*1 gestions solely nature, a general were her that her mem- reassuring ory Thus, might improve.3 they on their face were not significantly any different from the words of encouragement interviewer Moreover, might have offered. inasmuch as Sullivan actually was not hypnotized, there is no Dr. indication that Haberman’s “suggestions” extraordinary had an effect on Sullivan. appel- We therefore find that lant has not subsequent established that Sullivan’s identification was product suggestions. these reasons,
For the foregoing the third enumeration is without merit. seventh,
b. a related Bobo contends that the process entire through which the identification Officer Sullivan was obtained was impermissibly suggestive, and that the court there- fore erred denying suppress his motion to her identification testi- mony. disagree. We totality Based on the of the surrounding circum- stances, procedure identification impermissibly was not suggestive, and Wiley process. was not violative of due Ga. 343
Judgment concur, reversed. except Marshall, All the Justices J., Weltner, J., P. who dissent as Division 1 and the judgment. Decided March
Rehearing denied March Axam,
Tony L. appellant. Slaton, Lewis Attorney, Moye, R. H. District Allen Assistant District Attorney, Bowers, General, Michael Attorney J. J. Michael Davis, for appellee.
41246. WALKER v. THE STATE. Justice. Smith, This case. Richard convicted testimony was, post-hypnotic sug give Dr. Haberman’s exact on this issue “I did her gestion, going my memory, fairly but I think it’s to have to come from but this is standard procedure hypnosis usually say, generally when I use I these matters. What I don’t this, standard, fairly veer from this is is to someone who has had either no recall or partial they may better, memory they may recall that find their will become focus image, image may by, goes on an unfocused that unfocused become I clear time any suggest particulars going very, general. change, I don’t very as to what is leave it if anything.” (T-1811.) (Emphasis supplied.) degree County burglary,
Washington He arson. murder, and first direct case here on the murder. The to death for was sentenced appeal, Appeal A-13 Procedure for review under the Unified required seq.), OCGA 17-10-35.1 sentence review et and for the April When wife filed for divorce. Walker’s In late very angry papers, he became with the divorce Walker was served *2 upset “get . or he . . out of town fast” he had to and stated that something his that if two co-workers Walker told “do bad.” would wife custody got kids, kill her. he would May temporary 11, in the divorce issued On order was custody awarding to the children and of the marital residence going enjoined” from addition, and wife. In his wife’s residence Walker was “restrained any contacting “harassing in or her and from manner.”
Notwithstanding times order, his wife several Walker called guts.” May . The calls ended her . . on around 11:30 12. He told her he “hated p.m. put children to bed and Mrs. her two and locked the doors windows. entry.
Shortly midnight, and demanded Walker arrived before refused, Mrs. Walker heard into the front door. He was something being poured gasoline. and he broke strong odor of smelled
onto the floor and Tony, get son, but could She ran the hall to her oldest across get son, her in she called to him As she ran to her other find husband, the dark. replied, saying “please it, damn it.” Walker “God don’t do it’s too late now.” in flames. “whoosh,” soon the house was She heard a whole Tony, get youngest out the window and turned
She threw her son jumped the window. but the flames were intense. She out too Pearson, mother, Willie Mae when Walker She had called her up. nearby, ran to the driven Pearson lived she had first Mrs. my Tony saying: “[B]addy, please scene, don’t burn she heard my fire. alone.” Then the house was on When momma. Leave momma Tony inside, in him. Walker she left the house was still she went after learned just entered, on fire. before she his hands and arms Tony brought night- His Mrs. located him outside. Pearson body. strips hung him, clothes had burned off of skin from Four-year-old Tony special was burn unit Humana taken to (i.e., totally Hospital Augusta destroyed) third-degree in skin with burns was body. Despite virtually of his the entire surface area
over 2, February its A motion for new trial returned verdict as to sentence on 1984, 11, 1984, February 29, April April 19, 1984. A notice was filed amended and denied appeal duly filed in June 1984. The case was and the case was docketed this court orally September 12, argued efforts Galveston, there and later at the Shrine Burn Institute in Texas, Tony days died later.
