Murderpedia has thousands of hours of work behind it. To keep creating
new content, we kindly appreciate any donation you can give to help
the Murderpedia project stay alive. We have many
plans and enthusiasm
to keep expanding and making Murderpedia a better site, but we really
need your help for this. Thank you very much in advance.
Marion
WILSON Jr.
Classification: Murderer
Characteristics:
Robbery
- Member of
the Folks gang
Number of victims: 1
Date of murder:
March 28,
1996
Date of birth: 1976
Victim profile: Donovan Corey Parks
Method of murder:
Shooting
Location: Baldwin County, Georgia, USA
Status: Sentenced to death on November 7, 1997
WILSON v. THE STATE.
S99P0651.
(271 Ga. 811)
(525 SE2d 339)
(1999)
BENHAM, Chief Justice.
Murder. Baldwin Superior Court. Before Judge Prior.
A jury convicted Marion Wilson, Jr. of malice
murder, felony murder, armed robbery, hijacking a motor vehicle,
possession of a firearm during the commission of a crime, and
possession of a sawedoff shotgun. 1
The jury fixed the sentence for the murder at death, finding as a
statutory aggravating circumstance that Wilson committed the murder
while engaged in the commission of an armed robbery. OCGA
17-10-30 (b) (2). For the reasons that
follow, we affirm.
The evidence at trial showed that on the night of
March 28, 1996, the victim, Donovan Corey Parks, entered a local Wal-Mart
to purchase cat food, leaving his 1992 Acura Vigor parked in the
fire lane directly in front of the store.
Witnesses observed Wilson and Robert Earl Butts
standing behind Parks in one of the store's checkout lines and,
shortly thereafter, speaking with Parks beside his automobile.
A witness overheard Butts ask Parks for a ride,
and several witnesses observed Wilson and Butts entering Parks's
automobile, Butts in the front passenger seat and Wilson in the back
seat.
Minutes later, Parks's body was discovered lying
face down on a residential street. Nearby residents testified to
hearing a loud noise they had assumed to be a backfiring engine and
to seeing the headlights of a vehicle driving from the scene.
On the night of the murder, law enforcement
officers took inventory of the vehicles in the Wal-Mart parking lot.
Butts's automobile was among the vehicles remaining in the lot
overnight. Based upon the statements of witnesses at the Wal-Mart,
Wilson was arrested.
A search of Wilson's residence yielded a sawed-off
shotgun loaded with the type of ammunition used to kill Parks, three
notebooks of handwritten gang "creeds," secret alphabets, symbols,
and lexicons, and a photo of a young man displaying a gang hand sign.
Wilson gave several statements to law enforcement
officers and rode in an automobile with officers indicating stops he
and Butts had made in the victim's automobile after the murder.
According to Wilson's statements, Butts had
pulled out a sawed-off shotgun, had ordered Parks to drive to and
then stop on Felton Drive, had ordered Parks to exit the automobile
and lie on the ground, and had shot Parks once in the back of the
head.
Wilson and Butts then drove the victim's
automobile to Gray where they stopped to purchase gasoline. Wilson,
who was wearing gloves, was observed by witnesses and videotaped by
a security camera inside the service station. Wilson and Butts then
drove to Atlanta where they contacted Wilson's cousin in an
unsuccessful effort to locate a "chop shop" for disposal of the
victim's automobile.
Wilson and Butts purchased two gasoline cans at a
convenience store in Atlanta and drove to Macon where the victim's
automobile was set on fire. Butts then called his uncle and arranged
a ride back to the Milledgeville Wal-Mart where Butts and Wilson
retrieved Butts's automobile.
1. Viewed in the light most favorable to the
verdict, we find that the evidence introduced at trial was
sufficient to enable a rational trier of fact to find beyond a
reasonable doubt that Wilson was guilty of the crimes of which he
was convicted and to find beyond a reasonable doubt the existence of
a statutory aggravating circumstance. Jackson v. Virginia, 443 U. S.
307 (99 SC 2781, 61 LE2d 560) (1979); OCGA
17-10-30 (b) (2). The State was not required to prove that
Wilson was "the triggerman" in order to prove him guilty of malice
murder. Even assuming that Wilson did not shoot the victim, there is
sufficient evidence that he intentionally aided or abetted the
commission of the murder or that he intentionally advised,
encouraged, or procured another to commit the murder to support a
finding of guilt. OCGA 16-2-20 (b)
(3), (4). See Mize v. State, 269 Ga. 646 (1)
(501 SE2d 219) (1998); Chapman v. State,
263 Ga. 393 (435 SE2d 202) (1993);
Gambrel v. State, 260 Ga. 197 (391 SE2d 406)
(1990).
The same standard of review of the evidence is
applicable to the denial of the defendant's motion for a directed
verdict. Miller v. State, 270 Ga. 741 (1)
(512 SE2d 272) (1999); Smith v. State,
267 Ga. 502 (3) (480 SE2d 838) (1997). Accordingly, we
disagree with Wilson's contention that his motion for a directed
verdict was improperly denied by the trial court.
