Thomason v. State

error based on I that there no reversible instruction, conclude was only I to Divi- addition, judgment in this In concur the case. charge majority opinion. sion 6 of — July 16, 1997 Decided July 30, 1997.

Reconsideration denied Combs, for Reginald Bellury, appellant. L. Brian G. Baker, Attorney E. Attorney, Thurbert

Fredric D. District Bright, General, Attorney Wesley General, Susan V. Senior Assistant Boleyn, General, Attorney appellee. Homey, S. Assistant THE STATE. S97P0285. THOMASON Justice. Sears, trial, Gary a Chad Thoma- Following three-day appellant bench of a murder, burglary, possession malice and son was convicted of of The trial burglary.1 a felon the commission a by during firearm conviction, find- to death for the murder court sentenced Thomason statutory circumstances that murder was ing aggravating during burglary, commission a and for purpose committed of things monetary appeal, value.2 On we obtaining money and sup- find trial Thomason’s motion to properly that court denied evidence, that pre- because the searches and seizures press certain of such were We also cipitated permissible. the cоllection evidence find trial into two properly eyewit- that court admitted evidence scene, as he the murder Thomason, ness identifications of made fled 21, 1992, originally August later The crimes on and Thomason was indicted occurred year. original prossed, May That and on same indictment was nolle murder, felony murder, burglary, possession of a was for malice two counts of re-indicted crime, by dining possession of a a convicted felon. firearm the commission of a firearm 2, 1995, jury mentally competent May September trial. On On a found Thomason to stand right charges. Sep 27,1996, jury of his trial on the indicted On Thomason filed a waiver 3, 1996, 30, 1996, through jury tember October Thomason was tried without before 3, 1996, Floyd County Larry Superior Hon. Salmon of the Court. On October F. murder, felony guilty felony murder murder and with the conviction found malice law, merging by operation burglary, pos the malice counts of into murder conviction two during burglary, possession of a firearm a session of a firearm the commission of a 3, 1996, for the mur felon. On sentenced to death malice convictеd der October Thomason was conviction, years twenty burglary, years for each of the two for each count of five convictions, years consecutively. transcript was firearm each term of to run The certified 4,1996. appeal reporter A the court on No for new trial was filed. notice of November motion 1,1996. timely appeal superior was docketed filed court November 10,1997. 13,1996, orally argued Court on November on March (4). (b) (2), 17-10-30 § OCGA no because substantial likelihood of misidentification existed. Fur- thermore, to the extent the trial court failed to the proce- follow dures delineated in the Unified Appeal Procedure, no reversible error Finding occurred. no error associated with the remaining enumera- tions raised on we affirm. appeal,

Evidence was introduced at trial showing shortly before 21, 1992, August noon on Floyd County officers police received an call from emergency telephone Jerry Self, Self. who called the police phone, his cellular reported upon driving into the driveway of home, his he had discovered an unfamiliar Oldsmоbile Cutlass Officers parked carport. Corbin and Logan responded to Self’s call, emergency they and as the approached residence, Self they in slowly drove order to see the house numbers. Because it was rain- ing heavily, the officers rolled down patrol the car’s in windows order to better observe the house numbers. As came they yards within 100 residence, of the Self Officers and Logan Corbin saw and heard approaching automobile them from the direction of the Self resi- dence. As the two cars approached another, one the officers observed the other car was a light brown 1978 or 1979 model Oldsmobile Cutlass, with a lighter top, brown that was traveling approximately thirty hour, miles an accelerating. was The officers testified another, as the two cars one passed the driver of the Oldsmobile them, looked directly at and they observed that the driver was a hair, white male with brown curly and that he was wearing a black cap. baseball

The officers continued to residence, and, the Self upon pulling driveway, into the a body saw on the lying ground, later identi- fied Self. times, as He had been shot several and was dead when the officers arrived. Self’s truck house, was found in front of the with the engine still The running. side window of the truck broken, had been and there was blood on the front seat. A window on the front of the Self broken, residence had been and the house had been burglarized. It later was discovered that earlier day, that same another house on street, the Blaylock residence, same the had been in burglarized a similar manner.

Local police were alerted to be on the lookout a for brown 1978 or Cutlass, 1979 Oldsmobile described as being [brown] “not as dark cars,” the sheriff department’s with a lighter top, being brown driven by a Shortly thereafter, white male. a vehicle and driver matching that description were seen a convenience leaving nearby store Cal- houn. After following the Cutlass for approximately minutes, five City of Calhoun police car, officer Gilbert the stopped which was being driven appellant Thomason. Thomason was аsked to step vehicle, out of the and was down” “patted officer. The officer discovered a cigarette lighter in Thomason’s pocket, which he that Thomason’s observed Officer Gilbert to Thomason.

returned begun only just though soaking rain clothing it had wet, even was appeared lightly shirt very area, and that Thomason’s in the Calhoun a to search Thomason consented on it. After stains to have blood currency crumpled on the observed Gilbert also Cutlass, Officer appeared on it. Officer Gilbert to have fresh blood console car’s placed him in the back Gilbert’s handcuffed then patrol car. County Department Floyd on on sergeant arrived Police A with currency stains on shown the blood scene, and was

