*1 estoppel was erroneous.
As a result decision, of our case number 38995 is reversed as to City of Atlanta and affirmed as to Eastern Airlines. Case number 38996 is affirmed.
Judgment in part affirmed and reversed in All part. the Justices concur. — Rehearings
Decided March denied March Kirby Glaze, A. Fincher, (case Steven M. appellants for no. 38995).
Marva Brooks, Jones Harris, Joe M. Forbes, Jr., Theodore M. William W. Maycock, Bowers, Michael J. General, Attorney James C. Pratt, Assistant Attorney General, appellees. for Theodore Forbes, Jr., M. Maycock, William W. appellant for (case 38996). no. Brooks,
Marva Jones Harris, Joe M. Owens, Irmina Kirby Rivero Glaze, A. Fincher, Steven M. appellees. for
39046. WILCOX v. THE STATE. Justice.
Bell, The appellant was County Superior tried the Lowndes Court for the murder of Hellen Hanks and for the unlаwful concealment of her death. January 14,1982, jury found the guilty of both offenses. He was imprisonment sentenced to life for murder and to a consecutive twelve-month sentence concealing for the murder. He appeals. 31,1972, victim,
On August Thursday, thirty-five year-old Hanks, disappeared. time, Hellen At that working she was as a bookkeeper and secretary for Wilcox Outdoor Advertising Val- dosta, a company Wilcox, appellant, owned E. K. Jr. and father, Wilcox, E. K. body Sr. Her was discovered approximately eight years later, on 24,1980, November by a logger clearing a wooded area.
On August 31, 1972, Hellen went to work as usual. She was wearing a dark green dress with a long green strand of beads. After work, she planned hairpiece to have her combed and her typewriter repaired. Jerry Davis, employee of Wilcox Advertising, Outdoor testified that he saw her in the office at about 8:15 a.m. before he left on an assignment.
At about p.m. afternoon, 5:00 Hanks, James the victim’s husband, received a telephone appellant. call from the Hanks found told that Hellen could not be office, then although
around the her car was still there. Mr. Hanks office, immediately Advertising arriving Outdoor drove Wilcox p.m. arrived, p.m. there at about 5:20 or 5:25 He testified that when he going through purse. Hellen’s asked doing, responded looking what he was he was *2 . . . keys any some that Hellen would “not be needing longer.” approximately p.m. At 5:30 and police agents, the Valdosta GBI call, responding to the arrived at the Wilcox business. Hellen, They unsuccessfully office searched the and warehouse for in they typewriter hairpiece did her and the two but find car and completed applications employment purse. they in her Since be, indicating might missing found no evidence where Hellen a report filed. person’s was police
The their investigation Valdosta continued of Hellen’s disappearance days discontinuing for several before it because nei- any Similarly, ther Hellen new was though nor evidence found. the investigation GBI lasted it was of longer, discontinued for lack evidence. 24, 1980, Blanton, up logger, digging November Fred a was plow clearing
roots with a while wooded Indian Road a area off Creek a The plow ripрed top when box, unearthed wooden box. off the shut,
which exposing had been nailed a skeleton. Mr. Blanton skeleton, called the In scene. addition to the the following box, in items were found or around the box: a metal cash a box, books, a bag, receipt padlock key second metal bank a a with inserted, dress, keys, portions several ring, other wedding shoes, hair, dress, lingerie, rope. a mass of a length The the padlock, keys box, and the other were found under the burial the lingerie up was found rolled in a ball next it. to papers
Because found referred to Wilcox Advertising, Outdoor inquire officer called the he was certain missing call, officer, items. As a result of the not at request but the the came scene. box, remains, burial skeletal items at other found scene were collected and Dr. examined. James Howard Laboratory hairs, Crime rope State examined the and testified that box, consistent with hairs taken from the mass in of hair found condition, testified, in the rope, were embedded surface of the that would not as a exist result of casual contact. He testified that the rope combination of the condition of hair and its adherence to the was consistent it having rope been embedded in the while the victim was alive. He in loop rope the curl or was consistent with having it for a way been crossed or tied and left that long period of time. Although rope witnesses testified that the found in grave rope similar to Advertising, used at Wilcox Outdoor Dr. Howard testified that he compared rope samples taken from the Wilcox in business 1980 to the rope grave, found did not match. He attributed the difference to the use of different rope fibers
Several witnesses testified that the burial box was similar to boxes used Wilcox Outdoor Advertising, appellant, while site, at the burial told several officers bury the box used to Mrs. Hanks looked like one reported that had been missing from the business 1972. These approximately boxes are four long, feet two to wide, three feet wood, and two to three deep feet and are made of except for top is metal. two trucks used at Wilcox Outdoor Advertising were fitted with these boxes carry equipment. A third box of type this kept the back of the warehouse. King, Willard the appellant’s father-in-law, production and now manager business, of the Wilcox part-time Saturdays worked 1972. He testified that he found this extra box was on the missing second Saturday, or days, nine after disappearance. Hellen’s He had not worked previous Saturday. He stated that he told the *3 the box was missing, and that the said he would report it policé, to the since Mrs. Hanks was also missing.
