Jamie Ray Ward, 41, was
sentenced to death in July 1991 in Walker County for killing a 23-year-old
woman who was five months pregnant.
Investigators believe Mr. Ward was a
serial rapist whose crimes escalated to murder on Aug. 17, 1989, when he
abducted Nikia Gilbreath from her home.
Mr. Ward was arrested months
later after he kidnapped and raped a woman in another county and police
found items belong to Mrs. Gilbreath at his home. Mr. Ward's state
appeal challenging the fairness of his trial has been pending since
(262 Ga. 293)
(417 SE2d 130)
Murder. Walker Superior Court. Before Judge Wood.
The defendant, James Ray Ward, was convicted of
murder, kidnapping with bodily injury, and feticide. He has been
sentenced to death for the murder conviction by a jury in Walker
County. He appeals his convictions and death sentence. For reasons
that follow, we affirm. 1
1. The victim's husband left for work at 6:00
a.m. on August 17, 1989. When he returned from work that evening,
the 23-year-old victim, who was five months pregnant, was missing,
along with her car. Their 22-month-old daughter was at home by
When the police arrived later that evening, many
friends and relatives were present. At first, nothing appeared to be
missing except for the victim and her car, but eventually it was
learned that a telephone cord had been forcibly removed from the
wall jack (leaving the plug), that most of the victim's underwear
had been removed from her dresser drawer, and that a quilt and a
baby blanket had been taken.
The victim's car was discovered the next day on
an unpaved logging road. Her body was discovered the day after that
in a trash dump several miles away. Ligature marks around her wrists
and ankles indicated she had been bound. Three of her ribs were
broken and there were various bruises about her body. Her fetus was
in a partially delivered condition. The mother died of asphyxiation
resulting from her pharynx being stuffed with wadded-up paper towels.
The death of the mother resulted in the destruction of the fetus.
No clear suspects were developed for several
months. Then, early in the morning of December 18, 1989, the
defendant, wearing gloves and a stocking mask, broke into a Gordon
County home and kidnapped a woman from her bed as she lay sleeping
with her nine-year-old daughter. He drove the woman to an abandoned
farmhouse, forced her to model negligees he had brought with him,
and raped her. Then he took her to another abandoned house and raped
her again. He told her that he had killed two people and pointed out
a "good place" to "dump bodies" if she ever wanted to. He also told
her he had been watching her and told her some things about her
personal situation that a stranger should not have known. He
returned her to her home. Later, she discovered that some of her
underwear was missing.
The Gordon County police arrested the defendant
at his residence. The defendant's home was unfinished inside. Most
of the walls were not sheetrocked and there was no running water and,
except for the bedroom, no electricity. The unfinished rooms were
full of boxes containing several thousands of dollars worth of
lingerie and adult magazines.
The defendant maintained notebooks carefully
labelling and indexing magazines and lingerie catalogs (including
descriptions and numerical ratings of women in the magazines). The
officers found scraps of paper with physical descriptions of and tag
numbers for women; dates, times and locations of observations;
directions to their homes; newspaper clippings about rapes, murders
and missing women; newspaper photographs of women; and driver's
licenses and insurance cards belonging to various women.
In addition, officers found handwritten
directions to the home of the victim in this case, her swimming suit
bottom, her quilt and baby blanket, and -- hidden under a pile of
wood -- six newspaper articles about her disappearance.
On January 18, 1990, the defendant admitted to
police that he had visited the victim's home to check on a well he
had helped drill earlier and had spoken to her. He said:
I been a liar all my life. I need some help. If I
done it, I didn't mean for it to happen and I am sorry.
2. Ward complains of the state's use of extrinsic
transactions to establish motive and identity, and contends they
were not sufficiently similar to the crime on trial.
As we stated in Felker v. State,
252 Ga. 351, 359 (1) (a) (314
SE2d 621) (1984):
Similarity between the charged crime and the
extrinsic crime is an important factor pertinent to a determination
of the admissibility of the extrinsic crime. However, it is not the
only factor, nor is it necessarily the controlling factor. "The
ultimate issue in determining the admissibility of evidence of other
crimes is not mere similarity but relevance to the issues in the
trial of the case." Williams v. State, 251 Ga. [749,] 784 [(312
SE2d 40) (1983)]. Depending upon the purpose for which the
extrinsic offense is offered, "the state may be required to prove a
high degree of similarity between relevant characteristics of the
extrinsic offenses and the charged crimes, or it may only have the
burden of showing a logical connection between crimes which are
essentially dissimilar. [Cits.]" Williams v. State, supra, 251 Ga.
at 811. (Smith, J., dissenting.) [Footnote omitted.]