the Thomason’s piece sergeant mate- cut a of the blood-stained shirt. bag. plastic placed At that it in a shirt tail off Thomason’s rial point, Floyd County placed ser- in the back of was sergeant doing geant’s patrol that, however, the con- car. Before doing, “pat discovered Thomason, аnd in so a second down” ducted engraved pocket lighter the murder in Thomason’s He also discovered that victim’s gold ring chains and two name. pocket, later determined to have been were both which Thomason’s taken burglary. Blaylock Cutlass was taken The Oldsmobile facility. nearby holding stopped, Approximately minutes Officers after Thomason Logan Thomason as scene, and identified arrived on the and Corbin driving away they from the Self residence. had seen the individual They had as the car the Oldsmobile Cutlass later identified accelerating away items dis- the crime scene. Several from observed having taken from the Cutlass were identified covered Blaylock had died determined that Self It was residences. Self caliber-type gunshot made a .38 bullet. wounds, each from three following missing Among the bur- Self residence from the the items magnum pistol, glary was loaded with which sometimes a .357 Laboratory analyses later determined ammunition.3 .38 caliber blood. shirt matched Self’s stains on Thomason’s the blood favorably that the verdict, we determine most 1. Viewed a rational trier of to enable at trial was sufficient evidence introduced guilty beyond that Thomason was a reasonable doubt fact to find for which he was convicted.4 the crimes denying argues his erred in that the trial court Thomason 2. gathered suppress the State’s war- as a result of evidence motion to making this car. In of him and his seizures and searches rantless stop investigatory argument, Officer Gilbert’s Thomason claims that suspicion, upon and articulable reasonable of him was not based however, weapon, never was recovered. The murder Virginia, SC 61 LE2d 443 U. S. 307 Jackson v. illegal. argues investigatory if thus was was Thomason also that even the stop legal, subsequent search of the Cutlass exceeded the stop, permissible. bounds of such a further and was not otherwise Thomason alleges upon probable cause, that his seizure was not based police person and that the search his was unreasonable. We will address each of these contentions in turn.

(a) argues investigative stop that the himof Cal- impermissible, houn Police Officer Gilbert was based with the rational because it was not upon specific together that, and articulable facts when taken arising provided requisite therefrom,

inferences suspicion resulting reasonable to warrant the intrusion.5 It is estab- making determination, lished we examine whether the detaining particularized objective officer had a basis for reasona- bly suspecting particular stopped that the individual was or had been engaged activity.6 in criminal

Applying principles these case, to this we find that the initial stop upon suspicion. Contrary of Thomason was based reasonable argument, generalized Officer Gilbert had more than a description suspect seeking driving. of the he was and the car he was top, Officer Gilbert knew the color of both the car and its the manu- year gender facturer, model, car, and model of the and the driver’s provide and race. That detailed information was sufficient to Officer requisite particularized Gilbert with the basis to warrant the investi- gative stop of Thomason.7 precedent upon by arguing stop relied suspicion, supra, factually not Vansant, based on reasonable

distinguishable. investigating only Vansant, In officer knew suspect being vehicle awas white van in an driven intoxicated male, manner the a white and the officer admitted that he detained suspect only driving because he was a white vehicle.8The officer distinguish stopped in Vansant had no information to the van he vans, from all other manufacturer, model, white such as its or model year. upon contrast, In Thomason’s detention was initiated a much particularized description suspect specific more vehicle.9 That and articulable information was sufficient to warrant Officer Gil- suspicion bert’s reasonable that the car and its driver were sub- 5 (88 889) Ohio, 1, Terry 1868, State, (1968); See v. 392 U. S. 21 SC 20 LE2d Vansant v. (443 474) (1994). 319, 264 Ga. 320 SE2d 6 (101 621) Cortez, (1981). 411, 690, United States v. 449 U. S. 417-418 SC 66 LE2d 7 (455 333) (1995) (reasonable Hestley 573, App. suspi See v. 216 Ga. 574 investigative stop premised upon description cion found suspect where was vehicle was Chevrolet). panel many a white van without windows believed to abe 8 Vansаnt, 264 Ga. at 321. 9 (indicating particularized description suspect may, See id. that a of a vehicle in addi factors, provide requisite investigative tion stop police). to other for an basis

302 Floyd County generated by police, jects request of the lookout investigative stop. thus warranted

(b) argues investigative stop sup if the was even subsequent ported by suspicion, search of warrantless reasonable investigative stop, of an and was not his car exceeded the limits based exigent upon probable circumstances, thus ren either cause or undisputed dering illegal. However, that, after Officer Gilbert it it is appropriately investigative stop con of Thomason and initiated weapons, sought “pat-down” in he a order to search ducted the Cutlass’ interior. While received Thomason’s consent to search freely proving and vol carries the burden of the State untarily ings supporting ‍​‌‌‌​‌‌​​​‌​​‌‌​​​‌‌‌‌‌​​​​‌‌​‌‌​‌​​‌​​​‌​​‌‌‌​‌‍search,10 in the trial court’s find consented to the inherent suppress finding is the the denial of the motion voluntarily.* made Our own review of that consent to the search was the is considered from record leads us to the same conclusion. Voluntariness consent circumstances,12 all of the and none of the facts attendant search of his to this claim indicate that Thomason’s consent any coercion, car duress or other was result impermissible investigatory stop Insofar as the of Thomason factor. nothing subsequent lawful, it did to taint the search of the car’s was interior. Because valid consent

to search the interior of Thomason’s probable existed, car the need for either cause or search warrant eliminated.13 was (c) bloody currency observing In addition to on the Cutlass’ que- shirt, console and the stains on Thomason’s Officer Gilbert blood why soaking only wet, ried Thomason on light response his clothes were when falling gave implausible rain was the area. Thomason hearing question. this Officer testified at the on Gilbert question, suppress the time he the motion to knew that it was that at asked raining heavily Floyd County, where the murder may suspected occurred, that Thomason have come from that being stopped. It after all of this information direction before placed gathered that Thomason was handcuffed and the back (93 854) Bustamonte, 218, 2041, (1973); v. 412 U. S. SC 36 LE2d Schneckloth Hestley, App. 216 Ga. at 575. (394 542) (1990). 635, Hestley, App. supra; See Garcia v. 12Schneckloth, 412 S. at 226. U. 13Id., any contention that evidence 412 U. S. at 222. Nor is there merit to Thomason’s custody part seized as of a search of the Cutlass after it was taken into should have been suppressed police such search. When officers have because no warrant was obtained before probable suspect an automobile that has cause to there is evidence of a crime inside road, vehicle, stopped they may it conduct a warrantless search of the even after Thomas, 259, police custody. Michigan impounded v. 458 U. S. has been and is in 3092, 49 3079, Opperman, SC LE2d See South Dakota v. 428 U. S. 364 SC 419) Maroney, 399 U. S. 47-49 SC 26 LE2d LE2d Chambers (1970).