2. Wilson claims that his rights to freedom of
speech and freedom of association were violated during the penalty
phase of his trial by the introduction of evidence showing his
involvement with the Folks gang. In support of his contention,
Wilson relies upon Dawson v. Delaware, 503 U. S. 159 (112 SC 1093,
117 LE2d 309) (1992), wherein the U. S. Supreme Court held that a
defendant's association with a racist organization was protected by
the First and Fourteenth Amendments and that evidence of such an
association could not lawfully be introduced unless relevant to the
issues to be tried. Presentation by the State of evidence that
proves "nothing more than [a defendant's] abstract beliefs[]" (id.
at 167) invites punishment of a criminal defendant's exercise of
constitutionally protected rights.
In the present case, however, evidence of
Wilson's involvement with the Folks gang and of the violent nature
of that gang was relevant to the issues to be decided by the jury
during the sentencing phase of his trial. The State presented
testimony that the Folks gang required its members to commit violent,
criminal acts and that Wilson held a powerful position in the gang.
The State also presented a tape-recorded statement of Wilson
claiming to be the gang's "chief enforcer," Wilson's handwritten
notebooks regarding the gang, and a photograph found in Wilson's
residence of a young man displaying a gang hand sign. Because the
evidence in question was not objected to at trial, Wilson is barred
from challenging its introduction on appeal. Earnest v. State,
262 Ga. 494 (1) (422 SE2d 188) (1992).
3. Wilson contends that the trial court allowed
improper expert testimony about gangs during the sentencing phase of
his trial. The testimony in question was not objected to at trial
and cannot now be complained of on appeal. Id.
4. Wilson claims that self-inculpatory statements
allegedly made by Robert Earl Butts to three of Butts's fellow
inmates were made "during the pendency of the criminal project" (OCGA
24-3-5) in which Wilson and Butts had
been engaged as co-conspirators and, therefore, that those alleged
statements should have been admitted during the guilt/innocence
phase of Wilson's trial.
The trial court excluded the evidence on
the basis that any conspiracy between Wilson and Butts ended when
Wilson gave statements to law enforcement officers revealing certain
details of the crime and seeking to place blame for the murder on
Butts. While we agree with the trial court that any conspiracy
between Butts and Wilson ended upon Wilson's statements to
authorities (Crowder v. State, 237 Ga. 141,
153 (227 SE2d 230) (1976)), we further
add that the statutory exception to the hearsay rule upon which
Wilson relies makes declarations of conspirators admissible only
against other conspirators. See Dunbar v. State,
205 Ga. App. 867, 869 (424
SE2d 43) (1992). It is the longstanding rule in this state
that declarations to third persons to the effect that the declarant
and not the accused was the actual perpetrator are, as a rule,
inadmissible. Timberlake v. State, 246 Ga.
488 (1) (271 SE2d 792) (1980); Lyon v. State,
22 Ga. 399 (1857).
Furthermore, although this type of hearsay
evidence is generally inadmissible (see Timberlake v. State, supra
at (1)), under the principles set forth by this Court in Drane v.
State, 265 Ga. 255 (455 SE2d 27) (1995),
and by the U. S. Supreme Court in Chambers v. Mississippi, 410 U. S.
284, 302 (93 SC 1038, 35 LE2d 297) (1973) (failure to admit evidence
of another's confession offered during guilt/innocence phase of
trial constituted a violation of due process right), and Green v.
Georgia, 442 U. S. 95 (99 SC 2150, 60 LE2d 738) (1979) (failure to
admit evidence of co-indictee's confession offered at punishment
phase of trial violated due process right because testimony was
highly relevant to a critical issue in punishment phase and
substantial reasons existed to assume its reliability), there may be
exceptional circumstances that make the hearsay evidence
sufficiently reliable and necessary to require its admission.
However, as stated in Turner v. State, 267 Ga.
149, 155 (476 SE2d 252) (1996),
whenever defense counsel seeks to admit this type of hearsay
evidence to support a claim that someone other than the defendant is
responsible for the crimes being tried, counsel:
must make a proffer in which the reliability and
necessity of the hearsay evidence are thoroughly set out, and the
trial court's ruling must reflect consideration of the proffered
evidence and a determination that the evidence does or does not show
"persuasive assurances of trustworthiness," or was made under
circumstances providing considerable assurance of its reliability.
Despite being tried approximately one year after
the Turner ruling was issued, Wilson, the hearsay proponent at trial,
did not utilize the procedures set forth in Turner and did not
obtain a ruling from the trial court evidencing its consideration of
the proffered hearsay evidence under Turner. Accordingly, the trial
court did not err in failing to address whether, under the standards
set forth in Green, Chambers, and Drane, the hearsay evidence in
question was sufficiently reliable, relevant, and necessary to
require its admission in the guilt/innocence phase of Wilson's trial.
5. Wilson contends that the trial court erred in
not striking certain jurors for cause. We find no reversible error
in the trial court's rulings.
