons die soon after they disappear; the fact that when Joy Ludlam was found, she was wearing the same clothes as when she was last seen alive; and the extent of decomposition -- in his opinion, death occurred two weeks prior to the discovery of the body.

1. We address, first, appellant's enumerations of error regarding his prior conduct.

(a) In his tenth enumeration of error, appellant contends that evidence of the commission of rape and sodomy in 1976 was irrelevant and impermissibly placed his character in issue.

A defendant's guilt "may not be proved by showing the commission of other crimes to prove that the accused has a criminal nature." Williams v. State, 251 Ga. 749,784 (4) (312 SE2d 40) (1983). However, evidence of other criminal acts of the defendant may be admitted if it " 'is substantially relevant for some other purpose than to show a probability that (the defendant) committed the crime on trial because he is a man of criminal character, . . . .' " Walraven v. State, 250 Ga. 401, 407 (297 SE2d 278) (1982) (quoting McCormick on Evidence, 190 at 449, 2d Ed. 1972).

Since the admissibility of an extrinsic offense depends, in the first instance, upon its relevance, the factual and legal issues involved in the case are controlling. The degree of similarity sufficient to support admissibility in one case might be insufficient in another.

Thus, Williams v. State, supra, on which the state relies, is inapposite. In Williams, we found that the "sheer number" of homicides committed for no apparent motive, having sufficient other characteristics in common to demonstrate a "pattern of killings," all of which were logically connected to Williams by hair and fibers, allowed an inference of guilt that derived from the improbability that so many connections to so many of the murder victims could be innocent. 3 See United States v. Woods, 484 F2d 127 (4th Cir. 1973).

In the instant case, on the other hand, we find that the extrinsic offenses proved by the state were "so nearly identical in method as to earmark them as the handiwork of the accused." McCormick on Evidence, supra at 449. The evidence produced by the state showed a distinctive modus operandi and was thus relevant to prove identity, which was clearly a disputed issue in the case.

The similarities are numerous and distinctive: Each victim was a young, white female employed as a cocktail waitress. Each was lured into appellant's company by deceitful means. (Ms. W. was asked for help in finding a nonexistent party by a man who claimed to be from out of town, but who was, in fact, a lifelong resident of Warner Robins. Ms. Ludlam was offered employment in a defunct business.)

Both women were separated from their automobiles, which were subsequently found in parking lots which are across the street from each other. Both women were bound at their ankles and wrists. Ms. W.'s mouth and eyes were covered with duct tape. When Ms. Ludlam's body was recovered, she had lines of adhesive on her face which were visible in the photographs admitted in evidence, and which were obviously the outline left by the removal of tape from over her eyes and mouth. Each victim was bruised on her breasts and each had a circular bruise on her right thigh. Each victim was choked. Each victim was beaten. (Ms. W. testified that appellant pummelled her with his fists. Ms. Ludlam's body showed areas of mild hemorrhage under the skin of her chest and scalp.) The underclothes of each were torn. Each victim was sexually abused. The chain necklace of each was removed. The pendants from both necklaces were later found in the victims' pocketbooks, while the necklaces themselves disappeared in both cases.

Appellant contends that there are dissimilarities between the two offenses. For example, one victim was 19 and the other was 24. More significantly, one victim was murdered and the other was not.

We agree that the two offenses are not identical. However, we find the similarities to be sufficiently numerous and distinctive to justify an inference that both crimes were perpetrated by the same person. Appellant's contention that the extrinsic offense was irrelevant is meritless.

(b) In his eleventh enumeration of error, appellant contends that the extrinsic offense was inadmissible because, although he was convicted in 1976 of aggravated sodomy, he was acquitted on the rape count.

Appellant relies upon Ashe v. Swenson, 397 U. S. 436 (90 SC 1189, 25 LE2d 469) (1970) (holding that the concept of collateral estoppel is part of the double jeopardy prohibition of the Fifth Amendment, enforceable against the states through the Fourteenth Amendment), and two Fifth Circuit cases relying upon Ashe v. Swenson to hold that "where the state in an otherwise proper prosecution seeks for any purpose to relitigate an issue which was determined in a prior prosecution of the same parties, then the evidence offered for such a relitigation must be excluded from trial . . ." Wingate v. Wainwright, 464 F2d 209, 215 (5th Cir. 1972). Accord, Blackburn v. Cross, 510 F2d 1014 (5th Cir. 1975).

These Fifth Circuit cases, of course, are not binding precedent for this court. Conner v. State, 251 Ga. 113 (5) (303 SE2d 266) (1983). Ashe v. Swenson does not answer the question whether double jeopardy precludes the evidentiary use of crimes for which there has been a prior acquittal or applies only in situations of reprosecution. The facts of Ashe v. Swenson involved only the latter situation. Other federal courts have rejected the notion that extrinsic crime evidence is inadmissible per se if the defendant has been acquitted of the extrinsic offense. See, e.g., United States v. Van Cleave, 599 F2d 954 (10th Cir. 1979); United States v. Castro-Castro, 464 F2d 336 (9th Cir. 1972). Some courts have suggested that an acquittal is a factor that must be considered when balancing the relevance of the proffered evidence against the prejudice created by it. See, e.g., United States v. Smith, 446 F2d 200 (4th Cir. 1971); United States v. Phillips, 401 F2d 301 (7th Cir. 1968). Compare, Smith v. Wainwright, 568 F2d 362 (5th Cir. 1978) (holding that where the prosecution used an extrinsic offense to prove another crime, the conviction obtained thereby was not invalidated by a subsequent acquittal in the trial of the extrinsic offense, in view of the fact that the extrinsic offense need not have been proven beyond a reasonable doubt in the first trial, and considering a jury's practical power to pardon).

Appellant was convicted in 1976 of aggravated sodomy. The jury thereby rejected appellant's defense of consent, to that offense at least. 4 In any event, identity was not an issue in the 1976 case. Thus, the acquittal on the rape count does not indicate that the jury had a reasonable doubt that it was appellant, and not someone else, who bound and gagged the victim, ripped her underwear, bruised her, and removed her necklace.

The relevance of the 1976 offense does not hinge on whether appellant committed all of the elements of the offense of rape. Thus, it is not the case that "some issue necessary for the prosecution's case in the second trial has necessarily been found for the defendant in the first trial." Johnson v. Estelle, 506 F2d 347, 350 (5th Cir. 1975). (Emphasis omitted.)

We note that appellant was allowed to present to the jury the fact of his acquittal on the rape count. His contention that the 1976 crime was inadmissible, because of the acquittal, is meritless.

(c) In his twelfth enumeration of error, appellant raises several issues.

First, he contends that the trial court erred by failing to instruct the jury regarding the standard of proof that appellant committed the 1976 crime. We disagree. The admissibility of the evidence is a matter for the court. Cf., Castell v. State, 250 Ga. 776 (10b) (301 SE2d 234) (1983). See also, Wright and Graham, supra, 5249, pp. 533-534.

Second, he contends that the court's instructions were erroneous because the court failed to mention identity and modus operandi. The trial court charged the jury that it had admitted evidence regarding the 1976 crime "solely for you to decide whether it might tend to illustrate the defendant's motive, intent or state of mind with respect to the charges for which [he] is now on trial, and for no other purpose."

At trial, the state had contended that the prior crime showed, inter alia, identity. On appeal, the state contends that the prior crime showed identity by demonstrating a modus operandi. However, at trial, the state did not object to the court's instruction, which failed to mention identity as a purpose for the admission of the evidence.

A similarly defective instruction was considered in United States v. Baldarrama, 566 F2d 560, 567-568 (5th Cir. 1978). The Fifth Circuit had before it a circumstantial case in which the prior crime was "really necessary" to prove identity. Ibid. However, the trial court had failed to identify identity as a basis for the admission of evidence and had instructed the jury that the "prior conviction was introduced solely for the purpose of determining [the defendant's] intent, or to show a common scheme or design." Id. at 567.

The Fifth Circuit said: "In all likelihood, the omission of 'identity' from the jury instruction was inadvertent, as the Government had previously stated that identity was one of the possible uses of the evidence. The trial court's technical omission does not preclude our examination of the validity of identity as a basis for admission." Id. at 567. Accord, State v. Johnson, 316 NW2d 652 (S. D. 1982).

We find this reasoning persuasive. Without determining whether the 1976 offense was admissible to show motive, which the court did charge, as well as modus operandi, which the court did not charge, we conclude that the instructions given do not preclude our identification of modus operandi as the most compelling justification for admission, nor do they preclude our consideration of the prior offense in our determination of the sufficiency of the evidence to support appellant's convictions.

Finally, appellant contends that the trial court further erred by failing to charge appellant's "sole defense" to the 1976 offense, i.e., consent, citing the rule that the failure to charge a defendant's sole defense is reversible error even absent a request. See, e.g. Johnson v. State, 135 Ga. App. 360 (4) (217 SE2d 618) (1975); Glaze v. State, 2 Ga. App. 704 (3) (58 SE 1126) (1907). Pretermitting whether this rule is applicable to an extrinsic offense, we find that the rule enunciated in Booker v. State, 247 Ga. 74 (274 SE2d 334) (1981) as to an affirmative defense applies, a fortiori, to sole defenses of extrinsic offenses. "If an affirmative defense is raised by the evidence, including the defendants' own statements, the trial court must present the affirmative defense to the jury as part of the case in its charge, even absent a request. The affirmative defense, however, need not be specifically charged if the case as a whole is fairly presented to the jury. [Cit.]" Ibid.

In a case involving charges of rape and aggravated sodomy, the effect of a consent defense is simply to traverse the state's proof. Thus, the failure to specifically charge on consent as a sole defense to an extrinsic offense, absent a request for such charge, was not reversible error. Cf., Rivers v. State, 250 Ga. 288 (8) (298 SE2d 10) (1982).

Appellant's twelfth enumeration of error is meritless.

(d) In his thirteenth and fourteenth enumerations of error, appellant complains of the trial court's refusal to give two of appellant's requests to charge. We find that neither request to charge was an accurate statement of the law and that the trial court did not err by refusing to charge them.

(e) In his sixteenth enumeration of error, appellant contends (1) that the state failed to comply with an order requiring pre-trial determination of the admissibility of any prior criminal activity and (2) that prior conduct other than the 1976 crime was introduced and impermissibly placed appellant's character in issue.

Our review of the record persuades us that appellant's motion in limine did not seek a pre-trial, final ruling on the admissibility of prior conduct, that there was no order requiring a pre-trial determination of admissibility of any prior criminal activity, and that there was, in fact, no pre-trial ruling on the admissibility of any prior conduct other than the 1976 crime. See State v. Johnson, 249 Ga. 413 (3) (291 SE2d 543) (1982). Thus, the rule announced in Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284 (1) (260 SE2d 20) (1979) is inapplicable to anything except the 1976 crime.

The first contention made in this enumeration of error is meritless. We address the instances of prior conduct in order:

(1) On Monday, November 23, 1981 (the day prior to the disappearance of Joy Ludlam), appellant purchased a vibrator. Appellant's only objection at trial was that the purchase was irrelevant and immaterial. No "character" objection was made. " 'An objection to the admission of evidence on the ground that it is "immaterial and irrelevant" is not such an objection as it would be reversible error to overrule.' " Shouse v. State, 231 Ga. 716, 717 (4) (203 SE2d 537) (1974) (quoting Pippin v. State, 205 Ga. 316 (6) (53 SE2d 482) (1949).

(2) Appellant admitted on cross-examination that he had blackened the eyes of Pat Woods on Saturday prior to Ms. Ludlam's disappearance. He had already mentioned this in his direct examination, and when it came up again during the cross-examination, no objection was interposed, leaving nothing for us to revIew.

(3) Appellant admitted on cross-examination that he practiced sexual bondage. He had already admitted on direct examination that he had been introduced to bondage by his third wife who worked in a massage parlor. There was no objection to the cross-examination on this same subject, again leaving nothing for us to review.

(4) We reach the same result regarding appellant's testimony on cross-examination that he was still married to his third wife when he met Ms. W.

(5) There was no proper objection to appellant's admission on cross-examination that he had experienced anal intercourse with one of his wives.

(6) Regarding appellant's third wife, who worked at a massage parlor, the district attorney asked, "Did you ever encourage her to have relations with other men?" Appellant answered, "No, sir." Appellant's attorney objected to this question and answer on the ground that it was irrelevant and placed his character in issue.