Walker’s burns were serious enough hospital that he went to a treatment. The treating physician noted a smell of gasoline on Walker, face, and treated him for first and second on his degree burns arms, and the backs of his hands.
Expert testimony was offered that the fire was started kitchen area quantity means of a large liquid flammable thrown about flame, the room and ignited by open and that the kind of flash burns that Walker having received were consistent with his started such a fire.
A small pair of shoes found kitchen area was sent crime analysis lab for presence which confirmed the of gasoline.
It was shown that Walker had shot his former wife times, back six her. killing
1. The evidence was support sufficient the jury’s verdict of (arson 1 (murder), Count Count in the first degree), and Count Virginia, (burglary). Jackson U. S. 307 LE2d However, Walker contends since the charged on felony both murder and malice murder and returned (malice which did not specify type of murder felony) *3 found, it the murder, verdict must be finding felony construed of with the result that the underlying felony must be set aside. recited, jury’s The in part, that it “guilty found Walker of —
Count 1 murder.” 1 of Count the alleged “unlawfully indictment that Walker did and with malice the of aforethought cause death Antonio Darrell Thompson, being, a human of ...” means arson
The allegation that the
“by
murder was committed
of ar-
means
son”
unnecessary
murder,
to a
1
charge of malice
and Count
therefore alleges
felony
both
murder and malice murder.2
In
circumstances,
these
jury’s
verdict of
“guilty of Count
murder”
murder,
was not
unambiguous finding
an
malice
of
and must
murder,
felony
construed as one for
felony being
the underlying
indictment,
alleged
i.e.,
in the
State,
Burke v.
arson.
(281
(277
(1981);
State,
(2)
SE2d
Blankenship v.
The
may
rule is that
defendant
not be convicted law-
“[a]
(a) provides:
person
OCGA
“A
§ 16-5-1
commits the offense of murder when he unlaw-
fully
aforethought
being.”
and with malice
causes the
of
death
another human
(c)
when,
provides:
person
OCGA 16-5-1
“A
§
also commits
offense of murder
felony,
being irrespective
commission of he causes the death of another human
of malice.”
alleges
conviction,
When an indictment
in one count
two alternative bases for
a verdict
State,
(2) (134
appropriate
Garmon v.
of
is
if either is
established.
fully of
murder
Oklahoma, 433
(321
723) (1984).
Harris v.
See also
SE2d
Ga.
1054) (1977).
argues
state
LE2d
U.
S. 682
underly
felony murder and
since the
inapplicable
rule is
here
victims, citing
on different
ing felony were committed
Satterfield
3) (1981).
disagree.
