Lead Opinion
This is а death case. Defendant Johnny Lee Gates was convicted by jury of the rape, armed robbery, and murder of a young woman in Columbus. The jury found three statutory aggravating circumstances and imposed the death penalty. The trial court sentenced defendant to death for the crime of murder, and to 20 years consecutively for the crimes of armed robbery and rape.
There was evidence from which the jury was authorized to find the following: Prior to being assigned to Fort Benning, the victim’s husband had been stationed in Germany where he met and married the 19-year-old victim. On November 30,1976, the couple had been in the United States about a month and had been in their apartment in Columbus about ten days. The husband left for work at the fort about 6 a.m. on that date. Shortly after noon, the defendant knocked on the door of the apartment, posing as a gas employee. The victim allowed him to enter, apparently thinking he had been sent in response to her request that the gas heater be repaired.
Once inside, defendant was given a can of oil and shown to the heater in а closet. After beginning to oil a fan, defendant walked to the bathroom where the victim was and told her of his intent to rob her. He then raped her and forced her at gunpoint to give him $300 hidden under her mattress in the bedroom, and $180 hidden in a tape player in the living room. Before leaving, the defendant took the victim back into the bedroom, where he gagged her and blindfolded her with her husband’s army ties and tied her hands behind her back with the belt to her bathrobe. He then shot her in her right temple, causing her death.
After his arrest on January 31, 1977, on unrelated crimes defendant was questioned by police concerning the above crimes of murder, armed robbery and rape. Defendant confessed to the crimes of murder and armed robbery, but stated that the victim had voluntarily engaged in sexual intercourse with him. Subsequently, the defendant’s fingerprint was found on the heater. A neighbor of the victim identified the defendant as having
Defendant enumerates one error in the guilt/ innocence phase of his trial and six errоrs in the sentencing phase, which alleged errors we will consider in connection with our death sentence review.
1. Defendant enumerates error in the guilt/ innocence phase of his trial in the admission into evidence of his written and videotaped confessions on the grounds that they were not knowingly, intelligently and voluntarily made. Although this is the first videotaped confession to be considered by this court, the standards by which confessions are reviewed are well known. Miranda v. Arizona,
Accordingly, prior to submitting defendant’s written and videotaped confessions to the jury in the instant case, the trial court conducted a Jackson v. Denno hearing. Jackson v. Denno,
One of the officers also testified that defendant
The defendant testified at the Jackson-Denno hearing that he had asked for a lawyer prior to confessing, that he was told it would take several days and he didn’t need one, and that thereafter he had been afraid to ask again. He further testified that the detectives told him that if he confessed they would make sure that his most severe punishment would not exceed a life sentence. Defendant also said that he had not understood at the time the significance of the waiver he had signed, even after reading it aloud, and that after he had signed it he thought he had no choice but to confess on video tape at the scene of the crime.
At the close of the hearing, the trial court made a finding that any statements made by defendant including oral and written confessions "... were made freely and voluntarily. . . without the remotest fear of injury, without any promise or hope of benefit or reward, and after having his constitutional rights explаined to him, that he had the right to remain silent, that anything he said could be used against him in a court of law, that he had the right to have an attorney to confer with and confer with an attorney prior to making any statement and during the making of the statement, and that if he could not afford an attorney that one would be furnished to him by the state free of charge, that he understood these constitutional rights that were explained to him and that he voluntarily, intelligently — and intelligently waived
The test for admissibility of custodial confessions was established in Miranda v. Arizona, supra,
Defendant asserts that in deciding to admit the confessions the trial court failed to consider the age and educational level of defendant, that he failed to consider the fact that the police had prior knowledge of defendant’s age and educational level, and that he failed to consider that those factors made it impossible for the defendant knowingly to understand the drastic impact a televised confession at the scene of the crime would have on a jury. The gist of this argument simply is that giving a videotaped confession at the scene of the murder was an unwise decision and hence was not an intelligent thing to do. The mere fact that the defendant was twenty-one years old with a sixth grade education does not lead to the conclusion thаt he was incapable of knowingly, voluntarily, and intelligently waiving his consitutional rights. See Goodwin v. State,
Unless clearly erroneous, a trial court’s findings as to
Defendant asserts that the admission of the video tape recording was harmful error in that it was unnecessary, served ás an extra witness against him, and by its nature made a forceful impression on the minds of the jury, overshadowing all other evidence in the case. Defendant did not raise objections on these grounds at the trial. Nevertheless, this being a death case, we will address this argument on its merits, both as it relates to the admissibility of the video tape recording at the trial-in-chief and later as to its possible prejudicial effect on the jury during the sentencing phase of the trial.
The Court of Appeals has held that posed movies which are substantially different from the facts of a case, and which because of the differences might be prejudicial and misleading to a jury, should not be used at trial. Eiland v. State,
In Hendricks v. Swenson, 456 F2d 503, 506, (8th Cir. 1972), the court approved the use of a videotaped confession, saying: ". . . [W]e suggest that a video tape is protection for the accused. If he is hesitant, uncertain, or faltering, such facts will appear. If he has been worn out by interrogation, physically abused, or in other respects is acting involuntarily, the tape will corroborate him in ways a typewritten statement would not. Instead of denying а defendant his rights, we believe it is a modem technique to protect a defendant’s rights.” We find no reversible error based on defendant’s assertions that a videotaped confession is both unnecessary and by its nature makes a more forceful impression on the minds of the jury.
