*1 сircumstance. statutory aggravating they failed to make clear The "court if they even found a life sentence recommend could circumstance.” statutory aggravating of a existence State, 142, 146 240 Ga. Fleming State, 327, 335 240 Ga. Hawes this court State, (1978), a majority 241 Ga. Spivey a reasonable ultimate test is whether that "... held whole, know that as a would considering charge juror, facts and circumstances of consider all the he should . . and both of the trial. during phases presented case as find one or then, might even though more exist, would circumstances statutory aggravating imprisonment.” life The that he recommend might know in the case before us does not meet the of the court charge and hence the Spivey supra, requirements aside. death must be set penalty for and murder rape The convictions of the defendant affirmed, to life for rape. are аs is the sentence aside, murder is set and a new trial is sentence of death for for that offense. punishment allowed on the issue reversed in All the part, part. Judgment affirmed Justices concur.
Argued April 197 Decided June 1978. J. for Perry, appellant. William Bolton, Perren, Arthur K. Attorney, John T. District General, Parker, Attorney Assistant Attorney Stephen G. General, appellee.
33361. ALDERMAN v. THE STATE. Justice. Bowles,
The appellant, Alderman, Jack was indicted aby Chatham County Grand Jury for the offense of murder. He was tried by a jury and found guilty of the offense. The jury found as statutory aggravating circumstances murder was "committed for purpose of receiving (Code money any or other thing § of monetary value” (4)) and, 27-2534.1 the offense of murder was "outrageously vile, wantonly horrible or inhuman in torture, involved mind, depravity or an aggravated battery § to the victim.” Code Ann. 27-2534.1 *2 (7). The appellant was sentenced death elec- Appellant’s trocution. amended motion for new trial was overruled, and his case is now before ap- this court on and for our peal mandatory review of the death sen- imposed. tence Summary I. the Evidence The presented evidence from which the jury was authorized to find the following:
On the afternoon of September appellant approached Brown, John A. friend, a close asked for his assistance in the killing appellant’s wife, Barbara J. Alderman. The appellant if told Brown that he helped he would split one-half the proceeds of his wife’s life insurance policy with him. At first thought Brown Alderman was only "kidding,” per- but Alderman’s sistence convinced Brown he was serious. days
Two later the appellant called and asked Brown him to come over to his apartment in Chatham County. When Brown arrived the him appellant handed a 12-inch crescent wrench him, and told "it had tо be done...all you have to do hit her hesitated, with the wrench.” Brown but after the appellant him threatened with a Brown gun, proceeded into the dining room where he struck Mrs. Alderman in the back of the head with the Mrs. wrench. Alderman screamed and ran into the room where living she was tackled by her husband. down, He held her with assistance, Brown’s attempted to her. After strangle she passed out, appellant asked if thought Brown he she was dead. When Brown said said "yes” appellant "well, stay here with her I open while the bathroom go door.” Brown asked what for and the appellant replied "I’m going drag her in there I and drown her... want to make sure that she doesn’t do anything.” Mrs. Alderman’s body was then dragged placed into the bathroom and the bathtub.
