Lead Opinion
Kеnneth Allen Harris, the appellant, was indicted by the Grand Jury of DeKalb County for the murder of Mrs. Xara Catherine Ward occurring on October 2, 1974. (A second count of .the indictment was severed on motion of the appellant’s attorney and never considered by the jury.) In a trial by jury that lasted from March 10-13, 1975, the appellant was found guilty of murder on March 12, 1975, and after finding a statutory aggravating circumstance the jury recommended the death penalty. On March 13, 1975, he was sentenced to death. He is before this court on appeal and for mandatory review of the death penalty imposed.
I. Summary of the Evidence.
On the morning of October 2, 1974, Mrs. Xara Catherine Ward of Decatur, Georgia, entertained her regular Wednesday morning Bible study group.
Her body was discovered around 3:00 a.m. the following morning in her parked car at the rear of the mall. She was lying across the front seat of her automobile with a black coat over her head. There were two bullet holes in the bloodstained coat.
It was medically determined that Mrs. Ward died as a result of two gunshot wounds to the head. The two projеctiles were found during an autopsy and removed.
Approximately two weeks later, DeKalb police investigators, acting on information supplied by Mr. Terry Moreland, the appellant’s brother-in-law, obtained a warrant for Kenneth Allen Harris. He was arrested on October 14 at the construction site where he was employed.
Moreland testified that Harris picked him up at his. job on Whitehall Street in Atlanta about 3:50 p.m. on October 2, 1974. As they drove out Interstate 20 towards Rockdale County, appellant asked Moreland whether he would have "the guts to talk up and shoot someone in the head.” When Moreland replied that he could not, appellant told him that he had shot a woman.at the South DeKalb Mаll. He showed Moreland the .32 caliber pistol he had used with two empty chambers. Then, as they drove past the mall, Harris pointed to Mrs. Ward’s car in the parking lot. "There’s the car,” he told his brother-in-law. A few days later Moreland called the police.
The gun used by the appellant was later found buried near a creek bank in Rockdale County. An employee from the State Crime Laboratory determined that the two bullets taken from the body of Xara Ward were fired from Harris’ revolver.
Immediately following the appellant’s arrest on October 14, 1974, he was advised of his rights and indicated that he understood. He was again advised after
The tape was played in open court. At the beginning of the tape, Harris was asked whether he had any objections to the conversation being recorded. He stated that he did not. He then told the officers that he didn’t know what made him do it, that it "was something I always wanted to do.”
Harris continued telling officers how he had hated his former stepmother and how he wished he had killed her. He really wanted to kill someone who resembled his stepmother, he told them. So he bought a hunting knife and went out to South DeKalb Mall several times looking for a woman who reminded him of the hated stepmother. Women who bragged a lot and argued with their husbands particularly irritated him, he told police. He wanted to "just mutilate the hell out of them.”
He spotted Mrs. Ward on the second floor of Rich’s, he said, "talking like she owned the god damn world.” He followed her to her car, where he pulled the gun on her and told her to do exactly as he said. Then, he said, he directed her to drive to the back of the mall and park near a tree. When she offered him money, he told her, "I don’t want nothing you’ve got, except your life.” Then he took the coat out of one of her shopping bags, covered her head with it, said "Bye Lady,” and shot her.
Harris stated that he felt so good afterwards that he wanted to do it again but left when he saw a car coming. He was happy, he said, because "I had done ... what I set out to do.” He told the officers that he was glad they caught him because he would have done it again. He also told them that he was on medication at the time, but stated it had no effect on his decision. He said he would have done it if he had been "stone sober.”
The defense presented three medical doctors and the appellant’s brother-in-law, Terry Moreland.
Moreland testified that the appellant had had a recent tonsillectomy and was on medication at the time of the murder. He said that Harris appeared drunk after taking the medication — that he could not walk or speak normally, and that his reflexes were slow.
Dr. Carl Smith, a psychiatrist at Central State Hospital testified that he observed the appellant over a period of 41 days. He concluded that Harris was suffering from a schizoid personality, but not from any delusional compulsion. In Dr. Smith’s opinion, Harris could distinguish right from wrong.
Dr. Julius Ehik, psychiatrist, testified that he examined Harris on November 16, 1974, and again on November 23. In his opinion, Harris suffered from a "pronounced personality disorder” where he harbored hostility toward a cеrtain type of female. He did not feel that he was psychotic, however. Dr. Ehik stated that a combination of alcohol and barbiturates could lessen an individual’s controls but stated that appellant knew right from wrong and was not delusional.
