Marcus Wellons, 41, was
sentenced to death June 1993 in Cobb County. In December 1997, Mr. Wellons
came within three hours of execution because an attorney who had just
volunteered to file an appeal petition was denied time to study the
case. A U.S. District judge stayed the execution.
Mr. Wellons was
convicted of the rape and murder of 15-year-old India Roberts who lived
in the same apartment building as Mr. Wellons' girlfriend on the morning
of Aug. 31, 1989.
'I'm going home to be with Jesus':
Last words of killer who raped and murdered 15-year-old as he becomes
the first US execution since botched lethal injection
Georgia inmate Marcus Wellons the
first execution since April
His execution was followed by that of
double murderer John Winfield
John Ruthell Henry to be the third
despite claims he is mentally ill
All executions were stopped for seven
weeks after Oklahoma bungled the execution of
Farberov and Associated Press Reporter
June 18, 2014
A Georgia inmate who raped and
murdered a 15-year-old girl in 1989 became the first person on death row
to be executed since the botched lethal injection of Oklahoma killer
Clayton Lockett in late April.
Marcus Wellons, 59, received a lethal
injection late Tuesday in Jackson, Georgia, after last-minute appeals to
the U.S. Supreme Court were denied. A prison guard fainting shortly
before he was pronounced dead at 11:56 p.m, more than an hour after the
The Atlanta Journal-Constitution,
which witnessed the execution, said Mr Wellons apologized for the 1989
rape and murder of his 15-year-old neighbor India Roberts in suburban
Wellons reportedly apologized to the
family of his victim and said: 'I ask and hope that you will find peace
with my death'. His final words were: 'I'm going home to be with Jesus.'
The Georgia State Board of Pardons and
Paroles on Monday denied clemency to Wellons, leaving his fate in the
hands of the courts.
Only five minutes after Wellons was
pronounced dead, Missouri authorities commenced the lethal injection of
John E. Winfield at 12.01am. He was pronounced dead at 12.10am.
Winfield, 46, was put to death for
shooting three St. Louis County women in the head in 1996, killing two.
According to the Death Penalty Info
Twitter feed, Winfield took four or five deep breaths as the drug was
injected, puffed his cheeks twice, and then fell silent.
The U.S. Supreme Court had also
refused late Tuesday to halt his execution, and Missouri Governor Jay
Nixon denied clemency.
Wellons was served Shepherd's Pie,
mashed potatoes and red beans as a final meal although it was unclear if
he ate it, according to Death Penalty Info. The same feed also said that
Winfield declined to have a final meal.
The executions were the first since
the botched April 29 in Oklahoma raised new concerns about lethal
Another convicted killer, John Ruthell
Henry, is scheduled to die later Wednesday in Florida.
All the states planning executions —
Florida, Georgia and Missouri — refuse to say where they get their
drugs, or if they are tested.
Lawyers for two of the condemned
inmates have challenged the secretive process used by some states to
obtain lethal injection drugs from unidentified, loosely regulated
Nine executions nationwide have been
stayed or postponed since late April, when Oklahoma prison officials
halted the execution of Clayton Lockett after noting that the lethal
injection drugs weren't being administered into his vein properly.
Lockett's punishment was halted and he died of a heart attack several
'I think after Clayton Lockett's
execution everyone is going to be watching very closely,' Fordham
University School of Law professor Deborah Denno, a death penalty
expert, said of this week's executions. 'The scrutiny is going to be
Marcus Wellons' execution in Georgia
was scheduled for 7pm, but was delayed pending the outcome of a U.S.
Supreme Court appeal.
Just before 11pm Eastern Time, the
decision came down from the justices refusing to grant Wellons, 59, a
last-minute reprieve, clearing the way for his execution an hour later.
Georgia and Missouri both use the
single drug pentobarbital, a sedative. Florida uses a three-drug
combination of midazolam hydrochloride, vecuronium bromide and potassium
Despite concerns about the drugs and
how they are obtained, death penalty supporters say all three convicted
killers are getting what they deserve.
Wellons was convicted in the 1989 rape
and murder of India Roberts, his 15-year-old neighbor in suburban
Soon after the girl left for school,
another neighbor heard muffled screams from the apartment where Wellons
Later that day, a man told police he
saw a man carrying what appeared to be a body in a sheet. Police found
the girl's body in a wooded area. She had been strangled and raped.
In Missouri, Winfield had been dating
Carmelita Donald on and off for several years and fathered two of her
children. Donald began dating another man. One night in 1996, in a
jealous rage, Winfield showed up outside Donald's apartment in St. Louis
County and confronted her, along with two friends of hers.
Winfield shot all three women in the
head. Arthea Sanders and Shawnee Murphy died. Donald survived but was
Symone Winfield, the daughter of
Donald and John Winfield, was among those who asking Gov. Jay Nixon for
clemency, but the relatives of other victims want to see him die.
A federal judge granted a stay of
execution last week on a claim that a prison worker dropped plans to
write a letter in support of clemency due to intimidation from staff.
The 8th U.S. Circuit Court of Appeals overturned the stay Tuesday, and
attorneys for Winfield appealed to the U.S. Supreme Court.
In Florida, the state is moving ahead
with the execution of John Ruthell Henry despite claims he is mentally
ill and intellectually disabled.
The state claims anyone with an IQ of
at least 70 is not mentally disabled; testing has shown Henry's IQ at
78, though his lawyers say it should be re-evaluated.
Henry stabbed his estranged wife,
Suzanne Henry, to death a few days before Christmas in 1985. Hours
later, he killed her 5-year-old son from a previous relationship.
Henry had previously pleaded no
contest to second-degree murder for fatally stabbing his common-law
wife, Patricia Roddy, in 1976, and was on parole when Suzanne Henry and
the boy were killed.