The appellant started water in the tub while running carpet clean bloodstains from Brown attempted then had fallen. Brown went body where Mrs. Alderman’s Alderman and saw Mrs. back into the bathroom her face. over just bathtub with water clothes and left changed appellant Brown and the where store Piggly-Wiggly at They stopped apartment. help. for his Brown gave Alderman which got $100 At drinking. a bar and started went to they From there and the returned Brown p.m. around still body Alderman’s Mrs. apartment. remained bathtub, a small amount of water only but tub, out of the They picked up the tub. her the bottom of body and rolled her it. Her up her on a put body quilt drove the in the trunk of her car. Brown was then placed motorcycle. on a car Alderman followed behind while Rincan, County. Georgia, Effingham They drove to Creek, Mrs. Alderman’s When arrived Dasher they in the driver’s of the trunk and body put was taken out in drive and seat the vehicle put of her automobile. Brown rolled into the released the brake. car emergency the door to permit creek. Before opened Brown leaving, *3 body motorcycle. to fall out. The two then on departed At trial testified in his own behalf. He appellant of his wife. denied to do with the death having anything He testified that in he and his wife night question on the had in her to engaged concerning inability a conversation become She had told him that because she was pregnant. only half a woman she to him to allow going was leave someone else to better fill her She her position. grabbed pocketbook and went out the back door. Appellant testified he left approximately p.m. apartment a bus a drink. He returned caught get home at approximately p.m. but his wife was not at Rincan, home. He then decided to Mrs. go to where resided, Alderman’s grandmother apologize order to his wife. The testified appellant that when he crossed bridge Creek, at Dasher he saw his wife’s car in the creek. The door was and his open wife’s under body lying water. The testified appellant that she dead. he When heard a car he coming got his and returned motorcycle to a bar in Appellant Savannah. he did not testified that know why creek; had left his wife’s that he body nothing Savannah; and, of his back to trip recalled that his wife was dead had fact left completely his mind. testified that he Appellant first realized the full facts surrounding his wife’s death after being treated who was able to back psychiatrist bring memory as to that night. the events of He stated that after being treated he realized that fear had caused him to leave his wife’s body the creek because he knew her would family him for blame her death.
The evidence will be examined in more detail as necessary addressing enumerations error. II. Enumerations Error
1. contends the trial court improperly excused five prospective jurors violation v. Illinois, 391 U. Witherspoon S. LE2d dire,
Prior to the individual voir the court asked you opposed panel jurors, conscientiously each "Are capital punishment?” responded Two af- jurors jurors, The court then asked these "Are firmatively. two against reservations such that your capital punishment capital could never vote for you punishment, regardless of what the facts show?” both af- Again responded firmatively.
It jurors is clear from their these answers two voted automatically against imposition would have capital regard without to the evidence punishment have been might developed case. Under Witherspoon, supra, error to dismiss these two jurors for cause.
The exclusion of three other jurors presents an issue yet to be decided either by this court or the Supreme Court of the United States. During the dire, individual voir three jurors reaffirmed that they were not conscientiously opposed capital *4 punishment. The state then asked each whether, one if elected to serve as foreman of the jury, following court’s instructions, they would be able to write out the death penalty on the indictment and sign their name to it as foreman. Each of these three prospective jurors responded foreman, if elected they could not write out a death verdict. Over jurors cause.
objection, three for these excused the court Appellant these three the exclusion of contends that supra. Witherspoon, jurors violation for cause was Assuming, deciding, for cause that the exclusion without supra, Witherspoon, jurors we in violation of these was surrounding their the circumstances find no error under exclusion. § "person for a 59-805, indicted Ann.
Under Code subject mаy him death crime or offense which imprisonment penitentiary four than for less jurors may challenge years impaneled peremptorily try ..; be allowed him. the State shall peremptory challenges allowed to one-half the number of juror prisoner.” In the instant case when the twelfth only seven of its selected, the state had exercised peremptory challenges. Thus, ten when empaneled, left with three unused the state was challenges.1 peremptory following the of the twelfth We selection note
juror, jurors alternate dire continued order two voir § provides that
to be 59-907 selected. Code many peremptory "[T]he be entitled to as State shall challenges jurors as there are alternate to such alternate jurors The defendant be entitled to additional called. shall peremptory challenges greater than amount twice an peremptory challenges State. additional peremptory challenges State and allowed regular defendant in be in addition to the such event shall peremptory challenges number cases to allowed criminal provided by defendant and now law.” State as jurors In the selection of two the state was alternate peremptory challenges, entitled two defendant juror When four. the second selected the alternate only peremptory had exercised of its one two challenges leaving thus the state with additional one challenge. jurors sequestered The two alternate were charge eventually They of court and after dismissed. participate convicting the verdict did not either charged sentencing appellant of the offense or the verdict him to death electrocution.
501 if It is the state’s contеntion that even the trial court in these three excluding prospective erred for jurors cause, the appellant prejudiced was not their by exclusion the number jurors since that arguably had been erroneously excluded cause did not exceed the number of peremptory challenges which the state could have had the exercised trial court denied the state’s motions excuse these three jurors for cause. Stated more simply, are presented we with the narrow question of impact on Witherspoon of unexercised strikes peremptory available to the state.