The extrinsic transactions in this case show that
Ward is obsessed with having control and dominance over women and
has engaged in a pattern of ritualistic "stalking" of and collecting
"trophies" from women. The extrinsic transactions were relevant to
explain the nature of the crime and to prove identity by
establishing motive. There was no error in their admission in
3. An FBI agent who specializes in the study of
sex crimes was qualified as an expert witness in the field of sexual
deviation and the behavior of violent sexual offenders. He testified
at the guilt phase of the trial, explaining sexual deviations and
the significance of certain conduct in relation to these deviations.
In addition, he enumerated for the jury objective similarities
between the crime on trial and the Gordon County rape. To this
latter testimony, the defendant objects, contending that the
presence or absence of similarities were matters which the jurors
could determine for themselves. Citing Fordham v. State,
254 Ga. 59 (4) (325 SE2d 755) (1985),
he contends this testimony was impermissible opinion evidence. We do
not agree. The agent's opinion was one of fact, and was not an
inadmissible legal conclusion. The jury was not prevented from
drawing its own conclusions from the facts testified to. See
McCartney v. State, 262 Ga. 156, 159
(1) (414 SE2d 227) (1992).
4. The evidence, although circumstantial,
supports the conviction. Jackson v. Virginia, 443 U. S. 307 (99 SC
2781, 61 LE2d 560) (1979).
5. There was no error in the exclusion of
polygraph evidence from the guilt phase of the trial. Sustakovitch
v. State, 249 Ga. 273, 275 (2) (290
SE2d 77) (1982).
6. Ward raises several issues about the
prosecution's guilt-phase closing argument:
(a) He contends the prosecutor's "make them
explain" argument amounted to a comment upon the defendant's failure
to testify and was an attempt to shift the burden of proof to the
The prosecutor told the jury that the defense was
not obligated to offer any evidence and that the burden of proof was
on the state. The prosecutor's exhortation to "make them explain"
why the state's evidence did not amount to proof beyond a reasonable
doubt was not an attempt impermissibly to shift the burden of proof
to the defendant. United States v. Norton, 867 F2d 1354, 1364, fn.
10 (11th Cir. 1989).
Nor do we view such argument as a manifest
attempt to comment on the defendant's failure to testify, nor would
the jury have "naturally and necessarily" taken it to be such a
comment. Christenson v. State, 261 Ga. 80,
88 (7) (a) (402 SE2d 41) (1991).
(b) Although the defendant was entitled to
cross-examine the Gordon County victim about the issues of consent
and force, the prosecutor likewise was entitled during his closing
argument to comment on that cross-examination in light of the
defendant's guilty plea to rape in Gordon County. The prosecutor did
not improperly limit and belittle the defendant's right to confront
witnesses against him, as the defendant contends.
(c) In response to defense arguments about the
lack of mud inside the victim's car despite evidence that it had
rained the morning she disappeared, the prosecutor wondered,
rhetorically, why the defense was making an issue out of it, because
the car obviously did not drive itself to the place where it was
found. The prosecutor then commented that, unlike defense counsel,
he (the prosecutor) had "grown up in these woods" and that some of
the jurors probably had also. The defendant complains about this
comment. While the prosecutor's reference to his own experience with
"these woods" was doubtless objectionable, Conner v. State,
251 Ga. 113, 122-123 (6) (303
SE2d 266) (1983), we do not find the comment sufficiently
material or prejudicial to warrant reversing the defendant's
(d) The prosecutor argued:
Remember during the rape [in Gordon County], he
would ask her are you having an orgasm, do you enjoy the sex with
me. There are reasons we asked those questions, we can't discuss it
in this part of the case, but there are significant reasons for
asking those questions.
Although this argument warrants our disapproval,
it is too ambiguous to warrant reversal. See Donnelly v.
DeChristoforo, 416 U. S. 637, 647 (94 SC 1868, 40 LE2d 431) (1974).
(e) Although statements of personal opinion
generally are improper, we find no reversible error where the
prosecutor said "I am telling you the truth" while admitting he did
not know where the missing telephone cord was, or what had happened
to some of the missing underwear.
(f) The prosecutor did not argue impermissibly by
telling the jury that convicting the defendant only of involuntary
manslaughter "is like convicting Jack the Ripper or Charles Manson
for disturbing the peace." Todd v. State, 261
Ga. 766, 768 (2) (b) (410 SE2d 725)
(1991). See also Tucker v. Kemp, 762 F2d 1496, 1507 (11th Cir.
