Lead Opinion
William Spicer Lewis, III, the appellant, was convicted of the offenses of murder, armed robbery and motor vehicle theft by a jury in the Superior Court of Muscogee County. He was sentenced to death for murder. The case is before this court on appeal and for mandatory review.
From the evidence submitted at trial, the jury was authorized to find the following facts:
During the night of March 31,1979, or the early morning hours of April 1, 1979, a 1977 Pontiac automobile was stolen from the Lynwood American Service Station located in Columbus, Georgia.
Close to midnight on April 3,1979, the appellant, age 16, and a co-defendant, Robert Scott Jackson, age 15, entered a Majik Market also located in Columbus, Georgia. Mrs. Doris Kennedy was the only employee in the store at that time. She was sweeping the store when she noticed Jackson come in. Thereafter, appellant entered with his face partially covered with a scarf and a .38 caliber pistol in his hand. Appellant ordered Mrs. Kennedy to go behind the cash register. Jackson followed, and stood in front of the counter, posing as a customer. Mrs. Kennedy was forced at gunpoint to open the cash register. When she did, Jackson, who was unarmed, reached across and took a twenty dollar bill. That particular bill triggered a silent alarm when it was removed. Jackson told her to put the money, except the dimes and nickels, into a paper sack, which she did. The appellant then ordered Mrs. Kennedy into a large walk-in beverage cooler. While the robbery was transpiring, a couple entered the store. Appellant approached them and ordered them at gunpoint into the cooler. The cooler was glass-faced and had racks
Officer James N. Bowers of the Columbus Police Department had just come off duty and was returning in his patrol car to the station to check out. Being in very close proximity to the store when the radio call was broadcast, he responded to investigate the silent alarm. When he arrived at the store another vehicle had pulled in. The officer cautioned the driver not to enter the store. He cleared his gun from his raincoat but left it holstered. The officer entered the store and was met by appellant. When asked if he worked there the appellant answered by an affirmative nod. Although the officer could not see it, the appellant was holding his pistol by his side. Without warning he raised the gun and shot the officer in the head. The officer never drew his weapon. He died from the wound during the early morning hours of the next day. Thereafter, the appellant and Jackson fled with approximately $108.00.
Other officers arrived at the scene in response to the alarm and began an investigation. The 1977 Pontiac was found a few blocks away. The tag had been replaced by a stolen tag that was covered with cardboard. Appellant’s fingerprints were on the rear view mirror of the car and a .44 caliber magnum cartridge was found inside.
Approximately four hours after the robbery, the police stopped the appellant and Jackson in the area. Upon determining that they fit the description of the robbers, both were patted down. A .38 caliber revolver was found in appellant’s pocket. It had one spent cartridge and cigarette filters in the remaining chambers to simulate a fully loaded weapon. A .44 caliber magnum cartridge identical to that found in the car was also taken from the appellant’s person.
Jackson had the stolen money in the paper sack upon his person. Tests revealed that appellant recently had fired a weapon. His fingerprints were found on the cooler door and expert testimony established that, although badly mutilated, the fatal bullet was probably fired from his gun. The four eyewitnesses identified the appellant as the perpetrator.
1. In his first enumeration of error, appellant contends that the trial court erred in denying his motion to quash the indictment or in the alternative for a commitment hearing.
Appellant was arrested on April 4,1979, on charges of murder and armed robbery, and was held in juvenile detention facilities. Code Ann. § 24A-1403 (b).
On April 5, 1979, he was indicted by the Muscogee County Grand Jury. The record shows that less than 72 hours elapsed from
2. In his second enumeration of error, appellant contends that six veniremen were erroneously held to be disqualified under the rule of Witherspoon v. Illinois,
Q. "If the evidence in this case should develop that the defendant was 16 years of age at the time of the crime, would this one factor alone, standing alone, not taking into account any of the other factors... cause you to be unable to fairly and fully weigh the death penalty as one of the possible punishments?” A. "I couldn’t, I couldn’t vote to impose the death penalty on a 16-year-old.” Q."... no matter what the other facts and circumstances might be?” A. "No.”
Upon the state’s motion, each of the six veniremen responding that they could not impose the death penalty on a 16-year-old was stricken for cause. It is clear from the transcript that the six stricken jurors would refuse to consider the death penalty in the case before them due to the appellant’s age.
In Witherspoon v. Illinois,
The holding of Witherspoon is particularly applicable to our post-Furman (Furman v. Georgia,
A simple illustration explains the problem. If the state were permitted to exclude for cause those veniremen who said they could not impose the death penalty upon a sixteen-year-old with no prior criminal record who was an orphan, all veniremen who would consider that the mitigating circumstances outweighed the aggravating circumstances could be excluded by the state for cause.
