*1 for nonpayment, prior Flewellen, optional PIP benefits. This case must therefore be retried as to the issue of Voyager’s good faith or lack of it in failing to pay the minimum benefits due within 30/60 days after proof of loss was filed.7
Judgment part; affirmed in in All Justices part. reversed concur, Marshall, J., except P. judgment only. who concurs
Decided December 1983. Henson, Henson, Henson, Jr., & Henson Kenneth M. Kenneth Henson, McFarland, M. & Fuller, Fuller Millard D. appellant. Smith, &
Hodges, Erwin, Erwin Kenneth B. A. Hodges, William for appellee. James,
John E. Estes, Alfred L. Allgood, Andrew W. Lamar Sizemore, Winburn, Butler, Stone, Gene Mac E. James William S. amici curiae.
39641. THE WILLIAMS v. STATE. Justice. Bell, February 27,1982, Williams, On appellant, Wayne Bertram was found guilty Jimmy Ray Payne of the murders of and Nathaniel Cater and Appellant’s received two consecutive life sentences. 16, 1982, motion for new trial was denied on December and he appeals. We affirm.
1). Initially, we note that
the state introduced evidence of ten
other
alleged
establishing appellant’s identity
murders to aid
as
perpetrator
Payne
of the murders of
and Cater. See Division
Appellant’s
infra.
first enumeration of error concerns the state’s use
of circumstantial
evidence
expert comparisons
based on
of textile
fibers
found
environment with fibers discovered on
the twelve
experts
they
victims’ bodies. The state’s
testified
believed certain of the fibers which were
associated with
victims
matched others which had been
recovered from
home
used,
they opined
cars
had
an
that these matches established
inference that Williams
had been
contact with the victims before
7Here,
McFather,
as in
supra, the insurer asserts that it
optional
tendered the
PIP
payment
days
within 30
McFather,
Flewellen. As in
we do not here decide whether
payment
not,
such
If
made.
may
issues on retrial
be broader than stated
above.
prosecution
upon by
was relied
opinion
their deaths. This
killed the victims.
that Williams had
support
the further
inference
adequately demonstrate
that the state failed to
Appellant now claims
methodology which was em-
reliability
of the fiber
scientific
admission of the evidence based
ployed by
experts,
its
and that
error.
techniques was therefore
principles
these
*2
given
scientific
court to determine whether
It is for the trial
v.
Harper
evidence.
principle
technique
competent
is
or
(1) (292
389) (1982).
may make this
“The trial court
Ga. 519
in
by
parties;
presented to it at trial
determination from evidence
may
value. Or the trial court
expert testimony may
be of
regard
exhibits, treatises,
of cases
or the rationale
base its determination on
error here.
in
Id. at 525. We find no
jurisdictions.”
other
com-
2).
Wayne
In
enumeration of error
his second
experts of
process
due
to have
plains
right
that he was denied his
of the state
possession
his
examine fiber evidence in the
choosing
61) (1981).
(6) (282
Sabel
laboratory.
crime
In further asserts that appellant his fifth enumeration of evidence in the meaningful was denied access to critical Morton because, time, from time to the evidence was Payne and Cater cases him, equipment he was forced to use not available to because good working lab which was not in order. the state crime question Although dispute there is no that the evidence we varying expert opinion, nature was to subject and that its critical case, there is no merit that, under all the circumstances of this find portions question these enumerations. We first deal with the of which appellant may rely upon support arguments. of the record pre-trial transcripts, addition to the and trial record and both by Morton Williams and the state direct our attention to an affidavit support Despite which was filed in motion for new trial. performed greater part the fact that Morton of the defense witness, evidence, analysis of fiber he was never called as a attempt proffer of his affidavit constituted sole with the crime introduce Morton’s firsthand account of his contacts path. in his personnel allegedly placed lab and the obstacles its However, specifically refused to the record shows that the court evidence; enumerated separately admit the affidavit as this refusal 19, infra, but, as find in appellant, error as we Division Hence, Morton’s exclusion was not erroneous. we will not consider purpose determining affidavit for the the instant enumerations. analysis defendant does begin by emphasizing We our that “the absolute, evidence. unqualified right not have an to examine such timely independent The motion for an examination must be made. power The trial court the exercise of its inherent to conduct it, proceedings impose appropriate safeguards before should *3 evidentiary preserved insure that the evidence is and unchanged generally require use at the trial. This would the defendant’s laboratory expert in the state be allowed to examine the substance under and of the state rather than supervision control him. The custody possession of the substance to relinquishing any exists for not request must be reasonable. valid reason If independent the defendant to the substance for an permitting use discretion, refuse to analysis, may, the trial court as a matter of permit such an examination.” Patterson 206 (1977). a). by failing expressly We do think erred to not court permit inspection of fibers to the ten extrinsic offenses. relating critical duty independent inspection trial court’s to mandate of possession in the the state does not arise unless defense evidence in the court of which timely counsel moves fashion and notifies If or in the inspect. evidence it seeks to the defendant knows critical know of the existence of diligence of reasonable should exercise state, yet fails to possession critical evidence in the of the potentially examination, he or she cannot timely in a fashion for its then move surprise by at trial. unfair its introduction claim he cannot claim was In the instant case it clear Williams question, in surprised by the introduction of the evidence unfairly replete with information transcripts record and are pre-trial since type clearly anticipated that evidence that he shows which Yet, in by despite be used it at trial. possession might state’s prosecution might fact of his that the use evidence of awareness offenses, December despite began extrinsic the fact that trial February apprised it was not until that he the court that he was expert dissatisfied with the court’s omission to authorize his to Moreover, inspect even if we assume that the court that evidence. by personnel erred the state crime lab to allow failing to direct experts relating examine the evidence to extrinsic to — offenses, January the error was harmless. On at least two occasions — in February experts 18 and defense fact offered the in so. opportunity question, to look at the fibers but declined to do b) . in Neither do we find that the trial court erred its November by preventing examining order Williams from the notes of experts, reports, physical products state’s their and the and results experiments. that, of their tests and argues because the voluminous, complex evidence this case was so his con- prepare his de- right adequate opportunity stitutional to an to him sufficiently by affording op- fense was served the bare Instead, portunity evidence. he perform his own tests of critical contends, fundamental fairness dictates that also should have given verify been a meaningful opportunity validity both the of the procedures by used and the results reached the state in order to be However, effectively able to rebut them at trial. the record shows that validity any Williams never set challenged rules out order, and, particular, the November 12 never raised the instant Thus, (a), issue. for the reasons stated in supra, subdivision we will appeal. not consider this issue on
c) . We now consider argument, found his fifth error, enumeration prosecution and the state crime lab violated his Sabel personnel rights failing provide expert meaningful with access to critical evidence. He contends that Morton was frustrated at each stage by being of the trial forced to use crime equipment good lab which was not in told working being order and that evidence he wanted to work on was not available. These *4 contentions have no merit.
First, allegation the concerning equipment the condition of the attention, brought Morton had to use was never to the trial court’s and, since, noted, already as properly the trial court excluded the record, affidavit nothing support Morton from there is to Next, appeal. on allegation regard allegations to evidence, concerning nonavailability of the record shows that January 20 only allegation one such was raised the court below. At a attorney defense Binder claimed that state was hearing, 21 and Cater, pertaining Payne evidence to but the withholding fiber and
753 state unequivocally impeded denied that it had or blocked Morton in any way or that evidence had been withheld. The court did not find any but, state was in way culpable, in an abundance of caution, ordered the give state to Morton another chance to look at in question. evidence Mr. Binder indicated that such action would satisfy his objection. When it later became known that Morton had subsequently left for California taking without advantage opportunity provided by court, motion, the judge, upon Binder’s directed the state to open the crime expert, lab for another defense Bresee, who then apparently performed independent as much of an examination as the defense wanted at that point. clearly These facts show that the adopted court all the corrective measures which were requested by counsel, defense and therefore there is nothing review on appeal.
3). undisputed It is August 1981 Williams made a proper timely and request for production of reports scientific under (a) (Code OCGA 17-7-211 27-1303), Ann. § his third and § fourth error, enumerations Williams alleges that numerous violations of that statute during occurred the course of the trial.
a) . One complaints is that the trial court erroneously admitted the testimony experts of several state’s concerning results of experiments, scientific as no scientific report had been prepared from experiments these provided However, the defense. recently we have adversely decided this issue State, Law v. appellant, (2) (307 904) 251 Ga. (1983),1 SE2d this contention is without merit.
b) . Alternatively, experts’ Williams hand argues written notes of their as “scien experiments should be construed (Code tific Ann. reports” purposes of OCGA 17-7-211 § § 27-1303). Appeals disagree, We and find that the Court of has correctly products expert a state’s held that the notes and work do (Code Ann. purview not fall within the of OCGA 17-7-211 § § State, 27-1303). v. 515, 516 (1982); Sears SE2d App. 161 Ga. State, (2) (288 Hartline v. (1982); App. (2) (e) (282 684) (1981). Hartley 157, 159 App. Ga. c). In the strictures of OCGA attempt another to invoke § (Code 27-1303), Ann. argues graphs 17-7-211 § requirements dealing question We are not here with the of whether the of OCGA 27-1303) (Code attorney Ann. if knows of the 17-7-211 are violated a district § § expert experiment specifically of a scientific instructs the examiner or results report. supra, writings not to reduce his to the form of a written See Law v. Weltner, dissenting opinion of J. *5 produced by an microspectrophotometer instrument known as a (MSP) constitute reports” “scientific and should have been delivered to him pursuant his request According Larry under that statute. to Peterson, microanalyst Laboratory, a with the Georgia State Crime an MSP is an instrument designed to measure the color of microscopic materials such as fibers. Peterson testified that the instrument functions as follows: the material to be examined is first placed microscopic lens, on a put microscope’s slide and under a light passed material, is then through microscope, on the through spectrophotometer, into a perched top which is on microscope. Once spectrophotometer, passes inside the into light monochrometer, a an instrument basically splits light which into component its parts or wave lengths. That information is then amplified, through microprocessor, sent graph, and recorded on a which consists of a series of curves representing the color of the material. Dr Peterson used an compare MSP to the colors of fibers taken Wayne from the Williams environment to similar found fibers instance, some of the victims. For state’s graph exhibit #650 is a curves, containing three depicting dyes one or present colors green fiber Cater, recovered from the hair of Nathaniel one depicting dyes present or colors green a known fiber removed from a green carpet appellant’s bedroom, dyes and one depicting or colors of a green fiber removed carpet from that which had been fading by tested for being days immersed for three in Chattahoochee river water.
Williams argues that such a graph embodies the final test results regarding conclusions the comparisons of fiber colors and is report therefore a scientific subject discovery under OCGA § (Code 27-1303). 17-7-211 Ann. Thirteen such graphs were in- § troduced at trial over the defense objection that state had provided them to the pursuant defense request its under OCGA § (Code 27-1303). 17-7-211 Ann. The trial court overruled this § objection, finding that the graphs compose did not “scientific reports.” We agree. 571, 574, State v. Madigan, 249 Ga. fn. 406) (1982), we briefly discussed the issue of what elements comprise report. a scientific We noted that the element common to examples (Code reports scientific listed OCGA 17-7-211 § 27-1303) Ann. was “that each includes the findings examiner’s § on scientific analysis based or or opinion.” her After examining testimony, Dr. Peterson’s it is clear that the graphs appellant sought did not Peterson, to exclude contain the Dr. conclusions of but interpreted by had to be him in instead order to attain significance. reason, we graphs For this conclude that were not “scientific (Code were not discoverable reports” and under OCGA 17-7-211 § 27-1303). Ann. §
4). In his sixth error, enumeration of raises, alia, inter the issue of the admissibility of evidence of ten homicides which were not the subject of this trial. We have held that evidence of other criminal acts of “
defendant may be if admitted it substantially ‘is relevant for some purpose other than (the to show a probability defendant) *6 committed the crime on trial because he is a man of criminal ” State, Walraven v. character----’ 401, (297 278) 250 Ga. SE2d (1982) (quoting Evidence, McCormick 1972). on Ed., 190 at 2d § The purposes for which evidence of extrinsic may offenses be offered motive; intent; include absence (each of mistake or accident is as- pect intent), (of of plan or scheme which the crime on trial part); is a State, Walraven v. identity. and supra, at 408. Kilgore State, v. (3) (a) (305 82) Ga. 291 (1983); McCormick, supra, 190, at § 448-451. To render evidence of extrinsic offenses any admissible for of purposes, these the state must show that the defendant was the perpetrator of offenses, the extrinsic and that there a sufficient similarity or connection between the extrinsic offense and the offense charged, proof such that of the former prove tends to the latter. State, Walraven v. 408; Kilgore supra, 296; at supra, at Hamilton v. 515) (1977). Therefore, the issue before us is whether there is sufficient evidence tying perpetration independent of the crimes and whether independent the crimes were similar or logically connected to the offenses charged so that proof of the former prove tends to the latter. A determination of depends this issue on analysis an of the facts surrounding the two charged crimes and ten uncharged the crimes.
Part of the by evidence used the appellant state to connect with these crimes comparisons consisted of of fibers and hairs discovered clothing bodies, victims’ and and on items recovery used bodies, of their with fibers and appellant, hairs removed from cars, home and and his Shepherd German dog. comparisons These — were by conducted three experts state’s FBI Agent Harold Deadman, employee Larry Peterson, GBI Royal and Canadian Mounted Police employee Barry Gaudette. compare
To the hairs and fibers found victims, environment with those found on the experts the state’s used variety a microscopes. regard, Deadman, Agent a microanalyst, described as microscopes follows the which can be used 1) compare fibers: a microscope, stereobinocular which can magnify single times, a fiber about seventy and which is used to 2) visually fibers; compare a compound microscope, can which magnify single approximately times, a fiber which, 400 to 500 like microscope, 3) visually compare fibers; stereobinocular is used to comparison microscope, side, a magnify by which can two fibers side compare microscopic optical properties and which is used to 4) (see (c) fibers; microspectrophotometer a two Division 3 5) microscope, a opinion); polarizing light which is used to of fibers in optical properties examine the a more discriminating a provided comparison microscope; fashion than that a which is microscope, fluorescence used to determine type light it has been illuminated with type fiber emits after a certain light. Additionally, scanning microscope electron occasionally was used experts. From the it transcript state’s is difficult to discern microscopes which of these were used to conduct each particular however, comparison; Larry fiber Peterson implied that microscope, the comparison microscope, stereobinocular and the microscope were used polarizing light to conduct all of the comparisons. apparent It is also that several of the microscopes, other microspectrophotometer particular and the fluorescence microscope, compare were used to some selected fibers. types of fibers and hairs which Agent Deadman testified
were appellant environment, taken from and his along with the items taken, they from which are as follows: violet acetate green *7 cotton fibers the representing composition of a in bedspread found 2) appellant’s bedroom; green yellow nylon and fibers used to fabricate carpet 3) in appellant’s bedroom; found dog hairs removed from appellant’s 4) Shepherd; German yellow rayon and acrylic fibers used yellow to fabricate a blanket in appellant’s found 5) bedroom; rayon nylon and fibers used to fabricate the carpet of a white 1970 Chevrolet wagon station appellant to which had access part during period of the over which question occurred; the crimes in 6) acrylic blue fibers used to fabricate a blue rug throw found in the porch 7) or garage appellant’s home; area of polypropylene fibers used to fabricate carpet a located in a in workroom the back of appellant’s home adjacent 8) to appellant’s bedroom; yellow nylon, rayon, blue polyester, white pigmented and polypropylene fibers, for which appellant’s no source from environment was identified, and which were recovered from vacuum sweepings made by the appellant’s 9) state of 1970 station wagon; fibrous debris removed 10) from a vacuum in appellant’s home; cleaner found white polypropylene fibers used to fabricate the trunk liner of a 1978 Plymouth Fury appellant to which part had access during of the period over occurred; 11) which in question the crimes acrylic white and secondary acetate fibers used to fabricate the trunk liner and red nylon tri-lobal fibers used to fabricate the carpet interior of a burgundy-colored LTD appellant Ford to which had access occurred; in question which the crimes part period over during a 12) composition representing secondary blue acetate fibers home; appellant’s porch garage from or area of bedspread taken of a 13) composed lining rayon and fibers which brown woolen 14) acrylic fibers used by appellant; gray owned jacket leather compartment in glove a which was found gray glove fabricate nylon fibers which were appellant’s wagon; yellow 1970 station the Williams home used to a toilet seat cover taken from fabricate in vacummed from the which were found the fibrous debris carpet acrylic fibers used to fabricate a wagon; yellow station in the home. which was found kitchen of (see carpet As to the found in the appellant’s bedroom #2 preceding paragraph), the state established that it was somewhat A unique. Poston, textile technologist Henry named who was the Wellman, Boston, director of technical Incorporated, services for a synthetic fibers, Massachusetts manufacturer of textile testified that begun he had working for Wellman and that one of the first things he was asked development to do was to assist of a synthetic Poston, fiber known According as the 181-b. this fiber shape, lobe, had an unusual long trilobal with two lobes and one short designed which was to avoid infringing upon patented DuPont equilateral shape. trilobal The witness was shown state’s exhibit #616, microscope which was identified scanning as a electron bedroom, photograph green carpet of a fiber from the he it appeared said to be a Wellman 181-b fiber. The state also called to the Baggett, employee stand Gene an of West Point Pepperell, Dalton, Georgia carpet manufacturing company. Bag- fibers, gett company’s purchasing manager yarns, backings, company purchased and he testified that his had company Wellman fibers in 1970 and 1971. He testified that the had carpet, used Wellman fiber to manufacture several lines of 181-b Dreamer, which, lines including known as Luxaire and both of testified, had dye English been colored with a formulation dubbed Olive. testimony the course of his Baggett identified state’s exhibit *8 a sample English
#623 as of the Luxaire Olive which had been company’s obtained from his business He then was asked to records. #624, examine sample appellant’s green state’s exhibit which was a of chemist, carpet. bedroom he he a and Although admitted that was not qualified perform microscopic analysis was not and identification fibers, single that, inspection of of upon testified based his visual aggregate physical height pile, weight such characteristics as of of carpet, type backing, appeared and of # 624 to be similar to # 623.
