*1 42661. COOK v. THE STATE. Justice.
Bell, Cook, Appellant, James was convicted in County Cobb murder and two counts of aggravated assault. The found the presence statutory aggravating two circumstances and recommended a death The appeal, sentence. case is here on direct for review under the Uni- Appeal Procedure, amended, fied seq., 252 Ga. A-13 et for and sentence review mandated OCGA 17-10-35. We affirm.1
Facts Shortly midnight, early after morning July 8, hours of 1984, Sergeant Massey Marietta Police a monitored call about shots on McIntosh McIntosh, Street Marietta. Since he was not far from Sgt. Massey responded, arriving approximately a minute later at the (also duplex Check). Johnny Johnny residence of Rosser known as Sgt. Massey residence, observed James Cook in front standing with his to Massey, facing back two men him. lying Sgt. front of As Massey approached, officer,” turned, stating “I’m a police pistol Cook hand, cocked, with the trigger. hammer and his on finger Sgt. Massey the gun. took It was still warm. arrived,
Other officers began gather, including and a crowd to woman screaming that she had been shot. men lying One the two duplex dead; front of the appeared to the other had been shot times, three bystanders, was still alive. The whom some of had witnessed shootings, began hap- to relate to the officers what had pened. excited, quite transported police Some were and Cook to was headquarters get to him out possible danger. Menafee, victim, that,
Jackie surviving male testified trial having Johnny after been to he evening, Check’s earlier that had re- turned sometime after midnight get cigarettes. As he was leaving, met Perry, “Pops,” he Gardner known to Menafee as who wanted to They steps duplex talk him. sat down on in front of some and one, Perry for a cigarette. prepared get asked As Menafee he heard commotion, turned, said, “Hey Pop, gun.” dude’s A got off, Menafee, Perry shot went fell over. who had talked Cook “Well, evening, him, you earlier that why asked did shoot man?” 23, February Cook A was sentenced to death 1985. motion for new trial was filed March 1985, 20, 27, 1985, 12, again July and was amended June on 1985. The motion for new July 24, appeal was trial denied 1985. A notice of was filed the case in this was docketed 30, August given on court 1985. Cook was an extension of time file his enumeration of brief, given errors and which he filed October state was until November brief, orally argued supple to file its and the case November 1985. Cook filed day arguments brief mental on the oral were heard. it?” Then he shot got to do with responded, you “What shot, why been leg. Menafee the When Menafee asked help. told him he began to shout again. shot him Menafee yet, again. him not dead and shot door, her next King standing duplex outside the Sandra up, she stood a shot shots and ducked. When boyfriend. She heard hip. in the struck her *2 latter on Cook Menafee as the sat witnesses saw shoot
Two other that, addition, after the shots steps. In witness testified the another witness, the at him and fired, pointed gun approached Cook the were too, away, “snapping” gun. him and his to shoot walked threatened pros- offered the services of two Cook testified that Menafee had outside, and titutes, $105, had Menafee went and that he declined. for outside, he he was sur- so did Cook. When went soon afterwards money. Cook did not people five six who demanded rounded or in stomach with a knife. of the men hit him the respond, and one up, rushing he two men were steps. jumped fell down the When Cook them, Menafee, Jackie turned around him he shot them. One of and moments, again, so got up charged for few and and sat down a then him again. Cook shot trial, it had phase
At of the was shown that Cook sentencing the addition, in In two witnesses testified convicted of murder 1950. been shooting two incidents. later driver, in he Stevenson, taxi a retired testified that Milous driving up in Marietta. As were picked Mrs. Cook downtown an- Marietta, her husband in a car with through Mrs. Cook observed cab, got the other car and She went to got other woman. out Afterwards, Mrs. Cook into a with Stevenson took fight the woman. arrived, bill, carrying a settling he the home. While was slapped Her the pointed which he at his wife. sister gauge shotgun, pointed it now toward Stevenson. away, with the result that was gun down, off, him in the shooting it it went attempted pull days. hospital Stevenson fourteen side. friends, in- she and several
Janie Durham testified that of Cook, backyard drinking. in a Some cluding gathered friend’s while, up and went began got tease Cook. After a the women “hit gun. later Ms. Durham carrying home. He returned (She shot, leg. her took out “sprinkled” which ground.” She heard later, arrest, paid her fine dropped after warrant for case.) DUI — Guilt Phase
Enumerations Error of trial, charged: the court guilt-innocence phase At the reason, person taking from advan- law, prevents a as well as “[T]he tage wrong excusing of his own or himself when unlawful act contemplation, legal strikes down an victim. In unintended intent through legitimate original results, follows the act to its and the in- against tent is transferred from the one whom it was entertained to actually consequences him who suffered the of the felonious act.” hours, After the had deliberated for several it asked the principle apply court offenses of whether transfer of intent could to the voluntary manslaughter aggravated assault, addi- tion to murder. consulting attorneys presence After with the outside the
jury, jury’s question the court answered this manner: “You judges fact, members of the are the law and I and have charged you principle you intent, of transfer is for and it say any the law whether fits facts or facts fit the law as to you you crime have before consideration this trial. You are au- apply principle any thorized to of law to of the crimes the ac- charged committing you cused is of the crimes are author- guilty committing.” ized to him find timely objected foregoing charges. to each of In his first charge contrary error,
enumeration evidence he contends that the to the misleading confusing. *3 argument premised, upon part, assumption Cook’s is in an that finding the does evidence not a authorize that Cook formed an intent Perry. to kill before he fired the shot that struck Gardner With this assumption agree, although we evidence, cannot and find the that cir- pre-existing cumstantial, is sufficient to establish a to kill. intent true, contends, It as Cook in that order for the doctrine of apply Perry, jury transferred intent to to the death of Gardner “the appellant existing [find] would have ... to . . . an intent to kill Perry agree However, before Mr. was shot.” dowe not with his fur- charge jury ther that contention the court’s authorized the to convict Perry Cook for the murder of on the basis “intent to commit an aggravated upon Perry assault Mr. Menafee formed after Mr. juror killed,” we nor do believe have so that reasonable could con- charge. strued the Regarding supplemental instructions, the we find that sim-
ply jury legal principle informed the the that of transferred intent applies to offenses other than murder. We note that none of the of- presented require jury necessary fenses to this the that element of injure may intent, toward be, or to kill case the must have been directed person actually injured. §§ the who killed See OCGA Compare 16-5-1; 16-5-2; 16-4-1; 16-2-1; 16-5-20 16-5-21. Sand- (99 39) (1979). Montana, strom 442 U. S. 510 SC 61 LE2d enumeration, 2. In his fourteenth Cook contends the court erred felony charging on murder. 568 unlawfully that “did count one Cook alleges
The indictment Perry, death Gardner aforethought cause the malice allegation him suf- by shooting pistol.” human with a This being, put he an assault aggravated ficient to Cook on notice that committed Perry, by instructing jury court not err the upon Gardner and the did State, (2) (331 Jolley felony murder. 254 Ga. on the offense of SE2d error, the
Contrary to Cook’s twentieth enumeration of evidence as aggravated conviction murder and two counts of supports the (99 560) Virginia, sault. Jackson v. U. S. 61 LE2d (1979). over required was not to believe Cook’s (5) (331 Welch v. witnesses, Ga. 603 that of state’s 573) (1985), nor establish motive required was the state to doubt, is not element of the of beyond a reasonable since motive an fense of murder. Hancock v. Ga.