303 that patrol argues of Gilbert’s car. Thomason his seizure constituted arrest, an because Officer did not recover incrimi- illegal any Gilbert nating during evidеnce his down” of Thomason. “pat at the handcuffed and in

Obviously, point placed where was car, the of the patrol custody back Thomason was and not free to However, leave the scene. we believe Thomason’s seizure was In permissible. gathered addition to the information he after initiat- ing investigative the Officer knew at the time he stop, placed Gilbert in custody that both Thomason and the car he driving matched the of the description leaving car driver seen the scene of the That degree murder. considered in its knowledge, entirety, would justify person reasonable caution to believe it probable committed, offense had been and thus the provided probable cause to take required custody of Thomason.14

(d) Finally, reject we Thomason’s claim that gath- evidence ered from his should person suppressed. have been lighter jewelry discovered his were seized as of a pocket part search inci- arrest, dent to a lawful at the Floyd County conducted time officers took сustody of Thomason.15 The blood-stained piece Thomason’s shirt in plain arrest,16 view at the time of the search incident and was removed and in a placed protective bag order to preserve evidence, as it had rain begun heavily rather at the scene.17 Like- wise, swabs of blood were permissibly taken from Thomason’s skin surface after he was taken into custody, they also evi- preserved dence. Thomason concedes that before of his samples own blood were withdrawn, a valid warrant was obtained. reasons,

For all of reject these we argument trial court erred by denying his motion to suppress evidence.

3. Thomason claims that the trial court erred in his denying motion to suppress Logan’s Officers Corbin’s and testimony identify- him as the ing driving individual observed Cut- Oldsmobile (1) away lass from the murder scene. Thomason claims that the con- ditions attending sighting the officers’ first of Thomason created a (2) misidentification, substantial likelihood of unnecessarily sug- gestive procedures corrupted officers’ identification of Thomason after he had taken police custody. into

Factors to be in determining considered admissibility eye (1) witness identifications include the witness’s to view opportunity 14 560) (335 (1985). 101, See Lewis v. (94 Robinson, 467, See United States v. 414 U. S. 218 SC 38 LE2d Preston 777) (1964). States, 364, 881, v. United 376 U. S. 11 LE2d SC California, 2301, See Horton v. 496 U. S. SC 110 LE2d 900) (1973) (in Cupp Murphy, pre See 412 U. S. 291 SC 36 LE2d order to evidence, may permitted). vent the destruction of a limited and warrantless intrusion be (2) degree of atten- crime; the witness’s time of the accused at the

the tion; (3) prior description accuracy accused; of the witness’s (5) (4) certainty confrontation; and at the level of the witness’s length the confrontation.18 the crime and of time between approached patrol Thom- car as their

The officers admitted patrol heavy obscured car’s windshield Cutlass, rain on the ason’s they had rolled However, the officers also testified vision. their passenger-side in order to see windows driver- and down both their patrol clearly. passed car, its driver-side As the Cutlass more cars testified that the two The officers also was rolled down. window passed passed, another, that as the cars several feet of one within “eye eye” at each other the officers looked Thomason and Knowing through they open three to five seconds. windows for they emergency residence, call where the were near the Self responding originated, was acceler- had and that Cutlass were ating stated to one another direction, the officers had from that extremely they pay of the Cutlass to the driver close attention should reject passed. circumstances, Thomason’s con- these we as he Under likelihood of misidentification that there was a substantial tention sighting of him.19 the officer’sfirst associated with Logan’s of Thomason after Corbin’s identification Officers descrip- custody initial reliable. The officers’ was taken into tion also was dispatcher, identifi- made before their of Thomason to the radio speaking Moreover, with the dis- him, accurate. after cation of was description patcher, of Thomason a more detailed the officers radioed holding police Thomason, and that were to the officers who Calhoun place up,” description took no accurate. At the “show which also was Thomason, the officers hour after the officers first saw more than one were leaving they entirely had seen that it was Thomason confident establishing Biggers Thus, all of the criteria the murder scene. the reliability eyewitness satisfied in this identification are case. support claim that the officers’

Nor does the record Thomason’s custody by into was tainted identification of him after he was taken impermissibly suggestive procedures. claims that radioed County Floyd police officers and communications between Calhoun pro- up” Logan corrupted identification the “show officers Corbin 18 19 Biggers, SC 34 LE2d Neil v. 409 U. S. (even light See, adequate and moon e.g., Biggers, artificial 409 U. S. at 200 under suspect under attentive circum light, was made where the witness’s frontal view misidentification). give stances, credence to Nor do we there no substantial likelihood of they not the fact that did inattention is demоnstrated Thomason’s claim that officers’ tag that the rain obscured on the Cutlass. The officers testified observe the license number tag window, they have seen the patrol and thus could not their out of their car’s rear view away. number as the Cutlass drove police stopped they Thomason, cedure. After Calhoun radioed Corbin Logan they seeking. and Corbin and asked them to describe the man were Logan slightly so, more did detail than had done initially police dispatcher. police responded Calhoun then got Logan pro- him,” “we’ve and confirmed that Corbin and should reject up” argument ceed to the “show identification. We single got sug- impermissibly statement “we’ve him” was so gestive swayed to have Thomason’s identification two trained law plainly leaving enforcement officers who had viewed him the scene of of the tran- reading Rather, a crime less than one hour earlier. our script of the radioed communications indicates that the Calhoun police merely being suspect officers’ statement confirmеd that a description, Logan held who matched the lookout and that Officers proceed deny and Crawford should to either confirm or proper apprehended. individual had been argues