Harold Deadman later testified that he had examined state’s carpet from 659, piece green of the exhibit # which was another 660, was Williams, # which and state’s exhibit Wayne bedroom of FBI had obtained He that the piece green carpet. another said as a ell, had identified it Pepper Point which latter exhibit from West that, his examination testified based on piece of Luxaire. Deadman no exhibits, he could find the two characteristics of gross physical “in construction, that and concluded their significant differences They company. by the same probability they all were manufactured the same source.” certainly could have come from the cars to which testimony concerning The state also adduced crimes over which the period access appellant during had Barnhart, uncle, that he loaned testified Ralph appellant’s occurred. appellant’s father wagon his 1970 white Chevrolet station 1980, family had had exclusive the Williams October and time. Detective Milton Jones possession of the car since that he had determin- Atlanta Services testified Bureau of Police of a 1979 family possession been in ed the Williams had 1979, 15, when May LTD from burgundy-colored Ford 4, 1980, it was re- new, when it to December purchased father that, repossessed, the car was possessed. Jones testified when 54,343. also as Jones company repossessed mileage which it listed appellant bought new testified that he had determined 24, 1978, it until it was May and owned Plymouth Fury blue on 31, 1979, the odometer at which time repossessed on December family 60,000 miles. Jones also testified that registered February wagon station on rented a 1979 chamois-colored Fairmont 1981, driven 104 miles. and returned it after it had been been jury facts a would have We now turn to a recital of homicides of presented evidence on the authorized to find from the Cater, which the two crimes with Jimmy Ray Payne and Nathaniel was appellant charged. unemployed, and had no automobile
Payne years age, was home, he lived with his product license. A of a broken or driver’s 21,1981, mother, April was girl morning sister and friend. The late It was Payne by any member of his household. the last time was seen the Omni. way his mother he was on his then he told Payne standing day a witness saw Williams following approximately one stopped Highway taxi cab which was by River. The witness saw Williams mile from the Chattahoochee a white cab, he also saw talking to the driver of the taxi Payne from the cab. opposite side of the street wagon parked on station in the only in red shorts body was discovered clad Payne’s medical examination April River on 1981. The Chattahoochee that the cause of death opinion resulted in evidence autopsy *9 asphyxia by an undetermined method. testimony
The state adduced of seven fiber and hair associations Wayne Jimmy between Williams and RayPayne. Larry Peterson testi- 1) pale fied that two violet acetate fibers Payne removed from were consistent with violet present acetate fibers in the bedspread Williams, 2) except they color; that lighter were in that green three Wellman-type fibers Payne’s removed from shorts were similar to and could have originated appellant’s from carpet, again, bedroom 3) except they color; that were in lighter that a blue-green or blue-gray rayon fiber Payne removed from was consistent with rayon 4) fibers comprising carpet of the wagon; 1970 station that light yellow rayon several yellow fibers and a light acrylic fiber found Payne on were consistent with fibers composing yellow blanket in appellant’s bedroom, found except they color; that in lighter were 5) acrylic and that a blue Payne fiber removed from was consistent with acrylic the blue composed fibers which rug blue throw found 1) in bathroom. Harold Deadman testified that a blue rayon Payne fiber removed from rayon was consistent with blue fibers, known, for which no source was found in various fibrous debris 2) home, removed from the Williams the approximately seven animal hairs removed Payne from could have from originated Shepherd German dog. There was evidence that fibers Payne found on which lighter supposed were color than their counterparts from the Williams lighter environment were because of their exposure to river water. old,
Nathaniel Cater was years lived at the Falcon Hotel Atlanta, downtown and did Henry, not own an automobile. Robert a Cater, friend of saw Cater holding Wayne hands with outside the p.m. May 21,1981. Rialto Theatre about 9:00 to 9:15 a.m., May 22,1981, About 3:00 police member of a surveillance team stationed at the Jackson Parkway Bridge splash heard a loud in the Chattahoochee River and saw a circle of waves form on the water. An automobile was then starting up observed and crossing bridge. When the car was stopped, it was found to abe white Chevrolet Wayne station wagon Williams was the driver. body
Cater’s was discovered in the Chattahoochee River on Sunday, May 24, yards 1981. It was located about 200 downstream (the from Highway body Interstate only Cater was found a short found). distance from the location at Payne body which the was medical examination and autopsy body revealed Cater weighed pounds about 146 by asphyxia and that his death was caused due to broad, some kind of chokehold formed with a soft surface such as a forearm. nude; therefore, body only pubic and head hair
Cater’s so, Even regions holding were fiber or hair evidence. capable of Larry several Peterson testified fibers hairs were recovered. from the head hair of two acetate fibers removed pale violet present the violet acetate fibers Cater had same characteristics as color; except they lighter bedspread, Williams’ hair had similar nylon removed from Cater’s head green fiber composed which properties as fibers characteristics *10 color; 3) bedroom, in carpet except lighter in that it was appellant’s pubic hair had polypropylene that fiber taken from Cater’s green a optical characteristics as the fibers which microscopic the same and 4) home; in a in the workroom the Williams that composed carpet hair consistent nylon melted fiber removed from Cater’s head was in the debris vacuumed from nylon with fibers found fibrous 5) wagon; yellow rayon that a fiber removed appellant’s 1970 station with properties hair was consistent of the fibers from Cater’s bedroom, in yellow appellant’s except in the blanket found present 6) color; in and that four animal hairs recovered lighter it was with the characteristics of the hair of from Cater were consistent There was evidence that the fibers found on Cater dog. Williams’ in in the lighter supposed counterparts which were color than their exposure of their to river lighter Williams environment were because water. relating independent to the ten
We turn now to the evidence homicides.
I). ALFRED EVANS: body of Alfred July 28, Evans was discovered on 1979 on Road, Niskey Lake about one mile from its intersection with Road, Campbellton Evans, a four lane highway. fourteen-year-old, tall and weighed pounds about 80 to 90 at the time of his 5'4-1/2" body slacks, death. The was clothed in only and Detective Lloyd of the Atlanta Bureau of Police Services testified that there was no scene, a struggle evidence of at the and that the body appeared to there, have dumped been as it was lying face down about eleven feet the road steep off on a decline. Dr. John Feegel, Associate Medical Examiner County, for Fulton testified that the cause of death was probably asphyxia, with the asphyxia form of probably being strangulation. He found no injuries the neck area. McDaniel,
Vera neighbor Evans, testified that Evans did not have access to a car usually and rode a bus for transportation, that he did odd jobs around the housing project in which he lived. There was testimony that Evans was frequently out late.
The state adduced testimony of four fiber and hair associations between Williams Agent Evans. 1) Deadman testified two violet acetate fibers removed from Evans exhibited the same
microscopic optical properties as violet acetate fibers removed 2) from the bedspread appellant; that a fiber removed from Evans exhibited the same microscopic optical properties as the Wellman present fibers carpet bedroom and could have originated from carpet; polypropylene that six fibers found on Evans could originated have from the trunk liner of Plymouth Williams’ 1978 Fury; and that animal hairs removed from Evans could have originated Larry from dog. Peterson’s hair and findings fiber were consistent with Deadman’s.
II). ERIC MIDDLEBROOKS: 19, 1980,
On May body of fourteen- fully clothed year-old Eric Flat just Middlebrooks was discovered off Shoals Road, less than More- mile from Interstate 20 and near both 1/2 land Avenue and 4T0" approximately Memorial Drive. He was tall and weighed about 88 pounds at the time Feegel death. Dr. of.his performed autopsy. He testified that there were two cuts or lacerations right significant on the side of the head that had caused external bleeding scalp. as well as internal under the hemorrhaging arm, super- There was also a stab wound and a right upper upper ficial stab wound the left chest Dr. concluded Feegel area. the death probably was homicidal and was caused blows *11 cross, to the view- head some kind of blunt instrument. On after pool a Dr. ing photograph Feegel agreed significant which showed a body, of blood around the Dr. testified that he Feegel victim’s However, believed he Middlebrooks died where he was found. also testified that hit with a blunt Middlebrooks could have been elsewhere, body instrument then where his was dumped and found. investigated who testimony of the detective
According side of other on the case, just lived Middlebrooks Middlebrooks ap- found, a distance body was where his Interstate from was last that Middlebrooks mile. He also testified proximately one body his before p.m. night bicycle around 10:00 riding his seen to a store going was that time Middlebrooks found. At was The deceased’s neighbors. his for one of Drive on an errand Memorial had turned pockets been body; pants next to his bicycle was found body. on the out; money was found and no inside Police Atlanta brother, with the Kerry, an officer Eric’s older father, Robert his foster Eric lived with testified that Department, began Eric Kerry, he and According to Miller, of his death. at the time good had had in and Lucille Miller with Robert and living used his Eric that Kerry also testified family life since that time. in people for jobs did odd errands and transportation, ran bicycle fairly late hours. kept neighborhood, Agent Deadman testified as to five fiber and hair associations 1) between Middlebrooks and Williams. He testified that four violet acetate fibers removed from Middlebrooks were consistent with 2) having originated appellant’s bedspread; thirty-two from that red nylon clump fibers that were found in a on one of his shoes could have 3) originated carpet LTD; from the interior of the 1979 Ford that acrylic secondary two white acetate two fibers found on Middlebrooks could have from the trunk originated liner of the 1979 Ford; yellow nylon that one fiber found on Middlebrooks could originated have from either the toilet cover the Williams home or (which identify) produced from the same source he could not yellow nylon loose fibers that were found in the debris vacuumed from the wagon; 1970 Chevrolet station that one animal hair removed from originated Middlebrooks could have from the Larry dog. testimony Peterson’s concerning hair and comparisons fiber he had conducted was substantially to the same effect as Deadman’s.
III). CHARLES STEPHENS: 10, 1980,
On October the partially body clothed of twelve- year-old Stephens Charles was found near the rear entrance to park. body a mobile home only jeans was clothed blue reported one tennis shoe. The detective who to the crime scene out, appeared body testified that it had been laid that there were signs no of a and that no motive could be established for the struggle, Stephens The victim’s testified that lived with killing. grandfather public housing project his mother and often ran errands for people neighborhood money. testimony in the to make There was also frequently hung the victim around the streets. body. Stephens
Dr. examined the He Feegel testified was pounds. weighed about 4'9" inches tall and about 108 Because petechial hemorrhages, signs asphyxia, which are were located on asphyxia. was parts body, thought several the cause death And, neck, injuries because of the lack of around the he concluded asphyxia the form of suffocation. testimony eight
The state adduced fiber and hair associations *12 1) and Williams. Deadman testified Stephens Agent that between found thirty-five green violet acetate and a number of cotton fibers Stephens originated bedspread could have from the found on 2) bed; nylon from yellow that three fibers removed appellant’s carpet appellant’s found in Stephens originated could have from 3) bedroom; polypropylene Stephens that two fibers found on could home; in the back of the Williams originated from the workroom have 4) thirty undyed synthetic secondary and about 20 acetate that about with having fibers from consistent Stephens orig- recovered LTD; 5) that nine trunk liner of the 1979 Ford inated from the fibers, rayon Stephens rayon blue fibers found on were similar to blue unknown, the source in debris vacuumed from of which was found in the sweeper found wagon, 1970 station debris removed from home, bedspread found Williams and debris removed from the 6) appellant’s bedroom; yellow nylon taken from that one fiber in the Stephens originated could have from the toilet cover found unknown, home, source, that or from the same which was produced yellow nylon appellant’s fibers found on some of clothing wagon; the debris removed from the 1970 station that polyester Stephens five coarse white fibers removed from could have source, unknown, originated produced from the same which was found in polyester rug the white fibers removed from a white approximately wagon; 1970 station and Stephens originated seventeen animal hairs found on could have cor- Larry substantially from Peterson dog. Again, testimony. roborated Deadman’s
IV). TERRY PUE: January 23, 1981, fully
On fifteen-year-old Terry Pue’s cloth- ed body was half mile lying approximately discovered. It was one from Interstate 20 of a Rockdale pavement about two feet off the County Dawson, Georgia examiner for the road. James a medical body. He autopsy on Pue’s Laboratory, performed Crime tall, approximately body weighed testified that the was 5' 5-1/2" ligature marks around 100 lbs. He also testified that he found neck, in the neck as well as underneath the skin hemorrhaging some definitely asphyxia, area. He concluded that the cause of death was manual, by strangulation. by ligature, possibly Terrell, sister, Terry worked Terry Pue’s testified that Pamela city, places at various around jobs, hung various odd out him Lake, last saw Point, and the Omni. She including East East body was found. days three before his she saw Pue’s, Kendrick, A friend of Charmaine testified before she learned Wayne Pue with Williams about a week Fried body. Kendrick worked at a Church’s discovery of Pue’s occasionally Chicken, and, would testimony, her Pue according to that, late one and ends. She testified come the store to sell odds gun, her water afternoon, Pue tried to sell a came the store and it, that he that, responded him he get when she asked where he would testified, green left, walked toward for a man. He then she worked man, car, sitting man wagon, station and talked to a for whom said, as the man Kendrick whom Pue had identified *13 Wayne Williams. At this man as worked. trial she identified and at at the crime scene placed Several witnesses also at the crime scene police Pue’s funeral. Two officers who were scene, some presented testified that Williams came to the crime also identification, if Two witnesses pictures. and asked he could take Terry Pue. the funeral of they testified that saw Williams at testimony The of five fiber and hair associations state adduced 1) one between Pue Deadman testified that over Agent and Williams. found on green hundred acetate and a number of cotton fibers violet bedspread from the having originated Pue were all consistent with 2) bedroom; found yellow nylon found in that three fibers appellant’s in carpet on Pue could have from the located originated bedroom; 3) fibers removed from pale green polypropylene that two in in carpet Pue could have from the located the workroom originated home; polyester coarse white back of the Williams that one polyester properties fiber recovered from Pue had the same as white fibers, unknown, rug which was from the source of vacuumed wagon; interior of 1970 station seventeen animal hairs found on Pue could have approximately originated dog. from the Williams
V). LUBIE GETER: body fourteen-year-old Geter, of only Lubie clad under- pants, was 5, 1981, discovered on February a wooded area about seventy feet off Vandiver Road. County, Fulton Stivers, Medical Examiner for
Dr. Robert Chief body body. He testified that performed autopsy on Geter’s petechial 103 lbs. Because weighed approximately was 5'7" tall and brain, heart, he concluded the lungs, hemorrhages found on And, hemorrhages found definitely asphyxial. was because death area, asphyxia neck he testified that the form under the skin being a strangulation probably strangulation, with the method of chokehold. father, and, to his according
Geter lived with his mother and washing testimony, jobs, yard he did odd such as work uncle’s 3,1981, January cars, missing on money. reported to make Geter was disappearance, morning of his and his mother testified him, 2,1981, he was leav- January the last time she saw which was testified that home to sell car deodorizers. His mother ing system. the bus transportation he rode his minibike and years, for six or seven Conway, Eric who had known Geter Jordan, January 2, Franklin morning testified that on the brother, him to the Stewart-Lakewood half drove and Geter Geter’s He testified area, they to sell car deodorizers. going where deodorizers, that because twenty-three but box of about Lubie had a he did not have any, stay did not at the mall but instead went home with Jordan. He testified that they let Lubie out front of Biga Star grocery store, and that Lubie said he would call Jordan to come get him later in day.
Franklin testified, Jordan and confirmed that he had driven Lubie and Eric Conway to a shopping center in the Stewart- Lakewood area. He testified that he dropped Lubie in front of *14 a Big Star and that Eric left with him. Jordan testified that that was the last time he saw Lubie and that Lubie never called him to pick come him up.