Other items found at the scene were also connected to the appellant’s business. One keys truck, fit a pick-up 1971 Ford which being was driven by the in testimony 1972. There was truck, there were keys two for this kept by appellant, one the kept by one Hellen Hanks secretary. while she was the this purchased truck was appellant by Scоtt, from the Salem who testified the gave ignition key. one
The cash box padlock and the rusted key with the it were linked with vehicles, the Wilcox business. To service company its the gas pump a located behind the building. The switch for this pump was located inside the padlock. office and was secured with a There kept that Hellen Hanks key padlock the to this in the cash box in her office. If employees pump, wished to use the they had get key key from Hellen. The padlock found it, opened key and a taken from the desk drawer one week after the burial site was uncovered also fit padlock. the rusted
Many personal site, found belongings at the burial such as dress, the wedding ring, beads, by were identified family Hellen’s as belonging to her. Both the dress and the bra signs showed being torn or cut.
Medical comparisons studies and were conducted on the skull and other Johnson, dentist, skeletal remains. Dr. compared Robert records,
the skull to Hellen’s dental and established the skull to be Larry the Georgia Hellen’s. Dr. Howard of Crime Lab State con- remains, shortly ducted two examinations of the skeletal one after found, in August bones were and another of 1981. Dr. first Howard concluded the examination of the skeletal remains about March 1981. He testified that he was not able to that, nevertheless, death, establish the he cause but was of the opinion opinion He based this on his strangled. she knowledge of the conditions of burial site and on other items site, particularly rope, found at thе burial was found tangled skeleton, or neck lying hair and the chest area of testified, which, approximate had the diameter of a neck when shape. allowed to assume its own employees
After statements taken from two of Wilcox Outdoor July body may of 1981 Advertising indicated have been exhumed, burial, dismembered before the remains were and a second performed. examination was It revealed evidence of dismemberment joint. of the left knee Dr. Howard testified that after cleaning the vertical, horizontal, joints, knee he found two linear as opposed or cap. abrasions on the back of the knee left He testified the abrasions instrument, by pointed were made bodily and that brown fluid cap stains on kneе covering and the lack of abrasions in the dirt the knee cap prior indicated that the dismemberment occurred first possible burial. He also found a or associated lesion slice mark on (the femur) the bottom of-the large thigh leg, bone of the left located on the same side of the leg cap. as the abrasions on knee cap knee left and the femur were Dr. Ellis also examined Kerley, leading pathologist forensic University from the Maryland. agreed two there were incised marks on the back cap of the left knee and one on the femur. Though could not be positive case, of dismemberment in this he found these cut marks to be shortly consistent with dismemberment after death.
