Eurus Kelly Waters, 52, was
sentenced to death in January 1981 in Glynn County for killing a teen-age
girl and a woman.
On April 25, 1980, emergency workers found 35-year-old
Kathryn Ann Culpepper bleeding from a chest wound. She described Mr.
Waters and his car and told police that she and her friend, 16-year-old
Anita Lynette Paseur, were fishing when accosted.
Anita's body was found
that night on a back road, and Ms. Culpepper died five days later.
Waters, a Waycross cab driver, had been treated for mental illness since
1978. His case was sent back to the trial court on the issue of mental
retardation in December 1995.
(248 Ga. 355)
(283 SE2d 238)
Murder. Glynn Superior Court. Before Judge Killian.
Appellant, Eurus Kelly Waters, was indicted May
13, 1980 for the murders of Anita Lynette Paseur and Kathryn Ann
Culpepper. He was found guilty of both murders and sentenced to
death. Waters' defense was insanity; the evidence is undisputed that
Waters killed Ms. Paseur and Ms. Culpepper.
At 4:33 p.m. on Friday, April 25, 1980, EMT's (Emergency
Medical Technicians) with the Jekyll Island Fire Department received
a call reporting a shooting at a Phillips 66 station on Jekyll
Island. When they arrived at the station, Kathryn Culpepper was
sitting in a red AMC Gremlin automobile. She had a gunshot entry
wound in her chest and an exit wound in the area of her left kidney.
A pair of handcuffs was fastened to her left wrist. As she was being
placed into the ambulance, she asked one of the EMT's to get her
purse out of the car; however, he was unable to locate it.
A state trooper who had also responded to the
call asked Ms. Culpepper what had happened. She told him that while
she and a girlfriend had been fishing, a white male had pulled a gun
on them, made them march into the woods, handcuffed them, sexually
assaulted her, and then shot both of them. She thought the other
woman was dead.
The body of the other woman, Anita Paseur, was
found approximately two miles south of the Phillips 66 station in
what is known as the New Marina area of Jekyll Island. She was lying
on her back, clothed from the waist up, with her bathing suit bottom
and shorts pulled down to her ankles. She had a bullet wound in the
upper left part of her chest.
A later autopsy showed that Ms. Paseur's death
resulted from the gunshot wound. A .38 caliber bullet was removed
from her during the autopsy. A GBI agent, using a metal detector at
the crime scene, found another .38 caliber bullet under some leaves
about 10 feet from where Ms. Paseur had been found.
GBI agent Scott Curley talked to Ms. Culpepper in
the hospital. He obtained a description of the killer, his car, his
gun and holster, and Ms. Culpepper's missing pocketbook Agent Curley
then posted a lookout for a white male in his late thirties, of
average height, with light brown hair and light blue eyes, having a
country accent, and wearing a light blue shirt, dark blue pants and
black shoes; for an older model white, 4-door Pontiac or Buick
automobile with a Georgia tag; for a .38 or .357 police-type
revolver; for a black leather holster; and for a burgundy colored,
John Romain shoulder bag containing personal items belonging to
Kathryn Culpepper died April 30. The cause of her
death was excessive fluid around the heart and the pericardium,
caused by the trauma directly beneath her heart, in the liver and
pancreas, which in turn was caused by the bullet wound.
Eurus Kelly Waters was a cab driver in Waycross.
He worked half a day Wednesday, April 23 and Thursday, April 24. He
did not work at all on Friday.
Dorothy Googe was lying by herself on the beach
at Jekyll Island early Friday afternoon. A fully dressed man,
wearing long, dark pants, a blue shirt, and black shoes, walked by
her toward the picnic area. He returned twice during the next few
minutes to show her some shells he had collected. The second time,
Ms. Googe told him she didn't want any company. When he approached
her a third time, she told him she had to go down to where her
husband and son were and she left. The man spoke with a country
accent. Ms. Googe later identified Waters, by means of a
photographic lineup, as the man on the beach.
Between 4:30 and 5:00 p.m. Friday, Brantley
County Deputy Sheriff Jerry Rowell was travelling west on Highway
84. As he came over the top of the Satilla River Bridge, he had to
slow down to 20 miles per hour behind a white 4-door 1974 Chevrolet.
After following the car for a while, Deputy Rowell, suspecting the
driver was intoxicated, stopped the car. When the driver opened his
door, Rowell saw a Motorola police-type radio on the transmission
hump and asked the driver if he worked for a timber company. The
driver told him no, he was a part-time cab driver in Waycross.