Ruth Warren, a resident of Rockdale County, testified that on January 2, 1981 she drove to Atlanta to take her mother shopping. She testified that she and her mother first went to a Kroger grocery store on Avenue, Stewart about a block from the Big Star on Stewart. She testified that a boy, whom she identified Geter, as Lubie approached her in front of the Kroger at p.m. about 1:30 and asked her if she wanted buy an air freshener. From the Kroger, she testified, she and her mother went to Royal Mattress Company, then to her mother’s put home to away the groceries and then back to the mattress company, arriving there around p.m. 3:00 She tes- tified that the mattress company was located next Stewart-Lakewood Center, Shopping on the opposite side the Kroger store. According to Warren, her picked mother mattress, and, out a when she went could be open outside to her van door so the mattress loaded, saw, boy her, she man and twenty about feet from a black he talking. She testified man that that she heard the child tell the in him, would like he had a go to with but that he needed sell what box. Warren said that she then away, saw them walk and that she they Zayre’s were a store or towards a thought walking over towards get car that in lot. She did not see them green parked parking trial, any boy in At as Lubie Geter and the vehicle. she identified Wayne cross, they man as she that the car Williams. On testified wagon. her Ford station After walking towards looked similar to police with the about the disappearance, Geter’s Ms. Warren talked police Geter, she told and at that time man she had seen with the man wearing glasses. was not
A Wayne fifteen-year-old juvenile placed also Lubie Geter with day he was January Williams on 1981. He testified that on that area. The witness in the Stewart-Lakewood carpet at a store working dock, he saw Lubie that, loading a working when he was on stated man he well, a car with a Geter, very get into whom he did not know that the car Geter Wayne at trial as Williams. He testified identified The witness top. in a black away Williams drove was white with in in 1980 he was the Stewart-Lakewood August testified that also area, job. him if he wanted a He testified and that Williams asked Williams, did, he in the car with got he answered that he and that him, finally and fondled that Williams then drove around town something out of get the car that he needed to stopped saying car, got after Williams out of juvenile trunk. The stated that He also testified nearby apartment complex. a jumped out and ran to the funeral of Lubie Geter. that he saw Williams at associations hair five fiber and testimony as to There was 1) that testified Deadman Agent Williams. between Geter and with were consistent Geter found on fibers several violet acetate bedroom; appellant’s found bedspread from the having originated had from Geter fibers removed 2) nylon carpet yellow that five carpet located present fibers as the same characteristics acrylic fiber discovered yellow bedroom; that one appellant’s kitchen carpet found from originated Geter could have have Geter could home; 4) rayon fiber found on green wagon; and 1970 station carpet originated from from have come could from Geter ten animal hairs removed substantially cor- testimony, Larry Peterson dog. In his findings. Deadman’s roborated
VI). PATRICK BALTAZAR: *15 February fully body eleven-year-
On clothed in a area off just old Patrick Baltazar was discovered wooded running through Corporate Square, complex a road an office lo- cated about three blocks from Interstate 85. Baltazar was about Dr. at the time of his death. weighed pounds 5'5" tall and about 130 Examiner, Burton, County testified Joseph the DeKalb Medical that, found, ligature he and because of marks hemorrhages because of neck, due to thought asphyxia on the the cause of death was ligature strangulation. B. County Department investigator,
A DeKalb W. Police Omni, Humble, apartment in testified that Baltazar lived near the an Street, town, and, Foundry frequently but that he roamed around in often visited his father where he worked on Courtland particular, Street, transportation and that for Baltazar walked or used the bus question in Baltazar system. Additionally, response to the whether family, a broken Humble testified that Baltazar’s mother came from Louisiana, father, as although listing lived in and that his his address Street, actually apartment in Foundry girl lived with his friend an Foundry only infrequently and returned to miles from Street several kept A friend of Baltazar’s also testified that Baltazar that address. money. worked odd to make jobs hours and late Williams and regard to hair and fiber associations between With Baltazar, testimony Agent such associations was adduced. eleven 1) Deadman testified that violet green acetate and cotton fibers removed from Baltazar were consistent with having originated from 2) appellant’s bedspread; yellow nylon that seven Wellman-type fibers that were removed from Baltazar exhibited the same char- properties acteristics and as present fibers in carpet located appellant’s in 3) bedroom and could have originated carpet; from that yellow that rayon four fibers removed from jacket Baltazar’s could yellow have come from the bedroom; blanket in appellant’s found 4) that rayon four fibers Baltazar, found on which, because of deterioration, ranged from green yellow color, in could have originated from carpet 5) of appellant’s 1970 wagon; station two woolen rayon fibers and one fiber found on Baltazar exhibited the same characteristics as woolen rayon fibers taken from the cloth 6) waistband of jacket; leather gray acrylic thirteen fibers t-shirt, removed from the jacket, and shirt of Baltazar could have originated from gray glove that was found in the glove compartment 7) 1970 station wagon; yellow that a light 8) nylon fiber, fiber, coarse polyester white a pigmented polypropylene fiber had properties the same present as fibers in the debris vacuumed from the 1970 station wagon, and could have originated sources, from the same unknown, which were produced the debris; 10) fibers ap- discovered proximately twenty animal hairs found on the clothing of Baltazar could have come from the Williams dog; scalp that two hairs removed from Baltazar were scalp inconsistent with Baltazar’s own hair, but were consistent with scalp Williams, hairs taken from could have originated from appellant.
Both Gaudette and Peterson substantially reached the same conclusions on their own hair comparisons and fiber as Deadman Baltazar’s case.
VII). LARRY ROGERS: 9, 1981, April
On body eighteen-year-old Larry Rog- ers was discovered an apartment, abandoned just Simpson off Street and a little less than a mile from the Highway. Bankhead Rogers was clothed shorts and tennis shoes. Dr. Robert Stivers *16 body testified that was 5'2" long weighed pounds. and neck, heart, Because of hemorrhaging around the lungs, and and because the thin broken, bones at the back of the voice box were Dr. Stivers thought asphyxia cause of death was by strangu- lation, possibly by a chokehold. lived Butler, Rogers that testified Marion neighbor Rogers,
A neighborhood, jobs odd around parents and worked with foster ball, Butler played Rogers cleaning gutters. leaves and raking as such area, in the parks and schools at various said, young with children drive, did and, enough to Butler, although old Rogers, to according There transportation. bicycle a bus have a car and his or rode retarded. slightly was was testimony Rogers that a year about known Rogers said had Baynham, Tilbert who he Rogers three that he saw and testified disappearance, a half before his He said disappeared. days Rogers before day times about three one place food a.m. at a fast day 9:30 that saw that at about Rogers he first ap- testimony, Rogers Baynham’s to According Street. Simpson on a joint with supply Rogers him if him and asked he could proached so testified that Baynham that Rogers high. and friend could get a in a Rogers sitting pointed friend, was that his friend out and not recall. car, fast-looking Baynham of which could the color in Rogers got Baynham, joint, a and According got Rogers to he then Baynham identified car with his and left. At trial friend Wayne deceased’s friend Williams. as
Baynham again testified that he and Rogers saw Williams that day time, testified, p.m. p.m. between 2:00 Baynham and 3:00 At that Rogers Williams and in a car traffic stopped light which was at a at the corner of Baynham West Lake and streets. testified Simpson that car, Williams was both and driving Rogers and that Williams Baynham him. waved at p.m. also testified that between 6:00 and 7:30 p.m. day that he saw Williams same Rogers driving area. Trammell,
Nellie him a friend of who Rogers, had known since he years old, was five or six placed Wayne also with Rogers Williams about the time of the victim’s testified that she disappearance. She last Monday, 20,1981, Thursday saw on March that Rogers that she reported missing. heard on news that he been On that had noon, testified, when driving home about Monday, Trammell she was it, cut front of green wagon, Rogers Williams and station with Williams was beside her. She said that stop then came over, slumped but driving, Rogers, and that she who spoke She testified say then drove home. anything. did not Trammell that she later saw at the victim’s funeral. Williams testimony associations
The state of seven fiber and hair adduced 1) that Rogers. Deadman testified Agent between Rogers from were consistent thirteen violet removed acetate fibers appellant; bedspread with the violet fibers taken from the acetate 2) nylon Rogers were yellow-green three fibers removed from 3) carpet; similar to Wellman fibers found bedroom could have yellow rayon Rogers fibers eight discovered bedroom; in appellant’s originated yellow from the blanket found could have Rogers taken from yellow-brown green fiber that one secondary two carpet wagon; station come from have could from the deceased’s shorts fibers removed acetate *17 originated from the bedspread that was 6) and that in found the Williams garage; yellow
a light nylon fiber removed from the head hair of Rogers exhibited. the same yellow characteristics as nylon fibers removed from the toilet cover found in appellant’s home, from the sweepings made of the 1970 station wagon, and from several items of clothing of appellant. Additionally, Larry Peterson testified that animal hairs found on Rogers could have originated from appellant’s dog.
VIII.) JOHN PORTER: 12, 1981, April
On fully body clothed of twenty-eight- year-old John Porter was Capitol found near in Avenue down- Atlanta, approximately town one mile from Interstate 20 and three miles from Interstate 85. Dr. Stivers testified that Porter’s body was 5T0" and long weighed 123 lbs. Dr. Stivers testified that Porter abdomen, died from six stab wounds to the chest and all of which were approximately 2 to deep. inches In response question to a on 2-1/2 direct, which inquired whether Porter would have bled when stabbed, that, Dr. responded Stivers places because of the where stabbed, Porter was all of the bleeding Porter did was internal. Stivers also testified that there were no marks or hemorrhaging around the neck area. opinion
It was the investigators one of the play no foul body discovered, occurred at the scene at which the was Porter having dumped been there after he was regard, killed. the officer that, stabbed, testified the victim had although been there was no investigator blood at the scene. This also testified that he had that Porter in apartment determined lived alone an abandoned Avenue, Capitol parents and that he did live with his because of problems recently he had with his He mother. had been released from Georgia Regional Hospital. unemployed He was and had no vehicle. as to seven fiber and hair associations Deadman testified
Agent 1) He testified that violet acetate Porter and Williams. between from the originated on Porter could have fibers found green cotton 2) nylon fiber removed yellow-green that one bedspread appellant; characteristics carry Porter exhibited the same the sheet used to from carpet up appellant’s bedroom making as the Wellman fibers 3) rayon yellow three carpet; from that originated could have removed yellow rayon fibers Porter matched the fibers removed from 4) bedroom; green that several in appellant’s the blanket found from from the originated have from Porter could rayon fibers removed 5) fibers secondary acetate that two carpet wagon; of the 1970 station bedspread originated have from from Porter could removed home; rayon fiber that a blue of the Williams carport found source, which have from the same found on Porter could come debris unknown, rayon the blue fibers found produced removed from the debris wagon removed from the 1970 station home; the vacuum cleaner found from Porter approximately seven animal hairs removed dog. having originated consistent with from the through link with Williams attempted to Porter also state station rear car seat found on the blood stain *18 Laboratory Crime Georgia from serologists wagon. Forensic his blood Porter, and determined sample from examined a blood enzyme his blood B and that Group International Blood type was in testified, exists which PGM-1, combination, serologist a type was a blood stain Another population. percent seven of approximately International from to be blood the car seat was determined found on PGM-1, serologist a and B, enzyme type an Group with Blood old. weeks eight more than stain was not this blood testified left this not have Moreover, Williams could a testified that serologist O. Group Blood type was International stain as his blood blood IX). JOSEPH BELL: 19, 1981, April body fifteen-year-old Joseph
On Bell was of in discovered the South River near and DeKalb Rockdale Dr. only pair was in a of underwear. County body lines. The clothed autopsy body, on Bell’s and he testified that performed Burton was body fairly decomposition, was in a advanced state of which chest, skull, hands, feet, by and partial evidenced skeletization of the abdomen, and of flies generations distention of the and several present decomposition, the state of maggots body. on the Based on Bell have had to have been thought Burton testified that he would that, early part although since the 1981. He testified dead March difficult, it body measuring weighing the condition of the made and Bell body length, he determined that the was 5'4" in and that about weighed pounds would have about 120 when alive. bodily he evidence of injuries,
As to Burton testified that found in apple high antemortem Adam’s and hemorrhaging behind the neck, in that there was part just spine. front of the He testified airways in the sinuses or unlike the usual condition of no water and because of the lack of drowning findings, victim. Because of these was any injuries, thought other Burton the cause of death evidence manipulation due to some kind of of the neck area. asphyxia Wayne Laster, Bell, that he had met a friend of testified John house, before that he had auditioned grandmother’s at his Williams before Williams. him, Joseph Bell had also auditioned and that brother, mother, and Joseph testified that lived with Laster also gyms basketball at various sisters, Joseph played and that two around Atlanta. brother,
John Laster’s older Lugene, testified that November he saw talking Williams to John grandmother’s at his house. that, also testified Lugene around first of March playing Joseph basketball with Bell elementary school, at an and that, when Joseph left began and walking down the street that ran court, beside the Joseph stop to, he saw and talk get then with, car a man driving an old white or sky blue station At wagon. trial identified Lugene this man Wayne as Williams. to Lu- According gene’s testimony, Joseph Bell’s brother came to his home that if night asking anyone seen Joseph. had Another witness connected Bell Joseph and Wayne Wil- Hindsman, liams. Kent who was twenty-four years old at the time trial, testified that he met Williams as a result of flyer picking up store, Williams had left at a record flyer which requested that aspiring get Wayne musicians touch with Williams. Because Hindsman was Williams, production, arranged interested music he called studio him. go to a with Hindsman testified that this visit occurred that, 8,1980, December when he back to the about went studio later, session, Joseph according one week he met Bell. After that Hindsman, him home in a drove Bell white station that, wagon. point Hindsman also testified when at one he broached *19 Williams, subject of missing they children with Williams told him home,” that, “ought keep to their damn asses at and on another occasion, read, him a “I passed note at the studio which President, I I mayor, could be could be a or could even a killer.” be The testimony showing state adduced two fiber associations 1) Agent between Bell and five blue Williams. Deadman testified that rayon rayon fibers found on were similar from Bell to fibers recovered wagon debris collected from the 1970 station and from debris 2) from violet appellant’s bedspread; pale collected that two acetate fibers found on Bell were with the present consistent fibers Williams, bedspread were exception they with the of the considerably paleness Deadman attributed this lighter color. water, opinion his on an exposure basing river two fibers state had taken fibers from wherein the experiment in water both the Chattahoochee placed them from bedspread fibers, their rivers; causing had the water bleached and South fade. color BARRETT:
X). WILLIAM Wil- 12,1981, fully body sixteen-year-old clothed May On Winthrop Road, one just Barrett was off within liam discovered Burton, performed feet of 20. Dr. Joseph hundred Interstate who been body, Barrett could have autopsy Barrett’s testified that dead as little as 3 or hours long hours, or as as 12 to 18 and that the corpse was about 5'5" in length and weighed about 130 lbs. Because Dr. Burton found ligature marks around the neck hemorrhages within the eyes, heart, neck and on the and lungs, he testified that cause of asphyxiation death was by ligature strangulation. Dr. Burton also testified that Barrett had two stab right wounds lower part abdomen, which had not any caused internal or external bleeding, and which had postmortem occurred definitely not the cause of death. He further testified that there was a one- inch laceration on scalp, Barrett’s which had caused some bleeding scalp, beneath the and which he felt had body occurred when the was tossed to the ground. Additionally, Dr. Burton was of opinion Barrett had not been killed body found, where his but that he had been killed dumped elsewhere and then along the side of Winthrop Road. Barrett,
James cousin, William’s testified that Barrett lived only mother, with his worked odd jobs, and rode his bicycle or a bus for transportation. James also appellant connected with William Barrett. James testified that one night, sometime in late 1980 early or 1981, William and two William house, friends came his and that asked to borrow ten dollars. James testified that gave William the money, and that William and his two friends left. At trial James identified one of William’s friends as Wayne Williams. The testimony of this witness was mother, substantiated who that, testified late William Barrett brought Wayne Williams, along with a few other boys, into her home. testimony state adduced of seven fiber and hair associations 1) Deadman testified appellant. Agent Barrett and the
between many green acetate and cotton fibers removed from Barrett violet 2) appellant’s bedspread; from the that five originated have could orig- have nylon fibers recovered from Barrett could yellow-green yellow seven carpet; bedroom inated from originated from Barrett could have from the rayon fibers removed bed; rayon that a blue fiber found under Williams’s blanket rayon same as from Barrett had the characteristics blue recovered removed from the station wagon, recovered from the debris fibers *20 home, and from the appellant’s cleaner found from the vacuum acrylic thirty gray bedspread; approximately appellant’s from the originated glove Barrett could have fibers recovered from compartment appellant’s 1970 station glove from the recovered Barrett could have three fibers removed from wagon; 7) that the wagon; the 1970 station carpet from the originated from Barrett could animal hairs recovered thirteen approximately dog. appellant’s have come from the Porter,
As with attempted state to William with link Barrett Wayne Williams car through blood stains found on the rear seat of appellant’s 1970 station Two wagon. blood stains found this seat originated determined to have person having from a a blood type A, Group enzyme type International Blood a blood PGM-1, a combination which only twenty-four exists in percent of the population, and a combination which two state forensic serologists testified was sample found a blood taken from William Because, already noted, Barrett. as has type been blood O, International Blood Group he could not have left these two stains. To better examine admissibility evidence, of the above we have prepared a comparative profile homicides, of each of the charged and uncharged. profiles These illustrate the similarities of deaths, victims and their the logical connection of all of the homicides and the perpetrator evidence of each. VICTIM: Jimmy Ray Payne.
PROFILE OF VICTIM:
Age: Sex: Male Race: Black
Height: 5'7"
Weight: 138 lbs.
Home Situation: Lower income. Victim from broken sister, and mother, with
home, living Recently from girl friend. released detention center. Unemployed.
Habits: li- No car or driver’s seen,
cense. When last victim was way on his to the Omni. CIRCUMSTANCES OF DEATH:
Date body found: 4/27/81 River, body Place found: Chattahoochee 1/4 mile 1-285 downstream from overpass. body: only
Condition of Clad shorts. Cause of undetermined Asphyxiation death:
means. MURDERED VICTIM: THAT WILLIAMS EVIDENCE with Williams’ environ consistent association Fiber ment: hairs from with hairs consistent
Presence of animal dog: Yes. Payne company of victim: Sighting of Williams *21 Payne disappeared On seen with 4/21/81. 4/22/81 78, approximately 1 mile Highway Williams on from River and near a parked Chattahoochee white wagon. station
Sighting of Williams at crime scene or victim’s funeral:
No. VICTIM: Nathaniel Cater. PROFILE OF VICTIM:
Age:
Sex: Male Race: Black
Height: 5T0"
Weight: 146 lbs.
Home Situation: Lived in downtown Atlanta hotel on
Luckie St. Habits: Worked out of pool labor occa-
sionally. Drank a lot. Had no car. Frequented downtown lounges, also Rialto Theatre.
CIRCUMSTANCES OF DEATH: body
Date found: 5/24/81 body Place found: River, yds. Chattahoochee
downstream overpass. from 1-285 Condition body: Nude.
Cause of death: Asphyxiation probably by choke-
hold. EVIDENCE THAT WILLIAMS MURDERED VICTIM:
Fiber association consistent with appellant’s environ-
ment: 5. Presence of animal hairs consistent with hairs from
appellant’s dog: Yes. Sighting of Williams in company of victim: Two sighted
witnesses the victim in the company of Williams. One saw him during the week before Cater disappeared. There was a station wagon containing a German Shepherd dog parked nearby. The other sighting, by the person last to see alive, Cater was of Williams coming out of the Rialto Theatre with the victim. The victim and appellant were holding hands.
Sighting of Williams at crime scene or victim’s funeral:
Members of a surveillance team stationed on Parkway Jackson Bridge over the Chattahoochee heard splash around 3:00 a.m. 5/22/81 saw a circle of waves form in river. A white Chevrolet station wagon driven Wayne Williams was observed up to start and cross the bridge and was subsequently stopped by police.
VICTIM: Alfred Evans. PROFILE OF VICTIM: :
Age Sex: Male Race: Black
Height: 5'4-l/2"
Weight: 86 lbs.
Home Situation: Lived East Lake Meadows Housing
Project. Habits: Had no car. Did jobs. odd Was
frequently out late. CIRCUMSTANCES OF DEATH: body Date found: 7/28/79 lift, body
Place Road, found: Niskey off Lake north
of Campbellton Rd. southwest Body dumped Atlanta. down sign struggle embankment. No at scene.