4. Thomason that his conviction must be reversed by failing procedures because the trial court erred to follow several (“UAP”). Appeal delineated in the Unified Procedure The record on appeal complied virtually shows that while the trial court all of procedurally by complying directives, the UAP’s it erred not with sev- key portions However, eral suffered and thus no reversible error exists. of the UAP. we determine that Thomason

absolutely actions, no harm as a result of the trial court’s (a) requires The UAP the trial court to ‍​‌‌‌​‌‌​​​‌​​‌‌​​​‌‌‌‌‌​​​​‌‌​‌‌​‌​​‌​​​‌​​‌‌‌​‌‍review section one of the proceeding,” UAP checklist with counsel for both sides at the “first to to pre-trial raise, determine what issues the defense intends to hearings any issues, schedule any on such and to remind counsel that timely may Examples such issues not raised be waived.20 types pre-trial issues included seсtion one of the UAP checklist challenges grand jury pools, are seizure and traverse and search and

challenges. Thomason claims that the trial court committed by reviewing reversible error not the UAP checklist with counsel at by proceeding, scheduling the first to review the issues set forth in the checklist. not a later conference in order transcript proceeding21 Our review of the of the first shows represented by proceeding, Thomason was new counsel at that proceeding, requested that at the first counsel that the trial court procedure scratch,” “start from and “follow the normal in a death penalty ing, copies transcript proceed- case.” The also indicates that at the first provided

of the UAP checklist were to counsel for both sides, not and defense counsel informed the trial court that he could (A) (8) (set (1989)). Georgia Rules, See UAP II forth in the Court and Bar Ch. 9 § proceeding against refer held on the indictment issued We here to first second Thomason, supra. proceed as the State did not оn the first indictment. See n. challenge jury pools,22 he intended

state at that time whether not familiar entirely retained and was only recently as he had trial for the this, find that it was reasonable the case. From we cer- any not state with defense counsel could court to conclude that he intended to included in the checklist issues tainty pre-trial what the trial court at the first proceeding, also note that raise. We case, entry late into that, of defense counsel’s instructed because the first proceeding have been filed before motions that should any thereafter, timely- all and that days ten accepted would be within Finally, we upon.23 ruled promptly motions would be heard filed filed motions proceeding, to the first subsequent note one of the the issues set forth section many to a pertaining great heard and ruled checklist, all of those motions were UAP and that the trial factors convince us the trial court. These while upon by the UAP section one of by reviewing not procedurally court erred in order to determinе at the first proceeding checklist with counsel raised, that action did not prevent would be pre-trial what issues full to raise those issues having opportunity Thomason from Thus, harm resulted from the court. as no by have them decided actions, error exists.24 trial court’s no reversible of conferences on great pre-trial The record that a number shows court, and that several and held the trial issues were scheduled at the of defense request conducted ex parte such conferences were did not claim that the trial court Thus, reject counsel. we Thomason’s at court- him to raise the issues pre-trial afford sufficient opportunity scheduled conferences.25

(b) erred not asserts that the trial court incorrectly any objection he had of him at the first whether inquiring proceeding of the first transcript of his defense.26 The handling to his counsel’s the trial court did make however, shows that proceeding, his coun- he was satisfied with replied and that Thomason inquiry, sel.

(c) hearing pre-trial trial court’s Regarding the (1) motions, that the trial court failed to review Thomason complains sides, and counsel for section one of the UAP checklist with both not raised issues potential pre-trial determine whether there were (A) (5). See UAP II§ proceeding, transcript defense counsel informed also reveals that at the first challenging competency to stand file a motion Thomason’s trial court that he intended to trial, compe urged pre-trial not be addressed until that certain other issues should tency by special jury. See Division infra. issue was resolved 24 Ga. 70 Bryant see Anderson v. 258 236 Ga. 790 (c), infra. See also Division (A) (7). § See UAP II (2) inquire raised,27 that should have been whether defense coun- explained rights regarding any sel had to Thomason his issue not transcript hearing, raised.28 The shows that at the motions the trial counsel, court did not review the UAP checklist with and did not inquire of Thomason whether he had discussed issues not raised with hearing, However, at heard, his counsel. the trial court consid- upon pre-trial ered and ruled over 40 motions. Thomason did not hearing, argue appeal, aver at the motions nor does he comply trial court’s failure to prevented with these two directives of the UAP raising any pre-trial him from meritorious issue that could during Moreover, have asserted. on several occasions both following hearing, inquired the motions the trial court of Thomason performance, whether he was satisfied with his counsel’s and each responded affirmatively. time he that, These factors convince us procedurally by complying while the trial court did err not with the (B) (2) precise UAP, directives of section II of the no harm resulted rendering therefrom, the error harmless.