(a) Juror James Peugh, a fonder defense attorney,
stated during his individual voir dire that he believed "99.9
percent of [criminal defendants] were guilty. . . ." The trial court
denied a defense motion that the juror be stricken for cause,
finding the juror had "rehabilitated himself" by stating in three
separate responses that he thought he could be fair. Whether to
strike a juror for cause lies within the sound discretion of the
trial court (Holmes v. State, 269 Ga. 124 (2)
(498 SE2d 732) (1998); Garland v. State,
263 Ga. 495 (1) (435 SE2d 431) (1993)),
and a trial court is not obligated to strike a juror for cause in
every instance where the potential juror expresses doubts about his
or her impartiality or reservations about his or her ability to set
aside personal experiences. Id.; Waldrip v. State,
267 Ga. 739 (8) (c) (482
SE2d 299) (1997); Johnson v. State,
262 Ga. 652 (2) (424 SE2d 271) (1993). The trial judge is
uniquely positioned to observe a potential juror's demeanor and
thereby to evaluate his or her capacity to render an impartial
verdict. See Greene v. State, 268 Ga. 47 (485
SE2d 741) (1997); Arnold v. State, 236
Ga. 534 (6) (224 SE2d 386) (1976). The record reveals no
evidence Juror Peugh had formed an opinion so fixed and definite
that it would not be changed by the evidence or the charge of the
court. See Bright v. State, 265 Ga. 265 (455
SE2d 37) (1995); Childs v. State, 257
Ga. 243 (357 SE2d 48) (1987); Waters v. State,
248 Ga. 355 (2) (283 SE2d 238) (1981).
Accordingly, we find that the trial court's denial of Wilson's
motion to strike Juror Peugh for cause was not a manifest abuse of
its discretion. See Diaz v. State, 262 Ga.
750 (2) (425 SE2d 869) (1993).
(b) Juror John Mayzes had casually conversed with
the victim about the Bible three times in Juror Mayzes's front yard
but was otherwise completely unacquainted with the victim. Wilson
did not move to strike Juror Mayzes for cause, and we find the trial
court did not err by not striking him sua sponte. See Mize v. State,
supra at (6) (c); Spencer v. State, 260 Ga.
640 (1) (398 SE2d 179) (1990); Childs v. State, supra. See
also Blankenship v. State, 258 Ga. 43 (2)
(365 SE2d 265) (1988) (applying Rule 10.1 of the Georgia
Uniform Rules for the Superior Courts, 253
Ga. 823-824, when party failed to object to trial court's
excusing certain jurors).
(c) Juror Henry Craig stated in his individual
voir dire that his son and daughter had repeated to him statements
of persons associated with the Sheriff's Department that indicated
the Sheriff was confident regarding the identity of the killer.
However, the juror clearly stated that he had not formed an opinion
about the guilt or innocence of the defendant, and both defense
counsel and the trial court questioned the juror as to his ability
to disregard the hearsay statements and to consider only the
evidence presented at trial. Accordingly, we find no error in the
trial court's denial of the defendant's motion to strike the juror
for cause. Bright v. State, supra at (8); Waters v. State, supra;
Tennon v. State, 235 Ga. 594 (2) (220 SE2d
914) (1975); Irvin v. Dowd, 366 U. S. 717, 723 (81 SC 1639, 6
LE2d 751) (1961).
(d) Wilson complains that, because the victim had
worked as a corrections officer, the trial court erred in denying
his motion to strike for cause all jurors who either worked for or
who had relatives who worked for the Department of Corrections.
Blanket disqualification of jurors based solely upon their
membership in a group to which the victim belonged is not required.
Jordan v. State, 247 Ga. 328 (6) (276 SE2d
224) (1981); Burgess v. State, 264 Ga.
777 (8) (450 SE2d 680) (1994). The record reveals that the
trial court adequately considered the potential bias of individual
jurors connected to the Department of Corrections, and, accordingly,
we conclude that the trial court did not err in denying Wilson's
blanket motion.
6. Wilson contends the trial court erred by not
being present while the jury viewed the crime scene. Prior to the
jury view, the defendant, the State, and the trial court agreed upon
the procedure to be employed. The jury was to ride on a bus that
would pause momentarily at the scene. The defense objected to having
the trial judge travel on the bus with the jury, and the trial court
acceded to the objection. The issue of whether the trial judge would
follow in a separate vehicle was not discussed. The trial court
dismissed the jury from the courtroom to board the bus with
instructions that no one was to point at anything or to discuss
anything at the scene and with instructions that they were to
recognize their arrival at the crime scene based on their memory of
the street names discussed at trial and by the momentary pause of
the bus. The defendant and his counsel attended the jury view by
following the bus in separate vehicles. No jury members left the bus
at the scene.
Following the jury view, the defendant raised no
objection to the jury view, including the apparent absence of the
trial judge, and the defendant did not move for a mistrial. In his
appeal, the defendant has not set forth any purported irregularity
in the jury view, other than the trial judge's absence, despite the
fact that he and his counsel were present at the jury view and
enjoyed a vantage point that, given his objection to having the
trial judge ride on the bus, was equivalent to that which the trial
judge would have had if he had followed in a separate vehicle.
We find that the trial judge should have attended
the jury view, even though his role at the jury view would have been
minimal given the defendant's objection to the trial judge's
presence on the bus. The absence of the trial judge from trial
proceedings is reversible error when it is objected to and when it
results in some harm. Horne v. Rogers, 110
Ga. 362 (5), (6) (35 SE 715)
(1900). Pritchett v. State, 92 Ga. 65 (2)
(18 SE 536) (1893); O'Shields v. State of Ga.,
81 Ga. 301 (6 SE 426) (1888); see
also Malcom Bros. v. Pollock, 181 Ga. 687
(183 SE 917) (1935). However, in this case, no objection was
made to the trial judge's brief absence, and the defendant and his
counsel, who were both present at the jury view, are unable to
demonstrate any harm. Accordingly, the trial judge's absence during
the jury view is not reversible error.