(1943). gave lengthy charge, including
3. The court pre-evidentiary trial explanation step After the first stages explaining trial. — — “Second, will opening statements the court stated: state charges in the support introduce contained evidence indictment.” charge that argues enumeration “had third support evidence would telling
effect that the state’s thus, and, charges brought,” amounted a forbidden comment view, say In our upon the 17-8-57. evidence. OCGA § predict is not support charges” state will offer evidence “in will establish and we find no charges, state’s evidence error. enumeration,
4. In the chain of cus- argues his fourth tody of a should not have bullet was not established and bullet been admitted evidence. gave
Detective Parker testified he the bullet Detective Ernest, examiner, Reibly. firearms testified that received Richard Reibly. the bullet from Detective that because Detective Reibly testify, disagree. did “chain We The state was broken.” certainty showed a reasonable the bullet offered evidence *4 the crime. The was the same as that found at the scene of absence law who from one enforcement officer handled bullet State, v. Johnson Ga. by custody. itself fatal to the chain of (1) (237 681) (1977). App. 169 SE2d iden- photographs
5. State’s exhibits 14 and victim at the by lay One the victim as Joseph tified Dr. Burton. showed chest, in the victim’s scene of crime. The showed the wound other appeared removal of his shirt. In his fifth and sixth as after the enumerations, Dr. did not know argues Cook that since Burton victim, proper no foundation was laid for the admission of these pictures.
It
Dr.
personal
is true that
Burton could not from
knowledge
identify Perry
person depicted
Gardner
the photographs,
but he
testify
person depicted
photographs
could
that the
was
the person
performed
autopsy.
on whom he
State’s exhibit 1 was
properly
photograph
Perry
identified as a
of Gardner
and the jury
compare
could
exhibit 1 with exhibits
and 15
see that
(11) (304
State,
depicted
person.
Mincey
the same
Cf.
v.
6. his seventh argues pistol Cook taken by from him Sgt. Massey should not have been introduced in evi- (1) cause, (2) dence probable because it had been seized without a chain custody was not established.
Sgt. Massey
reported
arrived at the scene of a
shooting and dis-
covered
standing,
pistol
hand,
Cook
with a
in his
prone
before two
men.
presence,
When alerted to the officer’s
Cook turned toward the
officer, who observed
gun
that the
was cocked and that Cook’s finger
trigger.
was on the
Even assuming, arguendo,
probable
that full
cause
lacking
point,
fully
at this
im-
circumstances
authorized the
weapon
mediate seizure of the
investigative
least a brief
deten-
Ohio,
Terry
tion of Cook.
392 U. S.
20 LE2d
(1968).
(7a) (323
State,
150) (1984),
Devier v.
Regarding
custody,
the chain of
what
we said Division
of this
here,
opinion applies
deficiency
inasmuch as the same
is alleged.
enumeration,
In7.
his fifteenth
complains
of the denial of
sequestered voir dire. We find no abuse of
Sanborn v.
discretion.
(3) (304
8. We find no merit to challenging enumerations 16 and constitutionality penalty procedures. of our death Jury voir dire began Monday on a until morning continued shortly past p.m. Wednesday. 4:00 requested a two hour re- give cess to counsel to prepare time for the selection. The court provide for, did not the two full hours asked the court did recess for more completion than an hour between the of the voir dire and the commencement of the actual jury selection. enumeration,
In his nineteenth that he denied prepare sufficient time to peremptory for the exercise of his chal- lenges. provided We note that he was a recess more than four times as
570 minutes) (15 by Rule 11 of the new required lengthy the minimum as (which were not effect when Superior Court Rules Uniform Compare here. tried), find no abuse of discretion and we case 708) (1982). (3) (293 State, 605 SE2d v. 249 Ga. Jones indictment was ninth that the enumeration 10. Cook granted. should have been motion to dismiss insufficient and that his counts, three the indictment each of the agree. do not As to We and set forth appropriate statute language tracked to county they alleged in which the offenses and the dates of 17-7-54; App. v. Ga. Lyle occurred. See OCGA have § 126) (1974). (3b) (205 SE2d aggravated that the assault complaint no to Cook’s
We find merit pistol that allege fail to counts were defective because it was an instrument “offensively against person” a or that used bodily injury.” in serious “likely actually is to or does result assault as an assault aggravated Georgia Code defines (2) rob; deadly “(1) murder, or or with a rape, intent to to to with pr which, device, used instrument when weapon any object, or with actually result seri- likely is to or does offensively person, against (a). Clearly, this code section bodily injury.” OCGA 16-5-21 ous § may ways aggravated; in which an assault five different specifies (1) intent to mur- i.e., if it is committed with aggravated an assault is (3) rob, (4) (2) deadly der, intent with rape, with intent with which, (5) device, when or instrument weapon, object, actually result in likely to or does offensively against person, used bodily injury. serious case, both assaults were committed alleged
In this
the state
indict
obligation
under no
deadly weapon.
with a
The state was
of the offense.
Cook for additional varieties
enumeration,
us to find that
11. In
Cook asks
eighteenth
unconstitutionally
underrepresented
grand
on the
blacks are
large part upon
relies in
County.
in Cobb
traverse
lists
Ridley
Dr.
Superior
Court
Helen
study conducted for the Cobb
and So-
for Research
Public
Dr. Edward Hale of the Institute
in Marietta.
College
cial Services at Kennesaw
Appeal Procedure
In
this court amended the Unified
alia,
penalty
cases must
superior courts
death
provide,
inter
whites,
un-
blacks,
significantly
and women are not
certify that
men
lists. Rule II
and traverse
derrepresented
county’s grand
on the
(A) (6)
Procedure,
amended,
A-13 et
252 Ga.
Appeal
of the Unified
disparities exceed-
correction of absolute
seq.