We find that the question was improper and that the court erred by overruling the objection to it. However, in view of the answer given, we conclude that the error was harmless. Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976).

(7) In appellant's home and at his leather shop were discovered a number of hand-drawn depictions of various sexual acts, including bondage, whipping, spanking and other deviances. One drawing depicts a young, smiling woman with long, dark hair, who strongly resembles Joy Ludlam. Around her neck is what appears to be a chain necklace and a pendant.

Possession of these drawings was no crime. Stanley v. Georgia, 394 U. S. 557 (89 SC 1243, 22 LE2d 542) (1969). Thus, their admission in evidence did not violate OCGA 24-9-20 (b) (Code Ann. 38-415 et seq.). However, "the rule about the proof of other crimes is but an application of the wider prohibition against the initial introduction by the prosecution of evidence of bad character." McCormick on Evidence, supra at 447. This wider prohibition is contained in OCGA 24-2-2 (Code Ann. 38-202). Like OCGA 24-9-20 (b) (Code Ann. 38-415 et seq.), OCGA 24-2-2 (Code Ann. 38-202) does not bar evidence simply because it might incidentally reflect on the defendant's character. If that were the case, the state could never prove the crime charged.

We find no error in the admission of these drawings. In arriving at this conclusion, we observe that this was not simply a case of a rape defendant possessing erotic literature. 5 These drawings, particularly in conjunction with other evidence presented, tend to establish that appellant was motivated by a desire for forced and violent sex, and thus, help to establish that appellant was the person who violently sexually abused and murdered Joy Ludlam. The fact that one of the drawings depicts a young woman closely resembling Ms. Ludlam adds force to this conclusion.

(8) A witness for the state testified that he met appellant at the Holiday Inn where Ms. Ludlam worked, the evening before she disappeared. The district attorney asked the witness, "Did y'all do anything?" The witness answered, "Yes, sir, after we sit there for a while and talked, we went out into my van and smoked a joint."

Appellant's attorney moved for mistrial, which was denied. No curative instructions were requested and none were given.

The state has not suggested how this testimony might have been relevant. We find that it was not. However, we do not agree with appellant that the trial court erred by denying his motion for mistrial. Sabel v. State, 250 Ga. 640 (5) (300 SE2d 663) (1983). Moreover, while the court should have instructed the jury to disregard the answer of the witness, we find that, in this case, it is highly probable that testimony that appellant "smoked a joint" did not contribute to the verdict. Thus we find no reversible error. Castell v. State, supra, 250 Ga. 776 (8).

(f) Appellant's fifteenth enumeration is answered above.

2. Next we address appellant's contentions regarding venue.

(a) In his fourth enumeration, appellant contends that the trial court erred by denying several pre-trial motions seeking to dismiss all or part of the indictment on the ground that the grand jury did not hear sufficient evidence on venue to justify the return of a true bill on the indictment.

There is in this state some authority for the proposition that although the sufficiency of the evidence will not be inquired into, an indictment will be quashed where it is returned on wholly illegal evidence. See, e.g., Brown v. State, 121 Ga. App. 228 (1) (173 SE2d 470) (1970), which cites Meriwether v. State, 63 Ga. App. 667 (11 SE2d 816) (1940), which, in turn, cites Summers v. State, 63 Ga. App. 445 (3) (11 SE2d 409) (1940). In Summers, the Court of Appeals held that, "where . . . it appears that a competent witness or witnesses were sworn and examined before the grand jury by whom the indictment was preferred, a plea in abatement on the ground that it was found on insufficient evidence, or illegal evidence, or no evidence, will not be sustained, because it comes under the rule that no inquiry into the sufficiency or legality of the evidence is indulged." Id. at 449. (Emphasis supplied.)

We believe that Summers states the correct rule. Dicta in later cases implying any broader basis for quashing an indictment for lack of evidence will not be followed. See, e.g., Brown v. State, supra; Meriwether v. State, supra; and Reaves v. State, 242 Ga. 542 (2) (250 SE2d 376) (1978). Appellant contends that there was no evidence presented to the grand jury which would support a finding that proper venue lay in Houston County. However, it was shown by the state that competent witnesses were sworn and examined before the grand jury. Thus the trial court did not err by denying appellant's pleas in abatement and motion to quash.

(b) OCGA 17-2-2 (Code Ann. 26-302) provides, in part:

"(c) Criminal homicide. Criminal homicide shall be considered as having been committed in the county in which the cause of death was inflicted. If it cannot be determined in which county the cause of death was inflicted, it shall be considered that it was inflicted in the county in which the death occurred. If a dead body is discovered in this state and it cannot be readily determined in what county the cause of death was inflicted, it shall be considered that the cause of death was inflicted in the county in which the dead body was discovered. . . .

"(h) Crime in more than one county. If in any case it cannot be determined in what county a crime was committed, it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed."

Appellant contends that in a case of homicide, use of subsection (h) to determine venue is precluded by subsection (c). We disagree. Subsection (h) applies by its terms to "any case."

Alternatively, he contends that if subsection (h) and subsection (c) may both apply to homicide cases, then subsection (h) is unconstitutionally vague and indefinite. We have already held that subsection (h) is not unconstitutionally vague or indefinite when applied in non-homicide cases. Adsitt v. State, 248 Ga. 237 (5) (282 SE2d 305) (1981); Bundren v. State, 247 Ga. 180 (1) (274 SE2d 455) (1981). We see no reason to hold to the contrary here. Appellant's sixth enumeration of error is meritless.

(c) The court instructed the jury as follows:

"One of the elements in every criminal case is the matter of venue; that is, the state must prove that the crime occurred in the county in which the case is being tried. For example, if a crime occurs in Houston County, then the trial for that crime shall be in Houston County.

"In a murder case, the trial may be held in the county where the cause of death was inflicted or in the county where death actually occurred, if it cannot be determined where the cause of death occurred.

"The defendant in this case contends that the state has not proved the element of venue. In that respect I instruct you that it is the state's burden, with respect to each charge in the indictment, to prove beyond a reasonable doubt that the crime might have been committed in Houston County. If the state fails to do this, then the defendant is entitled to a verdict of not guilty."

In his fifth enumeration, appellant contends that this charge was error, not only because the court charged subsection (h) of the venue statute, but also because the court omitted to charge the jury that proper venue could lie in the county in which the body was found.

We find no error. The state contended that venue lay in Houston County, and the court correctly charged the state's burden of proof in that regard, as provided by subsection (h). Venue either was or was not appropriate in Houston County. That was the issue before the jury. That venue might also have been appropriate in Twiggs County, where the body was found, pursuant to subsection (c), was not material to any issue before this jury.

Appellant's fifth enumeration of error is meritless.

(d) Appellant's seventh enumeration of error is answered by the foregoing.

3. In his second enumeration, appellant contends that the trial court erred by failing to give his requested charge on the necessity of proving corpus delicti. The charge that the court did give, however, covered substantially the same principle. (The court charged that "the state must prove beyond a reasonable doubt that a crime was in fact committed . . .") This enumeration of error is therefore meritless. Kelly v. State, 241 Ga. 190 (4) (243 SE2d 857) (1978).

4. Appellant's first and third enumerations attack the sufficiency of the evidence. He was convicted of murder, false imprisonment, rape, and aggravated sodomy.

(a) Appellant correctly observes that the evidence was circumstantial. However, when considered in its entirety, it compellingly demonstrates that appellant murdered Joy Ludlam and deposited her body in Scuffle Creek prior to the visit by police to his home on the evening of November 25. We find the conviction for murder to be amply supported by the evidence. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(b) The evidence supports a finding that Joy Ludlam was bound at her wrists and ankles, gagged, and blindfolded, all against her will. She was therefore confined and detained without legal authority in violation of her personal liberty. 6 Thus, the evidence was sufficient to support the conviction for false imprisonment.

(c) Warren Tillman, who conducted the original autopsy on the body of Ms. Ludlam, testified that areas of contusion around her vagina and anus were consistent with traumatic entry of these orifices by a male sex organ. Dr. Larry Howard and Dr. Whitaker, who examined the body after it was exhumed, agreed that these areas of contusion indicated traumatic entry and were not merely signs of decomposition. Although no seminal material was discovered in the examination of the body, it was observed that this was not unexpected, considering the lengthy immersion of the body in Scuffle Creek.

The offenses of rape and aggravated sodomy may be proven by circumstantial evidence. Payne v. State, 231 Ga. 755 (1) (204 SE2d 128) (1974). See also, Durham v. State, 243 Ga. 408 (1) (254 SE2d 359) (1979); Spraggins v. State, 240 Ga. 759 (1) (243 SE2d 20) (1978); Neal v. State, 152 Ga. App. 395 (1) (263 SE2d 185) (1979). "[W]here the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilty is unsupportable as a matter of law." Harris v. State, 236 Ga. 242, 245 (223 SE2d 643) (1976).

We conclude that the evidence was sufficient to convince a rational trier of fact beyond a reasonable doubt that appellant accosted the victim for purposes of achieving deviant sexual gratification and that to this end she was bound and gagged, beaten, raped and sodomized. Thus, we find that the convictions for rape and aggravated sodomy are supported by sufficient evidence. Jackson v. Virginia, supra.

Appellant's first and third enumerations of error are meritless.

5. In his eighth and ninth enumerations of error, appellant complains of the denial of his motion to suppress and the admission in evidence of items allegedly seized illegally.

Joy Ludlam's body was discovered on December 8, 1981. Officers involved in the investigation were familiar with the facts of appellant's 1976 crime. The similarities were obvious. The last person known to have seen the victim alive was appellant. On December 9, application was made for warrants for the search of appellant's automobile, home and leather shop.

The affidavits for these search warrants recited that the affiant was a detective with the Warner Robins police department assigned to investigate the disappearance of Joy Ludlam; that her body had been found the previous day in Twiggs County; that she had been murdered; that she had apparently been bound at the hands and feet and gagged with an adhesive substance; that her body was fully clothed except that her underwear had been torn at the crotch; that she had been sexually assaulted in the vaginal and anal areas; that she had bruises on her breasts; and that her jewelry was missing.

The affidavits further alleged that appellant had admitted to other officers that the victim had visited him at his home and office on the evening of November 24, 1981, and that she had stayed approximately 30 minutes; that affiant had learned from a confidential source that the victim was at his residence for approximately two hours; that affiant had knowledge of a previous offense committed by appellant; that the victim in the prior case had been bound with rope and gagged with tape; that, in the prior case, appellant had committed various sexual acts, including aggravated sodomy; and that the victim's underwear had been ripped, her jewelry removed, and her breasts injured.

The affidavits expressed the affiant's belief that the victim had been alive for approximately 10 days after she was reported missing; that a missing person report was issued for the victim, but that no one had seen the victim during this time, and that appellant was the last person seen with the victim.

The affidavits alleged that the premises to be searched would contain hair, fibers, blood, adhesive and a gold necklace with a "Mickey Mouse" pendant.

Based upon the foregoing, the warrants were issued and the searches conducted.

On December 22, 1981, a warrant was issued to allow the seizure of hair from appellant's person, for comparison purposes.

After Warren Tillman advised investigators that the victim could have been dead for two weeks prior to the discovery of her body, a warrant was issued December 23, 1981, for the search of appellant's home. Additional hairs were discovered, but were not introduced at trial.

On January 18, 1982, another warrant was issued for the search of appellant's home, but officers did not actually enter the house (they searched underneath it). This search did not result in the seizure of any evidence introduced at trial.

On March 10, 1982, officers learned that orange acrylic fibers had been found on the victim's coat. An orange and yellow blanket had been observed, but not seized, during the December 9 search of appellant's home. Three additional warrants were issued, for appellant's home and automobile, and for the home of appellant's parents. Supporting affidavits were similar to previous ones, with the addition of information regarding the fibers and the blanket. The search of the automobile turned up nothing which was introduced at trial. The other two warrants were not executed, because the blanket was discovered during a consent search of the home of appellant's parents.

On March 29, officers made their final application for a search warrant. The supporting affidavit was similar to previous ones. In addition, affiant, having benefit of the department's purchase of a new, powerful vacuum cleaner, alleged that he wished "to search specifically the bedrooms, washer and dryer, drains and carpets in more detail and using mechanical equipment to gather the hair and fiber." During the search, hairs were recovered from the furnace grate, the dryer lint filter, the dryer vent, and from appellant's bedroom. These hairs were introduced at trial.

