David Aaron Perkins, 36, was
sentenced to death in June in Clayton County for the Aug. 13, 1995,
slaying of Herbert Ryals III, a 38-year-old man who lived in the same
Prosecutors believe Mr. Perkins, who had a long
history of criminal convictions for violence and theft, lured Mr. Ryals
to his home to rob him. Mr. Ryals' body was found in the bathroom where
he had fledtrying to defend himself from more than 11 stab wounds.
During his trial when a Virginia police officer testified how Mr.
Perkins had thrown a fellow officer through a window, Mr. Perkins
taunted the courtroom by making boxing gestures.
(269 Ga. 791)
(505 SE2d 16)
FLETCHER, Presiding Justice.
Murder. Clayton Superior Court. Before Judge Ison.
A jury convicted David Perkins of the murder of
Herbert D. Ryals, III, and he was sentenced to death.
1 The jury found as aggravating
circumstances that the murder was committed while the defendant was
engaged in the commission of an aggravated battery and was
outrageously and wantonly vile, horrible, and inhuman in that it
involved depravity of mind and an aggravated battery to the victim.
Perkins contends that the Clayton County district attorney engages
in gender bias by seeking the death penalty exclusively against men.
Because Perkins' statistical evidence fails to show selective
prosecution in his case, we affirm.
The evidence shows that David Perkins had an
argument with his wife, Gail, on August 12, 1995. She left their
apartment to spend the night with her mother-in-law. Angry, Perkins
remarked to a friend about the full moon and said "something's going
to go down tonight."
Perkins bought a bottle of whiskey and, around
midnight, invited a neighbor, Herbert Ryals, to his apartment to
drink and play guitars. Perkins and Ryals had met only once
previously. Perkins is 6' 2" and weighed 220 pounds; Ryals was 5' 9"
and weighed 170 pounds.
At 5:00 a.m., Perkins called his wife and asked
her to bring some cigarettes to their department. Perkins met Gail
outside the apartment and told her not to scream or "freak out."
Once inside, Gail observed numerous bloodstains in the apartment and
the victim, with visible stab wounds, lying motionless on the
bathroom floor. Perkins pulled a knife from his pocket and told her
that he would kill her if she tried to call the police. Gail left
the apartment after promising Perkins that she was going to buy
Instead, she called the police and reported a
stabbing. Gail described the scene at her apartment and her
husband's violent behavior to the responding officers and told them
that they would need "more units." After more officers arrived, the
police followed Gail to her apartment, where she gave them a key.
The officers entered the apartment and discovered the victim's body
in the same bloody condition as described by Gail Perkins.
Perkins was arrested two hours later when he
returned to the apartment. While he was being handcuffed, he told
the police that he had been watching them for over an hour. No one
observed any marks, bruises, or cuts on the defendant, and Perkins
did not request any medical treatment. During booking, Perkins
mumbled, "[the victim] hit me with his guitar, I hit back, so I hit
him back, I think he's dead, I know he's dead." Perkins then became
violent toward the booking officer and had to be further restrained.
A neighbor testified that Perkins had knocked on her door before his
arrest, asked for a cigarette, and said, "I've just killed someone
and I'm going to jail for the last time."
The state presented an expert on blood spatter
who testified that the blood droplets and smears indicated that the
victim had been initially assaulted in the living room and had fled,
wounded and still under attack, through the kitchen and bedroom and
into the bathroom. A broken liquor bottle in the bedroom indicated
that the victim had been struck there with the bottle, and damage to
the bathroom door showed that the victim had tried to barricade
himself inside the bathroom but the door had been forced open from
the outside. The victim was found lying on his side in the bathroom,
curled into a fetal position.
The medical examiner testified that there were
eleven stab or cut wounds on the victim. A stab wound in the center
of the chest had been delivered with such force that the knife had
damaged the heart. There were five stab wounds to the back,
including three that had pierced the victim's lungs. Two ribs were
fractured by the force used to inflict these wounds. There were also
wounds on the victim's arms, shoulder, finger, and nose. Based on
the depth of the stab wounds, the doctor estimated that the knife
used to inflict the wounds had a blade length of five inches.