Deputy Rowell decided the driver was not intoxicated and let him
proceed. He later identified Waters, by means of a photographic
lineup, as the driver of the car.
On the afternoon of Thursday, May 1, 1980, Ms.
Culpepper's burgundy colored, John Romain shoulder bag, containing
various credit cards but no cash, was found on the west bank of the
Satilla River just under the Satilla River Bridge. The Satilla River
Bridge is 33.2 miles from the New Marina area of Jekyll Island.
Waters told his wife, Helen, when he got home the
evening of the 25th that he was late because he had got stuck in the
swamp. He went back to work Saturday. Next Tuesday, April 29, Helen
Waters read an article in the paper about the murders on Jekyll
Island. The article gave a description of the suspect.
She turned to her husband and said, "Kelly, this
murder, these things that's happened on Jekyll Island, this
description fits you." Waters looked at her for a few seconds and
then said, "call Judy." When Judy Petty, Waters' sister, arrived,
Waters started crying and said, "Sister, I think I may have killed
some people. If I have done this thing, I want to die." He continued
crying for most of the rest of the evening. Ms. Waters got her
husband's gun, which was fully loaded, out of the bedroom dresser,
and hid it under the sink.
A few minutes later, another of Waters sisters,
Georgia Rainey, and her husband arrived. Mr. Rainey got the gun out
and smelled it to see if it had been fired. He couldn't smell
anything. He unloaded the gun and Ms. Waters hid the bullets under
the television and put the gun back under the sink. After some
discussion, the family decided not to call the police at that time;
Ms. Petty would try to get in touch with a friend of hers, Ed Dixon,
a Glynn County policeman, and ask him what to do.
Waters and his wife spent Tuesday night with Judy
Petty in Brunswick. The next morning, the three of them went to the
mental health clinic in Waycross that had been treating Waters since
1978. He was given a shot of Prolixin Decanoate, a long term major
Waters told his family that he wasn't sure where
he was Friday but he thought he had got stuck in the swamp and had
broken a shovel trying to dig his car out. They went to see if they
could find the place. Waters drove to a place showing signs that an
automobile had been stuck. Nearby was a broken shovel handle. Waters
spent Wednesday night at home.
Ms. Petty finally reached Ed Dixon Saturday, May
3. Sunday afternoon, Waters' pistol was given to Dixon, who turned
it over to GBI agent Curley. Monday afternoon Agent Curley and
Detective Wofford went to the Waters' residence in Waycross and
asked Waters to accompany them to the State Patrol station in
Waycross, two or three miles from Waters' house. There, after
advising Waters of his rights, Agent Curley interrogated him. Waters
said he couldn't really remember what he had done Friday afternoon
but thought he may have got stuck in a swamp. He remembered that he
had been wearing a light blue shirt, dark blue trousers and black
He admitted owning the .38 caliber pistol that
had been given to Agent Curley. He admitted owning a black leather
holster and a pair of handcuffs, but he couldn't remember where the
cuffs were. He agreed to go back to the house to allow Agent Curley
to look at the clothes, the holster and the ammunition for the gun.
They went back to Waters' house. Helen Waters got
the ammunition and the holster and gave them to Agent Curley. Waters
retrieved a light blue shirt and dark blue pants that he identified
as being the ones worn by him on April 25th. At 4:15 p.m., Monday,
May 5, 1980, Waters was placed under arrest.
On Wednesday, May 7, 1980, Agent Curley again
questioned Waters. Curley told Waters he had been seen on Jekyll
Island about 1:00 p.m. April 25th. Waters responded that he had been
drinking that week. Agent Curley told Waters he thought Waters had
done the killings. Waters looked down and then said, "All right.
I'll tell you what I remember. I remember being on the beach that
Friday. I remember shooting those two women. I saw them fishing, and
I pulled my gun on them and sexually assaulted them. I remembered
last night what happened." He went on to say that he saw the two
women fishing and watched them awhile. As they were getting ready to
leave, he walked up to them, pulled his gun out of his hip pocket
and made them accompany him into the woods. He gave the older woman
(Ms. Culpepper) the handcuffs and ordered her to handcuff herself to
the younger woman (Ms. Paseur). He admitted having oral sex with the
older woman. He said he shot the two women because after he got
through with the oldest one, they flinched toward him. He said he
did not touch the younger woman except to tear her clothes off after
he shot her. He said that as he left, he got a pocketbook out of
their car, took seven dollars out of it, and threw the rest off the
Satilla River bridge on the way home. He remembered being stopped by
a deputy right after he threw the pocketbook away. When he got home
he sprayed his gun with degreaser, reloaded it, and put it up.