(a) Appellant contends that misleading information was given to the issuing magistrate, that material information was withheld from the magistrate, and that the information before the magistrate did not support the issuance of the warrant. We must disagree.

The affidavits are perhaps not perfect. But we find no material inaccuracies or misrepresentations. See Lee v. State, 239 Ga. 769 (3) (238 SE2d 852) (1977). Nor do we find the information insufficient to support the issuance of the warrants. "The issuing magistrate is not to be confined by [miserly] limitations or by restrictions on the use of his common sense." United States v. Chester, 537 F2d 173, 175 (5th Cir. 1976). "[T]he traditional standard for review of an issuing magistrate's probable cause determination has been that so long as the magistrate had a 'substantial basis for . . . conclud(ing)' that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more. [Cits.]" Illinois v. Gates, ---- U. S. ---- (103 SC 2317, 2331, 76 LE2d 527) (1983). That standard was met in this case.

(b) There is no merit to appellant's contention that the searching officers were not entitled to seize lewd drawings not described in the warrants.

OCGA 17-5-21 (a) (Code Ann. 27-303) requires that warrants "particularly describe[ ] the . . . things to be seized . . ." However, OCGA 17-5-21 (b) (Code Ann. 27-303) provides that "[w]hen the peace officer is in the process of effecting a lawful search, nothing in [subsection (a)] shall be construed to preclude him from discovering or seizing . . . any item . . . other than the private papers of any person, which is tangible evidence of the commission of a crime."

It is not necessary that items seized under the "plain view" doctrine be contraband. Ibid; Texas v. Brown, ---- U. S. ---- (103 SC 1535, 1542, 75 LE2d 502) (1983). Nor are items immune from seizure simply because they might be characterized as "private papers." Mooney v. State, 243 Ga. 373 (254 SE2d 337) (1979). The drawings were discovered while searches were being legitimately conducted pursuant to warrants, while the officers were within the scope of the searches authorized, and were items associating appellant with the crime for which he was being investigated. Their seizure was lawful.

(c) The justice of the peace testified at the hearing on appellant's motion to suppress. His practice was to require prepayment of a fee for applications for arrest warrants by private citizens. This fee was retained by him whether or not the application was granted. Regarding search warrants requested by law enforcement officers, the justice would send the county a bill at the end of each month. He testified that he would not bill the county for warrants that he refused to issue.

Appellant contends that the issuing magistrate was not "neutral and detached," citing Connally v. Georgia, 429 U. S. 245 (97 SC 546, 50 LE2d 444) (1977).

Prior to Connally, justices of the peace in Georgia who were not on salary were authorized to collect a fee if they issued a search or arrest warrant, but not if an application for such was denied. Connally found defective "the Georgia system for the issuance of search warrants by justices of the peace." 429 U. S. at 250.

Georgia law was amended in 1977, in response to Connally, and the present codification of that law provides that justices of the peace are entitled to a fee whether they grant or deny an application for an arrest or search warrant. OCGA 15-10-14 (Code Ann. 24-1601). The constitutionality of our present system was upheld in Allen v. State, 240 Ga. 567 (242 SE2d 61). (1978).

There is no indication in this record that the county would have violated our law and refused to pay the justice of the peace for warrant applications that he denied. What appellant is essentially contending is that because this justice of the peace chose, on his own, not to bill the county for denied search warrant applications, he is disqualified from issuing search warrants, and that the officers who obtained the search warrants in this case should be penalized for their failure to inquire of the justice of the peace as to his billing habits by excluding from evidence the fruits of their searches. We do not find that to be the law. Cf. Thompson v. State, 248 Ga. 343 (285 SE2d 685) (1981).

Appellant's eighth and ninth enumerations of error are meritless.

6. In his seventeenth enumeration of error, appellant contends the trial court erred by refusing to grant his motion for severance.

26-506) and (c).

Appellant's contention that the trial court abused its discretion by refusing to sever the offenses rests upon the assumption that the 1976 offense was admissible only with regard to the charge of aggravated sodomy and was not admissible to prove the other offenses charged in this case. With this assumption we cannot agree. The prior offense was clearly relevant to prove the identity of Joy Ludlam's murderer.

The different crimes alleged in the indictment were too interwoven and interdependent to permit ready separation of the proof offered in support of each. We find no abuse of discretion in the trial court's refusal to sever. Gober v. State, 247 Ga. 652 (1) (278 SE2d 386) (1981).

7. At the close of the evidence, the trial court told the jury "that with respect to the robbery charge," he had formed the opinion "that the state's evidence is insufficient to convict, and would not create a jury issue, and, therefore the matter of whether or not the defendant robbed the victim will not be before you in this case."

The charge of the court was prefaced by this admonition: "As I previously mentioned to you, the robbery charge is no longer before you because as a matter of law such charge was not proved . . ."

Appellant contends in his eighteenth enumeration that these instructions were inadequate. We find that, at least in the absence of any request for additional instruction, the instructions given were sufficient.

8. Prior to trial, two witnesses were hypnotized in an attempt to aid their recall of certain events.

One witness was the assistant manager of the lounge at the Holiday Inn on the evening of November 23, 1981.

Without hypnosis, he had recalled seeing appellant at the lounge that evening and he observed appellant engaged in a "casual conversation" with Joy Ludlam. No additional memories of the evening were uncovered by the hypnosis.

The other witness was one of the police officers who talked to appellant on November 25, 1981. The question was whether appellant had admitted to the officer only that Ms. Ludlam had made a telephone call from his residence or whether he had admitted that she had made a telephone call to the Holiday Inn. Appellant's testimony at trial was that she had made a call, but he did not know to whom. The officer testified that appellant had told him that she had called the Holiday Inn.

The court heard the testimony of the officer outside the presence of the jury and found that the officer's "account of the events made prior to hypnosis does not differ in any material respect from his account during hypnosis . . ."

(a) In his nineteenth enumeration, appellant contends the trial court erred by denying his motion to exclude the two witnesses. We do not agree. Regardless of the admissibility of hypnotically induced testimony, the testimony here was consistent with pre-hypnotic statements of the witnesses. The court did not err by allowing the witnesses to testify. Collier v. State, 244 Ga. 553 (1) (261 SE2d 364) (1979).

(b) In his twentieth enumeration, appellant contends that the trial court erred by failing to fully and properly instruct the jury on the use and reliability of hypnosis.

The court charged: "If you find that any witness has been placed under hypnosis for the purpose of refreshing or improving that witness' recollection, and if you find that such testimony is in whole or in part induced by the hypnosis, then to the extent that it was you would disregard such testimony."

We do not agree that this charge was incomplete, vague, or confusing, and find no merit to this enumeration of error.

9. As Warren Tillman conducted the autopsy, he dictated his impressions and observations into a tape recorder. He subsequently issued a written report of his findings.

Prior to trial, appellant sought access to this tape recording and any notes made by personnel of the state crime lab. His motion for production of physical evidence was in this respect denied. In his twenty-first enumeration, he contends this denial was error. We disagree.

Appellant was given copies of the autopsy report and of all other written scientific reports. See, Law v. State, 251 Ga. 525 (2) (307 SE2d 904) (1983). His expert was able to examine these reports and, as well, the photographs taken during the autopsy and tissue slides from the second examination of the body. Moreover, it is apparent from the testimony of appellant's expert that he had personally discussed the autopsy with Warren Tillman. We do not believe that Tillman's tape-recorded notes amount to "a piece of critical evidence whose nature is subject to varying expert opinion," Barnard v. Henderson, 514 F2d 744, 746 (5th Cir. 1975), or that appellant was denied the means necessary to conduct his defense. Sabel v. State, 248 Ga. 10 (6) (282 SE2d 61) (1981). This enumeration of error is without merit.

10. In enumerations of error 22 through 24, appellant complains of the admission in evidence of certain photographs and of the court's refusal to give a requested charge thereon.

(a) Three photographs showed close-up views of incisions made by Dr. Howard for purposes of preparing tissue slides. Appellant contends that these photographs were inadmissible under the rule announced in Brown v. State, 250 Ga. 862 (5) (302 SE2d 347) (1983). We need not answer this contention, however, as this case was tried before Brown was decided. We have held that Brown has prospective operation only. Grant v. State, 251 Ga. 434 (306 SE2d 265) (1983).

We have examined these photographs. They are depicted from such a close perspective that only the incisions and a small portion of the surrounding skin are visible. These photographs illustrated Dr. Howard's testimony and we conclude that their admission was not reversible error. Ramey v. State, 250 Ga. 455 (1) (298 SE2d 503) (1983).

(b) Photographs taken of the victim at the scene of the first autopsy were admitted in evidence. These photographs were taken before any incision was made and they were relevant to material issues in the case. The court did not err by allowing their admission in evidence. Blankenship v. State, 247 Ga. 590 (8) (277 SE2d 505) (1981).

(c) Also admitted were photographs of the victim's body lying on the bank of Scuffle Creek, which showed the clothes she was wearing, the ripped underwear, the lines of adhesive on her face, scuffed marks on the legs of her hose, and bruises on her neck and arm.

Appellant's request to charge -- that the photographs of the body were admitted only for the purpose of showing the injuries inflicted upon the victim and that any portion of the photographs other than such injuries should not cause prejudice against the defendant -- was incorrect. The admissibility of the photographs was not so limited, and appellant was not entitled to an instruction that the jury disregard prejudicial portions of the state's case.

"Doubtless, photographs of the victim are prejudicial to the accused, but so is most of the state's pertinent testimony." Blankenship, supra at 596.

11. In his thirty-first enumeration, appellant contends that testimony by detective Joel Sullivan required a mistrial and that the court's denial of appellant's motion for mistrial was reversible error.

We set forth the pertinent portions of the cross-examination leading up to the answer in question:

"Q [By Mr. Hasty for appellant]: Do you remember any threats being made by your investigators, you or your investigators against Mr. Felker at that particular time?

"A [By detective Sullivan]: No, sir, I don't.

"A No, sir, I don't.

"Q You didn't tell me that?

"A No, sir, I don't recall saying that to you.

"Q Down in the clerk's office in this courthouse, Mr. Sullivan?

"A No, sir, I --

"MR. FINLAYSON: Your Honor, I think he's answered that question now three times.

"THE COURT: Yes, sir.

"MR. HASTY: Excuse me just one second, your Honor please.

"Q [By Mr. Hasty]: I'm specifically referring to November 5, 1982, Mr. Sullivan, and I'll ask you if you remember being there in the presence of me and a lawyer from Warner Robins, I think maybe from Perry, I'm not sure, and I cannot remember his name, and having a conversation with us at that time?

"A I remember having one conversation with you out in the hall outside the clerk's office when you asked me if we had anything else on Wayne Felker, and maybe we could work a deal out for a lesser sentence.

"Q I'm asking you -- (Laughter in the courtroom.)

"MR. HASTY: Your Honor please, now, that was certainly not responsive to my question --

"THE WITNESS: That's the only conversation I remember.

"MR HASTY: -- and I would certainly, I would certainly move for a mistrial in relation to that response.

"THE COURT: Well, I'm going to deny your motion for a mistrial, Mr. Hasty. It was given in response to a question you asked him, although you certainly could argue that it went beyond the response you were seeking.

"I'm going to instruct the jury to disregard the response of the officer in that respect, and not let it bear on your decision in this case."

Appellant contends that since the witness was a law enforcement officer, his statement was a matter of law so prejudicial that a mistrial was required, citing Boyd v. State, 146 Ga. App. 359 (2) (246 SE2d 396) (1978). However, in Sabel, 250 Ga. at 644, this court rejected the notion that Boyd establishes such a per se rule.

Moreover, in view of the testimony as a whole, the answer was not entirely unresponsive. The witness was asked time and again if he remembered a conversation in the clerk's office in which the witness had threatened appellant or had expressed a desire to kill him. Time and again the witness answered that he did not remember any such conversation. Counsel persisted, and finally the witness answered that the only conversation he could remember was one in which counsel had expressed an interest in working out a deal.

Although one may legitimately complain about illegal testimony which is not responsive to the question, one cannot take chances in propounding questions which may elicit damaging answers, otherwise inadmissible, and then demand a mistrial when such answer is given. Henderson v. State, 208 Ga. 73, 75 (65 SE2d 175) (1951).

Reviewing the relevant circumstances, we find that the trial court did not abuse its discretion in denying the motion for mistrial. Tyler v. State, 251 Ga. 381 (3) (306 SE2d 263) (1983).