7. The defendant contends that the charge given
to the jury regarding a defendant's mere presence during the
commission of a crime was potentially misleading, despite the fact
that it was read accurately from the suggested pattern charge,
Suggested Pattern Jury Instructions, Vol. II: Criminal Charges, Part
3 (C), p. 18 (1995). The charge was a correct statement of the law
and, particularly when read together with the other charges, would
not have misled the jury.
8. Wilson contends that the trial court erred by
failing to provide for opening statements at the beginning of the
sentencing phase and by giving inadequate guidance to the jury in
the sentencing phase. We disagree. Allowing opening statements at
the beginning of the sentencing phase is the better practice, but it
is not required. Smith v. State, 270 Ga. 240
(15) (510 SE2d 1) (1998). Furthermore, the trial court's
instructions at the beginning of the sentencing phase, particularly
when viewed together with the instructions given to the jury before
it began deliberating on Wilson's sentence, provided ample guidance
to the jury in fixing Wilson's sentence in the manner prescribed by
law.
9. Wilson contends that the trial court's failure
to charge the jury a second time on the credibility of witnesses
during the penalty phase was reversible error. A second charge might
be the better practice, but we find that the trial court had fully
charged the jury with regard to the credibility of witnesses and
expert witnesses during the guilt/innocence phase of the trial. The
trial court's charge would have been understood by the jury to apply
to all witnesses in both phases of the trial. This is comparable to
a trial court's not again defining reasonable doubt in the
sentencing phase after doing so in the guilt/innocence phase, which
we have held not to be grounds for reversal. Cromartie v. State,
270 Ga. 780 (22) (514 SE2d 205) (1999);
Bennett v. State, 262 Ga. 149 (10) (f)
(414 SE2d 218) (1992). Accordingly, we
find that the trial court's failure to charge the jury a second time
on the credibility of witnesses was not reversible error.
10. The trial court was not required to charge
the jury on a burden of proof applicable to non-statutory
aggravating circumstances. Cromartie, supra; Speed v. State,
270 Ga. 688 (46) (512 SE2d 896) (1999);
Whatley v. State, 270 Ga. 296 (11) (509 SE2d
45) (1998); McClain v. State, 267 Ga.
378 (8) (477 SE2d 814) (1996); Ross v. State,
254 Ga. 22 (5) (d) (326
SE2d 194) (1985); Ward v. State, 262
Ga. 293 (29) (417 SE2d 130) (1992).
11. The trial court did not err in failing to
instruct the jury that its findings as to mitigating circumstances
need not be unanimous because the trial court clearly charged the
jury that it was not necessary to find any mitigating circumstances
in order to impose a life sentence instead of the death penalty.
12. Wilson contends that the trial court erred by
not charging the jury that a finding of an aggravating circumstance
must be unanimous. However, reversal on this ground is not required
when, as in this case, the trial court charged the jury that its
verdict as to the penalty must be unanimous. Sears v. State,
270 Ga. 834 (7) (e) (ii) (514
SE2d 426) (1999); Davis v. State, 263
Ga. 5 (15) (426 SE2d 844) (1993).
13. Wilson contends that the trial court erred by
denying his motion for a mistrial when, during the penalty phase,
the jury heard inadmissible hearsay testimony suggesting Wilson had
shot the victim. The hearsay testimony was heard by the jury when a
witness for the State was asked when he first heard about Wilson's
murder charge and answered, "[An investigator] called me up one day
and told me that the boy that had shot me got out of prison and shot
somebody else." The granting of a motion for a mistrial is within
the discretion of the trial court, and the trial court's ruling will
not be disturbed when the trial court has taken remedial measures
sufficient to ensure a fair trial. Jones v. State,
267 Ga. 592 (1) (b) (481
SE2d 821) (1997); Cowards v. State,
266 Ga. 191 (3) (c) (465 SE2d 677)
(1996). The record reveals that the trial court gave sufficient
curative instructions and did not abuse its discretion in denying
the defendant's motion for a mistrial.
14. Wilson contends that his right to a fair
trial was abridged by the introduction of a photograph of the victim
in life and by the manner in which that photograph was introduced.
It is not error to admit a photograph of the victim in life; however,
the better practice is to have the photograph identified by someone
other than a close relative of the victim. James v. State,
270 Ga. 675 (5) (513 SE2d 207) (1999);
Whatley v. State, supra at (8); Ledford v. State, supra at (14). In
this case, the prosecutor asked the victim's father, the first
witness at trial, whether he had given the State a picture of his
son. The prosecutor then had the victim's father testify as to the
date of and other details about the photograph. The photograph was
never shown to the victim's father while he was on the stand, and
there is no evidence in the transcript of any emotional display on
his part. The photograph was later viewed and identified by a non-relative
and was then introduced into evidence. We find that the defendant
was not denied a fair trial under these circumstances.
15. Wilson contends that the trial court erred in
admitting certain photographs which depicted the victim as he was
found at the crime scene and as he appeared shortly before autopsy.
We find that these photographs were material, relevant, and
admissible. Jackson v. State, 270 Ga. 494 (8)
(512 SE2d 241) (1999); Jenkins v. State,
269 Ga. 282 (20) (498 SE2d 502) (1998);
Crozier v. State, 263 Ga. 866 (2) (440 SE2d
635) (1994).