(d) reject improp- We Thomason’s assertion that the trial court erly pre-trial untimely ruled that his motions were because arraignment. transcript were not filed before his shows during hearing, the motions the trial court commented that because pre-trial motions should have been filed before his arraignment, they appeared untimely. Nonetheless, to be the trial arguments pre-trial court went on to hear consider the merits of each such on each filed, motion upon

motion, and to rule each upon contrary Thus, motion based its merits. to Thomason’s asser- dispose pre-trial simply by tion, the trial court did not of his motions ruling untimely, the motions were and this enumeration is rejected. entirety pre-trial proceed- conclusion,

In our review of the ings procedurally by confirms that while the trial court erred not complying precise UAP, with all of the directives of the it nonetheless accomplished purpose by taking steps designed UAP legal all raised, ensure that issues that should have been raised were upon upon.29 appeal, merits, considered their and ruled On Thoma- procedural prejudiced son does not claim that the trial court’s errors any simply procedural Rather, him in manner. claims that the standing errors, alone, mandate reversal. Because it is irrefutable resulting prejudice harmless, that error without conclude that we conducting Thomason also claims that the trial court erred not this review follow However, ing hearing obligation impose the motions but before trial. the UAP does not on the trial court. (B) (2). See UAP II§ (A) (1). See UAP I § complained irregularities procedural case do pre-trial of

the trial. not a new warrant by requiring him to that the trial court erred Thomason claims 5. determining competency plea prior At to stand trial. his enter a appearance informed that counsel, trial court was of the the first Thomason intended to would be competency

challenge trial, and to stand that issue. his jury special requesting Thoma- that a determine arraign- arraignment subsequently scheduled, at the and was son’s plea being required objected to enter a before ment, Thomason competency rule forth in violated the set was resolved the issue of his plea to enter a accused cannot be forced v. State30 that an Martin competency trial remains unresolved. to stand the issue of his while plea. arraignment, did not enter a However, at the opted mute, and, at invitation, he to stand Rather, the trial court’s at guilty plea the clerk direction, was entered triаl court’s a not the being undisputed that Thoma- It the on Thomason’s behalf. of son was not forced to enter court competency plea his a the issue of before principle forth in determined, set there was no violation rejected.31 supra, Martin, and this enumeration seeking parte of motion funds between 6. Thomason filed an ex employ expert in $17,000 $20,000 an the field with which to analysis, $18,000 $24,000 with which to DNA employ between expert pathologist. parte motion, Thom- In his ex an forensic (1) necessary expert explained that the services of a DNA were ason effectively against him, which would for him rely to rebut the State’s case analyses samples upon primarily taken of blood the State’s DNA (2) scene, victim, Thomason, and that he from the crime required the expert pathologist “the forensic because the services of along physical scene, the with the absence of certain evidence at [by State] the tends to establish nature of other evidence identified [his] . . . innocence.” parte hearing motiоn, at the

An ex was initiated on this which greatly approxi- trial court stated that it was mately concerned about requested employ $40,000 had these in fees that Thomason candidly experts. to its lack of two investigative The trial court admitted due intelligent resources, it not make an decision on could sought develop In order to addi- whether the fees tional facts were reasonable. expert concerning services the reasonable costs (1978). App. Ga. case, Moreover, factually distinguishable we note that Martin is from this guilty competency appellant plea his remained in Martin entered a while issue of unresolved, accepted plea thereon. 147 Ga. and the trial court and entered a sentence case, course, any plea, App. only Thomason not forced to enter at 173. In this not Thus, outstanding compe guilty plea issue of Thomason’s not was entered on his behalf. guilt. adversely adjudication tency impacted or could not have the fair of his innocence parte sought, motion for trial court unsealed Thomason’s ex response. subsequent At a funds, and served it on the State for its hearing, inquired of the State amount of fees it the court what objectively expert would, viewed, be for the when reasonable believed responded inquiry, to that it was excused services. After the State hearing courtroom, and the on Thomason’s motion was con- from the tinued ex parte. by unsealing court his ex

Thomason claims that the trial erred seeking parte funds, that action revealed his trial motion because concomitantly revealing strategy strategy. without the State its indigent long recognized It has that an defendant has necessary meaningful right participation in to seek funds to his judicial liberty proceeding where his and life are at stake.32 While exercising right, right maintain that a defendant also has the to the preparation reason, secretive of his defense.33For that this Court has showing attempting required in held that when to make the order to public expert,34 funds for the of a a defend- obtain ant cannot be sеrvices scientific

placed position “revealing theory in the his legitimate making showing case,”35and thus has a interest in ex parte.36 forcing However, court, the trial its discretion ‍​‌‌‌​‌‌​​​‌​​‌‌​​​‌‌‌‌‌​​​​‌‌​‌‌​‌​​‌​​​‌​​‌‌‌​‌‍and without of the theory may case, a defendant to reveal his issues reserve parte separate hearing raised which the State is an ex motion to be heard at a at

present.37 precepts mind, With these we determine that the trial court’s unsealing parte improp- of Thomason’s ex motion for funds did not theory challenge erly sought reveal his of the case. That Thomason testing, already performed, the State’s DNA be considered a secretive trial which had cannot

strategy. very gen- Furthermore, the sought eral statement that Thomason to establish his innocence along through physical scene, “the absence of certain evidence at the standing vague evidence,” alone, is so with the nature of other meaning insight specific as to offer no into its whatso- inconclusive hearing, regard, parte it nec- ever. In this essary wе note that at the ex court rather for defense counsel to elaborate for the trial extensively exactly on what was meant this statement. sought