“requires
The new rule
that dis-
5%,
possible
to the extent
to ensure
ing
designed
[and]
Parks
minimum.”
kept
below the constitutional
parities would be
well
4) (330
However,
(fn.
v.
254 Ga.
resulting list is
compliance
guarantee
with the rule cannot
possible
attacks,
immune from all
constitutional
cf. Allrid v. Emory
(306
905)
University,
(1983),
As a general proposition,
disparities
absolute
usually
under 10%
are sufficient to satisfy
requirements.
constitutional
Machetti
Linahan,
(11th
1982). However,
679 F2d 236
Cir.
Norris Ala-
“[i]n
bama,
294 U. S.
(1935),
[Supreme]
LE2d
*6
Court
prima
found a
facie
equal protection
denial of
where no blacks
had been
jury
called for
in
twenty-four
service
at least
years, while
population
of blacks in
county
approxi-
indictment was
mately
percent.
five
Morgan
States,
The absolute disparity only Norris was difference be- 5% tween the black percentage of the jury pools and the black percentage community), (the comparative but the disparity was ab- 100% disparity solute by divided the black percentage community). that, Cook argues where the distinct group whose underrep- resentation is at issue constitutes less than of the community, an 5% analysis only disparity insufficient, absolute is and that com- parative disparity is a more relevant measure of the underrepresenta- tion. Rodriguez, (fn. 4) Cf. United States v. (11th 776 F2d 1985). Cir.
To some extent we can agree assertion; however, with this couple of necessary. caveats are
First, although comparative disparity is a better analyz- tool for ing impact of a underrepresentation numerical on the distinct group whose underrepresentation issue, is at disparity absolute is a better measure of the effect of the underrepresentation jury on the whole, list as a and this is true no matter how or large small the dis- group tinct is.2
Second, there will inevitably be errors the data. These errors error, include sampling where the data is only sample derived from population studied, being error, and non-sampling including human and mechanical errors in acquisition and tabulation of the data.3 accuracy of both absolute and comparative disparities is example, group underrepresented absolute, For by jury if a distinct is then a venire 2% persons contain, average, of 50 group will on the one less member of the than it if would underrepresentation, there were no group and this is true no matter whether the constitutes community community. of the 50% of the 2% 3 See, e.g., Population, Population (Georgia), Ap 1980 Census of General Characteristics — pendix Accuracy D of the Data. can be disparity data, comparative accuracy of the by affected by small disparity dramatically than absolute far more affected represents group issue when the distinct in the data changes community.4 of the percentage small underrepresenta- comparative case, alleged it is
In this 42.5%, and that County pool is jury Cobb on the of blacks tion notwithstanding an absolute is unconstitutional underrepresentation follow, not agree we do reasons which than 5 For disparity of less %. his contention disparity or with comparative measure of with Cook’s Cobb on the unconstitutionally underrepresented blacks are County list. jury composi- regarding the that the data deciding, without
Assuming, accurate,5 are jury traverse lists County grand and of the Cobb tion com- alleged list. Cook’s of each approximately comprise 2.9% blacks percent- black comparison disparity generated is parative non-whites Cobb pool percentage with the age County. First, respects. Cook has two comparison inappropriate
This comprise group a distinctive persons failed to show “that ‘non-white’ States v. law.” United under the singled special out for treatment (11th 1984). Second, many non-whites Lewis, Cir. F2d compare per non-black, is inaccurate to simply and it are also percentage of non-whites list with the of blacks on the centage community.6 *7 4 community and of group of the 2% example, estimated to constitute if the is 4% For If, disparity comparative list, disparity is resulting is and the 50%. jury the the absolute 2% community, figures would fact, only correction of the group then in constitutes 3% comparative disparity from would be reduced disparity to 1 while the reduce the absolute % sense, equally course, disparities in that each is are affected both Of one 50% 25%. halved reduction than does the which follows. Nonetheless, greater halving numerical by change results in a far in the data. 50% important 2%, halving is to the discussion this difference of 801) (1984), only Ingram of 62% 253 Ga. As we noted list, by jury which County reference to the jurors as to race in Cobb could be identified the was allow the years guidelines list, approximately not federal did ten identical to the voter since for purpose County. primary recording registration The forms Cobb of race on voter composition by analysis Ridley’s study of the entire list. Dr. was to ascertain statistical of Using sample 7,000 the list. the racial unknowns on names was drawn from A random (most by persons telephone survey, one questionnaire were contacted these a mail-out and a both). other, questionnaires non- by were returned as but some Some means or the Eliminating deliverable; telephone the non-deliverables were “bad.” numbers some of the (the age Comparing numbers, response and sex known data rate was the bad 87.6%. data, list) response both mail from the unknowns could be ascertained of the racial and sample ostensibly descriptive sample generated, the entire telephone, data were population unknowns, generalized of racial findings the entire then which were racial jury list. unknowns on the by census are listed as persons “White” not tabulated as is true unless This Population, Appendix pointed B the 1980 Census list. As out “Black” on the groups supra, from (Georgia), were tabulated Population fn. racial General Characteristics invalidity of such a comparison is particularly pronounced where, inas County, Cobb population the black is small and a mea- surable percentage of the total population is classified the census as neither white nor black.
If we population consider the County of Cobb eligible for jury service, is, years age older, or then blacks comprise 4% (and Cook).7 the total not alleged by 5% The absolute disparity is 1.1%, therefore and the comparative (and 43%). disparity is 28% Since Cook relies upon Ridley’s Dr. study, suggests which comparative disparities exceeding are constitutionally suspect, 20% Cook undoubtedly argue would if comparative even disparity only 28%, is list is nonetheless unconstitutional. But we do not think necessary it is arbitrary desirable to set an limit to com- parative and, disparity, in view of the shortcomings inherent com- parative disparities, if limit, we did set such a we would not set it nearly so low. only
Not is it difficult precisely comparative disparity, measure given the dramatic effect changes of minor to the supporting data upon measurement, the final but, addition, comparative disparity figure cannot be abstraction, evaluated as a mere and the fact remains if disparity even shown here entirely eliminated, effect on typical County Cobb venire very slight, would be amounting to an average person of one-half a per 50-person venire.
A defendant has
right
no
to a jury selected from a list which per-
fectly mirrors the percentage
community.
structure of the
What is re-
quired is a
represents
list which
cross
community
section of the
fair
and which is
product
not the
of intentional
racial or sexual discrimi-
See,
nation.
e.g.,
(3) (300
Wilson v.