Condition of body: Clad in slacks. strangu- Asphyxiation, probably
Cause death: lation.
EVIDENCE THAT WILLIAMS MURDERED VICTIM:
Fiber association consistent with environ-
ment: 3. Presence of animal hairs consistent with hairs from Yes. dog: Sighting company Williams of victim: No.
Sighting of at crime victim’s scene or funeral:
No. Eric Middlebrooks. VICTIM: OF PROFILE VICTIM: Age: Male Sex: Black Race: Height: 4T0"
Weight: 88 lbs. Had lived Raised foster home.
Home Situation: present father since foster with with Older brother officer 1965. Dept. Atlanta Police Kept fairly errands late hours. Ran Habits: Transportation by neighbors.
bicycle. OF DEATH: CIRCUMSTANCES body Date found: 5/19/80 Off body Rd., than less Flat Shoals Place found: 1-20. mile from 1/2 Fully body: clothed. Condition Cause of death: head with blunt Blows to instrument. Two stab wounds. dumped Body been could have at site. VICTIM: THAT WILLIAMS MURDERED
EVIDENCE appellant’s environ- with consistent association Fiber 4. ment: from with hairs hairs consistent of animal
Presence *23 dog: Yes. company Sighting victim: No. in of of William Sighting funeral: or victim’s at crime scene of Williams
No. Stephens. VICTIM: Charles PROFILE OF VICTIM:
Age:
Sex: Male Race: Black
Height: 4'9"
Weight: 108 lbs.
Home Situation: Came from broken home. Lived
public housing project with mother. neighborhood Habits: Ran errands in to make money. Hung around in the streets frequently. Had no car. CIRCUMSTANCES OF DEATH: body disap- day
Date 10/10/80, found: after he
peared. body home, Place found: 5 miles from off Norman-
dary Point, Drive in East Ga. road, T-shirt, body: Laid next Condition of out No missing. belt and socks were sign struggle at scene. suffo- Asphyxiation: probable Cause of death: cation.
EVIDENCE THAT WILLIAMS MURDERED VICTIM:
Fiber association consistent with environ-
ment: 7. Presence of animal hairs consistent with hairs from
appellant’s dog: Yes. Sighting company victim: No. Sighting Williams at crime scene or victim’s funeral: No. Terry
VICTIM: Pue. PROFILE OF VICTIM:
Age:
Sex: Male Race: Black
Height: 5'5-l/2"
Weight: 100 lbs. public lived with his mother at a
Home Situation: Pue car. Had housing project. Had no school,” a home “challenge attended juveniles trouble. in West Hung Habits: out at the Omni and game End rooms.
CIRCUMSTANCES OF DEATH: body
Date of found: 1/23/81 body Sigman Place found: Near 1-20 on Rd. Rockdale County. body:
Condition of Body Fully appeared clothed.
“laid out.” Asphyxiation, possibly by Cause of death: man-
ual strangulation. THAT EVIDENCE WILLIAMS MURDERED VICTIM: *24 Fiber appellant’s association consistent with environ-
ment: 4. Presence of animal hairs consistent with hairs from
appellant’s dog: Yes. Sighting of in company A of victim: witness
saw Pue with Williams about a week before the witness body learned that his had been discovered. The green Williams was in a station witness testified that wagon. crime victim’s
Sighting of Williams at scene or funeral: at officers saw Williams the scene where Pue’s Two body equipment discovered. Williams had camera was Two wit- photos. crime scene and offered shoot funeral. Williams appellant nesses saw at victim’s wagon. was in a white station
VICTIM: Lubie Geter. PROFILE OF VICTIM:
Age: Sex: Male Race: Black
Height: 5'7"
Weight: 103 lbs. parents. Home Situation: Lived with money. Habits: Did odd to make jobs Frequented Omni. Last seen at mall in the Stewart-Lakewood a area Atlanta. OF DEATH:
CIRCUMSTANCES body Date found: 2/5/81 ft. Vandiver off Wooded area body Place found: Camp- runs off Road, which bellton Road. body: its back most Lying
Condition of with missing. Some of
clothing nearby. found clothing was Cause of death: Asphyxiation, probably strangled
with a chokehold. WILLIAMS MURDERED VICTIM: THAT
EVIDENCE with environ- Fiber association consistent ment: consistent with hairs from
Presence of animal hairs dog: Yes. company victim: Two Sighting of Williams day he Williams with Geter on witnesses saw a man was with One said Geter disappeared. originally got other testified Geter wearing glasses. The car as Williams. car with man he identified into top. This witness with black as white was identified been had fifteen-year-old who testified previous area the the same by Williams approached
779 into car with job. got and offered a He August Williams, they him This who fondled as drove around. escaped stopped got witness when Williams out something he needed from the trunk. saying at crime scene or victim’s funeral: Sighting of Williams that Williams was at juvenile witness testified the victim’s funeral.
VICTIM: Patrick Baltazar. OF VICTIM: PROFILE Age: Sex: Male Black Race: Height: 5'4-l/2"
Weight: 130 lbs. part From broken home. Lived time Situation:
Home father in area near Omni. with Kept jobs late hours. Did odd Habits: money.
make out at the Omni. Hung Frequently on the streets in the area Foundry between Street and the Omni. Had no vehicle. DEATH:
CIRCUMSTANCES OF body Date found: 2/13/81 Corporate Square, an office com- body Place found: plex located 3 blocks from 1-85. clothing body: Fully clothed but Condition of to have Appeared unbuttoned. at scene dumped been rolled down an embank- ment. due Probably asphyxiation
Cause of death:
strangulation. ligature VICTIM: MURDERED THAT WILLIAMS
EVIDENCE environ- appellant’s with consistent Fiber association ment: with hairs from hairs consistent of animal
Presence Yes. dog: No. company of victim: Sighting of funeral: victim’s crime scene or at Sighting of Williams No. inconsistent scalp hairs Two Additional associations: with consistent victim’s hair but
with hair. Larry
VICTIM: Rogers. PROFILE OF VICTIM:
Age:
Sex: Male Race: Black
Height: 5'2" Weight: 130 lbs.
Home Situation: Lived with foster parents. *26 Habits: Used bike transportation. Did jobs. Played
odd ball with young parks. children at various Rogers was slightly retarded. CIRCUMSTANCES OF DEATH: body
Date found: 4/9/81 body Place found: apartment Abandoned off
Simpson St. less than 1 mile from Hwy. Bankhead body: Condition of only Clad in shorts and tennis
shoes. Cause of death: Asphyxiation due to stran-
gulation, possibly by choke- hold.
EVIDENCE THAT WILLIAMS MURDERED VICTIM:
Fiber association consistent with appellant’s environ-
ment: 6 Presence of animal hairs consistent with hairs from
appellant’s dog: Yes. Sighting of Williams in company of victim: Two friends placed
of the victim him with Williams before his dis- appearance. One saw him day three times in one about days disappeared. three before Another friend saw him disappearance with Williams about the time green wagon. actually spoke station She victim slumped reply. who was over and did not at Sighting of Williams crime scene or victim’s funeral: The witness saw Rogers who with Williams on date he disappeared also saw Williams at the victim’s funeral.
VICTIM: John Porter.
PROFILE OF VICTIM:
Age: 28
Sex: Male Race: Black
Height: 5T0"
Weight: 123 lbs.
Home Situation: Lived alone in apartment. abandoned Habits: Recently released from Ga. Regional
Hospital. Unemployed. Had no vehicle. DEATH:
CIRCUMSTANCES OF body Date found: 4/12/81 approximately Ave. body Capitol Place found: Near 1-20, miles from mile from 1-85. body: Fully
Condition of clothed. No evidence of Body play
foul at the scene. may dumped. have been wounds to chest and Cause of death: Six stab abdomen. THAT
EVIDENCE WILLIAMS MURDERED VICTIM: Fiber association consistent with environ-
ment: Presence of animal hairs consistent with hairs from
appellant’s dog: Yes. *27 Sighting company of Williams in of victim: No.
Sighting of Williams at crime scene or victim’s funeral:
No. in appellant’s Additional associations: Blood stain to match wagon white Chevrolet station was found enzyme blood was B PGM-1. type Porter’s which with population. This combination is found in 7% type has O blood. Joseph VICTIM: Bell.
PROFILE OF VICTIM:
Age: 15
Sex: Male
Race: Black
Height: 5'4" approximately
Weight: 120 lbs. Home Situation: Victim lived with mother and 8 other
family members on in Lawton St. West End.
Habits: infrequently. Played Attended school at area schools Me-
basketball Adamsville. chanicsville and OF DEATH: CIRCUMSTANCES body
Date found: 4/19/81 body South River near the DeKalb and Place found:
county line.
Rockdale Body body: only Clad undershorts.
Condition of partly decomposed. Time of death in early set March 1981. Cause death: No drowning. evidence of Cause of asphyxiation
death set as due to type manipulation. some of neck EVIDENCE THAT WILLIAMS MURDERED VICTIM:
Fiber association consistent with environ-
ment: Presence of animal hairs consistent with hairs from
appellant’s dog: No. A friend company of victim: of Williams Sighting Bell with Bell when that he had been testified saw witness Another auditioned before Williams. wagon station skyblue white or get Bell into a Bell was seen alive the last time appellant with A third witness court. at the school basketball Bell was appellant when had a ride with gotten the car. funeral: or victim’s at crime scene
Sighting of Williams No. William Barrett.
VICTIM: PROFILE OF VICTIM:
Age:
Sex: Male Race: Black
Height: 5'5"
Weight: lbs. and was Home Situation: Barrett lived with his mother Dept, of Human probation He Resources Youth Division. *28 by his court services worker last seen prior appointment on 5/11/81. jobs. Worked odd Had no car. Habits: DEATH: OF CIRCUMSTANCES body found:
Date 5/12/81 off 1-20. Winthrop just Rd. body Off Place found: Body appeared to have been body: of Condition knife Five
dumped on road. pricks only body in the but two in victim’s shirt. Cloth- holes pants ing was unbuttoned knife In addition to loose. pricks abdomen, in the there post-mortem were two horizontal stab wounds. Asphyxia strangulation.
Cause of death: due to EVIDENCE THAT WILLIAMS MURDERED VICTIM:
Fiber association consistent with environ- ment: 6
Presence of animal hairs consistent with hairs from
appellant’s dog: Yes. Sighting company of Williams in of victim: Barrett’s bringing
cousin and aunt both testified to Barrett’s Williams to their home.
Sighting of Williams at crime scene or victim’s funeral:
No. Additional associations: Two blood stains Williams’ wagon
1970 station were consistent with Barrett’s type enzyme type PGM-1, blood A with a blood existing only population. combination 24% appeal On Williams contends that the evidence of the 10 other separate offenses crime, was inadmissible because each was a un- any Payne related to other and unrelated to the murders of upon argument Cater. This is based that the deaths were without distinguishing motive, characteristics, evidenced no and thus could plan, pattern, identity, scheme, mind, tend to show bent of or purposes for which the trial court admitted the evidence. already admissibility noted,
As has been in- test for dependent Georgia independent crimes is that the crimes must logically be similar or connected to the crime for which the accused 321) (1980). Johnson, on trial. State v. 246 Ga. comparative profile necessary logical illustrates the similarities and young connections. Each of the victims was a black male from a low metropolitan style placed income home in the Atlanta area whose life they commonality appearance him streets; alone had a by fibers; behavior. Each was connected to Williams animal hair and many parties company of the victims were seen third although continually Williams, maintained that he did not any Eight know and had not associated with ten of the victims. by asphyxiation; suffered death the other two were linked other characteristics. The actual number of homicides with these common *29 pattern. characteristics shows a by
Several witnesses testified to statements made Williams evidencing meeting profile his attitude toward those the of the victims. There was evidence that he had a negative attitude toward backgrounds. expressed black children from lower class He and anger shame when “street kids” and would make discussing derogatory comments acquaintance about his own race. He told an that he had compiled population by statistical data on the reduction of the black the young elimination of one black male. Another black male who saw approached by victim Geter with Williams related that he had been job got Williams about a into car and rode around town him. him with He stated that Williams fondled and that when stopped Williams the car get something to out of the trunk he ran away. in determining admissibility ultimate issue of evidence similarity
of other crimes is not mere but relevance to the issues in the trial of the inquiry proof case. The is whether of the extrinsic prove may crimes tends to charged. proved by crimes This not be showing prove commission of other crimes to the accused has a criminal nature. While unexplained one or two additional homicides which could be associated with Williams meet might not test, the relevancy the sheer number of victims with common characteristics, logically each connected with hairs and fibers, pattern tends to show a killings. The murders of Cater and Payne pattern, fit this they evidence tends to show were a part pattern. of that independent admissible,
For
crimes to be
it was also
necessary
proof
for the state to offer
that Williams was the
perpetrator
In
regard,
crimes.
this
we have held that
proof
standard of
of reasonable
applicable
proof
doubt is not
to the
crimes,
perpetrator
defendant was the
of the independent
only
proof
but
that he
perpetrator
or she was the
of the crimes
for which
Wallace
the accused is on trial.
homicides evidence similarities and connections to each other and Payne, to Cater it is patterns and that from the numbers and the possible a logical to find connection. Because the extrinsic crimes case, were relevant them the issues evidence of therefore admissible.
Appellant also in this error that the state argues enumeration of prejudicially injected “pattern evidence of in violation of the crimes” January pre-trial part trial court’s 1982 order. The of pertinent that, provides independent that order before evidence of crimes admitted, would be the court would hold a out of the hearing presence of the jury requirements to determine if the for the of admission independent Appellant crimes had been met. the first argues Zaki, violation of this order occurred when Dr. the medical examiner performed who autopsy Jimmy Payne, testified on redirect Payne’s examination that one of the reasons he as a classified death homicide was that several other bodies had in rivers been found testimony, appellant around the Atlanta area. After this for a moved mistrial, which the trial court denied. that Dr. Appellant contends error, testimony Zaki’s constituted and that the trial prejudicial court erred in denying disagree. his motion for mistrial. We grant
The decision whether to
a
for mistrial
lies within
motion
court, and, moreover,
the sound discretion of the trial
the exercise of
appeal
that discretion will not be disturbed on
unless the
of a
grant
preserve
mistrial
is essential
to
to a fair trial. Ladson v.
right
(12) (285
508)
State,
(1981);
State,
Assuming testimony was violation of the pre-trial Brown’s prejudiced by insinuating order and that he was appellant responsi- crimes, pattern ble for this of other we that such an find error is harm- less. Johnson (1976). First, Ga. appellant requested the trial court dire during voir to read a list of all jury the murdered panel panel they children to and to ask the if any or knew were related of them. one questioning While at least jury panel the trial court read the list and referred to the as children *31 the missing “murdered and children.” the Because attention of jurors was directed missing to the and murdered children at that trial, early stage Moreover, we find no error. Brown did not referred, and, state number of he pattern deaths to which as we determined, already independent have evidence of ten “pattern” or properly crimes was period days admitted over a of several at trial. 5). Appellant’s seventh error is upon enumeration of based his that in expert assertion the court erred state’s permitting a witness to probabilities concerning discuss mathematical the fiber evidence and prosecutor in permitting argue probabilities to mathematical to the jury.
Neither of
merit,
experts
these contentions
as
permitted
has
are
give
opinions,
to
their
upon
knowledge,
including
based
their
State,
(268
Stewart v.
computations.
mathematical
246 Ga.
906) (1980).
ar
closing
SE2d
are
latitude in
given
Counsel
wide
in
gument,
prohibited
suggesting
jury
are not
from
to the
State,
be drawn from the evidence. Wisdom v.
might
ferences which
650, 655 (217
244) (1975).
suggestions may
Such
include
upon
based
probabilities.
those
mathematical
6) . In
error,
his eighth and ninth
appellant
enumerations
presented
argues
evidence
is
his
support
insufficient
to
Virginia,
2781, 61
Jackson v.
U.
convictions.
S.
SC
LE2d
(1) (300
Strickland v.
(1979);
7). error, and, In in twenty-fifth his tenth and enumerations of part, thirty-second, his claims that he was a fair trial denied because him. exculpatory information was withheld from The record shows pre-trial requesting that Williams filed several motions court compel exculpatory the state to disclose a broad range 27,1981 August information. On he moved for the court to conduct an inspection preserve appellate camera of the state’s files and to review inspection. all items not disclosed to the defense after the This granted, subsequently motion was and the court issued orders In orders the marking completion of its review of the files. Payne, court directed photocopies pertaining of the files Cater, superior and Williams and filed with the clerk of the be sealed review, and, appellate listing twenty-six court for files it had reviewed Williams, Payne, Cater, stated addition to those of the court photocopies Brady twenty-nine from all files had information During been furnished to defense counsel. the trial the court added a Brady thirtieth file to the list of files it had reviewed and from which material had been furnished to counsel for the defendant. addition inspection, to the court’s camera the defendant also had the in- at certain pre-trial offer the state to look advantage of Cater, it is unclear concerning Payne although vestigatory files exactly encompassed offer or to what extent what material this opportunity. defense availed itself of this that, efforts to honor despite Williams now claims above trial, Brady due materials were process right his to a fair various evaluating him. purpose nevertheless withheld from For the First, claim, categories. we into five grouped allegations have his that, attempted prove although prosecution contends similar to those found fibers and hairs found on the victims were environment, Brady given in the files nothing there *32 attempted eliminate defense which indicates that the state to deceaseds’ bodies possibilities the the evidence found the or from may actually have derived from their environments Because the during recovery contamination the of the bodies. state’s testimony to concerning comparisons these was crucial run on case, contends, any Williams scientific tests which show sources, did samples possible obtained from these and which victims, would those found on the those fibers or hairs to be similar to Moreover, if there on the other hand exculpatory. be material and materials, that fact testing of these inadequate was collection defendant, since it would create a favorable to the would also be reliability expert testimony of about strong concerning doubt that, comparisons. being fiber and without argues hair Williams the state’s inves provided concerning access to all information either area, way to ascertain whether tigations he has no exists, and therefore it error foregoing situations him. withhold this information from
Second, points he out that one of the essential elements of attempt green carpet state’s case was its to show that his fiber, exclusively composed type bedroom was of a rare of fiber, asymmetrical nylon allegedly Wellman 181-b trilobal which many the victims. type also was the same of fiber discovered on says after his conviction he obtained the services of two White, experts perused carpet fiber named Barndt and who arrived at which were at odds with concerning conclusions its nature experts. Specifically, says those of the state’s he that affidavits sworn by they carpet Barndt and White show that found that also fibers, symmetrical contained and that this fact common trilobal it, suppressed was so obvious the state must have known it. but by refusing that the trial court erred argument, In a related he asserts to admit the affidavits of Barndt and White into evidence at the hearing of his motion for new trial.
