DAVIS v. THE STATE
32619
Supreme Court of Georgia
February 21, 1978
240 Ga. 763
Wе first consider whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor.
The court‘s sentencing instructions failed to make clear to the jury that they could recommend a life sentence even if they found the existence of a statutory aggravating circumstance (Fleming v. State, 240 Ga. 142 (7) (240 SE2d 37) (1977)), and failed to inform the jury that they were authorized to consider mitigating circumstances in contravention of requirements laid down in
Judgment affirmed as to the convictions; reversed as to the death sentence for murder. All the Justices concur, except Jordan, J., who dissents from the reversal of the deаth sentence.
ARGUED SEPTEMBER 19, 1977 — DECIDED FEBRUARY 21, 1978.
A. Vernon Belcher, for appellant.
William F. Lee, Jr., District Attorney, Arthur K. Bolton, Attorney General, John W. Dunsmore, Jr., Assistant Attorney General, for appellee.
JORDAN, Justice, dissenting.
I dissent to the reversal of the death penalty for the reasons set forth in my dissent in Redd v. State, 240 Ga. 753 (1978).
HILL, Justice.
This is a death case. Defendant Freddie Davis was convicted by jury in Meriwether County of murder and
This case is a companion case to Spraggins v. State, 240 Ga. 759 (1978), and although the trials were separate, the state‘s evidence was substantially identical as to material particulars and hence the basic facts are reported in the Spraggins opinion. Suffice it to say here that the victim‘s semi-nude, mutilatеd body was found in her bedroom.
At this trial, defendant Davis testified that he waited outside the victim‘s house for 20 or 30 minutes while Eddie Spraggins was inside, and that he (Davis) was afraid of Spraggins. The defendant admitted furnishing his knife to Spraggins and admitting throwing the knife away the next day. Evidence for the state had shown that when first interviewed by law enforcement officers, Davis had said he and Spraggins were together on the night of the murder, but at that interview he did not admit having knowledge regarding the murder. His second statement to officers was consistent with his trial testimony. In his third statement he admitted participating in the murder. Blood of Davis’ type as well as of the victim‘s and Spraggins’ was found in the bedroom.
The defendant urges seven enumerations of error.
1. The defеndant argues that the trial court erred in allowing retained counsel only four days after arraignment to file defensive motions, and erred in denying the defendant‘s motiоn for continuance or postponement.
The defendant was arrested on February 3, 1977, and counsel was appointed for him that day. Defendant informed аppointed counsel that he would retain counsel. Counsel was not retained, however, until February 23. At arraignment on February 25, counsel was allowed four days to file defensive motions. Trial commenced March 3, 1977, after Spraggins’ trial.
The defendant did not point out to the trial court any defensive motion he would have made but was unable to make because of the four-day time limit. He does not urge that on the fourth day he moved for more time to file defensive motions. No abuse of discretion has been shown as to the requirement that defensive motions be filed
Insofar as the motion for continuance is concerned, defendant sеeks to urge on appeal that more time was needed for his counsel to study the subject of blood testing and typing, to study the autopsy report, to preрare to defend against the rape charge, and to prepare requests for charge. None of these topics was mentioned in defendant‘s mоtion for continuance. When the motion was argued, however, after the Spraggins trial, several of them were urged as grounds for continuance. However, no showing was made on motion for new trial or on appeal as to how additional time would have benefited defendant or how the lack of time harmed him. Defendant does contend here that the evidence as to rape was circumstantial. At trial defense counsel told the jury that the state‘s evidence showed that there probably was a rape. In sum, no abuse of discretion has been demonstrated in the denial of the motion for continuance. Smith v. State, 235 Ga. 620, 621 (221 SE2d 41) (1975); Pulliam v. State, 236 Ga. 460, 462 (224 SE2d 8) (1976); Dobbs v. State, 236 Ga. 427 (224 SE2d 3) (1976).
2. The courthоuse in Meriwether County was destroyed by fire about a year before the defendant‘s trial, which was held in a gymnasium. Defendant alleges that the trial court erred in denying his motion to remove trial to a proper courtroom. He urges that a death penalty case should not be conducted in undignified surroundings, with the judge sitting beneath a basketball net and spectators in the bleachers.
Although the acoustics inside were poor and the road outside was noisy, there is no showing that the trial itself was conducted in a manner not befitting a judicial body. We find nо error here.
4. The defendant asserts that the trial court erred in allowing the state, over defendant‘s objection, to present additional evidence during a Jackson-Denno hearing after the state announced it “rested.” This, like many other matters relating to the conduct of the trial, is a matter which addrеsses itself to the discretion of the trial judge and we find no abuse of discretion here. Hobbs v. State, 229 Ga. 556 (4) (192 SE2d 903) (1972). See also Pierce v. State, 238 Ga. 126, 129 (231 SE2d 744) (1977), where we directed the trial court to reopen a Jackson-Denno hearing pending appeal.
5. The defendant made three statements to law enforcement officers. He was released after the first two statements and was not arrested until before the third statement. Shortly before making the third statement the defendant showed the officers where he had thrown the knife.
The defendant argues that his third statement was inadmissible because he was not told why he was under arrest at the time of making that statement. The defendant and the victim lived in the same neighborhood. His second statement and the investigation as to the location of the knife show that he knew he was under investigation for Miss Coe‘s murder at the time of his аrrest and third statement. We find no error here. Collins v. Brierly, 492 F2d 735, 738 (3d Cir. 1974), cert. den. 419 U. S. 877.
6. The defendant urges that the trial court erred in overruling his objections to photographs taken at the scene оf the crime depicting the victim‘s wounds. Such
7. Sentence review. The instructions to the jury during the sentencing phase of the trial were virtually identical to the jury instructions in Spraggins v. State, supra. For the reasons stated there, namely that the charge failed to comply with Fleming v. State, 240 Ga. 142 (240 SE2d 37) (1977), and Hawes v. State, 240 Ga. 327 (1977), we conclude that the jury was not adequately instructed regarding the imposition of the death sentence. Hence the penalty of death in this case must be vacated and a new sentencing trial allowed.
Judgment affirmed as to cоnvictions; reversed as to the death sentence. All the Justices concur, except Jordan, J., who dissents from the reversal of the death sentence.
ARGUED SEPTEMBER 19, 1977 — DECIDED FEBRUARY 21, 1978.
Schumacher, Collins & Oates, Ted A. Schumacher, for appellant.
William F. Lеe, District Attorney, Arthur K. Bolton, Attorney General, John W. Dunsmore, Jr., Assistant Attorney General, for appellee.
JORDAN, Justice, dissenting.
I dissent to the reversal of the death penalty for the reasons set forth in my dissent in Redd v. State, 240 Ga. 753 (1978).