Willie James Wilson Jr., 40,
was sentenced to death in February 1982 in Pierce County for the
shooting deaths of two men during an armed robbery. Alfred Boatwright,
64, and Morris Highsmith, 58, were shot to death June 22, 1981 at Mr.
Boatright's handyman store.
At the time, Mr. Wilson was a soldier who
was AWOL from Fort Stewart. In March 1991, Mr. Wilson's case was sent
back to the trial court on the issue of mental retardation.
(250 Ga. 630)
(300 SE2d 640)
Murder, etc. Pierce Superior Court. Before Judge Blount.
Appellant, Willie James Wilson, Jr., was
convicted in Pierce County of armed robbery and two counts of murder.
He was sentenced to death for each of the murders and to life
imprisonment for the armed robbery. His trial was conducted under
the Georgia Unified Appeal Procedure. After careful review, we
The two victims, Alfred Boatright and Morris
Highsmith, were shot at approximately 4:00 p.m. on June 22, 1981,
while they were working at Boatright's handy stop near Bristol,
Georgia. Ninety dollars was taken from the store. Appellant was
arrested later in Hinesville.
In a statement given after his arrest, and in his
testimony at trial, appellant admitted that he shot Boatright and
Highsmith and took $90 from the store. He contended, however, that
the shootings were the result of a misunderstanding and that the
theft of the cash was an afterthought.
Appellant had been a soldier stationed at Fort
Stewart, near Hinesville. In the middle of June, 1981, he left the
base, without permission, so that he could, in his words, "clear up
my head. . . [and] . . . get myself together." He spent several days
with friends in Blackshear. By June 22, appellant's money was almost
gone. He and Darris Miller drove to Hoboken, where appellant filled
out two employment applications.
Miller testified that while they were in Hoboken,
appellant suggested they "hit" a place, but was dissuaded from doing
so by Miller, who told him the Hoboken police were too bad. Miller
testified that they went from Hoboken to Waycross, gassed up, and
drove west from Waycross, still looking for a place to rob.
Appellant pulled a pistol from under the car seat and Miller put two
shells in it. Then, according to Miller, appellant "said if he was
to ever hit a place, he don't leave no witnesses . . ."
Appellant, testifying in his own behalf, denied
that he and Miller had talked about robbing anyone. He testified
that when they returned to Blackshear, he dropped Miller off and "went
riding," trying to make up his mind whether or not to return to Fort
Stewart. His wandering took him to Bristol. He bought a pack of
cigarettes at Boatright's and left, but stopped a short distance up
the road because he noticed his car was running hot. Upon also
discovering that he was nearly of out gas, he returned to
At this point, although appellant admittedly knew
that he had less than $15 left and that it would require at least
$20 worth of gasoline to fill his tank, appellant instructed Morris
Highsmith to fill it up. Afterwards, the two entered the store.
Boatright, according to appellant, was standing to the left of the
door, behind the counter near the cash register. Highsmith walked
toward the end of the counter.
Appellant testified that when he told Boatright
he didn't have enough money to pay for the gas, he and Boatright "started
exchanging profanity words." Appellant pulled his pistol out of his
pocket, intending to pawn it for the gas. Before he could fully
explain the situation, however, appellant saw Highsmith bending down
behind the counter, got scared, and shot both Highsmith and
Boatright. After the "accident" happened, appellant took the cash he
saw on the counter near the cash register and fled.
Boatright lived long enough to call for help.
When law enforcement officers arrived, Boatright was still alive,
sitting in a black chair behind the counter with the telephone in
his lap. Blood was observed on the floor between that chair and a
brown chair in the rear of the store near the beer cooler. The brown
chair also had blood on it. Highsmith was lying face down on the
floor in the rear of the store with an overturned folding chair
lying across his legs. No weapons were found in the store.
Highsmith died from a gunshot wound which entered
his left shoulder and penetrated his spinal canal. In the opinion of
Dr. Byron Dawson, who conducted the autopsy, this wound caused
instant paralysis of all muscles below the level of the wound and
immediate loss of control of heartbeat and breathing.
Boatright suffered a gunshot wound in his right
side which caused internal hemorrhaging and, within an hour, his
The state, while accepting appellant's admission
that he and not some other person shot Boatright and Highsmith,
1 disputes much of the remainder of
For instance, the state points out that had the
two victims been standing behind the counter in the positions
described by appellant, Boatright would have been to appellant's
left and Highsmith to his right. It is therefore unlikely, the state
contends, that appellant could have shot Boatright in his right side
and Highsmith in his left side. Moreover, there was a television set
on the counter which, in appellant's scenario, would have been
between him and Highsmith.
