MORROW v. THE STATE.
S00P0112
SUPREME COURT OF GEORGIA
DECIDED JUNE 12, 2000
RECONSIDERATION DENIED JULY 28, 2000
272 Ga. 691 | 532 SE2d 78
CARLEY, Justice.
Judgments affirmed. All the Justices concur.
DECIDED MAY 30, 2000 — RECONSIDERATION DENIED JULY 28, 2000.
Salter & Shook, Jason A. Craig, for appellant (case no. S00A0985).
Thomas J. O‘Donnell; Jr., for appellant (case no. S00A0986).
Stubbs & Associates, M. Francis Stubbs, for appellant (case no. S00A0987).
Kathy S. Palmer, for appellant (case no. S00A0988).
Richard A. Malone, District Attorney, Samuel H. Altman, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Wesley S. Wood, Assistant Attorney General, for appellee.
S00P0112. MORROW v. THE STATE.
(532 SE2d 78)
CARLEY, Justice.
Scotty Garnell Morrow killed Barbara Ann Young and Tonya Rochelle Woods and he was convicted by a jury of malice murder, felony murder, aggravated assault, aggravated battery, cruelty to a child, burglary, and possession of a firearm during the commission of a felony. The jury recommended a death sentence after finding beyond a reasonable doubt the following aggravating circumstances: that the murder of Ms. Young was outrageously vile, horrible or inhuman in that it involved torture and depravity of mind; that the murder of Ms. Woods was outrageously and wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, and an aggravated battery to Ms. Woods before her death; that the murder of Ms. Woods was committed while the defendant was engaged in the commission of the murder of Ms. Young and the aggravated battery of LaToya Precal Horne; that the murder of Ms. Young was committed while the defendant was engaged in the commission of the aggravated battery of Ms. Horne; and that the murders of Ms. Young and Ms. Woods were committed while the defendant was engaged in the
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,
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, 266 Ga. 812, 813 (2) (471 SE2d 208) (1996).
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,
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 1/86th section of the county picked specifically for having the highest number of Hispanics with the results extrapolated to the entire county. The State also pointed out several errors Morrow‘s expert made in her supporting data and that she had assumed a constant growth rate for the entire county population. Accordingly, the trial court refused to adopt Morrow‘s expert‘s Hispanic population percentage instead of the official 1990 Census statistics and we find that this decision was not clearly erroneous. See Linares, supra; Esle, supra (the trial court is not required to accept the defendant‘s figures if unreliable, even if unrebutted by the government); Reynolds v. State, 200 Ga. App. 43, 44 (2) (406 SE2d 553) (1991) (the weight to be given expert testimony, like that of any other witness, is to be determined by the trier of fact, and the trier of fact is not bound by expert testimony). See also UAP § E (jury certificate population numbers to be drawn from the “most recent decennial census“). It was not unreasonable for the trial court to refuse to credit Morrow‘s expert‘s Hispanic population estimates when Morrow‘s test census was based on a 1/86 section of the county picked for its high number of Hispanics and extrapolated to the county as a whole. It was also reasonable for the trial court to note that the 1990 Census was a federally-funded
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, 256 Ga. 113, 115 (8) (344 SE2d 402) (1986) (6% absolute disparity of blacks and 7.1% absolute disparity of women on grand jury list not a violation of
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
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, 251 Ga. 255, 260 (6) (304 SE2d 882) (1983). There was sufficient probable cause for this arrest and for the arrest warrant that was issued in Hall County at approximately the same time. Mincey, supra; Goodman v. State, 255 Ga. 226, 229 (13) (336 SE2d 757) (1985) (probable cause may rest upon the collective knowledge of the police).
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, 270 Ga. 798, 800 (2) (514 SE2d 1) (1999).
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
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
(b) To justify a change of venue, the defendant must show that
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, 268 Ga. 47, 48 (485 SE2d 741) (1997), quoting Wainwright v. Witt, 469 U. S. 412, 424 (II) (105 SC 844, 83 LE2d 841) (1985). Despite some equivocation, juror Wilkerson stated that he could never vote for the death penalty, even in the worst case he could imagine. See Greene, supra at 48-50. The trial court did not err by excusing several other jurors for bias against the death penalty. Greene, supra. The trial court also did not improperly restrict voir dire. The scope of voir dire generally is left to the trial court‘s discretion and the extensive voir dire in this case was sufficient to ascertain any bias held by the prospective jurors.