II. Enumerations of Error
1. In appellant’s first enumeration he avers the trial court erred in its pre-sentence charge to the jury regarding imposition of the death penalty, thereby depriving appellant of due process of law under the Fifth and Fourteenth Amendments to the Constitution of the United States.
The thrust of the appellant’s argument in support of this enumeration is that the pre-sentence instructions to the jury by the trial court were death-oriented. Specifically he complains that the judge should have told the jury that even if they found a statutory aggravating circumstance they did not have to impose the death penalty.
As we noted in Eberheart v. State,
The trial court complied with the statute and as we read his instruction at the beginning and at the end he instructed that they could return a life sentence and how it should read. Appellant’s allegation that the instructions were death-oriented or slanted toward death is without merit. Likewise his allegation that the court erred in furnishing the jury multiple copies of his instruction pursuant to the statutory requirement that the instructions be given in charge and in writing to the jury for its deliberation. Multiple copies of the instructions could at most be considered as no more than a convenience to the jury because each juror must reach a verdict based on his own conscience.
2. In Enumeration 2 the appellant alleges the trial court erred in its charge to the jury on the consequences of a verdict of not guilty by reason of insanity, thereby denying the appellant dire process of law under the Fifth and Fourteenth Amendments to the Constitution of the United States and the equal protection of the laws under the Fourteenth Amendment to the Constitution of the United States.
The appellant contends that the trial court erred in charging the jury in the language of Code Ann. § 27-1503 on the effect of a verdict of acquittal by reason of insanity in its entirety. As we said in Graham v. State,
3. Appellant’s third enumeration alleges the trial court erred in failing to charge the jury on the burden of proof of an insanity defense, thereby denying the appellant due process of law under the Fifth and Fourteenth Amendments to the Constitution of the United States.
Where the charge of the court includes instruction as to insanity but places the burden of proof as to each essential element of the crime, including intent, upon the state beyond a reasonable doubt, it is not error for the court not to instruct the jury specifically, absent a request, as to any burden of proof regarding sanity. Adams v. State,
Enumeration 3 is without merit.
4. In Enumeration 4 the appellant alleges the trial court erred in sentencing the appellant to death on the basis of a jury verdict which was improper as to form, thereby denying the appellant due process of law under the Fifth and Fourteenth Amendments-to the Constitution of the United States.
As the appellant did in Eberheart v. State, 232 Ga. 247, supra, the appellant here complains that the jury verdict repeated the relevant portion of the presentence charge practically verbatim and found circumstаnces instead of facts. Our- statement in Eberheart is equally applicable here. "We note that designation of a circumstance is something far different than the narration of facts that appellant urges is required. The statute requires designation of the circumstance or circumstances, an ultimate issue or issues. This the jury did. Neither can we find error by the jury in repeating the same wording given to them in the written charge. If the wording stated is what the jury found, and there is no contrary indication in the transcript of trial, they did not err in their finding.”
We find no merit to Enumeration 4.
5. In Enumeration 5 the appellant alleges the trial court erred in allowing a tape recording to be played to the jury without a proper foundation having been laid,
The appellant relies on Steve M. Solomon, Jr., Inc. v. Edgar,
Since 1955 when the Solomon case was decided, great advances have been made in the simplicity of operation of recording devices in both the recording and playback features as well as in the miniaturization of the equipment.
The appellant made no objection at the trial to the alleged absence of a proper foundation for the introduction of the tape recordings. His objections'were on unrelated grounds. Prior to the playing of the tapes before the jury, the trial court conducted an in camera inspection listening to the recordings in the presence of counsel and specified the portions that could be played before the jury over the objections of appellant’s counsel and in his own judicial discretion. There had previously been testimony as to the circumstances of the statement and the manner in which it was recorded. There was also testimony concerning a gap in the tape resulting from the officer’s attempt to duplicate the tape.
The court reporter was "in camera” when the trial judge designated the portions that could be played before the court and recorded his instructions. Those instructions were apparently followed before the jury and the court reporter was therefore able to report from the tape the narration played before the jury just as well as a reporter might incorporate a document into the transcript from which portions had been ordered deleted by the trial judge such as the second count of the indictment. Although the appellant relies on Owens v. State,
Enumerations 5 and 6 are without merit.