Asked Tuesday if he had discussed with
the Department of Corrections what happened in Oklahoma and if any
changes were needed in Florida, Gov. Rick Scott said, 'I focus on making
sure that we do things the right way here.'
Florida and Missouri trail only Texas
as the most active death penalty states. Texas has carried out seven
executions. Florida has executed five men in 2014 and Missouri has
executed four. Combined, the three states have performed 16 of the 20
executions this year.
Wellons was the first Georgia inmate
executed since February 2013 and just the second since 2011.
Marcus Wellons executed
By Rhonda Cook and Bill Rankin - The
June 17, 2014
Georgia inmate Marcus Wellons was put
to death late Tuesday for the 1989 rape and murder of a Cobb County
teenager in the state’s first execution where the source of its
lethal-injection drug was cloaked in secrecy.
Wellons’ execution received heightened
scrutiny because it was the first one in the country to be carried out
since a botched execution occurred in Oklahoma seven weeks ago.
That incident ratcheted up the debate
over the lethal-injection process and the use of made-to-order drugs
produced by undisclosed compounding pharmacies. Even a federal appeals
court judge who declined to halt the execution Tuesday cited what
happened in Oklahoma as a reason why Georgia should not have a
lethal-injection secrecy law.
Wellons, 58, was pronounced dead at
11:56 p.m. after his final appeals were denied by the U.S. Supreme
Wellons apologized to the family of
India Roberts the teenager he was convicted of killing and said, “I ask
and hope they will find peace in my death.”
He thanked his family and friends for
their love and prayers and added, “I’m going home to be with Jesus.”
Wellons hummed as prayer was being
said and as the warden read the death warrant. Otherwise there was
little movement visible as he lay on the gurney. He was seen to exhale a
couple of times before his body seemed to quiver and then there was no
Three minutes before Wellons was
declared dead a nurse standing to his left was seen asking one of the
corrections officers if he was ok, just before the officer fainted.
In 1993, a Cobb County jury sentenced
Wellons to death for the rape and murder of 15-year-old India Roberts in
the Vinings townhouse of Wellons’ girlfriend. Wellons was supposed to be
moving out of the townhouse when he abducted India as she was walking to
her school bus stop the morning of Aug. 31, 1989. She was believed to
have been strangled with a telephone cord.
Wellons’ trial became a focus of
national attention in 2010 when the U.S. Supreme Court ordered a hearing
because one of Wellons’ jurors gave a penis-shaped chocolate to the
judge and another juror gave breast-shaped chocolates to the courthouse
bailiff shortly after the verdict. After a review, the federal appeals
court said that while the gifts were “tasteless and inappropriate,”
Wellons did not deserve a new trial because they played no part in the
This week, Wellons’ case was in the
spotlight again because he was to become the first Georgia inmate put to
death with a compounded sedative made specifically for his execution. A
state law passed last year shields the public — and even the courts —
from knowing the identity of the compounding pharmacy, the
qualifications of the execution team and details about the
lethal-injection drug, pentobarbital. Wellons’ execution was set just
days after the state Supreme Court rejected a challenge to the secrecy
law in a 5-2 decision issued last month.
Wellons’ attorneys had argued that the
recently botched execution in Oklahoma and the lack of oversight of
compounding pharmacies presented real risks that Wellons could suffer
significant pain during his execution.
On April 29, condemned Oklahoma inmate
Clayton Derrell Lockett writhed, gasped and struggled to lift his head
after he had been declared unconscious on the lethal-injection gurney.
Prison officials tried to stop the execution, but Lockett died of a
massive heart attack.
A preliminary report released last
week concluded that the IV line that was supposed to deliver the drugs
had been improperly placed. The doctor who did the autopsy has asked for
additional information to complete his report but was denied because of
Oklahoma’s secrecy law regarding lethal injections.
Georgia has argued that it needs to
protect the identities of lethal-injection drug providers to ensure the
Department of Corrections can carry out executions. Public pressure has
led pharmaceutical companies worldwide to refuse to sell such drugs to
states for executions.
Georgia initially used a three-drug
cocktail but it had to change its protocols to using only one — a
massive dose of pentobarbital, a sedative also used to euthanize
animals. The state then had to make another change, turning to a
compounding pharmacy, when it was still unable to obtain the drug.
On Tuesday, a three-judge panel of the
federal appeals court in Atlanta unanimously declined to stop Wellons’
execution. The court said Wellons failed to clear a legal threshold by
showing that the lethal-injection protocol to be used in his execution
created a “demonstrated risk of severe pain that is substantial when
compared to the known alternatives.”
But Judge Charles Wilson, writing
separately, expressed concern over the state’s secrecy law. How could
Wellons, the judge asked, show that he faced a risk of needless pain and
suffering “when the state has passed a law prohibiting him from learning
about the compound it plans to use to execute him?”
Wilson questioned the need to keep
information about the lethal-injection process concealed from the public
and the courts, “especially given the recent much-publicized botched
execution in Oklahoma.”
“Unless judges have information about
the specific nature of a method of execution,” Wilson wrote, “we cannot
fulfill our constitutional role of determining whether a state’s method
of execution violates the Eighth Amendment’s prohibition against cruel
and unusual punishment before it becomes too late.”
(266 Ga. 77)
(463 SE2d 868)
Murder. Cobb Superior Court. Before Judge Staley.