Cook has no evidence of intentional discrimination ex- cept whatever inference might alone, result from the disparity disparity shown here is support insufficient to pur- inference of poseful Test, discrimination. Cf. United States v. 550 F2d (10th 1976). Cir.
Insofar
requirement
concerned,
as the fair-cross-section
we
by respondents.
self-identification
Persons who identified themselves as white were tabulated
classify
as “White.” Persons
categories
who did not
themselves as one of the listed racial
*8
response
Canadian, German, Italian, etc.,
marked “Other” and entered a
such as
were tabu-
“White,”
they
Cuban,
response
lated as
if
marked “Other” and entered a
such as
Puerto
Rican, Mexican,
persons
or
were tabulated as “Other.” Other
not tabulated as “White”
Indians, Eskimos,
Japanese, Chinese, Koreans,
Indians,
included American
Vietnamese, Hawaiians,
Asian
unlikely
Guanamanians
and Samoans.
It is
of these non-
designated
jury
whites would be
on the
list as “Black.”
7 According
publication,
to Table 45 of the aforementioned census
there are 8511 blacks
age
County,
population
211,033.
over
of 18 in Cobb
out of a total 18-and-over
jury
process
County
essentially
note that the
selection
Cobb
is
i.e.,
randomly
used in the selection of
juries;
jurors
federal
are
se-
registered
1861, 1862,
lected from the list of
voters.8 See 28 USCA §§
“The
registration
by Congress
use
voter
lists was chosen
part
provided
qualified
equal opportu-
because it
each
citizen with an
nity to cause his name to
among
.
those from which random selec-
made,
tion is
and
largest generally
also because it was the
available
updated.
random source that
...
frequently
Of course voter re-
—
gistration
imperfect
may
lists are
Indians
not vote as much
non-
as
Indians,
may
Catholics,
Hutterites
frequently
not vote as
Swedes
may
Germans,
the Sixth Division
vote more
young peo-
often than
—
ple may vote less than old
but this does not render use of those
unconstitutional,
alternative,
lists
especially considering the
which is
up
complicated
to set
procedure that
takes into account the voting
groups
size,
of all
community,
regardless
habits
of their
supplement
then
accordingly.
required
voter lists
No court has ever
this,
good
Act,
and for
procedures
despite
reason. The
its im-
perfections, achieve the
goal
the Sixth Amendment:
through ran-
lists,
dom selection from voter
defendants
jury pool
are insured of a
randomly
drawn
from a fair
community,
cross-section of the
and the
‘professional
evils of
jurors’
‘key-man
system’
are elimi-
Hanson,
(D.
nated.” United States v.
FSupp.
1054 Minne-
sota,
1979) (Hanson
Sixth Division
disparity
showed
absolute
54%).
comparative
and a
disparity
Compare
.7%
Parks v.
supra,
Considering the manner in County which the Cobb jury lists are compiled, together with disparity exist, the extent of the shown to we find no unconstitutional underrepresentation of blacks and no error in the trial court’s denial of Cook’s challenges.
12. In enumeration, his second Cook complains of the state’s opening guilt-phase statement and closing argument.
(a) party Either in a criminal case may opening make an state- ment acquaint order to the jury with the nature of the case and party the facts each expects the evidence to show. case,
In this the “facts” which prosecutor predicted would be proven supported by evidence, some or could be inferred from the evidence. prosecution’s opening statements were not im- County grand jury supplemented It is true that the Cobb list was with the names of persons jury commissioners, that, result, list, grand jury known to the as a unlike the list, compiled entirely (A objective personal traverse was not in an manner. decision to accept reject Kemp, inherently subjective. See Bowen v. an individual 769 F2d 686- (11th 1985).) shown, however, subjective Cir. It has not been these on the inclusions grand jury sufficiently significantly composition list were numerous to affect the of the list in any way, they obviously composition did not affect the racial the list.
575 proper.
(b) timely objected portions closing to two state’s argument. argued,
In instance, the first the state “If there ever was an ex- ample ever, of malice in this courtroom it comes from the your interrupted object . .” of state defendant. . The defense to to the
“characterizing this in of other terms cases and based on his judgment responded of what he’s seen in court.” The state that it only had not other mentioned and had cases mentioned the testi- mony preparing objec- case, in this which it was to when outline objection. pro- tion was made. court overruled The state ceeded to outline evidence then “If that isn’t concluded: malice, there never If has been malice. behavior does not show you going nothing mind, on in what’s Cook will.”
complains argument put jury that this not before facts prosecutor compared evidence, in injected in that the this case to others and expert opinion prosecutor, his own on the evidence. The how- directly express personal opinion ever, did not or refer to not facts Supreme prosecutor evidence, and, cautioned, as the United States Court has lightly ambigu- “a court should not infer that a intends an damaging meaning jury, sitting ous remark to have its most that a through plethora lengthy meaning exhortation, draw will from the damaging interpretations.” Donnelly of less v. De Chris- (94 431) (1974). 637, toforo, 416 U. S. 647 40 LE2d Especially light response of the state’s to the defendant’s ob- jection, argument we find the to here constitute no more than an at- tempt urge jury apply to to common its sense the facts of this to and, facts, case from those find defendant’s contention no malice (11a) (331 State, to be See v. unreasonable. Conklin 254 Ga. 532) (1985). SE2d argued: you In instance, the second the state “Did notice the wit- they point nesses as testified for the state when time to it came out They . the defendant? . . Almost all hesitated and stammered. you’ve heard, were scared to not more than it. here do There’s more than but there’s you you’ve can surmise from what seen. . . .” Cook’s objection argument to this was overruled. prosecutor jury
Cook contends that the
asked the
consider
although
disagree. Again,
argument
not in
facts
evidence. We
possibly
interpreted
damaging manner,
could
a more
the most
interpretation
prosecutor
asking
reasonable
that the
draw inferences from its
nesses.
of the demeanor of the
observation
wit-
argument
do,
This
not
entitled
(303
266) (1983).
improper.
State,
Conner v.
251 Ga.
SE2d
(c)
complains
portions
prosecutor’s
Cook now
of other
of the
ar-
gument
objected
prepared
Although
give
to at trial.
we are not
find
we
approval,
unqualified
our
argument
the remainder
Ford v.
require reversal.
as to
nothing
prejudicial
so
(14)
State,
Nor as re- signed indictment, or sentence judgment, show that signa- persons whose names of all the exhibits bear the quired. The do not have course, typewritten copies required. Of these tures were copies but original signatures, appearance the handwritten reason invalid. are not for this to be is too old
(b) that a 1950 conviction argues Cook further prior conviction explicitly makes a Our Code disagree. relevant. We 17- circumstance. OCGA statutory aggravating capital felony § for the defense (b) (1). a matter which of a conviction is age 10-30 for the exclusion ground it is no may argue mitigation, evidence.