Regarding hearing, considering the that Thomason employ approximately $40,000 two scientific funds with which to say by seeking experts, addi we cannot that the trial court erred 35Brooks, 259 Ga. at 566. 36 Id. 37 Id. Ake v. See Roseboro fírnnív Ga. Oklahoma, OfíQ fio 563-565 470 U. S. tóete 68, 81) (1989). SC 1087, 84 LE2d see Brooks v. of that the State as to the reasonableness tional information from request. clearly hearing, that Thomason the the trial court stated At pres- strategy required State’s his trial not be to reveal would long present, transcript the State was ence, shows that so only the reasonable amount of fees issues discussed were sought, scope expert proper required services should be such similar services. All matters for charged experts for the same or services, and other had what touching strategy on trial were reserved parte. facts, trial ex Under these court until could be heard position improperly place where, in Thomason in a order did not employ showing required public funds with which to make the theory expert, Therefore, had his of the case to the State. to reveal reject we this enumeration. denying its discretion in Thoma-

7. The trial court did not abuse scene reconstruc- son’s motions for funds with which to hire crime indigent’s expert psychologist. An motion for and an forensic tionist the with reasonable appointment expert inform the trial court of a defense should type

precision why critical, certain evidence is what testimony expert proposes needed, to do of scientific what regarding anticipated evidence, and the costs for the services sought.38 discretionary ruling abuse, on a crimi- Absent a trial court’s appointment expert nal motion for the of an witness will defendant’s upheld.39 be motion,

In Thomason did not establish that the services of a his defense, and it is crime scene reconstructionist were critical to his apparent of a reconstructionist did not render his absence fundamentally sought аppointment had trial unfair.40Thomason [crime] expert of an reconstructionist in order to “recreate the scene” theory in State’s of how the and demonstrate inconsistencies theory presenting murder was committed. In its as to how Thomason might upon murder, committed the the State relied the testi have by mony police captain. granted funds the trial of a Thomason was investigator, professional court which to hire a and we believe with investigator’s ability the crime and draw that the to evaluate scene regarding conclusions equivalent the murder’s commission was the substantial Considering circumstances, these

of the State’s witness.41 we conclude that Thomason has failed to establish that it was critical granted expert that reconstructionist hire an crime scene he be additional funds to theory. effectively

in the State’s order to rebut denying Accordingly, in the trial did not abuse its discretion court Roseboro, Crawford, v. 258 Ga. at 39. Roseboro, Crawford, supra; 258 Ga. at 41. Roseboro, See 258 Ga. at n. 3. id., See 258 Ga. at 40. motion. denying Thoma- in its discretion the trial court abuse did Nor psychologist, request Dr. hire a forensic which to for funds with son’s showing to he made a sufficient asserts that Thomason Cheatum. by performed psychiatric independent evaluation him to an entitle compe- of Thomason’s defense on the issues to assist his Dr. Cheatum tency sentencing purposes. mitigating Thomason’s evidence for and incomplete support argument mislead- of this enumeration per- competency ing. evaluation was shows that after The record sought expert, by court-appointed funds for Thomason formed independent competency by The trial court Dr. Cheatum. evaluation purpose, granted con- and Dr. Cheatum $3,500 for that Thomason independent then of Thomason. Thomason evaluation ducted an sought psychological evaluation $25,000 for another an additional response background. In social and familial focused on his formative to that present request, further Thomason to the trial court ordered specific To assist of his need for the evaluation. evidence providing gathering an order evidence, the trial court issued in him such hearing, parte Thom- In an ex his official records. access to all of presented records, and the evidence from those official ason evidence psychological presented evaluation establish that the second failed to Furthermore, we conclude Thomason’s defense.42 was critical to independent psychological did evaluation of the second the absence not render Thomason’s fundamentally Thus, trial unfair. trial denying this motion.43 did not abuse its discretion court reject court erred claim that the trial 8. We samples admitting of the vic- of his and the blood into evidence blood adequate testimony shows that an A and evidence tim. review of samples, respect custody to the blood chain of was established routinely, samples main- and that were were handled properly the time of their collection in a condition from tained through sealed Laboratory. Nothing delivery their to the State Crime samples legitimate suspicion admitted the blood record raises a samрles evaluated, that were into evidence were not record identities.44 samples’ provides requisite assurances of the reasonable refusing to sever did not abuse its discretion 9. trial court hearing parte Thomason was entitled At the ex held to establish whether evaluation, presented $25,000 psychological evidence that in fees for a second elementary depression, drug that his in-patient abuse and had received treatment reading comprehension spelling, that an ele schooling marked difficulties in learning to a nervous mentary psychologist difficulties school had attributed memory system disorder. disfunction and visual 43 (386 316) (1989). 717, State, SE2d v. 259 Ga. 724-725 See Isaacs 44 (388 519) (1990). State, Stephens 820 SE2d See v. 259 Ga. 312

four counts of the indictment relating burglary of the Blaylock residence and the possession of a firearm a by convicted felon. Evi- dence showed that all of the crimes with which Thomason was charged were committed within approximately one hour of each other, and constituted a performed series acts part of a single scheme or plan.45

10. As each count of the indictment stated the essential elements of the crime charged, the indictment was sufficient to put Thom- ason on notice of the charges he needed to against, defend trial properly court denied Thomason’s motion to quash.46 Georgia’s 11. death penalty statute is not unconstitutional 47 any of the reasons asserted 12. The trial court did not abuse its discretion in denying Thom- ason’s motions asking each member of the defense counsel team provided be with a daily transcript of the trial court’s proceedings. Not only has Thomason made no showing that the denial of these motions prejudiced his defense in any way, Georgia law requires only that counsel be provided with a copy once transcript proceed- ings are concluded and their has transcription been completed.48

13. The trial court did not abuse its discretion in denying Thom- ason’s motion for notice by the State of its intention to any use evi- dence “arguably subject to a motion to suppress,” as the law does require State to make such a disclosure.