Marcus A. Wellons was convicted of the malice
murder and rape of 15-year-old India Roberts. The jury found as
statutory aggravating circumstances that the murder was committed in
the course of two other capital felonies, rape and kidnapping with
bodily injury, and that the murder was want only vile and horrible in
that it involved torture to the victim before death and depravity of
mind. The jury sentenced Wellons to death for the murder. He
received a life sentence for the rape. Wellons appeals from the
judgments entered by the trial court. 1
Wellons Contends among his 35 enumerated errors
that, by erroneously requiring him to disclose the identities and
reports of all experts with whom he Consulted pretrial, whether or
not he Chose to Call the experts to testify, the trial Court so
chilled his consultation with experts that he was prevented from
effectively presenting his insanity defense in the guilt-innocence
phase of trial and his evidence in mitigation in the sentencing
phase. We disagree, finding that although based on present law the
trial court's ruling was in error, Wellons suffered no harm. Having
thoroughly considered each of Wellons' enumerated errors and the
entire record on appeal,
1. The evidence presented at trial authorized the
jury to find the following facts:
Throughout the summer of 1989, Wellons lived with
his girl friend, Gail Saunders, in her townhouse apartment in Cobb
County. Early that summer, Saunders' 14-year-old son Tony also lived
in the apartment. Tony and the victim, who lived in a neighboring
apartment with her mother, were friends. The victim occasionally
visited Tony inside Saunders' apartment, where the two youths would
watch television or play Nintendo.
Wellons encouraged Tony to date the victim,
remarking several times that she was a good-looking girl. At some
point during the summer, Tony moved to Chattanooga to live with his
grandparents. The victim continued to spend time with Saunders
occasionally. Saunders described herself as the victim's "play mommy"
with whom the victim shared confidences.
Wellons and Saunders had become acquainted at the
hospital where both worked, Wellons as a counselor in the
psychiatric ward. Wellons moved in with Saunders on the pretense
that he owned a home but was unable to occupy it, because an ex-girl
friend had moved there with her two young daughters, and he could
not in good conscience turn them out.
Over the summer Wellons proposed marriage to
Saunders. However, by then Saunders had become wary of Wellons, who
was increasingly hostile and abusive. She verbally accepted his
proposal out of fear, all the while seeking an escape from her
On the evening of August 30, 1989, Saunders told
Wellons that their relationship was over and that he must move out
of her apartment. Wellons, who had recently been fired from his job,
purchased a one-way ticket to Miami for a flight departing on the
evening of August 31. Fearing to be alone with Wellons the night
before his departure, Saunders told Wellons that she was going to
Chattanooga to spend the night with her parents and enroll Tony in
school. Instead, Saunders went to the home of a female friend.
That evening, Wellons began making desperate
attempts to reach Saunders by telephone. He called her mother in
Chattanooga repeatedly, only to be told that Saunders had not
arrived. Wellons then called Saunders' friends, but no one knew or
revealed her whereabouts. He called his mother and told her he
suspected that Saunders was with another man. Wellons became
increasingly angry and began drinking. He ransacked Saunders'
apartment. He overturned potted plants and furniture, threw flour
onto the floor, and poured bleach over all of Saunders' clothes,
carefully sparing his and Tony's belongings in the process.
After the apartment was demolished, Wellons began
attempts to cover up his deed. He broke a window, from the inside
out, cutting his hand in the process and smearing blood around the
apartment. He stacked electronic equipment by the door. He then
called 911 at approximately 3:00 a.m. on August 31 to report a
When a police officer arrived, Wellons told the
officer that he had come home to find the apartment ransacked,
although no items were missing. Wellons explained to the officer
that he cut his hand while struggling to uncover a stash of money to
determine if it had been taken. Sometime after the officer left,
Wellons wrote a racial slur across the wall in Saunders' bedroom.
Several hours later, at approximately 8:00 a.m.,
the victim said goodbye to her mother and walked from her apartment,
past Saunders' door, toward the school bus stop. Shortly thereafter,
Saunders' next door neighbor heard muffled screams from inside
The apartment building was close to a wooded area,
beyond which was a grocery store. At approximately 2:00 p.m.,
Wellons approached an acquaintance who was employed at the grocery
store and asked to borrow a car. The acquaintance refused. Wellons
told the acquaintance that when he (Wellons) returned home the
previous night, he encountered two white men who were burglarizing
the apartment. Wellons said that he successfully fought off the
intruders but explained that he had in the process sustained the
injuries to his hand.
About half an hour later, Theodore Cole, a
retired military police officer, was driving near the wooded area
behind the apartment complex. He spotted in the distance a person
carrying what appeared to be a body wrapped in a sheet. He
distinctly saw feet dangling from the bottom of the sheet. Cole
drove on but then returned for a second look.
He drove around in the parking lot of the
apartment complex and saw nothing. As he was driving away, however,
he saw a man in his rear view mirror walk along the road and throw a
sheet into the woods. Cole drove directly to the grocery store,
where he called 911. Police officers arrived quickly and began a
search of the woods.
The police first discovered sheets, clothing and
notebooks bearing Tony's name. Then, upon close inspection of a pile
of tree branches near where had seen the man carrying the sheet,
Cole spotted the body of India Roberts. When the branches were
removed, the officers discovered that the victim completely
unclothed, with cuts on one side of her face and ear and bruises on
During the search of the woods, Cole spotted a
black man with a bundle under his arm near the apartment building
and identified him as the man Cole had seen carrying the sheet. Cole
and an officer chased the man, but as they approached the building,
the man turned the corner and Cole and the officer heard a door shut.
The officer learned from a passerby which apartment was occupied by
a man fitting the description given by Cole. He knocked on Saunders'
door and announced his presence, but there was no answer. He
returned to join the other officers, who were investigating the
scene in full force, with helicopters overhead.
Wellons, now trapped inside Saunders' apartment
with residual evidence of his crime, gave up his attempt to dispose
of the evidence in the woods. He first tried to clean the apartment
and his clothes. He then abandoned that project, changed into swim
wear, grabbed an old, yellowed newspaper and a cup of wine,
partially barricaded and locked the door, and headed for the pool.
On his way, Wellons caught sight of a police
officer and stopped abruptly. The officer began questioning him.