16. (a) We find that the prosecution's
characterization of the victim as a helpless, nice, unarmed person
was relevant to the jury's determination of guilt as to the malice
murder charge and did not unfairly prejudice the defendant,
constitute improper victim impact testimony, or deny the defendant a
fair trial.
(b) Contrary to the defendant's contention, we
conclude that the prosecution did not invite the jury to place
itself in the place of the victim.
(c) During his closing argument at the end of the
guilt/innocence phase of the trial, the prosecutor interspersed his
argument with direct quotations from the Georgia Code, arguing how
the statutory elements set forth in the quotations had been proved.
The practice of "reading the law" in a criminal proceeding was
condemned by this Court some time ago as offering a license for
counsel to present portions of the law to the jury that would not
constitute part of the trial court's charge. Conklin v. State,
254 Ga. 558 (10) (331 SE2d 532) (1985).
However, "[c]ounsel have every right to refer to applicable law
during closing argument" when that law will be charged by the trial
court. Id.; Felder v. State, 270 Ga. 641 (3)
(514 SE2d 416) (1999). Indeed, we have held that restraining
counsel from discussing and arguing law that will be charged to the
jury is error. Minter v. State, 266 Ga. 73
(463 SE2d 119) (1995). Accordingly, we conclude that under
the circumstances of this case, the trial court did not err in
failing to restrain the State from discussing the law in the manner
complained of.
(d) Wilson contends the State, in its closing
argument in the guilt/innocence phase, made statements that
improperly emphasized the defendant's exercise of his right not to
testify and the failure of Butts, the other participant in the
murder, to give a statement after being arrested. We find no
evidence in the record that the defendant objected to the
purportedly inappropriate statements or moved for a mistrial, and,
generally, such an objection cannot be raised for the first time in
a motion for a new trial or on appeal. Landers v. State,
270 Ga. 189 (2) (508 SE2d 637) (1998);
Roberts v. State, 231 Ga. 395 (1) (202 SE2d
43) (1973). When no objection has been made at trial, such
allegedly improper statements warrant reversal only if they in
reasonable probability changed the result of the trial. Ledford v.
State, supra at (18) (a); Todd v. State, 261
Ga. 766 (2) (410 SE2d 725) (1991). Without addressing whether
the statements were improper, we find that they did not in
reasonable probability change the result of the trial and, therefore,
cannot serve as grounds for reversal because they were not objected
to.
17. Wilson contends that certain portions of the
State's opening statement during the guilt/innocence phase of his
trial were inflammatory and improperly called into question the
impact of the victim's death upon the victim's family. The proper
test on review when, as here, the defendant has not objected to
allegedly improper statements is whether the statements in
reasonable probability changed the result of the trial. Id. We find
no such reasonable probability with respect to the statements
complained of, and, therefore we need not address whether the
statements were improper.
18. Wilson contends that two statements he made
to law enforcement officers (one tape-recorded, one written) along
with statements he made to police regarding his and Butts's actions
after the murder were improperly admitted into evidence. We disagree.
Wilson contends that the statements should have
been excluded from evidence because they were allegedly induced by a
hope of benefit in violation of OCGA 24-3-50.
Wilson's contention at the suppression hearing hinged upon an
evaluation of the credibility of witnesses. It is the province of
the trial court to weigh the credibility of witnesses in such a
hearing, and, unless clearly erroneous, its findings of fact will
not be disturbed on appeal. Gilliam v. State,
268 Ga. 690 (3) (492 SE2d 185) (1997); Arline v. State,
264 Ga. 843 (2) (452 SE2d 115) (1995);
Caffo v. State, 247 Ga. 751 (279 SE2d 678)
(1981). We find no error in the trial court's ruling as to
the absence of an inducement by a hope of benefit.
Wilson also contends that he was not made aware
of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602,
16 LE2d 694) (1966), prior to making the contested statements and
that, prior to making the tape-recorded statement, he had been
denied a request for an attorney. This contention also hinged upon
the credibility of witness testimony, and we do not find the trial
court's assessment of witness credibility in this matter to have
been clearly erroneous. Gilliam v. State, supra. Accordingly, we
conclude that the trial court did not err in its ruling as to
Wilson's Miranda rights.
19. The trial court did not err in denying
Wilson's motion for a change of venue. Wilson contends that a change
of venue was necessary because of pretrial publicity and the fact
that, like the victim, a large number of Baldwin County residents
were Department of Corrections employees.
In order to justify a change of venue based upon
pretrial publicity, a capital defendant must show that the trial
setting was inherently prejudicial as a result of pretrial publicity
or show actual bias on the part of the individual jurors. Jenkins v.
State, supra at (3); Jones v. State, 267 Ga. at (1) (a). A change of
venue is appropriate in a death penalty case when the "defendant can
make a substantive showing of the likelihood of prejudice by reason
of extensive publicity." Jones v. State, 261
Ga. 665 (2) (409 SE2d 642) (1991). The decisive factor in
determining whether a change of venue is required is "the effect of
the publicity on the ability of prospective jurors to be objective."