Contrary testimony Joseph was offerеd Dr. Burton. He testified bone exposed by cap that the cut marks the knee oxidized, bone, femur was not mineralized as or was other unmarked *4 indicating that these marks were a recent these He injury to bones. did not think these that marks were consistent with dismemberment of the leg. discovery
After the Hanks, of the remains of Hellen an in- vestigation of her murder began. interrogated two em- ployees Advertising, of Wilcox Outdoor Lorenzo Marshall and Ed Wrentz, gave appellant. who incriminating statements Marshall,
Lorenzo who started work for business in the Wilcox 1952, gave 2, 1981, a signed July written statement on which was not remember He that he did witnessed Ed Wrentz. stated Ed Wrentz came date, shortly disappeared, Mrs. Hanks but that after him He stated that help dig him to a hole. and asked somewhere, they dug where then drove them his truck appellant rain, at which time the hole they stop until had to because of when, that he did not remember but deep. about waist He stated that at Wilcox met the and his father he and Ed Wrentz later had them load a at which time the Advertising, Outdoor hole, he and Ed finished truck and drove them to the where box on his something the box. He also stated that Ed threw digging and buried was lowered. a dress into the hole before the box that looked like he was story, maintaining At recanted his Marshall 1,1972, and that Tuesday Friday, September Albany, Ga. from until witnesses, both Two other nothing he had to do with burial. effect. Advertising, testified to this employees of Wilcox Outdoor during they Albany working were in with Marshall Both testified that they did not arrive disappearance, Hellen’s and that week of he Marshall told Friday Valdosta until that afternoon. anything he didn’t know about very beginning the officers from the by telling put words his mouth burial. He testified that the officers since he was scared and him what Ed had said. He testified that home, story. with the along wanted to he went go trial and who Wrentz, at the time of seventy-eight Ed who was thirty years, gave a for more than had worked for the Wilcox business 1, appellant. Un- July incriminating signed statement on story Marshall, on direct basically like the same he recounted shortly after Mrs. Hanks He testified that examination at trial. country driven into the he Lorenzo Marshall were disappeared, hole, they did not finish because but that dig date, it was remember but He testified that he didn’t rain. date, that at a later dаrk, He testified though long. it hadn’t been dark warehouse, at and his father at and Lorenzo met the body into a box put Mrs. Hank’s which time he and Lorenzo body stiff and that it onto a truck. He testified loaded put also part legs, of her were pieces, thought which he extra hole, time at which then drove the box. He testified box, along placed digging finished the hole and Lorenzo into it. things, a few other direct, repudiated story on Wrentz to the above testifying
After he told police, he talked to the He that the first time it on cross. stated disappearance. Mrs. Hanks’s anything know about them he didn’t truth that was the that occasion and that testified he told the truth on he was i.e., on cross that now, at the time of trial. He testified Friday, September 1972 and Thursday, August out-of-town *5 1972, in Sаturday. but arrived back Valdosta that This gave police, contradicted the statement he which was that he helped Lorenzo hole the dig night disappearance. of Hellen’s Mr. Wrentz, however, testify get did on cross that he did a box from the dig warehouse and that he did a hole. redirect, put Mr. Wrentz reiterated that he and Lorenzo Mrs. box, body
Hanks’s in a medium sized were driven in somewhere truck, hole, pick-up dug Also, Ford box. his buried the de- scription burial site before its clearance Fred Blanton was road, consistent with that of other He gravel witnesses. described a three-path-road by woods, off of which was a surrounded which ran past the burial site. 31,1972,
Concerning his activities on August appellant gave in police a statement October of 1972 and testified at trial. It is undisputed and his father left Atlanta on the 31, morning They 1972 to return August to Valdosta. had been 29,1972 there Tuesday, August since on a business trip. The crucial issues concern his time of arrival Valdosta and his activities once there. October of talked with GBI agent Larry
Oxford. He stated that while driving back to Valdosta on August 1972, he stopped p.m. and his father 1:00 couple around to visit a friends, Holt, Willard King and Howard Cordele. He stated that they left Cordele and arrived at his father’s home Valdosta around p.m. there, they 3:45 separate From cars to the office and drove p.m. arrived there around 4:00 He stated that Hellen was not there they arrived, were, when although purse her car and and since he and her, they his father could not find called Mr. Hanks and the p.m. around 5:00
At basically story. recounted the same He Atlanta, testified that on their return stopped from he and his father father-in-law, p.m. Cordele about 1:00 to visit his King, Willard stayed hour, approximately there They and then left for Valdosta. off got p.m., of 1-75 at their Valdosta exit 4:00 give around or take a there, few minutes. they family From he testified went to the home so office, he pick up They separate could his car. drove cars to the arriving between p.m. p.m. 4:15 and 4:30 He testified that Hellen was they there when arrived and looked for but were unable to result, testified, locate her. As a he called Mr. Hanks about 4:45 p.m. inquire police shortly about Hellen and called the thereafter. office, purse did not notice Hellen’s was at the it, and he denied looking through though he did state that either he or father purse keys asked Mr. Hanks to in her to see if her look office it. He testified that Mr. Hanks found them and handed them to him. He making denied the statement that she wouldn’t be needing keys anymore. The basically father testified to same facts concerning the time of their arrival and the circumstances following it. claimed that at the time of the initial search for
Hellen by Mr. Hanks police, the entire office was available to be searched. Both the appellant Wilcox, and his father testified that *6 Sr. was at the office during appellant the search. The testified that the search p.m., lasted until around 8:00 at which time he left the office, went up, home and washed and honoring drove to a dinner wife, and his arriving p.m. there between p.m. 8:30 and 9:00 After the dinner, he testified that he first went back to the office to make sure the doors had been locked and then went home.
