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Dallas
Bernard HOLIDAY
HOLIDAY v. THE STATE.
45440.
(258 Ga. 393)
(369 SE2d 241)
(1988)
HUNT, Justice.
Murder. Jefferson Superior Court. Before Judge Hartley.
Dallas Bernard Holiday was convicted by a jury of
malice murder, armed robbery, two counts of burglary, and possession
of a firearm by a convicted felon. He was sentenced to death for the
murder. 1
1. On March 11, 1986, the victim, Leon Williams,
went for his usual early-morning walk. His wife often accompanied
him, but this time she remained home. Half an hour after he left, a
nearby neighbor, Barbara Buckner, ran to the Williams' house and
asked to use the telephone -- someone was breaking into her house.
The Williams' telephone was not working, so Mrs. Williams drove Mrs.
Buckner to the police station.
The defendant was still in the Buckner home when
the police arrived, but he ran out the back door and eluded capture
for nearly an hour. A pistol he dropped during the chase turned out
to have been one of two taken in another burglary the previous
evening.
Meanwhile, Mrs. Williams returned home. By
lunchtime, her husband still had not returned from his walk. She
began checking around, trying to find him, and could not. His
disappearance was reported to the police that afternoon.
Shortly after 5:00 p.m., the sheriff discovered
signs of a struggle at an old pond site. He tracked blood drippings
to the edge of a nearby woods, where he found Williams' body.
Williams had been hit on the head at least seven
times with a blunt object. The autopsist testified the wounds were
consistent with having been inflicted by the butt of a gun, or by a
brick similar to one found near the body. Williams had a number of
defensive wounds on his hands, including a laceration of one finger
that almost completely severed the finger. The cause of death was a
gunshot wound to the head.
A ballistics comparison showed that a bullet
recovered from under the victim's scalp had been fired from the .32
caliber pistol dropped by Holiday as he attempted to elude the
police. Pieces of another gun left at the scene of the struggle a
broken piece of the stock, a magazine spring and a follower were
compared to and fit the .380 automatic obtained from Holiday's
female companion. Blood on the .380 pistol and on the brick found
near the body was consistent with that of the victim.
Holiday was interrogated after his arrest, and he
admitted stealing the two guns in a burglary the previous evening.
He stated that he was riding his bicycle when he saw the victim
walking, and decided to hit him on the head from the rear with one
of the guns, knock him out, and take his money. The blow failed to
render the victim unconscious, however, so Holiday ordered him
toward the woods. While Williams begged him not to kill him, Holiday
took his wallet and his watch and ordered him to lie down. Then he
got a brick and hit him two or three times on the head. Williams was
still alive, so Holiday took out his other gun -- the one he had not
hit him with and shot him. Then, Holiday stated, he decided to
burglarize another house. He rang the doorbell, and when no one
answered (Mrs. Buckner was in the shower) he went to the rear, broke
out the glass in a sliding-glass door, and entered the house. While
he was looking for something to steal, the police arrived.
The evidence supports Holiday's conviction on all
counts. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560)
(1979).
2. Holiday first contends this court lacks
jurisdiction over the case because he has pending in the trial court
a motion for reconsideration of the denial of his motion for new
trial. We do not agree. When the trial court denied the motion for
new trial, the case became ripe for appeal. OCGA
5-6-38. The trial court did not grant
a stay of its order denying the motion for new trial, compare Austin
v. Carter, 248 Ga. 775 (1) (285 SE2d 542)
(1982), and a defendant cannot force the case to remain in
the trial court indefinitely by the continued filing of motions to
reconsider.
3. Upon his arrest, Holiday was taken to jail.
Investigator Hattaway talked to him briefly, but Holiday stated that
he was tired and asked for two aspirins. These were provided, and
Holiday was taken to a cell and allowed to rest for over an hour.
Then Hattaway talked to him again about the two burglaries, which
Holiday admitted committing.
Later that evening, after the body was found, the
sheriff talked to Holiday for a few minutes. Holiday stated that he
was sleepy and wanted to go to bed. He was allowed to do so, and the
sheriff and investigator Williamson talked to Holiday early the next
morning, and Holiday admitted killing Leon Williams.
Early that afternoon, assistant district attorney
McClain talked to Holiday for two reasons: to obtain more details
about Holiday's activities, and to discuss the recently-discovered
fact that the victim had been shot, as well as beaten. The result of
this interview was a lengthy written statement that was read into
evidence at trial.