Agent Curley showed Waters an aerial photograph
of the New Marina area of Jekyll Island. Waters marked on the
photograph where he had parked his car and where the women had been
fishing. He drew a line indicating his path from the place of
abduction to the place where the sex act and killings had taken
place. The last area he indicated was precisely where the body of Ms.
Paseur had been found.
Roger Parian of the State Crime Lab examined the
bullets and the gun. Five of the six bullets given to Agent Curley
by Ms. Waters were Federal brand, .38 caliber Plus P semi-wadcutter
hollow point cartridges. The other was a Federal brand, .38 Plus P
round-nose lead cartridge. The bullet removed from the body of Ms.
Paseur and the bullet found at the murder scene were .38 caliber
semi-wadcutter hollow point lead bullets, probably Federal brand.
The two death bullets had six lands and grooves with a right-hand
twist and were probably fired from a Taurus or Rossi brand revolver.
Test bullets fired from Waters' Taurus revolver showed similar lands
and grooves but had microscopic striations distinctly different from
those on the two death bullets. A subsequent examination of the
barrel of Waters' gun with a stereo microscope revealed randomly
placed nicks and gouges throughout the barrel, possibly caused by
the insertion of a hard object such as a screwdriver into the barrel.
Waters' testimony during the trial was basically
consistent with his confession. Additionally, he testified that he
had twice tried to commit suicide. In 1964 he shot himself in the
stomach with a .22 caliber rifle. In 1966 he drank a mixture of
rubbing alcohol and white linament. He testified that he had been on
medication for some time and that if he didn't take the medicine for
three or four days, he would get very upset and emotional. He
testified that he had not taken his medicine for several days prior
to the killings.
Dr. Wiley Lewis began treating Waters in 1978 for
an unspecified mental illness whose symptoms included agitation,
anxiety, and restlessness. As a part of the treatment, Waters began
taking Thorazine. Dr. Lewis testified that the last time he saw
Waters, in July, 1979, Waters knew the difference between right and
Lecumberri last saw Waters November 26, 1979, at
which time Waters was not psychotic, was in good contact with
reality, and knew the difference between right and wrong.
Waters returned approximately every four weeks to
the mental health clinic for medication monitoring until March 19,
1979. He did not return thereafter until April 30, when as
previously stated, he was given an injection of Prolixin Decanoate.
After Waters was arrested, he was examined by Dr.
Miguel Bosch, a psychiatrist in charge of the forensic psychiatric
service at the Georgia Regional Hospital in Savannah, and Jerry
Bowman, a psychologist for the forensic services program at the same
hospital. Dr. Bosch concurred in the previous diagnosis of paranoid
schizophrenia. However, he found Waters to be well oriented as to
time, place, person, and situation. Waters' speech was coherent,
relevant, and logical, and his thought processes showed no confusion
or disorganization. He was not actively psychotic at the time of the
examination nor, in Dr. Bosch's opinion, at the time he killed the
two women on Jekyll Island. It was Dr. Bosch's opinion that on April
25, 1980, Waters was able to judge right from wrong and was not
acting under the influence of a delusional compulsion. Ms. Bowman
testified that she was unable to form an opinion as to whether
Waters knew or did not know right from wrong on April 25, 1980.
Waters was sent to Central State Hospital in
Milledgeville for additional evaluation. He was examined by Dr.
Hosea M. Delatorre, the medical director of the forensic services
division at the hospital, and Dr. Gerald Lower, the chief
psychologist of the forensic services division. Dr. Delatorre did
not concur in the diagnosis of schizophrenia; his diagnosis was
anxiety neurosis. He testified that a person who feels anxious
reacts differently than normal people, exaggerates his actions, and
perhaps becomes violent at times, but is always in good contact with
reality. In his opinion, Waters knew the difference between right
and wrong at the time of the examination. Dr. Lower concluded that
Waters knew the difference between right and wrong at the time of
Several lay witnesses, including Ben Rainey,
Waters' brother-in-law, and Bobby Gene Strickland, a long time
friend of Waters, testified that Waters knew the difference between
right and wrong.