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, 269 Ga. 646, 652 (6) (d) (501 SE2d 219) (1998) (a prospective juror is not disqualified merely for leaning for or against a death sentence); Greene, supra. Prospective juror O‘Kelley had also been a sorority sister of the district attorney 20 years ago while in college, but she has had only limited contact with her since that time. Juror
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, perma-
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, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
9. Morrow claims that the trial court erred by permitting evidence of three incidents as prior difficulties. See Wall v. State, 269 Ga. 506, 509 (2) (500 SE2d 904) (1998). He asserts that testimony concerning Ms. Young‘s statements to others about Morrow‘s violent acts and threats, was inadmissible hearsay which was erroneously introduced under the necessity exception to the hearsay rule. To satisfy the necessity exception to the hearsay rule, the proponent must show a necessity for the evidence and a circumstantial guaranty of the statement‘s trustworthiness. Perkins v. State, 269 Ga. 791, 795 (4) (505 SE2d 16) (1998); McKissick v. State, 263 Ga. 188, 189 (3) (429 SE2d 655) (1993). The necessity for the use of the hearsay in this case was shown by Ms. Young being unavailable to testify due to her death. Her statements to others about the prior difficulties were relevant to establish motive, intent, and bent of mind resulting from Morrow‘s relationship with her. Her statements about violence and threats in the relationship were more probative than other evidence about the prior difficulties. Clark v. State, 271 Ga. 6, 9 (5) (515 SE2d 155) (1999) (establishing elements necessary to show first prong of necessity exception); Wall, supra (explaining rationale for admission of prior difficulties). The circumstantial guaranty of trustworthiness is shown by the following evidence regarding the prior difficulties:
(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, 266 Ga. 174, 178 (5) (465 SE2d 672) (1996). In addition, a fifth witness testified for the State that she personally saw Morrow
(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
11.
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.
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, 261 Ga. 778, 782 (7) (b) (415 SE2d 158) (1991); Turney v. State, 235 Ga. App. 431, 434 (2) (509 SE2d 670) (1998). Morrow admitted at trial that he knew Christopher was present in the home before he began killing the victims. Christopher testified that he saw Morrow enter the apartment. When the shooting erupted in the kitchen, he grabbed his baby brother and tried to hide with him in a closet in their bedroom. Christopher peeked into the hallway and saw Morrow seize his mother by the hair and shoot her in the head. The trial court properly denied Morrow‘s motion for a directed verdict of acquittal on this charge. Raulerson, supra.
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;
15.
16. Execution by electrocution is not unconstitutional. DeYoung v. State, 268 Ga. 780, 786 (6) (493 SE2d 157) (1997).
17. Morrow‘s death sentence was not imposed as the result of passion, prejudice or any other arbitrary factor.
Judgments affirmed. All the Justices concur, except Sears, J., who concurs in part and dissents in part.
APPENDIX.
Gulley v. State, 271 Ga. 337 (519 SE2d 655) (1999); Palmer v. State, 271 Ga. 234 (517 SE2d 502) (1999); Cook v. State, 270 Ga. 820 (514 SE2d 657) (1999); Jenkins v. State, 269 Ga. 282 (498 SE2d 502) (1998); DeYoung v. State, 268 Ga. 780 (493 SE2d 157) (1997); McMichen v. State, 265 Ga. 598 (458 SE2d 833) (1995); Tharpe v. State, 262 Ga. 110 (416 SE2d 78) (1992); Lynd v. State, 262 Ga. 58 (414 SE2d 5) (1992); Stripling v. State, 261 Ga. 1 (401 SE2d 500) (1991); Ford v. State, 257 Ga. 461 (360 SE2d 258) (1987); Childs v. State, 257 Ga. 243 (357 SE2d 48) (1987); Romine v. State, 256 Ga. 521 (350 SE2d 446) (1986); Cargill v. State, 255 Ga. 616 (340 SE2d 891) (1986).
SEARS, Justice, 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. State2, I dissent to Division 17 of the majority opinion, and to the affirmance of the death penalty as it requires death by electrocution.
DECIDED JUNE 12, 2000 — RECONSIDERATION DENIED JULY 28, 2000.
William M. Brownell, Jr., Harold M. Walker, Jr., for appellant.
Lydia J. Sartain, District Attorney, Lee Darragh, Lisa A. Jones, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Karen N. Anderson, Assistant Attorney General, for appellee.