Brian Keith Terrell, 29, was
sentenced to death in January 1995 in Newton County for the robbery and
murder of 70-year-old John Henry Watson.
Mr. Terrell had been released
on parole about two months before Mr. Watson's June 22, 1992, murder. Mr.
Terrell had forged about $8,000 in checks on Mr. Watson's bank account
before the killing. Mr. Watson was beaten in the head and shot four
(271 Ga. 783)
(523 SE2d 294)
Murder. Newton Superior Court. Before Judge Ott.
A jury found Brian Keith Terrell guilty of malice
murder and ten counts of first-degree forgery. For the murder, the
jury recommended a death sentence, finding the following statutory
aggravating circumstances: the offense of murder was committed while
the defendant was engaged in the commission of an aggravated battery;
and the offense of murder was outrageously or wantonly vile,
horrible or inhuman in that it involved depravity of mind and an
aggravated battery to the victim before death. OCGA
17-10-30 (b) (2), (7). Terrell's
motion for new trial was denied and he appeals.
1. During voir dire, prospective juror Smith
stated that he was a full-time military policeman with the Georgia
National Guard, with arrest power. Terrell moved to excuse juror
Smith for cause, but the trial court denied the motion stating, "I
think he can distinguish the difference between civil and military
law." It is well-settled that full-time police officers with arrest
powers must be excused if challenged for cause, because it "is
inherent in the nature of police duties and the closeness with which
such officers are identified with criminal procedures that questions
regarding possible bias, fairness, prejudice or impermissible
influence upon jury deliberations inevitably arise." Hutcheson v.
State, 246 Ga. 13 (1) (268 SE2d 643) (1980).
See also Harris v. State, 255 Ga. 464 (2)
(339 SE2d 712) (1986). The record clearly shows that juror
Smith was a full-time military policeman with arrest power and that
he did not meet any of the exceptions to this automatic
disqualification rule. Thus, the trial court's erroneous refusal to
excuse this juror for cause requires reversal of the convictions.
Hutcheson v. State, supra. Compare Mosher v. State,
268 Ga. 555 (2) (491 SE2d 348) (1997)
(law enforcement firearms instructor without arrest power not
subject to automatic disqualification); Denison v. State,
258 Ga. 690 (4) (373 SE2d 503) (1988)
(part-time police officers not subject to automatic excusal for
cause); Cargill v. State, 255 Ga. 616 (6)
(340 SE2d 891) (1986) (active-duty drill sergeant who had
served as military policeman and would serve as a military policeman
again upon completion of drill sergeant duty not subject to
automatic disqualification); Wilson v. State,
250 Ga. 630 (4) (a) (300 SE2d 640)
(1983) (reserve police officers not subject to automatic excusal).
Because our reversal of the convictions will result in a new trial,
we will now examine those enumerations raising issues likely to
recur on retrial.
The Guilt-Innocence Phase of Trial
2. The evidence presented at trial authorized the
jury to find the following:
Barbara Terrell, the defendant's mother, had been
assisting the victim, seventy-year-old John Watson, with meals and
errands since 1989. Watson had a number of health problems and
required dialysis three times a week. Barbara Terrell received no
compensation for her services, but Watson had promised to include
her in his will, and they had discussed marriage.
On May 1, 1992, Terrell was released from prison
on parole. Watson met Terrell through his mother and Terrell was
inside his home on several occasions.
On Saturday, June 20, 1992, Watson called the
sheriff's office and reported receiving ten canceled checks,
totaling about $8,700, which had been stolen and forged. Some of the
checks were made payable to Terrell and the others had been made
payable to a former school friend of Terrell, who police later
determined was not involved in the forgeries.
Due to his feelings for Terrell's mother, Watson
asked the sheriff to wait a few days before taking an arrest warrant
for Terrell. He told Ms. Terrell to tell her son he would not take a
warrant if he returned most of the money by Monday, June 22. Watson
relayed this information to her son who promised to repay the money.
However, the next day, June 21, Terrell, who had recently bought a
car and new clothes despite not having a job, told his mother that
he could not repay the money.
John Watson's body was found on his property at
approximately noon on June 22. He had been shot four times and
severely beaten in the face and head. The medical examiner testified
that either the gunshots or the beating would have been fatal, and
that the victim was still alive when receiving all these injuries.