We
SE2d
Both the
incident and the crime
wives,
from marital difficul-
stemming
violence Walker towards
malice, intent, motive
prior
was admissible to show
ties. The
incident
4. Prior to Walker moved disclosure denied, in his first four enumerations parole file. This motion error, of the court’s denial of disclosure complains of the file or inspection court’s refusal to conduct in-camera fur- appellate review. Walker preserved have the file sealed 42-9-53, the trial court relied ther that OCGA contends motion, if it allows deny is unconstitutional Walker’s disclosure in a potentially mitigating evidence suppression exculpatory case. question, since the trial the constitutional We need not resolve (which has been sealed parole reviewed the file court has now *4 review) and has found appellate forwarded to this court for poten- substantially exculpatory only evidence therein that was prior to counsel tially mitigating either “known to defendant’s means.”3 trial, by by counsel other ... or obtainable defendant’s paroled, he moved to in Florida in 1972. After he was Walker was convicted of murder Georgia parole some of the information contained and his was transferred here. At least Moreover, system. psy by Georgia parole Walker from the Florida file was obtained Georgia parole chologist offi- information from who examined Walker obtained additional any possible Therefore, found, the court error in the non-disclosure the file was harmless. five-page findings supported by
The record, court’s and we find no reversible error here. requested by trial, 5. Prior to Walker funds for an examination a
private psychiatrist. any showing Absent that an Cen examination at Hospital inadequate, tral State would be the court re refused the quest However, for funds. based Walker’s contention a need for by examination, an Central State. the court ordered that an evaluation be conducted Walker was examined for over three at weeks Central State personally observing interviewing Dr. Gerald Lower. Besides and deputy Walker, Dr. Lower talked to Walker’s sister a sheriff attorney Walker; who knew had obtained from he reviewed information which Walker’s parole previous including board, the Florida prison mental evaluations conducted while Walker was in Florida system; Georgia “parole and he talked several officials.” sentencing Dr. Lower testified on behalf of the defense at the phase of the trial. (a) In enumerations 5 and Walker contends that state perform adequate
failed to erred an mental examination and court by refusing grant by private psy- funds for an examination a choosing. chiatrist of Walker’s own Very recently, Supreme the United States Court addressed the
question psychiatric indigent defendant, assistance for an in an _ U. S. __ (105 Oklahoma death Oklahoma, case. Ake v. 1087, _ LE2d _ ) trial, Prior to Ake underwent evaluation at a hos- state mental pital competence to determine his to stand trial. He was found to be incompetent. improved However, with treatment his condition pronounced ready point, attorney for trial. At this moved psychiatric addressing sanity evaluation defendant’s at the time of expert result, the crime. This motion was denied. As no examination sanity, was ever conducted on the issue of Ake’s there was no expert testimony jury rejected sanity on this issue The at trial. guilty. defense and found him Supreme Court held that where defendant can demon- sanity “significant
strate that the issue of will be trial, factor” opinion. cials. See Division 5 of this appeal, points request On out that he never made a for evaluation state psychiatrists alleges that the trial court stated its intention to send him State to Central agreed However, Moreover, whether he or not. we do so read the record. we note that attorney any objections Walker’s was asked the court whether he had to such an examina responded tion and counsel that he had none. *5 expert provide indigent assistance with state must defendant point however, in out, issue. The Court was careful to this context, indigent holding ahas defendant did not mean “that its liking personal right psychiatrist of his to choose a constitutional to hire his Id. at 1097. funds own.” receive expert question where of Next, assistance the court addressed psychiatrist” on cross- as defense witness testified the “state called continuing posed criminal vio- of “Ake a threat examination that testimony future the issue of Ake’s raised lence.” at 1099. This Id. statutory aggra- dangerousness, Texas, Oklahoma, in as in sentencing. prosecutor vating relied at Ibid. See which the factor on Texas, 49 LE2d U. S. 262 SC Jurek Supreme in Ake can of this situation best The treatment Court’s considering Supreme previous light Court cases be understood of dangerousness. testimony psychiatric on the issue of future the use of 1866, LE2d Smith, SC In Estelle v. 451 U. S. (1981), holding Court, not that defendant could in the course compelled psychiatric of his future dan- to a evaluation be gerousness to submit (unless, testimony perhaps, presented expert own 10), proof of a defen- id. fn. noted that on this issue dant’s future see require
dangerousness to medical ex- “does not resort propensity, perts.” thereof, to A or lack com- Id. at 473. defendant’s may of the mit established examination other violent acts age, “past conduct, the circumstances criminal defendant’s surrounding being at 472. the crime which he is sentenced.” Id. unnecessary, testimony expert Moreover, not on this issue many professionals questioned have court noted that mental health psychiatric predictions dangerousness the usefulness of of future qualifications “psychiatrists special possess no of the view that making such forecasts.” Ibid.