The death penalty imposed in this case (not the conviction for the crime of murder) must be vacated due to the exclusion for cause of the six veniremen. Witherspoon v. Illinois, supra.
Appellant also argues that while seventeen additional jurors were properly stricken for cause under Witherspoon, five jurors should have been stricken due to prejudice in favor of the death penalty. In effect, it is asserted, the trial court used a "double standard” which resulted in a panel prejudiced in favor of the death penalty. However, each of these five jurors clearly and unequivocally answered that they would consider both penalties authorized by law in their deliberation. They were not "irrevocably committed” to impose the sentence of death no matter what the facts and circumstances of the case. We find no error in the failure to strike these five jurors.
3. In enumeration of error three, appellant contends that his appointed trial counsel was inadequate and incompetent. Pitts v. Glass,
While other counsel, had they represented appellant, may have exercised different judgment, the fact that trial counsel chose to try the case in the manner in which it was tried, and made certain difficult decisions regarding the defense tactics to be employed with which appellant and his present counsel now disagree, does not require a finding that the representation below was so inadequate as to amount to a denial of effective assistance of counsel. Estes v. Perkins,
Although the issue of ineffective assistance of counsel is being presented for the first time in this court, rather than in the trial court, thereby precluding evidence of counsel’s qualifications being introduced in the record, this court notes that the trial judge’s report shows counsel has been in practice five to ten years and is engaged in a predominantly criminal practice.
It is apparent from the record that defense counsel was familiar with the facts of appellant’s case, and that he filed pretrial motions and argued them vigorously. At trial, he conducted an extensive voir dire examination, made objections and moved to excuse certain prospective jurors. He objected during trial and presented evidence in mitigation during the sentencing phase.
Prior to trial, defense counsel had attempted to plead in return for a recommendation of a life sentence. The district attorney refused his offer and appellant was put on trial. Appellant now complains that counsel failed to cross examine certain witnesses. However, the evidence of guilt was overwhelming. In view of the number of eyewitnesses and physical evidence, extensive cross examination indeed may have insulted the jury’s intelligence, as counsel told the jury. He did, however, cross examine witnesses when an opening appeared, and when he could elicit favorable responses.
Appellant argues that his counsel at the close of the state’s case as to guilt agreed in his closing remarks that the state had proven everything it said it would prove. Furthermore, in his closing argument during the sentencing phase, he praised the victim as a fine officer. It is apparent that counsel, faced with overwhelming evidence of guilt, sought not to contest that issue but instead sought to avoid the death penalty. His reference to the victim in the context of the argument was favorable to the defense and was an integral and rational part of a plea for mercy on behalf of appellant. Such matters relate to trial strategy, and therefore this enumeration is
5. In his last enumeration of error, appellant contends that he wrongfully received a sentence of death in that the sentence was motivated by prejudice and passion. Appellant argues that in view of the fact that he is a 16-year-old black male who had shot a white policeman, the district attorney’s closing argument in the sentencing phase so impassioned the jury as to cause them to render a verdict as a result of passion or prejudice. In view of our determination that the death penalty must be vacated, we do not reach this enumeration.
Direction is given to the trial court as follows: The trial court is directed to vacate the conviction for armed robbery and to grant a new trial as to the death sentence or, in lieu thereof, vacate the death sentence and sentence the defendant to life in prison.
The sentence of death and the conviction for armed robbery are vacated with direction; otherwise the judgment is affirmed.
Concurrence Opinion
concurring specially.
I concur in the setting aside of the death penalty on a 16-year-old for the additional reasons expressed in the concurring opinions of Hall, J., and this writer in Hawes v. State,
Moreover, I concur in the setting aside of the death penalty in this case because, under Code Ann. § 27-2537 (c) (3), this court is to determine whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering not only the crime but also the defendant. We have had only one case since reenactment of our death penalty statute, Ga. L. 1973, p. 159, in which a defendant sentenced to death was under 17 at the time of commission of the crime, Hawes v. State, supra.
Notes
Prior to Hawes after 15-year-old Preston Cobb, Jr., was sentenced to death in 1961, Cobb v. State,
One basis for setting Hawes’ death penalty aside was that the jury was not
Dissenting Opinion
dissenting.
I dissent to Division 2 of the opinion, and would affirm the jury’s verdict imposing the death penalty on Lewis.
I would follow the second portion of the above quoted footnote which states: "[t]he most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings.”
I also adhere to the principles enunciated in Justice Black’s dissent in Witherspoon. He says that society has as much right to an impartial jury as do criminal defendants. And that he would "never carry [the notion that the jury be as fully representative of the
Therefore, I must respectfully dissent.
I am authorized to state that Justice Marshall joins in this dissent.