Johnny Lamar Wade, 41, was
sentenced to death in March 1987 in Newton County for the strangulation
killing of 13-year-old Lance Barnes. The boy disappeared Aug. 8, 1986,
after riding his bike to the store.
Lance was seen leaving the store
with Mr. Wade, his bike in the back of Mr. Wade's pickup truck. Lance's
body was found the next day in the woods, his bike nearby. He had been
beaten on the head and strangled.
The Georgia Supreme Court reversed Mr.
Wade's death sentence, but he was resentenced to death by another jury
in April 1989.
Georgia: Death row inmate dies in
June 6, 2007
Georgia death row inmate Johnny Lamar
Wade died in his cell Tuesday morning, state prison officials said.
Wade, 51, was sentenced to death in 1987 for beating
and strangling to death a 13-year-old boy in Newton County.
Wade was on parole at the time of the murder.
Wade had throat cancer and died of natural causes,
according to Georgia Department of Corrections spokesman Paul Czachowski.
Georgia now has 104 men on death row at the state
prison in Jackson and one woman on death row at the state prison in
(258 Ga. 324)
(368 SE2d 482)
CLARKE, Presiding Justice.
Murder. Newton Superior Court. Before Judge Ridgway.
Johnny Lamar Wade was convicted of murder and
sentenced to death by a Newton County jury. This is his appeal.
1. On the morning of August 8, 1986, the victim,
13-year-old Lance Barnes, left his brother's house, where he had
spent the night, and rode his bicycle to nearby Kittle's store.
The defendant stopped by Kittle's store at 11:30
that morning. He bought a sandwich and, while it was heating, told
the owner that he was not going to pay further child support, and
threatened to kill his ex-wife and her male companion if he saw
either of them. Then the defendant played some video games, with the
victim and another teenager.
The defendant left at 1:00 p.m. The victim put
his bicycle in the back of the defendant's blue Ford pickup truck,
and left with him.
Shortly thereafter the defendant was seen by a
neighbor driving through his trailer park. A boy was with him. The
defendant did not go home then -- possibly because his parents were
there. Instead, sometime between 1:00 and 2:30 p.m., he went to the
post office in Jersey, Georgia. He returned home alone about 3:00
p.m., and went to bed (he worked a night shift).
At 6:48 p.m. (as shown by the store's video
camera) the defendant entered a Mr. B's convenience store and bought
two packs of cigarettes.
The victim's body was discovered that evening in
a small clearing just off a narrow dirt lane that runs from the
Alcovy Trestle Road through heavy woods to the Alcovy River. His
bicycle lay nearby. He had been beaten severely about the head and
strangled to death.
The defendant was questioned about the homicide
the next morning. He stated that he had got off work at 10:00 a.m.
the previous day. He went to a fast-food restaurant and ate
breakfast, drove to a liquor store and bought some whiskey, and then
went to Kittle's grocery, where he played video games with two
teenagers, including the victim.
He stated that as he was leaving,
the victim asked him for a ride to his sister's house in Porterdale,
and the defendant offered to take him as far as Mr. B's convenience
store on Highway 81 where he intended to buy some cigarettes. He
arrived at Mr. B's between 12:00 and 1:00 p.m., dropped off the
victim, and entered the store, purchasing his cigarettes from a
certain cashier who worked there. Then he went home, bathed, and
went to bed. He denied ever having been on the dirt lane where the
victim's body was found.
The defendant gave several statements that day
and the next. Each was essentially the same. Although he was asked
each time to describe in detail his activities on the day of the
crime, he never mentioned driving through his trailer park with the
boy in his vehicle, or having gone to the post office in Jersey, or
having been in Mr. B's convenience store at 6:48 p.m.
It was shown that the cashier at Mr. B's from
whom the defendant claimed to have purchased his cigarettes early in
the afternoon of August 8 did not work at all that day. The cashiers
who did work that day remembered that he stopped by that evening,
but could not remember his being there at any other time that day.