The Guilt-Innocence Phase
(1) Defendant claims the trial court erred in
denying his motion for change of venue. When a defendant moves for a
change of venue, a trial judge must "hear evidence by affidavit or
oral testimony in support of or against the motion; and if, from the
evidence submitted, the court shall be satisfied that an impartial
jury cannot be obtained to try the case, the judge shall transfer it
. . ." Code Ann. 27-1201. Defendant's motion came on for a hearing
December 2, 1980. Defendant presented testimony from representatives
of the Florida Times Union, the Savannah Morning News and the
Savannah Evening Press, the Brunswick News, and radio station WMOG.
Thirty-five exhibits, consisting of articles from the newspapers and
transcripts of radio broadcasts, were introduced into evidence.
These accounts, most of which had apparently occurred several months
prior to the hearing, were largely factual in nature. Compare Murphy
v. Florida, 421 U. S. 794 (95 SC 2031, 44 LE2d 589) (1975). The
State offered testimony from various witnesses, including several
defense attorneys, that Waters could get a fair trial in Glynn
"The decision to grant a change of venue lies
within the discretion of the trial court, and its discretion will
not be disturbed absent an abuse of that discretion . . . The test
adopted by this court in determining whether or not a change of
venue should be granted is whether the jurors summoned to try the
case have formed fixed opinions as to guilt or innocence from
unfavorable pre-trial publicity." Patterson v. State,
239 Ga. 409, 418 (238
SE2d 2) (1977). Accord, Messer v. State,
247 Ga. 316 (4) (276 SE2d 15) (1981);
Jordan v. State, 247 Ga. 328 (5) (276 SE2d
This case was tried January 19 through January
24, 1981. Seventy prospective jurors were examined. Most of them had
heard at least something about the killings on Jekyll Island and the
subsequent search for the killer. However, only twenty entertained
any opinion at all as to defendant's guilt; only sixteen were
challenged by defendant for prejudice resulting from pre-trial
publicity; and only ten were excused by the trial court because they
had stated they would not be able to put aside any prejudice arising
out of the pre-trial publicity and render a verdict based upon the
Only 22.9 percent of the veniremen were
challenged by the defendant for prejudice resulting from pre-trial
publicity and only 14.3 percent were excused because they had fixed
opinions of defendant's guilt as a result of pre-trial publicity.
Either percentage would corroborate the absence of prejudicial
community bias and we conclude the trial court did not abuse his
discretion in denying defendant's motion for change of venue. Messer
v. State, supra.
(2) Defendant claims the trial court erred in
refusing to disqualify five potential jurors because the answers
they gave during voir dire showed them to be prejudiced as a result
of pre-trial publicity.
All of the five jurors admitted they had formed a
belief as to defendant's guilt based on newspaper articles or radio
newscasts. None had either seen the crime committed or heard any
evidence under oath. One said initially that the defendant would
have to put up evidence to overcome her belief of his guilt.
However, they all said they could put aside any
preconceived notions they might have and decide the case based on
the evidence presented and the law as charged to them by the court.
Four of them, including the one who initially indicated the
defendant would have to put up evidence, were informed of and
indicated agreement with the defendant's presumption of innocence
and the burden of proof resting on the State.
"When a prospective juror has formed an opinion
based on hearsay (as opposed to being based on hid having seen the
crime committed or having heard the testimony under oath), to
disqualify such individual as a juror on the ground that he has
formed an opinion on the guilt or innocence of a defendant, the
opinion must be so fixed and definite that it would not be changed
by the evidence or charge of the court upon the trial of the case."
Tennon v. State, 235 Ga. 594, 595-96 (220
SE2d 914) (1975). Accord, Taylor v. State,
243 Ga. 222 (253 SE2d 191) (1979).
"Our strict rules as to juror disqualification
for favor are offset by the large number of peremptory strikes
allowed a defendant in most felony cases, 20 strikes for the
defendant, 10 for the
death penalty. One juror was disqualified because
of his service on the grand jury that had indicted Waters. Two
others were struck, because of an inability to decide the case based
on the evidence, for reasons unrelated to pre-trial publicity: one
was a friend of Ms. Culpepper and her family; the other had a niece
who had killed her (the niece's) husband and spent time in a mental
institution. Altogether 19 jurors were struck from the panel,
leaving the parties with 51 prospective jurors from which to obtain
12 jurors and two alternates.
prosecution." Jordan v. State, supra, 247 Ga. at
The trial court did not err in refusing to grant
defendant's challenges for cause.