6. In Enumeration 7 the appellant alleges there is error in the fact that the court reporter did not take down аnd record the complete closing argument of the state notwithstanding the appellant’s counsel’s request to the court reporter to do so.
Code Ann. § 27-2401 provides in part: "On the trial of all felonies the presiding judge shall have the testimony taken down, and, when directed by the judge, the court reporter shall exactly and truly record, or take stenographic notes of, the testimony and proceedings in the case, except the argument of counsel.”
In an affidavit attached as an exhibit to the appellant’s brief the official court reporter stated as follows: "I was the Official Court Reporter for the trial of the case of State of Georgia v. Kenneth Allen Harris.
"During Mr. Emesori’s «closing argument, as it was not being reported, I was allowed to remain in my office, working on other transcripts, waiting to be buzzed to come into the courtroom to report the State’s final closing argument. I remained in my office the entire time, was never buzzed, and, thus, the final State’s closing argument was not reported.
"I further state that Mr. Emeson was asked in his office, during a recess, whether he wished the closing arguments reported.”
Thus, this request does not appear in the record. If counsel wants the final arguments recorded it is his duty to see that it is donе inasmuch as it is not required by statute. In this case he was present in court where the court reporter’s absence during the concluding argument was apparent,-and there is no indication that he took any steps to have the reporter recalled to the courtroom. Counsel cannot sit by and permit some matter they could correct by timely action and later claim error. Our duty to review the record to determine whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor (Code Anri. § 27-2537 (c) (1)) in no way relieves the counsel of diligence in behalf of his client. Eberheart v. State,
Appellant relies on our insistence in Ross v. State,
Our requirement for the transcript of the voir dire proceedings was based on a United States Supreme Court holding that appears to require that a transcript of the voir dire proceedings must be included in the record in cases where the death penalty is imposed.
"In Funicello v. New Jersey,
The case sub judice contains the voir dire transcript and our examination reveals no. violation of the Witherspoon rule.
One other consideration weighs against the appellant’s position. If the district attorney in his rebuttal had made some statement the appellant’s counsel considered to bе prejudicial to his client’s case, he has the responsibility of objecting so the objectionable matter and the trial judge’s ruling thereon will be a matter of record. We also observe that the rebuttal is to rebut matter brought out in the argument by the appellant’s counsel. Unless the state strayed’into new matters, not argued by the defense, and there is no allegation that such was done, the remarks in rebuttal were induced by the argument of appellant’s counsel. Code Ann. § 27-2201 specifies the order of argument.
7. In Enumeration 8, the appellant alleges the trial court erred in sentencing the appellant to death where the district attorney had directly commented on the failure of the appellаnt to testify, thereby depriving the appellant of due process of law under the. Fifth and Fourteenth Amendments to the Constitution of the United States.
During the sentencing phase of the trial the district attorney as part of his argument stated: "Certainly, if this was a case where a couple of fellows were gambling and drunk and got mad, and one of them pulled, a pistol, and shot, you would not want to give him the death penalty. This man has no excuse. There is no one to speak for him, that this was good, or this was a mistake, or something
Appellant alleges this is a violation of Code Ann. § 38-415 embodying the constitutional right against self-incrimination which provides in part: "The failure of a defendant to testify shall create no presumption agаinst him, and no comment shall be made because of such failure.”
We cannot subscribe to appellant’s position. We can deduce no logical interpretation of the prosecutor’s comments that would be characterized as a comment on the failure of the appellant to testify.
Enumeration 8 is without merit.
8. In Enumeration 9 the appellant alleges the trial court erred in denying the appellant’s motion for a mistrial based on the presence during a portion of the trial of the victim’s widower at the state’s counsel table.
After his testimony, Mr. Phillip Ward, Jr., the victim’s husband, was permitted to sit at the prosecution’s counsel table during the testimony of several other state’s witnesses. During the trial, the appellant objected to the presence of the widower, moving for a mistrial out of the presence of the jury. The trial court overruled appellant’s motion, but directed that the victim’s husband not sit at the prosecution’s table for the rest of the trial.
In Nunnally v. State,
Mr. Ward was the first witness who testified. The district attorney announced who Mr. Ward was and asked that he be permitted to sit at counsel’s table. The appellant and his counsel certainly knew who he was thereafter but waited until several witnesses had testified before moving for a mistrial. We find no abuse of discretion by the trial judge in denying the motion for
This enumeration is without merit.