Investigators at the crime scene discovered a
stump, obscured by vegetation, on the right hand side of the lane,
opposite the small clearing on the left where the victim's body was
found. It appeared to have been damaged recently. The state
theorized that someone attempting to turn around in the narrow lane
by backing into the clearing could have run over the stump. A piece
of chrome trim, a wire clip, and a chip of Ford Bahama Blue paint
were found next to the stump.
The defendant's Ford truck was observed to have
been damaged on its lower right front fender. A piece of chrome trim
was missing from the bottom of the fender. Two retainers for the
missing chrome trim remained on the fender; attached to one of these
retainers was a wire clip identical to the one found at the crime
scene, while the other retainer was missing its wire clip. A fresh
leaf was caught in one of the retainers. It was identified by a
botanist as having come from a Japanese Honeysuckle plant, like that
growing around the stump.
The chrome trim piece found at the crime scene
fit the fender of the defendant's truck, and its ribbed design
matched the chrome trim on the bottom of the door. The paint on the
defendant's truck, a small amount of paint on the trim piece, and
the paint chip found near the stump were all microscopically and
chemically analyzed and determined to be Ford Bahama Blue.
Between the crime scene and the town of Jersey, a
stick, covered with electrical tape, similar to one the defendant
commonly carried in the gunrack of his pickup, and consistent with
having caused the injuries to the victim's head, was found by the
side of the road. Abraded into a part of the surface of this stick
was Ford Bahama Blue paint.
Jackson v. Virginia, 443 U. S. 307 (99 SC 2781,
61 LE2d 560) (1979). He contends the evidence fails to support his
conviction for felony murder because the aggravated assault with a
deadly weapon (the stick) did not kill the victim; the cause of
death was ligature strangulation. This contention is moot, inasmuch
as he was sentenced only on the malice murder count, and the felony-murder
conviction stands vacated by operation of OCGA
3. The trial court did not err by admitting
Kittle's testimony concerning the defendant's threats toward his ex-wife
and her male companion. He made these threats just before he met the
victim. These " 'acts and words of the defendant [were] so close in
time to the alleged offense as to have a bearing upon his state of
mind at that time.' " Walraven v. State, 250
Ga. 401, 408 (297 SE2d 278)
(1982) (quoting Commonwealth v. Boulden, 116 A2d 867, 873 (Penn.
Super. Ct. 1955)). See Frazier v. State, 257
Ga. 690 (16) (362 SE2d 351) (1987).
4. The defendant contends the trial court erred
by allowing in evidence state's exhibit three, the stick found by
the side of the road between the crime scene and Jersey. Several
witnesses testified that the stick looked similar to one commonly
carried by the defendant prior to the murder. After the murder, the
defendant no longer had the stick and told his interrogators that he
could not remember what had happened to it. It was established that
abraded onto the stick was Ford Bahama Blue paint, the same color as
that on the defendant's truck. The autopsist testified that the
wounds to the victim's head were consistent with having been
inflicted by a weapon such as state's exhibit three. In these
circumstances, the exhibit was properly admitted. Jung v. State,
237 Ga. 73 (1) (226 SE2d 599) (1976);
Harper v. State, 251 Ga. 183 (1) (304 SE2d
5. The defendant did not object to testimony that
he had admitted having but "two female dates" in the eighteen months
prior to the crime. The prosecutor argued from this and other
I don't know why [the defendant] took a stick and
beat him about the head. . . . A reasonable conclusion that could be
drawn is sexual advancement. Why else do you take somebody out on a
dirt road like that, a country road? But that might not be. That
might not be right. There is no evidence of sexual molestation. It
fits with the demeanor of the boy, his personality, that if he was
approached about that, he would stand up and say no and if
somebody's on the edge, like the defendant was that morning, yeah,
it could trigger an explosion possibly. . . . I know if it was a
sexual advancement, common sense would tell you that if he did make
a sexual advancement on the boy and the boy said no and he had to
take the stick and hit him one time, what was he going to do then? .