This same issue attracted the United States Supreme
(1971).
Illinois,
Court’s attention Moore v.
U.
403
S. 953
case,
In that
Supreme
Court
the United States
issue,
alia,
granted certiorari on the
inter
of whether a
death sentence could be
ground
affirmed "on the
prosecution hаd sufficient peremptory
to have
challenges
eliminated those prospective jurors
to serve under
eligible
Witherspoon?”2 However, because of the intervening
(92
decision
Furman v.
2726,
2
Moore,
v.
People
Ill. 2d 73
NE2d
(1969), the Supreme Court of Illinois held
if
that even
jurors were excluded on grounds
they
had scruples
against capital punishment
in violation of Witherspoon
the defendant
deprived
was not
of his
to a
right
fair trial
view of the tenor of the voir dire examination
fact
and the
if the trial court had not excluded such
jurors,
prosecution had sufficient peremptory
to have
challenges
these jurors struck from
panel.
Furman
408 U.
Georgia,
S.
SC
346) (1972)
LE2d
held that
the death
as then
penalty
administered
this
cruel and
"constitute^]
punishment
unusual
in violation
Eighth
However,
Fourteenth
penalty
Amendments.”
our death
statute was amended
Georgia
after Furman
and held
be constitutional
Georgia, in that recognized case dissenting Justices however the presence whether does not decide "Witherspoon render challenges might peremptory of unexercised number of a limited harmless exclusion improper strikes peremptory The issue of unexercised veniremen.” *6 ques- on an impact Witherspoon open and its thus tion. case, persuaded in this we are a decision reaching for folly an would be the state’s contention
by juror a for cause unsuccessfully challenge attorney in challenge peremptory an available then fail to utilize In the instant panel. from the juror to strike that order During the the state’s contention. supports case the record case, the challenged dire this voir examination upon wavering for cause who was prospective juror one the state’s punishment. After capital the issue of the state by denied trial court challenge for cause was challenges one of its ten peremptory exercised promptly juror panel. in order to from strike selected, case juror in this When the twelfth and, challenges remaining state had three peremptory therefore, jurors three the exclusion complained all, if cause, Chapman harmless. error at See 705) (1967). California, 824, 17 LE2d 386 U. S. the state presence peremptory by of unused strikes Witherspoon. forecloses reliance on appellant’s is, therefore, Appellant’s of error without merit.
2. The court erred contends trial appellant denying motion for a grounds continuance but not "subpoenaed the absence of witness who was served.” §
Code Ann. 81-1410 sets out statutory eight each of which must be requirements by moving shown granted order for continuance be because of party State, the absence of a witness. Fouts 240 Ga. (1) State, Beasley SE2d App. Ga. 128) (1967). (156 SE2d
It is
continue is
recognized
"[A]
well
motion to
judge,
addressed
sound discretion of the trial
clearly
court
this
he
will not interfere unless it is
shown that
has
abused his discretion. Corbin v.
3. contends thаt the trial court erred in allowing during that, state to reveal to the an agent, appellant interview with a GBI right exercised his attorney to an and remained silent. by agent
On state, direct examination GBI H. H. following Keadle testified that deceased wife at the identification of his Effington Hospital, County taken to was him. The the sheriffs office and there interviewed following colloquy then occurred: [By Prosecutor] "Q. Mr. Was Alderman in *7 custody you simply time, at that under arrest, or were discussing with him this occurrence? unfortunate [By Agent simply Keadle] "A. first, GBI At we were discussing trying it and to out little bit find (his wife) background, when had last seen her and thing one and another like that when the interview be- gan.