However, there testimony was some contradicting of the above First, assertions. Mr. police Hanks and two officers testified that the appellant’s father was Second, not at the office while were there. police two officers testified that the search p.m. ended about 6:30 addition, there testimony car, was Mrs. Hanks’s the car, appellant’s car, police and a truck were at the office on the 31,1972, afternoon of August father, indicating appellant’s the who drove car, there his own was not at the office. father, appellant’s King,
The her Willard con- ex-wife and testimony appellant’s concerning tradicted the and his father’s 31,1972. their time of arrival Valdosta on The August appellant’s ex-wife appellant shortly p.m. testified that the called her after 5:00 August 31, 1972. She testified that he told her that he and his father p.m. p.m., had arrived at the office between 3:00 and 3:30 had found the open, King door but couldn’t find Mrs. Hanks. Willard 31, 1972, testified August appellant that on and his father stopped in approximately p.m. Cordele to visit him at 1:00 and left p.m. appellant’s about 1:30 The her ex-wife testified that she and previously husband had driven from Valdosta to Cordele several (the times around 60 to 70 minutes speed limit at that time was hour). seventy per King miles Mr. testified the drive should takе about one and one-half hours. 31, 1972, evening August party honoring
appellant appellant’s and his ex-wife was scheduled. The ex-wife testified appellant shortly p.m., that when she talked to the after 5:00 him, party he told her sure go without because he wasn’t police what time Mr. Hanks and the Both the would leave office. appellant’s appellant ex-wife and her mother testified that party p.m. father did not arrive at the until 9:00 There was that the left the at about premises Wilcox business p.m. party 6:30 ex-wife testified that also after p.m., appellant, ended at 10:30 going her, instead of home with told her that go he needed to back to the office to make sure everything was locked. She testified that though bed the awoke, next morning whеn she he had not come home before she went sleep p.m. around 11:00 and did not wake her when he did come home. The appellant testified that he arrived home about thirty to forty minutes leaving party. after
Several witnesses testified to strained relations between the Edwards, Dorothy Hellen Hanks. friend, Hellen’s best testified Sunday that the before Hellen disappeared Hellen told her she was afraid looking for other em- ployment. Dorothy testified that Hellen told her that she slapped day one because he grabbed her on the buttocks. friend,
Another Cara Ardrengo, Tuesday before Hellen disappeared spoke Hellen expressed her and fear and a desire to get away from him finding other employment. She testified that Hellen told her that she was keeping books, two sets of one that was good, and one that wasn’t good, and that she didn’t like to be in position.
Jerry Davis, employee of Wilcox Outdoor at Advertising time of Hellen’s disappearance, testified that he saw the appellant *7 and Hellen appear they bumped disturbed when into each other in a doorway, and employee, Goodman, another John testified that he saw appellant place Hellen, his hands pushed on who then them away. He also said he appellant heard call a Hellen “dumb bitch.”
Lucy Hanks, Hellen’s daughter, also testified that Hellen wanted a new job because she did not like the appellant. Lucy day, testified that one several wеeks before her disap- mother’s pearance, her mother came home crying because she slapped had appellant pass making at her.
The appellant denied that he had ever touched patted or Hellen and that she had ever slapped him. He testified that though he had been occasion, irritated with her on one good employee she was a with whom he never any difficulty.
1) In
error,
his third enumeration of
appellant
contends that
the evidence against him
entirely
circumstantial
and did not
every
exclude
hypothesis
other reasonable
except that of
guilt,
his
see
(Code
OCGA
38-109),
24-4-6
Ann.
and that
the evidence
§
§
insufficient
to support a conviction under the standards of Jackson v.
Virginia,
(99
2781,
560) (1979).