14. The evidence supports the finding of the statutory aggravat- ing circumstances the murder was during committed the course of a burglary and was committed for the purpose obtaining money things monetary value.49 The imposition of the death penalty in this case was not extreme or excessive light the facts of this case, and, as evidenced the cases listed in the Appendix, is not dis- proportionate to the penalty imposed other cases. Judgment concur, All Benham, the Justices J, except C. affirmed.

who concurs in part and dissents in part.

Appendix. (455 61) Mobley State, v. 265 Ga. 292 SE2d (1995); Meders v. (411 491) State, 261 Ga. 806 (1992); SE2d State, Ford v. 257 Ga. 461 (360 258) (340 SE2d (1987); 891) Cargill State, v. 255 Ga. 616 SE2d (340 (1986); 862) State, Davis v. 255 Ga. 588 SE2d (1986); Horton v. (426 844) (1993). State, 5, See Davis v. SE2d States, (82 749, 240) (1962). 1038, See Russell v. United 369 U. S. 763-764 SC 8 LE2d (107 McCleskey 262) Kemp, See (1987); 481 U. S. 279 SC 95 LE2d Zant v. Ste (103 phens, 235) ‍​‌‌‌​‌‌​​​‌​​‌‌​​​‌‌‌‌‌​​​​‌‌​‌‌​‌​​‌​​​‌​​‌‌‌​‌‍(1983); 462 U. S. 862 SC 77 LE2d Crowe v. 265 Ga. 582 799) (1995). SE2d See also Rower v. 264 Ga. 323 17-8-5; See OCGA §§ 5-6-41. (b) (4). (2), § OCGA 17-10-30 State, 243 Amadeo v. Ga. State, 249 Ga. 871 718) (238 (255 (1979); State, 239 SE2d Bowden v. Ga. 821 627 905) SE2d (227 261) (1976); (1977); Stephens State, 237 SE2d v. Ga. 8) (224 State, State, v. SE2d Moore Pulliam v. 236 Ga. (213 Ga. SE2d part dissenting part. concurring Justice, in and in BENHAM, Chief Although I in conviction for concur the affirmance of Thomason’s penalty murder, I in the of the death cannot concur affirmance jury. Contrary imposed by following the trial court a trial without a analysis proportionality sup- majority, I a do not believe that ports of affirmance the sentence. required by § to conduct a review of the

We are OCGA 17-10-35 specifically penalty cases, in all death and to consider sentence “[wjhether disproportionate or the sentence of death is excessive imposed considering penalty the crime and cases, the the in similar both (3). (c) only § 17-10-35 Because we are the defendant.” OCGA (Art. appellate penalty Georgia VI, review Sec. court to death cases 1983) VI, of Ill, Ga. Const. and issue is one enor- because Par.. weighty responsibility approached gravity, this must be with mous faulty propor- special every Exacerbating care in case. the risk of a tionality analysis if of decisis: the stan- is the doctrine stare we lower single precedent case, and dard in a that case becomes for easier eas- imposition punishment in ier of most extreme available criminal jurisprudence.

Bearing I this mind, those in have reviewed case considerations of in of murder сonvictions in which the conduct the context other in this is that of case. It evident defendant was similar to majority opinion that was sur- from the facts set out in the prised burglary Thus, there is evidence that in a of the victim’s home. burglary for of and murder was committed course money things purpose obtaining However, value. when con- of and of proportionality, apparent sidering it case terms of burglaries the course and defendants have killed in of the same other other who felonies, thus met test for and crimes have whose aggravating met, have not circumstances Thomason’s crime subjected society’s punishment: State, v. White our ultimate 804) (481 felony (1997), defendant convicted Ga. 523 SE2d (defendant robbery, aggravated and assault two murder, armed and men, two to rob then shoot four others used assault rifles and died), imprisonment life terms of for whom sentenced to consecutive remaining twenty years felony murder, each each and count concurrently; Sterling State, v. count served to be 807) felony (1996), murder, mur- of malice SE2d der, defendant convicted (defendant burglary kidnapping aggravated and assault, way forced their into accomplice drug house of users and demanded from then money shot, victims who were taken into the woods and one in the mouth and the fatally face), other sentenced to life murder, for the assault, consecutive life term for aggravated two twenty-year concurrent terms for the kidnapping and burglary convictions; State, LeMay (1995), 265 Ga. 73 (vic- defendant found guilty burglary, armed robbery, and murder ransacked, tim’s home handguns several taken money as well as stabbed), jewelry, and victim received two life sentences for malice murder and armed robbery, a consecutive twenty-year sentence (State robbery for armed sought the death penalty); Henry v. 737) (1995), 265 Ga. 732 defendant convicted of malice (defend- murder, robbery, armed and kidnapping bodily injury store, ant jewelry robbed shot head), owner sentenced to life without imprisonment parole murder, for the and to consecutive life sentences for the armed robbery and kidnapping; Edwards v. (449 516) (1994), Ga. 615 SE2d defendant found guilty of malice murder, armed robbery, and burglary (operator of a motel fatally stabbed one week after argument with defendant in which defendant victim), threatened sentenced to a life murder, sentence for the a con- secutive life sentence for the armed robbery, years and ten 821) for bur- (450 State, glary; Brown v. 264 Ga. (1994), SE2d defendant murder, murder, convicted of malice felony attempted robbery, pos- session of a firearm during crime, commission of armed robbery, (defendant aggravated assault shot and killed taxicab driver during robbery), sentenced in to life for prison murder, malice life for each count of armed robbery, twenty years for each count of aggravated assault, years ten robbery convictions, armed five years for each conviction for possession of firearm during commission crime; of (426 365) State, Howard v. 262 Ga. 784 (1993), SE2d defendant con- (victim victed of felony murder, burglary, and armed robbery shot when he returned unexpectedly while defendant and two other men were burglarizing house), victim’s sentenced to two consecutive life sentences fоr murder felony and armed robbery convictions; Mitchell (405 38) (1991) (reversed State, v. 261 Ga. 347 SE2d on other grounds), defendant convicted of malice murder and sentenced to life (victim in prison shot in chest with shotgun because defendant upset over victim’s relationship with defendant’s friend), former girl a fifteen-year received sentence for burglary, as well as years fifteen for aggravated assault. The conduct of the defendants in these cases was at least as culpable Thomason’s, yet they were punished by imprisonment. Thomason’s similar conduct should be punished with severity.