(c) Finally, Cook that little information we have “[w]hat on strongly the 1950 suggests process case was denied due [Cook] . . . . effective counsel . .” [assistance of] 18, 19,
State’s exhibits and 20 show on their face Cook was represented by attorneys two and that in obtaining succeeded Cook a mercy, recommendation of which he without would have been sentenced to death. view,
In our what suggests information we have strongly Cook process was not denied due or effective assistance of counsel. valid, The conviction presumptively is and the is on burden Cook to prove He has otherwise. failed to so. do
14. In enumeration, his twelfth Cook argues the state did not provide timely notice of aggravating evidence. See OCGA 17-10-2. September 7,
Cook was arraigned Afterwards, first 1984. past state learned of his record and decided to seek the death penalty. intention, of this notified and of the that the evidence state planned aggravation. to offer in required Since local rule of court that notice aggravating supplied prior evidence be to arraignment, re-arraigned on November
Cook argues that
the re-arraignment
constitutionally
insuffi-
cient to cure the state’s lack of
rule
compliance
the local
of court
regarding
However,
notice
aggravating
evidence.
the violation of a
(since
local rule
superseded by
of court
the newly-adopted Uniform
Superior
Rules),
more,
Court
without
does not rise to the level of a
Florida,
Barclay
constitutional violation. Cf.
S. 939
463 U.
(1983).
77 LE2d
has not
established
notice was
*11
provided too late to allow him
opportunity
prepare
a reasonable
for
the
sentencing phase
Kemp,
the trial. See Brooks v.
762 F2d
(fn. 36) (11th
1985).
Cir.
(1)
Moreover,
(A)
although
Appeal
Rule II
of the Unified
Proce-
requires
dure
prosecutor
prior
the
to arraignment
to announce
whether
penalty,
or not he intends to
the
nothing
seek
death
Unified Appeal
re-arraignment
Procedure forbids a
to cure the failure
to begin
to the
following
Appeal
prior
original
Unified
Procedure
arraignment.
State,
(7)
573)
Cf. Welch
15. The allowing trial court did not err the state to show in aggravation prior involving incidents Milous and Janie Stevenson Durham, Lee though prosecuted even convicted (5) (326 State, (1985); these Ga. 22 incidents. Ross (9). Kemp, Devier v. 253 Ga. Tucker v. supra also (11th 1985). 762 F2d 1486-87 Cir. Cook’s enumeration eleventh is without merit. circumstances, statutory the court Regarding aggravating follows:
charged state contends that charge you I jury, “Members following aggravating under the committed offense of murder was One, by committed a circumstances, offense of murder was to wit: wit, felony, capital for a prior record of conviction person with two, was committed while the offender murder; the offense of murder person battery upon the aggravated in the commission of engaged Jackie C. Menefee. felony, as that charge you capital I that a jury, “Members of the by death or my previous charge, punishable is a crime term is used in murder, rape, following crimes: imprisonment life and includes kidnapping or for ran- robbery, kidnapping bodily injury, armed som. commits, quote, charge you person I that a jury,
“Members of the my meaning previous aggravated battery, unquote, within bodily by depriv- to another charge maliciously when he causes harm by body a member of his body, rendering him of a member of his ing useless, body thereof.” by seriously disfiguring or member error,
In his thirteenth enumeration of Cook contends jury. We do “my previous charge” court’s references to confused the references, by these not believe the could have been confused and find no merit to this contention. (see aggravated battery charge
Cook further contends that the (b) (2)) by the evidence. We supported OCGA 17-10-30 was not § to this contention: “Clarence Menefee agree response with the state’s that, by inflicted gunshot at trial as a result of the wounds testified placed and was on a catheter for [Cook], he lost the use of his bladder wounds, that, a month. Menefee further stated as a result of his colostomy performed that as of the date of the trial he was colostomy Surely, in order to defecate. evidence es- using bag still tablishing aggravated loss of one’s bladder and colon constitutes battery.” brief, Appellee’s pp. 80-81. statutory circum- supports aggravating
The evidence
both of the
(c) (2).
jury.
stances found
OCGA 17-10-35
Counsel
Effectiveness of
error,
that his re-
17. In his tenth enumeration of
Jr.,
Petersen,
attorneys, Ray Gary,
Roy David
ren-
tained trial
this issue was raised on
dered ineffective assistance of counsel. Since
appointed
been
to re-
attorney
motion for new trial after an
may properly
re-
present
post-conviction proceedings,
we
(308 SE2d,182)
(1983).
(3)
view it. Brown v.
Attorney Gary has been a member the bar of this state over years. legal experience His includes service as an assistant solicitor and judge magistrate as County, court Cobb as well as sev- years eral private practice. 16,1984. July first talked to Cook on After Cook talked to several attorneys, he decided to retain ser- Gary, vices Mr. who thereafter with met Cook for on several hours July 20. Gary met testified with Cook at once month least began February. Gary until the trial filed a of pre-trial number motions, including a for discovery inspec- demand and an in-camera tion of the file. The responded by state’s state to this allowing motion Gary personally (3) review its file. Reed v. 52Ga. — — (287 205) (1982). Gary successfully undertook to interview all of the Moreover, Gary state’s witnesses. conferred with a number of other attorneys, defense penalty some whom had the death ex- perience Gary Hirons, lacked (including repre- Allen who now Cook), notes, taking material, sents gathering discussing strategy. and Roy Petersen, a County attorney, former Fulton assistant district assistance, retained for additional technical especially as- pects of the case. trial,
At defense counsel conducted extensive voir dire exami- nation, witnesses, cross-examined all two of the state’s 15 appropriate made In objections. closing arguments, their defense counsel raised substantive plausible issues and discussed lines of defense.
Clearly, it cannot be said here that “counsel failed function any meaningful as the government’s adversary,” sense United States Cronic, v. supra, qualified or that state of them preparation “[t]heir only Balkcom, (11th spectators.” House v. 725 F2d Cir. 1984). Thus, claim, prevail in order to ineffectiveness must, “by counsel,” pointing specific made trial United errors (1) Cronic, supra, attorneys’ States deficient, performance show (2) actually performance prejudiced deficient defense, Washing- under the standards set forth in Strickland _U. ton, S__(104 674) (1984). 80 LE2d See Ford v. (8) 81Ga. mind, foregoing With the now we undertake to evaluate acts and allegedly demonstrating omissions ineffective assistance of counsel.
