Lead Opinion
Pre-Trial Issues
1. Morrow claims that Hispanics were underrepresented in the composition of the 1994 grand jury pool, and the 1999 traverse jury pool in violation of the Sixth Amendment, the Fourteenth Amendment, OCGA § 15-12-40, and the Unified Appeal Procedure. To prevail on a Sixth Amendment jury pool composition challenge, Morrow must show: (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in jury pools is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the
The defendant has the burden of proving a prima facie case of constitutional error in the composition of the jury pool. Berryhill v. Zant, 858 F2d 633, 638 (11th Cir. 1988); Machetti v. Linahan, 679 F2d 236, 241, fn. 6 (11th Cir. 1982) (the standard for proving a prima facie jury pool composition violation is virtually identical under the Sixth and Fourteenth Amendment tests). With regard to the second prong of the Sixth and Fourteenth Amendment tests, the extent and effect of any alleged underrepresentation is a mixed question of fact and law. Berryhill, supra at 638, fn. 8. The degree of underrepresentation is a question of fact to be determined by the trial court sitting as factfinder. Berryhill, supra; United States v. Esle, 743 F2d 1465, 1472, fn. 12 (11th Cir. 1984). The sufficiency of the disparity, once its extent has been determined, to show a constitutional violation is a question of law. Berryhill, supra; Esle, supra. With mixed questions of fact and law, this Court accepts the trial court’s findings on disputed facts and witness credibility unless clearly erroneous, but independently applies the legal principles to the facts. Linares v. State,
Morrow claimed that the official 1990 Census was not reliable in determining the percentage of Hispanics in Hall County in 1994 and 1999 because there had been a large influx of Hispanics into the county since 1990 and a significant undercount of Hispanics during the 1990 Census. Instead of using the 1990 Census, Morrow presented an expert who had conducted a test census in 1996 of the Census block in Hall County that had reported the highest number of Hispanics in 1990. Overall, there are 86 Census blocks in the county. Respondents in the door-to-door survey of the 359 households in that Census block were told that no names were needed and that the survey responses would be shared with the Hispanic community to benefit the entire community. Morrow’s expert then determined that, based on the test census and published estimates like the Georgia County Guide, there were approximately 2.5 times the number of Hispanics in Hall County than reported in the 1990 Census. She estimated that Hispanics who were over 18 and, therefore, jury-eligible, comprised 14.1% of the total jury-eligible Hall County population and, when compared with the .8% of Hispanics she found on the grand jury list, this amounted to an absolute disparity of 13.3%. She also used the 1996 test census and similar documentary sources to estimate that the absolute disparity for Hispanics was 12.7% when comparing the 1999 traverse jury list with the total jury-eligible Hispanic population.
Although the trial court found persuasive evidence that Hall County Hispanics were a cognizable group, the trial court found that the second prong of the Sixth and Fourteenth Amendment tests was not met because Morrow’s expert’s estimate that jury-eligible Hispanics comprised approximately 2.5 times their numbers reported for Hall County in the 1990 Census was unreliable. The trial court was critical of the expert’s test census because the respondents were told that the survey was intended to benefit the Hispanic community and this may have affected the responses. See Esle, supra at 1474-1475 (Dade Latin Market Survey used by defendant to estimate the number of Latinos in Dade County, Florida, was found to be unreliable because the survey was created by Spanish language radio stations to recruit sponsors and they therefore had an incentive to inflate the numbers). The trial court also noted that it was conducted in a l/86th section of the county picked specifically for having
When the 1990 Census numbers for Hispanics in Hall County are compared with the percentage of Hispanics on the jury lists, the absolute disparities are within the legal limit. The 1990 Census reported that there were 3,252 Hispanics over the age of 18 in Hall County out of a total jury-eligible population of 70,969, approximately 4.6% of the total. Morrow’s expert examined the 1994 grand jury list and determined that .8% of the people on the list were Hispanic. The resulting absolute disparity of 3.8% is not a violation of law. See Cochran v. State,