Subsequently, the state had reviewed a case which the Court testimony response presented experts testified of two who hypothetical probably questions commit “would defendant society.” represent continuing further of violence and threat to acts 3383, 3389, LE2d Estelle, S. 880 U. Barefoot testimony expert consti- that such should be Barefoot claimed tutionally claim, no notwith- barred. The Court found merit psychiatric pre- standing “professional doubts about the usefulness professionals dangerousness, inasmuch as all dictions” of future shared these doubts. Id. 103 SC at 3398 clearly premised, (fn. 7). holding This assumption however, on the that the would along op- psychiatrists with have before it “the views of the State’s posing plied.) (Emphasis sup- Id. views the defendant’s doctors.” at 3397. validity psychiatric predictions could Doubts about (fn. 7), jury,” “be id. at 3398 therefore called the attention process adversary and “the [could] be trusted to sort out the reliable opinion dangerous- from the unreliable evidence and about future ness.” Id. at 3398. only expert testimony regarding dangerousness Ake, future psychiatrist employed by
was elicited the state from a the state. Supreme holding Court’s that Ake was entitled to additional (and, presumably private) psychiatric assistance this context was given reliability inevitable, the Court’s concerns about the of such tes- timony, importance placing jury opposing and the *6 before the views question. on the Georgia, although dangerousness
In
the issue of future
ir
by
is not
invariably
relevant,
14, ante,
see Division
it has
been addressed
“past
age,
reference to the
conduct,
defendant’s
criminal
sentenced,”
surrounding
being
circumstances
the crime for which he is
(Es
supra),
by expert testimony pre
Smith,
v.
and not
telle
dicting future behavior.
attempt
In this
the state did not
to elicit from Dr.
a
Lower
prediction
dangerousness.
of Walker’s future
We find no abuse of dis-
provide private psychiatric
cretion in the court’s refusal to
assistance
adequate
here,
do
nor we find that Walker was denied an
mental ex-
Finney
(1) (320
147) (1984).
amination.
v.
420) (1984); (18) (283 v. Waters Ga. potential 6. We find no error the court’s refusal to excuse a juror grand jury who was the wife of one the members of the original potential juror returned the indictment this case.5This ineligible jury duty, not 15-12-4, for trial § see OCGA nor was she disqualified “principal otherwise 328 cause.” Jordan v. 224) (1981); OCGA 15-12-163.In view of her an- dire, swers on voir could be fair the trial court was authorized to find that she impartial juror and the court did not err refus- quashed challenge This indictment was when the court found meritorious Walker’s to array grand jury. entirely grand jury of the An new returned the indictment on which the case was tried. State, supra. v. Jordan favor. ing grant challenge to Walker’s re- complains of the court’s his 10th who, contends, had fixed potential jurors three fusal excuse penalty. of the death opinions favor objections attorney initial that Walker’s withdrew
We note extensively examined both they after were jurors two of the parties.6 “he would remaining the trial court found juror,
As to the penalty this case automatically that] vote for the death [and and follow the law.” court charges would review what the [h]e the court supported by record and findings court’s __ Wainwright Witt, juror. by refusing err to excuse the did not Francis, S. __ (105 (1985); Godfrey LE2d U. challenges by granting court not err state’s 8. The trial did pen- objections to the death jurors two with conscientious prospective neither of the alty. finding that supports The record the trial court’s what for the death no matter two would be able to vote jurors Witt, State, supra, 253 Wainwright supra; Spivey the evidence. (n. 3)! is without merit. Ga. at 197 Walker’s 11th enumeration sentence, the trial court After the reached a verdict as findings. its One jury regarding poll conducted extensive despite understood that questions juror asked was whether each *7 circumstances, the death statutory the of three finding aggravating penalty imposed. did have to be not the polled
The first stated that she did not understand juror clarification, the trial court moved question. attempts After several at they required were not on the other who all understood that jurors, to found impose penalty they the because had three simply to death statutory aggravating circumstances. she
Finally, juror to first who stated that the court returned now that she had voted for question understood the and affirmed penalty requisite aggravating circum- having death stances, after found option to vote for life.
knowing that she nonetheless had con- find merit to 12th which he We no Walker’s from erroneously accepted the trial a death sentence tends court to that she had no choice but which one of the members felt impose death sentence. that he had failing
10. The court did not err to advise Walker phase right sentencing to make an unsworn statement at the trial. behalf, subject testify in right
A defendant has a his own I, 6 Transcript, pp. 88-94. Vol.
cross-examination. OCGA 24-9-20. He is not entitled to make § 1973, unsworn statement. Ga. Laws p.