Finally, given the instant paralysis that
Highsmith's wound caused, his body should have been discovered
behind the counter, and not in the middle of the floor in the rear
of the store with a folding chair lying across his legs.
The state, noting the beer cooler door was open
when law enforcement officers arrived, theorizes that appellant,
upon entering the store, walked to the beer cooler and opened the
door. Then, while Highsmith sat in the wooden folding chair and
Boatright sat in the brown upholstered chair, with their backs to
the beer cooler, appellant shot both of them, ran to the cash
register, took the cash and fled.
Highsmith, upon being shot,
immediately fell to the floor, his chair falling across his legs.
Boatright walked to the telephone behind the counter, leaving a
trail of blood from the brown chair to the telephone.
1. While these theories of the state are
conclusions, they can be logically inferred from the evidence. We
find the evidence sufficient to support appellant's convictions for
malice murder. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61
LE2d 560) (1979). Appellant contends, however, that his armed
robbery conviction may not stand, for two reasons.
First, appellant contends that since armed
robbery is a lesser included offense of felony murder, where the
underlying felony is armed robbery, he cannot be convicted of both.
See Odom v. State, 248 Ga. 434 (1) (283 SE2d
885) (1981). Appellant, however, was indicted for malice
murder and the trial court charged malice murder. The trial court
did not charge felony murder. It follows, then, that appellant was
convicted of malice murder and that the armed robbery was not an
included offense of either murder. Ruffin v. State,
243 Ga. 95 (11) (252 SE2d 472) (1979).
Second, appellant argues that the armed robbery
conviction may not stand because the indictment alleged that the
money taken by him was the property of Alfred Boatright, when the
evidence showed that it was the property of his daughter, Sue Nell
The evidence showed that Alfred Boatright had
formerly owned the business but had, in 1979, leased it to Sue Nell.
In her absence, Alfred worked at the store and had custody and
control of the store and the money in it.
In an armed robbery case, the state must allege
and prove that the defendant took property of a person or persons
other than the accused. OCGA 16-8-41 (Code
Ann. 26-1902); 16-1-3 (3) (Code Ann.
26-401); McKisic v. State, 238 Ga. 644 (2)
(234 SE2d 908) (1977).
However, "ownership of the property
taken may be laid in the person having actual lawful possession of
it, although he may be holding it merely as the agent of another,
and it is not necessary to set forth in the indictment the fact that
the person in whom the ownership is laid is holding it merely as
agent of the real owner." Spurlin v. State,
222 Ga. 179, 182 (7) (149 SE2d 315)
(1966). 2 See also, Cline v. State,
153 Ga. App. 576 (3) (266 SE2d 266) (1980).
In any case, there must be a sufficient
correspondence between the allegations and the proof: "(1) that the
accused shall be definitely informed as to the charges against him,
so that he may be enabled to present his defense and not be taken by
surprise by the evidence offered at the trial; and (2) that he may
be protected against another prosecution for the same offense. . . .
[Cits.]" DePalma v. State, 225 Ga. 465,
469-470 (3) (169 SE2d 801) (1969). See
also Bell v. State, 227 Ga. 800 (1) (183 SE2d
357) (1971). We find that appellant was not subjected to
either of these dangers and that the evidence authorized the armed
robbery conviction. Jackson v. Virginia, supra.
2. Appellant's first five enumerations of error
allege error in the denial of funds and expert assistance.
(a) Appellant filed a motion for funds to employ
a private psychiatrist to examine appellant. At the hearing on the
motion, appellant testified that nothing had occurred in his past
that had required a mental evaluation, that he had not filed a plea
of insanity, and that he did not consider himself to be insane. No
evidence was presented which contradicted appellant's testimony, and
appellant did not attempt to raise a defense of insanity at trial.
The trial court denied appellant's request for an
independent evaluation, but offered an examination by state
psychiatrists. This offer was refused.
"The grant or denial of a motion for independent
psychiatric examination lies within the discretion of the trial
court and will not be overturned unless an abuse of discretion is
shown. [Cits.] We find no abuse of discretion in denying an
independent psychiatric examination in this case." Messer v. State,
247 Ga. 316 (1) (276 SE2d 15) (1981).
(b) Appellant was arrested June 30, 1981. He was
indicted the next day and on July 2, M. C. Pritchard was appointed
to represent him. Thereafter, appellant filed a motion for
additional legal assistance and funds to hire an investigator. On
August 24, 1981, the trial court appointed John Thigpen to assist Mr.