Third, says prosecution he failed correct false trial testimony by Fourth, complains state’s witness. he of numerous Fifth, suppression miscellaneous instances alleged of evidence. preserve appellate criticizes the failure of the trial court to review inspected, the bulk of the files it and its to make a record of omission the material which it selected from all the files and turned over to trial counsel. review,
After careful we allegations conclude that none of these any appellant has merit. As to the fifth we first note that did category, object prior concerning aspects to his motion for new trial these the manner in which the inspection. court carried out the camera Second, although clearly appellant the record indicates that received during post-trial Brady and used proceedings trial and material court, elementary step selected his counsel did not take the Further, seeking part any regard to make it of the record. error in this because, below, appellant satisfy is harmless as noted has failed to materiality to show the favorable nature of the evidence burden any sought, forestalling thus need to call for the material reviewed (8) (304 See Welch v. the trial court.
(1983).
category
the fourth
are also
allegations
comprising
— many
unsupported by argument or citation of
nonmeritorious
are
State,
Rucker v.
authority, and must be deemed abandoned.
(4) (297
481) (1982). Moreover,
any citation to
many
SE2d
lack
case,
to
the record and
of this
and others make reference
transcript
part
and incidents which are not
of the record. “On
documents
appear
appeal,
only
this court can
consider and correct errors which
(1982).
State,
(2) (b) (295
306)
Dean v.
record.”
“[T]he
fair
exculpatory
material
information such that he was denied a
(5) (305
82) (1983). If the
Kilgore
State,
v.
trial.”
The of at September pre-trial hearing prior May and at trial show that to the bodies of several rivers, black young appeared police, males had local and that the speculating corpses that these had been thrown into the water from bridges, victims, and that might the same occur with other had stationed bridges stakeout teams at several over the Chattahoochee River. On the evening May a four-man surveillance team was Parkway stationed at the Bridge, Jackson which is a two-lane James bridge crossing the Chattahoochee from the northwest southeast, northwesterly with the connecting end with South Cobb Drive in County, southeasterly Cobb and the feeding end into the Parkway James Jackson County. Fulton Near the western bridge terminus of the is an entrance ramp from South Cobb Drive onto Interstate 285.
The Gilliland, stakeout team consisted FBI Agent Atlanta police Holden, officer recruits, and two Atlanta police Jacobs and Campbell. Gilliland, clothes, Holden and who were in plain dressed were stationed in concealed unmarked chase cars at each end bridge, Campbell with positioned Jacobs on foot on the west bank of the river and at the southeastern corner of the bridge, respectively. The location of the team permitted members ob- servation of the lights headlamps reflection of from the of cars approaching from the west before the cars themselves reached the addition, bridge. cars entering bridge from the west and travelling per ten miles hour or more Campbell could be heard to make a they passed distinctive noise as over a expansion joint metal bridge. on the operated members the team under orders to maintain surveillance bridge p.m. of the from the hours to of 8:00 6:00 a.m.
Early heard, which, that morning splash a loud was to according Campbell, body sounded like the sound of a human hitting water bridge. lights up point, below the No had been observed to that nor expansion joint the testimony had characteristic noise of the been heard. There light was that the vehicular traffic was at that hour of the day, period elapsed and that a of at least ten minutes between the bridge time the last car was seen to cross the and the sound of the splash. Shortly splash, lights appeared bridge after the a car’s on the directly splash occurred, above where the had and were seen to start moving slowly bridge. toward the Fulton end of the The car was unusually edge bridge, travelling close to the southern and was approximately per at three to four miles hour. It was to exit observed bridge stopping end, at the Fulton turn around without in a nearby parking proceed County lot, and back across to at Cobb about thirty-five forty per passed miles hour. No other autos over the bridge during this incident.
Gilliland and Holden followed the car and saw it enter Interstate ramp begin travelling fifty 285 from the South Cobb Drive fifty-five per They stopped expressway miles hour. the car on the during ensuing sixty ninety and, driver, minutes, who proved Wayne interrogated Williams, to be several different agents. Agent officers and His vehicle was also searched. Gilliland stopped Williams, testified at trial that after he and Holden Gilliland alright they asked Williams car, whether it was if looked they testimony, During that Williams him told could. his own trial *35 aspect testimony Williams stated that this of Gilliland’s was truthful. during following Moreover, question: cross-examination he was asked the you stopped May morning “Now, when were hours of you readily voluntarily you 22nd, there, talked to the officers did replied, not?”, to which he “I sure did.” appeal conceding stop Williams, On while that the initial was permissible investigatory Terry Ohio, aas brief detention under v. supra, scope per- contends that his detention exceeded the of a Terry stop missible was and became a full-blown arrest. This arrest illegal, by supported probable contends, he because it was not argues cause, statements, observations, and he that all and fruits of illegal (including authorizing that detention the search warrants automobile) June 3 and June 22 searches of his home and were suppressed. unauthorized and should have been The state counters by arguing appellant questioning that the initial detention and of supported by suspicion” required by Terry “articulable as v. supra, appellant Ohio, and that consented to his continued detention and to the search of his automobile.
i). ruling First, we address the correctness of the trial court’s appellant’s that consent to his continued and to the search detention given voluntarily. applicable general principles his vehicle was of 792 justify relies a Where state on consent
are well known. search, of that the consent proving it the burden warrantless “has Carolina, v. North was, fact, voluntarily Bumper freely given.” 797) (1968). (88 A valid 543, 1788, 20 LE2d consent 391 U. 548 SC S. a search warrant. probable cause or eliminates the need for either State, v. 306) Hall 77, 80 (295 (1982); State, Dean v. 239 Ga. SE2d 250 (238 (1977). 832 Ga. suppression 10 September
We examined the record of have issue, relating to this transcript the trial hearing portions and the of consent, considered in the are when convinced stop, 22 totality surrounding May given the circumstances factor own freely voluntarily. The critical is questioned and being he consented to testimony establishes erroneous, clearly the trial court’s having his car searched. Unless credibility suppression hearing rulings disputed facts and at a State, Dean v. appeal, supra; accepted by must be this court on in the Woodruff v. supra, finding and because the court’s evidence, supported by we instant on the consent issue case affirm.
ii). that, the legality further Appellant regardless contends any may and of consent have stop the initial Interstate 285 subsequently prolonged by police detention exceeded given, stop arrest which was scope Terry-type full-fledged of a and became cause, We by probable illegal. and was thus cannot supported agree. Ohio, Terry supra, progeny v. and its allows
The rationale suspicion of criminal possess officers who articulable investigating activity suspect period identify detain a for a limited order necessary, questioning. him if and conduct limited See suspect, frisk (244 (1978). Radowick v. App. Ga. arrest, and, to beyond Terry is an be Detention authorized constitutional, supported probable such an must be cause. arrest (5th 1982). Berry, Cir. Probable cause to United v. 670 F2d 583 States circumstances, where, objective facts and arrest exists based on has or is man of reasonable caution would believe that a crime been 160, 175-76 Brinegar States, U. S. being committed. United 1879) (1949). LE SC *36 of the was never appellant
Our review record shows that 22; however, formally by police May entirely it is not clear arrested on appellant before was “arrested” the the record us whether from by by Fourth Amendment and decisions such contemplated the sense But, Berry, point v. we need not belabor this supra. States as United facto occurred, a de even if the officers at hold that arrest because we probable 22 to May stop possessed cause detain of the the scene
793
presence
him
appellant
question
thoroughly concerning
his
Parkway
by
The
Bridge.
Jackson
facts and circumstances known
officers,
body
Jimmy Ray
the recent
of
including
dumping
area,
Payne
approach
appellant’s
in the
the silent and unseen
of
car to
bridge,
splash
by
and the loud
Campbell
heard
recruit
at the same
appeared
time as the car
stopped
bridge,
to have been
on the
warranted,
caution,
in a man of a reasonable
the belief that a crime
Cf. Bothwell v.
by
had been
appellant.
committed
iii). In
appellate
his
arguments, appellant
briefs and
contends
any
statements he
night May
improper
made on the
of
ly admitted
into evidence because
was never advised
his
questioners
Arizona,
right
of his
to remain silent
under Miranda
(86
694) (1966).
1602, 16
However,
investigation leading May 22; him questioned false information to the officers who and police appellant the details of surveillance of which was conducted 3, subsequent May stop. 22 The warrant was issued on June to day. appellant’s and a search residence and car was conducted that On 22 for a second warrant with an Redding applied June affidavit, except affidavit which was identical to the earlier appended search were paragraphs describing twelve new June 3 paragraphs. paragraphs to the initial 157 The additional stated by certain in that search were determined scientific fibers recovered “microscopically tests to be identical” to fibers found on the bodies of victims, requested that another search sixteen of the Task Force and be evidence the results of scientific gather allowed to corroborate issued, already performed. tests The warrant was and a search was 22. gathered appellant’s conducted June At trial evidence from house car, evidence, especially extensively support and fiber was used state’s case.
i) that, first, appeal . On Williams contends several of the by police recitals the affidavits were based on observations made or 22, given by appellant May expressway statements 1981 during affidavit, contends, stop appellant. portions These of the he are impermissibly by police activity, tainted be as illegal should excluded tree,” States, poisonous “fruit of the United U. S. Wong Sun v. 371 (83 (1963), supply SC 9 LE2d and cannot be used to probable cause for the later searches of residence and car. However, already appellant as we have concluded that consented to search, (a) May (i), supra, see subdivision and that his arrest, detention was supported probable cause to see subdivision (a) (ii), supra, that his “fruit poisonous argument” we hold tree is meritless.
ii) . Appellant
validity
also attacks the facial
of the affidavits on
grounds.
several
He first contends that the affidavits listed numerous
cords, blankets,
(including
carpets,
upholstery;
items
from
fibers
documents)
hairs; firearms; knives;
dog
photographs;
and various
police expected
upon
which
to find
a search of
automobile
apartment,
any
without providing
facts or circumstances
a man
warrant
of reasonable caution to believe that
the articles
actually
sought
located
home or car.
We note at the outset that
an application for a search
“[w]hen
police
has been made
to a
and detached
warrant
neutral
magistrate
and the
has issued the warrant
on a
magistrate,
based
cause,
finding
probable
reviewing
pay
a
court will
substantial
Devier v.
magistrate’s finding.”
deference
729) (1981).
(234
Murphy
Here, May 22 that night police on the of officers observed articles, suspicious including car a appellant’s contained various nylon rope, paper appeared which to contain men’s length bag of body 24 clothing, dog May and loose hairs. On the of Nathaniel Cater, in by asphyxiation, floating who was killed was found the appellant River had been Chattahoochee downstream from where stopped questioned. body An revealed examination of Cater’s presence of hairs. in the course of a dog allegedly It was discovered police by that investigation appellant concerning statements made presence Parkway at that were Bridge night Jackson facts, could, fabrications. Given these a man of caution we reasonable think, in infer that evidence of a crime would be discovered either Babb, automobile or residence. See State v. appellant’s App. 134 Ga. State, (214 (201 Driscoll v. (1975); App 302 SE2d 129 Ga. 702 11) (1973). Appellant challenges Redding’s ground also affidavits on the Redding’s was within information recited therein credibility personal knowledge and did not establish the of affiant, by including police various sources relied on fellow officers, analysts. FBI and crime lab This contention is agents, that, ap in an Georgia without merit. The rule is the context of warrant, plication veracity of information re for search reliability of those offic government ceived from officials and the be assumed. Devier v. may supra, at 638. “Observations ials in fellow in a common by engaged officers Government by vestigation plainly applied are a reliable basis for a warrant Ventresca, of their number.” United States v. 380 U. S. one 684) (1965). (85 SC 741, 13 LE2d 111
Finally, appellant
supporting
affidavits of
contends
fact and false
Redding
misrepresentations
contained
Officer
statements,
Franks v.
to the extent
warrant was void. See
667) (1978).
Delaware,
(98
In the
LE2d
“[WJhere showing that a false statement knowingly and intentionally, or with reckless disregard truth, for the included the affiant in the affidavit, warrant if allegedly necessary false statement cause, the finding probable the Fourth requires Amendment that a hearing request.” be held at the defendant’s Id. at 155-56. 20,1981,
On
judge
pre-trial
November
the trial
held a
hearing
claims,
misrepresentation
and denied the motion to
suppress, concluding
appellant
failed to shoulder his initial
burden of making
preliminary
a “substantial
showing” that a false
statement was made
Redding
only
his affidavit. The
evidence
(1)
by appellant
point
introduced
on this
concerned
a slight
discrepancy
testimony
between the
of recruit Jacobs at the pre-
liminary hearing
Redding’s description
in the affidavit of the
incident;
(2)
Jackson Parkway
that,
Bridge
the fact
the June
affidavit, Redding claimed that the
fibers found
the June 3 search
bedroom and those found on
body
Cater’s
“microscopically identical,” but
precise
that this
characterization of
the similarity between
any
those fibers could not be attributed to
the experts who had supplied information to Redding.
agree
We
with
the trial court that
allegations wholly
these
fail to raise an issue of
intentional or
Delaware,
reckless falsehood under
v.
supra.
Franks
See Nutter
423) (1982).
App.
We also
*39
note
that,
the court
hearing
ruled at the
even disregarding the
alleged misrepresentations,
Redding
affidavits were sufficient
to
probable
establish
any possible
cause. This cured
error. See Franks v.
State,
Delaware, supra
Waller v.
155-56;
(303
at
9). Williams contends that the trial court erred in quashing subpoenas upon served George Napper and B. L. Neikirk of the Atlanta Bureau of Police Services.
a) . subpoena to Neikirk sought production of the following information: notes, books, “statistical information in contained records, writings any documents pertaining to and all and/or unsolved, homicides both solved and either committed within the city Atlanta, County limits of Fulton or the surrounding counties which bodies were January found from present.” 1972 to'the This subpoena clearly requested overbroad. The spans information period of almost a pertains only decade and City to the of Atlanta County, and Fulton but also to an undefined “surrounding number of counties,” rendering it oppressive.” both “unreasonable See (b) (Code 38-801). OCGA 24-10-22 Ann. There was no error here. § § “ b) . The subpoena Napper requested production to ecords [r] relating any involving [N]egro case children between the ages of 6 years age, reported who have been missing or who have been 1,1981 January present. found dead from compiled OR a list from name, giving physical above records age, description, dates, parents’ names, suspects arrested, and evidence involved in APD any investigation of the above.” As the sought information did not bear upon appellant’s guilt or innocence of the offenses charged indictment, this enumeration is without merit.
c). As for enumerations sixteen, fourteen and the trial court did not err quashing the subpoenas served upon Busbee, Governor Attorney Bolton, General GBI Peters, Director Executive Counsel Tidwell, U. Acting S. Attorney Kirkley FBI Agent Charge Glover. The information sought pursuant to these subpoenas concerned supposed discussions which place took at the Governor’s — Mansion regarding the prior Williams case to his indictment all of which are present irrelevant case.
10). In his seventeenth error, enumeration of appellant argues that he was denied a fair trial sequestered because the jurors were exposed to a drawing, which placed someone had on the wall of their room, dining depicting the outline aof man’s face with the word guilty appearing above it.
However, appellant
right
waived his
to raise this issue on appeal.
First, when the jury’s exposure to the drawing was disclosed to
counsel,
defense
he made no motion for a
State,
mistrial. Martin v.
Ga. 699
(1978);
SE2d
Thomas v.
App.
(2) (279
335) (1981).
occurred,
Second,
day
after the incident
the trial court first described to defense counsel
precautions
had ordered to insure that no other such
place,
incidents would take
and then asked him if he wanted
say
“to
anything as relates to that.”
Defense counsel responded that he had nothing
Moreover,
further.
if
even
a motion for
made,
mistrial had been
its denial would not have
been an
discretion,
abuse of
as we find that
the incident was not so
prejudicial
prevent
as to
the defendant
from receiving a fair trial.
Messer
(6) (276
15) (1981).
asked request, and the attorney agreed to this affirmatively. The district of this jury to inform the immediately proceeded court trial presence. Appellant appellant’s out of counsel’s information improperly it jury, addressed the that, trial court when the argues “heavy” by agreeing not the played counsel implied that defense Moreover, weekend. visitors over the jurors to have allow unmarried also the trial court im- that occasion that on appellant argues importance the by emphasizing jury permissibly pressured murderer, they mass that, they acquitted if implying the trial and community. We the rest of their action to justify would have to arguments. disagree appellant’s with at all present right to be
First,
accused has
although the
(279
(3)
State,
v.
Gilreath
trial,
247 Ga.
her
stages of his or
(102
2258, 72 LE2d
SC
650) (1981),
For at all present to be right a fair trial or the deny the defendant proceedings. stages
799 12). error, his nineteenth enumeration Williams argues that he was denied a fair trial because the improperly trial court juvenile limited his cross-examination of a witness. cross, questions
On
defense counsel asked the witness three
for
impeachment
first,
purposes:
many
how
times he had been arrested
second,
stealing;
for
many
how
times
had been convicted of
third,
stealing; and
if
quite frequently.
he stole
objections
The state’s
questions
to each of these
by
sustained
the trial court.
appeal, appellant
On
argues
first
that the
improperly
trial court
limited his
cross-examination of this witness
ruling that he could
not use the witness’ juvenile
purposes
record for
impeachment.
Alaska,
(94
Davis v.
347) (1974).