(3) During voir dire, defendant's counsel asked
one of the prospective jurors: "If the State's evidence shows that
Mr. Waters did the shooting, and if he himself said he did the
shooting, would you be willing to listen to any other evidence about
how it could have happened? [the juror: If he states . . .] Say he
wasn't in his right mind when he shot them, would you listen to that?"
The State's objection to the question was sustained by the trial
court. Defendant contends the trial court erred in so ruling.
Code Ann. 59-705 outlines the permissible scope
of voir dire. Jordan v. State, supra, 247 Ga. at 339. Voir dire
should allow both parties an opportunity to ascertain the ability of
the prospective jurors to decide the case on its merits, with
objectivity and freedom from bias and prior inclination. Whitlock v.
State, 230 Ga. 700 (198 SE2d 865) (1973).
However, no question should require a response from a juror which
might amount to a prejudgment of the case. Jones v. Parrott,
111 Ga. App. 750 (2) (143 SE2d 393) (1965).
Since the distinction between questions which ask jurors how they
would decide issues of a case if and when such issues are presented
and questions which merely inquire whether jurors can start the case
without bias or prior inclination is not always crystal clear, the
"control of the voir dire examination is vested in the sound legal
discretion of the trial judge and will not be interfered with by
this court unless the record clearly shows an abuse of that
discretion." Lamb v. State, 241 Ga. 10,
12 (243 SE2d 59) (1978).
Hypothetical voir dire questions are not per se
improper, Atlanta Joint Terminals v. Knight,
98 Ga. App. 482 (4) (106 SE2d 417) (1958), but a trial judge
should be cautious in allowing counsel to propound questions which
ask the juror to assume that certain facts will be proven. Such
questions tend to improperly influence jurors. See, generally, 99
ALR2d 7, Anno: Jury-Voir Dire-Hypothetical Question.
The question propounded was ambiguous and
confusing. Defendant's counsel now contends he was merely trying to
ascertain whether the juror would refuse to consider an insanity
defense regardless of the evidence or the charge of the court.
However, the trial court, while sustaining the objection to the
question as asked, informed counsel that he would be allowed to ask
the juror if she would consider an insanity defense in light of the
charge of the court, provided counsel did not attempt to predict
what the evidence would show. Counsel chose not to ask the question
in the manner suggested by the trial court. The juror did later
state that she could decide the case based on the evidence presented
and the law as charged by the court. We find no abuse of discretion
and no merit to this enumeration of error.
(4) Defendant claims the trial court improperly
sustained the State's objection to the following hypothetical
question asked of Dr. Wiley Lewis, a medical doctor engaged in
general practice in Waycross: "If the patient, Kelly Waters, on
April 25, 1980, went up to two women whom he'd never seen before in
a remote area of Jekyll Island, Georgia, caused them to be
handcuffed together, caused them to lie down, caused one of them to
undress from the waist down, committed oral sex with one of them,
with that one, and then upon their flinching shot both of them with
a .38 caliber revolver, what would be your opinion as to his mental
The State's objection was that the defendant was
asking the witness to draw a conclusion based on facts with which
the witness was not personally familiar. However, a witness who has
qualified as a practicing physician is qualified to testify as an
expert witness on the question of sanity. Williams v. Trust Co. of
Ga., 180 Ga. 73 (2) (178 SE 295) (1934);
Petty v. Folsom, 229 Ga. 477 (192 SE2d 246)
(1972). The opinion of an expert "may be given on the facts
as proved by other witnesses." Code Ann. 38-1710. The question
should have been allowed, and the trial court erred in sustaining
the State's objection.
Later in the trial, the court told defendant's
counsel that, after further consideration, he was not sure the
question was improper and if counsel wanted to recall the witness
and repeat the question the court would allow him to do so.
Defendant was, in fact, allowed to ask virtually identical
hypothetical questions of two other doctors. Dr. Lecumberri was
unable to answer the question. Dr. Bosch responded that the question
had two answers: the person knew what he was doing, or the person
did not know what he was doing; either would be consistent with the
hypothetical facts. After neither of these two witnesses could
answer the hypothetical questions, defendant elected not to recall
In view of defendant's failure to re-ask the
question when provided an opportunity to do so, we find this
enumeration of error to be without merit.
(5) Defendant contends the trial court improperly
sustained the State's objection to a question propounded to Bobby
Gene Strickland, a co-worker and friend of defendant for seven or
eight years: "Now, the kind of fellow that you knew Kelly Waters to
be, and from the length of time that you had known him, would you
say that, in your opinion, if he had kept the same faculties about
him that you knew him to have and retained the same personality you
knew him to have, do you think he was the kind of man that could
have shot two women?"