Shell casings found on Watson's driveway indicated that the firearm
used in the murder was a .38 or .357 caliber revolver. Watson had
apparently been shot in his driveway as he was getting into his car
to drive to his morning dialysis appointment and then dragged into
the brush and beaten.
Jermaine Johnson, Terrell's cousin, confessed to
his role in the crime and testified at trial in exchange for a five-year
sentence for robbery. He stated that he and Terrell checked into a
motel near Watson's house at midnight on June 21. Terrell locked the
keys in his blue Cadillac and, despite the assistance of a sheriff's
deputy, they were unsuccessful at unlocking the car door. He said
that he and Terrell went to bed and awoke at 6:30 a.m. on June 22.
They broke a window to get into the Cadillac. Terrell had a .357 or
.38 caliber revolver and he asked to be dropped off at Watson's
house. Terrell told Johnson to return for him at 9:00 a.m. Johnson
went back to the motel, slept until 8:30 a.m., and then drove back
to pick up Terrell. Before 9:00 a.m., he had a conversation with the
motel manager in the parking lot as he was leaving. The manager
noticed that the broken glass in the parking lot was on the side of
the car opposite the broken window, indicating that the Cadillac had
been moved since the window was broken. The man with whom she spoke
matched Johnson's description and she testified that he was alone.
Johnson drove back and forth on the road in front
of Watson's house, stopping at a Wal-mart and a convenience store to
wait. Witnesses saw Johnson driving Terrell's blue Cadillac at this
time. Johnson testified that Terrell appeared near Watson's house
and he stopped and picked him up. Watson's neighbor testified that
at approximately 9:30 a.m., she saw a man wearing a white shirt
standing next to a large blue car parked on the side of the road.
Terrell was wearing a white shirt on June 22. Terrell told Johnson
that he had shot a man. Terrell bought new clothes at a department
store and took a bath at his grandmother's house while Johnson
washed the car. Later, Terrell took his son to the zoo.
When questioned by the police, Terrell admitted
committing the forgeries, but denied the murder. He said that he and
Johnson had checked into the motel with a woman, who was never
identified, and stayed there all night after he had locked his keys
in the car. He said that they did not leave until 10:00 or 10:30
a.m., when they broke the window to get into the Cadillac. Later in
the interview, a police officer asked him how the woman got home and
Terrell stated that Johnson drove her home early that morning, which
would have been impossible if the keys were locked in the car at
that time. When Terrell realized that he had contradicted himself,
he refused to answer any more questions.
The evidence was sufficient to enable a rational
trier of fact to find proof of Terrell's guilt of malice murder and
ten counts of first-degree forgery beyond a reasonable doubt.
Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
The evidence was also sufficient to authorize the jury to find
beyond a reasonable doubt the statutory aggravating circumstances
which supported his death sentence for the murder. Jackson v.
Virginia, supra; OCGA 17-10-35 (c)
3. Contrary to Terrell's contention, we hold that
the evidence corroborating Jermaine Johnson's testimony was
sufficient to support his murder conviction. OCGA
24-4-8. The corroborating evidence
need not be sufficient by itself to convict Terrell, nor does the
testimony of an accomplice need to be corroborated in every detail.
See Riley v. State, 268 Ga. 640 (1) (491 SE2d
802) (1997); Myers v. State, 260 Ga.
412 (3) (395 SE2d 811) (1990); Castell v. State,
250 Ga. 776 (1) (c) (301
SE2d 234) (1983). " 'Slight evidence from an extraneous
source identifying the accused as a participator in the criminal act
will be sufficient corroboration of the accomplice to support a
verdict. (Cits.)' " Myers, supra. Johnson's testimony was
corroborated by evidence that Terrell had a motive to kill the
victim in order to prevent the taking of an arrest warrant which
would violate his parole conditions, that Terrell checked into a
motel near the victim's house the night before the murder, that
Terrell was wearing a white shirt on June 22 and a man in a white
shirt was seen near the victim's house at the time of the murder,
that two witnesses saw Johnson driving Terrell's car near the
victim's house around the time of the murder, and that Terrell lied
to the police about when the car window had been broken. See Myers,
supra; Pye v. State, 269 Ga. 779 (5) (505
SE2d 4) (1998). The sufficiency of the corroborating evidence
is a matter for the jury, and the evidence was legally sufficient
for the jury to convict. Edmond v. State, 267
Ga. 285 (2) (476 SE2d 731) (1996); Jackson v. Virginia, supra.