Initially evasive, Wellons did ultimately tell officers that the
injuries to his hand, and new scratches to his face, were sustained
during a scuffle with two men whom he had caught burglarizing
While investigating the scene, officers had asked
Cole whether either of two black males was the man Cole had seen
carrying the sheet. Cole immediately ruled out each of the men. Then,
while officers were questioning Wellons, one officer standing at a
distance from the questioning asked Cole whether Wellons was the man
he had seen. Cole said that although Wellons was wearing different
clothing from the man he had seen carrying the sheet, and whom he
had again seen near the complex, Cole was 75 to 80 percent certain
that Wellons was the same man.
Later that day, officers searched Saunders'
apartment. Inside, they found numerous items of evidence including
the victim's notebooks and earrings. In Tony's room, they discovered
the victim's panties. They also found blood on Tony's mattress and
box springs. The mattress had been flipped so that the bloody
portion was facing downward, and the bed had been remade.
The autopsy revealed that the victim died from
manual strangulation, which in itself would have taken several
minutes. The autopsy also showed that Wellons had attempted to
strangle the victim with a ligature, possibly a telephone cord, and
that he had bruised her and cut her face and ear with a sharp object.
The evidence suggested that Wellons had dragged or otherwise
forcibly moved the victim from the kitchen up the stairs to Tony's
bedroom. Finally, the autopsy revealed a vaginal tear and copious
amounts of what appeared to be seminal fluid within the victim's
vagina. She had defensive wounds to her hands, and her blouse was
stained with her own blood.
Although a not guilty plea was entered for
Wellons, he did not dispute his participation in the crimes. Instead,
he urged the jury to return a verdict of not guilty by reason of
insanity or guilty but mentally ill.
The evidence is sufficient to enable any rational
trier of fact to find appellant guilty of the crimes charged beyond
a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781,
61 LE2d 560) (1979).
2. In keeping with our opinion in Sabel v. State,
248 Ga. 10, 18 (282
SE2d 61) (1981), the trial court ordered Wellons to disclose
before trial the identities and reports of all experts consulted by
the defense, whether or not those experts would be called to testify.
Since the date of trial, we held in Rower v. State,
264 Ga. 323, 325 (443
SE2d 839) (1994) that the state is only entitled to discover
those scientific reports which the defense intends to use at trial.
Although Rower was decided after this case was tried, Wellons'
appeal was "in the pipeline," so the Rower rule applies, and there
was error. See Thornton v. State, 264 Ga. 563,
574 (449 SE2d 98) (1994). The question,
therefore, is whether under the facts of this case, the error was
The state correctly notes that the defense in
fact made no disclosures incompatible with the ruling in Rower. The
defense disclosed no reports of non-testifying experts. Only one
non-testifying expert was even identified, and he was never
mentioned at trial.
Nevertheless, Wellons contends that he was
seriously harmed by the trial court's ruling. He contends that the
ruling chilled his ability to consult with mental health experts,
forcing him to choose blindly between unacceptable alternatives. On
the one hand, he could cooperate with an expert assessment and risk
both having to disclose an unfavorable evaluation and indirect
disclosure by the expert of his confidential communications about
the murder. On the other hand, he could decline to cooperate with
experts and risk foregoing the presentation of a viable insanity or
mental health defense.
Wellons repeatedly urged the trial court to
reverse its ruling until shortly before trial, when he finally
decided to cooperate with his expert psychologist, psychiatrist and
sociologist, short of discussing the murder itself, and to present a
defense of insanity or mental illness. At that point, he contends
that he did not have enough time to effectively prepare his mental
health evidence in defense or in mitigation. He further contends
that he was left without time to evaluate the viability of those
defenses as contrasted with a defense of actual innocence or
insufficient evidence. Finally, he contends that he suffered
unfairly from his psychologist's failure to prepare a report on
short notice, because at trial the state portrayed the failure to
prepare a report as an effort to conceal the truth.
A thorough review of the record on appeal
convinces us that Wellons' contentions have no merit. Wellons
presented testimony from 17 witnesses in mitigation. Included among
them were lay witnesses who testified regarding the abuse suffered
by Wellons' family, and most notably by Wellons himself, at the
hands of Wellons' father. They also testified to some degree of
substance use or abuse by Wellons. An expert sociologist testified
about the typical effects of an abusive childhood. She then
testified regarding her compilation of Wellons' family history
through interviews with testifying witnesses and other neighbors and
Finally, Wellons' expert psychologist, who
testified that he was directed by defense counsel not to reduce his
report to writing, offered his conclusions based on his testing of
and conversations with Wellons and on the written report of the
sociologist. The psychologist testified that Wellons suffers from
post-traumatic stress, a mixed personality disorder and substance
abuse. He testified that Wellons does not suffer from organic brain
damage and is not psychotic. He further acknowledged in his
testimony that Wellons was also evaluated by a court-appointed
psychiatrist, who concluded that Wellons is an intelligent, well-educated
man with a significant personality disorder but no brain damage and
Although Wellons presented no expert testimony in
the guilt-innocence phase of trial, the evidence as a whole
demonstrates that his defenses of insanity and mental illness were
simply not viable. See Bright v. State, 265
Ga. 265, 273-274 (455 SE2d 37)
(1995) (greater showing of mental health problems than in present
case held inadequate even to entitle defendant to expert assistance
in guilt-innocence phase). Nor did Wellons have a viable alternate
defense of actual innocence or insufficient evidence. The evidence
of guilt was overwhelming. Therefore, the error, though it might
well have initially had a chilling effect on consultation with
experts, was ultimately harmless. The chilling effect could have
been and apparently was cured after Wellons decided to raise the
insanity defense. His counsel made an intelligent, strategic choice
not to contest Wellons' participation in the crimes, to merely
introduce the idea of mental illness in the guilt-innocence phase of
trial, and then to bring every effort to bear in mitigation.