The trial court conducted a pre-trial Jackson-Denno
hearing, and determined that the statements were voluntarily made,
after the defendant had knowingly and intelligently waived his
rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d
694) (1966). Holiday contends this finding was erroneous, claiming
that his interrogators failed to honor "scrupulously" his invocation
of his right to remain silent. See Michigan v. Mosley, 423 U. S. 96
(96 SC 321, 46 LE2d 313) (1975). In fact, the record shows that
Holiday's rights were honored and that he was given the opportunity
to "control the time at which questioning occur [red], the subjects
discussed, and the duration of the interrogation." Id. 96 SC at 326.
The record supports the trial court's findings. Berry v. State,
254 Ga. 101, 104 (326
SE2d 748) (1985).
Holiday also complains of testimony at trial in
reference to custodial statements allegedly not dealt with at the
Jackson-Denno hearing. However, he did not object contemporaneously
to any of this testimony, 2 and we
have held that, absent a contemporaneous objection, the trial court
is not required to conduct a Jackson-Denno hearing sua sponte.
Moreover, we note that except for Holiday's spontaneous statement,
upon his capture, that he "knew his rights," which was not the
product of interrogation, and therefore is not covered by Miranda,
see Findley v. State, 251 Ga. 222 (1) (304
SE2d 898) (1983), the testimony complained of here was based
on statements made by Holiday during his interview with investigator
Hattaway on the afternoon of March 11, and this interview was dealt
with at the Jackson Denno hearing. 3
4. Absent a motion to sever, there was no error
in trying together five of the six counts of the indictment.
4 McCloud v. State,
174 Ga. App. 672 (3) (331 SE2d 54) (1985).
5. The trial court did not err by excusing a
prospective juror who stated, after reflection, that she simply
could not vote to impose a death sentence. Alderman v. State,
254 Ga. 206 (4) (327 SE2d 168) (1985).
6. Holiday was not denied an effective and
thorough voir dire examination. Curry v. State,
255 Ga. 215 (2 b) (336
SE2d 762) (1985). His contention that the trial court "precluded
defense counsel from asking jurors whether they could sentence Mr.
Holiday to life imprisonment 'even if there were aggravating
circumstances there,' " Appellant's brief, p. 33, is factually
incorrect; that was not the question he asked and the trial court
did not sustain the objection to the question that he did ask.
Further, the court did not err by finding both a husband and wife to
be qualified to serve as jurors. Childs v. State,
257 Ga. 243 (10) (357 SE2d 48) (1987).
7. Law enforcement officers testified that based
on certain, unspecified information they uncovered during their
investigation, they went to the home shared by the defendant and his
brother, and obtained the victim's wallet, and they went to the home
of Rosa Gibbons, who gave them a bag containing items taken in the
burglaries. The brother testified that he had found the wallet under
the sofa in their house. Gibbons testified that she had been asked
by Shirley Sanders (the defendant's female companion) to hold the
bag. Holiday contends that all of this testimony was hearsay.
Gibbons' testimony that she was keeping something
at the request of someone else was not hearsay; it was simply a
statement of fact. See Reed v. State, 249
Ga. 52 (4) (287 SE2d 205) (1982); Cleary, McCormick on
Evidence, Ch. 24. 249, p. 733 (3rd ed. 1984). The defendant's
brother testified to no hearsay, and since the law officers
testified only that they received certain information (and not what
that information was) and, based on that information, took certain
action, they testified to no hearsay either. Compare OCGA
24-3-2.
8. Assistant district attorney McClain took the
final pre-trial statement from Holiday. He was listed as a witness
on the list furnished to the defendant under OCGA
17-7-110. Holiday moved to disqualify
McClain from acting as an attorney in the case. See DR 5-102 of the
Georgia Code of Professional Responsibility, 252 Ga. at 613. The
district attorney consented to the motion, and took McClain off the
case, stating that henceforth he would not be involved in the case
other than as a witness.
When McClain testified at trial, Holiday's
attorney attempted to cross-examine him about the motion for
disqualification. In response to the state's objection, he stated to
the court that he wished to ask McClain "whether [the motion] was
granted and whether or not he agreed with it; whether it has
anything to do with his partiality and testimony today . . ." The
trial court ruled that he could ask McClain if he has any partiality
in the case, and if he answered yes, then Holiday could ask him why.
Otherwise, the court would not let him "get into motions that were
made now and the rulings of the Court on motions. . . ."