Pritchard, but denied appellant's request for an investigator.
Appellant's trial began in the latter part of January, 1982.
Appellant had the assistance of two attorneys for
five months prior to his trial. The court did not abuse its
discretion by failing to provide additional funds for an
(c) Appellant, in three separate motions, sought
funds to pay for the services of experts to conduct a community
opinion survey, to be used in his motion for change of venue; to
investigate and compute discrepancies between the population of
Pierce County and its grand and traverse jury pools, in preparation
for his jury challenges; and to conduct a statewide survey to be
used to determine whether the death penalty is arbitrarily enforced
in Georgia. These motions were denied.
This court has consistently held that the grant
or denial of a motion for appointment of expert witnesses for an
indigent defendant lies within the sound discretion of the trial
court and, absent an abuse of discretion, the court's ruling will be
upheld. See, e.g., High v. State, 247 Ga. 289
(2) (276 SE2d 5) (1981). We find no abuse of discretion here,
and if, in an appropriate case, due process and fundamental fairness
might require the state to provide expert assistance to an indigent
defendant, this is not such a case. See, Hoback v. Alabama, 607 F2d
680, 682 (5th Cir. 1979).
3. In his sixth and seventh enumerations of
error, appellant contends that the court erred in overruling his
grand and traverse jury challenges.
(1970) List Jury List Females 51.2 48.7 51.9
Whites 81.9 86.3 86 (a) "Criminal defendants in
state courts may challenge discriminatory selections of grand and
petit juries through the equal protection clause of the Fourteenth
Amendment. [Cits.]" United States v. Perez-Hernandez, 672 F2d 1380,
1385 (11th Cir. 1982). Moreover, criminal defendants in state courts
have the right to challenge, under the Sixth Amendment, petit juries
not selected from a fair cross section of the community. Duren v.
Missouri, 439 U. S. 357 (99 SC 664, 58 LE2d 579) (1979). The two
challenges are not entirely analogous. Id. at 439 U. S. 368, n. 26.
See also, Walraven v. State, 250 Ga. 401 (3)
(297 SE2d 278) (1982).
However, common to each is the
requirement that the defendant must establish prima facie that a
distinct and identifiable group in the community is substantially
underrepresented on the jury venire being challenged. The
percentages established by appellant failed to show such substantial
underrepresentation, and the trial court properly overruled
appellant's jury challenges. See Machetti v. Linahan, 679 F2d 236
(11th Cir. 1982) and cases cited therein at p. 241.
(b) The jury commission, at the time of the
hearing, was composed of four white males, one black male and one
white female, all of whom were over 40. Appellant contends the jury
commission was unrepresentative of the population of Pierce County.
This contention provides no basis for reversal. Cf. White v. State,
230 Ga. 327, 332 (2) (196
SE2d 849) (1973).
4. In enumerations of error thirteen through
twenty-four, appellant contends that his challenges to eleven
prospective jurors should have been granted.
(a) Two of the prospective jurors were challenged
because they were reserve police officers. Charles Foreman was once
a part-time police officer with the City of Blackshear. At the time
of the trial, he was a member of the inactive reserves, which meant
that, should extra help be needed, he might be called. He did not
have a uniform, however, and had done no work in connection with
this case. Larry Walker was an auxiliary policeman with the
Blackshear police department. He stated that he had never done any
criminal investigation on behalf of the Blackshear police department
and only helped the police department with ball games.
See Jordan v. State, 247
Ga. 328 (6) (276 SE2d 224) (1981).
(b) The other nine prospective jurors were
challenged because they knew one or more of the victims or their
Juror Ann C. Wall was probably best acquainted
with at least one of the victims. She had worked in the local ASCS
office for years and through her work had come into contact with
Alfred Boatright. Although she never socialized with him, she had
"Known him for years as a friend." She conceded to defense counsel
that as a result of her friendship with Boatright she might favor
his side a "little bit." However, she stated she thought she could
be fair and impartial and would consider only the evidence presented
in the case. She stated she had no opinion regarding appellant's
guilt or innocence.
Most of the rest of the challenged jurors knew
one or the other of the victims only casually. None of them had an
opinion as to appellant's guilt or innocence, nor did any express a
bias or prejudice against appellant. "On this record we cannot find
that the trial judge erred in overruling the challenges for favor. [Cits.]"