Strickland had already testified that Waters had
always acted normal to him; Strickland noticed nothing unusual about
his behavior. Strickland testified Waters didn't drink much, never
got into trouble; he was a well-behaved, accommodating, somewhat
timid person. He subsequently testified that Waters was sane and
knew the difference between right and wrong.
Defendant contends the question asked for an
opinion as to his mental competence and that the court erred in
sustaining the objection to the question because it kept the witness
from expressing an opinion on a crucial point of Waters' defense of
insanity. The State concedes a lay witness may ordinarily give his
opinion as to the state of mind or mental condition of another, see,
Dix v. State, 238 Ga. 209 (2) (232 SE2d 47)
(1977) and Jarrard v. State, 206 Ga.
112 (2, 3, 4, 5) (55 SE2d 706)
(1949), but argues a lay witness may not answer a hypothetical
question incorporating facts not testified to by the witness. See,
Callahan v. State, 209 Ga. 211 (2) (71 SE2d
We cannot agree that the question was improper
because it incorporated facts not testified to by the witness.
However, we do not agree with the defendant that the trial court
erred in sustaining the State's objection to the question.
Strickland could not give an opinion as to
defendant's sanity at the time of the offense; he wasn't there, and
a lay witness must testify from personal observation. He could, and
did, testify that Waters was sane and acted normal prior to the
murders. This, of course, was circumstantial evidence that Waters
was sane at the time of the offense. It is apparent that the
question was designed to show indirectly what could not be shown
directly: that Waters was insane at the time of the offense.
Defendant wished to show inferentially that since he was ordinarily
not the kind of man that would shoot two women, he must have been
insane when he did in fact shoot two women. The question did,
therefore, as defendant contends, relate to his defense of insanity.
The question, essentially, was: "Was the Kelly
Waters you knew the kind of man that could have shot two women?" The
question calls for an opinion of the defendant's character.
Character is circumstantial evidence of conduct and state of mind.
McCormick on Evidence, Ch. 17, 188 (2d Ed. 1972). A person is more
likely to act in accord with his character than contrary to it.
Green, Ga. Law of Evidence, 65, p. 160. Thus a defendant may present
evidence of his good character as a substantive fact indicative of
his innocence. It may, by itself, create a reasonable doubt as to
his guilt. Seymour v. State, 102 Ga. 803,
805 (30 SE 263) (1897).
However, the rule in Georgia is that good
character may be proved only by testimony of a witness as to the
reputation of the person whose character is in issue. Powell v.
State, 101 Ga. 9 (29 SE 309) (1897);
Wilson v. State, 190 Ga. 824 (3) (10 SE2d
861) (1940). Subject to minor exceptions, the opinion of a
witness as to character based on personal observation is not an
approved way of introducing evidence of character. Agnor's Georgia
Evidence, 10-4, p. 166. Therefore, the trial court did not err in
disallowing defendant's question calling for such an opinion.
(6) The trial court did not err in refusing to
give defendant's request to charge on insanity. "The failure to give
requested instructions in the exact language requested, where the
charge given substantially covers the same principles, is not
grounds for reversal." Kelly v. State, 241 Ga.
190 (4) (243 SE2d 857) (1978).
(7) The trial court did not err in charging the
jury on flight as evidence of guilt. That Waters did not remain at
the scene of the offense is circumstantial evidence of his guilt and
of his knowledge of his guilt. This is particularly true when
coupled with his efforts to conceal evidence (throwing the purse
into the river and spraying the gun with degreaser).
(8) The evidence presented at trial has been set
out previously in great detail. The evidence supports the two guilty
verdicts and the necessarily included finding by the jury that
Waters was sane.
After finding Waters guilty on both counts, the
jury found three aggravating circumstances as to each murder. As to
Count One of the Indictment (the murder of Anita Paseur), the jury
found the murder was committed during the commission of the capital
felonies of kidnapping with bodily injury of Kathryn Culpepper, the
murder of Kathryn Culpepper, and the aggravated sodomy of Kathryn
Culpepper. As to Count Two of the Indictment (the murder of Kathryn
Culpepper), the jury found the murder was committed during the
commission of the capital felonies of kidnapping with bodily injury
of Anita Paseur, the murder of Anita Paseur, and the aggravated
sodomy of Kathryn Culpepper. The jury recommended the punishment of
death as to each count.