Although the majority opinion includes an of appendix cases offered to demonstrate that in penalty this case was not dispro- imposed that portionate others, cited cases do not serve in to that proportionality purpose. horrid, the fact that all murders are While analyses are to be consid- that some murders shows are undertaken especially in the murder others, those which than more horrid ered killing, beyond cruelty or planned, the fact and torturе there is or present multiple in this case. are not Those horrors are victims. there points unquestionably that to the fact in this case evidence The Thomason was sug- burglary surprised home, and the victim’s in a gun, gests strongly own with the victim’s he killed the victim go apparent burglary. not Thomason did It is thus stolen committing purpose murder and that for the the victim’s home to he did not necessary beyond brutality engage to violence By purpose. carry cited in the contrast, the cases his criminal out purpose opinion’s appendix majority to commit reflect either a fixed Mobley degree gratuitous greater State, v. violence: or a murder 61) (455 (1995), to kneel and shot victim forced SE2d 265 Ga. 292 491) (411 (1992), style; State, SE2d v. 261 Ga. 806 Meders execution money victim was made a demand for in the chest before shot again register, opening in the head then shot the cash while he was (360 258) falling SE2d State, 257 Ga. 461 floor; Ford v. after gone (1987), relationship sour had with defendant victim whose (defendant shooting going that was told a friend before out”) eleven-year-old niece times, and her shot three “blowher brains 891) (340 (1986), Cargill Statе, 255 Ga. 616 SE2d head; v. shot lying head, one floor and shot the back on the victims both v. feet; than two Horton a distance of less victim at 281) (1982), defend- shot at killed and another victim burglary; leaving 243 Ga. 627 Amadeo ant scene of 718) money (1976), demand for in chest after victim shot single passed out victim, victim then returned had defendant who (1977), robbery; one SE2d v. 239 Ga. for Bowden gun severely pellet her as to make a so victim beaten large open unrecognizable behind a wound her visible from brain large knife after death in chest with butcher ear, then stabbed her pellet gun, severely (elderly later the same beaten with victim, also 261) (227 (1976), died); Stephens victim SE2d State, 237 Ga. 259 v. escape, caught to he tried kicked, when robbed, face and hit by pistol placed State, 236 Ga. 460 v. ear; in his Pulliam a and shot 8) during (1976), the head in the back of cab driver shot SE2d 829) robbery-murder; planned Moore (1975), after arson-murder defendant murdered and robbed victim nephew cases, there is some plan In these failed. all of with victim’s brutality, multiple gratuitous vic- premeditation, or factor such apart Thoma- from defendants of those sets the conduct tims which son’s. above,

The cases set out considered in context with Thomason’s persuade imposition penalty crime, me that the of the death in this proportionate penalty imposed case is not in similar cases. The majority’s affirmance of the sentence in this case ‍​‌‌‌​‌‌​​​‌​​‌‌​​​‌‌‌‌‌​​​​‌‌​‌‌​‌​​‌​​​‌​​‌‌‌​‌‍lowers the standard applied subsequent penalty to be cases, death and threatens to penalty imposed make routine the most serious that can be in this must, I therefore, state. dissent. — July 16, 1997 Decided July 30, 1997.

Reconsideration denied Pangborn, Marger, appellant. Bret J. Edwin Attorney, Simpson, Colston, Tambra P District Fred R. Assistant Attorney, Attorney Baker, District General, Thurbert E. Susan V Bol- eyn, Attorney Paige General, Senior Whitaker, Assistant R. Assistant Attorney appellee. General, for S97A0468. DEPARTMENT OF HUMAN RESOURCES v. PHILLIPS

et al. Justice. Sears, appeal plaintiffs’ wrongful In this from a verdict death parties stipulated pretrial action, we determine order Georgia cap damages Tort Claims Act’s recoverable against damages applicable thereby limiting the State was аction, their per plain- that could be awarded to no than more million $1 by entering judgment Thus, tiff. awarding the trial court erred plaintiffs two in this case a total of million. $3.5 We also determine judgment impermissible puni- that the trial court’s does not include damages, tive charging and that the trial court did not err in jury, admitting denying evidence, certain or the State’s directed ver- part dict part Therefore, motion. we reverse in affirm judgment of the trial court. Phillips When Lisa old, was nine months she suffered a severe accompanied by persistent high case of colitis fever that resulted in organic damage, severely mentally impaired. brain and left her Her family years cared for Lisa until old, she was ten when she was insti- (“the Hospital Hospital”). tutionalized at Central State Lisa lived at Hospital years. for more than 20 In she was discovered lying Hospital, cardiopulmo- on a bathroom floor at the in a state of nary pronounced subsequent autopsy arrest. She later was A dead. aspiration subsequent revealed that she had died of acute car-

Case Details

Case Name: Thomason v. State

Court Name: Supreme Court of Georgia

Date Published: Jul 16, 1997

Citation: 486 S.E.2d 861

Docket Number: S97P0285

Court Abbreviation: Ga.