4. Terrell's complaint about the jury charge on
corroboration of accomplice testimony is without merit. The record
shows that the charge given was virtually identical to the charge on
accomplice testimony corroboration contained in the pattern jury
instructions. Edmond, supra at (3); Council of Superior Court Judges
of Georgia, Suggested Pattern Jury Instructions, Vol. II, pp. 52-53
5. During a colloquy, Terrell's counsel announced
that he intended to argue in closing that the State had something to
hide. when asked what he meant by the State having something to hide,
defense counsel responded that the State did not do its job in this
case. The trial court replied that the defense could argue that the
State did not do its job, but that there was no evidence to support
an argument of deliberate misconduct by the prosecution. Terrell was
permitted to and did argue that the State did not do an adequate
investigation in the case, that others had motives to kill the
victim, and that State witnesses were not truthful and may have
committed perjury. Terrell now asserts that the trial court
improperly limited his closing argument. However, there was no
evidence that the State was hiding something, and the trial court
has discretion to determine the range of proper closing argument.
Morgan v. State, 267 Ga. 203 (1) (476 SE2d
747) (1996). After review of the record, we cannot conclude
that the trial court abused its discretion. See Morgan v. State,
supra; Manning v. State, 207 Ga. App. 181 (4)
(427 SE2d 521) (1993) (trial court did not abuse its
discretion by preventing defendant from arguing that the State
intentionally delayed his trial in order to cause witness memory
lapses, when there was no evidence to support such a claim).
6. GBI agent Troy Pierce interviewed Terrell on
June 22 and on June 24, 1992. Agent Pierce took handwritten notes
during each interview, dictated the notes onto an audiotape, and had
his secretary transcribe the notes. As was his standard practice,
Agent Pierce checked the transcription against the original
handwritten notes for accuracy, and then discarded the original
notes. Terrell claims that the destruction of the original notes
amounted to the destruction of evidence in violation of his due
process rights and Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10
LE2d 215) (1963). There was no error. Assuming that the original
notes were evidence, the record does not show that they were
material or that Agent Pierce acted in bad faith. See Arizona v.
Youngblood, 488 U. S. 51 (109 SC 333, 102 LE2d 281) (1988); Walker
v. State, 264 Ga. 676 (3) (449 SE2d 845)
7. Terrell complains that the State improperly
introduced evidence of his character in the guilt-innocence phase.
OCGA 24-2-2. To show motive for the
murder, the trial court permitted the State to present evidence that
Terrell was on parole at the time of the murder and that the taking
of an arrest warrant for the forgeries would have resulted in his
immediate incarceration for violating his parole conditions. The
State did not present evidence in the guilt-innocence phase about
the nature of his prior conviction. We find no error. "While motive
is not an essential element in the proof of the crime of murder, the
State is entitled to present evidence to establish that there was a
motive." Johnson v. State, 260 Ga. 457 (2)
(396 SE2d 888) (1990). Evidence that the victim's taking of
an arrest warrant would have immediately returned Terrell to jail
was relevant to prove that Terrell had a motive to kill the victim,
and relevant evidence is not rendered inadmissible simply because it
incidentally puts the defendant's character in issue. Cook v. State,
221 Ga. App. 831 (3) (472 SE2d 686) (1996)
(evidence that defendant was on parole relevant and admissible to
show his motive for robbery).
8. Terrell's arrest was not illegal. The trial
court correctly found that he was arrested pursuant to an
outstanding warrant for terroristic threats or acts. OCGA
9. The record does not support Terrell's claim of
bias on the part of the trial judge.