9. In Enumeration 10 thе appellant allegesThe trial court erred in refusing to grant the appellant’s motion to quash the indictment.
Beginning with Coley v. State,
Although we hold this attack on the constitutionality of the statute to be without merit we will consider the appellant’s contention that the aggravating circumstance found by the jury was unconstitutional in our review of the death sentence.
10. In Enumeration 11, the appellant alleges the trial court erred in denying the appellant’s second amended motion for new trial which was based on the denial to the appellant of a fair trial due to extensive prejudicial pre-trial publicity.
The appellant contends that he was denied a fair trial because of prejudicial pre-trial publicity. The appellant did not make any motion for a continuance or change of venue at the trial because of unfavorable publicity but in a death case this matter must be considered pursuant to the court’s duty to consider the punishment as well as any errors enumerated by way of appeal. Code Ann. § 27-2537.
"(c) With regard to thе sentence, the court shall determine: (1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and . . .” Code Ann. § 27-2537.
In the recent case of Street v. State, 237 Ga. 307 (1976), we have traced the development of due process standards based on United States appellate court decisions on state court convictions where pre-trial publicity was alleged to be prejudicial to the rights of the aсcused. We there concluded that under the decisions of the Supreme Court of the United States, to find that the petitioner did not receive a fair trial, petitioner must show (1) that the setting of the trial was inherently prejudicial or (2) that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible.
In this case the appellant cites instances of five veniremen who had read, heard of, or discussed the case who were not selected to serve on the jury. He cites six of the panel members who eventually served on the jury who indicated some knowledge of the case via the newspapers. No juror who served indicated he could not do so with an open mind or considered the appellant guilty. In fact, the appellant did not utilize all of his peremptory strikes. Although appellant has submitted copies of newspaper articles in the community, the jury was drawn from a county comprising almost half a million residents. Many of the exhibits submitted were from articles that appeared after the jury was chosen and sequestered. The exhibits indicate almost a four-month break in publicity between the bulk of the publicity and the trial.
Under the circumstances we do not believe that the appellant has established a violation of either of the due process standards for pre-trial publicity prejudice set forth in Street, supra, affecting either thе trial on guilt or innocence or the sentence.
Enumeration 11 is without merit.
11. In Enumeration 12, the appellant alleges the trial court erred in denying appellant’s amended motion for new trial.
Only one issue not covered by specific enumerations of error appears in appellant’s amended motion for new
12. In Enumeration 13 the appellant alleges that he was denied a fair trial due to the cumulative effect of all the errors enumerated in the enumeration of errors.
The court having found no merit to the other enumerations of error finds this enumeration without foundation or merit.
III. Sentence Review
In our sentence review we have considered the aggravating circumstance found by the jury and the evidence concerning the crime introduced in court.
We have reviewed the sentence as required by Ga. L. 1973, p. 159 et seq. (Code Ann. § 27-2537 (c) (1-3)), as we did in Coley v. State,
The jury found the following aggravating circumstance:
The murder was outrageously and wantonly vile, horrible, and inhuman in that it involved torture and depravity of the mind. Code Ann. § 27-2534.1 (b) (7).
The appellant attacks the constitutionality of this aggravating circumstance as so vague that, instead of serving as a limitation, it serves to open up the area of discretion.
The entire aggravating circumstance involved reads as follows:
"The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.”
Each of these terms used is clearly defined in ordinary dictionaries, Black’s Law Dictionary, or Words and Phrases and is subject to understanding and application by a jury.
We recognize that there is a possibility of abuse of this statutory aggravating circumstance but we have been given the duty of determining "(2) Whether, in cases other than treason or aircraft hijacking, the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance as enumerated in section 27-2534.1(b).” Code Ann. § 27-2537 (c) (2). This is a test separate and distinct from our duties specified in § 27-2537 (c) (1) and (3). Indeed, if the similar cases test was to be limited to similar statutory aggravating circumstances, we would be limiting application of the statute to some common statutory aggravating circumstance that would have to appear in each case affirmed.
Under our duty specified in Code Ann. § 27-2537 (c) (2) we have no intention of permitting this statutory aggravating circumstance to become a "catch all” for cases simply because no other statutory aggravating circumstance is raised by the evidence.