"Q. Sir. began, trying
"A. When run the interview we were to preliminary things, her, down some had last seen when he you things you know, the routine that would on an investigation; began. that when the interview Of
4 grant appellant’s Although trial court failed to continuance, thе sheriff motion for a it did to direct attempt appellant could ask for to locate the witness. The no more under these circumstances. course, it until the termination interview wasn’t noticed. earlier were I mentioned
the stains these stains Keadle, observed "Q. you Mr. when Mr. stains on to, reddish-brown these have referred you something I said you and believe trousers Alderman’s to his belt, did call these you on his similar appearance him it was or him or ask what discuss with attention or anything? I we we, said that, of course as
"A.
before
Shortly
just
trying
get
preliminary
with the
began
it had
long
started. How
investigation
background for
like
thing and another
her and one
been since he had seen
interview, he became
the end
that, and
toward
then
being
the questions
sort of
with
nature
frustrated
time he
exercise
decided
would
him,
asked
and he
time
interview
at that
attorney,
an
and so
right
his
that he wished to
when he stated
just
terminated
regarding
no questions
remain silent. He
asked
. .”
supplied.)
stains.
(Emphasis
objection
made no
appellant’s
counsel
Although
at trial to
the district
or the GBI
attorney’s question
either
Doyle
appeal, citing
he now contends on
agent’s response,
91)
(96
(1976);
2240,
Ohio,
49 LE2d
Appellant’s failure to below the admission object waiver, complained testimony constitutes cannot now Reeves v. complain appeal. 24) (1978); Campbell Ga. SE2d (8) (240 State, 240 Ga. Sheffield State, 235 Accord, Ga. 507 Wain- 433 U. wright Sykes, S. 72 53 LE2d Notwithstanding, merits, even if considered on its of error is without merit. Hale, In United States v. supra, defendant, after be- *8 arrested, ing remained during silent a "custodial At trial interrogation.” thé de- prosecutor used the fendant’s silence in an impeach to the alibi attempt advanced dеfendant. Framing issue as an evidentiary and thus question avoiding constitutional issue, the United Supreme States Court found the probative value of the pre-trial defendant’s silence outweighed by the prejudicial impact admitting it into evidence. The court noted that the face although silence of an accusation does normally probative have value insofar as it is assumed that an man ordinary will an deny different, untrue an charge, arrestee’s situation is "for he is under no duty speak and . . ordinarily .has been . . silent, advised. that he has a right remain anything he does can say and will be used him.” against Hale, addition, United States 176. In supra, at the court noted that may there be other for the explanations silence, defendant’s from stemming pressures "inherent of in-custody interrogation.” year later,
One Doyle Ohio, supra, the United held Supreme States Court for impeachment use silеnce, of a purposes defendant’s at the time his arrest receiving Miranda the due warnings, violated after process clause the Fourteenth Doyle Amendment. reached the same result in Doyle, as Hale but Supreme Court based its decision constitutional grounds. In Doyle, court quoted approvingly from Hale, Justice White’s concurrence United States supra, which recognized that a person "when under arrest is informed, as Miranda may that he remain requires, silent, that he anything says may be used him against ... comport does not with due process permit prosecution trial call during the attention to his silence at the time arrest and to insist he because did not speak time, about the case as he was told facts of do, an need not be drawn might unfavorable inference as to the truth of trial sup- testimony.” (Emphasis plied.) Doyle, supra, at 619.
The instant case is frоm clearly both distinguishable Hale and cases, Doyle. both of those the defendant’s post-arrest, used post-Miranda silence was impeachment Here, purposes. the defendant was not under arrest when his interview with the GBI agent began, nor do the facts disclose "custodial- interrogation” Arizona, as contemplated by Miranda v.
506 Further, Keadle’s (1966), supra.5 Agent
defendant’s clearly that the result suggests might have been different had the impeachment claimed that silence, use of case, circumstances of that was harmless error.6 This error allusion harmless is not authority for applying doctrine, but rather expressly reserved that is- sue. (5th Davis,
In 1977), United 546 F2d 583 Cir. States Doyle an infraction rule found but held violаtion to constitute harmless error. that case *10 prosecutor the court noted that the not "focus on” did or "highlight” defendant’s silence in his cross examination remarks, and nor did closing the prosecutor’s comments at strike the "jugular” the defendant’s story.