Freeman v. State, 268 Ga. 185 (2) (486 SE2d
348) (1997). The extent and timing of pretrial publicity are
also factors to be considered. Id.; Thornton v. State,
264 Ga. 563 (17) (449 SE2d 98) (1994).
Our review of the record does not indicate that the pretrial
publicity created a likelihood of prejudice. Of the large number of
jurors subjected to individual voir dire, none was stricken for
cause because of his or her exposure to pretrial publicity.
As to Wilson's contention that the large number
of Department of Corrections employees in Baldwin County warranted a
change of venue, we note, as in our discussion above regarding the
defendant's motion to strike all such persons for cause, that
persons are not deemed unqualified to serve as jurors based solely
upon their membership in a group to which the victim belonged.
Jordan v. State, supra. It must be demonstrated that the persons or
class of persons will be unable to serve as fair and impartial
finders of fact, a showing not made by Wilson in his motions to
strike for cause or his motion for a change of venue.
20. Wilson contends that the trial court erred by
allowing evidence during the penalty phase of a number of crimes
committed by him as a juvenile, including shooting two persons and a
dog, first degree arson, criminal trespass, felony obstruction of a
law enforcement officer, assault of an officer in a youth detention
facility, possession of cocaine, and making a death threat. We
disagree. Such records are admissible in the penalty phase of a
capital murder case. Smith v. State, supra at (2); Burrell v. State,
258 Ga. 841 (7) (376 SE2d 184) (1989);
OCGA 15-11-38 (b).
Wilson further contends that evidence of his
prior criminal activity was improperly admitted during the penalty
phase because the evidence was insufficiently reliable. Again, we
disagree. "The factors normally considered in sentencing are (1) the
character of the defendant, including his previous criminal activity,
if any, and (2) the circumstances of the crime on trial." Ford v.
State, 257 Ga. 461 (1) (360 SE2d 258) (1987);
Kinsman v. State, 259 Ga. 89 (15) (376 SE2d
845) (1989). Evidence of bad character and previous crimes
must be reliable (Williams v. State, 258 Ga.
281 (7) (368 SE2d 742) (1988)) but, when considering non-statutory
aggravating circumstances, the jury is not required to evaluate each
and every evidentiary vignette pursuant to the reasonable doubt
standard. Ward v. State, supra; Ross v. State, supra. The trial
court is certainly not required to apply such a standard in
determining if the evidence is admissible. The fact that the
defendant was able to set forth evidence weighing against a finding
of guilt as to the previous crimes does not in and of itself make
the State's evidence unreliable. We find that the trial court did
not err in admitting the contested evidence.
Finally, we find no merit in Wilson's contention
that the trial court improperly admitted testimony that Wilson had
threatened to kill a man and his mother. Wilson argues that the
testimony was inadmissible because it lacked the corroboration
required for conviction of the crime of making a terroristic threat.
See OCGA 16-11-37 (a). However, we
find that the testimony was admissible as evidence of bad character.
For the same reasons that evidence of acts reflecting bad character
need not be evaluated according to the reasonable doubt standard (Ward
v. State, supra; Ross v. State, supra), such evidence also need not
be sufficient to allow conviction under the evidentiary requirements
of a specific criminal statute. The evidence need only be reliable.
Williams v. State, supra.
21. Wilson contends that he was denied a fair
trial because the judge who presided over many of the pretrial
proceedings was replaced for health reasons before the trial began
by another judge who presided over the remainder of the case,
including two remaining pretrial motion hearings, jury selection,
both phases of the trial, and the defendant's motion for a new trial.
Prior to the first judge's departure, Wilson requested that only one
judge preside over both jury selection and the trial, and this
request was accommodated. Wilson made no other objection to the
substitution, and, therefore, this argument is waived. Earnest v.
State, supra.
22. Wilson contends that it was error for the
trial court to deny his trial counsel's request to be discharged
from representing Wilson based on the fact that counsel's wife
worked for the Department of Corrections, knew persons who were
acquainted with the victim, and was herself casually acquainted with
the victim. Our evaluation of the alleged conflict requires us to
"examine the particular circumstances of the representation[] to
determine whether counsel's undivided loyalties remain[ed] with his
. . . client, as they must." Hill v. State,
269 Ga. 23 (2) (494 SE2d 661) (1998) (evaluating alleged
conflict of interest arising from defense counsel's previous
representation of State's witness). See also Hudson v. State,
234 Ga. App. 895 (3) (a) (508
SE2d 682) (1998). The relationship between defense counsel
and the victim was both minimal and indirect. Furthermore, the
record reveals no evidence that defense counsel was affected by his
minimal relationship to the victim. Accordingly, we find that the
trial court did not err in ruling that there was no disqualifying
conflict of interest.
23. We find that the sentence of death in this
case was not imposed under the influence of passion, prejudice, or
any other arbitrary factor. OCGA 17-10-35
(c) (1). We also find, considering both the crime and the defendant,
that the sentence of death was neither excessive nor
disproportionate to the penalties imposed in similar cases. OCGA
17-10-35 (c) (3). The similar cases
listed in the Appendix support the imposition of the death penalty
in this case, as all are cases of intentional killing committed
during the commission of an armed robbery or a motor vehicle
hijacking.
SEARS, Justice, concurring in part and dissenting
in part.