We disagree. After reviewing the light evidence most verdict, favorable to the jury’s we conclude that a rational trier of fact could reasonably have found the guilty of the murder of Hellen Hanks subsequent concealment of that murder beyond doubt, a reasonable Jackson v. Virginia, supra, and could reasonably have found excluded, the evidence beyond a doubt, reasonable every other hypothesis reasonable except that of (Code guilt. 38-109). OCGA 24-4-6 Ann. § § 2) In his fourth error, enumeration of the appellant contends the state was improperly impeach allowed to credibility of Lorenzo Marshall by use of prior his allegedly coerced in- voluntary statement. asserts that there are both constitutional
common law evidentiary reasons for forbidding the use in- voluntary statements impeach a nondefendant witness.
Though
raised no objection to the use of Mar-
prior
shall’s
statement
at
thereby waiving
right
to raise
objection
appeal,
we will nonetheless
arguments.
consider his
Corn v. Hopper,
(6) (257
533)
(1979);
First,
argues that he had
process
his own due
right
prevent
prosecution
from impeaching
credibility
aof
nondefendant
prior
involuntary
witness
means of a
state
ment because the
excluding
reasons for
the use of a defendant’s
involuntary
statement
apply with equal
force to statements
nondefendant
See,
(84
witnesses.
Denno,
Jackson v.
We disagree that
process
the due
reasons for
еxcluding
use of
involuntary
defendant’s
apply
statement
equal
force to the use
of involuntary statements
from nondefendant witnesses. The due
process principle of excluding involuntary
rests,
confessions
as we
perceive
it, not
solely on the potential
unreliability
of such
statements but also on the
position
system
defendant’s
in our
justice. This principle has béen
enunciated
the United States
Supreme Court. Rogers
Richmond,
mouth.
v.
using coerced statements
The distinction between
opposed
was also
witnesses as
to those of a defendant
nondefendant
(2nd
LaVallee, 469 F2d 1239
in United States ex rel. Portelli v.
made
412)
1972),
denied,
SC
36 LE2d
Cir.
cert.
the due (the position system in our confessions defendant’s apply justice) take the stand not to nondefendant witnesses who does process rights were at we find that no due violated. above, find that there the same reasons as enunciated we
For evidentiary forbidding common law reasons for the use of are no purposes. prior impeachment Marshall’s statement for 3) error, contends that his fifth enumeration of testify allowing erred in ex-wife to the trial court during the time communications made to her married. (1) (Code 38-418) provides disagree. § § OCGA 24-9-21 Ann.
We a husband and wife are inadmissible that communications between apply, grounds public policy. However, for this exclusion to confidential, Co. v. must be Ga. IntL. Life Ins. communications (2) (228 (1976); Lowry Lowry, Boney, App. 139 Ga. 11) (1930). Confidential communications are SE spouse knowledge virtue of where derives from the other those one note, however, surrounding the witness’ statement that the circumstances We facts, proper quite egregious which are that under the case were there, such statements public policy might the use of presented reasons forbid situations. certain *9 Life relationship. Ga. IntL. the husband-wife special the confidence of Every spoken word between Boney, pp. Ins. 578-579. supra, Co. confidential; is an is not the communication husband and wife relationship, the made in reliance on the marital impersonal one not confidential, policy reason bars its is not and no communication Boney, supra, p. admissibility, Ins. Co. v. Ga. IntL. Life by case, the testified to In the instant we find communications testified appellant’s the ex-wife were not confidential. She from the office the such matters as the time the called her 31, 1972, he told her that he and his August afternoon of the time her, there, after the father arrived and the fact that the told honor, make sure party going their he was to return to the office to clearly made to it had been locked. These communications were not in her as his wife. appellant’s placed the ex-wife virtue of trust he They impersonal were communications concerning daily activ- Consequently, ities. the trial court did not err in allowing her to testify.
4) error, he contends the final enumeration of vеrdict of not granting that the trial court erred a directed the the involved guilty ground investigation it police fundamentally shocking misconduct unfair and so process. violated due alleges intimidating to what he were objects witnesses, particularly Lorenzo
interrogation techniques of several Marshall, Wrentz, Ed and John Goodman.