3. The state exercised its peremptory strikes to
remove from the jury three of the four African Americans on the
panel, citing as a reason for each of the strikes that the potential
juror was weak on the death penalty. Wellons contends that the
state's reasons are pretextual and that the state engaged in
purposeful discrimination against African American jurors. See
Batson v. Kentucky, 476 U. S. 79, 97-98 (106 SC 1712, 90 LE2d 69)
He argues that the state's discriminatory intent
is evident upon a review of the entire voir dire of each of the
stricken jurors -- none of whom expressed more than slight
reservations about the death penalty -- in conjunction with the voir
dire of white jurors who were not stricken and who were at least as
reticent to impose the death penalty.
The trial court's determination that Wellons
failed to establish purposeful discrimination was not clearly
erroneous. See Lingo v. State, 263 Ga. 664,
666 (437 SE2d 463) (1993). The
prosecutor presented "concrete, tangible, race-neutral and neutrally-applied"
reasons for the strikes sufficient to overcome Wellons' prima facie
case of discrimination. See id. Two of the three stricken black
jurors expressed some reservations about the death penalty, and the
prosecution contemporaneously noted on the record the apparent
reticence of the third, who hesitated in her answers on the subject.
Each of the white jurors who expressed slight reservations about the
death penalty and who were not stricken also expressed moderate to
strong reservations about a mental health defense. Therefore, on
balance, those jurors were more favorable for the state than for the
4. Wellons contends that the trial court erred in
failing to excuse for cause seven potential jurors who stated that
death would be the appropriate penalty for murder. Read as a whole,
the dire of each juror could serve impartially and consider both the
evidence in mitigation and the trial court's instructions. See
Mobley v. State, 265 Ga. 292, 295 (455
SE2d 61) (1995). Therefore, we find no error.
5. Wellons next maintains that the court
erroneously excluded for cause five potential jurors who expressed
reservations about imposing the death penalty. Read as a whole,
however, the voir dire of each juror established that her views on
capital punishment would have prevented or substantially impaired
the performance of her duties in accordance with her instructions
and oath. Alderman v. State, 254 Ga. 206,
207 (327 SE2d 168) (1985).
6. (a) Wellons contends that the trial court
erred in failing to excuse for cause the following prospective
jurors: (1) one whose son was killed in a vehicular homicide which
was the subject of ongoing prosecution by the district attorney's
office; (2) a forensic expert with the State Crime Lab who has
testified as an expert for the prosecution in Georgia in 900 to
1,000 cases and who was acquainted with various witnesses; (3) a
prospective juror whose sister was a murder victim and who stated
that he is more callous than he used to be; and (4) two prospective
jurors who expressed qualms about a mental health defense.
We find no error. The decision to strike a juror
for cause lies in the sound discretion of the trial court. See
Garland v. State, 263 Ga. 495, 496 (435
SE2d 431) (1993). The court did not abuse its discretion with
respect to any of the five jurors, whose voir dire shows that none
of them held opinions or biases which were so fixed that they could
not be set aside to decide the case on the evidence. Id.
(b) The trial court did not err in excusing for
cause a Korean American prospective juror with evident difficulty
speaking and understanding English. See Bennett v. State,
262 Ga. 149, 151 (414
SE2d 218) (1992). The prospective juror said herself that she
would not be able to follow all of the testimony at trial nor to
understand each of her fellow jurors during deliberations.
7. Wellons contends that Cole's eyewitness
identification of him, described above, was the unreliable product
of unduly suggestive procedures, creating a substantial risk of
misidentification at trial, and that therefore it should not have
been admitted. Wellons further contends that the district attorney
was involved in the suggestive procedure and therefore had a
conflict of interest as prosecutor and witness. He argues that,
because the defense was unable to call the district attorney to
testify, a new trial is mandated.
We find no error. First, the district attorney
stated in his place at a hearing that he was not involved in the
identification procedure, and the testimony of Cole supports that
recollection. Second, the identification procedure was sufficiently
reliable. Cole had an opportunity to view Wellons at close range
broad daylight the time saw Wellons carrying the sheet; Cole was a
retired military police officer with 25 years of experience who paid
close attention when he returned to the scene in his car
specifically to get a second view of the person he had seen carrying
the victim's body; he had given an accurate description of Wellons,
including his skin tone, approximate height and build, and had seen
Wellons again near the apartment complex before the identification
at issue; only a short time had passed between Cole's earlier
sightings of Wellons and the identification; and Cole stated at the
scene and at trial that he was 75 to 80 percent certain Wellons was
the same man he had seen with the sheet. See Manson v. Braithwaite,
432 U. S. 98, 113-116 (97 SC 2243, 53 LE2d 140) (1977). Furthermore,
there is no evidence that Cole was coerced to make the
identification. See Manson, 432 U. S. at 116. Significantly, Cole
had already excluded two other individuals as possible suspects.
Under all of these circumstances, we cannot find "a very substantial
likelihood of irreparable misidentification." See id., citing
Simmons v. United States, 390 U. S. 377, 384 (88 SC 967, 19 LE2d
1247) (1968). It was therefore for the jury to decide the weight to
be accorded to the testimony. See Manson, 432 U. S. at 116.
8. There is no merit to Wellons' contention that
the prosecutor falsely argued that the victim was tortured prior to
death. The evidence supports the conclusion that Wellons, a large,
34-year-old man, raped the 15-year-old victim, cut her, strangled
her with a ligature and ultimately crushed her throat with his hands,
and that she struggled to free herself. This clearly constitutes
torture. See Hill v. State, 246 Ga. 402,
409-410 (271 SE2d 802) (1980); Hance
v. State, 245 Ga. 856, 861 (268
SE2d 339) (1980).