12. In his thirty-second enumeration, appellant contends that the testimony of the 1976 victim should have been excluded because she had been "secreted" from appellant's counsel by the state.

After she was sodomized by appellant in 1976, the victim married and moved out West. She was located by the state and agreed to return to Georgia for the trial of this case.

Prior to trial, the state furnished appellant with a list of witnesses. See OCGA 17-7-110. (Code Ann. 27-1403). On the list was the victim's former name as well as her married name.

OCGA 17-7-110 (Code Ann. 27-1403) does not require the state to furnish the addresses of witnesses. Holsey v. State, 235 Ga. 270 (2) (219 SE2d 374) (1975).

Nonetheless, many addresses were ordered to be furnished. However, since appellant had available to him the transcript of the previous trial, the court refused to require the state to furnish appellant with the address of the 1976 victim. The court pointed out that it did not mean to say that this witness would be unavailable for interview by appellant's counsel before she testified.

The witness arrived in Warner Robins more than a week prior to the commencement of trial. Appellant contends that because the state did not inform him of her whereabouts, the witness was unlawfully withheld from him, citing Wilson v. State, 93 Ga. App. 229 (91 SE2d 201) (1956).

In Wilson, the only eyewitness to the crime was being held in jail as a material witness. The sheriff and the solicitor-general refused to allow the defendant to see the witness. The defendant moved the court for permission to interview the witness, but the motion was denied. This denial was held to be reversible error.

We conclude that appellant has failed to demonstrate that he was denied access to this witness. 7 Rutledge v. State, 245 Ga. 768 (2) (267 SE2d 199) (1980).

13. In enumerations of error 33 through 37, appellant complains of the court's charge.

(a) In enumeration 33, he contends the court erred by refusing to give a request to charge that a defendant's attorney has not only the right, "but the plain duty" to interview any persons who might be able to assist him. He contends that this charge was necessary because the 1976 victim was withheld from him. We do not follow this reasoning, and, in any event, find the requested charge to be more harmful than helpful to appellant, in view of a defendant's right not to testify or present evidence. The court did not err by refusing to give it.

(b) Appellant requested a charge that "a verdict is never demanded in a criminal case in favor of the State where the defendant, in his testimony, denied his guilt." The court refused to give his requested charge. Instead, after defining reasonable doubt, the court charged: "If, after you consider all the facts and circumstances in the case, your minds are wavering, unsettled and unsatisfied, then that is the doubt of the law, and you should acquit the defendant. On the other hand, if such doubt does not exist in your minds as to his guilt, you should convict him."

Appellant correctly observes that a jury has the power to disregard the law and refuse to convict for reasons unrelated to factual guilt. He contends that the jury must be so instructed. We disagree.

"[T]he undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge and contrary to the evidence[,] . . . is a power that must exist as long as we adhere to the general verdict in criminal cases . . ." United States v. Moylan, 417 F2d 1002, 1006 (4th Cir. 1969). However, that "is not to say that the jury should be encouraged in their 'lawlessness.' " Ibid.

The duty of a jury is to be distinguished from its power. Its duty is to apply the law to the facts and to reach a verdict which speaks the truth. Harris v. State, 190 Ga. 258 (9 SE2d 183) (1940); Griffin v. State, 154 Ga. App. 261 (4) (267 SE2d 867) (1980). If, after considering all of the evidence, the jury finds that the state has carried its burden of proving beyond a reasonable doubt every essential allegation in the indictment, and is convinced beyond a reasonable doubt of the defendant's guilt of the crime charged, it should convict. The court's instruction to this effect was not error.

Salisbury v. State, 221 Ga. 718 (2) (146 SE2d 776) (1966), relied upon by appellant, is inapposite. The court's charge there, in effect, restricted the jury to a consideration of the state's evidence. Here, the court's instructions clearly required a consideration of all of the evidence. Cape v. State, 246 Ga. 520 (8) (272 SE2d 487) (1980).

Enumerations 34 and 36 are without merit.

(c) On the credibility of witnesses, the court charged as follows:

"You are the sole judges of the credibility of the witnesses and of the weight to be given their testimony. In deciding the credit to be given any witness' testimony, you may take into account his or her ability and opportunity to observe the facts; his or her memory; the witness manner while testifying; any interest, bias or prejudice the witness may have, and you may also consider the reasonableness of such testimony.

"If there are conflicts in the evidence, it is your duty under the law to reconcile them wherever possible so as to make all the witnesses speak the truth and not attribute a false statement to any of them. If you cannot do this, however, then you would believe that testimony which is most reasonable and credible to you.

"A witness' testimony may be impeached or discredited by disproving the facts testified to by him or her, or by showing that the witness made a previous statement or statements inconsistent with or contradictory to the testimony given at trial.

"If you determine that the testimony of any witness has been impeached or discredited in that manner, you are authorized to believe or disbelieve said witness' testimony in whole or in part." 8

In his thirty-fifth enumeration, appellant argues that: "[C]ombining the duty to convict and the duty to make all the witnesses speak the truth was error, because the jury was not thereby given the option of disregarding the testimony of a witness not technically impeached . . . The trial judge instructed the jury to consider all of the testimony as the truth and thereby asked them to construe the testimony so as to remove the reasonable doubt in their minds. Then he instructed the jury to convict if there was no reasonable doubt. In effect, he instructed the jury to convict the appellant." We disagree.

Jurors may not arbitrarily disregard the uncontradicted testimony of credible witnesses. See Western & Atlantic R. Co. v. Beason, 112 Ga. 553 (1) (37 SE 863) (1901).

Moreover, where there are conflicts in the testimony of witnesses, it is the duty of the jury to reconcile these conflicts if possible so as to make every witness speak the truth. Cotton v. State, 81 Ga. App. 753, 755 (59 SE2d 741) (1950). Neither of these rules, however, mean that the jury is obliged to believe testimony which, under the facts and circumstances disclosed they discredit. Fincher v. Harlow, 56 Ga. App. 578, 581 (193 SE 452) (1937). In evaluating the credibility of witnesses, the jury may take into consideration such things as the witnesses' manner of testifying, their means and opportunities of knowing the facts to which they testify, their interest or lack of interest in the case, and the probability or improbability of their testimony. Harris v. State, 2 Ga. App. 406, 408 (58 SE 669) (1907).

"The credibility of a witness is a matter to be determined by the jury under proper instruction from the court." OCGA 24-9-80 (Code Ann. 38-1805). The charge given accurately stated the law. Collum v. Georgia R. &c. Co., 140 Ga. 573 (6) (79 SE 475) (1913); Brown v. State, 10 Ga. App. 50 (2) (72 SE 537) (1911). The court did not, in effect, "instruct the jury to convict the appellant," and this enumeration is meritless.

(d) Appellant requested the court to charge: "[W]hile it is the duty of each juror to discuss and consider the opinions of the other jurors, each juror must decide the case upon his own opinion of the evidence. In deciding the question of reasonable doubt, each juror must decide for himself." The court's refusal to charge this request is alleged as error in enumeration 37.

In Smith v. State, 63 Ga. 168 (20) (1879) we held: "The jury are to act as a body, and should be charged as a body. The individual jurors are not to be addressed in the charge in a way to discourage mental harmony and concert. It is not incumbent upon the court to stimulate their individuality by charging, at the prisoner's written request, '[t]hat each juror must be satisfied for himself, from the evidence, of the guilt of the defendant, before he can lawfully agree to a verdict of guilty.' " Id. at 170.

Such a charge is another way of telling a jury that its verdict must be unanimous, and agreed to by each of its members. While trial courts often include in their charge such an instruction, none of the few cases on the subject has ever held such a charge to be mandatory.

In this case, the jury was polled after verdict. Each juror was asked if the verdict that the jury had just published was his verdict, if it had been arrived at freely and voluntarily by the juror, and if it remained his verdict. Every juror gave affirmative answers to all three questions. Thus, there can have been no harmful error resulting from the court's failure to give either the requested charge or a charge covering substantially the same principles. Maddox v. State, 233 Ga. 874 (2) (213 SE2d 654) (1975).

Sentence Review

14. In enumerations 25, 26 and 28, appellant contends that the death penalty is cruel and unusual punishment, that Georgia law providing for its imposition is unconstitutional, and that our appellate review is defective. None of these enumerations of error has any merit. See, e.g., Gregg v. Georgia, 428 U. S. 153 (96 SC 2909, 49 LE2d 859) (1976); Mincey v. State, 251 Ga. 255 (4) (304 SE2d 882) (1983); Putnam v. State, 251 Ga. 605 (11) (308 SE2d 145) (1983). We note that appellant's contention that, in conducting our proportionality review, we "compare [ ] death cases only with those cases in which the death penalty has been sought by the state," is incorrect. See Horton v. State, 249 Ga. 871, 880 n. 9 (295 SE2d 281) (1982).

15. Appellant's twenty-seventh enumeration, challenging the practice of death-qualification of jurors, is likewise meritless. Mincey v. State, supra, (2).

16. In enumeration 29, appellant contends that the trial court erred by charging: "Members of the jury, you are authorized to impose either the death penalty or life imprisonment as to the murder conviction in this case."

Viewed in isolation, this portion of the charge was, at best, incomplete. It is true that the jury had for its consideration two possible punishments with respect to the murder conviction. Appellant would be sentenced on the other convictions by the court. However, this portion of the charge, by itself, did not inform the jury that it would be authorized to impose a death sentence only if it found at least one statutory aggravating circumstance beyond a reasonable doubt. OCGA 17-10-30 (c) (Code Ann. 27-2534.1). Nonetheless, other portions of the charge did. In passing upon the merits of this enumeration of error, we do not consider fragments of the charge in isolation. Instead, we must examine the charge as a whole to see whether reasonable jurors were properly informed of the law. Ranger v. State, 249 Ga. 315 (7) (290 SE2d 63) (1982); Brown v. Matthews, 79 Ga. 1 (4 SE 13) (1887).

The charge, considered as a whole, clearly instructed the jury that it could not recommend a sentence of death unless it found at least one statutory aggravating circumstance beyond a reasonable doubt. In addition, the jury was informed that even if it found a statutory aggravating circumstance, it could nonetheless refuse to impose a sentence of death. Thus, we find no reversible error in the court's charge. Conner v. State, 251 Ga. 113 (4) (303 SE2d 266) (1983).

17. In enumeration 39, appellant contends the trial court erred by instructing the jury that, in considering the sentence to be imposed, the jury could consider evidence presented during the guilt phase of the trial. This enumeration is meritless. Blankenship v. State, 251 Ga. 621 (308 SE2d 369) (1983).

18. Appellant was allowed to present the testimony of a political science professor, two professors of religion, and a Presbyterian minister concerning their religious and philosophical objections to the death penalty. Their testimony included a description of the process of electrocution and expressions of opinion that the death penalty is not a deterrent to crime. We have previously held that such testimony is irrelevant to the issues to be decided by the jury in the sentencing phase. Horton v. State, supra (5); Stevens v. State, 247 Ga. 698 (24) (278 SE2d 398) (1981); Franklin v. State, 245 Ga. 141 (7) (263 SE2d 666) (1980).

The political science professor testified that, for a variety of reasons, the death penalty was not an effective deterrent. Then appellant asked about her general attitude toward the death penalty. She answered: "Personally, I'm opposed to capital punishment. I don't think it's an effective deterrent, and that's a judgment that I really make on the basis of study and really I would regard as science; but on a personal level, were someone to ask about my own religious beliefs, you know, I would be opposed." Appellant asked, "In all circumstances?" The witness answered, "In all circumstances. I prefer life without parole." (Emphasis supplied.)

On cross-examination, the state asked the witness if she felt that incarceration was a deterrent. She answered in the negative: "Oh, I see a benefit; oh, certainly, but I don't see a deterrent benefit." She agreed that the death penalty would incapacitate the offender from committing another crime. Then the following transpired:

"Q [By the state]: And I believe you stated that you were unalterably and conscientiously opposed to capital punishment.

"A Right; that's correct.

"Q Under any circumstances?

"A Under any circumstances.

"Q You also said that personally you favored a life sentence without parole?

"Q Well, imagine for a moment that such an animal doesn't exist. Does your situation change?

"A No, basically it wouldn't; it wouldn't."

Appellant moved for a mistrial. He now contends that the court's refusal to grant his motion was error. We disagree.