Excerpts tape recordings interrogations from the of these cross-examining read the defense counsel while into record used some excerpts police above witnesses. These reveal trickery, intim- such as techniques, questionable interrogation idation, isolation, judge it difficult the extent though is instance, excerpts their use from the limited available. For witnesses, among excerpts interrogаting show the officers told these site, grave things, fingerprints other that their had been found at tried murder on the basis of what the could be Also, knew, Lorenzo they might go jail long and that for a time. p.m. without interrogated Marshall was from 8:00 a.m. until 6:00 being allowed to eat. no basis activity, perceive
While we do not condone such we been or a directed upon an indictment should have dismissed verdict granted. have held Supreme Court
This court and the United States alleged for an remedy considering appropriate that when misconduct, involving governmental constitutional violation remedy suffered from the violation injury should be tailored to the
alleged indictment, and should not result the dismissal of an or as is sought granting here, verdict, also may proceеd in the of a directed when case recognitidn right
with full defendant’s to a fair 224) (1981); trial. Jordon v. United Morrison, States v. 449 U.S. SC 66 LE2d (1981). alleged questionable case, In this the constitutional violation is police interrogation techniques, injury suffered is *10 possible potentially involuntary inducement of unreliable coerced or subjected techniques. from statements witnesses to these We note injury alleged that the here is not a direct one to the such as sought where his own confession obtained coercion is to be supra. See, LaVallee, introduced. United ex rel. States Portelli v. remedy appropriate alleged We find that the case, for the violation questionable interrogation techniques upon this witnesses, supra, the use of LaVallee, is that stated United States ex rel. Portelli v. right fully any which is the defendant’s to interrogations. cross-examine concerning remedy witnesses called at trial fits the violation giving their This alleged and assures the defendant of a fair trial opportunity fully place jury him an before the issue credibility veracity and of the witnesses’ and remedy transcript statements, a which the shows defense counsel fully supra; used the instant case. Jordan United States v. supra. Consequently, Morrison, we find that the trial court acted properly dismissing granting in not the indictment and in not brought verdict, directed two drastic remedies which would have proceeding criminal to a halt. questionable urge
Here, it is anomalous for the thé police interrogation techniques against used witnesses called in his brought proceedings, trial should have a halt to the criminal when the remedy involuntary confession, for his own coerced or there had merely suppression one, been would have been of that statement. above, As indicated we decline to so hold.
5) Wilcox’s second enumeration of error concerns the dire voir questioning attorney of Sandra Finland. The district asked Mrs. any opinion guilt Finland if she had “formed the accused.” She as or innocence of responded, point “It’s hard to answer.” At that judge juror trial asked her whether if she were selected as a she would disregard any opinion might she have formed and instead would presented during decide the case on evidence trial under the law given charged by affirmatively. her as the court. She answered attorney questioned district any then Mrs. Finland whether she knew of why impartial juror. reason she could not be a fair and She said she didn’t. subsequently you any asked,
Defense counsel “Have formed opinion you “Yes, at all A. Q. about this case?” sir.” “... I take it that your “Yes, lean to one opinion Q. side or to the other?” A. sir.” ... “What is “Guilty.” say at this time?” A. Q. “... would it be fair to that it — would take some evidence that some evidence would have to be opinion your “Yes, introduced in order to erase that from mind?” A. point again substantially intervened, sir.” At this repeated the court question, asking despite his earlier her whether the fact that opinion respect guilt she had an or innocence of the yield opinion accused, she could and arrive at a decision based solely upon again instructions, evidence and she answered affirmatively. repeated question concerning
Defense counsel then his her misunderstanding produce had the burden to evi- opinion guilty, again dence to overcome her that he was she responded Appellant challenged cause, in the affirmative. her for challenge. the court overruled the At the end of voir dire peremptory against exercised his ever, strike Mrs. Finland. second How- using strikes, he did not exhaust his available nineteen twenty jurors accepted. appeal out of before twelve grant challenge first, contends the failure to was an abuse of juror’s perfectly impartial discretion, since mind was not between *11 incompetent the state and the accused and thus rendered her to (a) (c) (Code (3), 59-806,59-807), serve, § OCGA §§ 15-12-164 Ann. impermissibly proof appel- second, shifted the burden of to lant. twice averred merit. Mrs. Finland enumeration is without
This
(the
already
her
elicited
second time after defense counsel
proof)
opinion concerning
if
she would
selected
the burden of
solely upon
at trial
the evidence adduced
arrive at a decision based
given
cannot
her
the court. We
the law
and the instructions on
opinion concerning a matter of law
the record that her
conclude from
trial
of the
not follow the instructions
was so fixed that she would
refusing
judge
to dismiss
did not abuse his discretion
court. The
her
(239
786) (1977);
(4)
State,
SE2d
Mrs. didn’t any, error, v. was harmless. Strickland strikes and the (15) (275 29) (1981); State, Ga. 583 State, SE2d Gee 247 Ga. 356) (1977); supra. Welch v. error, complains first his enumeration jury ven- failure trial three traverse court to dismiss for cause Nutt, irepersons, Parrish, questioned Each was Swank. qualified by Upon the court. close of challenged, and nevertheless peremptory voir dire his fifteenth sixteenth exercised Parrish, However, respectively. as we stirkes to remove Nutt and (5), only twenty nineteеn of his supra, noted Division used jurors impaneled. before Two alternate allotted strikes twelve were jurors peremptory were then to be selected. Wilcox was allotted four his first strike choosing strikes to use alternates. used against Neither ever sat as a juror. Swank. alternate (Code appeal Wilcox Ann. claims OCGA 15-12-133 § § 59-705) right “any opinion him an uncover as to gave absolute party ought prevail,” only and that the trial court not unconstitutionally statutory but denied him abridged right his also impartial jury trial an and effective assistance of counsel. We disagree.