9. The prosecutor did not improperly interject
victim impact evidence in either phase of trial. The age of the
victim was relevant and thus an appropriate subject for comment by
the prosecutor. See Smith v. State, 255 Ga.
685, 686 (341 SE2d 451) (1986).
In particular, in the sentencing phase, her young age could be
considered in the jury's determination whether Wellons acted with a
depraved mind. See Hance v. State, 245 Ga.
856, 862 (268 SE2d 339) (1980).
The prosecutor's characterization of the victim as a little girl was
neither improper nor inaccurate. The fact that the victim was a
sophomore in high school was relevant background information,
because the murder occurred during the first week of the school year,
the victim was abducted on her way to the school bus stop, and her
school supplies were strewn at the scene of the murder and admitted
into evidence. One could reasonably infer from the evidence that the
murder was unprovoked, so the prosecutor's comment that the victim
did nothing to deserve her death was not inappropriate. See Fugate
v. State, 263 Ga. 260, 265 (431
SE2d 104) (1993); Kinsman v. State,
259 Ga. 89, 92 (376 SE2d 845)
(1989). Argument that Wellons deprived the victim of life
experiences and opportunities which he had enjoyed, such as dating,
college, marriage and parenting, was not impermissible. See Ledford
v. State, 264 Ga. 60, 67-68 (439
SE2d 917) (1994). The prosecutor's comment that perhaps the
victim, like Wellons, could have complained about her formative
years was merely an example to rebut Wellons' claim that his
troubled childhood was a mitigating factor. Pleas for retribution,
such as the request that the jury return "one for India," are not
improper. See Walker v. State, 254 Ga. 149,
159 (327 SE2d 475) (1985); Johnson v.
State, 187 Ga. App. 803, 804 (371
SE2d 419) (1988).
10. Wellons contends that the prosecutor
improperly commented on Wellons' failure to testify. In closing
argument in the guilt-innocence phase of trial, the prosecutor said
that "only two people know what went on in that apartment," and "there's
only two people who can tell us how long that horror lasted."
We find no error. Reversal for prosecutorial
misconduct requires a finding that the prosecutor's manifest intent
was to comment on Wellons' failure to testify or that the jury would
naturally and necessarily understand the remarks as a comment on
Wellons' silence. See Lobdell v. State, 256
Ga. 769, 774-775 (353 SE2d 799)
(1987). In context, the prosecutor's comments were but a small part
of a summary of the evidence best understood as conceding the
ambiguities therein and were unlikely to be interpreted as comments
on Wellons' failure to testify. Furthermore, the trial court
appropriately charged the jury that no adverse inferences were to be
drawn from Wellons' silence.
11. Wellons enumerates as error various other
comments made by the prosecutor in closing argument. We find no
impropriety in any of the remarks. In particular, the prosecutor's
comment that Saunders was a meticulous housekeeper who valued family
things was relevant to Wellons' motive in ransacking her apartment
and destroying items she treasured, and it was also relevant to an
understanding of the evidence collected at the scene. The
prosecutor's argument that WelIons' presentation of evidence about
his religious beliefs was offensive and should not be considered as
mitigating was a proper comment on the genuineness of a "jail-house"
religious conversion, because the argument "addresses itself to the
sincerity of the defendant's rehabilitation, which is a legitimate
consideration on the issue of sentence." Todd v. State,
261 Ga. 766, 768, n. 2 (410
SE2d 725) (1991).
12. Wellons contends that the prosecutor elicited
improper testimony regarding Wellons' prior difficulties with the
victim without first giving notice pursuant to Uniform Superior
Court Rule 31.3. Saunders testified that sometime in the weeks prior
to the murder, when the victim was watching television in Saunders'
apartment, Saunders saw Wellons stare at the victim with a look in
his eyes and a gesture that made Saunders uncomfortable. Saunders
further testified that, as a result of what she observed, she later
told Wellons never to let the victim in the apartment when Saunders
was not home.
Compliance with USCR 31.3 before admitting
evidence of prior acts between the victim and the accused is
mandatory. Barrett v. State, 263 Ga. 533,
535 (436 SE2d 480) (1993). We do not
think that the described conduct rises to the level of a prior
13. Wellons contends that the prosecutor
improperly introduced evidence of uncharged conduct and other bad
acts allegedly committed by Wellons. We disagree. In each instance,
the state properly impeached Wellons' character witnesses. One of
the witnesses had been a member of the campus security police force
when Wellons was in college. After he testified regarding Wellons'
good character, the state properly questioned whether he had
knowledge of two incidents on campus involving Wellons. The witness
denied personal knowledge of one incident but stated that the second
incident was resolved in Wellons' favor and that the witness
personally reprimanded the officer involved. Immediately following
the question regarding the first incident, the trial court
instructed the jury that the testimony did not establish that the
incident occurred and that the question was allowed for the limited
purpose of testing the witness' knowledge of Wellons' character and
activities. The other witness was a deputy sheriff who testified on
direct regarding Wellons' good behavior in jail. Defense counsel
elicited testimony from the witness that he had no first-hand
knowledge of Wellons' disciplinary problems and only knew of them
from records. On cross-examination, the state properly obtained an
admission from the witness that he was aware of a stack of
disciplinary reports involving Wellons which had preceded the
witness' employment at the jail and that he was aware that Wellons
had constantly been in trouble.
When a defendant places his character in issue,
the state may cross-examine character witnesses to test the extent
and foundation of the witnesses' knowledge of the defendant's
character. Jones v. State, 257 Ga. 753,
756 (363 SE2d 529) (1988). The
pretrial notice requirements of OCGA 17-10-2
did not apply. See Christenson v. State, 261
Ga. 80, 90-91 (402 SE2d 41)
(1991). The state was required only to demonstrate, following
Wellons' objections, that its questions were asked in good faith and
based on reliable information that could be supported by admissible
evidence. See id. The state made the requisite demonstration, so its
inquiries were proper. See Medlock v. State,
264 Ga. 697, 698-699 (449 SE2d 596)
14. Having found no prosecutorial misconduct, we
reject Wellons' contention that the cumulative effect of
prosecutorial misconduct requires reversal.