The Sentencing Phase of Trial
10. Terrell argues that the trial court erred by
refusing to admit relevant mitigating evidence in the sentencing
phase. In an attempt to cause the jury to have "residual doubt," he
sought to introduce evidence that he offered to plead guilty to the
forgeries in exchange for consecutive sentences totaling 100 years,
but that he refused to plead guilty to murder. While the permissible
scope of mitigation evidence is wide, Barnes v. State,
269 Ga. 345 (27) (496 SE2d 674) (1998),
the trial court correctly refused to admit this evidence. For policy
reasons, evidence of a defendant's conditional offer to plead guilty
is not admissible in the sentencing phase. Mobley v. State,
265 Ga. 292 (18) (455 SE2d 61) (1995).
11. "The trial court did not err in failing to
instruct the jury that a unanimous finding on mitigating
circumstances is not required, while charging the jury that its
sentencing verdict had to be unanimous, since the court charged the
jury that it was not necessary for the jury to find any mitigating
circumstances to impose a life sentence." McClain v. State,
267 Ga. 378 (6) (477 SE2d 814) (1996).
It was also not error for the trial court to refuse to instruct the
jury on residual doubt. The trial court is not required to identify
specific mitigating circumstances in its charge. Jenkins v. State,
269 Ga. 282 (25) (498 SE2d 502) (1998).
12. Evidence that Terrell set a fire in his jail
cell while awaiting trial was properly admitted as a non-statutory
aggravating circumstance. See Hicks v. State,
256 Ga. 715 (19) (352 SE2d 762) (1987) (a defendant's
character and his conduct while in prison are relevant to sentence).
The State provided sufficient pretrial notice of its intention to
present evidence about this incident in accordance with OCGA
13. We need not address the remaining
enumerations of error because they are not likely to recur on
retrial. Since the evidence supports the jury's finding of the
statutory aggravating circumstances, on retrial the State may again
seek the death penalty. Chil- dress v. State,
266 Ga. 425 (6) (467 SE2d 865) (1996); Moore v. State,
263 Ga. 11 (9) (427 SE2d 766) (1993).
HUNSTEIN, Justice, dissenting.
The majority holds that the trial court erred in
refusing to strike juror Smith on principal cause based on its
conclusion that juror Smith was a "full-time military policeman with
arrest power [who] did not meet any of the exceptions to th[e]
automatic disqualification rule." Majority Opinion at 783 (1).
Because such a conclusion is not supported by the record and
unjustifiably expands our holding in Hutcheson v. State,
246 Ga. 13 (1) (268 SE2d 643) (1980),
I respectfully dissent.
This Court has recognized the importance of a
citizen's right to participate in jury service in that it
"affords ordinary citizens a valuable opportunity
to participate in a process of government, an experience fostering,
one hopes, a respect for law." [Cit.] Indeed, with the exception of
voting, for most citizens the honor and privilege of jury duty is
their most significant opportunity to participate in the democratic
Lewis v. State, 262 Ga.
679, 680 (424 SE2d 626) (1993),
quoting Powers v. Ohio, 499 U. S. 400, 407 (111 SC 1364, 113 LE2d
411) (1991). Thus, as a general rule, we have not automatically
deprived citizens of their right to sit as jurors unless a
presumption of bias is clearly established. Hutcheson, supra at 14.
In Hutcheson, we held that full-time police officers must be excused
if challenged for principal cause because
[i]t is inherent in the nature of police duties
and the closeness with which such officers are identified with
criminal procedures that questions regarding possible bias, fairness,
prejudice or impermissible influence upon jury deliberations
Id., 246 Ga. at 14 (1). Because the right to
participate in jury service is so important, however, we have
consistently refused to extend the rule in Hutcheson to persons less
connected with law enforcement than full-time police officers or to
those whose employment is not so closely identified with the case
before the court or general criminal procedures "that questions
regarding possible bias, fairness, prejudice or impermissible
influence upon jury deliberations inevitably arise." See id.
Applying the rule of Hutcheson, we have refused to automatically and
arbitrarily disqualify a sworn part-time police officer based on the
limited nature of his duties, Denison v. State,
258 Ga. 690 (4) (373 SE2d 503) (1988),
and have held that a full-time active-duty military police officer
temporarily serving as a drill sergeant was not automatically
disqualified based on the absence of evidence raising a suspicion
that he was biased against the defendant. Cargill v. State,
255 Ga. 616 (6) (340 SE2d 891) (1986).
We also have held that Hutcheson did not apply to a former part-time
police officer who, at the time of trial, served as a reserve police
officer called to duty when help was needed. Wilson v. State,
250 Ga. 630 (4) (a) (300
SE2d 640) (1983).