Again, States, 547 F2d Chapman United (5th Cir. 1977), the found a Doyle court violation of to be but present that violation was held to be harmless error. In Chapman, prosecutor, the on direct examination of an officer, arresting asked the question witness a which elicited the fact of defendant’s at the silence time of his arrest. prosecutor Neither any prosecution the nor witness tied the fact of silence together defendant’s with improbable told that silence story. jury was never could be used Neither cross impeachment purposes. examination argument nor in did the prosecutor suggest that silence trial impеached testimony. defendant’s The court found to be any Doyle violation of harmless doubt, a beyond reasonable that "when there is but noting a single silence, reference at trial the fact of defendant’s the reference is neither nor repeated linked with defendant’s exculpatory story, exculpatory story is frivolous is transparently guilt evidence otherwise to defendant’s overwhelming, reference silence Id. harmless at 1250. See constitutes error.”
6 The "The court stated State has not Doyle: claimed that such of this case use the circumstances might have Accordingly, petitioners’ been harmless error. convictions . .” 426 U. at 96 SC at are reversed. S. 2245. (5th 1977); F2d Cir. Sklaroff, 552
United States 1976). (6th F2d 9 Havener, Cir. Meeks reference to case, only there was one In the instant neither reference was silence and the defendant’s resulted instead elicited but by prosecutor, made nor the witness. The made by from a remark spontaneous comment the witness’ never mentioned again prosecution silence appellant’s told nor was ever impeachment substantive be used for either could focus prosecutorial not a present This does purposes. case as in defendant’s silence by questioning repetitive "highlight” on” or did "focus Doyle. prosecutor Nor error. prejudicial to constitute appellant’s silence so as all, Therefore, beyond if was harmless any error, reasonable doubt. error reasons,
For these without merit. wholly the trial court erred
4. contends Appellant a GBI state, testimony permitting through witness, John "fortify” testimony key agent, Brown, polygraph use of a by propounded reference to the test. state,
On direct the district examination Brown had attorney agent asked the GBI whether John testified, In response, taken a lie detector test. the agent test, no, room, full into but he sir. He went "[T]he actually the test. The preliminaries administered *11 were gone actually but test was not through, administered.”
The testimony contends above highly prejudicial bolster John because tended to Brown’s later which incriminated testimony appellant.
It is clear polygraph from the that a testimony examination was never administered to Brown. Under circumstances, these latter testimony Brown’s could not have been "fortified” by polygraph reference to a which, examination fact, in had never been taken. The agent’s reference to a had polygraph examination no value probative and did credibility. not bolster Brown’s Appellant’s is, therefore, error without merit.
5. Appellant contends that the trial court erred in his overruling motion for a directed verdict on the state’s prove failure to venue. trial, Brown,
At John appellant’s accomplice, testified that the initial blow to head, the victim’s attempted strangulation, and the placing victim’s body bathtub all occurred appellant’s apartment in Chatham County, Georgia. body remained motionless after the initial attack for a period of time few, while the appellant and his accomplice went out for a drinks. Brown testified that when they returned to the apartment removed they Mrs. Alderman’s body from the bathtub, cold; I "she was believe she was dead.” Her body was "kind stiff...,” thus, of a little bit signs rigor mortis were already present.
It is well recognized this state that slight evidence is sufficient venue, establish where there is no State, conflicting evidence. Johns v. 681, 682 239 Ga. 372) (1977); State, SE2d Aldridge 236 Ga. 421) (1976).
SE2d
Further,
circumstantial
as well as
direct
may
evidence
be used to establish venue.
Loftin
State,
230 Ga.
Venue is a
question to be decided
by
jury and its decision will not
be set aside so long as there is any
support
evidence to
it.
Johns,
supra; Wilkes
Although Mrs. body Alderman’s was found by others in a creek Effingham County, there was no evidence that she was murdered there.
The evidence at trial was sufficient to authorize the jury’s finding that venue County. Chatham Appellant’s enumeration of error regarding lack of venue is without merit.
6. Appellant contends trial court erred failing to grant motion for a directed verdict on grounds that the testimony of accomplice, John Brown, Arthur was uncorroborated.