I concur in the majority's affirmance of
appellant's adjudication of guilt. However, regarding appellant's
death sentence, the majority implicitly concludes that no Eighth
Amendment concerns are raised by the sentence of death by
electrocution. This conclusion, however, is reached without the
benefit of forthcoming guidance from the United States Supreme Court
on that issue, and without an analysis of the voluminous evidence
that is available regarding the constitutional implications of
electrocution. For the first time in its history, the United States
Supreme Court is poised to make a determination of whether there is
evidence to show that a particular method of execution --
electrocution -- violates the Eighth Amendment's prohibition against
cruel and unusual punishment. Because I believe prudence requires
this Court to stay its Eighth Amendment rulings in capital cases
until we receive guidance from the United States Supreme Court in
the coming months, I respectfully dissent to the affirmance of
appellant's death sentence.
At the outset, I emphasize that my constitutional
concerns are not with the State's power to impose the death penalty
for statutorily-enumerated crimes. Rather, my concern focuses upon
the only available method of carrying out a death sentence in
Georgia -- electrocution in Georgia's electric chair. Despite having
issued opinions in many matters in which death sentences have been
imposed, the United States Supreme Court has never decided whether
there is evidence to show that any particular method of execution (including
electrocution) violates the Eighth Amendment's Cruel and Unusual
Punishment Clause.
7
However, that will soon change, as the Supreme Court has recently
granted certiorari in a capital habeas corpus action to review
whether execution by electrocution violates the Federal
Constitution's prohibition against cruel and unusual punishment.
Nor has Georgia's Supreme Court ever undertaken
its own analysis of whether there is objective evidence to show that
death in the State's electric chair constitutes cruel and unusual
punishment, as that phrase is constitutionally understood.Rather,
this Court has habitually disposed of such claims perfunctorily,
without considering whether a growing body of evidence indicates
that electrocution causes a lingering death and undue violence,
torture, and mutilation. I believe that it is time for this Court to
cease its cursory review of Eighth Amendment claims in capital
cases, and to confront head-on the issue of whether there is
evidence to show that execution by electrocution is
unconstitutionally cruel and unusual. To my mind, the logical and
prudent first step in that process is to await pending word from the
nation's highest court regarding that very issue.
The constitutional ramifications of electrocution
are overly ripe for review. An Eighth Amendment analysis of evidence
pertaining to any method of execution would adhere to four lines of
inquiry: (1) Does the method of execution involve "something more
than the mere extinguishment of life," such as "torture or a
lingering death . . .
joined by Blackmun and Stephens, dissenting from
denial of certiorari).
Contrary to popular misconception, the Supreme
Court's ruling in In re Kemmler, 136 U. S. 436 (10 SC 930, 34 LE
519) (1890) (the last case in which the High Court has considered a
method of execution), does not hold that electrocution is per se
constitutional if there is no undue pain suffered by the condemned.
See Poyner, supra. Rather, the Kemmler decision merely deferred to
the New York state court's finding that, in light of the available
options at that time, electrocution was permissible as a more humane
alternative to death by hanging. Kemmler, 136 U. S. at 444 (noting
that the then-governor of New York had called execution by hanging "barbaric").
Indeed, Kemmler cannot be read as rejecting evidence that
purportedly shows electrocution is constitutionally cruel and
unusual, because, at the time it was decided, no one had yet been
electrocuted. Moreover, at the time Kemmler was decided, it was not
yet established that the Eighth Amendment applies to the States
through the Fourteenth Amendment. Cf. Robinson v. California, 370 U.
S. 660, 667-668 (82 SC 1417, 8 LE2d 758) (1962). Shortly after
Kemmler was issued, William Kemmler became the first man executed in
the electric chair in what was widely publicized as a grotesque and
morbid technical bungle. See Denno, supra, p. 362, n. 261.
something inhuman and barbarous"?; (2) Is the
infliction of unnecessary pain, undue physical violence, or bodily
mutilation and distortion inherent in the method of execution?; (3)
Does the method of execution offend "the evolving standards of
decency that mark the progress of a maturing society," and has it
been approved, rejected or abandoned in other states and in other
civilized nations?; and (4) Are more humane methods of execution
available?
Regarding the first two of these inquiries:
Increasingly, there are reports that electrocution involves (a)
lingering death that can last for more than a quarter hour; (b)
bodily mutilation and distortion, including third and fourth degree
burns to the face and scalp, exploding body parts, and layers of
skin melting away so as to reveal bone; and (c) grotesque physical
violence indicative of both inhumanity and barbarity. In other words,
there is mounting evidence to indicate
The taking of human life by unnecessarily cruel
means shocks the most fundamental instincts of civilized man. It
should not be possible under the constitutional procedure of a self-governing
people. . . . The all-important consideration is that the execution
shall be so instantaneous and substantially painless that the
punishment shall be reduced, as nearly as possible, to no more than
that of death itself.
Louisiana ex rel. Francis v. Resweber, 329 U. S.
459, 473-474 (67 SC 374, 91 LE 422) (1947) (Burton, J., dissenting).
See Kemmler, supra, 136 U. S. at 443-444, 447; Glass v. Louisiana,
471 U. S. 1080, 1085 (105 SC 2159, 85 LE2d 514) (1985) (Brennan, J.,
joined by Marshall, J., dissenting from denial of certiorari).
that electrocution involves more than "the mere
extinguishment of life," the benchmark for constitutional executions,
and such evidence should be addressed as part of this Court's
responsibility to review all capital sentences in Georgia.