(a) array that his challenged trial counsel early traverse too nature generally failed to understand the challenges. of such challenges
The Unified Appeal contemplates Procedure traverse) prior be raised and considered should array (grand *13 challenged counsel that Cook’s trial agree to trial. We cannot early. array too jury traverse understanding jury of chal- that trial counsel’s agree can we
Nor attorneys of competence of demanded lenges range fell below “the (100 1708, Sullivan, 446 U. S. 344 Cuyler v. criminal cases.” (Cal. Hamm, P2d 690 Lucas 64 LE2d Cf. 1961). Moreover, that his chal- since has not demonstrated Cook event, he has failed to show lenges could have succeeded opinion. this prejudice. See Division (b) file one time only defense counsel reviewed the state’s That not ineffectiveness. prior to trial does establish (c) inadequate. Incon- Trial counsel’s cross-examination was highlighted, witnesses were sistencies in the of the state’s important most discredit some of the state’s sought and counsel witnesses.9 impeach two properly trial counsel failed to argues
Cook witnesses, cross-examination that state’s who admitted on their convictions probation. copies on Cook that certified argues 235 Ga. should have been introduced. See Rolland 582) (1976). However, has not shown that either of Cook misde- felony these two been convicted of a or of a witnesses had or, therefore, involving turpitude, moral that either of these meanor impeached successfully by the introduction witnesses could have been prior of such convictions.
(d) (a colostomy photograph bag) exhibit 2 of Menafee’s State’s inflammatory, nor was ground was not inadmissible on the that was inadmis- (cartridge gun) state’s exhibit 10 shells removed from Cook’s Therefore, custody. the failure sible for failure to establish a chain of deficient objections of trial counsel to make such does not establish attorney performance.
(e) opening trial counsel’s statement does not The shortness of show ineffective assistance.
(f) seriously his trial counsel underestimated the odds that Cook would of murder and sentenced to be convicted if had two adverse misjudgment die he went to trial and that (1) consequences: rejected the state’s offer of a life sentence be- only would be convicted cause he had been led to believe that he (2) prepare failed to for a voluntary manslaughter, and trial counsel belief possible sentencing phase of the trial because of his “imbedded cross-examination, example, admitted that he had been drink For Jackie Menafee ing night on cross-examination of the murder. Another state’s witness testified mouth,” reputation getting high running and that he had been Menafee had a “for injured on two recent occasions as a result. would return a manslaughter verdict.”
Early Cook, in his representation Gary approached the assis- attorney tant district possibility plea agreement. discuss the of a plea most agreement lenient a plea state would consider was assault, murder and both aggravated counts of for which the state willing would be to recommend a life for sentence the murder and 20 years, consecutively, to be served on each the aggravated assault charges.
Gary researched the plea effect such a and discovered that conviction, since Cook previous had a murder for which he had re- sentence, ceived a life years. he would not eligible parole for 25 (b). Thus, See OCGA already old, 42-9-39 years since eligible would not be for parole until he was 81. Gary They communicated this fact to Cook. discussed all the cir- case, shot, cumstances of the including Cook’s claim that the first least, defense, was fired self shooting had occurred on a *14 Saturday night house, at a everyone and, shot that had drinking, been significantly, that the state’s bad-character evidence would not come in until the phase sentencing Gary of the trial. “felt like it a good likelihood that would come back with a manslaughter ver- dict.” He testified that he was “if got aware that convicted [Cook] [of murder], going uphill be a lot trying more battle keep them him giving from penalty,” death and that “we knew it was a ... I gamble conveyed the offer and told him it was [state’s] his decision . . my life, . not . . . gambling decision be his [W]e’d . mine . . gamble. knew it was a We knew anything might that [W]e happen . . . very that thing happen worst that could would be jury] guilty would find him of murder and then decide to [the give him the . penalty, happen death . . that that could and that might happen.”
Clearly, understood, understood, or should have consequences refusing the state’s offer could be harsher than the consequences He accepting certainty it. rejected spending years the next 25 in prison for the of a We uncertainty jury trial. find Gary’s evaluation of the his case and advice to Cook fell “within range Strickland v. professionally judgments.” reasonable Washington, supra, 104 SC at 2071.
Moreover, it is Gary prepared clear from the record that for a possible sentencing phase of the preparations trial and that these begun were inwell advance of trial. preparations Whether these were adequate is question, next, another which we consider but we find no support Gary’s credible preparations Cook’s assertion that inadequate because of an “imbedded belief’ that there would be no sentencing phase.
(g) allegation Cook’s most serious trial counsel “failed failure to do and their evidence to the any mitigating to submit ” tactics.' justified as ‘trial so cannot trial, presented motion for new hearing At the on the claims, in who, could have testified of 17 witnesses attorneys. by Cook’s trial if been asked to do so mitigation children, friend and two included Cook’s wife These witnesses Marietta, mother from his former Cub Scout den in residing sisters, brothers-in-law, nieces and four two and four two LaGrange, nephews. children in case
Gary
talked to Cook’s wife and
testified that he
however,
testimony.
explained,
that he de-
he decided to use their
because he was
put up
mitigation
character witnesses
cided not
evidence that
it was
aggravating
aware that
the state had additional
evidence.
prepared
good-character
to offer
rebuttal
testimony of Franklin McGuire at
mo-
The state offered the
trial,
evidence it
example
aggravating
tion for new
as an
of additional
Buttram v.
McGuire has case, McGuire, all at a Cook’s arrest his brother and Cook were neighbor’s drinking. got argument house His brother into an pulled on him. gun Cook over an earlier incident which Cook had knife, Soon, pulled The brother and Cook left. the McGuires out — also, truck, pickup only way left in a out a narrow dirt road. McGuire, waiting by shotgun. Cook was the side of this road with stopped problem who was asked Cook what his was and driving, truck, through open Cook fired into the driver’s window. The shot passed in passenger-side front of McGuire and blew a hole pellets door. Several hit McGuire’s brother. Cook told the McGuires them, if he had not have killed them. Then he liked would told them to drive on. *15 (aside involving
There was another incident Cook’s wife from the trial) wife, brought one out at in which Cook thrown a bowl at his had her cutting on the head behind the ear. Cook’s wife and son were both cross-examined about incident on the motion for hearing at trial, they they as new would have been had testified at trial.