Walker’s 13th enumeration is without merit. The court did not err omitting to tell the it could impose a life sentence consecutive to or concurrent with the life sen- tence already serving he was Spivey supra, Florida. v. Ga. at 191-193.
Walker’s 14th enumeration is without merit.
12. We find no merit practice to Walker’s contention that “death-qualification” jurors Wainwright is unconstitutional. Witt, (2) supra; Mincey 882) (1983). Nor do we agree that this state’s penalty death law has adminis- been in a constitutionally tered deficient manner. 22nd, 24th,
Walker’s
and 25th enumerations are
merit.
without
13. Walker has failed to show that
women
excusing
with children
under
age
pursuant
(b),
to former OCGA 15-12-1
resulted
in the
underrepresentation
substantial
cognizable
groups on Wash-
ington County jury venires
generally
Ingram
or
his venire.
(1 e)
801) (1984).
Therefore,
23rd
Missouri,
enumeration is meritless.
Duren
“What say is more reasonable than to twice is too much. Isn’t enough, once but is twice too . . . much?
“Why is there all? If is justice any point, it at it is justice now. many How lives must justice be lost before can more, many achieved? How people say must die before we no that’s it. No more lives going by you, to be taken Mr. How it Walker. justice citizens, him take from what he has from taken two two citizens, how it not justice?
“This case will serve as a signal people who know read and hear about Washington County of what It justice. sees as will signal is, serve as a your no matter what man has that this killed twice justice County? and what is in Washington Your verdict will speak way. either Will County we tolerate Washington *8 is enough two here? Will we allow our children to be burned to death by people who have committed murder before and will that be toler- by the county? type ated citizens of this of justice And what do we society?” have However,
Walker did not object any foregoing of the at trial. error, in his prosecutor’s 18th enumeration he contends that the argument given that Walker would kill if life again a sentence was improper, prosecutor and that the into improperly pressured jury the reminding jury its verdict the reaching a verdict of death signal.” “serve a would pros to the any contemporaneous objection
In lack of view the argument the we need not determine whether argument, ecutor’s if sentence must we vacate the possible objection, all nor free from See unqualified approval. fails to meet our prosecutor’s argument the (5) (300 As we have Williams v. review observed, statutorily mandated sentence previously that our (see Gilreath v. closing arguments includes review 650) (1981)) require . that we reverse not. . “does closing argument portion the penalty simply because some Spivey objection never made.” subject have been to some might any objection, we de 191. Absent such supra, 253 Ga. at offensive, prejudicial if or prosecutor’s argument termine was so part prosecutor or such misconduct on the egregious involved by passion, impermissibly influenced jury’s verdict was Ga. 22 Ross prejudice arbitrary or other factor. 194) (1985); States v. State, supra. Compare United Spivey __ U. S. __ (105 1038, _ LE2d _ )
Young, determination, mindful of the differ- In we must be making this guilt determine sentencing hearings proceedings ences between sentence, jury different determining or In considers innocence. duties, issues, distinctly different than it does performs kinds of Therefore, entirely ap- argument determining guilt. limitations applied of a trial cannot be mechanisti- propriate guilt phase to the cally phase. to the sentencing de- accepted proceeding is in a example, generally
For it argument refrain from guilt “prosecutor termine should evidence, duty on the jury from its to decide the case would divert or of the accused by injecting guilt issues broader than the innocence controlling law, by making predictions of the conse- under Young, supra at 1042 quences jury’s verdict.” United States (2d (d) (fn. 3) ABA 3-5.8 ed. (quoting Standards Criminal Justice 1980)).