Concerning the third prong of the analysis
discussed above, I am increasingly concerned that electrocution and
its effects on the human body may offend society's evolving sense of
decency. The Eighth Amendment's fundamental purpose is "to protect
the dignity of society itself from the barbarity of exacting
mindless vengeance." The Amendment's scope is not static; rather, it
is hewn from the evolving standards of decency that characterize a
mature, civilized society, and it acquires meaning "as public
opinion becomes enlightened by a humane justice." Thus, whether a
particular form of punishment is cruel and unusual under the Eighth
Amendment must be determined by considering contemporary moral
standards as determined by objective evidence regarding a national
consensus.
Electrocution is practiced in no other country in
the civilized world. Within this country, 27 states practiced it in
1949. Since then, 20 states have dropped it altogether, and four
states -- Arkansas, Ohio, South Carolina and Virginia -- continue to
offer it as an alternative; although Ohio has not executed anyone
since 1976. At present, only three states -- Georgia, Florida, and
Alabama -- actively
and several witnesses reported hearing two
screams from Davis when the current was applied. By the time the
execution was completed, a blood pool "the size of a dinner plate"
covered the front of Davis's shirt. It was later determined that
Davis's death was caused in part by asphyxiation caused by the
leather face strap. As with Medina, Davis's head, face, and scalp
were severely burned, as were his knees and thighs. Provenzano,
supra at * 20-22.
Witnesses observing Larry Lonchar's November 1996
execution in Georgia's electric chair report that two 2000 volt
jolts of electricity were required before he was pronounced dead,
and that the process required twelve minutes to complete. During
that time, Lonchar moaned, clenched his fists (which had turned dark
red), lurched and gasped for air. Denno, supra, App. 2 (A) (17).
Other electrocutions have routinely resulted in third and fourth
degree burns with skin sloughing, "meaning the skin had literally
come loose from [the] body and was sliding." Id., App. 2 (A) (8).
Electrocution sometimes burns chunks of skin off a condemned
person's head or leg, revealing the skull or bone beneath the tissue.
Id. Electrocution also has caused a man's penis to explode, blood to
pour from eye sockets, bodily fluids to boil, and ears to burn away.
Id., 82 Iowa L. Rev. at 359, and App. 2 (A) (12).
For an in-depth account of electrocution's
effects, see Denno, supra, App. 2 (A), "Post- Gregg Botched
Executions." See also Denno, Is Electrocution an Unconstitutional
Method of Execution? The Engineering of Death Over the Century, 35
Wm. & Mary L. Rev. 551 (1994).
use electrocution as the sole method of executing
condemned prisoners.
The death penalty is just punishment for those
whose crimes deserve the ultimate penance, and it also serves a
societal need to see retribution for that class of crimes. I believe,
however, that it is time to examine whether Georgia's current method
of enforcing the death penalty and its attending consequences are
compatible with the dignity, morality, and decency of society's
enlightened consciousness, and is reflective of a humane system of
justice. I note that both the American Veterinarian Medical
Association and the Humane Society of the United States prohibit
electrocution as a means of euthanatizing animals.
Finally, concerning the last prong of the inquiry
discussed above, it appears that less cruel and more humane means of
execution may currently be practiced in other states and countries.
While this dissent's overview of the Eighth
Amendment implications of electrocution barely scratches the surface
of what will be required for an adequate in-depth analysis of the
constitutional issue I urge the Court to take up, I nonetheless hope
it emphasizes the great need for us not to prolong fulfillment of
our constitutional responsibility to "protect the dignity of society
itself from the barbarity of exacting mindless vengeance." For all
the reasons discussed above, I would stay ruling on appellant's
Eighth Amendment claim until we receive guidance on that issue from
the United States Supreme Court, and I would then proceed with our
own assessment of the issue.
APPENDIX.
Fredric D. Bright, District Attorney, Thurbert E.
Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney
General, Beth A. Burton, Assistant Attorney General, for appellee.
Notes
1 The crimes
occurred on March 28, 1996. Wilson was indicted on May 29, 1996, by
the Baldwin County Grand Jury for malice murder, felony murder,
armed robbery, hijacking a motor vehicle, possession of a firearm
during the commission of a crime, and possession of a sawed-off
shotgun. The State filed written notice of its intent to seek the
death penalty on July 22, 1996. Wilson's trial began on October 27,
1997, and the jury found Wilson guilty on all counts. The felony
murder conviction was vacated by operation of law. Malcolm v. State,
263 Ga. 369 (4) (434 SE2d 479) (1993);
OCGA 16-1-7. On November 7, 1997, the
jury recommended the death sentence for malice murder. In addition
to the death sentence, the trial court imposed consecutive sentences
of life imprisonment for armed robbery, twenty years in prison for
hijacking a motor vehicle, five years in prison for possession of a
firearm during the commission of a crime, and five years in prison
for possession of a sawed-off shotgun. Wilson filed a motion for a
new trial on December 3, 1997, and supplemented his motion on
December 10, 1997. The trial court denied the motion for a new trial
on December 18, 1997. The appeal was docketed with this Court on
February 3, 1999, and orally argued on April 19, 1999.
Waddell, Emerson & Buice, John H. Bradley,
Jon P. Carr, for appellant.
DECIDED NOVEMBER 1, 1999 -- RECONSIDERATION
DENIED DECEMBER 20, 1999.