(g) It was not impermissible to tell the jury
that the victim's daughter no longer had a mother, her husband no
longer had a wife, and her mother had lost her daughter. Moon v.
State, 258 Ga. 748, 760 (35) (375
SE2d 442) (1988).
(h) Finally, that the crime was sexually
motivated was a reasonable deduction from the evidence. Wade v.
State, 258 Ga. 324, 326-327 (5) (368
SE2d 482) (1988); Patillo v. State,
258 Ga. 255, 257 (2) (368 SE2d 493)
7. Searches of the defendant's home were
authorized either by warrant or by the consent of the defendant's
wife. See Caldwell v. State, 260 Ga. 278,
290-291 (2) (393 SE2d 436) (1990). The
items seized from the home were obviously relevant to the crime and
were properly seized as evidence. The warrants were issued by a
neutral and detached magistrate, Sanders v. State,
151 Ga. App. 590, 591-592 (2) (260
SE2d 504) (1979), and were supported by probable cause. State
v. Alonso, 159 Ga. App. 242 (283 SE2d 57)
(1981). There was no error in the denial of the motion to
8. Ward contends that the trial court erred in
permitting the state to use as a handwriting exemplar a written
statement he made to authorities in the Gordon County case. In the
Gordon County prosecution, the statement was suppressed based on a
violation of Edwards v. Arizona, 451 U. S. 477 (101 SC 1880, 68 LE2d
378) (1981). Ward contends that, since the statement was suppressed,
its use violated his Fifth Amendment right against self-incrimination.
While under State v. Armstead,
152 Ga. App. 56 (1) (262 SE2d 233) (1979),
a defendant cannot be compelled to produce a handwriting exemplar,
it is not error to allow the state to use as a handwriting exemplar
a written statement voluntarily delivered by the defendant, even if
the contents of the statement are later suppressed because of a
violation of the prophylactic rule of Edwards v. Arizona, supra, 451
U. S. Cf. Martin v. Wainwright, 770 F2d 918, 928 (11th Cir. 1985) (confessions
inadmissible because of violation of "per se" bar are not
necessarily involuntary -- fruits of voluntary statements are not "tainted").
9. After the defendant has requested counsel, the
police may not initiate questioning. Edwards v. Arizona, supra. "However,
the defendant himself may initiate further communications with the
police." Housel v. State, 257 Ga. 115,
121 (1) (d) (355 SE2d 651) (1987). The
record supports the trial court's findings that Ward initiated
communications with the police and waived his Miranda rights. His
statement (see Division 1 of this opinion) was properly admitted.
10. By its verdict of malice murder, the jury
found that Ward intended to kill his victim. The evidence supports
this finding. Hence, there is no merit to Ward's contention that he
should not have been sentenced to death because he did not intend to
kill. See Jefferson v. State, 256 Ga. 821,
829 (353 SE2d 468) (1987).
11. Since Ward was not found guilty but mentally
ill, we do not address his contention that guilty but mentally ill
defendants are ineligible for a death sentence. See Spraggins v.
State, 258 Ga. 32, 34 (3), fn. 2 (364
SE2d 861) (1988). Compare Fleming v. Zant,
259 Ga. 687 (386 SE2d 339) (1989).
12. There was no manifest error in the denial of
Ward's motion for change of venue. Tharpe v. State,
262 Ga. 110 (5) (416 SE2d 78) (1992).
13. A criminal defendant is not entitled to a
post-indictment committal hearing. Spears v. Johnson,
256 Ga. 518 (350 SE2d 468) (1986). See
also Pruitt v. State, 258 Ga. 583, 585
(2) (373 SE2d 192) (1988).
14. The offense of feticide is defined in OCGA
16-5-80 (a) as follows:
A person commits the offense of feticide if he
willfully kills an unborn child so far developed as to be ordinarily
called "quick" by any injury to the mother of such child, which
would be murder if it resulted in the death of such mother. [Emphasis
Ward argues that the emphasized language of this
definition precludes a conviction for both murder of the mother and
feticide. We disagree with Ward's statutory analysis. We find that
the emphasized language
contributes specificity to the offense. A jury
must make a factual finding that defendant's actions, had they
resulted in death to the mother, would have constituted murder. [
Smith v. Newsome, 815 F2d 1386, 1388 (3) (11th Cir. 1987).]