Obviously, sentencing phase at the of a death or inno- guilt to consider issues broader than a defendant’s entitled argu- cence, present must therefore be entitled to prosecutor ment on these broader issues. obvious, inevitably upon true care- perhaps,
Less but nonetheless consideration, determi- given sentencing ful is that the nature of possible nation, preclude it as to the argument makes no sense to all jury’s sentencing consequences of the verdict. capital sentencing employed Georgia model
“Under task, Supreme to full Court given subject Georgia cases the task, review, sentencing discharging fashioning policy. state
159 jury the in determining presence ag- functions a fact finder the of circumstances, in gravating mitigating policy but acts as a maker determining of death imprisonment whether a sentence or life should be . . imposed statutory . the determines that jury aggravating [Once authorized, present, it required, circumstances are but not to im- pose a death this point,] jury longer being sentence. At is no [t]he asked to taken place, justice determine what has but rather what de- perform response.” Francis, mands that society Collins v. 728 F2d 1322, (11th 1984). function, 1340 In performing Cir. the jury can- ignore possible not consequences of its verdict.
Thus, we have held that whether a
kill
if
might
again
defendant
chance, or,
given
words,
in other
“probable
whether his
future be
havior indicates a need for
most
incapacitation,
the
effective means of
e.,1.
the
penalty,”
is a matter
jury may properly
which the
be
Ga.,
34;
invited to
supra
consider. Ross v.
at
Jurek v.
Texas,
2950,
Other of the prosecutor’s argument invoked considera- deterrence, tions of general retribution and both of which are “valid penological justifications imposition for the penalty.” of the death 113, 266) (1983). Conner v. That a jury’s will in the community, speak noted will behalf community, signal” community will “serve as a to the are matters which obviously true. See Horton precisely It is de- notice on which
pends any possible general deterrent effect from the resulting imposi- tion of a death sentence. it is rendering And a verdict which speaks on community behalf that channels the com- munity’s by expressing “instinct retribution” “society’s moral out- rage at particularly State, supra offensive conduct.” Conner v. at 120 (quoting Gregg Georgia, 428 U. S. LE2d 859) (1976)). course, cases,
Of general most murder considerations neither deterrence imposition nor retribution will demand the of the death penalty. cases, And the overwhelming majority of murder the death penalty is imposed. say not But is not a prosecutor may that that urge vigorously punishment is appropriate death sentence hand, in the case at doing may so not remind general retributive and deterrent functions of its verdict. We note right “open argument” and far-ranging (Gregg Georgia, supra, 203), 428 U. S. belongs parties to both sentence, right argue, defendants also have the and on the issue always closing argument. defendant has the OCGA 17-10- final 465) (1985) Beck (reversing See right to make was denied his the defendant sentence where the death closing argument). final prosecutor’s foregoing reasons, ar- re- that the we conclude For the require improper egregiously gument as to not so in this case was timely objection. despite lack of of Walker’s death sentence versal former of Walker’s find that the state’s cross-examination 15. We during testimony given concerning parole examina- the direct officer improper. merit to Walker’s 19th find no We therefore tion was not of error. enumeration upon Enmund v. Flor relies 16. In his 21st *10 1140) (1982) (102 argue
ida,
3368, LE2d
to
73
“(1) . an accused with . . was committed The offense of murder capital felony [specified prior . . . for record conviction (2) wife]; The offense of murder his former verdict as the 1972 . Richard Walker while the defendant murder . . was committed (3) degree; engaged . . . the first in the commission of arson . . . committed Richard Walker while The offense of murder engaged ... of in the the offense the defendant was commission (2). (b) (1) (b) findings burglary.” These §§ See OCGA 17-10-30 beyond supported by § doubt. OCGA are the evidence a reasonable (c) (2). (c); § 17-10-30 OCGA 17-10-35 imposed was not under 18. We find that the sentence of death arbitrary any passion, prejudice, other factor. or the influence (c) (1). is without merit. § OCGA 17-10-35 Walker’s 20th enumeration having previously Walker, murder, into committed broke once stay away from and burned to death a home he had been ordered an innocent We find excessive nor considering 4-year-old boy pleaded him to the fire. start who with imposed in this case is neither that the sentence of death imposed disproportionate penalties cases, in similar (c) crime in the defendant. OCGA 17-10-35 both the (3). imposition Appendix support The cases listed
161 in this case. degree The conviction arson is reversed. re- first maining The death sentence convictions All affirmed. affirmed. Weltner, concur, J., except Justices who dissents as to Division and the judgment reversing the conviction arson in the first degree.