2. The trial court ordered a change of venue, but later decided that venue would remain in Hall County. There already had been an evidentiary hearing on the composition of the Hall County grand jury pool with regard to the representation of Hispanics. For that hearing, Morrow had received funds for his expert to analyze the grand jury list to determine the number of Hispanics on the list. Because there is no separate category for Hispanics on the list, the expert needed to obtain and analyze information such as maiden name and place of birth for each person. After the trial court ruled that venue would remain in Hall County, Morrow filed a challenge to the composition of the traverse jury pool and moved for funds so that his expert could analyze the traverse jury list to determine the number of Hispanics in that pool. The trial court denied the motion for funds to conduct this analysis and Morrow claims that this ruling was error. However, the record shows that much of the evidence that Morrow claimed he needed
3. Morrow’s arrest was not illegal. Morrow drove back to his home in Barrow County after the shooting. The police in Hall County informed the Barrow County police that there had been a shooting homicide and that Morrow was the suspect because survivors had identified Morrow as the shooter. They also provided a description of the pickup truck that Morrow had been driving. The Barrow County police noticed the truck in Morrow’s driveway and an investigator called the house and spoke with Morrow’s sister, who was a sheriff’s deputy. She and Morrow agreed to leave the house and speak with the police in their driveway. They met the police there and Morrow was taken into custody. This warrantless arrest was not improper. Mincey v. State,
In addition, the evidence shows that Morrow’s subsequent videotaped statement to the police was voluntary and admissible. Morrow was 27 years old and had a 10th grade education. He was in police custody only a short time before the statement. His handcuffs were removed, he read and signed a Miranda rights waiver form and he initialed each enumerated right as it was read to him. He was alert, not intoxicated, and appeared to understand all that was said. He was not threatened, coerced or promised anything. He agreed to speak with the police and he did not request an attorney. Thus, the trial court did not err in denying the motion to suppress Morrow’s statement. Lee v. State,
4. Morrow complains that the consent for the warrantless search of Morrow’s house, truck and curtilage was not voluntary. After reviewing the record, we conclude that the trial court properly ruled that both Morrow and his mother voluntarily consented to the search of the property. Morrow gave his consent to search during his videotaped statement. In addition to the factors showing voluntariness set forth in Division 3, the police read the consent to search form to Morrow, which listed the property to be searched and included the caveat that he did not have to give consent, and Morrow willingly signed it. Schneckloth v. Bustamonte,
5. Morrow claims that venue should have been changed from Hall County.
(a) In 1995, Morrow moved for a change of venue and the State consented to the grant of that motion. No evidentiary hearing was held on whether the trial setting was inherently prejudicial due to pretrial publicity because the trial court granted the motion based upon the parties’ consent. In its order, the trial court directed that the parties either agree on or that they separately provide a recommendation of a transfer county for the selection of the jurors, with the trial to be conducted in Hall County. See OCGA § 17-7-150 (a) (3). There is no record of either party recommending transfer
(b) To justify a change of venue, the defendant must show that the trial setting was inherently prejudicial as a result of pretrial publicity or that a sufficient number of jurors were actually biased against the defendant. Barnes v. State,
Jury Selection
6. The trial court did not err by excusing prospective juror Wilkerson for cause because his views on the death penalty “ ‘would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” Greene v. State,
7. The trial court did not err by refusing to excuse for cause prospective jurors O’Kelley, Hoynes, Callahan, Taylor, and Gibson. Although prospective jurors O’Kelley, Hoynes, Callahan, and Taylor were leaning toward imposing a death sentence, the transcript shows that they could vote to impose all three sentencing options. Mize v. State,
The Guilt-Innocence Phase of Trial
8. The evidence presented at trial authorized the jury to find the following: Barbara Ann Young began dating Scotty Morrow in June 1994 and she broke up with him in December 1994 because of his abusive behavior. At 9:52 a.m. on December 29, 1994, Morrow telephoned Ms. Young at her home, but she told him that she wanted him to leave her alone. After hanging up, Morrow drove to Ms. Young’s home and entered without permission. Ms. Young was in the kitchen with two of her friends, Tonya Woods and LaToya Horne. Two of Ms. Young’s children, five-year-old Christopher and eight-month-old Devonte, were also present. There was an argument in the kitchen and Ms. Woods told Morrow to leave because Ms. Young did not want to have anything to do with him anymore. Morrow yelled, “Shut your mouth, bitch!” and pulled a nine-millimeter pistol from his waistband. He shot Ms. Woods in the abdomen and Ms. Horne in the arm. The bullet that struck Ms. Woods severed her spinal cord, paralyzing her from the waist down.