"In Georgia, of an used to testimony accomplice convict the accused of a crime must be supported independent corroborating identity evidence as to the participation of the accused him tending to connect crime or leading to the inference that he is guilty. Code *12 248) SE2d State, Ga. 815 38-121; Birt v. § 195) (2)
(1976) SE2d State, Ga. 861 ; West 41) (242 SE2d (1974).” State, 240 Ga. Eubanks the corroborating (1977) evidence sufficiency of . The and so jury, for the a matter is testimony accomplice of an evidence” by "slight supported verdict as the long crime, the with the defendant connecting corroboration did not authorize the evidence say court will not this State, 48, 52 227 Ga. Lindsey the verdict. was testimony case, accomplice’s the In instant the A forensic particulars. in several corroborated amply testified Laboratory Crime Georgia from the serologist found on the of the stains type blood the There was the victim. type the blood matched trousers impression kickstand motorcycle a concerning testimony found, testimony as victim’s as well body the where that as he drove toward who stated from witness direction, and opposite motorcycle passed creek a something he saw motorcycle left hand side of thе on the Defendant owned in the wind. flapping white driving motorcycle and admitted motorcycle This evidence on the night question. creek scene testimony that he and accomplice’s corroborated and that motorcycle on a had scene appellant departed Mrs. which holding quilt wrapped. Alderman’s had been body support evidence sufficient corroborating is, verdict. of error jury’s Appellant’s therefore, without merit.
7. trial erred Appellant contends that court refusing permit complete defense to examination their treatment expert pertaining hypnotic witness of the appellant.
Prior
instructed both
to the trial of this case
court
counsel for the state and for the defendant
to avoid all
defendant,
hypnosis
apparently
references
relying upon our decision
Emmett v.
232 Ga.
(1974),
held
wherein we
"the
reliability
hyрnosis has not been established
made while
witness
in a trance are
[a]
statements
[is]
inadmissible.”
(Emphasis supplied.)
case,
any
the instant
reference to the hypnosis
*13
and,
inadmissible,
therefore,
was
the
trial
in
err
counsel’s
refusing
did
defense
request
court
not
witness
expert
concerning
their
this
examine
mat-
ter.
8.
that
alleges
denied
Appellant
effective
assistance of counsel. His
is
upon
contention
based
in
alleged
2, 3,
errors
opinion.
Divisions
and
of this
515)
In
Glass,
Pitts v.
9. Appellant
contends
the death
is
penalty
was, however,
unconstitutional.
It
upheld in
Gregg
Georgia,
(1976),
III. Sentence Review In our sentence review we have considered aggravating by circumstances found and the jury evidence concerning crime the defendant introduced in court. We have reviewed the sentence as (Code (c) required L. p. § Ga. Ann. 27-2537 (1-3)), as we have in involving penalty each case a death imposed under this statute. We conclude that the sentence of death imposed Jack Alderman was not imposed under the improрer influence of or passion, prejudice any (c) (1). other factor. arbitrary § Code Ann. 27-2537 found statutory as cir- aggravating cumstances the accused committed offense of murder for the purpose money any or other receiving (b) (4)) (Code § Ann. 27-2534.1 value monetary
thing of
murder
or
and,
outrageously
the offense
inhuman in that
involved
vile,
wantonly
horrible
to the
torture,
mind,
battery
or aggravated
depravity
(b) (7)).
(Code
§
The evidence
victim
27-2534.1
statutory
regard
supports
jury’s findings
Further,
thoroughly
have
circumstances.
we
aggravating
during
the trial court
the instructions
reviewed
find
trial and
sentencing phase
to the defects dealt
subject
with
charge
given
as
State, Fleming
Ga.
our decisions
37)
(1977)
Hawes v.
concur, Hall, J., who concurs in Division 3 except specially Hill, and 1 dissents as to Division and the judgment, ,J. who dissents. 8 8 27,
Argued 13, 197 197 Decided June March July Rehearing 1978. denied Jones, Wright John appellant. III, M. Attorney,
Andrew J. Robert Ryan, District Bolton, Hitch, III, Arthur K. Attorney, Assistant District General, Jr., Grindle, B. Attorney Attorney Dean Assistant General, for appellee.