Mrs. Cook testified that she and Cook had mar- enjoyed good riage. She conceded that been in a few and ad- arguments had driver, being present Stevenson, mitted when the taxi had been shot in 1964. She further admitted that she had sworn out a warrant for 1981, stating Cook’s arrest and had filed an affidavit that Cook threw a bowl at her head cut her in the arm with a knife. She also and admitted that she sometimes took her children and left when Cook came home drunk.
His drinking, son Brian confirmed that when Cook had been just we would leave from He keep arguing.” testified “[s]ometimes upstairs that he was 1981, when Cook Mrs. Cook in attacked and that police noise, he had “just called the when he heard all to be safe.” over, mother, After the was fight he came downstairs and observed who bleeding was “a little bit on one of her ears.” niece, Marietta,
One who now lives in testified that if she had been called at trial she spare would have asked the Cook’s life she because knew him to anyone be innocent. He would not harm and “never cross-examination, however, showed a temper.” On she admit- ted that she had been not aware of the 1950 murder conviction or that Cook had been in the penitentiary years. for seven She also did not know that Cook’s wife had 1981, taken a on him in warrant that he had 1964, shot a taxi driver in or that he had shot Janie Durham in Lee
All family other members LaGrange. Although live grew up LaGrange, penitentiary he sent to in 1950, and moved to Marietta in soon after release. He has a resi- been dent of testimony Marietta ever since. It is apparent from the of these witnesses that their contact Cook has been rather for the limited 35 years. last
His mother, former Cub for example, Scout den testified that she has However, known Cook since he was born. she has never been Although Marietta. she was aware that Cook had been convicted murder in she was not he in any aware that had been involved shooting later incidents or that he had attacked his wife.
One his brothers-in-law testified that “kindly,” Cook was and “gentle person.” testified, “I have never him to known be vio- lent,” though even he was aware that Cook had been convicted However, murder in 1950. he was not aware Cook had assaulted his wife. He happened, testified that if longer he would no opinion entertain the that Cook a gentle person. sweet,
One of violent, Cook’s sisters as described Cook not being But, person” “too nice a die. except the 1950 murder trial, the crime on she many aware of the acts of violence Cook had committed.
Invariably, the nieces nephews did Cook had not know that committed murder in LaGrange and none of the knew relatives Stevenson, Durham, Cook had shot Milous Janie Lee and Frank McGuire, wife, or that he had attacked his acts that does not (whether deny even now he committed or not he intended resulted). injuries which that,
Gary if put up knew testify witnesses to to Cook’s good character, the state would not only add Frank McGuire’s aggravation try but would also prove example, other incidents. For pled nolo public contendere 1970 to an- cutting drunk *16 murder, according to other, threatening to in 1967 and was fined for Moreover, any char- sheet, Gary copy. had a FBI of which rap Cook’s their likely cross-examined to put up were to be acter witnesses he In incidents, them. ad- prior highlighting further of all the knowledge phase of dition, sentencing at the in his own behalf if Cook testified incidents, Gary was trial, explain to these he be asked would handle such cross-examina- would not be able to afraid that Cook very well. tion since unjustified, fears were these
Cook now these Moreover, admissible, convictions. prior incidents not absent were prior Gary for to the three incidents that objecting faults not admitted evidence. of the 1950 murder
Gary object strenuously did to the admission effort, which prevail, did but we cannot fault conviction. not upon. opin- Division 13 of this present improved counsel has not See contention, two incidents Contrary present ion. to Cook’s the other conviction, lim- lack nor was the state were not inadmissible for of statutory circumstances. See Division only ited to proving aggravating Gary’s we opinion. 15 of this Nor do find unreasonable evaluation At least possible consequences putting up character witnesses. to presented been aggravating some additional evidence could have kind, person. nonviolent gentle rebut that Cook was a State, supra.10 Buttram v. ev- duty present mitigating no to character
“Counsel has absolute (11th 1983). Stanley Zant, ‘Having Cir. idence. 697 F2d 961-62 may investigation, a sufficient counsel make a reasonable conducted possible strategic present to less than all available evidence judgment (11th v. Kemp, Mitchell 762 F2d mitigation.’ Id. 965.” 1985). scope investigation governed by Cir. reasonable- “[T]he ness standard.” Id. at 888. cli-
Gary’s
problem with character evidence was
biggest
ent
not
In
his-
good
did
have
character.
view Cook’s indisputable
tory
behavior,
Gary
failing
of violent
we cannot fault
to travel
with Cook
LaGrange
having
seek relatives
limited communication
testify
was a
years
willing
for the last 35
who would be
that Cook
kind,
good,
person,
presentation
nonviolent
when the
of such evidence
ag-
directly
presentation
would lead
of considerable additional
evidence,
evidence would be
gravating
aggravating
and when all of
fully agree
scope
view
need not
whether we
with the
of evi
We
decide
state’s
upon
pass
particular,
mere
of an
admissible in
In
we do
whether the
fact
dence
rebuttal.
aggravation,
we
otherwise. Nor need
determine
arrest would be admissible
rebuttal or
working of social secur
whether the state’s tenuous evidence that Cook had been
violation
security
possesses
reliability
ity
receiving
laws while
social
sufficient
indicia
benefits
Swenson,
Ashe
SC
its admission in
Gary accurately evaluated Cook’s best as coming chance at the guilt phase trial, when the bad-character evidence would not be jury admissible and the might either believe Cook’s claim of self de- fense, might at least find sufficient provocation to reduce the crime voluntary from murder to manslaughter. However, OCGA 16-5-2. began laying groundwork the possible for a sentencing phase during dire, when, the voir among things, other pro- the course of asking spective jurors whether they family, Gary knew Cook or his managed to inform panel each that Cook’s wife had been at working Tip-Top Poultry years for 17 aas USDA chicken his inspector, daughter that years DCASR, had worked for three agency, a federal and that son was a student at High family North Cobb School. Cook’s sat immediately behind Cook throughout support the trial of show for him.
Thus, family without the exposing potentially damaging to cross- examination, Gary managed convey to jury that Cook had a wife and children who cared for him.