As we stated in Hicks v. State,
256 Ga. 715 at 720-21(352
SE2d 762) (1987), the trial court may exclude relevant
evidence
if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay,
waste of time or needless presentation of cumulative evidence.
There was no abuse of discretion here.
9. Holiday's contention that the district
attorney and all of his staff should have been disqualified under a
theory of imputed disqualification is answered adversely to his
contention by Frazier v. State, 257 Ga. 690
(9) (362 SE2d 351) (1987).
10. Holiday contends that the trial court erred
by refusing to allow him to ask the state's serologist whether the
blood on his clothes was consistent with being his blood and not the
victim's. However, Holiday failed to establish a chain of custody as
to the blood sample taken from him, and absent this foundation, his
question was improper. 5
11. Holiday contends that prejudicial,
inflammatory and irrelevant matters were injected into the trial.
(a) The trial court should not have referred to
the recidivist count of the indictment (Count Six) when he
administered the oath to the prospective jurors. See Riggins v.
Stynchcombe, 231 Ga. 589, 593 (203
SE2d 208) (1974). However, the court only said the word "recidivist";
the court did not read that count of the indictment. Moreover,
Holiday's prior record was introduced in evidence to prove Count
Five, alleging the possession of a firearm by a convicted felon.
6 In these circumstances, the brief
reference to the recidivist count was harmless error.
(b) When the trial judge introduced the attorneys
and the court personnel to the jury during his preliminary
instructions just before the opening statements were delivered, he
stated that Holiday's lead attorney was a public defender. We fail
to see how this introduction prejudiced the defendant.
(c) Testimony that the defendant "was yelling
about he knew his rights, he knew his rights" was elicited on cross-examination
by the defendant, when his attorney asked twice whether the
defendant had said anything when he was yackled by one of his
pursuers. Holiday may not complain of this testimony. Felker v.
State, 252 Ga. 351 (11) (314 SE2d 621) (1984).
(d) There was no error in allowing in evidence
Holiday's statement even though there was a reference indicating he
had possibly committed "also another and separate offense." Ingram
v. State, 253 Ga. 622 (18 a) (323
SE2d 801) (1984).
(e) The state's evidence of flight was neither
irrelevant nor unreliable. Quick v. State,
256 Ga. 780 (5) (353 SE2d 497) (1987).
(f) Holiday did not raise at trial an objection
under Booth v. Maryland, 482 U. S. ____ (107 SC 2529, 96 LE2d 440)
(1987). Thus, we need not address the merits of his Booth issue on
appeal. See Cohen v. State, 257 Ga. 544,
547 (361 SE2d 373) (1987). However, we
note that it does not appear that the state offered evidence to show
the impact of the victim's death on his family; the mere fact that
his wife testified at the guilt phase of the trial about the
circumstances surrounding his disappearance, would not, in our view,
violate Booth.
12. Holiday contends the trial court erred by
instructing the jury on felony murder as well as malice murder,
where the indictment charged only the latter. See Crawford v. State,
254 Ga. 435 (1) (330 SE2d 567) (1985).
The state responds that the indictment was sufficient to allege both.
We conclude that since the jury returned a verdict specifying that
it found the defendant guilty of "malice murder," any issue of
felony murder is moot.
13. Absent a request, the trial court did not err
by failing to instruct the jury on the law of voluntary and
involuntary manslaughter.
Davis v. State, 255 Ga.
598 (15) (340 SE2d 869) (1986).
14. The court's instructions relating to the
credibility of witnesses were not improper. Noggle v. State,
256 Ga. 383 (4) (349 SE2d 175) (1986);
Felker v. State, supra, 252 Ga. at 379-380.
15. The court did not err in its response to the
jury's request to be reinstructed on the elements of malice and
felony murder. Williams v. State, 249 Ga. 6
(6) (287 SE2d 31) (1982).
16. The record does not show that Holiday was
absent during a portion of the recharge, and, hence, does not
support Holiday's claim of error in this regard.
17. The prosecutor did not argue improperly to
the jury. Walker v. State, 254 Ga. 149 (14)
(327 SE2d 475) (1985).
18. The trial court did not err by refusing to
sentence Holiday for the non-capital felony offenses of which he was
convicted before the commencement of the sentencing phase of the
trial. See OCGA 17-10-2.
19. Holiday complains of the court's sentencing-phase
instructions to the jury.