Appellant that, also appears to be in this enumeration arguing correctly if ruled that he could not introduce the even the trial court record, him allowing question witness’ it erred juvenile any juvenile record to uncover bias or interest witness about Hines testimony. may have slanted the witness’ See 249 Ga. (1) (305 Owens v. (2) (290 911) (1982); 102) (1983). however, we find construction Again, trial The record shows that transcript to be erroneous. bias any concerning the witness’ propound questions counsel did not he, instead, relating to the interest, questions asked or but many times specifically, how witness’ character or trustworthiness: *42 if stealing for he had convicted and arrested the witness been State, Ga., 87; v. supra, at 3A See Favors quite frequently. stole 1970). Moreover, (Chadbourn Evidence, Rev. p. 750 Wigmore, § shown that bias could have been appeal although appellant urges he at the time serving a sentence the witness was by the fact that made known sentence was not testified, alleged of this the existence circumstances from p. listing 790 for a Wigmore, at trial. See § Thus, the trial the record shows that be inferred. which bias could cross-examination limit improperly did not court interest. concerning the witness’ bias or reasons, error is without this enumeration the above
For merit. testimony he Bobby Henry’s
13). In
to discredit
attempt
an
three
holding
Cater
hands
and Nathaniel
appellant
had observed
Henley
found,
called John
the defense
days
body
Cater’s
was
before
Henry, counsel
knew
establishing the witness
as a witness. After
The witness
always tell the truth?”
Bobby Henry
“Does
inquired,
say no.”
say yes;
I
I can’t
that...
can’t
replied, “I can’t even answer
prior
about a
question
to
witness
attempted
Defense counsel then
veracity.
Henry’s
regarding
he had made
inconsistent
statement
a bench
court called
objection
state’s
the trial
Following the
witness had
stated that the
At this time defense counsel
conference.
liar,”
wished
and that he
“Henry
him
was a bald-face
previously told
ruled that
The trial court
this statement.
impeach the witness with
his own witness.
appellant
impeach
could not
ruling
this
twenty-one, appellant argues
of error
enumeration
717) (1982),
State,
(286
citing Gibbons v.
error,
OCGA § § for questioning knowledge general a witness about his witness, and, corollary, as a reputation community of a second whether, reputation, based on that he would believe the witness clear, however, only general under oath. It evidence of A reputation may express private is admissible. witness not his opinion capacity of another’s for truthfulness or otherwise comment Gilmore, (80 Gordon v. reputation veracity. on his Ga. 347 SE Taylor (1904); (1916); App. SE Evidence, 5-7, Agnor, Georgia p. 60. § Appellant’s question, Henry always Bobby “Does tell truth,” was, therefore, improper, appellant sought and the answer however, question, was not admissible. The not to. objected appellant impeach While the trial court’s could his ruling that prior own witness with the inconsistent statement regarding witness’ Henry’s veracity principle was based on a which has since been substantially court, altered the correct result was reached. We find no error.
14). In twenty-second appellant enumeration of error contends that the trial erred state to make judge allowing the example, For prejudicial jury during arguments. statements to the claims wrong permit prosecutors imply that the court was *43 Hun, compare Williams was him Attila the dog a mad killer and to to Hitler, However, appellate Adolf Amin. counsel for the state Idi any respond object during arguments that Williams failed to on of the grounds he now enumerates as error. that, has been held attention is called to unless court’s
“[I]t
trial,
improper argument
ruling
upon
such
and a
invoked
it is too
in
point
late to raise the
for the first time
a motion for new trial.”
State,
345) (1946).
Morris v.
SE2d
“When an
made,
improper
argument
procedural,
whether
substantive
or
Scott
opposing
duty
interposing
objection.”
counsel has a
to act
an
698) (1979).
v.
(2) (253
Appellant
concedes
Ga. 233
SE2d
trial,
attorneys
objection during
argues
that his
made no
but he
that,
reasons,
for several
review his
this court should nevertheless
First,
Code Ann.
enumeration.
he claims that under former Ga.
§
(now
17-8-75), the
changes
81-1009
codified with editorial
as OCGA §
independent duty
interpose
prevent prejudicial
court has an
However, this contention
timely objection.
statements
even absent
State,
In circumstances addition, that, Williams contends under case, independent duty prevent prejudicial an judge this had Binder, counsel, was a lead Alvin statements because Georgia with Mississippi of the bar and was unfamiliar member However, nothing there is procedure. evidence and criminal rules of familiarity Mr. Binder’s or lack degree record to indicate the rules, are thus unable to consider this with these and we thereof Moreover, any critique allegation. pretermitting other represented that he was at trial a total argument, the record shows Georgia three of the bar. attorneys, including of at least five members of one of alleged Since he has not demonstrated how the unawareness of his attorneys operated to divest the local members foreign his law, contention has knowledge Georgia defense team of their why as this court arguments no merit. Williams advances other enumeration, they are not twenty-second review his but should of er- we therefore will not entertain claim persuasive, ror.
15). In appellant three related enumerations complains that the topic of lie detector presence jury. tests was referred to error, one twenty-fourth, of the enumerations of appellant argues that he was denied a fair prosecution, trial because the on redirect testimony examination of a witness whose part of the state’s proof inculpating Larry the death of asked the Rogers, if given witness, witness he had been a lie detector test. The Tilbert Baynham, responded affirmatively.
Appellant’s
already
trial
counsel had
elicited the same
testimony
Baynham
cross-examination,
and,
from
on
moreover
interposed
objection
attorney’s question
no
to the district
on re-
direct,
reasons,
Baynham’s
ap-
or to
answer
thereto. For these
pellant
right
ground
appeal. Fleming
has lost his
to raise this
(6) (252
609) (1979).
In a error, related enumeration twenty-three, number appellant argues that the trial court in denying erred a motion for mistrial after Assistant Attorney District Mallard asked witness Henry Robert whether he given test, had been a lie detector enumeration, that, another number twenty-nine, Williams contends although gave trial court curative instructions after Mallard posed question, above those instructions were insufficient they because were not accompanied by a rebuke to the district *44 attorney. transcript shows Henry that Robert testified that had
seen Williams and Nathaniel Cater holding hands outside the Rialto Thursday May 21, 1981, Theatre on night, days which was three body pulled before Cater’s was from During subsequent the river. Henry direct examination of the following colloquy occurred:
803 “ And, how is it you’re [MR. down today? here MALLARD]: Well, “A. me, detective you found subpoenaed know. He me to come. And he asked me I what knew about it. So I got my it off chest. I told him.
“Q. Until the detective you, you found had not contacted the detective office, himself or the D.A.’s have you? [sic] haven’t, No, “A. I [sic]
“Q. Was that Sidney Dorsey Detective you saw about it this week?
“A. Yes.
“Q. All right. Did Detective Dorsey you take out put you a lie detector?
“MR. BINDER: We object.
“THE COURT: Disregard that. Next I question. instruct jury to disregard that remark.
“MR. I BINDER: still want to move for a mistrial because he knows better than question. to ask that
“THE COURT: The motion for mistrial
is denied.”
We agree with appellant
question
Mallard’s
about a lie
detector
clearly
was
impermissible,
parties
as the
had
stipulated
that the results of the polygraph test
Henry
administered to
would be
admissible. Such a stipulation is a prerequisite for the admissibility
of such
Chambers,
State v.
(239
evidence.
324)
This court and our
Appeals
Court of
have held that a mistrial
not required on every occasion
jury
improperly
where a
has been
apprised that a lie
State,
test has been given. Porter v.
detector
237
(229
(3)
Ga. 580
State,
Roberts v.
(1976);
(2)
SE2d
administered Henry inappropriately brought to the jury’s Snell, (fact attention Mallard. Compare supra, at of lie detector divulged by answer). test was witness in unresponsive Moreover, *45 804 clearly Henry question, question the
although did not answer the extent, jurors could prejudiced to some because reasonable These Henry passed and such a test. inferred from it that took have have the inferences, strengthened the would jury, if drawn believed, in key if a Henry, testimony, strand whose credibility of Nevertheless, Williams. against the evidence web of circumstantial administered, it a test had been question suggested the that although Henry given, that a had been or that directly did either test not state addition, did though judge the trial not had it. Id. In even passed instructions. give prompt he did curative prosecutor, admonish the attorney; of district strongly of the action the disapprove We — which however, question this case a under the of circumstances test, prompt only took the implied passed that the witness — its say that the trial court abused instructions “we cannot curative or that the in motion for mistrial denying discretion defendant’s Ladson, supra, deprived right his a fair trial.” at defendant was of to State, State, Accord, supra; supra; Spraggins v. 478. Roberts v. Snell State, supra. v.
16). twenty-six, the asserts appellant In error enumeration of sever his to the grant error in the refusal the trial court to motion Ray Payne. In Jimmy arguing, Cater and so murders of Nathaniel (214 223, (1975), State, v. Ga. SE2d Dingler App. relies on certifying the after the Appeals which was decided Court of question to this court. (211 (1975),
In Dingler 233 Ga. Severance, ABA we the ABA adopted Standards on Joinder Justice, pp. of Criminal Relating Standards Administration (1974). standards, upon these we held that severance 281-293 Under mandatory “where the offenses have request defendant solely they are of or similar joined ground been on the that the same however, ABA on character.” We Standards Joinder quoted, also “ may joined charge, ‘Two or more offenses be in one with providing: offenses, count, whether separate each stated in a when the offense (b) or both: . . . are on the same felonies misdemeanors or based constituting parts together or on a of acts connected or conduct series ’ ” (Emphasis supplied.) a or single plan. scheme Under rules (b) above, in severance, under are severable joined offenses 751, 758 discretion of the trial court. Jackson v. 53) (1982). supports supra, held in Division that evidence We have “parts pattern” and the murders were carried out as of a finding evidence, crimes, along with were admissible the fiber that the similar so, not find being This we do appellant on each count. against proceed allowing its discretion in state to abused the trial court overruling trial on both counts or erred motion sever.
17).
error,
twenty-seventh
appellant
enumeration
appellant’s pre-
safeguard
contends that
the trial court failed “to
argument
His
sumption
impartial
jury—”
of innocence before an
(1) complaints:
breaks this enumeration into two distinct
certain
for cause and
striking
jurors
trial court erred
not
(2)
dire;
the trial court erred
impermissibly limiting voir
innocence.
giving
pre-trial charge
presumption
on the
panel
four
members. He
Appellant
specifically
only
refers to
*46
have
stricken
cause but were not.
complains that two should
been
could
agreed
But he
to
of these that “she
that she
concedes as
one
base her decision on the evidence and instructions
the Court.”
Brooks v.
in
Thus she falls within the rule stated
(death
(261
379) (1979)
remanded
penalty
vacated and case
Of the two one was stricken for cause asked, words, being you “In other think that the defendant has forth, evidence, you might change to and if he some he go gave burden your mind?”, The did not responding, “Right.” other answer to question, you gets defendant’s “Would wait until the defendant your the case?” present you fully up his case before made mind about Appellant interposed objection question. the state an because the trial involving jurors cites the two to show that instances these dire; is, allowed impermissibly court limited his voir had he been prospective pursue questions to such he could have shown however, is not jurors prejudiced argument, him. His against the latter supported by Upon objection the record. the state’s made, court held a bench conference. question being the trial Appellant’s attorney argument to the state’s respond did not I say, “Surely can question proof went to the burden of other than to The court sides to an issue?” juror ask the whether there’s two “In other responded affirmatively, juror: and he then asked the words, at, there’s simple, you what I was to be understand getting both “Yes, sir.” “And would hear always you two sides to an issue?” “Yes, find that sir.” We up your mind?” you sides before make to, objected albeit question appellant permitted to ask different words.2 707, 708-09 App. Ga. v. relies on Decker
Appellant trial court that the (229 520) (1976), his contention support matters as charge” on such giving “pre-evidentiary erred a a beyond guilt defendant’s prove burden on the state of innocence. presumption and the defendant’s “reasonable doubt” “salutary recent however, charge a is a Decker, merely holds that such charge be require that such Id. at 709. It does not development.” that the Appellant’s argument so. we likewise decline to do given, and deprived him of a fair charge such a give the trial court to failure of merit. trial is without error, twenty-eighth, a related enumeration
appellant prejudicial pre-trial publicity contends that excessive impartial and to an Where right jury. violated his to a fair trial a fair prejudicial publicity prevent exists to the extent it will trial, or a problem the remedies are a continuance until abates Maxwell, 333, 363 venue. S. SC change Sheppard 384 U. 600) (1966). appellant sought 16 LE2d The here neither. Rather dismissed, seeking charges filed a motion to have all which the trial properly court denied. “Reserve pre-trial file a motion entitled appellant did attorney explained pre-trial Change
Motion for of Venue.” His *47 at that time but change he was not of venue seeking conference that measure lest he determine precautionary rather filed the motion as a necessary. He never venue was during change voir dire that a of motion, however, immediately jurors the before pursued the no We find expressly reserved motion was withdrawn. were sworn the here. error
18). error, complains he In of appellant’s thirtieth enumeration survey poll of a allow him to file the results that the trial court did not of venue due to change in of his motions to dismiss and for support offered, un- survey the was While publicity. pre-trial prejudicial the results were appellant, the and to the state solicited, to both trial acceded to the pollster parties because known not released. not be this information that request court’s 2 given latitude voir dire. was in fact considerable We note that the defendant ask, you above, quoted “Would example, exchange he was allowed to after the For case, you hear you juror in sit and wait and if as a this would tell me that were selected in?” come We prosecution’s for the defendant’s evidence to evidence and wait impermissibly argument restricted. that voir dire was find no merit
As we said in Division supra, regarding pre-trial publicity, no motion for change pressed venue was in this regard. Appellant now says essence that he abandoned his motion because survey poll, proved case, which would have his was him. In denied State, relies on Wilson v. so arguing, (91 App. 93 Ga.
(1956), only eyewitness wherein the to the case in jail and the defense was denied access to the witness to interview him before trial. The Court Appeals held that the trial court’s refusal allow the access, motion, defendant upon proper constituted an abuse of discretion because it denied the defendant a fair trial and the benefit of counsel. The case before clearly us is distinguishable. Wilson, supra, the defendant was denied access to a material Here,
witness him. against appellant was able to conduct far ranging individual voir dire of all the veniremen regarding the effects of pre-trial publicity. single “The purpose for voir dire is the ascertainment of the impartiality of jurors, ability their to treat cause on the merits with objectivity and freedom from prior bias and Whitlock v. inclination.” (198 (1973). The appellant confronted each of the jury members of the personally. We find no error the overruling motion to public release the opinion survey.
19). In
thirty-second
error,
enumeration of
appellant argues
that
the trial court erred in
considering
four affidavits which he
sought to admit at the hearing
trial,
on his motion for new
all of which
he argues
clearly
were
sufficient
to warrant
of new
grant
trial on
the basis
newly
evidence,
discovered
argues
and two of which he
necessary
for the trial court to consider to be able to determine
whether a
Brady
violation of
Maryland,
1194, 10
U.
S. 83
SC
215) (1963)
LE2d
had occurred at
disagree.
trial. We
granted
To be
a new trial
newly
on the basis of
discovered
“
evidence,
(1)
the movant must
‘satisfy the court:
that the evidence
has
trial; (2)
come to his knowledge since the
owing
that it was not
(3)
the want
diligence
sooner;
of due
acquire
that he did not
it
it
that
so
(4)
material
it
probably produce
verdict;
would
a different
(5)
it is not
only;
cumulative
affidavit of
witness
himself
procured
for;
(6)
should be
or its absence
accounted
a new trial
granted
will not be
if
only
effect of the evidence will be
”
impeach
the credit of a witness.’ Timberlake v.
Williams also
to test
experts
affidavits of two
whom he hired after his conviction
carpet.
alleges
that their
samples
from
bedroom
clearly
affidavits,
supra,
findings, as contained in their
see Division
exculpatory
fiber information
demonstrate
the state withheld
in not
the defense. He
the trial court erred
from
concludes
because, first,
they
newly
considering these affidavits
constituted
grant
warrant
of a
discovered evidence which was sufficient
trial, and, second,
necessary for the trial
their consideration was
new
resolve the merit of
adequately
to be able to
court
Brady
on motion for new trial
that violations
argument
7, supra.
trial. See Division
Maryland,
supra, had occurred at
have
question
whether
the trial court should
Pretermitting
(11) (301
affidavits,
these
see Castell v.
Appellant argues further trial court erred Morton, considering expert the affidavit of Charles a defense who performed independent analysis an of the state’s fiber evidence before, of, during part argues trial. Williams affidavit, alleges substantially which he shows the state denied there, Morton access to the crime lab and kept to evidence newly sufficient to warrant of a trial grant new on the basis of However, discovered evidence. because Morton was own have, expert, appellant and because the could in the exercise of due diligence, trial, discovered this during information the course of the “newly discovered evidence” clearly satisfy does not the second State, v. Timberlake requirement grant for the of a new trial. at 491. reasons,
For the above this enumeration of error is without merit. error, . thirty-third In his argues enumeration of However,
that he
ap-
was denied effective assistance of counsel.
pellant’s trial
at the motion for
counsel were not heard on this issue
reason,
new trial hearing, and for this
we decline to address the merits
State,
(2) (297
Simpson
v.
of this enumeration
of error.