Ms. Young fled down the hallway and into her bedroom. Morrow caught her in the bedroom and beat her on the head and face. She managed to flee back to the hallway where Morrow grabbed her by the hair and shot her point-blank in the head, killing her. From his hiding place in a nearby bedroom, Christopher saw Morrow kill his mother. Morrow returned to the kitchen. Testimony as to clicking noises and the fact that a live cartridge was found on the kitchen floor indicate that he either reloaded his pistol or cleared a jam. He then placed the muzzle of the pistol an inch from Ms. Woods’ chin and killed her with a shot to the head. The medical examiner opined that, although she was paralyzed, Ms. Woods had not lost much blood at that time and was probably still conscious when the fatal shot was fired. Morrow also shot Ms. Horne two more times, in the face and the arm, and fled after cutting the telephone line.
Despite her injuries, which included a shattered palate, permanent deafness in one ear, and nerve damage in an arm, Ms. Horne managed to get to her feet and run to a neighbor’s house. She and Christopher told the responding police officers that Morrow was the shooter. Morrow confessed after his arrest and the murder weapon was found hidden in his backyard. At trial, Morrow admitted that he shot the victims because he “wanted [Ms. Woods] to shut up.”
The evidence was sufficient to enable a rational trier of fact to find proof of Morrow’s guilt of two counts of malice murder, two counts of felony murder, six counts of aggravated assault, aggravated battery, cruelty to a child, burglary, and possession of a firearm during the commission of a felony beyond a reasonable doubt. Jackson v. Virginia,
9. Morrow claims that the trial court erred by permitting evidence of three incidents as prior difficulties. See Wall v. State,
(a) December 6, 1994. The State introduced evidence that Morrow hit Barbara Ann Young on this date and blackened her eye. One witness testified that Ms. Young told her that Morrow had threatened her, but she did not observe any injuries to Ms. Young. Three witnesses testified that Ms. Young told them Morrow had hit her and they observed that she had a swollen or black eye as if she had been struck. There was a short time between the incident and the statements to her friends and teachers; she never recanted or disavowed the statements; and her eye injury corroborated the substance of the statements. See Perkins, supra; McKissick, supra; Luallen v. State,
(b) December 9, 1994. The State presented evidence that Morrow picked up Ms. Young to drive her to her classes at Lanier Tech, but instead drove her to another county against her will, hit her, and forced her to have sex with him. Several State witnesses, including friends, teachers, and police officers to whom she reported the incident, testified that Ms. Young told them what had happened shortly after the incident. In fact, an instructor at Lanier Tech testified that Ms. Young called her from a pay phone during the incident when Morrow was stopped at a convenience store. She testified that Ms. Young was hysterical and said, “help me, call the police, he’s got me.” She identified Morrow as her abductor. Although Morrow claims that the statements were unreliable because no arrest warrant ever issued over this incident, Ms. Young never recanted her statements and several witnesses also testified that they observed knots or bumps on her head. The trial court did not err by admitting this evidence. See Perkins, supra; Luallen, supra; McKissick, supra. Further, there was testimony that Ms. Young did not seek a warrant because she was assured by Morrow’s family that he would stay away from her. At trial, Morrow admitted that he took Ms. Young to another county against her will on December 9, but claimed that the sex was consensual.