The personal beliefs of the witness were injected into the case by the defendant, with the consent of the court, 9 including her belief that she preferred life without parole. Appellant cannot now complain that the state cross-examined the witness about these beliefs. Tucker v. State, 245 Ga. 68, 72-73 (263 SE2d 109) (1980). 10

19. Appellant's mother testified on direct examination, at the sentencing phase of the trial, that her son had been sent to prison some time after he was arrested in October 1976, that he had stayed in prison four years, and that he had been released in December of 1980.

In argument, the district attorney stated: "[Felker] received a 12-year sentence and served eight, and I think his mother said that he was released from prison December 19, 1980. That's when he married Patsy, his fifth wife, December 19, 1980. When did this crime occur? November 24, 1981, just about 11 months from the time that he was released from prison."

Appellant contends that the district attorney made an argument concerning parole, in violation of OCGA 17-8-76 (Code Ann. 27-2206). We disagree. The argument was very similar to the one made in Horton v. State, supra, 249 Ga. at 875-876. It made no reference to parole and was not otherwise improper.

"(1) That the offense of murder was committed while the offender was engaged in another capital felony, to wit: rape (2) that the offense was outrageously or wantonly vile, horrible, or inhuman, in that it involved torture or depravity of mind." OCGA 17-10-30 (b) (2) and (b)(7) (Code Ann. 27-2534.1).

(a) In Division 4c, ante, we held that the evidence was sufficient to support a conviction for rape. The same evidence supports the jury's finding of the (b)(2) statutory aggravating circumstance.

(b) The evidence shows that Joy Ludlam suffered serious physical and psychological abuse prior to her death. She suffered serious sexual abuse before, and perhaps, also, after her death. Thus, she was clearly "subjected to the unnecessary and wanton infliction of severe physical or mental pain, agony or anguish" and appellant was clearly shown to have committed the murder as the result of his "utterly corrupt, perverted or immoral state of mind." West v. State, 252 Ga. 156, 161 (313 SE2d 67) (1984).

The evidence was sufficient to authorize a finding that the offense of murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture or depravity of mind. Hance v. State, 245 Ga. 856 (3) (268 SE2d 339) (1980). The facts of this case distinguish it from those cases in which a finding of the (b)(7) statutory aggravating circumstance would not be appropriate. Whittington v. State, 252 Ga. 168 (9b) (313 SE2d 73) (1984); Phillips v. State, 250 Ga. 336 (6) (297 SE2d 217) (1982).

(c) The jury's finding of statutory aggravating circumstances is supported by the evidence. OCGA 17-10-35 (c)(2) (Code Ann. 27-2537).

21. After review of the record in this case, we conclude that the sentence of death was not imposed under the influence of passion, prejudice, or other arbitrary factors. OCGA 17-10-35 (c)(1) (Code Ann. 27-2537).

22. The facts of this case are set forth at length elsewhere in the opinion. No further exposition is required here.

Suffice to say, the sort of conduct proven in this case has been condemned by death in many other cases. We find that the sentence of death is not excessive or disproportionate to sentences imposed in similar cases, considering both the crime and the defendant. OCGA 17-10-35 (c)(3) (Code Ann. 27-2537).

23. Enumerations of error 30, 38 and 40 are answered by Divisions 18-22 of this opinion.

APPENDIX.

Brown v. State, 250 Ga. 66 (295 SE2d 727) (1982); Allen v. State, 248 Ga. 676 (286 SE2d 3) (1982); Justus v. State, 247 Ga. 276 (276 SE2d 242) (1981); Green v. State, 246 Ga. 598 (272 SE2d 475) (1980); Gates v. State, 244 Ga. 587 (261 SE2d 349) (1979); Brooks v. State, 244 Ga. 574 (261 SE2d 379) (1979); Collins v. State, 243 Ga. 291(253 SE2d 729) (1979); Spraggins v. State, 243 Ga. 73 (252 SE2d 620) (1979); Davis v. State, 242 Ga. 901 (252 SE2d 443) (1979); Johnson v. State, 242 Ga. 649 (250 SE2d 394) (1978); Moore v. State, 240 Ga. 807 (243 SE2d 1) (1978); Gibson v. State, 236 Ga. 874 (226 SE2d 63) (1976); McCorquodale v. State, 233 Ga. 369 (211 SE2d 577) (1974).

Notes

1  All the experts agreed that hands would suffer immersion wrinkling (Joy Ludlam's did) and that eventually the skin would separate from the hand. This separation, called slippage, was not present in this case.

2  "To take a dramatic example, defendants' knowledge that they did not have permission to take a car can be proven by evidence that they murdered the owner." Wright and Graham, Federal Practice and Procedure, 5245, p. 506 (1978).

3  "Rather than search the digests for a category into which the proposed use can be crammed, courts should examine the complete chain of inferences necessary to make the evidence of other crimes relevant and admit or exclude the evidence on the basis of whether it is or is not offered to prove some conduct of the accused and whether it does or does not require an inference as to his character." Wright and Graham, supra, 5240, pp. 477-478.

4  Aggravated sodomy, of which appellant was convicted, is defined as the commission of sodomy "with force and against the will of another person." OCGA 16-6-2 (Code Ann. 26-2002).

5  See Wright and Graham, supra, 5240, pp. 482-483: "As one writer has suggested, evidence that a person was motivated by sexual desire does not establish that he intended to gratify those desires by the use of force." (Footnote omitted.)

6  OCGA 16-5-41 (a) (Code Ann. 26-1308) provides: "A person commits the offense of false imprisonment when, in the violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority."

7  We note that appellant had available to him the transcript of the previous testimony of the witness and that he does not now contend that any of her testimony in this case was inconsistent with her previous testimony or that it otherwise surprised him.

8  The court also gave instructions on hypnotically induced testimony, see Division (8b) ante, and expert testimony. Since these portions of the charge are not complained of here, they are not reproduced above, although they form a part of the court's charge on credibility of witnesses.

9  By way of a motion in limine, appellant successfully sought a pre-trial ruling in his favor on the admissibility of such testimony. The state's objection to the testimony of these witnesses was overruled.

10  We have not overlooked Tucker v. Francis, 723 F2d 1504 (11th Cir. 1984), in which a panel of the 11th Circuit set aside Tucker's death penalty because among other things, the prosecutor had argued to the jury the possibility of parole in the event of a life sentence.Our response is that, in addition to the failure to recognize that the necessity for incapacitation is a legitimate area of inquiry in a death penalty case (see Jurek v. Texas, 428 U. S. 262 (96 SC 2950, 49 LE2d 929) (1976)), the panel failed to recognize our holding on direct appeal that any possible error regarding the injection of the possibility of parole was induced by the defendant. The panel failed to mention that evidence of a prior parole had been introduced by the defendant, failed to consider the effect of the defendant's failure to interpose any objection to the state's argument, failed to note that the defendant had argued the issue himself, and failed to accord any weight to our procedural resolution of the case, in violation of Wainwright v. Sykes, 433 U. S. 72 (97 SC 2497, 53 LE2d 594) (1977) and Engle v. Isaac, 456 U. S. 107 (102 SC 1558, 71 LE2d 783) (1982).

 
 


 

52 F.3d 907

Ellis Wayne Felker, Petitioner-Appellant,
v.
Albert G. Thomas, Warden, Respondent-Appellee.

No. 94-8224

Federal Circuits, 11th Cir.

May 8, 1995

Appeal from the United States District Court for the Middle District of Georgia.

BIRCH, BLACK and CARNES, Circuit Judges.

CARNES, Circuit Judge:

This appeal involves the denial of habeas corpus relief, 28 U.S.C. Sec . 2254, to Ellis Wayne Felker, in connection with his 1983 murder conviction and death sentence imposed by the State of Georgia. Felker raises three issues. He contends that there was insufficient evidence to convict him; that the prosecution suppressed evidence favorable to him in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and, that his retained trial counsel rendered ineffective assistance of counsel at the sentence stage by conceding that Felker was guilty of the crime for which the jury had convicted him. We find no merit in any of Felker's contentions.

I. FACTS

In 1976, Felker used deception to lure Jane W., a waitress, to his residence, where he overpowered her. Felker then subjected her to bondage, beating, sadistic sexual abuse, and sodomy. When Jane W. pleaded with Felker to release her, he told her he could not let her go because she would tell the police what he had done to her. Fortunately for her, she managed to escape after Felker fell asleep. Because of what he had done to Jane W., Felker was convicted of aggravated sodomy and sentenced to twelve years imprisonment with four years of the twelve-year sentence to be probated.

Unfortunately, Felker was paroled in 1980 after serving only four years of his sentence. Less than a year after he was released on parole, Felker used deception to lure Evelyn Joy Ludlam, a nineteen-year-old college student working as a waitress, to his residence. There, he forcibly subjected her to bondage, beating, rape, and sodomy. As the Georgia Supreme Court said in comparing what Felker had done to Jane W. in 1976 to what he did to Joy Ludlam in 1981: "The similarities are numerous and distinctive...." Felker v. State, 252 Ga. 351, 314 S.E.2d 621, 632 (detailing the similarities), cert. denied, 469 U.S. 873 , 105 S.Ct. 229, 83 L.Ed.2d 158 (1984). Tragically for Joy Ludlam, there was one major difference: she did not escape. Felker murdered her and threw her body in a creek.

II. PROCEDURAL HISTORY

For the crimes he committed against Joy Ludlam, Felker was convicted of murder, rape, aggravated sodomy, and false imprisonment. At the sentence stage, the jury found two statutory aggravating circumstances: the murder was committed while Felker was engaged in a rape; and, the offense was outrageously or wantonly vile, horrible or inhuman because it involved torture or depravity of mind. Felker was sentenced to death.

In his direct appeal, Felker raised forty issues or enumerations of error. The Georgia Supreme Court held there was no merit in any of them, and affirmed his conviction and death sentence. Felker v. State, 252 Ga. 351, 314 S.E.2d 621 (1984). The United States Supreme Court denied certiorari. Felker v. Georgia, 469 U.S. 873 , 105 S.Ct. 229, 83 L.Ed.2d 158 (1984).

Felker then challenged his conviction and sentence in a state habeas corpus proceeding in which he raised fourteen issues. The state trial court denied collateral relief, and the Georgia Supreme Court denied Felker's application for a certificate of probable cause to appeal that denial. The United States Supreme Court denied certiorari. Felker v. Zant, 502 U.S. 1064 , 112 S.Ct. 950, 117 L.Ed.2d 118 (1992).

Felker then filed, in the United States District Court for the Middle District of Georgia, a petition for federal habeas corpus relief pursuant to 28 U.S.C. Sec . 2254. In his petition, Felker raised five claims, alleging: 1) insufficiency of the evidence to convict; 2) a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); 3) ineffective assistance of counsel at the sentence stage; 4) improper use of hypnosis to refresh the memory of a witness for the state; and 5) violation of double jeopardy and collateral estoppel principles by the use of evidence of Felker's crime against Jane W. in his trial for crimes against Joy Ludlam. The district court denied relief, and this appeal followed. In this Court, Felker presses only the first three issues.

III. DISCUSSION

A. THE SUFFICIENCY OF THE EVIDENCE CLAIM

Felker contends that he is entitled to habeas corpus relief under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), because the evidence was insufficient to convict him. The voluminous evidence against Felker has been set out in detail by the Georgia Supreme Court, 314 S.E.2d at 626-31, 635-36, and we will not repeat it here. The constitutional test for the sufficiency of the evidence is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.

In determining that there was sufficient evidence to convict Felker of false imprisonment and of murder, the Georgia Supreme Court explained:

The evidence supports a finding that Joy Ludlam was bound at her wrists and ankles, gagged, and blindfolded, all against her will. She was therefore confined and detained without legal authority in violation of her personal liberty. Thus, the evidence was sufficient to support the conviction for false imprisonment.

314 S.E.2d at 638 (footnote omitted). As to the basis for the rape and aggravated sodomy convictions, the court said:

We conclude that the evidence was sufficient to convince a rational trier of fact beyond a reasonable doubt that appellant accosted the victim for purposes of achieving deviant sexual gratification and that to this end she was bound and gagged, beaten, raped and sodomized. Thus, we find that the convictions for rape and aggravated sodomy are supported by sufficient evidence. Jackson v. Virginia, supra.

Id. Reviewing the evidence de novo, we reach the same conclusions as the Georgia Supreme Court.