(a) The court did not err by telling the jury
that it could "recommend" the sentence on the murder count of the
indictment, where it was clear from the instructions as a whole that
its recommendation would be binding on the trial court. See Spivey
v. State, 253 Ga. 187, 192 (319
SE2d 420) (1984).
(b) The b (7) aggravating circumstance is not
facially invalid. Gregg v. Georgia, 428 U. S. 153 (96 SC 2909, 49
LE2d 859) (1976). There was no lack of unanimity as to the b (7)
finding, because the jury returned this finding in the conjunctive,
not the disjunctive. Lipham v. State, 257 Ga.
808 (7) (364 SE2d 840) (1988).
(c) Holiday's requests to charge that the state
had the burden to disprove the existence of mitigating circumstances,
and that the jury must find a mitigating circumstance to exist if
there is any evidence to support it, or (alternatively) substantial
evidence to support it, were not correct statements of law and the
trial court did not err by refusing to give them in charge. See
Parker v. State, 256 Ga. 543 (9) (350 SE2d
570) (1986).
(d) The court did not err by telling the jury
that its verdict must be unanimous. Romine v. State,
256 Ga. 521 (2) (350 SE2d 446) (1986).
(e) It was not error to refuse other requests to
charge whose principles were adequately addressed by the charge the
court did give. Kelly v. State, 241 Ga. 190
(4) (243 SE2d 857) (1978).
20. There was no improper restriction of
mitigating evidence. Quick v. State, 256
Ga. 780 (9) (353 SE2d 497) (1987); Ingram v. State,
253 Ga. 622 (11) (323 SE2d 801) (1984);
Felker v. State, 252 Ga. 351 (18) (314 SE2d
621) (1984); Wilson v. State, 250 Ga.
630 (12) (300 SE2d 640) (1983).
21. The jury found as aggravating circumstances:
(1) the offense of murder was committed while the
defendant was engaged in the commission of an armed robbery; (2) the
offense of murder was committed while the defendant was engaged in
the commission of the offense of kidnapping with bodily injury; and
(3) the offense of murder was outrageously or wantonly vile,
horrible, or inhuman in that it involved (a) depravity of mind, and
(b) torture to the victim prior to the death of the victim.
Record, p. 232. See OCGA
17-10-30 (b) (2) and (b) (7). The evidence supports these
findings. OCGA 17-10-35 (c) (2).
22. The sentence of death was not imposed under
the influence of passion, prejudice or any other arbitrary factor
and is neither excessive nor disproportionate to the penalty imposed
in similar cases, considering both the crime and the defendant. The
similar cases listed in the Appendix support the imposition of the
death penalty in this case.
APPENDIX.
Notes
1 The crimes
were committed March 10 and 11, 1986. The defendant was indicted on
May 12, 1986, and the case was tried November 17 through November
21, 1986. A motion for new trial was timely filed and, after hearing,
was denied December 28, 1987. The case was docketed in this court on
January 28, 1988, and after the defendant was granted an extension
of time to file his enumerations of error, the case was argued
orally April 11, 1988.
2 Holiday
maintained a standing objection at trial to the admission of the "very
same statements" covered by the Jackson-Denno hearing. No objections
were raised as to any additional statements.
3 See
Transcript, hearing of November 10, 1986 at p. 135, which shows that
Holiday stated to Hattaway that he had thrown a gun and some coins
into a pond. Although Holiday's divulgence of the location of his
shoes was not specifically mentioned at the pre-trial hearing, it is
clear that it occurred during Holiday's interviews with Hattaway the
afternoon of March 11.
4 Count Six was
a recidivism count. See OCGA 17-10-7.
5 We note that
the serologist's report states that in regard to type and all
identifiable enzymes the defendant and the victim had the same kind
of blood. Hence, at most, the serologist's answer could only have
established that the blood on the defendant's clothes was consistent
with both the defendant and the victim. The marginal value of such
an answer, in view of the lack of evidence that the defendant was
injured at all and the evidence showing that the victim was terribly
injured and bloody, probably explains why Holiday did not attempt to
establish a chain of custody.
6 As noted
previously, Holiday did not seek a severance. See Head v. State,
253 Ga. 429 (322 SE2d 228) (1984).
Richard A. Malone, District Attorney, William H. McClain, Assistant
District Attorney, Michael J. Bowers, Attorney General, Eddie
Snelling, Jr., Assistant Attorney General, for appellee.
Alan P. Layne, John J. Pilcher II, for appellant.
DECIDED JUNE 23, 1988 -- RECONSIDERATION DENIED JULY 13, 1988.