(9) Defendant contends the trial court should not
have charged kidnapping to the jury during the sentencing phase of
the trial because there was no evidence to show a kidnapping
occurred, in that there was no "abduction" or "stealing away."
"A person commits kidnapping when he abducts or
steals away any person without lawful authority or warrant and holds
such person against his will." Code Ann. 26-1311. The undisputed
evidence showed that Waters forced two women at gunpoint to march
100 yards from their car to a woods. The evidence thus shows a
kidnapping did occur. See Brown v. State, 132
Ga. App. 399 (2) (208 SE2d 183) (1974); Carroll v. State,
143 Ga. App. 230 (237 SE2d 703) (1977);
Rubiano v. State, 147 Ga. App. 142 (2) (248
SE2d 207) (1978).
(10) The trial court did not err in failing to
charge whether or not aggravated sodomy can constitute bodily injury,
with respect to the aggravating circumstance of kidnapping with
bodily injury, in the absence of a request for such a charge by the
defendant or the jury. That Code Ann. 26-1311 does not define "bodily
injury" does not render that portion of the statute punishing
kidnapping with bodily injury unconstitutionally vague. Peek v.
State, 239 Ga. 422 (4) (238 SE2d 12) (1977).
A bodily injury includes any injury to the body. Since both victims
of the kidnappings were killed, they received injuries to their
bodies. The failure of the court to instruct the jury that an
aggravated sodomy can constitute a bodily injury within the meaning
of the kidnapping statute, Presnell v. State,
243 Ga. 131 (1) (252 SE2d 625) (1979), could only have been
beneficial to the defendant.
(11) Defendant contends aggravating circumstance
number one of Count Two (alleging the murder of Kathryn Culpepper
was committed while the offender was engaged in the commission of
another capital felony, kidnapping with bodily injury to Anita
Lynette Paseur) is not supported by the evidence. He says the only
bodily injury received by Ms. Paseur was the gunshot wound that
killed her and that her murder cannot constitute the bodily injury
component of her kidnapping because aggravating circumstance number
three of Count Two alleges that the murder of Ms. Culpepper was
committed while the offender was engaged in the commission of
another capital felony, the murder of Anita Paseur. Therefore, says
defendant, one murder is used to support two aggravating
circumstances. This contention is incorrect. Kidnapping with bodily
injury and murder are two separate crimes, that is, one is not
included in the other, even if the homicide is the bodily injury of
the kidnapping. Potts v. State, 241 Ga. 67
(11) (243 SE2d 510) (1978); Stephens v. Hopper,
241 Ga. 596 (1) (247 SE2d 92) (1978);
High v. State, 247 Ga. 289 (12) (276 SE2d 5)
(1981); Brown v. State, 247 Ga. 298
(9) (275 SE2d 52) (1981).
Since there is no bar to using the fatal injury
to Ms. Paseur as the bodily injury component of the capital felony
of kidnapping with bodily injury, even though the same fatal injury
supports the capital felony of murder, it follows that aggravating
circumstance number one of Count Two was supported by the evidence.
(12) The imposition of the death penalty for the
murder of Kathryn Culpepper is supported by the aggravating
circumstance that her murder was committed during the murder of
Anita Paseur. The death penalty for the murder of Anita Paseur is
supported by the aggravating circumstance that her murder was
committed during the murder of Kathryn Culpepper. The two
aggravating circumstances are therefore mutually supporting within
the meaning of Gregg v. State, 233 Ga. 117
(210 SE2d 659) (1974). Compare Peek v. State, supra, 239 Ga.
at 429; Strickland v. State, 247 Ga. 219 (23)
(275 SE2d 29) (1981). One aggravating circumstance must be
set aside. We arbitrarily eliminate the aggravating circumstance
supporting the death penalty for the murder of Kathryn Culpepper,
that the murder was committed during the murder of Anita Paseur.
(13) Two other aggravating circumstances, that
the murder of Ms. Culpepper and Ms. Paseur were committed during the
commission of another capital felony, the aggravated sodomy of Ms.
Culpepper, must also be set aside. Code Ann. 26-2002 (Ga. L. 1968,
pp. 1249, 1299) provides that a "person convicted of aggravated
sodomy shall be punished by imprisonment for life or by imprisonment
for not less than one nor more than 20 years." While "capital felony"
as that term is used in Code Ann. 27-2534.1 (b) (2) includes
felonies which were capital crimes in Georgia at the time this
section of our death penalty statute was enacted in 1973, even as to
those offenses for which the death penalty may, as a result of
judicial construction, no longer be imposed, Peek v. State, supra,
the present aggravated sodomy statute has never provided for the
death penalty. Code Ann. 26-2002 provides for a maximum of life
imprisonment. Thus, aggravated sodomy is not a "capital felony" in
any sense of that term. Since it is not otherwise listed in
27-2534.1 (b) (2), it may not be used as a (b) (2) aggravating
circumstance to support a death penalty.
