This is a death case. On the morning of January 17, 1979, Sergeant Burnis Campbell and Deputy Kenny King of the Cobb County Sheriffs Department transported four Cobb County jail inmates, one of whom was Raymond Lee Franklin, to Dr. Daniel Busch’s dental office for treatment. The inmates were secured together by means of a chain; each inmate had one wrist cuffed. Franklin was the second inmate sent into the dentist’s treatment room; when he returned, Deputy King released another inmate and while Sergeant Campbell escorted that inmate to the treatment room, Franklin, who had not yet been secured by the chain, seized Deputy King’s pistol. At Franklin’s direction, the other two inmаtes seized Deputy King’s key and released themselves, and then took King’s and Campbell’s wallets and Campbell’s pistol. At one point, Franklin commented that he was in for life and had nothing to lose.
Franklin obtained Dr. Busch’s car keys and forced Dr. Busch’s assistant, Carol Heitmuller, to leave with him. Franklin, Ms. Heitmuller, and two of the other inmates
Mrs. Collie was in the bedroom when she heard a shot. She returned to the living room where she saw her husband collapse after saying, "I’ve been shot.” She heard a second shot and called out to her daughter Gladys. Gladys Collie came into the living room and saw her father lying on the floor; she loоked outside, saw Franklin by her car near the porch and shouted that he had killed her father. Franklin returned to the house, pointed the gun at Gladys’s head and cocked the hammer. Both mother and daughter ran into other rooms. Franklin found Mrs. Collie and, placing the gun to her head, asked for the car keys. She ran out of the house. Franklin then left on foot and hid during the day.
That evening, after unsuccessfully attempting to get into a car being driven by a woman outside a Wendy’s restaurant, he was seen running down the Canton Highway by two customers at Wendy’s. He was arrested shortly after 8 p.m. that night behind a shoe store. The pistol he had taken from Deputy King was found several fеet from where he was captured. It had two spent shells. Ballistic comparisons showed it was the gun which killed
1. Franklin filed timely challenges to the composition of the grand jury in Cobb County and the petit jury in Bibb County, alleging that each was selected in violation of Code Ann. § 59-112. 2 After hearing evidence, the trial court ruled against him; in his first two enumerations of error he appeals those rulings. His complaint is founded not on the Consititution but on alleged violations of the statute. 3
Code Ann. § 59-112 provides: "(a) The following persons are exempt from all jury duty, civil or criminal; the name of any such person shall not be included or continued in the jury box unless such person shall make a request therefor in writing to the board of jury commissioners or its clerk:
"1. Police and other law enforcement officers employed or appointed on a full-time basis, but not part-time or honorary peace officers.
"2. Officers and personnel of any court employed or appointed on a full-time basis, including attorneys at law...
"3. Officers, firemen and other personnel of any fire department employed or appointed on a full-time basis...
"4. Physicians, surgeons, medical interns, and medical technicians actively engaged as such. . .
"5. Dentists and pharmacists, duly licensed, who are actively engaged in the practice of their profession.
"(b) Any other person who shows that he will be engaged during his term of required service in work necessary to the public health, safety, or good order, or that she is a housewife with children 14 years of age or younger may be excused by the judge of the court to which he has been summoned or by some other person who has been duly appointed by order of the chief judge to excuse jurors. Such a person may exercise such authority only after the establishment by court order of guidelines governing such excuses. Any such order of appointment shall provide that, except for permanently mentally or physically disabled persons, all excuses shall be deferred to a date and time certain within that term or the next succeeding term or shall be deferred as set forth in the court order. . .
"(d) Any teacher or principal of this State who does not desire to serve upon juries shall notify the jury commissionеrs of the county in which he or she resides in writing to that effect, and thereupon the jury commissioners shall not place the name of such teacher or principal in the jury box for said county.
"(e) Any person who is 65 years of age or older who does desire to serve upon juries shall notify the jury commissioners of the county in which such person resides in writing to that effect, and thereupon the jury commissioners shall place the name of such , person in the jury box for said county.” (Emphasis supplied.)