Appendix. (210 659) (1974); State, 117 SE2d v. 233 Ga. Gregg 829) (213 v. State, (1974); Floyd 861 SE2d v. 233 Ga. Moore
513
810)
(210
(1974);
State,
SE2d
Mitchell v.
280
State, 233 Ga.
(214
900)
State,
(1975); Berryhill
Ga. 160
SE2d
v.
234
235
185)
(221
(1975);
State,
SE2d
549
Smith v.
12
Ga.
236 Ga.
308)
(222
(1976);
(224
State,
v.
SE2d
Dobbs
236
427
Ga.
3)
State,
(224
8)
(1976);
v.
Pulliam
236
460
SE2d
Ga.
SE2d
(225
248)
(1976);
State,
Birt v.
Hall, dissenting as Division and the judgment.
Under Georgia’s contemporaneous
objection rule,
relating
error
Ohio,
admission of evidence
violation of
426 U.
Doyle
(1976)
S. 610
State,
has been
waived. Reeves v.
Ga.
24)
(234
SE2d
State,
Ga.
Sheffield
265) (1975).
SE2d
"It is well settled that an objection to
the admission of evidence
may
be raised for the first
time on appeal.”
State,
McAllister v.
issues upheld Court of the United Supreme *15 States in 433 U. Wainwright Sykes, S.
53 LE2d That court held that a where state has a contemporaneous rule, to objection failure make timely objection to the introduction a confession barred federal habeas corpus review absent a of cause showing for noncompliance and showing some of actual prejudice.
I dissent as to Division 1 the majority opinion the judgment. opinion, the my exclusion of the three jurors for cause violated Witherspoon Illinois, 391 U. S. (1972). See Griggs Ga. 317 269) (1978); Davis v. U. Harris Georgia, S. v. Texas, 403 U. S. 947 Justice,
Hill, dissenting. in a death case to it difficult find majority solely because of error an overrule So, regarding trial. to at object failed defendant’s counsel defendant exercised testimony agent’s the GBI silent, majority and to remain attorney an to right trial object to failure that defendant’s say first appeal. issue on Doyle of the consideration precludes to dismiss this find it diffcult majority Because (and it its merits on considering enumeration without on appeal defendant urges also because perhaps objection make an based attorney trial to failure of his counsel), after ineffective assistance Doyle on shows is Doyle preclud- of the issue that consideration saying Doyle that even if the issue ed, say nevertheless they merits, it be were its would without mer- considered it. merit, to be Doyle
After issue without finding if there further and conclude that even were majority go beyond harmless Doyle, violation of the error was majority It seems to me that reasonable doubt. this death case. affirming penalty unsure of its basis for First, merits, majority attempt as to the distinguish Doyle by saying held the use post-arrest, post-Miranda defendant’s silence for impeachment purposes due but that here process, violates the defendant not under arrest his interview "when with the GBI the facts do not show a agent began,” interrogation agent’s testimony custodial and the GBI was elicited direct examination and upon impeachment purposes. It is true that the defendant was not under arrest when the but he under began, interviеw arrest when it ended. At some point "interview” becamé "interrogation,” because the defendant became frustrated with the nature of the being asked him. The GBI questions did not agent say when the interrogation began when the Miranda warning given. In its effort distinguish Doyle, the majority therefore infer that defendant here chose to exercise his right remain silent attorney and consult an before he was arrested and before warning. his Miranda given he was That effort
515 Doyle upon is based distinguish surmise rather than the record. emphasis
The impeachment Doyle Ohio, v. 426 91) 2240, 49 (1976), U. 610 SC LE2d S. was because no one contended that evidence as defendant’s silence chief, was admissible case in during state’s because admissible, all, if under Miranda such evidence was at Hass, impeachment for as in v. only purposes Oregon U. SC S. 714 43 LE2d The attempt as majority’s distinguish Doyle an impeachment completely case overlooks Miranda (n. 37) (86 Arizona, 1602, 16 U. S. LE2d 694) (1966), where the court ruled: "In accord our with today, impermissible decision it is to penalize an individual for the Fifth exercising Amendment privilege police when he is under interrogation. custodial The not, therefore, prosecution may use at trial the fact that mute or stood claimed his face privilege of accusation. Cf. Griffin S. California, 380 U. (1965).. .”