Gary thoroughly interviewed Milous Stevenson and Janie result, Lee Gary Durham. As a was aware neither of wit- the two put nesses the state inup aggravation intended to wanted see Hence, get penalty. Gary the death Stevenson, was able to elicit from on cross-examination, testimony accident, shooting an chair, Stevenson did go not want Cook to to the electric that he it, felt “awful” about appreciate jury that he would giving Likewise, a life sentence. Ms. Durham testified cross-exami- nation shooting that she believed that her incident was accident get penalty, and that she did want to see Cook the death either. Thus, opening potentially damaging without door to rebuttal testimony, Gary conveyed to the jury aggravat- that all the state’s ing mercy. witnesses Cook to wanted receive Gary
Although put did not sentencing Cook on the stand at the trial, phase of at guilt Cook was last witness who testified phase Thus, exposing the trial. without cross- Cook to harmful past character, examination about his Gary by “humanized” Cook testimony.” ... person as “real jury him the presenting the trial was suffi- guilt phase Moreover, Cook’s potentially mitigating have been present might whatever cient well, ground- offense, and, laid the the circumstances about on “whimsical argument sentencing-phase later Gary’s work for (Unit B, Balkcom, former F2d 580-581 Smith doubt.” See 1981).11 5th Cir. doubt, reminding Gary argued whimsical closing argument,
In his pieces testimony, “missing in the jury of the inconsistencies happened “what out questions as to puzzle,” and the unanswered product was a why happened.” argued He that Cook there and pointed out that Cook’s script” poor background. his “life and his jury good what if and asked family would suffer he were executed not a deter- argued penalty death come it. He that the would from as a He told the begets that “violence violence.” rent and conviction, get he would never out prior result of Cook’s murder asked, you when know he “[W]hy James to death prison and sentence the state’s get He reminded the going ain’t never out?” executed, and to see Cook aggravation witnesses in did not want two *18 to unanimous its verdict had be he further reminded the that about whether Cook juror any if even doubts argued that one spend the of sentence, “entitled to rest a then he was deserved death prison.” life scrutiny performance highly must be defer- “Judicial of counsel’s second-guess counsel’s all to to tempting ential. It is too a defendant sentence, easy and it is all too after conviction or adverse assistance court, proved it has unsuccess- examining for a defense after counsel’s ful, to act or omission of counsel was un- particular conclude that attorney performance requires A fair reasonable. assessment [Cit.] every distorting to eliminate effects of hind- that effort be made challenged con- sight, the circumstances of counsel’s to reconstruct duct, perspective from counsel’s at the evaluate the conduct evaluation, making time. Because of the difficulties inherent presumption conduct falls indulge strong court must counsel’s guilt beyond jurors “The fact determined a reasonable doubt does not neces have may sarily be no reasonable juror There mean no entertained doubt whatsoever. — — genuine may upon yet exists. It reflect a doubt doubt based reason some doubt possibility; may whimsy juror it Yet mere — be but the of one or several. this whimsical doubt — certainty this absence of can be real. absolute capital abundantly may guilt “The be neither ob- defendant whose seems demonstrated futility vigorous structing justice engaged when counsel mounts a nor in an exercise success; may hope proffered slight unanticipated in the defense on the merits. It be conviction; likely might persuade prevent unanimity more seek to one or it is more defendant, produce only juror doubt. Even the latter for the entertain- whimsical serves expected ing doubt which not rise doubt to resist those who would does to reasonable can impose penalty the irremedial of death.” within the range assistance; wide professional is, of reasonable the defendant must that, overcome the presumption under the cir- cumstances, the challenged ‘might action be considered sound trial strategy.’ ways There are provide countless [Cit.] effective assis- tance in any given Even case. the best criminal defense attorneys would not defend particular client way. Goodpaster, same Life; The Trial for Effective Assistance Penalty Counsel Death Cases, (1983).” 58 N.Y.U. L. Rev. Washington, Strickland v. supra, 104 SC at 2065-2066.
Cook has failed to overcome “strong presumption” that performance of his trial attorneys at the sentencing phase of the trial fell within “the range wide professional reasonable assistance.” Ibid.
(h) From all of the foregoing, we conclude that Cook was not de- nied effective assistance counsel.
Sentence Review 18. We already have determined that the evidence supports the jury’s statutory finding aggravating circumstances. See Division opinion. of this We find that the sentence of death imposed was not as the passion, result of prejudice, factor, arbitrary or other and we find that Cook’s death sentence is dispropor- neither excessive nor tionate penalties imposed cases, taking into similar considera- tion both the (c). crime and the OCGA defendant. 17-10-35 We affirm. therefore Judgment concur, All the J., Justices except Gregory, affirmed.
who specially concurs Weltner, J., as to Division concurs who specially as to Division 11. Justice, concurring specially.
Gregory, While I concur in majority opinion, I do agree majority’s conclusion custody the chain of of the bullet found at *19 the crime properly proved. However, scene was 4, supra. Division in light of the fact that the shooting victim, defendant admits any proof failure in regarding the chain of custody of the is harm- bullet less error. Justice, concurring specially.
Weltner, I concur in judgment affirmance, I disagree with the approach followed in Division 11. my
In opinion, by statutory this issue should be governed re- (a) quirements (1), require OCGA 15-12-40 which § panels fairly representative be “a the intelligent cross-section of and upright county. citizens ...”
The simple value of this rule is that it to apply, is and demands a 588 — questions such as chimerical of often independent result
proper array Hence, of the tested legality motive, design, pattern. composition pool composition comparing by county. participation of black case, to the disparity relative
In this
requirement
5%,
panel clearly meets
is less than
citizens
case,
to consider all of
no need
there is
being
That
of the statute.
majority opinion.
11 of the
in Division
the other matters treated
1,
1986.
7,
April
1986
denied
Reconsideration
Decided
March
Hirons,
appellant.
R.
for
Allen
J,
Bernes,
H.
Assis-
Charron,
Attorney, Debra
District
Thomas
General, Susan
Bowers, Attorney
J.
Attorney, Michael
District
tant
General,
appellee.
for
Attorney
Boleyn,
V.
Assistant
Appendix.
475) (1985);
v.
(327
Mincey
State,
149
SE2d
v.
254 Ga.
Walker
882)
State, 250
(304
(1983); Castell v.
Ga.
State,
(340 SE2d Justice. Clarke, Davis, Jr., Elbert George Bernard was convicted He was robbery and murder of Richard Rice. County for the armed appeal, direct The case is here on sentenced death for the murder. Procedure, seq., A-13 et Appeal 252 Ga. for review under Unified required by OCGA 17-10-35.1 the automatic sentence review
Facts victim, Rice, Garage County. The owned Rice’s Elbert Richard 13, 1984, Rice’s February person called Shortly before noon on the trash stating green was located at grandson Chevrolet February for new trial death 1985. filed a motion Davis sentenced to May appeal raising general grounds A was denied 29. notice on March 7. motion July arguments duly 1985. Oral filed the case was docketed the court heard October