In support of his motion challenging the Cobb County Grand Jury, Franklin called as a witness the Clerk of the Superior Court of the Cobb Judicial Circuit, who also servеd as the clerk of the jury commissioners and as acting court administrator. He testified that the grand jury list was compiled by random selection from the 1977 list of registered voters. A computer selects 1,000 names (the "ready list”) and prints a notice which is sent to each individual advising them that they will be receiving a summons for jury service within the next ninety days.
4
In regard to the challenge to the array of petit jurors in Bibb County, the parties stiрulated certain facts obtained from the Clerk of the Bibb Superior Court, and the stipulations were amplified by the testimony of the clerk. The evidence showed that every other voter on the most recently revised voters’ list is sent a jury questionnaire on a computer card; the reverse of the card recites the statutory exemptions. When the voters send the cards back, the jury commissioners and the clerk of the court pass on claimed exemptions. Summons are then sent to those not exempted at that stage. Excuses transmitted by telephone are handled by the clerk or, on rare occasions, by the deputy сlerk. The only non-statutory excuse mentioned in the evidence is the clerk’s statement that individuals who had paid non-refundable deposits on vacations would be allowed to postpone jury duty. In reference to this and other non-permanent excuses, the clerk testified that the names of such individuals were
Franklin argues that the practices outlined violate Code Ann. § 59-112, supra, because in neither county is there a written order establishing guidelines and appointing someone to implement them, and because non-statutory excuses are allowed. He also argues that the counties must investigate alleged exemptions and excuses to ascertain their validity.
The answer to these contentions is found in
Hulsey v. State,
Franklin also argues that the county’s practice of excusing some jurors who are not entitled to be excused by Code Ann. § 59-112 (b) violates the statute. There is no evidence that such exemptions or deferrals were allowed in such a manner as to alter, deliberately or inadvertently, the representative nature of the lists.
6
We decline to hold, as Franklin suggests, that any excuse which does not comply with Code Ann. § 59-112 vitiates the array. "That the excuses accepted for delaying service may not have been authorized or enumerated in the Cоde, is not important.”
Jones v. State,
2. In Franklin’s third enumeration of error, he complains that the trial court erred in failing to exclude a venireman for bias and prejudice. It should be recalled that this criminal episode began when Franklin escaped from custody while at a dentist’s office. During voir dire, Franklin’s attorney asked several jurors if they would be prejudiced against the defendant because the evidence would show he had been in custody on other charges. They answerеd in the negative. When Charles Pritchett was called and asked if he had any bias or prejudice for or against the defendant he answered, "Yes, sir. I have some prejudice since I have heard his attorney say he had been
We find no error. The fact that Franklin had been in custody in Cobb County, which thе prospective juror stated he could not "put out of his mind,” was introduced at the voir dire by Franklin’s attorney and was, in this case, admissible evidence. Pritchett candidly admitted this evidence would tend to influence him; presumably all evidence influences the jurors to some degree. We find no reversible error by the trial court in refusing to strike Pritchett for cause under the circumstances of this case.
Patterson v. State,
3. Franklin’s fourth enumeration is that the trial court erred in allowing repetitive photographs of the victim into evidence when the cause of his death was not in doubt. The state introduced six photographs of the victim; five depicted his body as it lay after the shooting; the sixth was taken when the body of the victim, still fully dressed, had been laid flat. The photographs showed that the victim of the shooting had had his pockets emptied. This fact was corroborated by the defendant’s statement. The photographs are accurate and correct representations of material facts and the trial court did not err in allowing them into evidence.