Appendix.
Mincey
(304
State,
882) (1983);
v.
Hill, concurring. I majority opinion concur in the I judgment. write elabo- rate on Division 1 majority opinion. (6th)
This is at least
sixth
time since 1977 that this court has
reversed a conviction for
underlying felony
jury’s
where the
was unclear as to whether the jury
found the defendant
of mur-
aforethought
felony
der with malice
Reed v.
murder.
*11
(7) (233
369)
(261
(1977);
State,
(7)
SE2d
Casper v.
SE2d
As Justice pointed Weltner out Dillard v. supra, when a judge charges a jury on malice felony murder, murder and on judge should jury instruct make its verdict clear finding defendant “guilty of murder aforethought,” with or “guilty malice (or felony murder” guilty”). “not jury
If the does not return clearly a verdict distinguishing be- murder, tween malice felony murder or recharged should required to make its verdict clear. Justice, Weltner, part; concurring dissenting part.
I dissent as to the holding opinion, Division 1 of the majority and to judgment so much of the in part. as works reversal 723) (1984),
In Stone v. we consid- There, ered a similar problem. a defendant was indicted for murder and another crime. The jury was instructed as to malice murder and felony murder. “guilty The verdict was on both counts.” (malice type which of murder is unclear as to “When a verdict guilty felony) found, of the lesser offense is deemed a defendant
felony
In
Ga. 124
Burke v.
murder.
charged
however,
1 of the indictment
case,
Count
because
on that
murder,
a verdict of
returned
malice
Accordingly,
ambiguity.
Stone was convicted
count, there is no
anything, than the verdict we affirmed less this verdict is in Stone.
Accordingly, convictions, as well as the affirm of the I would all sentence. March Decided
Rehearing denied March appellant. Kondritzer, for Kenneth D. Attorney, Bowers, Malone, J. Attor- Richard A. District Michael ney Snelling, appellee. Jr., General, Eddie v. THE STATE.
41290. BENNETT Justice. Bell, Hulsey, Joseph and re- Bennett was convicted of the murder denied, life His motion for new trial was ceived a sentence. appeals.1 We affirm. years Hulsey ten Bennett and had known each other about Hulsey he and had trial Bennett testified that
before the homicide. At Hulsey shooting argument during which about one week before the pulled argument for the a knife on him. Bennett said that the reason Hulsey burglaries, but was attribut- was that had committed several According Hulsey ing Bennett, to attribute them to him. continued telephone Hulsey prompted burglaries him, him to these apartment Tammy King, p.m. July 29,1983 10:30 at the about girl Hulsey Bennett said that Bennett had dated. whom dated and *12 30, County jury July returned its verdict on 1983. The Polk The crime committed 8, 10, An 1983. A for new trial was filed on November 1983. on October motion 7,May transcript filed of evidence was amended motion for new trial was filed on 7,May appeal February on 1984. Notice on 1984. The motion for new trial was denied May 16, Appeals 1984. The docketed in the Court to the Court of was filed on record was Appeals appeal Appeals on to this court June June Court of transferred on 1984. The 14, 1984, argued It before this court here on June 1984. was and the record docketed September 17,