B. THE BRADY CLAIM

Felker claims that the State of Georgia violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose to the defense evidence indicating that the last time someone other than the murderer saw Joy Ludlam alive was at sometime between approximately 2:30 and 4:00 p.m. on Wednesday, November 25, 1981, instead of at 5:00 p.m. the day before. Either time is consistent with the State's forensic testimony at trial, which established a broad range for the time during which death could have occurred--any time from November 24 to December 5, 1981. The materiality of the undisclosed evidence, Felker argues, is that the prosecution's theory at trial was that Joy Ludlam was killed after 6:30 p.m. on Tuesday, November 24, either later that night or in the early morning hours of November 25. The State concedes that Felker had an alibi for all relevant times beginning at approximately 7:00 p.m. on the evening of Wednesday, November 25, and his alibi was a good one--the police had him under surveillance from 7:00 p.m. that Wednesday until he was arrested on December 8, 1981.

A successful Brady claim requires three elements: (1) the prosecution suppressed evidence, (2) the evidence suppressed was favorable to the defense or exculpatory, and (3) the evidence suppressed was material. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97; Jacobs v. Singletary, 952 F.2d 1282, 1288 (11th Cir.1992); Delap v. Dugger, 890 F.2d 285, 298 (11th Cir.1989), cert. denied, 496 U.S. 929 , 110 S.Ct. 2628, 110 L.Ed.2d 648 (1990). Felker's claim fails on the first and third elements. He cannot establish that the evidence in question was suppressed, because the evidence itself, if true, proves that Felker was aware of the existence of that evidence before trial. The parties disagree about whether the evidence was effectively disclosed to defense counsel, but that dispute need not detain us. Viewed most favorably to Felker, the evidence in question is that a sales clerk at a western wear store saw Joy Ludlam in the presence of Felker and another woman at that store sometime around 2:30 p.m. to 4:00 p.m. on Wednesday, November 25, 1981.1

However, the witness Felker claims would have testified to that fact also would have testified that Felker himself was present with the victim on that occasion, and that Felker directed the victim to pay for her purchase in cash instead of with a check.2 If the witness's statements are true, and Felker's Brady claim assumes they are, then Felker was there in the store with Joy Ludlam on the afternoon of Wednesday, November 25, 1981. Because he was there with her, Felker knew all about the victim having gone into that particular store at that time and having been seen alive at that time by the store clerk, and possibly by other persons in the store. Not only did Felker know all of that, but because he was there when it happened, he knew it well before anyone representing the State did.

We have held numerous times that there is no suppression, and thus no Brady violation, if either the defendant or his attorney knows before trial of the allegedly exculpatory information. E.g., United States v. Valera, 845 F.2d 923, 927-28 (11th Cir.1988), cert. denied, 490 U.S. 1046 , 109 S.Ct. 1953, 104 L.Ed.2d 422 (1989); Halliwell v. Strickland, 747 F.2d 607, 609 (11th Cir.1984), cert. denied, 472 U.S. 1011 , 105 S.Ct. 2711, 86 L.Ed.2d 726 (1985); United States v. Cravero, 545 F.2d 406, 420 (5th Cir.1976), cert. denied, 430 U.S. 983 , 97 S.Ct. 1679, 52 L.Ed.2d 377 (1977). Because the information in question was not suppressed from Felker's own personal knowledge, his Brady claim fails for that reason.

Another independently adequate reason why Felker's Brady claim fails is that the evidence in question is not material. We measure materiality pursuant to the Supreme Court's latest instructions on the subject in Kyles v. Whitley, --- U.S. ----, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Although the evidence in question would have been inconsistent with the prosecution's theory at trial about when the victim was last seen alive, it would not have been inconsistent with any of the evidence proving Felker's guilt.3

More importantly, the evidence in question would have flatly contradicted Felker's testimony on his own behalf. Felker took the stand at trial and testified that he had last seen Joy Ludlam at about 6:00 p.m. on Tuesday, November 24, 1981, and that he knew nothing whatsoever about her whereabouts after that time. If the sales clerk at the western wear store had been called as a witness at trial to testify that Joy Ludlam was in the store the next afternoon, her testimony also would have established that Felker had been there with Joy Ludlam, and thus that he had lied under oath about when he was last with the victim. Her testimony would have established that Felker was with the victim one day later and thus one day closer to the time of the murder. Her testimony would have established that Felker had been ordering the victim around--that shortly before Joy Ludlam was murdered Felker had told her to pay for a purchase with cash instead of with a check. The jury would have been entitled to infer, and no doubt would have inferred, that Felker had been making sure the victim's whereabouts could not be traced later through the check she had wanted to write.

According to Kyles v. Whitley, we are to view the evidence in question as a whole, --- U.S. at ----, 115 S.Ct. at ----, and determine "whether in its absence [the defendant] received a fair trial, understood as a trial resulting in a verdict worthy of confidence," id. at ----, 115 S.Ct. at ----, or stated somewhat differently, whether the evidence "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict," id. at ----, 115 S.Ct. at ---- (footnote omitted). Especially given Felker's own testimony at trial, the net effect of the entire evidence in question is not favorable to him. For that reason, Felker's claim probably fails even the second prong of Brady, and it most assuredly fails the third, or materiality prong. The evidence in question could not reasonably be taken to put the whole case in a different light so as to undermine confidence in either the guilt verdict or the sentence. Felker received a fair trial, one resulting in a verdict and sentence worthy of our confidence.

C. THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

Felker's ineffective assistance of counsel claim relates to the sentence stage where, according to him, his counsel conceded Felker's guilt of the crime. Relying on decisions such as Francis v. Spraggins, 720 F.2d 1190, 1194 (11th Cir.1983), cert. denied, 470 U.S. 1059 , 105 S.Ct. 1776, 84 L.Ed.2d 835 (1985), and Young v. Zant, 677 F.2d 792, 799-800 (11th Cir.1982), cert. denied, 476 U.S. 1123 , 106 S.Ct. 1991, 90 L.Ed.2d 672 (1986), Felker argues that trial counsel may not concede the guilt of a defendant who has pleaded not guilty, at least not without the defendant's consent. That is true enough as to the guilt stage, which is what those decisions concerned. However, the situation is entirely different at the penalty stage where the same jury that will be determining the defendant's sentence has already unanimously found beyond a reasonable doubt that he is guilty of the crime charged. As we said in Green v. Zant, 738 F.2d 1529, 1542 (11th Cir.), cert. denied, 469 U.S. 1098 , 105 S.Ct. 607, 83 L.Ed.2d 716 (1984), "A defendant does not arrive at the penalty phase of a capital proceeding with a clean slate, and there is no point in pretending otherwise." It is entirely reasonable for an attorney to conclude that there is little to be gained and much to be lost by "fighting the hypothetical" and pretending that his freshly convicted client is not guilty in the eyes of the sentencing jury.

We do not mean to imply that pursuit of what is sometimes called a whimsical doubt or residual doubt strategy at the sentence stage will constitute ineffective assistance of counsel. Our decisions recognize that in some circumstances a decision to continue denying the defendant's guilt throughout the sentence stage will be within the range of reasonable professional assistance. See, e.g., Julius v. Johnson, 840 F.2d 1533, 1542 (11th Cir.), cert. denied, 488 U.S. 960 , 109 S.Ct. 404, 102 L.Ed.2d 392 (1988); Funchess v. Wainwright, 772 F.2d 683, 689-90 (11th Cir.1985), cert. denied, 475 U.S. 1031 , 106 S.Ct. 1242, 89 L.Ed.2d 349 (1986). However, it is a "wide range of reasonable professional assistance" that is constitutionally acceptable. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984) (emphasis added). Within that wide range of reasonable professional assistance, there is room for different strategies, no one of which is "correct" to the exclusion of all others. As we have recently observed, "The Supreme Court has recognized that because representation is an art and not a science, '[e]ven the best criminal defense attorneys would not defend a particular client in the same way.' " Waters v. Thomas, 46 F.3d 1506, 1522 (11th Cir.1995) (en banc) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065); see also White v. Singletary, 972 F.2d 1218, 1220 (11th Cir.1992) (stating that the test is not what the best lawyers would have done or what most good lawyers would have done, but only whether some reasonable attorney could have acted in the circumstances as this attorney did). Whether to pursue a residual doubt strategy or a strategy seeking mercy notwithstanding guilt is a strategic question left to counsel. We will not second-guess counsel's answer.

The record in this case establishes that counsel's decision not to belabor the guilt issue at the sentence stage was entirely reasonable. At the trial level, Felker was represented by three retained attorneys who divided among themselves responsibility for various tasks. The attorney primarily responsible for formulating and carrying out defense strategy at the sentence stage was J. Robert Daniel, an experienced attorney who had represented capital defendants before.

After conducting an evidentiary hearing on this claim in the state habeas proceeding, the trial court found that prior to trial Daniel interviewed numerous witnesses in preparation for the sentence stage. Based upon his past experience, Daniel believed that "after the jury rejects a claim of innocence there is no wisdom in going back to the same jury and asking for a life sentence while still telling the jury they made an erroneous decision." He knew of another trial in which an attorney had attempted to litigate the guilt issue again at the sentence stage and had been unsuccessful. Rather than follow that strategy, which he believed to be unwise, Daniel decided to present mitigating evidence and argue that the jury should spare Felker's life because of his potential in the future, instead of arguing that the jury had made a mistake in finding him guilty of the crime.

In his opening statement at the sentence stage, Daniel told the jury that it would be hearing from:

family members, relatives, friends of the family, to give you some kind of idea of who Wayne Felker is. You know Wayne Felker only as Wayne the convicted murder[er], rapist and sodomist at this point. You don't know anything about his upbringing, how he got to where he is today.

We want you to meet Wayne Felker through his parents, through his friends, through his relatives, and to give you some kind of idea of their feelings, and they're going to ask you, quite frankly I expect, to impose a life sentence in the case, and they're going to also give you their reasons for that.

Daniel presented as mitigating circumstance witnesses: Felker's mother, his father, two aunts, one of his ex-wives, two family friends, and his former Sunday School teacher. In addition to the testimony of these witnesses who knew Felker, Daniel presented the testimony of several academics and religious scholars opposed to the death penalty, including two professors in the Christianity department at Mercer, a professor of political science at the University of Georgia, and a minister with the Southern Prison Ministry, who works with death row inmates and their families.

There is nothing unreasonable about the sentence stage strategy that Daniel chose or about the way he carried it out. Felker also argues that the strategy Daniel pursued was against his wishes. The state trial court found as a fact to the contrary. Even if we were to ignore that factfinding, and even if we were to assume for present purposes that Felker had a right to determine the strategy that would be pursued, there is no possibility that a residual doubt strategy would have produced a different result in this case.

IV. CONCLUSION

The district court's denial of the petition for habeas corpus relief is AFFIRMED.

*****

1 A police report indicated that on December 11, 1981, Katherine Gray of Thaxton's Western Center had told two officers that at approximately 3:00 or 4:00 p.m. on Wednesday, November 25, 1981, Joy Ludlam had come into the store and purchased a pair of boots. Ms. Gray located a receipt reflecting the sale of boots on that date, but the receipt did not contain Joy Ludlam's name or anything else identifying the purchase as hers. When placed under hypnosis on December 14, 1981, Ms. Gray said that the time Joy Ludlam came into the store was 2:30 p.m. on the Wednesday before Thanksgiving, which would have been November 25. Ms. Gray did not testify at trial. However, she did testify by deposition in the state post-conviction proceeding that she could not remember what date Joy Ludlam had been in the store

It is undisputed that neither the contents of the December 11 police report nor the statements Ms. Gray made during the December 14 hypnosis session was disclosed to defense counsel. But it is also undisputed that Ms. Gray's name was provided by the prosecution to defense counsel, who interviewed her twice before trial. Defense counsel testified in the state post-conviction proceeding that Ms. Gray was not forthcoming when he interviewed her. She testified she had answered truthfully everything he asked her.