Although relying on Denison, Cargill, and Wilson
to support its conclusion that juror Smith is automatically
disqualified from jury service, the majority fails to distinguish
these cases from the facts of this case. I find they cannot be
distinguished. Under the law of this State, juror disqualification
or bias must be affirmatively shown by the party seeking to strike
the juror for cause. Jordan v. State, 247 Ga.
328, 339 (6) (276 SE2d 224)
(1981). The only record evidence concerning juror Smith indicates he
was employed full-time as a readiness officer for a military police
unit with the National Guard; he has been called to active duty on
six occasions in the past seven years for flood control and weather
emergency situations; and either he or others within his National
Guard unit possess the power to arrest while maintaining military
law and order. Based on the record evidence, there is nothing to
suggest either that Smith's rare deployments to establish military
law and order or his routine duties as a readiness officer, which
were not explored on the record, raise inevitable questions of bias,
prejudice, or undue influence upon jury deliberations.
2 See Hutcheson, supra at 14.
Indeed, the sparse record evidence in this case indicates that juror
Smith's military law enforcement duties were even more limited in
nature and substantially less frequent than the jurors we held not
to be automatically disqualified in Denison, supra, Cargill, supra,
and Wilson, supra. Accordingly, I would find that Terrell failed to
satisfy his burden of establishing that juror Smith was subject to
automatic disqualification based on his employment with the National
The majority has failed to justify its decision
to deprive juror Smith of his right not to be excluded from a jury
on account of his National Guard duties. See Lewis, supra. The
record uncontrovertedly shows no evidence of actual bias by juror
Smith and neither case law nor the facts of this particular case
supports the majority's expansion of Hutcheson so as to manufacture
a presumption of bias on the part of a National Guard readiness
officer called to temporary active duty only six times over the past
seven years. Therefore because the trial court did not err by
refusing to strike juror Smith for principal cause, I would affirm
that ruling and thus must respectfully dissent to the majority's
reversal of the judgment in this case.
Alan A. Cook, District Attorney, Thurbert E.
Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney
General, Paige R. Whitaker, Assistant Attorney General, for appellee.
1 The victim was murdered on June
22, 1992, and on July 13, 1992, the Newton County Grand Jury indicted
Terrell for malice murder, felony murder, and armed robbery. Terrell was
also indicted for ten counts of first degree forgery on June 10, 1993.
The State dropped the felony murder and armed robbery counts after
Terrell's first trial ended in a mistrial. Terrell's second trial began
on January 9, 1995, and Terrell was convicted of all remaining counts.
The jury recommended a death sentence for the murder on January 20,
1995. In addition to the death sentence, the trial court sentenced
Terrell to ten consecutive ten-year sentences for the forgeries. Terrell
filed an extraordinary motion for new trial on January 27, 1995, and a
motion for new trial on February 8, 1995. The motions were denied on
September 4, 1997, and pursuant to an extension of time granted by the
trial court, Terrell filed his notice of appeal on October 31, 1997. The
case was docketed in this Court on January 15, 1999, and was orally
argued on April 13, 1999.
2 During a less than thorough voir
dire, juror Smith was asked about his service with the National Guard.
He responded that he had been in the Guard for fourteen years and had
been called to active duty for flood control and similar projects on six
occasions over the last seven years. In the only other question
pertaining to his service in the National Guard he was asked, "Have you
ever worked in your capacity with the Military Police in a military jail
setting?" He responded, "See when we do an arrest, we're combating
things, military law and order, we do imprisonment and a lot of times
works with the jail, and also we do air security and station patrol." At
no time was juror Smith asked about his full-time duties as a readiness
officer, whether he himself had arrest powers, or whether he thought he
could be fair and impartial in deciding the case.
3 Of course, had Terrell asked
questions of juror Smith during voir dire which exposed any bias or
prejudice, juror Smith would have been subject to a challenge for cause.
See Jordan v. State, 247 Ga. at 338.
Strauss & Walker, John T. Strauss, Tanya Greene, for appellant.
DECIDED NOVEMBER 1, 1999 -- RECONSIDERATION DENIED DECEMBER 17,
Brian Keith Terrell