Bowden v. State,
4. Franklin’s fifth enumeration is that the trial court erred in allowing his confession into evidence when the state failed to show that at the time the confession was given, the appellant was not intoxicated on drugs. Evidence heard by the court pursuаnt to Jackson v. Denno,
5. Franklin’s sixth enumeration is that the trial court erred in ruling that the notice of prior convictions to be used by the state in the sentence phase was timely and sufficient. Trial began Monday, April 23,1979. The state delivered a letter to Franklin’s counsel on the afternoon of Friday, April 20,1979, which read in relevant part: "[W]e will be using prior convictions against Raymond Franklin in the sentencing phase. These are a plea of guilty in 1974 in Fulton County for criminal attempt to commit robbery, case A-24286, and a plea of guilty in Douglas County for burglary in July 1977, case CR 77-849. We will serve you with formal notice Monday morning.” On Monday morning the state introduced into the record formal written notice of its intention to use these convictions, and a certified copy of each.
Franklin’s argument that the notice received April 20 was unclear is without merit. Bowden
v. Zant, 244
Ga. 260 (1979);
Potts v. State,
6. Franklin’s seventh enumeration of error is that the trial court erred in admitting during the sentencing phase evidence of alleged prior armed robberies and aggravated assault, details of which were far in excess of what was necessary to show confinement, and which prejudiced the defendant. He argues that, because he stipulated "lawful custody,” the trial court should have sustained his objection to a detective’s testimony which outlined the incidents for which he had been arrested. The state argues that a showing that the defendant was in "lawful custody” was relevant and material because the state was relying on Code Ann. § 27-2534.1(9) as an aggravating circumstance: i.e., that "the offense of murder was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement.” Because Franklin was awaiting trial when he escaped, he had not been convicted of the offensés under which he was being held. The trial court accordingly gave limiting instructions, explaining that the evidence could only be considered on thе question of lawful custody.
The trial court did not err in admitting the testimony. Relevant evidence cannot be kept from the jury by an admission of the fact or waiver of the requirement of proof.
Clayton v. Brown,
In approving Georgia’s capital-sentencing procedures, the U. S. Supreme Court in Gregg v. Georgia,
In Lockett v. Ohio,
In the case before us the excluded testimony did not relate to the defendant’s character, his prior record, or the circumstances of his offense. In excluding the testimony of these three witnesses, the trial court remarked that he thought the testimony addressed itself to the state legislature. We concur. Such testimony would be pertinent to the issue of the constitutionality of the death penalty. It is not, however, admissible in the sentencing phase as evidence in mitigation. 9
8. Franklin’s ninth enumeration is that the trial court erred in its charge to the jury on the rebuttable presumption of intent and on accident. The charge complained of reads in relevant part:
"A crime is a violation of a statute of this State inwhich there shall be a union of joint operation оf act or omission to act, and intention or criminal negligence. A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking or intention or criminal negligence. The acts of a person of sound mind and discretion are presumed to be the product of the person’s will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted. A person will not be presumed to act with criminal intention but the trier of facts, that is, the Jury, may find criminal intention upon a consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted . . .
"I charge you that a person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking or intention or criminal negligence. An accident, in the eyes of the criminal law, is an event that takes place without one’s foresight or expectation; that which takes place or begins to exist without design . . .
"I charge you on accident. The law of Georgia is that a person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking or intention or criminal negligence. An accident is an event that takes place without one’s foresight or expectations; that which takes place or begins to exist without design.” 10
Franklin relies on Sandstrom v. Montana, — U. S. — (99 SC 2450, 61 LE2d 39) (1979). Sandstrom involved a charge that ".. .'[t]he law presumes that a person intends
Franklin also contends that the charge on accident violates Sandstrom because it states "a person shall not be found guilty ... where it satisfactorily appears there was no criminal scheme or undertaking or intention . . .” He argues that the failure to specify what quantum of evidence is meant by "satisfactorily” renders the charge fatally defective. He urges that the jury may have understood that the burden was upon him to make it satisfactorily appear that there was no criminal intent. Reading the charge as a whole, we find no error. See footnotes 10 and 11. The jury could only have understood, correctly, that Franklin could nоt be convicted if the state failed to prove criminal intent beyond a reasonable doubt.