2 The December 11, 1981, police report indicated that Ms. Gray identified Felker as the man who had accompanied Joy Ludlam to the store. In her hypnotized statement, Ms. Gray described how Felker had prevented Ludlam from paying with a check. Her state post-conviction proceeding deposition testimony included identification of Felker as the man who had been with Ludlam and had insisted that Ludlam pay with cash instead of with a check

3 We have carefully considered Felker's argument that there would not have been enough time for him to have killed Joy Ludlam between the time she was seen with him at the western wear store on the afternoon of November 25, 1981, and the time police surveillance of Felker began later that evening. The record indicates he would have had time. At oral argument, Felker's counsel argued that the evidence in question established that Felker and Ludlam had left the store at approximately 3:00 p.m. on November 25. Yet the record also establishes that police contact with, and surveillance of, Felker did not begin until three or four hours later. Contrary to Felker's assertion, the testimony of the State's forensic expert, when considered in its entirety, does not establish that the killer had begun abusing Ludlam hours before she was killed. Accordingly, even if we assume, as Felker now contends, that Ludlam and he left the western wear store at 3:00 p.m. on November 25, he still would have had time to abuse and kill Ludlam and dispose of her body before the police officers arrived at his house three to four hours later

 
 

101 F.3d 657

Ellis Wayne Felker, Petitioner,
v.
Tony Turpin, Warden, Georgia Diagnostic and Classification Center, Respondent.

No. 96-9346

Federal Circuits, 11th Cir.

November 14, 1996

On Motion for Certificate of Probable Cause, or in the Alternative, Certificate of Appealability.

Before BIRCH, BLACK and CARNES, Circuit Judges.

PER CURIAM.

On May 2, 1996, we denied Ellis Wayne Felker's first application filed pursuant to 28 U.S.C. 2244(b)(3)(A), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, for an order permitting him to file in the district court a second petition for federal habeas relief under 28 U.S.C. 2254. Felker v. Turpin, 83 F.3d 1303 (11th Cir.), cert. dismissed, --- U.S. ----, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). He is now back before us with an application requesting a certificate of probable cause to appeal, or a certificate of appealability, permitting an appeal from the district court's denial of his Fed.R.Civ.P. 60(b) motion for relief from the January 26, 1994 judgment of that court denying his 28 U.S.C. 2254 petition. For the reasons that follow, we deny that application.

I.

The procedural history, evidence, and facts in this case are set out: (1) in the Georgia Supreme Court's decision affirming Felker's convictions and sentence on direct appeal, Felker v. State, 252 Ga. 351, 314 S.E.2d 621, cert. denied, 469 U.S. 873 , 105 S.Ct. 229, 83 L.Ed.2d 158 (1984); (2) in our opinion affirming the denial of Felker's first federal habeas petition, Felker v. Thomas, 52 F.3d 907 (11th Cir.), extended on denial of rehearing, 62 F.3d 342 (11th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 956, 133 L.Ed.2d 879 (1996); (3) in our opinion denying Felker's first application to file a second habeas petition, Felker v. Turpin, 83 F.3d 1303 (11th Cir.1996); and (4) in the Supreme Court's opinion dismissing Felker's petition seeking certiorari review of our decision, and denying his petition for an original writ of habeas corpus, Felker v. Turpin, --- U.S. ----, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). Therefore, we will limit our discussion of the procedural history to the events that have transpired since the Supreme Court's decision on June 28, 1996.

On August 30, 1996, the Superior Court of Houston County, Georgia, set September 10 through September 17, 1996, as the period during which Felker's execution would be carried out. The State scheduled that execution for 2:00 p.m. ET, September 10, 1996. On September 5, 1996, Felker filed a petition for writ of habeas corpus in the Superior Court of Butts County, Georgia. (It was his third state habeas petition.) The Superior Court denied that petition on September 6, 1996. Three days later, on September 9, 1996, the Georgia Supreme Court denied Felker's application for a certificate of probable cause to appeal that denial and denied his motion for a stay of execution. On September 10, Felker applied to the United States Supreme Court for a stay. The Supreme Court denied that application. However, Felker was not executed on September 10, because he obtained a stay from the Houston County Superior Court in a separate proceeding brought under the Georgia Open Records Act, Ga.Code Ann. 50-18-70 to -76 (1994).

On May 2, 1996, prior to filing his third state habeas petition, Felker had filed an Open Records Act lawsuit in the Superior Court of Houston County. In that lawsuit, Felker sought production of documents related to Felker's conviction. On September 2, 1996, Felker filed a mandamus petition in the Georgia Supreme Court, seeking to compel the Houston County Superior Court to rule on his Open Records Act lawsuit. On September 6, 1996, the Georgia Supreme Court entered an order requiring the Houston County Superior Court to consider and rule upon Felker's lawsuit within 48 hours.

On September 8, 1996, the Houston County Superior Court held a hearing on Felker's Open Records Act lawsuit. At that hearing, a box of documents was turned over to Felker's counsel, and the hearing was continued to the following day. On September 9, 1996, the Superior Court stayed Felker's execution until 2:00 p.m. ET, September 12, 1996. On September 10, the Superior Court extended the stay of execution until 2:00 p.m. ET, September 14, 1996. On September 12, 1996, the Superior Court, having concluded its Open Records Act hearing, denied Felker's motion for summary judgment on his Open Records Act claim, denied Felker's motion to withdraw the pending execution warrant, and denied his motion for an additional stay of execution. Thereafter, Felker's execution was rescheduled for 3:00 p.m. ET, September 14, 1996.

On September 12, 1996, Felker appealed to the Supreme Court of Georgia, seeking a stay of execution, review of the Superior Court's Open Records Act ruling, and reconsideration of the Georgia Supreme Court's prior denial of a certificate of probable cause to appeal the denial of Felker's third state habeas petition. On the same day, the Georgia Supreme Court stayed Felker's execution for forty days and directed the Houston County Superior Court to make findings of fact and conclusions of law regarding Felker's Open Records Act lawsuit. During the forty-day stay of execution, the Georgia Supreme Court denied Felker's motion for reconsideration.

On September 23, 1996, the Houston County Superior Court entered written findings of fact and conclusions of law, concluding that the district attorney had complied with Felker's Open Records Act request. Felker again appealed to the Georgia Supreme Court. While that appeal was pending, Felker's execution was rescheduled for 7:00 p.m. ET, November 14, 1996. On October 28, 1996, Felker filed a motion with the Georgia Supreme Court for a stay of execution. On October 30, 1996, the Georgia Supreme Court affirmed the judgment of the Houston County Superior Court with respect to Felker's Open Records Act lawsuit, and denied Felker's motion for a stay.

On November 8, 1996, Felker, acting jointly with another Georgia death row inmate, Larry Lonchar, filed a motion for a preliminary injunction and complaint for declaratory and injunctive relief pursuant to 42 U.S.C. 1983 in the United States District Court for the Middle District of Georgia. The basis for that 1983 action was a contention that death by electrocution is a cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution. On November 12, 1996, the district court denied Felker's motion for a preliminary injunction and denied his request for declaratory and injunctive relief. He appealed, and on November 13, 1996, another panel of this Court affirmed denial of that relief. Felker v. Turpin, 101 F.3d 95 (11th Cir.1996). Thereafter, Felker filed in the United States Supreme Court a petition for a writ of certiorari and a motion for stay of execution. On November 14, 1996, the Supreme Court denied both.

On November 11, 1996, Felker filed his fourth state habeas petition, together with a motion for a stay of execution, in the Butts County Superior Court. On the following day, that court dismissed Felker's petition and denied his motion for a stay of execution. On November 12, 1996, Felker applied to the Georgia Supreme Court for a stay of execution and for a certificate of probable cause to appeal the denial of his fourth habeas petition. On November 14, 1996, the Georgia Supreme Court denied all requested relief.

On the afternoon of November 14, 1996, Felker filed in the United States District Court for the Middle District of Georgia a motion under Federal Rule of Civil Procedure 60(b)(1), (2), (3), and (6), for relief from the January 26, 1994 judgment of that court denying his 28 U.S.C. 2254 petition. He also filed a motion for a stay of execution. The district court denied Felker's Rule 60(b) motion on two grounds. First, it held that the motion was untimely under the express provisions of the rule itself and applicable case law. Second, the district court held that even if the Rule 60(b) motion had been timely filed under that rule itself, the court would still have denied it. The court explained that the motion for Rule 60(b) relief was tantamount to a second or successive petition, and Felker had failed to obtain from this Court an authorization to file it, as required by 28 U.S.C. 2244(b)(3)(A), as amended. Felker applied to the district court for a certificate permitting him to appeal, and the district court denied that application, also.

Felker filed a notice of appeal, and he has now filed with us an application for a certificate of probable cause, or in the alternative, for a certificate of appealability.1

II.

Felker's Rule 60(b) motion for relief from judgment was properly denied by the district court, because it was due to be treated as a second or successive habeas corpus application. 28 U.S.C. 2244(b)(3)(A), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, requires that an applicant move in the appropriate court of appeals for an order authorizing the district court to consider such an application. Felker failed to do so. Instead, he contends that his Rule 60(b) motion should not be treated as a successive petition. We disagree.

Although Felker argues that his Rule 60(b) motion "does not implicate any considerations of 'successive' petitions," he acknowledges decisions from other circuits "that hold to the contrary, construing Rule 60(b) motions as essentially identical to successive petitions." See Memorandum of Law in Support of Petitioner's Motion for Relief from Judgment at 2 n. 2 (M.D.Ga. Nov. 14, 1996). Felker cites as examples of decisions contrary to his position Clark v. Lewis, 1 F.3d 814, 825-26 (9th Cir.1993) ("authority suggests, however, that where a habeas petitioner tries to raise new facts ... not included in prior proceedings in a Rule 60(b) motion, such motion should be treated as the equivalent of a second petition for writ of habeas corpus"); Blair v. Armontrout, 976 F.2d 1130, 1134 (8th Cir.1992), cert. denied, 508 U.S. 916 , 113 S.Ct. 2357, 124 L.Ed.2d 265 (1993) ("a motion to remand was the functional equivalent of a second or successive habeas corpus petition, and that if such petition would be dismissed as abusive of the writ, the motion to remand should also be denied"); Kyles v. Whitley, 5 F.3d 806, 808 (5th Cir.1993) (citing an earlier order in that case holding that petitioner's Rule 60(b) motion was due to be denied on the ground that "a petitioner may not use a Rule 60(b) motion to raise constitutional claims that were not included in the original petition"), rev'd on other grounds, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Then, citing no court decision in support of his position, Felker dismisses those contrary decisions as representing a "questionable practice."

What Felker fails to come to grips with is that the established law of this circuit, like the decisions he acknowledges from other circuits, forecloses his position that Rule 60(b) motions are not constrained by successive petition rules. See, e.g., Scott v. Singletary, 38 F.3d 1547, 1553 (11th Cir.1994) ("The district court chose to construe the [Rule 60(b) ] motion as a subsequent petition for habeas corpus and we will review the district court's denial of relief in the same light."); Lindsey v. Thigpen, 875 F.2d 1509, 1515 (11th Cir.1989) (stating that even if the death row inmate's claim is meritorious "the proper posture in which to raise that claim is a successive petition for habeas corpus--not in a motion pursuant to Fed.R.Civ.P. 60(b)"); Booker v. Dugger, 825 F.2d 281, 284-85 n. 7 (11th Cir.1987) ("We also note that the requirements of federal habeas corpus, including the abuse of the writ standard applied to successive writs, Rule 9(b), 28 U.S.C. 2254, may properly be superimposed on this independent action [filed under Rule 60(b) ]."). Rule 60(b) cannot be used to circumvent restraints on successive habeas petitions. That was true before the Antiterrorism and Effective Death Penalty Act was enacted, and it is equally true, if not more so, under the new act. See Felker, --- U.S. at ----, 116 S.Ct. at 2340 ("The Act also codifies some of the pre-existing limits on successive petitions, and further restricts the availability of relief to habeas petitioners.").

Felker also argues that his Rule 60(b) motion does not bring into play the Antiterrorism and Effective Death Penalty Act amendments to the habeas statute, because the underlying ruling that he seeks to amend, the denial of his first habeas petition, became final with the denial of rehearing on certiorari on April 15, 1996. That was nine days before the new act went into effect on April 24, 1996. However, in Felker, --- U.S. ----, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996), the Supreme Court applied the successive petition restrictions of the new act, which are to be codified as amendments to 2244(b), to Felker's attempt to file a second habeas proceeding after the effective date of the act, even though his first habeas petition had been filed and decided before. Likewise, we hold that the successive petition restrictions contained in the amendments to 2244(b) apply to Rule 60(b) proceedings, even where those proceedings seek to amend a judgment that became final before the effective date of the amendments. Because Felker's Rule 60(b) proceeding was due to be treated as a second or successive habeas corpus application, and because he failed to move in this Court for an order authorizing the district court to consider that application, as he was required to do by 2244(b)(3)(A), the district court's denial of his motion was entirely proper, and he has failed to make a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. 2253(c)(2), as amended, before a certificate of appealability may be issued.