Jordan v. State, Id. at 340.
5. In his eighth enumeration of error,
appellant contends the trial court erred in denying his motion
for change of venue. We find no error. Of the 64 jurors who were
examined, only 4 were excused for bias or prejudice resulting
from pre-trial publicity.
None of the jurors put upon appellant expressed any opinion as
to his guilt or innocence. The low number of veniremen excused
corroborates the absence of such prejudical publicity as would
require the grant of a motion for change of venue. Messer v.
6. In his twelfth enumeration of error, appellant
contends that because his character was placed in issue during the
jury voir dire, the entire jury panel should have been dismissed and
a new venire obtained.
When the court asked the fourth juror on the
panel the statutory question -- "Have you any bias or prejudice
resting on your mind either for or against the accused?" The juror
responded that he did because he was a retired military man and he
had read that appellant had been AWOL at the time of the alleged
offense. The juror was excused, but the trial court refused to
disqualify the rest of the jurors, most of whom had heard the answer.
Instead, the trial court instructed the other jurors to disregard
unresponsive answers by fellow prospective jurors.
Additionally, during the remainder of the voir dire, the court asked each juror if
the juror had heard the remark of the fourth juror and, if so, had
the remark affected the juror's impartiality in any way. Only one
juror indicated a bias concerning the answer and he stated that he
had already read the same thing and was already biased before he
heard the remark. This juror was excused.
In view of the remedial action taken by the trial
court and the responses of the jurors, and especially in view of the
fact that, at trial, appellant admitted on direct examination that
he was absent without leave from Fort Stewart when he killed
Boatright and Highsmith, we find no error in the court's refusal to
disqualify the entire jury panel for prejudice and bias.
7. Appellant's tenth and eleventh enumerations of
error are not supported by argument or citation of authority. See
Supreme Court Rule 45. We have nonetheless reviewed each asserted
error pursuant to Rule IV (b) (2) of the Georgia Unified Appeal
Procedure and conclude that neither has addressable merit.
8. When the case was called for trial, on January
25, 1982, appellant moved for a continuance on the ground that two
witnesses subpoenaed by the defense on January 20 had not been
served and were not present to testify. The sheriff testified that
he had searched for, but had been unable to locate, these witnesses.
Appellant's attorneys admitted to the trial court
that they had not talked to either witness. They contended, however,
that, according to information they had, one of the witnesses had
been inside Boatright's store when the shooting occurred and would
testify that the shooting was not planned, but was the result of an
argument; the other witness had been outside the store and had seen
the first witness run out the door when the shooting started. No
witnesses were offered to substantiate this information.
In our opinion, appellant failed to demonstrate
that, had a continuance been granted, he would have been able to
locate either of the witnesses. Nor do we think that appellant
established, by anything other than speculation, that the testimony
of the missing witnesses would have been material.
7 In these circumstances, the trial
court did not abuse its discretion by refusing to grant a
continuance. OCGA 17-8-25 (Code Ann.
81-1410); Lee v. State, 154 Ga. App. 562 (4)
(269 SE2d 65) (1980). Sentence Review
The jury recommended the sentence of death for
each of the murders. The supporting aggravating circumstances found
by the jury may be summarized as follows: The murder of Alfred
Boatright was committed while appellant was engaged in the
commission of two other capital felonies, the murder of Morris
Highsmith and the armed robbery of Alfred Boatright; the murder of
Morris Highsmith was committed while appellant was engaged in the
commission of two other capital felonies, the murder of Alfred
Boatright and the armed robbery of Alfred Boatright.
9. The doctrine of "mutually supporting
aggravating circumstances" precludes simultaneous use of the murder
of Boat- right to support the death penalty for Highsmith and use of
the murder of Highsmith to support the death penalty for Boatright.
Burden v. State, 250 Ga. 313 (6) (297 SE2d
242) (1982); Waters v. State, 248 Ga.
355 (12) (283 SE2d 238) (1981); Gregg v. State,
233 Ga. 117 (210 SE2d 659) (1974). We
therefore set aside the statutory aggravating circumstance that the
murder of Highsmith occurred during the murder of Boatright.