Moreover, the "same conduct" of an accused may
support his conviction of more than one crime so long as one crime
is not included in the other crime as a matter of law or of fact.
State v. Estevez, 232 Ga. 316 (206 SE2d 475)
(1974). In this case neither crime was included in the other
as a matter of law or of fact, and it was not error to convict Ward
of both offenses. See Potts v. State, 261 Ga.
716 (1) (410 SE2d 89) (1991).
15. The statutory voir dire questions, see OCGA
15-12-164, do not conflict with or in
any way impinge upon the defendant's presumption of innocence.
16. A criminal defendant is not entitled to a
transcript of the grand jury proceedings. Frazier v. State,
257 Ga. 690, 692 (6) (362
SE2d 351) (1987). See Isaacs v. State,
259 Ga. 717, 719-721 (2) (386 SE2d 316)
17. No error has been shown in the selection of
grand jury forepersons in Walker County. See Ingram v. State,
253 Ga. 622, 626-627 (1) (c) (323
SE2d 801) (1984).
18. The trial court did not abuse its discretion
by admitting in evidence gruesome photographs of the victim's body
at the crime scene after the defendant made an issue of the length
of time the body had lain there. See Taylor v. State,
261 Ga. 287, 292 (6) (404
SE2d 255) (1991).
19. On June 10, 1991, the defendant filed a
motion to recuse the trial judge on the ground that his professional
and personal relationship with another trial judge in the circuit,
who was the victim's uncle, "reasonably calls into question the
impartiality" of the trial judge. In the motion it was conceded that
the defense was aware of the familial relationship between the
victim and the other judge in the circuit and had not filed a motion
to recuse for almost a year, but claimed that "having had the
opportunity to personally watch [the trial judge], the defendant"
distrusted "the situation."
An outside judge was assigned to hear the motion.
After a hearing based upon the motion as filed and a stipulation of
facts, the judge assigned to hear the motion ruled against it on
three grounds: First, the motion was not timely filed; second, the
motion's "bare conclusions" of lack of impartiality were not legally
sufficient to support the motion or to warrant further proceedings;
and, third, other than the bare fact that another trial judge in the
circuit was the uncle of the victim (whom the trial judge did not
know), nothing had been presented that might call into question the
impartiality of the trial judge. The order denying the motion noted
that if "friendship and association" with the victim's uncle were
sufficient to require recusal, "almost every judge of this state
would be disqualified."
There was no error. See Rule 25.2 of the Uniform
Rules of Superior Court; Code of Judicial Conduct, Canons 2 and 3;
Romine v. State, 251 Ga. 208, 210 (2)
(305 SE2d 93) (1983).
20. There was no error in the denial of the
defendant's challenges to the jury array. The defendant complains of
the use of the 1980 census figures rather than the 1990 census
figures to compile the jury lists. The record shows, however, that
the 1990 figures were not available when the jury lists were drawn
up. Moreover, the defendant has not pointed to any significant
disparity resulting from the use of the 1980 figures. See Frazier v.
State, supra, 257 Ga. at 691 (2); Lipham v. State,
257 Ga. 808, 811-812 (5) (364
SE2d 840) (1988).
21. There is no merit to the contention that the
Unified Appeal Procedure is unconstitutional. Isaacs v. State, supra,
259 Ga. at 722 (7).
22. Death-qualification of prospective jurors is
not improper. Moon v. State, 258 Ga. 748,
761 (40) (375 SE2d 442) (1988). The
trial court's rulings on the qualifications of the prospective
jurors were within the deference due the trial judge's determination."
Jefferson v. State, 256 Ga. 821, 824
(2) (353 SE2d 468) (1987).
23. The defendant is not entitled to separate
juries for the guilt and sentencing phases of the trial. Miller v.
State, 237 Ga. 557, 559 (229
SE2d 376) (1976).
25. The court's instructions on the credibility
of witnesses were not error. Noggle v. State,
256 Ga. 383, 385-386 (4) (349 SE2d 175)
26. Although the pattern charge on extrinsic
transactions is not immune to criticism, we do not find that its
delivery in this case amounts to reversible error.
27. The court's instructions on "reasonable doubt"
were not erroneous. Potts v. State, supra, 261 Ga. at 723 (14);
Bradford v. State, 261 Ga. 833, 835
(2) (412 SE2d 534) (1992). But see
Vance v. State, 262 Ga. 236, 238 (2),
fn. 5 (416 SE2d 516) (1992), in which
we disapproved the use of the phrase "moral and reasonable certainty"
when charging on reasonable doubt.