In the case before us elicited testimony state from state law enforcement officer during testified) (and state’s case chief before the defendant probative it only guilt; premature as to impeachment To me purposes. it matters not that it, did not stress or that the was not told that defendant’s silence could be used as evidence of guilt. prosecution used at trial the fact the defendant claimed privilege and that violated the defendant’s right to remain silent as well as his to counsel. right
Thus, in my opinion we cannot that defendant’s say of error Doyle based on v. Ohio is without trial, merit. That leaves us with the object failure to with counsel, its follow-up criticism of trial harmless error. Although plenary appellate review criminal advocated, cases is it being is even in being granted 27-2537(i). Moreover, this death § case. Cf. Code Ann. my view we contemporaneous should not retreat objection rule to stand willing unless we are ourselves upon it, alone, and it in a death case. (Code (1)), §
Under our
statute
50-127
clear
there has
showing
been no
of waiver
habeas
issue on
Doyle
have raised
defendant could
contem-
aof
absence
notwithstanding
corpus
277, 279
230 Ga.
Kiff,
Morgan
objection.
poraneous
Ga.
Hopper,
Jacobs
*17
(1) (2) (233
Smith,
a on As I error, for harmless cannot agree with I majority say find this error be harmless doubt in death I beyond penalty reasonable this case. therefore dissent as entirety of Division 3 of majority opinion.
I also majority, dissent to the division where the first without using phrase, finds harmless error
1By objection rule as one using contemporaneous Ohio, basis for affirmance and v. "distinguishing” Doyle supra, as basis, an alternative deter majority may federal review of this conviction deference to the first (see 763), basis 375, 211 Williams 349 U.S. Georgia, Ga. yet be able to on say state habeas corpus we previously decided the (Doyle) constitutional question merits. its prospective jurors three conceded for cause
excusing
(1968).
Illinois,
Witherspoon
California in In Anderson, re 73 Cal. P2d Rptr. (1968), cert. den. 406 U. (1972), S. 971 used language similar to that quoted above from Davis v. Georgia. There the California court held that the defendant entitled to have his death aside penalty set jurors because were cause in improperly excluded for violation of Witherspoon, notwithstanding fact that had sufficient unused to peremptory strikes have jurors. removed such
As I read Davis v.
supra, the
Court
Georgia,
Supreme
has approved
Anderson,
In re
supra. As the dissent
out,
Davis pointed
adopted
a
se rule
majority
per
which precludes a finding of harmless error.
Id. at I dissent. therefore it is written. as that statement apply et al. v. WOOTEN 33564. SIMMONS Justice. Marshall, two grantor, his against action filed this
Simmons in possession portions illegally persons allegedly had who attorney, and his he had realty purchased, The the purchase. with him connection represented that substantially alleged as amended complaint read”; grantor that his to "unable plaintiff was to him intentionally misrepresented deliberately and order 38.8 acres land conveying that she $12,000 payment cash him an additional pay induce that check attorney her his mortgage; and assume title stating and execute certificate the deed records records, had grantor that the had checked the deed that he acres, convey could and she marketable title to 38.8 conveyed in fact the deed title to the good plaintiff; the deеd to 29.8 for relief were for prayers acres. only or, alternative, 38.8 acres recover transfer $12,000 grantor’s mortgage cash payment, canceled, plaintiff be and that assumed for actual and plaintiff original position; be restored fees; permanent and for a punitive damages attorney injunction against occupying the two defendants’ "plaintiffs land.” filed summary
All of the defendants motions judge granted summary judgment The trial judgment. trespassers, favor of two contended grantor *19 from judgment plaintiff appeals. which summary
1. The in favor judgment grant two alleged trespassers showing was correct. motions these summary judgment title, defendants both held valid both before and record after the conveyance in to two tracts of land question, surrounded on three sides the land conveyed by plaintiffs deed. Accordingly, appears as a matter of law grantor the defendant could conveyed not have their