III.

Alternatively, even if we treat Felker's application for a certificate of appealability as a request that we authorize him to file a second or successive habeas application, such a request is due to be denied, because the claims do not fall within the 2244(b)(2)(A) or (B) exception.

A.

All of the claims that Felker raises are Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), claims, and none of them "relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable," as required by 2244(b)(2)(A). Accordingly, that first exception to the bar against second petitions raising new claims is inapplicable.

B.

The second exception is also inapplicable, because this is not a case where "the factual predicate for the claim could not have been discovered previously through the exercise of due diligence," as required by 2244(b)(2)(B)(i). It is undisputed that Felker discovered what he asserts as the factual predicate for each of his claims as a result of his filing a Georgia Open Records Act lawsuit in May of this year. In a November 12, 1996 order, the Superior Court of Butts County, Georgia denied Felker's fourth state habeas petition, which raised claims identical to those in this proceeding. In doing so, the court found that "[a]ll of the claims in the present petition are based on information which counsel obtained pursuant to the Open Records Act proceedings," and that "[i]t is clear that counsel for Petitioner could have sought this information prior to the first state habeas petition being filed in 1984," because nothing prevented him from filing the Open Records Act lawsuit twelve years ago. Felker v. Turpin, No. 96-V-655, at 2 (Sup.Ct. Butts County Nov. 12, 1996) (order dismissing petition and denying stay of execution).

Likewise, it follows that there is no reason that Felker could not have filed the same Open Records Act lawsuit before he filed his first federal habeas petition three years ago. Despite having an opportunity to do so in both his state and federal filings, Felker has not suggested any reason why such a lawsuit would not have been just as available before he filed his first habeas petition as it was after he had unsuccessfully litigated that petition.

C.

Because Felker has failed to satisfy the first prong of 2244(b)(2)(B), we need not consider the second prong of that provision. However, for the sake of completeness, we point out that even if Felker could satisfy the subdivision (i) provision, he still could not satisfy the subdivision (ii) provision, which requires that "the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense," 2244(b)(2)(B)(ii).

The Brady claims Felker seeks to get over the second petition bar in this proceeding involve three pieces of previously undisclosed evidence turned up by his Open Records Act lawsuit. The first is a partial transcript of an interview of Katherine Gray by law enforcement officers. Some background facts about Ms. Gray and a discussion of Felker's first habeas petition Brady claim involving her are contained in Felker v. Thomas, 52 F.3d at 909-11, as extended, 62 F.3d at 343. Ms. Gray did not testify at trial, and we have previously held that if she had, she would have done Felker at least as much harm as good. The reason is that she would have placed Felker with the victim, Joy Ludlam, even closer to the date of her death and in direct contradiction to Felker's own sworn testimony. Id. Ms. Gray was first interviewed by law enforcement officers on December 11, 1981, and at that time she picked out of a photo spread a photograph of the man she said she had seen with the victim, Joy Ludlam. The photograph she picked out was of Felker, or at least that is what law enforcement officers told her shortly after that first photo spread, which came just days after the events she had witnessed. See 52 F.3d at 910 n. 2; Deposition of Katherine Gray 6, 9, 30-31, 33-34 (February 13, 1985). The partial transcript in question "if proven," see 2244(b)(2)(B)(ii), would merely establish what happened when law enforcement officers re-interviewed Ms. Gray sometime after September 15, 1982.2 While they were questioning her, Ms. Gray tried to get the officers to tell her if the picture she had picked out of the photo spread as the man who had been with the victim shortly before the crime was Felker. The officers did not tell her. The relevant part of the exchange is as follows:

Q: This guy that was with 'em, would you say that he's my height or taller than I am

A: I think he was a little taller than you, he had on boots

Q: A little bit taller, I'd like for you to look at these photographs and see if you see anybody that looks like him

A: This looks something like him ... but his beard, this was cut down, you know, like he had come from a barber shop

Q: Trimmed down? okay

A: I picked the wrong guy, didn't I

Q: Well, we don't know. How long do you reckon they were in the store?

A: (inaudible) less than 45 minutes, not more than 45.

Partially Transcribed Interview with Katherine Gray 4 (undated). Felker extrapolates from that one question, "I picked the wrong guy, didn't I" the conclusion that Ms. Gray actually did identify someone other than Felker as the man she had seen with the victim. That conclusion simply does not follow. The law enforcement officer questioning her did not acknowledge that she had picked out anyone other than Felker at that second photo spread, and there is no evidence that she did.

Moreover, it must be remembered that because Ms. Gray did not testify as a witness for the prosecution at the trial, we are not talking about impeachment. To the extent that the partial transcript might cast any doubt upon Ms. Gray's credibility as a witness, it is irrelevant, because she was not a witness. Instead, Felker's Brady claim rests upon the theory that had he been aware of the partial transcript at the time of trial, he could have called Ms. Gray to testify that she had seen the victim in the company of a man other than Felker shortly before the victim was killed. The problem with that, of course, is that Felker has not established that she would have so testified. Even if she had, her testimony would have been thoroughly impeached and discredited by the fact that just days after the events in question, she had selected out of a photo spread a picture of Felker as the man whom she had seen with the victim. The partial transcript, if authenticated and proven to be an accurate recounting of an interview and second photo lineup session that took place at least nine months later, when "viewed in light of the evidence as a whole, would [not] be sufficient to establish by a clear and convincing evidence that ... no reasonable factfinder would have found the applicant guilty of the underlying offense," 2244(b)(2)(B)(ii).

The second piece of new evidence that Felker discovered as a result of his Open Records Act lawsuit is a transcript of a January 22, 1982 jailhouse interview of Felker by an officer named Enckler. This transcript is relevant, Felker says, not to anything Officer Enckler testified to at trial, but instead to the testimony of another witness, Officer Upshaw. At trial, Upshaw testified that when he had questioned Felker on the night of November 25, 1981, Felker had told him that on November 24, 1981, the victim had called in sick to her work place from Felker's house.

At trial, the defense tried to get Officer Upshaw's testimony about that admission by Felker excluded as the unreliable product of an hypnosis session that Upshaw had undergone on January 21, 1982. The trial court overruled defense objections after finding that Upshaw had an independent recollection of Felker having made that statement to him. So what does all of this have to do with the previously undisclosed transcript of Officer Enckler's January 22, 1982 interview of Felker? Everything, argues Felker, because the transcript shows that Enckler questioned Felker about making that statement to Upshaw. That otherwise unremarkable fact is made remarkable, Felker contends, because it happened just one day after Upshaw's hypnosis session. From that chronology, Felker leaps to the conclusion that Officer Upshaw must not have remembered Felker making the statement to him until Upshaw was hypnotized. Therefore, Upshaw's testimony about the statement was a product of hypnosis and should have been excluded.

In rejecting this specific Brady claim, the Superior Court of Butts County pointed out that, because Felker was the one being interviewed by Officer Enckler, he can hardly claim that the questions he was asked were suppressed from him by the state. At all relevant times, Felker knew what Enckler had asked him and when. Felker v. Turpin, No. 96-V-655, at 3 (Sup.Ct. Butts County Nov. 12, 1996).

Putting that problem with Felker's theory to the side, it is readily apparent that there are two other glaring problems with it. First, his whole theory is based on the premise that because Officer Enckler asked Felker questions about his statement to Officer Upshaw just one day after Upshaw had been hypnotized, that proves Upshaw must not have remembered Felker making the statement until Upshaw underwent hypnosis. That conclusion simply does not follow. Another critical problem with Felker's theory about this evidence is that even if Upshaw's testimony about the statement had been excluded, the evidence against Felker still would have been more than sufficient to convict. Certainly, we cannot say of the transcript of Officer Enckler's interview of Felker that, "if proven and viewed in light of the evidence as a whole, [it] would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense," 2244(b)(2)(B)(ii).

The third piece of evidence turned up by Felker's Open Records Act lawsuit is a purported "confession" by another prison inmate, whom Felker says has a prior conviction for rape. This document, which is dated January 22, 1988, or five years after the trial, purports to be handwritten "by John Harrison for Chaplain Elliott Lyons" and bears the signature of Daniel Thomas Sylvester. The document says that Joy Ludlam, who is described as having worked as either a security guard or clerk at the Warner Robbins Holiday Inn, asked "Danny Sylvester" to tie her to the bed and kiss her, but that he got carried away and raped her. After that, according to the "confession," Ms. Ludlam said: "It's knife time," and that she was a "sacrificial lamb of God." So, according to the "confession," Sylvester then choked her and after she passed out, he cut her with a knife and used the knife to mutilate her in the anal and vaginal area. For reasons the document does not reveal, all of this is said to have taken place at Felker's house, or at his parents' house. No explanation is given about how Sylvester gained access to either of those two places.

This so-called "confession" is patently unreliable on its face. Ms. Ludlam worked as a cocktail waitress, not as a security guard or clerk; she was strangled to death, not stabbed; and her body was not sexually mutilated with a knife. Furthermore, there is no indication that she would have asked anyone to tie her up and kill her, but there is undisputed evidence that Felker had a proclivity for engaging in bondage and sadistic sexual practices. Felker v. Thomas, 52 F.3d 907, 908 (11th Cir.), extended on denial of rehearing, 62 F.3d 342 (11th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 956, 133 L.Ed.2d 879 (1996); Felker v. State, 252 Ga. 351, 364-65, 314 S.E.2d 621, 635-36, cert. denied, 469 U.S. 873 , 105 S.Ct. 229, 83 L.Ed.2d 158 (1984).

Section 2244(b)(2)(B)(ii) requires as an initial matter that the facts asserted state a claim of constitutional error. Because the alleged confession in this case did not exist until five years after the trial, the state cannot be charged with a Brady violation for failing to disclose it at trial. At most, a post-trial confession from another person would be relevant to a Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), claim of actual innocence, and Felker has not attempted to make a Herrera claim in this case. Therefore, Felker has failed to satisfy 2244(b)(2)(B)(ii) for that reason. In addition, even if there were a constitutional violation which could be used as a vehicle for gaining consideration of the purported confession document, there is simply no way that that document, with all of its discrepancies, would have prevented any reasonable factfinder from finding Felker guilty of the crimes for which he was convicted.

We have also considered Felker's three Brady claims jointly, as well as separately, and we have considered the new evidence those claims rely upon along with all of the new evidence his earlier Brady claims relied upon. After doing so, we are convinced that, "the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would [not] be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense," 2244(b)(2)(B)(ii). Therefore, even if Felker could not have discovered the factual predicates for the claims "previously through the exercise of due diligence," 2244(b)(2)(B)(i), he would still not be entitled to authorization to file a second habeas petition containing the claims.

IV.

Felker's application for a certificate of appealability, taken as such, and also construed as an application, pursuant to 28 U.S.C. 2244(b)(3), as amended, for an order authorizing the district court to consider his Fed.R.Civ.P. 60(b) motion as a second or successive petition for habeas corpus relief, is denied.

*****

1 Although Felker's actual application to this Court came only at the eleventh hour before his execution, the prior pleadings, motions, and briefs of the parties in other state and federal courts, and the opinions and orders of those courts, were lodged with this Court as they were generated. Because of that, we have been able to consider the contentions and arguments of the parties before Felker's application was actually formally filed with this Court

2 The partial transcript is undated. However, in it the officers refer to Ms. Gray's having talked to some officers "last year shortly after this case" arose, which would have been in November or December of 1981. Ms. Gray had in fact talked to officers and viewed a photo spread on December 11, 1981. See Felker v. Thomas, 52 F.3d at 910 n. 2. For that to be "last year" the partially transcribed interview would have had to have taken place sometime in 1982. Moreover, the transcript discusses Ms. Gray's having talked with Fred Hasty, who was Felker's trial counsel. We know from Mr. Hasty's testimony in the state habeas proceeding that he first talked with Ms. Gray on September 15, 1982. Therefore, the partial transcript is of an interview that took place sometime after September 15, 1982. It is also likely that the partially transcribed interview occurred before the trial, which began in January of 1983.

 
 


Ellis Wayne Felker

 

 

 
 
 
 
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