(14) There remain the following aggravating
circumstances: As to Count One of the Indictment (the murder of
Anita Paseur), the murder was committed during the commission of two
other capital felonies: Kidnapping with bodily injury of Kathyrn
Culpepper; murder of Kathryn Culpepper. As to Count Two of the
Indictment (the murder of Kathryn Culpepper), the murder was
committed during the commission of another capital felony:
kidnapping with bodily injury of Anita Paseur.
The death penalties imposed in this case must be
reviewed by this court under the standard set forth in Code Ann.
27-2537 (c) (1-3). Thus, we must determine whether the sentence of
death was imposed under the influence of passion, prejudice, or any
other arbitrary factor; whether the evidence supports the jury's
finding of the statutory aggravating circumstances; and whether the
sentence of death is excessive or disproportionate to the penalty
imposed in similar cases considering both the crime and the
(15) Upon review of the entire transcript and
record in this case, this court concludes that the sentences of
death were not imposed under the influence of passion, prejudice, or
any other arbitrary factor.
(16) The evidence supports a finding of the
aggravating circumstances, as set forth in Division 14, by a
rational trier of fact beyond a reasonable doubt. Jackson v.
Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Although
for reasons noted in Divisions 12 and 13, we have set aside three
aggravating circumstances found by the jury, the failure of one or
more aggravating circumstance does not taint the proceeding so as to
invalidate the other aggravating circumstances found by the jury in
the sentence of death based thereon. Stevens v. State,
247 Ga. 698 (278 SE2d 398) (1981);
Burger v. State, 245 Ga. 458 (265 SE2d 296)
(17) We have reviewed the trial court's charge to
the jury and find it is not subject to the defects dealt with in
Hawes v. State, 240 Ga. 327 (9) (240 SE2d
833) (1977), and Fleming v. State, 240
Ga. 142 (7) (240 SE2d 37) (1977). Here the charge included
application of mitigating circumstances and informed the jury they
could recommend life sentences even if they found the existence of a
statutory aggravating circumstance.
(18) In reviewing the death penalty in this case,
we have considered the cases appealed to this court since January 1,
1970, in which death or life sentences were imposed and find that
similar cases listed in the appendix attached hereto support the
affirmance of the death penalties in this case.
Defendant contends the death penalties should be
set aside because the murders occurred at a time when he was under
no medication, was drinking alcohol and was alone at a remote
fishing spot with a pistol and handcuffs and encountered two women.
Defendant contends that some emotional force was acting upon him
that was sufficient to dethrone his reason and silence his
inhibitions. He contends that for the good of society he ought to be
allowed to live so that his particular personality can be studied.
We disagree. The evidence clearly shows that Waters was not
incapacitated or unable to form the requisite criminal intent. Aside
from the medical testimony as to his competence, we note that Waters
came to the beach with his pistol and a pair of handcuffs and
approached at least one other woman before he kidnapped and murdered
the victims in this case. He fled the scene immediately after the
murders, discarded the pocketbook he stole and took the time after
he got home to clean and reload his gun. "Juries have given the
death penalty in cases in which the defendant had no prior criminal
record and where evidence of use of alcohol or drugs was offered in
mitigation." Tucker v. State, 244 Ga. 721
(13) (261 SE2d 635) (1979). See also Strickland v. State,
247 Ga. 219 (275 SE2d 29) (1981);
Bowen v. State, 244 Ga. 495 (260 SE2d 855)
(1979); House v. State, 232 Ga. 140
(205 SE2d 217) (1974); Johnson v. State,
226 Ga. 511 (175 SE2d 840) (1970).
We conclude that defendant's sentences of death
are not excessive or disproportionate to the penalty imposed in
similar cases, taking into consideration both the crime and the
Glenn Thomas, Jr., District Attorney, John B.
Johnson III, Assistant District Attorney, Arthur K. Bolton,
Attorney General, Harrison Kohler, Assistant Attorney General,
John W. Davis, Donald E. Manning, for
DECIDED OCTOBER 8, 1981 -- REHEARING DENIED
OCTOBER 27, 1981.