Judgment affirmed. All the Justices except who dissents. Decided December 198
Rehearing January denied 1984. Lynn H. Whatley, Chason, John Thomas for appellant. Slaton, Lewis R. Attorney, Drolet, District Joseph J. Assistant Attorney, Bowers, District General, Michael J. Attorney Mary Beth Westmoreland, General, Attorney Assistant appellee. Keenan,
Don C. Berg, William J. amicus curiae. Justice, dissenting. Smith, I respectfully I dissent. am convinced appellant did not trial, receive primarily a fair because of the admission into evidence prior charged. of ten crimes for which he was never The ten extrinsic highly prejudicial, any recognized exception offenses were did not fit general excluding clearly evidence, rule such and were never proven by the I state. would reverse and remand for a new trial. majority opinion
1. The affirms the trial court’s admission into killings charged, evidence of 10 ed on the “victims’ for which Williams was never bas-
commonality
appearance
behavior,”
alleged “negative
poor young
Williams’
blacks,
attitude” toward
majority’s
conclusion that “the sheer number of victims with
logically
common characteristics each
connected with Williams
pattern
killings.” disagree.
hairs and fibers tends to show a
I
*50
highly prejudicial
trial court’s admission of the
other crimes evidence
any
reading
prior
was erroneous under
decisions,
fair
of our
and the
majority’s approval of the other crimes
evidence
this case distorts
beyond recognition any exception
general
excluding
to the
rule
evidence of other crimes committed
the accused.
prosecution
particular
any
“On
crime,
a
for a
evidence which in
manner shows or tends to show that the accused has committed
wholly
independent,
separate
distinct,
another crime
from that
though
trial,
for which he is on
even
it be a
sort,
crime of the same
is
logical
inadmissible,
irrelevant and
unless there be shown some
proof
connection between the two from which it can be said that
of
(71
the one tends to
State,
establish the other.” Bacon v.
Purposes
for which other crimes evidence
(both
motive,
intent,
are
absence of mistake or accident
include
intent),
scheme,
Our cases
plan
identity.
or
Id. at 408.
aspects of extrinsic offenses to be admissible
clearly
state
that for evidence
(1)
that:
purposes the state must establish
for one or more of these
(2)
offense, and
there
perpetrator
of the extrinsic
defendant was
extrinsic offense
similarity
a
or connection between the
is
sufficient
prove
former tends to
proof
and the offense
such that
charged,
State,
State,
v.
291, 296
supra; Kilgore
the latter. Walraven v.
251 Ga.
State,
(235
(305
Hamilton v.
(1983);
239 Ga.
SE2d
SE2d
“
(3)
515) (1977).
Moreover,
Georgia
has
been the rule
long
[i]t
unless the
independent
crime is never admissible
evidence of an
relevancy
the issues on
outweighed by
it creates is
its
prejudice
(1980).
State,
(271
v.
469, 470
See
Robinson
trial.”
246 Ga.
State,
Carroll
(
(a) case, In this only arguable purposes for introducing evidence uncharged of the ten offenses were to show Williams’ identity as killer by proving “plan or scheme” and “modus operandi.”
To be admissible “plan under the or exception, scheme” extrinsic offense and the charged crime must be connected they sense that have “such a concurrence of common features that the various naturally acts are explained to be as by general caused a plan of they which are the individual manifestations.” United States Goodwin, (5th 1141, 1153 492 F2d Cir. (quoting Wigmore). In words, other the crimes must mutally dependent, be so that one naturally flows from explained by and can be another. See Natson v. 618, (1978); United States v. O’Connor, (2d 1978). 580 F2d Cir. In this context evidence of other crimes must be offered to show the identity accused’s as the perpetrator of the charged crimes showing that he acted accordance with larger goal, merely that he acted with a propensity to commit crimes generally. Graham, See & Wright Federal (murder Practice and pp. Procedure 500-501 of three § fellow by defendant, heirs to estate method, each a different admissible “plan to show or scheme” in trial for murder of third co-heir).
In this case obviously there was no such connection between the two charged crimes and the ten extrinsic offenses sufficient justify their admission prove a larger plan goal or of which the murders of Payne and Cater part. were a Even assuming that Williams was proven to be the perpetrator (an of the ten extrinsic offenses as- sumption I which make, 816-17, amunwillling pp. infra), see ten show, best, extrinsic offenses at “plan” with no definable goal identity. McCormick, supra, here, See application at 448. “Bent of mind” has no *52 (and since intent identity was not a contested issue at trial. I conclude that particularly, operandi) only modus purpose was the relevant of introduction this Identity may evidence. plan be inferred showing from other crimes evidence or scheme, motive, operandi. pp. 4-6, infra; McCormick, supra, 190, or modus pp. See § 448-451; Wright Graham, 5246, & Federal pp. Practice and Procedure 511-512 § (1978); Myers, 1036, (5th 1977). United v. States 550 F2d 1045 Cir. except randomly mostly a desire to kill young, poor black males. “plan,” such a all the crimes independent separate, mutally dependent, they 2-year occurred at different times over a period, crime single necessary bring any goal no was to fruition. Payne The deaths logically explained and Cater are not as a result any Williams, larger “plan” only and the inference that can be drawn in regard this from the admission of the other crimes evidence one; namely that, is the forbidden propensity because Williams had a kill poor males, young, consistently black he acted with this State, supra, and Cater. See Walraven v. propensity Payne in killing 407; Graham, Wright at & at or is supra, “plan 500. Because scheme” here, simply inapplicable I further shall not discuss whether point admissibility state’s evidence on three-part met the test for of other crimes evidence.
(b) only state remaining legitimate purpose for which the could have offered the other crimes evidence was to show that employed singularly unique operandi2 modus when committing all twelve murders. Examination of the record indicates (and that proving operandi identity) Williams’ modus hence his in fact purpose introducing state’s main the other crimes issue, then, evidence at carefully analyzed trial. This should be connection, light similarity state’s burden of or showing logical perpetration, legal relevance.
(1) similarity, As to it a longstanding premise of evidence law prove order to identity operandi accused’s use of modus evidence, the extrinsic charged offense and the crime must bear an Sweeny extremely high degree similarity. See 260) (1979) (extrinsic 765, App. charged offense and crime “sufficiently analogous” bizarre and to allow admission of evidence); Beechum, 898, other crimes United States v. 582 F2d (5th 1978); 1045; n. 15 & Myers, supra, Cir. United States v. at Wright Graham, supra, p. 513. McCormick states that the other § nearly crimes must them as be “so identical method as to earmark the handiwork of than the the accused. Here much more is demanded class, repeated mere such as commission of crimes of the same repeated burglaries or thefts. The device used must be so unusual and Evidence, distinctive as to be like a McCormick on signature.” § p. 449. Payne
Examining majority opinion’s factual review of the (1971) Dictionary operandi” Webster’s Third New International defines “modus pattern procedure thought “a of an as distinct or method of to be characteristic habitually individual criminal and followed him . . .” Id. at 1453. *53 offenses, indeed one is uncharged ten and Cater and the murders Each of twelve crimes. among the by struck similarities several built, often male, who was slightly black victims awas low-income Cater, the ten and five of Payne, Atlanta. seen alone in the streets of prior to their sometime with Williams other were seen crimes victims Middlebrooks, were victims, and Porter death. All two of the but asphyxiation. by killed form of some however, similarities, my opinion, in these important as
Just as and offenses charged two between the are dissimilarities substantial 28, respectively, Cater, 21 and age Payne crimes. and the ten extrinsic ranged uncharged crimes of the adults; the victims ages were years. With only 15.7 years averaged and years from 11 to 28 victims Porter, offense the extrinsic 28-year-old John exception of dissimilarity between striking essentially Another children. hand, the ten extrinsic on the one Payne killings, and Cater Cater Payne and other, the bodies of offenses, is that while on the River near the into the Chattahoochee apparently thrown were both bodies, offense victims’ only the ten extrinsic overpass, 1-285 one of in body discovered Bell, in river. Bell’s was found a Joseph that of was Payne and County, miles from where River near Rockdale the South land. deposited on nine were remaining The Cater were found. killing Cater tending to show that the evidence Although there was evidence motivated, absolutely no medical sexually there was was addition, it is critical to any of the victims. showing sexual abuse to all linking Williams allegedly evidence the state’s fiber note of whether on the issue victims, slightly probative while twelve 816-17, crimes, pp. see the ten other actually perpetrated issue, simple for the operandi infra, relevance to modus has no as no information provides in this case the fiber evidence reason that disposing of his victims. technique killing or murderer’s to the exact determine the they could not experts testified that state’s own fibers from Williams transfer of alleged of the mechanism trace evidence Thus, type of this implication the sole victims. Williams, his with was contact possibly the victims that each of this inference Although house, before his death. or his car sometime extrinsic killer of the ten identity of the may probative be since it would operandi, modus victims, unique it does not establish kill, of his dispose apprehend, the murderer possible be in each fibers to them ways, yet transfer in dissimilar victims twelve 1977). (5th 1036, 1045 Cir. F2d Myers, United States See case. in the has relevance evidence no absence of fiber presence or Thus the Finally, operandi. modus issue of to the narrow us before case the funerals of at sighted had been Wayne Williams evidence no has interesting sidelight, while an Rogers, Pue, Geter here, by Payne relevance since this is not a feature shared either the or Cater cases. Comparing the relative similarities and differences the ten — offenses,
extrinsic it only Joseph is evident to me that one Bell — killing nearly is “so charged identical method” to the crimes as possibly be operandi. admissible as evidence of Williams’ modus Cater, Payne Like Bell shortly was seen with Williams before his disappearance. He was asphyxiation, relatively killed rare form Although Payne of homicide. dissimilar to and Cater in the sense that only years killed, was, he was them, old when like a black lifestyle body male with a “street kid” dumped whose a river *54 the killer. These circumstances killing substantially make the Bell unique, yet homicides, similar enough Payne to the and Cater so as to probative be of operandi. modus Pue, Geter, crimes, hand,
The Rogers and Barrett on the other are questionable of relevance and should have been excluded judge. many trial While sharing charged characteristics (particularly asphyxiation), offenses all four of these victims were land, dumped by my the killer on not in In water. view this fact murders, distinguishes Payne them from the and making Cater them less relevant operandi on the modus issue. victims,
A group Evans, third of consisting Stephens, of Baltazar, operandi are even less relevant to the issue than of modus Pue, Geter, Rogers and Barrett crimes. each was a Although young by asphyxiation, black male who was killed substantial Payne dissimilarities exist between these and the cases and Cater murders. The bodies of Stephens Evans and were discovered clothed, partially fully and Baltazar was found clothed. Each was land, deposited addition, Evans, Stephens, not water. neither nor Baltazar was ever Wayne Weighing seen with Williams. these factors, considering impact while of such highly prejudicial testimony, Evans, I Stephens, conclude that evidence of the killings kept Baltazar should have been jury. from the offenses, As to Middlebrooks and Porter extrinsic it is clear neither requisite degree similarity charged that bore the of land, crimes. fully Both Middlebrooks and Porter were found on clothed, but, significantly, more neither was ever seen with Williams and neither by asphyxiation. Accordingly, was killed neither is even slightly probative operandi, of modus and their admission into evidence was error.
Therefore, I ground would reverse the conviction on the that of the ten sufficiently nine extrinsic offenses were not similar or connected to the two offenses and were thus logically charged operandi. ground to show modus Although inadmissible reversal, I purposes clarity sufficient for of will also address the for relevancy other crimes prongs two the test for of remaining of — of the extrinsic perpetrator whether Williams was the evidence crimes offenses, value of the other probative and whether impact. outweighed prejudicial evidence its (2) perpetrated tending The evidence to show Williams only ten and can be purely extrinsic offenses was circumstantial five of sightings characterized as weak. from the the ten Apart deaths, prior only victims their extrinsic offense with Williams any of the ten crimes consisted of linking evidence Williams to other evidence, dog two stains and the hair and fiber which blood state’s (see 2, reliability probative questionable worth Division infra). opinion showing majority admits the evidence stronger perpetrated the extrinsic crimes “was some there was some others,” cases than but that “in maintains each case evidence connecting (Emphasis Williams with the victim.” sup- I showing that mere evidence” that the plied.) submit “some sought against be used him accused committed other crimes (at decision) today’s has never been sufficient least until admission of evidence of extrinsic offenses. squarely
While this court
never
the issue of the
has
addressed
evidence,3
proper
proof
I
standard of
for “other crimes”
would
require introduction
evidence
convincing”
“clear
McCormick, supra,
accused committed the extrinsic offenses. See
§
532; Sweeny
452;
Graham,
&
p.
Wright
supra,
p.
§
*55
(“clear
supra,
proof”).
to be
view in
appears
predominant
This
(Colo.
Botham,
1981);
other
See
v.
P2d 589
jurisdictions.
State
629
(D.
States,
Page
1981); Chapman
C.
v.
App.
v. United
(3) prong The final of the three-part admissibility standard for of other crimes balancing proferred evidence is the evidence’s probative against potential value its for prejudice to the defendant. majority issue, opinion completely sidesteps this which is considered crucial most courts and commentators. See Robinson State, 469, (1980); State, Tuzman v. supra; Beechum, Carroll v. supra; supra, United States v. 913-14; States, (D. F2d at 1968); McHale v. United 398 F2d 757 C. Cir. Wright Graham, & supra, 5249, 533-38, 5250, 541-551; pp. pp. § § McCormick, supra, pp. 452-454; Note, Other Crimes Evi- § Matters, dence at Balancing Trial: Of and Other L. 70 Yale J. 763 (1961). supra, Appeals Carroll v. the Court of stated: “The the
prejudicial concerning independent effect of evidence crimes is inadmissibility paramount general consideration behind the rule of independently of such evidence... Even relevant to an issue [if case], the evidence will not be admissible unless its relevance issue If outweighs prejudicial impact. its the evidence tends to [Cit.] general propensity prove show a criminal more than it tends to an case, jury.” issue it should not be introduced to the Id. at 797. problem McCormick’s advice bears here: is not repeating “[T]he side, merely one of but one of on the one pigeonholing, balancing, actual need for the other-crimes evidence in the of the issues and light the other prosecution, convincingness evidence available to the the evidence that the other crimes were committed and that actor, strength accused was the and the or weakness of the issue, other, other-crimes evidence in supporting on degree jury probably to which the will be roused the evidence to McCormick, overmastering hostility.” supra, p. 453. In this § regard, the trial court weigh must all these elements and exercise its in deciding proferred discretion whether to admit or exclude the however, other crimes evidence. “It recognized, should be that this is depart principle not discretion to from the that evidence of other crimes, having relevancy no substantial except ground the infer- ence that accused is a bad man probably and hence committed [the] crime, leeway must be excluded. The of discretion lies rather in direction, opposite empowering judge to exclude the evidence, independent other-crimes even when it has substantial relevancy, if in his judgment probative purpose its value for this outweighed by the that it will in the as to danger passion jury stir such sweep beyond them guilt a rational consideration of or innocence implies only leeway of the crime trial. Discretion but *57 responsibility.” Id. at 453-54.
The record does not show that
judge responsibly
the trial
exercised his
discretion
this case
by
either
assessing
relative
probative strength
offenses,
of the ten
by
extrinsic
determining
or
whether
the other crimes evidence
reasonably
was
necessary to the
state’s case. See
Kirk,
1057,
(5th
United States v.
528 F2d
Cir.
1976). Instead he allowed into evidence all ten extrinsic
sought
crimes
to be
state,
introduced
regardless of the factual dissimilarities
crimes,
between the ten
sketchy
the state’s
proof that the defendant
crime,
committed each
extremely
and the
prejudicial
impact of
admitting evidence of the extrinsic
majority opinion
offenses. The
concludes that
the “sheer
crimes,
number” of other
all with some
degree of similarity to the Payne and Cater killings, makes them
admissible as evidence of a “pattern” of murders. But the “sheer
number” of other crimes
introduced
this case and their prejudicial
weight
very
are the
reasons the evidence should have been excluded.
Each additional
crime had an incremental prejudicial effect and
contributed to confusion of the issues and undue consumption of trial
time,
very
with
little countervailing probative worth. See United
Gaus,
495,
(7th
States v.
471 F2d
Cir.
(proof of eleven
similar offenses held inadmissible because
necessary
case); People
state’s
Schlatter,
(1977)
(c) A wholly independent
ground on which the other crimes
evidence should have been excluded is that
introduction,
its
in the
fourth full
trial,
week of
unfairly
Williams’
surprised appellant and
deprived him
opportunity
of an
adequately prepare
his defense as
to the ten extrinsic offenses. The record shows that Williams
contemplated that evidence of some 27 extrinsic offenses might be
used
him
against
at trial and that he asked for and
Brady
received
materials on each of the 27 other
prior
crimes
to trial.
began
The trial
28,
December
22, 1982,
1982. It was not
January
midway
until
through
trial,
that Williams was informed which of the 27
him.
against
introduced into evidence
extrinsic offenses would be
tests
conducting
scientific
During
period,
this entire
the state
Thus,
of his
from the time
which were used
Williams at trial.
against
all
January 22,
Williams was for
arrest on June
1981 until
charges.
practical
against
himself
29 murder
purposes defending
orderly, fair
procedure
any concept
Such
of an
flies
the face
put
charges
process
trial
in which a defendant
on notice
a defense. This
against
adequately prepare
him and allowed time to
should,
minimum,
notice
give pre-trial
court
the state to
require
at a
against
of its
other crimes evidence
intention
to introduce
the need for such a
recognized
defendant. Other state courts have
*58
(Conn.
239
pre-trial
requirement.
Acquin,
notice
See State v.
381 A2d
(La. 1983);
Just,
1977);
Germain,
v.
Super.
State v.
433 S2d 110
State
(Okla.
(Mont. 1979);
State,
App.
P2d 771
Cr.
The rule a excluding other crimes evidence is not mere technical evidence, rule of violation of which can dismissed be incantation Rather, phrases “pattern” or “harmless error.” the rule implicates rights process basic constitutional to due and a fun- States, 386, damentally Lovely fair trial. See v. United F2d 169 (4th 1948); Bray, 389 Cir. and Uncharged Evidence of Prior Offenses Restrictions, L. the Growth of Constitutional 28 U. Miami Rev. 489 (1974). States, Supreme As the v. 338 Brinegar Court stated United (69 160, 1879) (1949): U. S. SC LE “Guilt in a criminal proved beyond case must be doubt and evidence reasonable tradition, long experience confined to which the common-law Constitution, crystallized to some extent in the into embodied has rules of evidence consistent with that standard. These rules are historically grounded rights system, developed safeguard of our to convictions, unjust resulting dubious and with forfeitures men from here. life, liberty property.” safeguards and These were denied of 2. I join majority cannot Division 1 of the opinion, which purports to deal with the issue of reliability of the scientific the fiber novelty evidence Despite introduced at trial. the of this issue and the case, central type played role of evidence the state’s a majority of today the court of approves the admission of this evidence almost discussion, apparently without holds that fiber evidence has y.5 reached stage scientifically of verifiable not agree. do At certaint trial, experts concerning recovery various state testified their analysis of certain fibers discovered on bodies of twelve victims Williams home and car. Based on analyses, their they opined that of some the fibers found on the victims displayed characteristics which consistent with the characteristics environment, fibers from the Williams and further inferred fibers associated with the victims could have been transferred from experts Williams home car. they described criteria used significance assess the of the matches resulting from fiber comparisons and, criteria, applying these concluded it “virtually impossible” for the fibers from bodies obtained eleven of the twelve originated anywhere victims6 to have other than record, My however, review environment. lay indicates the state failed to a foundation sufficient establish that experts its used draw methodologies their inferences significance scientifically are valid. For that I reason would hold that the trial court erred when it allowed the introduction of the fiber evidence.