28. General deterrence is a "valid penological
justification[ ] for the imposition of the death penalty." Conner v.
State, supra, 251 Ga. at 122 (5). The court did not err by refusing
the defendant's request to charge the jury not to consider general
deterrence. See Walker v. State, 254 Ga. 149,
159 (14) (327 SE2d 475) (1985).
29. The court's sentencing-phase instructions on
the state's burden of proof were sufficient. Although the court did
not state specifically that there was a presumption" in favor of a
life sentence, the court told the jury that a death sentence "shall
not be imposed" unless the state proved the existence of at least
one statutory aggravating circumstance beyond a reasonable doubt,
and told the jury that it could impose a life sentence even if the
state proved the existence of statutory aggravating circumstances.
See Moon v. State, supra, 258 Ga. at 749 (1).
The court did not err by refusing to deliver the
defendant's requested instruction not to consider extrinsic crimes
admitted in general aggravation unless proved beyond a reasonable
doubt. While statutory aggravating circumstances must be proved
beyond a reasonable doubt, the jury is not required to "evaluate
each and every evidentiary vignette pursuant to the reasonable doubt
standard." Ross v. State, 254 Ga. 22,
31 (5) (d) (326 SE2d 194) (1985).
30. Nor was it error not to instruct the jury on
the mitigating circumstances of mental disturbance and "residual
doubt." It is well settled that mitigating circumstances need not be
specifically identified in charge. Taylor v. State,
261 Ga. 287, 295 (11) (404
SE2d 255) (1991).
31. The trial court properly charged the
necessity for unanimity in the jury's verdict. Potts v. State,
259 Ga. 96, 104 (20) (376
SE2d 851) (1989).
32. A proper foundation was laid for the
admission in aggravation of the defendant's prior guilty pleas. See
Spencer v. State, 260 Ga. 640, 647-649
(10) (398 SE2d 179) (1990).
33. The evidence supports the jury's finding that
the offense of murder occurred during the commission of the offense
of another capital felony. OCGA 17-10-30
(b) (2). Although the jury's verdict did not specify the supporting
capital felony, the only one charged was kidnapping with bodily
injury. Absent objection to the form of the verdict, the jury's
finding was sufficiently clear to allow us to rationally review the
verdict. Jefferson v. State, supra, 256 Ga. at 828 (9).
34. The court's instructions on the b (1)
circumstance were incorrect. OCGA 17-10-30
(b) (1). As to this circumstance, but not the b (2) circumstance
discussed above, the court erroneously stated to the jury that "kidnapping"
is a capital felony. As we have noted previously, kidnapping with
bodily injury is a capital felony but kidnapping is not. Crawford v.
State, 254 Ga. 435, 441 (5) (330
SE2d 567) (1985). The erroneous instruction does not amount
to reversible error, however. The jury's b (2) finding is valid and
is sufficient to support the death sentence. Since the evidence
admitted in support of the b (1) circumstance was properly admitted
and considered anyway, the erroneous instruction relative to the b
(1) circumstance does not taint the jury's b (2) finding or its
decision to impose a death sentence based upon all the facts and
circumstances of the case. Zant v. Stephens,
250 Ga. 97 (297 SE2d 1) (1982).
35. We do not find that the jury's decision to
impose a death sentence was impermissibly influenced by passion,
prejudice or other arbitrary factor. OCGA
17-10-35 (c) (1).
36. Ward's death sentence is neither excessive
nor disproportionate to penalties imposed in similar cases
considering both the crime and the defendant. OCGA
17-10-35 (c) (3). The similar cases
listed in the Appendix support the sentence imposed in this case.
1 The crime occurred August 17,
1989. The case was tried June 24 through July 12, 1991. A motion for new
trial was duly filed and denied after hearing on August 30, 1991. An
appeal was docketed in this court on October 16, 1991, and oral
arguments were heard January 14, 1992.
Ralph Van Pelt, Jr., District Attorney,
Mary Jane Palumbo, Michael J. Moeller, Assistant District
Attorneys, Michael J. Bowers, Attorney General, Susan V.
Boleyn, Senior Assistant Attorney General, Peggy R. Katz,
Staff Attorney, for appellee.
Christopher A. Townley, Gleason, Davis &
Dunn, David J. Dunn, Jr., for appellant.
DECIDED JUNE 11, 1992 -- RECONSIDERATION DENIED
JULY 2, 1992.
Jamie Ray Ward