. . Could he just say, well fine, I'm just going to drive out of
here and forget this? Because that boy is going to regain
consciousness; he's going to walk out of there; he's going to tell
everybody. Where does that leave the defendant? So in his mind he's
only got one choice: I've got to kill this person. Logical. . . .
The motive for the killing, or lack thereof, was
proper subject matter for the closing arguments of both the
prosecution and the defense. The state s argument was based on the
evidence and was not, as the defendant contends, improper. See
Conner v. State, 251 Ga. 113 (6) (303 SE2d
6. On March 24, 1987, the Tuesday before the
trial was to begin the next Monday, the district attorney and the
defendant's attorney went to the state crime lab, talked to the
state's experts, picked up all the evidence and returned to Newton
County. On Wednesday, the district attorney reviewed the evidence
with the GBI agents who investigated the case. They realized that no
comparison or identification had been performed with respect to the
leaf caught in the fender of the defendant's truck. The district
attorney called the defendant's attorney and informed him that he
planned to take that leaf and several from the vicinity of the stump
to a botanist employed by the Department of Fish and Game. The
botanist examined them microscopically and on Friday the district
attorney wrote a report dictated to him by the botanist, had the
botanist sign it, and furnished a copy to the defendant.
The defendant responded by filing a motion to
exclude any testimony by the botanist on the ground that the written
scientific report was not furnished at least 10 days before the
trial pursuant to OCGA 17-7-211. The
trial court denied the motion to exclude, but agreed to provide
funds to the defendant to enable him to retain the services of his
The defendant contends the court's ruling was
error. We do not agree. As we pointed out in Law v. State,
251 Ga. 525, 527-28 (307
SE2d 904) (1983),
Here, the report was provided, and the
defendant's attorney stated specifically that he was not moving for
and did not want a continuance. Moreover, he declined the proffer of
expert assistance, stating:
I have no reason to doubt the . . . credentials [of
the state's botanist] and I think I can probably tell it's the same
sort of plant, too, looking through a microscope. So I'm not sure
that's going to add that much to it, one way or the other.
The trial court properly denied the motion to
exclude the testimony of the botanist.
7. The evidence did not warrant a charge on
voluntary manslaughter, and the trial court did not err by refusing
to give one.
8. The court's charge on implied malice was not
burden shifting. See Welch v. State, 254 Ga.
603 (5) (331 SE2d 573) (1985).
9. Our Code provides that, in capital cases,
[i]f more than two regular terms of court are
convened and adjourned after the term at which the demand [for trial]
is filed and the defendant is not given a trial, then he shall be
absolutely discharged and acquitted of the offense charged in the
indictment. . . .
Newton County has four regular terms of court
each year, beginning on the second and third Mondays in January,
April, July and October. OCGA 15-6-3
(2) (A). The length of these terms is specified in OCGA
15-6-19: "The regular terms of the
superior and state courts shall continue until the commencement of
the next regular term, at which time they shall stand adjourned." (Emphasis
The defendant filed a demand for trial during the
July 1986 term of the Newton Superior Court. He was tried during the
January 1987 term of court -- i.e., during the second regular term
of court following the term in which his demand was filed.
Notwithstanding that special juries had been empaneled in the
interim, pursuant to OCGA 15-6-20, the
defendant was given a trial before "more than two regular terms of
court [were] convened and adjourned after the term at which the
demand [was] filed. . . ." OCGA 17-7-171
(b). There is no merit to his contention that he is entitled to an
acquittal because the state did not try him soon enough.