(c) December 24, 1994. A friend of Ms. Young, who lived in the apartment below Ms. Young’s apartment, testified that during a Christmas party Ms. Young came running to her apartment yelling, “He (Morrow) gonna kill me, he got a gun.” The neighbor testified that Ms. Young was very afraid. She heard Morrow telling Ms. Young through the door that he was not going to bother her and that she could go back upstairs. The next day, Ms. Young told the neighbor that Morrow might have had a knife and not a gun, but she never recanted that he had threatened her. Although the neighbor did not see Morrow or a gun, the statement’s veracity is further corroborated by Morrow’s statement to the police on December 29, in which he admitted that he had a heated argument with Ms. Young on Christmas Eve and that he grabbed her by the shirt. LaToya Horne also testified that she saw Morrow hit Ms. Young at the Christmas party because he was upset that some men wanted to play cards with her. We conclude that there was sufficient circumstantial evidence of trustworthiness regarding Ms. Young’s statement to her neighbor, and that the trial court did not err by admitting it. See Perkins, supra; McKissick, supra. We further note that Morrow testified at trial that he routinely carried a loaded pistol in his truck or on his person.
10. Ms..Horne testified that Ms. Young received a telephone call from Morrow on the morning of the murders, and that Ms. Young told Morrow to leave her alone.
11. OCGA § 16-5-70, the cruelty to children statute, is not void for vagueness. Davis v. State,
12. The evidence was sufficient to show that Morrow did not have authority to enter Ms. Young’s home on December 29, 1994. Jackson v. Virginia, supra. Accordingly, the trial court correctly declined to direct a verdict of acquittal on the burglary charge. OCGA § 17-9-1 (a); Raulerson, supra at 625 (1).
13. Viewed in the light most favorable to the prosecution, the evidence was sufficient for the jury to find Morrow guilty of cruelty to a child for killing Christopher’s mother in the child’s presence. Jackson v. Virginia, supra. See also Hall v. State,
The Sentencing Phase of Trial
14. The evidence was sufficient to authorize the jury to find beyond a reasonable doubt the statutory aggravating circumstances which supported his death sentence. Jackson v. Virginia, supra; OCGA § 17-10-35 (c) (2).
15. OCGA § 17-10-30 is not unconstitutional. Cromartie, supra at 783 (6).
16. Execution by electrocution is not unconstitutional. DeYoung v. State,
17. Morrow’s death sentence was not imposed as the result of passion, prejudice or any other arbitrary factor. OCGA § 17-10-35 (c) (1). The death sentence is also not excessive or disproportionate to the penalty imposed in similar cases, considering both the crimes and the defendant. OCGA § 17-10-35 (c) (3). The similar cases listed in the Appendix support the imposition of the death penalty in this case, in that all involve the deliberate, unprovoked murder of two or more people, an intentional murder committed during a burglary, or a murder involving the OCGA § 17-10-30 (b) (7) aggravating circumstance.
Judgments affirmed.
Appendix.
Gulley v. State,
Notes
The crimes occurred on. December 29,1994. The grand jury indicted Morrow on March 6, 1995, for malice murder (two counts), felony murder (two counts), aggravated assault (six counts), aggravated battery, cruelty to a child, burglary, and possession of a firearm during the commission of a felony. The State filed its notice of intent to seek the death penalty on May 1,1995. The trial was held June 7-29,1999. The jury convicted Morrow on all counts on June 26, 1999, and recommended a death sentence on June 29, 1999. Because the jury did not specify on the jury form that it was recommending a death sentence for both murders, the trial court merged the malice murder conviction for the killing of Tonya Woods with the malice murder conviction for the killing of Barbara Ann Young and imposed a single death sentence. The felony murder convictions were vacated by operation of law. Malcolm v. State,
Concurrence Opinion
concurring in part and dissenting in part.
I concur in the majority’s affirmance of appellant’s adjudication of guilt. However, due to the concerns I expressed in my partial dissent to Wilson v. State