15. The trial court did not improperly restrict
defense counsel's voir dire of prospective jurors. Presented with
Wellons' pretrial motion requesting the latitude to pose questions
regarding a variety of issues, the trial court merely applied
settled principles of law.
16. The trial court did not err in failing to
instruct the jury in the guilt-innocence phase on delusional
compulsion. There was no evidence in the record to support such a
charge, and the defense never suggested at any time during the trial
that Wellons acted upon a delusional compulsion. Nor did the court
err in failing to give Wellons' requested charge on voluntary
intoxication. Voluntary intoxication is a defense only when such
intoxication has caused more than a temporary alteration of brain
function which negates intent. Horton v. State,
258 Ga. 489, 491 (371
SE2d 384) (1988). The only evidence of intoxication was that
Wellons appeared with a cup of wine when police were conducting
their investigation hours after the murder and that Wellons had been
drinking the night before the murder. There was no evidence of
altered brain function.
17. Wellons contends that the court improperly
charged on reasonable doubt, reducing the burden of proof on the
prosecution. The court stated that "moral and reasonable certainty
is all that can be expected in a legal investigation" and that "a
reasonable doubt is a doubt for which a reason can be given."
Because the charge as a whole accurately conveyed the concept of
reasonable doubt, we find no error. See Armstrong v. State,
265 Ga. 18, 19 (453
SE2d 442) (1995).
18. Wellons contends that the trial judge should
have recused herself because she and the bailiffs allegedly had
improper communications with jurors. Wellons supports his
allegations solely with affidavits of defense counsel relating
hearsay regarding post-trial interviews with jurors. He contends
first that the judge spoke with the jurors in a restaurant on one
occasion and second that, at or before the close of the sentencing
phase, jurors presented the judge and a bailiff with gag gifts.
We find no error. Upon being presented with a
motion for recusal pursuant to Uniform Superior Court Rule 25.1, it
is the duty of the trial judge to determine whether, assuming the
truth of any of the facts alleged, a reasonable person might
conclude that the judge harbors a bias, stemming from an
extrajudicial source, which is of such a nature and intensity that
it would impede the exercise of impartial judgment. Birt v. State,
256 Ga. 483, 485-486 (350
SE2d 241) (1986). Assuming that the trial judge in fact
encountered and spoke to the jurors in a restaurant and that she and
a bailiff were the passive recipients of gag gifts, there was no
basis for concluding that judicial bias existed.
19. Wellons next contends that the trial judge
should have recused herself because she allegedly displayed emotion
in the presence of the jury during the state's closing argument in
the penalty phase. This allegation was supported solely by the
affidavit of trial counsel regarding his personal observations
during trial. Pursuant to USCR 25.1, motions to recuse must be filed
"not later than five days after the affiant first learned of the
alleged grounds for disqualification." Wellons' motion was filed
several months after trial. Therefore, the trial court properly
found that Wellons failed to satisfy the time requirement or to show
good cause for such failure, and denial of the motion to recuse was
proper. See USCR 25.3; Pope v. State, 257 Ga.
32, 35 (354 SE2d 429) (1987).
20. There is no merit to Wellons' contention that
the trial judge erred in failing to disqualify herself from
presiding over the motion for new trial after Wellons gave notice
that she would be a witness regarding the issues involved in the
motion to recuse.
21. The trial court did not err in failing to
instruct the jurors that they should assume that a life sentence
means imprisonment for one's natural life. OCGA
17-10-31.1 (d) was not applicable to
this case. Nevertheless, the trial court did charge language
virtually identical to that requested by Wellons.
22. The trial court did not err in failing to
give all of Wellons' requested jury instructions verbatim in the
sentencing phase. Each principle of law was substantially covered by
the court's pattern charges. See Hawkins v. State,
262 Ga. 193 (415 SE2d 636) (1992).
23. The trial court did not err in charging the
jury that its sentencing verdict had to be unanimous while failing
to charge that findings as to mitigating circumstances need not be
unanimous. The court clearly charged that it was not necessary for
the jury to find any mitigating circumstances to impose a life
sentence. See Ledford v. State, 264 Ga. at 69.
24. Wellons contends that the trial court's
instructions on the statutory aggravating circumstances were
unconstitutionally vague and unsupported by the facts. We disagree.
The evidence amply supports the court's charges on, and the jury's
findings of, the following aggravating circumstances: that Wellons
committed the murder while engaged in the commission of another
capital felony, rape, OCGA 17-10-30
(b) (2); that Wellons committed the murder while engaged in the
commission of another capital felony, kidnapping with bodily injury,
id.; and that the murder was wantonly vile and horrible in that it
involved torture and depravity of mind, OCGA
17-10-30 (b) (7). That the jury had convicted Wellons of rape
in the guilt-innocence phase did not prevent its finding of rape as
an aggravating circumstance for the crime of murder. See Jefferson
v. State, 256 Ga. 821, 829 (353
SE2d 468) (1987). The state's decision not to indict Wellons
for kidnapping did not prevent use of that offense as a statutory
aggravating circumstance. See Skipper v. State,
257 Ga. 802, 807 (364
SE2d 835) (1988). Nothing prevented the jury from finding two
aggravating circumstances under OCGA 17-10-30
(b) (2). See Lynd v. State, 262 Ga. 58,
59-60 (414 SE2d 5) (1992). Finally,
the court adequately guided the jury's discretion with respect to
the (b) (7) aggravating circumstance.