The doctor further noted a serious blunt force
injury to the victim's left eye; the blow was so severe that the
skull had fractured and skull fragments were forced into the
victim's brain. This wound was consistent with being struck by a
liquor bottle. The victim also had a series of parallel bruises on
his chest that matched the frets on a guitar found in the living
room. Although several of the stab wounds could have been fatal, the
doctor testified that none of the wounds had been immediately fatal
and that the victim could have lived for ten minutes after being
injured. The blood spatter throughout the apartment and on the
victim's clothing showed that the victim had been conscious and
either standing or sitting when the wounds had been inflicted.
To show motive, the state presented evidence that
the victim's wallet was missing and that Perkins had spent the last
of his money to purchase liquor the day before the murder. A former
inmate also testified that Perkins had boasted in jail about hiding
incriminating evidence, including the victim's wallet and
identification. Perkins claimed self-defense. He testified that the
victim suddenly and without reason hit him with a guitar, so he drew
the knife he always wore on his belt and "just started sticking."
The knife was never recovered; Perkins claimed that he lost it that
1. After reviewing the evidence in the light most
favorable to the jury's determination of guilt, we conclude that a
rational trier of fact could have found Perkins guilty of the crimes
charged beyond a reasonable doubt.
2. Perkins filed a plea in bar to prevent the
Clayton County district attorney's office from seeking the death
penalty in his case because of alleged gender discrimination.
Perkins claims that the Clayton district attorney only seeks the
death penalty against men and that this alleged gender bias violates
the state and federal constitutions. Perkins submitted evidence
showing that the Clayton County grand jury had indicted 73 men and
11 women for murder and the district attorney had sought the death
penalty against nine men and no women from 1985 until 1995, when he
was charged with murder. Perkins also introduced the records of the
female murder defendants to show that statutory aggravating
circumstances existed in those cases to warrant the seeking of the
Perkins has the burden on an equal protection
claim to prove the existence of purposeful discrimination and its
discriminatory effect on him. In order to prevail, Perkins must
prove "that the decisionmakers in his case acted with discriminatory
purpose." We conclude that Perkins' meager statistics are
insufficient to show selective prosecution because they do not
provide any evidence specific to his own case that support an
inference that gender considerations played a part in the district
attorney's decision to seek the death penalty against him.
Further, although Perkins requests that we create
a Batson -like rule that would require the state to explain its
reasons for seeking the death penalty, policy considerations behind
a prosecutor's discretion argue against requiring district attorneys
to defend their decisions to seek a death sentence. The U. S.
Constitution and Georgia law authorize the death penalty for Perkins'
crimes and Perkins has failed to show that the state acted in an
unconstitutional manner with respect to his case. The trial court
did not err by denying Perkins' plea in bar.
3. Perkins challenges the issuance of a search
warrant for his apartment by claiming that the issuing magistrate
had insufficient information to determine probable cause. Before
obtaining the search warrant, the police had entered the apartment
at 6:00 a.m., secured the crime scene, and seized evidence that was
in plain view. The entry without a warrant and seizure of items in
plain view were permissible under either the consent or exigent
circumstances exceptions since the defendant's wife had reported a
stabbing, asked the police to enter the apartment, and given them a
key to the front door. The search warrant was issued at
approximately 1:00 p.m. on the same day to enable the officers to
conduct a more detailed search of the apartment. The supporting
affidavit for the search warrant recited that a dead white male with
multiple stab wounds had been found in the defendant's apartment and
that the defendant had been charged with murder. Based on these
facts, the affidavit was clearly sufficient to support the
magistrate's finding of probable cause.
4. Perkins claims that the trial court erred by
allowing hearsay statements by his wife to be admitted under the
necessity exception to the hearsay rule. On the day of the murder,
Gail Perkins described the threatening behavior of her husband and
the bloody condition of the apartment to Riverdale Police Officer
Johanne Welch, who was the first officer to respond to the 911 call.