In Harper (1982), we *59 stated that “it is proper judge the trial to decide whether the procedure technique question or has stage reached scientific of . certainty, upon verifiable . . or ‘rests the laws of nature.’ The trial may make presented court this determination from evidence to it at by parties; trial the regard expert testimony this of may be value. Or the court may exhibits, trial its base determination on treatises or the rationale of cases in other jurisdictions. significant The [Cits.] point is that the trial court makes this determination on based the evidence available to him rather than by simply calculating the object The record indicates that defense counsel failed to at to the trial state’s grounds unreliability. fact, fiber on Despite evidence the of scientific the majority opinion appears reliability to address the merits of the issue. Therefore I compelled my feel to state views on this issue. experts significance declined to attribute this level of to the fibers found on Joseph Bell, apparently compared favorably because so few were found which with the Williams fibers. been procedure has community. Once a consensus in the scientific courts, may judge a trial in a number of recognized substantial evidence, has procedure that the notice, receiving judicially without upon rests the certainty, or that it verifiable been established with laws nature.” of any decisions of other appear this case it does the during trial attention brought judge’s
jurisdictions finding that the specific ever made a judge trial or that the by comparisons used techniques significance the of fiber assessing of stage “scientific of verifiable experts have reached a the state’s has appeal On the state certainty,” Harper supra at 525. comparisons are fiber support cited cases to its contention some evidence, point. Although are not on competent but these cases theories present techniques support proposition of them the sufficiently permit verifiable to recovery comparison of fiber are may originated certain fiber have drawing opinion the of an that a source, problem addresses particular from a none those beyond to venture verifiability experts of the methods used high degree there is a significance assessments of and state that certainty particular in fact come from a particular that a fiber did Furthermore, specifically my source. research reveals no cases which trial possible it was not for the problem. address this For this reason (or court) certainty of judicially court for this notice the verifiable of fiber matches procedures significance used to estimate Instead, expert by experts competency testified to at trial. all, by if proven, must be at significance estimates of this case evidence received at trial. evidence case key
The record shows that the to the state’s fiber uniqueness types of two expert testimony concerning alleged was analyzed by experts. the state’s These carpet fibers recovered and (1) experts green as “unique” fibers were identified the state’s (2) bedroom, rayon nylon green-black carpet was carpet wagon floorboard of the 1970 Chevrolet station 22, 1981, Parkway bridge the Jackson driving May night incident. testimony there was to establish carpet,
As to the bedroom Boston, by a composed produced which were it was of fibers Wellman, Massachusetts, type and that this of fiber company named West Point carpet sold to a Dalton manufacturer named manufactur- many Georgia carpet and to as as six other Pepperell, *60 question. employee A Wellman testified during period ers (trilobal, fiber, 181-b, shape known as had an unusual designed lobes and one short which was long lqbe), with two equilateral shape. DuPont trilobal infringing upon patented a avoid This employee also identified an exhibit which he said was a sum- mary of Wellman’s sales of the 181-b during early the late 1960’s to 1970’s.
A West Point Pepperell employee named Baggett testified that most of West Point’s of manufacturing carpets using the 181-b had place taken but that because company would have continued to any inventory use remaining of that fiber until it was exhausted, production with that fiber would have continued for some undetermined time subsequent and sales carpets of fab- ricated with the fiber could have occurred as late as 1973. The West Point employee said company that his had manufactured several carpet lines with the 181-b but experienced that he had difficulty considerable in ascertaining sales figures for those lines because records of sales usually were years. discarded after seven However, although total sales using for all lines the 181-b could not be established, he lines, had located the records for several including two known as Luxaire and Dreamer.
Baggett said produced colors, that Luxaire was in several including using dye Olive, one formulation named English and that Dreamer was dye. also colored with pieces He identified two of carpet samples as company’s from the dyed records of Luxaire hue, English Olive and also a copy company’s identified of his sales records for Luxaire and English years Dreamer Olive and 1972. also Baggett gave opinion whether another exhibit piece identified as a green carpet from the Williams bedroom was similar to the samples of Luxaire English Olive from his company’s records. Although he admitted he qualified was not perform microscopic analysis fibers, single of he testified that based upon his inspection visual aggregate physical characteristics such as height pile, weight carpet, and type carpets backing, appeared to be similar. Deadman,
Harold microanalyst, an FBI piece identified another of carpet as a FBI sample the had obtained from West Point Pepperell. Deadman in- Pepperell testified that West Point had formed the FBI that carpet sample piece was a of the Luxaire English compared Olive. He gross physical characteristics of this piece exhibit with another carpet of the Williams bedroom concluded there were no in their significant differences they construction and probably manufactured the same Then, company. building on the Luxaire and Dreamer sales records of West Point Pepperell, orally information him supplied Baggett, housing Commission, provided by statistics the Atlanta Regional (chief wholly as well as number of speculative assumptions of which was that carpet was in fact a West Point Luxaire or *61 824 attempted carpet),7 English to use the
Dreamer Olive Deadman perform compound probabilities a series of calculations to type calculus of carpet rarity in the Atlanta of of the to establish metropolitan finally supra, con- § He McCormick, 204. area. See randomly selecting in chance of a one that there was cluded carpet containing finding a room Atlanta area and home in the carpet. bedroom to the Williams similar carpet, green-black Regarding both 1970 Chevrolet the they in- had information and Peterson testified that Deadman only dicating million two in area 620 out of over the Atlanta explained type carpet. had that this data Deadman had that of cars supplied General Motors. been attorney jury During arguments district an assistant summary testimony foregoing embellished his and summarized the probative attempt quantify the fiber the force of with his own figures Accordingly, for the 181-b off the he rounded evidence. bedroom carpet mul- carpet green-black and the floorboard and tiplied together there in “that order to calculate chances them carpet as the same kind of in Atlanta that has the is another house people have the who live in that house house and that the arriving wagon type .,” . . at a Williamses do station as the same probability figure forty Adjusting this to account of one in million. prosecutor argued assumption own, that the an additional of his fifty appropriate figure actually in hundred million. one one testimony rarity establishing value, at face Taken underpinning types might for the seem to be a sufficient two fiber ultimate conclusion of the types experts that the fibers of those found probably the Williams home or transferred from on the bodies testimony reveals, however, suffers that the car. Closer examination evidentiary defects, is in fact and constitutional from fatal admissibility scientific of worthless as evidence on the issue of opinions expert’s significance. of respect proof resulted from
Much of the state’s failure of
testimony
hearsay
experts’
incorporating
into their
its
insistence on
expert
opinions. Although
setting
for their
an
out the factual bases
opinion
may
or on facts
his
on facts he himself has observed
base
hearsay,
Georgia
witnesses, in
the rule is that
other
testified
objection,
probative value and
if
has no
even
admitted without
Green, Ga. Law of Evidence
be considered to sustain a verdict.
cannot
conclusively
“uniqueness” argument, was never
fact,
the state’s
critical to
This
(based
testimony
Wellman
light
on
questionable in
and was indeed
established
records)
Georgia
southeastern
to a number
fiber was sold
that Wellman
sales
question.
period
during
manufacturers
(1976)
&
(2d
9-7
11-3.
222;
Evidence
Agnor’s
111 &
Ga.
ed.
§§
§§
it is
cases,
principles
In
we have reaffirmed
recent criminal
hearsay opinion
repeat
witness to
improper
expert
for an
306) (1982),
(295
Applying the well-established rule which the state’s evidence, clear that hearsay it becomes bative value of fibers and uniqueness of the Wellman attempts prove to First, figures the sales totally inadequate. were carpeting automobile hearsay which Pepperell Point are obvious from Wellman and West exception to records within the business brought were not Green, (Code 38-711); supra, see rule, Ann. hearsay OCGA 24-3-14 § § the total XX, evidence about competent and thus there is no Ch. Luxaire Pepperell West Point of Wellman 181-b fiber or amount Second, Luxaire the two produced. English carpet Dreamer Olive sample previously as well as carpet samples, Olive English Deadman, were not admissible FBI supplied to the and identified which in a record one was fact business into evidence because each also the carpet, but physical piece incorporated just not it, none of identifying with corporate written record attendant hearsay exception record being qualified as a business three in properly Luxaire samples of the Accordingly, there were no rule. no carpet, and the Williams compare with which to evidence carpet the Williams identifying inferences could be drawn probative Pepperell Point Olive, matter as a West English or for that as Luxaire hearsay with proof, together in the state’s product. gaps These Commission, made Regional Atlanta of the statistics from the nature Deadman’s uniqueness. theory state’s of fiber sham of the worthless, of the light particularly calculations were mathematical hearsay only upon they in several instances based fact The weakness assumptions. unproven his own upon but also evidence of the evidentiary prop, Wellman fiber coupled hearsay with the character of the General Motors data as to the commonness of the green-black destroys any floorboard carpet, basis for multiplying probabilities prosecutor’s the manner of the closing argument arrive at a fictional probability any one-in-millions other Atlanta household had the type same of bedroom and auto floorboard carpets. evidence, This extremely Williams, which was prejudicial should never have been admitted. only competent
Thus the pertaining evidence to fibers was the proof recovery comparison fibers, testimony and the that fibers found on the appeared victims similar to fibers found the Williams home and car and could have had a origin. common facts remaining and inferences were hearsay, unproven rank assumptions, guesswork, and should not have been admitted the trial court. Since guilt the evidence of in this solely case was circumstantial and because the ultimate conclusion of significance of the fiber matches repeatedly placed jury before the in terms very expressing high degree confidence, in admitting error fiber testimony evidence and probability all contributed to the jury’s verdict.
3. I
disagree
also
with the conclusion reached in Division 3 of the
majority opinion involving appellant’s request for
reports.
scientific
The majority
relies on Law v.
On August appellant proper made a timely request 17-7-211(a) (Code 27-1303) under OCGA Ann. production for § § reports. Barry Gaudette, scientific analysis fiber and hair expert Royal from the Canadian Police, Mounted visited Atlanta from 18, December 7 December 1981. He conducted fiber and hair comparisons in three of the cases then investigation, under including Jimmy Ray Payne Cater, those of and Nathaniel for whose murders appellant ultimately convicted. He prepare did not written reports of his findings and no regarding information his research was to the provided defendant. began 28, 1981, Trial on December during the trial Gaudette personal testified from notes as to the results of the fiber tests he had conducted. objected Defendant on the ground provided copy that he had not been of these test results (Code pursuant Ann. request to his under OCGA 17-7-211 § § 27-1303). Law, Unlike is no indication here that Gaudette was there completing preparations rushed or hurried in his tests or only similarity the state and its testifying. The with Law is that expert clearly witness have allowed to flaunt openly and been (Code 27-1303). Ann. provisions purpose of OCGA 17-7-211 § § I exactly anticipated We are now faced with the evil Law would spawn, majority and the continues to rather than eradicate encourage this evil.
Appellant personal also contends that the notes and test results compiled by expert scope an witness should be included within the (Code 27-1303). Ann. “scientific evidence” under OCGA 17-7-211 § § majority disagrees Appeals and follows decisions of the Court of product which conclude that a witness’ work is not discoverable. We cases, only need not overrule that where those but we do need to add notes and test results exist and and refresh the support are used to trial, expert’s memory then those materials should be during (Code 27-1303) discoverable under OCGA 17-7-211 Ann. § § they embody By allowing extent that the results of scientific tests. an expert testify forgo delivery report of a full written and to later where, here, orally ample prepare as he had time to such a written unaided, report complex and conducted tests too to remember we permit egregious injustice ever more and violation of the intent of (Code 27-1303), Ann. put OCGA 17-7-211 which is to into the § § reports defendant’s hands these with sufficient time before trial to him challenge enable to check and their content.
4. I
turn now to
claim that he was denied effective
this
Although
majority
assistance of counsel.
declines to review
issue,
where,
case,
I
justifiable
doing
find no
reason for
so
as
ineffectiveness
trial
and can be
plain
egregious
counsel
is
discerned from the
transcripts.
record and
court has
effectiveness
counsel
to mean
interpreted
This
“
counsel,
errorless
counsel
ineffective
judged
‘not
and not
hindsight,
reasonably likely
rendering
to render and
but counsel
”
(295
Zant,
reasonably
At the outset I that Williams had the services of note attorneys trial, they the course of his and that were confronted during many with in investigating preparing difficult tasks his case and trial, defenses for witnesses including deciding which of hundreds of them, investigating to interview and then and interviewing voluminous, examining complicated, and novel fiber evidence Nevertheless, by accumulated I the state. for the reasons which follow find that Williams’ defense counsel rendered ineffective assistance adequately because of their failure to the law and facts investigate concerning they several lines of at trial. pursued defense which entitled,
Perhaps
importantly,
most
although Williams was
(6) (282
to Sabel v.
pursuant
(1981),
First, attorneys dilatory choosing expert Williams’ an examine this evidence. Despite knowledge important role an expert defense, play despite would Williams’ several promptings September early the trial court part quickly October of 1981 to expert obtain and submit an for its approval, defense Dr. expert, counsel did not submit their chosen Morton, approval for the trial court’s until November 1981. Second, Morton, choosing after Dr. defense counsel failed to lab, coordinate schedule with that of the crime with the result being that on several occasions he came to Atlanta from California gain and was unable to access to the crime lab and the evidence and Third, therein. equipment despite pre-trial knowledge intended to concerning portion state introduce evidence at least a list, twenty-seven the other murders on task force defense did 14,1981 Sabel request, August any either in its motion or at other trial, require that the court the state to disclose which of prior time
829 these crimes it intended to introduce and then allow the defense (The access to the fiber evidence to pertaining each of them. trial 1981 Sabel court’s only November granted order the defense cases.) access to the fiber evidence pertaining Payne and Cater Furthermore, state, January 22, 1982, after the on pinpointed the introduce, other crimes it court, wished to January and after the on 25,1982, granted the state’s present motion to be allowed to evidence murders, on these attorneys Williams’ did not move for a continuance to enable Dr. Morton to examine the fiber evidence in those cases. fact, it 1, 1982, was not until February when the defense made a motion suppress to relating evidence to independent the ten murders, expressed the defense dissatisfaction with the trial court’s failure to expert authorize its inspect to the fiber evidence pertaining to the ten extrinsic murders. Additionally, the defense failed to take advantage of opportunities two given by to it the state to examine the fiber evidence in independent offenses.
Although all of the above omissions rendered trial counsel’s preparation of an adequate defense to the state’s fiber evidence practically hopeless, the fatal blow to defense counsel’s effectiveness in this area was their failure to have Dr. testify Morton at trial. apparently Morton left Atlanta January towards the end of or early February 1982 return, and refused to thus forcing defense to obtain a expert second the twilight of the trial. The result was that expert spent this less than five hours examining the state’s voluminous collection of fiber Regardless evidence. of the reasons why Atlanta, Morton refused to return to defense counsel’s to failure take necessary measures to assure testify that he would is — inexcusable Morton only expert was the Williams had who had had enough time evidence, to review the linchpin fiber of the state’s case, help prepare and a defense thereto.
Related to the above ineffectiveness of defense counsel was their failure to challenge reliability the scientific principles of the and techniques by used experts state’s in conducting their fiber comparisons. See Division of this dissent. This challenge was crucial to an adequate defense evidence, to the fiber and its omission demonstrates inadequate preparation investigation by and defense counsel significant example of counsel’s ineffectiveness.
Another glaring failure defense investigate counsel to the law facts concerns their adequately failure to raise the issue of or ruling by invoke a the trial court on the state’s Wayne failure to advise Williams of his rights May 22,1981, Miranda night on which as many as police ten officers FBI agents interrogated Williams for approximately ninety him stopping minutes after on Interstate 285.
In addition to the above ade- failures defense counsel to defenses, to certain relative and facts the law quately investigate defense counsel many instances transcript reveals the trial prejudicial certain object to to to or failed object to right waived which improper conduct certain at trial and to evidence introduced object failure to include: at trial. These omissions occurred of the witness by a state’s use questionable prejudicial highly force of probative explain compound probabilities calculus of by the state’s (this hearsay the use of includes certain fiber evidence interpose objection an counsel did expert, which defense confrontation) (see Division right Williams’ concerning dissent); failure to Division majority opinion and with supplemented probabilities, use of these object prosecutor’s to a calculations, closing during his own upon based mathematical odds *66 on certain occasions 3) presence of the defense’s argument; the waiver (see 11 of the Division jury court talked with when the trial closing 4) improper to object failure to majority opinion); 5) waiver of (see opinion); majority 14 of the argument Division (see crimes to other Dr. Zaki’s references right object to ob- right of the the waiver majority opinion); 4 of Division Boynham concerning Tilbert question to ject prosecution’s (see 15 of test Division a lie detector given whether he had been to the trial object failure to the defense’s majority opinion); Brady material it appellate review preserve failure to for court’s omissions, together, when considered that these inspected. It is clear Wayne Williams. prejudicial attorneys, reasons, Wayne I Williams’ above find For the into inadequate investigation preparation and inadequate due to as- case, him ineffective rendered their client’s law and facts of his convictions I therefore reverse would sistance of counsel.8 a new trial. remand the case for requirements adopted legal that, compulsory light education 8 Ibelieve procedure 1, 1984, January establish a this court should and effective court automatically referred to the be any attorney ineffective would whereby found to be appropriate sanctions. investigation and Disciplinary Board State