First, ground note not we the constitutional was raised at since, any below, but in event has no merit as we there decide (Code no Ann. abridgment was harmful defendant’s 15-12-133 § § 59-705) Second, right. to Mrs. wаs based appellant’s objection Nutt dire; solely upon she allegedly equivocal gave during answer voir us, may any has not before and he not raise argued ground ground appeal. other trial court not challenge on The did abuse Third, discretion in Nutt. overruling challenge Swank’s name venirepersons called before the twelve who tried the case selected, therefore, actually any and no alternate jury; sat error qualifying prospective juror her as a Thus harmless. challenge we left challenge have to consider is the to Par- rish.
During examination of Mrs. Parrish the queried trial court her whether she knew of any reason why she be couldn’t a fair and impartial juror, and she Later, answered she didn’t. defense counsel asked her if she had leaning “a or inclination towards one side of the case or the (sic). other?” A. “Uh-hunh.” intervened, court and as before asked whether she could her disregard opinion and decide the *12 solely case on trial evidence and instructions. She said she could and would.
Defense counsel persisted, and asked if still she had the “leaning.” yes, See answered I “but do like I feel a fair juror.” could be The court again intervened questioned her, and again she affirmed that she would disregard her leaning and limit herself to consideration evidence and presented instructions at trial. Appellant’s lawyer said, then me if your “Let ask inclination or —” “I’m not going your is in favor of or Court: leaning against cause, you claiming for Appellant challenged let that.” later ask direction,” complaining in “leaning Parrish was one in direction she leaned. should have been allowed to discover which by trial court. We find no abuse discretion asked questions jurors which “Since the distinction between if are how a case and when such issues they would decide issues of merely jurors can presented inquire whether questions always crystal prior start without inclination is not the case bias or clear, vested the sound dire examination is the ‘control voir will be interfered with legal judge discretion of the trial not clearly this shows an abuse of discre- court unless record ” 238) (1981). State, tion.’ Welch Waters v. SE2d 665, “Furthermore, supra. v. is no evidence that State, 237 Ga. there [appellant] peremptory utilized all оf strikes. Therefore [he [his] striking juror even erred in not judge harmed the trial not [the] was] id., Welch, p. for 671. cause.” above, we affirm.
For the reasons stated Clarke, concur, except All the Justices Judgment affirmed. Weltner, JJ., specially. concur Gregory and who — 18, Decided March
Rehearing denied March Coleman, Palmour, & Kitchens, Wilby & C. Cook Coleman Cook, Bobby appellant. Lee for Bowers, Cole, Attorney Attorney,
H. Michael J. Lamar District General, General, Jefferies, Attorney for H. Staff Assistant Virginia appellee. Justice, specially. concurring
Gregory, I case. this With agree majority result reached I court not regard agree Division 5 of that the trial did opinion, abuse dismiss Finland favor. refusing juror its discretion However, Blankenship I 247 Ga. for reasons which stated any (1981), persuaded I error am failed ground Finland was on the qualifying harmless peremptory to exhaust his strikes.
I and Justice Weltner am authorized to state that Justice Clarke join special in this concurrence.