One hour later, Gail Perkins described to Riverdale Police Chief Ron
Bedingfield in greater detail the crime scene, her husband's
demeanor, his brandishing of the knife, and his refusal to allow her
to get help for the victim. At trial, however, Gail Perkins
exercised the marital privilege and refused to testify. The trial
court ruled that Gail Perkins' statements to the police were
admissible under the necessity exception to the hearsay rule, and
Welch and Bedingfield subsequently testified about Gail's statements
to them on the day of the murder.
To qualify as a necessity exception to the
hearsay rule, there must be a necessity for the exception and a
circumstantial guaranty of the testimony's trustworthiness. The
state demonstrated necessity by showing that Gail Perkins was
unavailable as a witness and the only eyewitness to key evidence,
such as Perkins' demeanor after the murder and his display of the
probable murder weapon, which was never recovered. Other factors
support the guaranty of trustworthiness. Gail Perkins made the
statements to the two law enforcement officers within two hours of
her observations; physical evidence and other witnesses corroborated
her description of the crime scene; and she has never attempted to
recant or disavow her statements. Because there is both a necessity
for the statements and a guaranty of their trustworthiness, Gail
Perkins' hearsay statements were properly admitted.
5. The trial court's instruction to the jury on
the definition of aggravated battery was not error. The trial court
was not required to define for the jury the meaning of "seriously"
with regard to the phrase "seriously disfiguring the person's body
or a body part," nor did the trial court err by instructing the jury
that the "disfigurement may be temporary."
6. Perkins argues that the facts are insufficient
to support a finding of aggravated battery and depravity of mind
under the (b) (2) and (b) (7) aggravating circumstances. The
standard on the sufficiency of the evidence to support the finding
of a statutory aggravating circumstance is the same as the standard
for the sufficiency of the evidence to support a conviction under
Jackson v. Virginia. Viewed in the light most favorable to the
prosecution, the evidence was sufficient to authorize a rational
trier of fact to find that Perkins invited the victim to his
apartment, attacked him without provocation, chased him through the
apartment, and continued inflicting wounds until Ryals died. The
victim suffered numerous, severe injuries before death, including
multiple stab wounds that pierced the heart and lungs, a broken
sternum, fractured ribs, and a fractured skull. The victim was
conscious when receiving these wounds and may have lived as long as
ten minutes after they were inflicted. The evidence was sufficient
to support a finding of aggravated battery and depravity of mind
beyond a reasonable doubt.
7. Perkins' death sentence was not imposed as the
result of impermissible passion, prejudice, or other arbitrary
factor. The death sentence is also not excessive or disproportionate
to the penalty imposed in similar cases, considering both the crime
and the defendant. The similar cases listed in the appendix support
the imposition of the death penalty in this case, in that all
involve a deliberate killing with an aggravated battery to the
victim before death or the depravity of mind of the defendant.
8. This Court has previously held that execution
by electrocution is not unconstitutional.
Judgment affirmed. All the Justices concur.
Robert E. Keller, District Attorney, Clifford A.
Sticher, Erman J. Tanjuatco, David B. Hornsby, Assistant District
Attorneys, Thurbert E. Baker, Attorney General, Christopher L.
Phillips, Assistant Attorney General, Susan V. Boleyn, Senior
Assistant Attorney General, for appellee.
1 The crimes occurred on August
13, 1995. The grand jury indicted Perkins on November 8, 1995, the same
day that the state filed its notice of intent to seek the death penalty.
The trial took place from June 23-28, 1997. On June 27, 1997, the jury
convicted Perkins of malice murder, felony murder, and two counts of
possession of a knife during the commission of a felony. The following
day the jury recommended a death sentence for the murder. The trial
court sentenced the defendant to death for the malice murder, and
vacated the felony murder conviction. The trial court also merged one
count of possession of a knife during the commission of a felony into
the other count and imposed a consecutive five-year sentence. Perkins
filed a motion for a new trial on July 22, 1997, and an amended motion
for new trial on November 17, 1997. The trial court denied the motion on
November 20, 1997. Perkins filed his notice of appeal on December 18,
1997, and this case was docketed on January 9, 1998. Oral argument was
held on April 21, 1998.
Thomas M. Martin, for appellant.
DECIDED SEPTEMBER 21, 1998.
David Aaron Perkins