10. The defendant complains that the state's
cross-examination of his mother at the sentencing phase of the trial
incorporated a report from the Department of Family and Children
Services (DFACS) that was inadmissible as a consequence of the
state's non-compliance with the notice provisions of OCGA
17-10-2. The state counters that (1)
the defendant had a copy of this report "months before trial," and
(2) in any event, the report was neither mentioned nor introduced in
The mother testified as to the defendant's non-violent
nature. The state's cross-examination concerned the defendant's
previous conviction for terroristic threats wherein he had
threatened to kill the welfare worker assigned by the juvenile court
to monitor the defendant's family situation, and to burn down the
building where he worked. See OCGA 16-11-37
The defendant was properly notified of the
state's intention to use the prior conviction in aggravation, and
the conviction was in evidence when the state cross-examined the
defendant's mother. But even if the cross-examination was based in
part on the DFACS report (and not just the conviction), and even if
there was not sufficient compliance with OCGA
17-10-2 respecting this report to allow the state to use the
report in its case-in-chief, the state's use of this report to rebut
the mother's direct testimony was not barred by OCGA
17-10-2. Buttrum v. State,
249 Ga. 652 (9) (293 SE2d 334) (1982).
See also Cook v. State, 255 Ga. 565
(17 g) (340 SE2d 891) (1986).
11. The state contended at trial that the offense
of murder was committed while the offender was engaged in the
commission of the offense of aggravated battery. OCGA
17-10-30 (b) (2). The court instructed
the jury on this statutory aggravating circumstance as follows:
The State contends that the offense of murder in
this case was committed by the Defendant while he was engaged in the
commission of an aggravated battery upon the body of the murder
victim. Under our law, this is a statutory aggravating circumstance
which would authorize, but not mandate, the imposition of the death
The State has the burden of proving this
statutory aggravating circumstance beyond a reasonable doubt.
I charge you that a person
commits aggravated battery when he maliciously,
that is to say, with intent, causes bodily harm to another by
depriving him of a member of his body, by rendering a member of his
body useless, or by seriously disfiguring his body or a member
I charge you that in order for you
to find the existence of this statutory
aggravating circumstance, you must find that the aggravated battery,
if any, occurred prior to the victim's death. In other words, in
determining whether or not an aggravated battery was committed upon
the body of the murder victim, you may only consider facts occurring
prior to the victim's death.
That is, insofar as aggravated battery is
concerned, only facts which are separate from and occurring prior to
the act causing instantaneous death will support a finding of
If you find beyond a reasonable doubt that this
statutory aggravating circumstance exists, then your verdict should
reflect this finding.
Whether or not the statutory aggravating
circumstance, which I have just given you in charge, exists beyond a
reasonable doubt in this case, is a matter solely for you, the
members of the jury, to decide and to determine from the evidence in
(a) The evidence shows that the victim was struck
twice in the head with a heavy stick and then strangled to death
with a ligature. One blow to the head left a severe bruise on the
victim's left cheek and ear. The other blow lacerated his scalp and
fractured his skull. The evidence was sufficient to establish the
commission of an aggravated battery, Baker v. State,
245 Ga. 657 (6) (266 SE2d 477) (1980);
Thompson v. State, 156 Ga. App. 1 (1) (273
SE2d 894) (1980), and to establish that "the aggravated
battery . . . precede[d] the killing and [was] a separate and
distinct act from the act causing death. . . ." Davis v. State,
255 Ga. 588, 593 (3 c) (340
SE2d 862) (1986).
(b) The court did not err, as the defendant
contends, by failing to define the phrase ". . . engaged in the
commission of. . . ." The defendant did not request any elaboration
of this phrase and it is self-explanatory. See Romine v. State,
251 Ga. 208, 214 (8) (305
SE2d 93) (1983).
(c) Nor did the court err by refusing to give the
defendant's request to charge the jury that it could find the
statutory aggravating circumstance only if it found beyond a
reasonable doubt that the victim remained fully conscious after the
blows to the head. Davis v. State, supra.
(d) Malice is an essential element of the offense
of aggravated battery. Taylor v. State, 178
Ga. App. 817 (2) (344 SE2d 748) (1986). Concerning this
element, the trial court instructed the jury that the offense of
aggravated battery is committed when the defendant causes the
specified injuries "maliciously, that is to say, with intent. . . ."