9. Franklin’s tenth and final enumeration of error is that the trial court’s charge on malice was unconstitutional. The charge included the following: "A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation аppears and where all
We do not agree with Franklin’s conclusion that the charge is constitutionally impermissible. This charge on implied malice is definitional; i.e., it is in effect a statement that one definition of malice murder is an "implied malice murder” which is murder committed where no considerable provocation appears and where all
10.
Sentence Review.
The defendant moved for and was granted a change of venue, from Cobb to Bibb County. We find the sentence of death was not imposed under the influence of passion, prejudice or any other arbitrary factor. Code Ann. § 27-2537 (c) (1). We have reviewed the trial court’s charge in the sentencing trial and find that it complies with
Fleming v. State,
We find that the evidence supports the jury’s findings of the two aggravating circumstances beyond a reasonable doubt, (1) that the murder was committed while the offender was engaged in the commission of another capital fеlony, the armed robbery of the victim; and (2) that the murder was committed by a person who had escaped from the lawful custody of a police officer. Code Ann. § 27-2537 (0 (2).
In reviewing the death penalty in this case, we have considered the cases appealed to this court since January 1,1970, in which death or life sentences were imposed, and we find that the similar cases listed in the appendix support the affirmance of the death penalty in this case. Although in some of the cases where the defendant was attempting to escape the victim was a law enforcement officer, in others the victim was not. The sentence of death imposed upon Raymond Lee Franklin is not disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Code Ann. §
Judgment affirmed.
Appendix.
Legare v. State,
Notes
After his arrest Franklin made a statement which was presented to the jury in which he said the gun "went off’ when Collie slammed the door and then "went off’ again. He said he did not mean to fire it; in fact, he said that when he heard the second shot he thought someone was shooting at him.
After his indictment by the Cobb County Grand Jury, Franklin moved for a change of venue. The state consented, and venue was changed to Bibb County.
In Taylor v. Louisiana,
As summons are issued, the "ready list” is sup
There was testimony that one juror allegedly was excused by the district attorney. By nothing said herein does this court approve such practice.
Cf.
Barrow v. State,
The Sixth Amendment right to counsel in state criminal cases was establishеd in Gideon v. Wainwright,
Franklin also argues that even if the detective’s testimony was admissible, the prosecutor used the details of these prior arrests in his closing argument not just to show custody but to inflame the jury. The portions of the
If the rule were otherwise, presumably the state could introduce general evidence in support of the imposition of the death penalty.
The court also correctly charged on reasonable doubt, the presumption of innocence and that: "[T]he burden is upon the State to prove to a reasonable and moral certainty and beyond a reasonable doubt every material allegation in each count of this indictment and I charge you further, that there is no burden on the defendant to prove anything. The burden is on the State.”
The court also charged as follows:"... [I]t is for you, the members of the Jury to say after a consideration of all the facts and circumstances in the case, whether or not malice, express or implied, exists in the case.” And the court charged: "Now, members of the Jury, I charge you that if you believe beyond a reasonable doubt that Raymond Lee Franklin, in Cobb County, at any time prior to the return of this indictment, with a weapon or instrumentality named in the indictment, and with malice aforethought, either express or implied, did unlawfully and intentionally shoot and kill the dеceased, Claude Collie, as charged in the indictment, and you believe the weapon or instrumentality used in the manner used, if one was used, was one likely to produce death, then you would be authorized and it would be your duty to convict the defendant of the offense of murder and in that event, the form of your verdict would be, 'As to Count II, we, the Jury, find the defendant guilty.’ ” "Members of the Jury, if, from a consideration of the evidence or from a lack of evidence, you are not satisfied beyond a reasonable doubt and to a reasonable and moral certainty that the State has established the guilt of the defendant of the offense charged in Count I or Count II, or both, of this indictment, then it would be your duty to acquit him as to such count and the form of that verdict would be, 'As to Count I, we find the defendant not guilty.’ 'As to Count II, we find the defendant not guilty.’ ”