Since at least one statutory aggravating
circumstance remains to support each sentence of death, the
elimination of one such circumstance does not require reversal of
either sentence. OCGA 17-10-30 (c); (Code
Ann. 27-2534.1); Zant v. Stephens, 250 Ga. 97
(297 SE2d 1) (1982). The remaining statutory aggravating
circumstances are supported by the evidence. Jackson v. Virginia,
10. The trial court did not err when it allowed
the state to introduce evidence of appellant's prior record of
convictions during the sentencing phase of the trial. OCGA
17-10-2 (Code Ann. 27-2503); Zant v.
Stephens, supra; Horton v. State, 249 Ga. 871
(6) (295 SE2d 281) (1982). Appellant's twenty-sixth
enumeration of error is meritless.
11. The sentences of death were not imposed under
the influence of passion, prejudice or other arbitrary factor. OCGA
17-10-35 (c) (1) (Code Ann. 27-2537).
12. In his twenty-fifth enumeration of error,
appellant contends the trial court erred in refusing to allow him to
present to the jury, during the sentencing phase of the trial,
evidence of penalties imposed in allegedly similar cases in the
Waycross Judicial Circuit. We find no error.
A defendant may present, during the sentencing
phase of a death penalty case, evidence relating to the defendant's
character, prior record, or the circumstances of his offense.
Lockett v. Ohio, 438 U. S. 586 (98 SC 2954, 57 LE 2d 973) (1978);
Franklin v. State, 245 Ga. 141 (7) (263 SE2d
666) (1980). See also Horton v. State, supra, Divisions (4),
(5) and (6).
However, it is for this court, and not the jury, to
determine whether a sentence of death is excessive or
disproportionate to the penalty imposed in similar cases. OCGA
17-10-35 (c) (3) (Code Ann. 27-2537).
The trial court properly refused to allow appellant to present to
the jury evidence of penalties imposed in other cases, and this
enumeration of error is meritless.
13. "The similar cases listed in the appendix
support the death penalty in this case. Those cases show that juries
find that the death penalty is appropriate punishment where [an
adult] is found to have been the actual perpetrator of, or active
participant in, double murders committed upon victims who are
unrelated to the defendant. Features frequently found in such cases
are burglaries, armed robberies or kidnappings." Rivers v. State,
250 Ga. 288, 302 (10) (298
SE2d 10) (1982). In this case, appellant, an adult, was found
guilty of being the actual perpetrator of the murder of two unarmed,
elderly men during the armed robbery of a convenience store.
The sentences of death imposed in this case are
neither excessive nor disproportionate to the penalty imposed in
similar cases, considering both the crime and the defendant.
admission is corroborated by other evidence, including, but not
limited to, ballistics evidence; the testimony of Sue Nell
Boatright, who identified appellant as the person driving a
yellow car who entered the store just as she was leaving at
approximately 4:00 p.m.; and the testimony of Parnell Sapp, who
identified appellant's yellow Grand Prix as the car parked by
the side of the road north of Boatright's, who saw the same car
a few minutes later at Boatright's, and who heard sirens 10-15
minutes after that.
2 Spurlin was
decided before the 1968 Revision to the Criminal Code. However, in
the committee notes to Chapter 26-20 of former Ga. Code Ann. (Harrison
1977), (which were to be considered "an expression of the
legislative intent"), it was stated: "The new law [of robbery]
substantially conforms to the former Code provisions, though the
form is different." That portion of the definition of armed robbery
pertinent here has been carried down unchanged since 1968. Compare
Ga. L. 1968, p. 1298 with OCGA 16-8-41
(Code Ann. 26-1902).
3 The jury
lists were drawn up before 1980 census figures were available. At
the time of the hearing, preliminary 1980 census figures broken down
by race, but not by sex, indicated that the percentage of blacks had
decreased to 14% of the total population of Pierce County.
4 These figures
may be more readily visualized in chart form:
5 Of the eleven
jurors challenged, only one sat on his jury. We note that appellant
used only 19 of his 20 peremptory strikes.
6 Two other
jurors were excused because of bias or prejudice resulting from
friendship with the victims or their families. Three jurors were
excused for conscientious objection to the death penalty. Other
jurors, not all of whom underwent voir dire, were excused for health
reasons or because of kinship within a prohibited degree.
7 At trial,
neither appellant's testimony, nor any other evidence, indicated the
presence of anyone inside the store, at the time of the robbery,
other than appellant and his two victims.
C. Deen Strickland, District Attorney,
Michael J. Bowers, Attorney General, Mary Beth Westmoreland,
Assistant Attorney General, for appellee. APPENDIX.
M. C. Pritchard, John B. Thigpen, Sr., for
DECIDED MARCH 1, 1983.
Willie James Wilson