25. The trial court did not err in excluding
evidence that Wellons offered to plead guilty in exchange for two
life sentences and that in other cases in Cobb County the state has
accepted such a plea. See Mobley v. State, 265 Ga. at 300; Jones v.
State, 263 Ga. 904, 905 (440
SE2d 161) (1994).
26. Wellons' contention that the trial court
erred in refusing to suppress evidence seized from his residence
lacks merit. Probable cause clearly existed for the issuance of the
warrant to search Saunders' apartment. Furthermore, Saunders, the
sole lessee of the apartment who shared a room with Wellons,
voluntarily consented to the search orally and in writing. See Hall
v. State, 239 Ga. 832, 833 (238
SE2d 912) (1977).
27. The trial court did not err in permitting the
jury to view a videotape of the crime scene. See Foster v. State,
258 Ga. 736, 740 (374
SE2d 188) (1988). The videotape was relevant to show the
location of the body in relation to various evidence and to the
scene of the murder, the extent to which Wellons had concealed the
body from view, and the relationship of various items of evidence
inside the apartment. Therefore, it was clearly probative of central
issues, including intent, Wellons' mental state, kidnapping and the
reliability of Cole's identification of Wellons.
28. OCGA 15-12-40,
which prior to its recent amendment required the jury commission
initially to compose the grand and petit jury lists from the
official registered voters list of the county, did not
unconstitutionally discriminate against historically
underrepresented groups, because it provided for supplementation of
the lists from other sources if necessary to achieve a fairly
representative cross-section of the citizens of the county. Wellons
has failed to show support for his contention that young adults,
women, poor people and minorities were in fact underrepresented on
the grand or petit juries.
29. Wellons contends that the computer selection
of the petit jury pool was manipulated in a manner that resulted in
discrimination against certain groups. First, he contends, but
failed to show, that the method of selection excluded a segment of
young people, and of people within certain other age ranges, because
the computer selected only persons whose years of birth ended in a
specific number or numbers. Even if Wellons' contention were true,
he has failed to make out a prima facie case of jury discrimination,
because he has not shown that the excluded age groups are distinct
and cognizable. See Larmon v. State, 256 Ga.
228, 230 (345 SE2d 587) (1986);
Berryhill v. State, 249 Ga. 442, 445 (291
SE2d 685) (1982). Furthermore, young people are not a
constitutionally highly protected class, and their
underrepresentation does not invoke a high standard of judicial
review. Parks v. State, 254 Ga. 403,
411 (330 SE2d 686) (1985). Second,
Wellons complains that computer selection was manipulated by
disproportionately drawing African Americans from the list of
registered voters until their representation on the petit jury list
equalled that in the general population. He contends that this
procedure failed to produce a fair cross-section of the county. In
Sears v. State, 262 Ga. 805, 806 (426
SE2d 553) (1993), we rejected the argument that this method
of creating a "forced list" is constitutionally infirm. Wellons has
failed to show a level of disparity which would necessitate a result
different from that in Sears.
30. There is no merit to Wellons' contention that
the death penalty scheme is unconstitutional because the district
attorney has unfettered discretion. See McMichen v. State,
265 Ga. 598, 611 (458
SE2d 833) (1995). The law authorized the state to seek the
death penalty in this case, and Wellons' claim that the decision to
do so was racially motivated is purely particularly given that the
31. The method by which this Court reviews the
proportionality of death sentences is constitutionally sound.
McMichen, 265 Ga. at 611.
32. Electrocution is not cruel and unusual
33. The Unified Appeal Procedure is not
unconstitutional. Ledford v. State, 264 Ga. at 65.
34. The provisions of the Unified Appeal and OCGA
17-10-35 (a) providing for a report of
the trial court in death penalty cases are not unconstitutional.
McMichen, 265 Ga. at 613.
35. Wellons enumerates as error the overruling of
numerous defense objections throughout trial. Having thoroughly
reviewed the entire record and carefully considered each of the
enumerated rulings, we find no error.
36. Wellons' claim that the presence of the media
denied him effective assistance of counsel, a fair trial and the
opportunity to effectively confront and cross-examine witnesses is
unsupported in the record.
37. We do not find that Wellons' death sentence
was imposed under the influence of passion, prejudice or other
arbitrary factor. See OCGA 17-10-35
(c) (1). The death sentence is not excessive or disproportionate to
penalties imposed in similar cases, considering both the crime and
the defendant. The similar cases listed in the Appendix support the
imposition of the death sentence in this case.
Thomas J. Charron, District Attorney, Jack E.
Mallard, Debra H. Bernes, Nancy I. Jordan, Assistant District
Attorneys, Michael J. Bowers, Attorney General, Susan V. Boleyn,
Senior Assistant Attorney General, Marla-Deen Brooks, Assistant
Attorney General, for appellee.
1 The crimes occurred on August
31, 1989. Wellons was indicted on April 5, 1990 and reindicted on
December 3, 1991. On April 20, 1990, the state filed its notice of
intent to seek the death penalty. voir dire commenced on May 19, 1993,
and the trial of the case began on June 1, 1993. The jury returned its
sentencing phase verdict on June 8, 1993, and the trial court sentenced
Wellons that same day. Wellons filed a motion for new trial on July 2,
1993. He amended the motion on June 23, 1994. The trial court denied the
motion on October 5, 1994. Wellons filed his notice of appeal on
November 3, 1994. The case was docketed on January 20, 1995 and orally
argued on June 19, 1995.
2 Even assuming arguendo that we
view the evidence as a prior difficulty and that the trial court erred
in admitting it absent prior notice, any such error was harmless because
in light of the overwhelming evidence of Wellons' guilt, it is highly
probable that admission of the evidence did not contribute to the
verdict. See Barrett, supra.
Jones & Heard, Derek H. Jones, for appellant.
DECIDED NOVEMBER 20, 1995 -- RECONSIDERATION DENIED DECEMBER 15,