We do not find any error in the admission of defendant’s written or videotaped confessions, a rational trier of fact could have found the defendant guilty of murder, armed robbery and rape beyond a reasonable doubt, and his convictions therefore will be affirmed.
2. Sentence review. Although defendant does not specifically allege that the videotaped confession contributed to the imposition of the death sentence, Code Ann. § 27-2537 requires this court to determine "whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor.” We must determine whether the video tape recording could have so prejudiced the jury that they were influenced into sentencing the defendant to death. Prevatte v. State,
The defendant was shown on the video tapе recording handcuffed at the scene of the crime confessing to the murder'" and armed robbery. Absent justifying circumstances, the defendant normally should not be seen by the jury handcuffed in the courtroom or courthouse. However, where one or more jurors by chance see the defendant in handcuffs outside the courtroom, it is not error to deny a motion for mistrial. Morris v. State,
Moreover, the video tape recording shows the defendant as being nonaggressive and nonbelligerent. The part of the videotaped confession in which defendant was seen handcuffed was only a brief part of the tape and thе tape was only a brief part of the trial. The jury had the opportunity to observe the defendant at trial. We find under the facts and circumstances of this case that the fact that the defendant was briefly shown in handcuffs on a video tape recording did not create passion, prejudice or other arbitrary factor such as would influence the jury to impose the penalty of death. We find further that the use of the videotaped confession given at the scene of the crime did not create such passion, prejudice or other arbitrary factor as is prohibited by the statute. In this later connection perhaps we should note that the victim’s body had been removed and the apartment vacated.
Specifically, defendant asserts that the jury pool was adversely affected by publicity surrounding another murder which took place six weeks рrior to defendant’s trial and the publicity surrounding his own trial. Additionally, he enumerates as highly prejudicial the sentencing argument of the prosecutor.
As to the jury pool, defendant was tried seven months after his arrest. Six weeks prior to his trial another murder occurred, causing much publicity. See Brooks v. State,
In light of the possibility of prejudice, the trial court granted extensive individual voir dire of prospective jurors outside the presence of the others. He granted each of defendant’s motions to strike jurors for cause, leaving a panel of 50 prospective jurors. Some prospective jurors admitted to a vague knowledge of the crimes, but none could recall details and each specifically stated an ability to weigh the evidеnce impartially. Irvin v. Dowd,
The sixth amendment to the U. S. Constitution and
We find no merit in defendant’s contention that the arguments of the prosecutor during the sentencing phase of the trial influenced the jury to impose the death sentence through passion and prejudice as those terms are used in the statute. The prosecutor may argue for the death penalty and offer plausible reasons for his position. Chenault v. State, supra,
4. Defendant contends that the court erred in admitting into evidence over objection defendant’s pleas of guilty to three unrelated crimes, committed after the crimes for which defendant was being tried. After being arrested and before this trial, defendant pled guilty to two counts of armed robbery and one count of voluntary manslaughtеr which he had committed within a month after this murder.
These three pleas were admitted during the sentencing trial. They were not introduced, however, to support a specific aggravating circumstance so as to authorize the death penalty. Cf. Code Ann. § 27-2534.1(b)(1). See Stephens v. Hopper,
Defendant asserts that such "prior criminal convictions and pleas of guilty,” as to crimes committed after the murder for which he was on trial, are not admissible under Code Ann. § 27-2503, the scheme of which he contends is to provide more severe punishment for incorrigibles than for thosе who have not yet Had the opportunity to be rehabilitated by the penal system. Defendant misinterprets the law. The cited Code section provides a scheme for presenting defendant’s history to the sentencing authority (the jury in death cases) so that it may make the proper decision as to punishment. At issue for sentencing purposes is the status of the defendant at the time of sentencing, not his status at the moment he committed the crimes for which he was tried. The court did not err in admitting these prior pleas in the sentencing phasе. See Clark v. State,
After reviewing the record, transcript and enumerations of error, we find that the defendant’s sentence of death was not imposed under the influence of passion, prejudice or other arbitrary factor.