This court has affirmed death sentences, involving this statutory aggravating circumstance. The cases were:
(1) House v. State,
(2) McCorquodale v. State,
(3) Banks v. State,
In this case the crime is described in the appellant’s own words: The appellant followed Mrs. Ward (the victim) around the store (Rich’s) and out to her car. He pulled a gun, forced Mrs. Ward into her car and made her drive around behind the mall and park in a deserted area in the back parking lot.
The appellant then sat in Mrs. Ward’s car with her and talked to her, laughed at her and clowned around with her. Mrs. Ward, in desperation, tried to appease the appellant and offered him money. She pleaded with him and kept asking him, "What do you want?” Then, in the words of the appellant, Mrs. Ward begged him, '"You’re going to hurt me, You’re going to hurt me. I know you’re going to hurt me.’ I said, 'I might lady.’ I said, T just might do that.’ I said, 'I might shoot you. I might kill you.’ I said, 'You don’t know.’ I says, 'I’m liable to do anything.’ She said, 'You want my money, and you want to rape me,’ and all this. I said, 'No lady, I don’t want to rape you. I don’t want your money. [Unintelligible] I don’t want nothing you’ve got, except your life. That’s all I want.’ I said, 'That’s the main thing I want is your life,’ and then she really cracked up then.”
The appellant then made Mrs. Ward lay her head down on the seat and the following conversation ensued: "Well, she just laid there, you know, and, 'Please don’t do this,’ and... and then just... I don’t know, just... I reckon I’d do it, and you’d do it too; you know you’re fixing to die, you know, or she thought she was, which she did, but, you know, just, 'Please don’t do this,’ you know. You just don’t [Unintеlligible] all this, and I just told her she better shut
Then, the last words that Mrs. Ward heard as told by the appellant: "I tore it open and got the blue coat out and I just laid it over her. And then I just said, 'Bye Lady,’ and shot her, you know, and then I set there for a few minutes, waited a few minutes, shot her again.”
The appellant then got out of Mrs. Ward’s car and decided to go back and shoot Mrs. Ward a third time. "I wanted to go back, and shoot her again and then go back and shoot her again, and then again, and then again.” The appellant expressed his feeling about the killing as follows: "I was happy then, you know. Like I say, I’d done what I wanted to do, what I set out to do.”
We bеlieve the evidence supports the jury’s finding of the statutory aggravating circumstance. And that it too lies at the core of the statutory aggravating circumstance.
We have compared the evidence and sentence in this case with similar cases all involving execution style murders contained in the appendix attached to this opinion. Kenneth Harris’ sentence to death for murder is not excessive or disproportionate to the penalty imposed in similar cases considering both the crime and the defendant.
Judgment affirmed.
Appendix.
Similar cases considered by the court: House v. State,
Concurrence Opinion
concurring.
The defendant raises the constitutionality of the seventh aggravating circumstance of our death penalty statute, Code Ann. § 27-2534.1 (b) (7).
In Gregg v. Georgia, — U. S. — (96 SC 2909, 49 LE2d 859), the Supreme Court upheld the validity of Georgia’s seventh statutory aggravating circumstance against the challenge that its imprecision rendered our capital-sentencing system invalid under the Eighth and Fourteenth Amendments (see fn. 51).
There remains a question as to whether ground 7 might be so vague as to provide inadequate notice to the defendant. The statement of the question raises a question, which is: Where the crime (murder, in this case) is defined specifically, must the aggravating circumstances relating to punishment be just as specifically defined so as tо put a person on notice as to both the crime and the punishment which may be imposed?
Because, in my view, ground 7 of our statute provides adequate notice, I do not find it necessary to resolve the intervening question posed above.
As applicable to this case, ground 7 provides as follows: "The offense of murder [Code § 26-1101] . . . was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” The words "torture, depravity of mind, or an aggravated battery to the victim”
In my view, ground 7 would be sufficiently specific, insofar as the requirement of notice is concerned, if it provided only that the offense of murder involved torture, depravity of mind, or an aggravated battery to the victim. The addition of the adjective phrase ("outrageously or wantonly vile, horrible or inhuman”) modifying the offense of murder operates in favor of the defendant and does not, in my view, render ground 7 unconstitutionally vague as failing to provide adequate notice of the sentence which may be imposed.
The legal question raised here is different from that raised in Arnold v. State,
Concurrence Opinion
concurring specially.
I join the view expressed by Justice Hill in his concurring opinion but do not agree with all that is said in the opinion of the court. Therefore, I concur in only the majority judgment rendered in the case.