This instruction was erroneous. A person acts "maliciously"
when he acts intentionally and without justification or serious
provocation. See Francis v. Franklin, 471 U. S. ---- (105 SC 1965,
1974, 85 LE2d 344) (1985). Compare former 26-1201 through 26-1210 of
the 1933 Code, defining the offense of mayhem, the progenitor of the
crime of aggravated battery. Mitchell v. State,
238 Ga. 167, 168 (231
SE2d 773) (1977). What the court should have said was: "maliciously,
that is to say, intentionally and without justification or serious
provocation The instruction given, by its incompleteness, "removed
from the prosecution the burden of proving every element of the
crime [of aggravated battery] beyond a reasonable doubt." Davis v.
Kemp, 752 F2d 1515, 1521 (11th Cir. 1985) (en banc).
The state argues that any error is harmless,
noting that the jury convicted the defendant of malice murder under
guilt-phase instructions correctly defining the term "malice," and
that in any event the real dispute was whether the defendant was
involved in the death of the victim, and not whether he acted
The defendant's conviction for malice murder did
not relieve the state of its burden to prove beyond a reasonable
doubt at the sentencing phase of the trial that the defendant had
committed the separate crime of aggravated battery, Romine v. State,
256 Ga. 521, 528 (350
SE2d 446) (1986), and we cannot agree that the jury's return
of a verdict of guilty of murder renders harmless an erroneous
sentencing-phase charge on the sole statutory aggravating
circumstance relied upon by the state to obtain a death sentence on
the murder conviction.
The more relevant inquiries are: (1) Is the
evidence that the defendant committed an aggravated battery
overwhelming? (2) If not, does the evidence overwhelmingly establish
at least the element of the crime to which the erroneous instruction
was applied? Godfrey v. Kemp, ---- F2d ---- (11th Cir. No. 85-8570,
decided January 20, 1988); Davis v. Kemp, supra at 1521 (fn. 10). We
cannot say on this record that the evidence overwhelmingly
establishes the defendant's guilt of the offense of aggravated
battery, and we cannot say that it overwhelmingly establishes the
existence of the element of malice. The evidence is sufficient in
both respects, but it does not overwhelm. More importantly, where
the conviction of murder rests upon evidence barely meeting the
standard required by Jackson v. Virginia, supra, and the death
penalty was imposed, error in a charge is less likely to be
harmless. Therefore, we cannot say that the erroneous charge was
harmless beyond a reasonable doubt, and the death sentence must be
12. The jury's initial sentencing verdict read: "We
unanimously find the following statutory aggravating circumstances
beyond a reasonable doubt: brutally beaten on head prior to death by
strangulation . . . We unanimously fix the penalty as death."
The court instructed the jury:
Ladies and gentlemen, the verdict is not the
verdict which would stand in law. We think we understand what it is
that you're attempting to do but the verdict cannot be written and
announced as you have attempted to write it . . . [T]he verdict has
to be in a certain form.
After further deliberations, the jury returned a
verdict in proper form specifying the commission of an aggravated
battery as set forth in OCGA 17-10-30
The jury's initial verdict was "uncertain and
ambiguous," and the trial Court did not err, as the defendant
contends, by returning the jury to the jury room for further
deliberations. Quick v. State, 256 Ga. 780
(7) (353 SE2d 497) (1987); Westbrook v. State,
256 Ga. 776 (5) (353 SE2d 504) (1987).
The trial court expressed no opinion violating OCGA
13. The conviction is affirmed. The death
sentence is reversed. The case is remanded for resentencing.
John M. Ott, District Attorney, Michael J. Bowers,
Attorney General, Susan V. Boleyn, Senior Assistant Attorney
General, for appellee.
1 The crime was committed on
August 8, 1986. The defendant was arrested the next day. The case was
tried March 2 through March 4, 1987. The death sentence was imposed
March 4, and a motion for new trial was filed March 11. The motion was
heard and denied July 7, 1987. A notice of appeal was timely filed, and
the case was docketed in this court on September 30, 1987. The parties
were given extensions of time to file their briefs, and the case was
orally argued January 11, 1988.
Strauss & Walker, John T. Strauss, for appellant.
DECIDED MAY 26, 1988 -- RECONSIDERATION DENIED JUNE 22, 1988.