5. Defendant enumerates as error the failure of the trial court to instruct the jury that its sentencing decision must include a focus on the partiсular characteristics of this defendant. In support of his contention, defendant cites Gregg v. Georgia,
The trial court instructed the jury to consider the facts and circumstances in mitigation and aggravation, explaining to them that mitigating circumstances are those which do not excuse the offense, but which in fairness and mercy may reduce the degree of moral culpability or blame. He further instructed them that they were free to recommend mercy even if they found aggravating circumstances to exist. These instructions allow the jury to examine the defendant’s individual characteristics in deciding his fate. The jury was properly instructed as to what it was to consider in reaching its decision as to sentence. Fleming v. State,
6. Defendant enumerates as two errors the failure of the trial court to instruct the jury that mitigating and aggravating circumstances should be weighed against each other and the failure of the court to give concrete examples of mitigating factors. In Florida, the jury and then the trial court weigh mitigating and aggravating circumstances prior tо deciding a defendant’s fate. See Proffitt v. Florida, supra,
As for the fact that the trial court failed to give' examples of mitigating circumstances, it is not rеquired that specific mitigating circumstances be singled out by the court in giving its instructions to the jury. Potts v. State,
7. Defendant enumerates as error the trial court’s charge of the statutory aggravating circumstance that"... the offense of murder was outrageously or wantonly vile, horrible or inhuman in that it involved depravity of mind to the victim. . . [sic]”
Defendant contends that the statutory aggravating circumstance from which this charge was taken is itself unconstitutionally vague and overbroad, and that this charge served to taint the entire sentencing phase of the trial. Code Ann. § 27-2534.1 (b) (7) has consistently been held to be constitutional. Gregg v. Georgia, supra,
However, in the case before us, after some deliberation the jury returned to the courtroom and requested clarifiсation of the phrase "depravity of mind to the victim.” The trial court read from Black’s Law Dictionary and from Webster’s International Dictionary and then explained that "depravity of mind to the victim” means ". . . that his actions were so vile, horrible, or inhuman that he created such a state of mind in the victim as defined by the word depravity.” (Emphasis supplied.) Regarding "depravity,” it is not the victim’s state of mind which must concern the jury; it is the defendant’s. This defendant’s jury was not charged on the meaning of this aggravating circumstance as it was intended by the legislature and has been interpreted by this court. See Gregg v. Georgia, supra,
8. The jury was instructed as to two other aggravating circumstances: "The offense of murder was committed while the offender was engaged in the commission of another capital felony, to wit: armed robbery” and "the offense of murder was committed while the offender was engaged in the commission of another capital felony, to wit: rape.”
The evidence showed that the defendant took some $480 from the victim at gunpoint. A gynecologist testified that he found motile sperm in the victim’s vagina and cervix, and lacerations indicating forced sexual intercourse. The defendant admitted having intercourse with the victim but claimed she consented. The defendant was found guilty of rape and armed robbery by the jury and they were authorized to do so beyond a reasonable doubt.
After being properly instructed as to the two aggravating circumstances now under consideration, the jury returned a verdict imposing the death penalty for "(1) Armed robbery. (2) Rape. (3) Outrageously or wantonly
Although the jury did not write out that "the offense of murder was committed while the offender. . .’’etc. (see Code Ann. § 27-2534.1 (c)), it did specify "(1) Armed robbery” and "(2) Rape” as aggravating circumstances upon which it imposed the death penalty. It was clear to the lawyers and the judge, as it is to us, that the jury was basing its death penalty verdict on the aggravating circumstances based on armed robbery and rape, because no objection was made to the form of the verdict. The intent of the jury being clear and there being evidence in support of those aggravating circumstances beyond a reasonable doubt, we. affirm the death penalty on these two grounds. See Potts v. State,
Where two or more statutory aggravating circumstances are found by the jury, the failure of one circumstance does not so taint the proceedings as to invalidate the other aggravating circumstance found and the sentence of death based thereon. Gregg v. State,
9. We have already noted that the verdict of the jury was not imposed under the influeftce of passion, prejudice, or other arbitrary factor. We have examined defendant’s enumerations of error and the sufficiency of the evidence to support his convictions and sentence. He confessed twice to the armed robbery and murder, and his confessions were admissible and corroborated by other evidence. He denied the rape, asserting that the viсtim voluntarily consented to sexual intercourse. However, there was sufficient medical evidence to authorize the
We have considered the cases appealed to this court since January 1, 1970, in which life or death sentences were imposed. Those similar cases listed in the appendix support the affirmancе of the death penalty in this case. They show that the death penalty has been imposed where the murder was committed while the offender was engaged in the commission of another capital felony. After raping, robbing and binding the victim, in this case, the defendant put a bullet through her head. The sentence of death imposed upon Johnny Lee Gates is not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
Judgment affirmed as to the convictions and thе sentence of death.
Appendix.
Moore v. State,
Notes
The signed waiver itself reads: "I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.”
The defendant makes no mention of the fact that at the beginning of the video tape recording he is shown wearing handcuffs. This fact will be considered further, later in this opinion.
Lego v. Twomey, supra, dealt with the admissibility of confessions, not the standard of proof required for conviction. Hence the court found In re Winship,
At the request of a juror, the confession was
The charge is grammatically incorrect. Code Ann. § 27-2534.1 (b)(7) reads: "The offense of murder. . . was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” The torture and aggravated battery involve the victim; the depravity of mind is that of the murderer. Harris v. State,
Concurrence Opinion
concurring.
Additionally, I would consider Sandstrom v. Montana, — U. S. — (99 SC 2450,61 LE2d 39) (1979), even though it was not raised. See Code Ann. § 27-2537 (c)(2) and (i). In my view the presumptions given in charge bring