Petition — MINCEY v. GEORGIA (No. 83-5389)

!

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‘| studies offered by a petitioner but found them “too tentative

|

| and fragmentary” to support his position. (Ibid. at 517)

i

'This Court, however, did not foreclose this argument but

merely based its decision on “the presently available information”

(Ibid. at 518).

The trial court here refused petitioner's request for

an evidentiary hearing thereby ruling without having heard

any data which petitioner might have had to support his motion.

|| This Court's decision in Witherspoon implicity requires that

| petitioner be given an opportunity to present evidence on

this issue. The trial court's failure to grant him the opportunity

to do so would require reversal.

The trial court, also erred in summarily overruling

a Motion to Exclude Death Penalty based upon the unconstitutionality

of Georgia Statues. This motion attacked the Georgia sentencing

scheme as unconstitutional in that it allows arbitrary and

capricious imposition of the death penalty. The Georgia scheme

appears to allow unlimited discretion on the jury's part

once they have found at least one statutory aggravating cir-

cumstance. In addition, the practice of allowing previous

non-capital felony convictions to be entered into the record

for consideration by the jury interjects an extraneous factor

isto the sentencing decision.

The trial court 4lso0 erred in overruling petitioner's

Motion to Exclude the Death Penalty as Cruel and Unusual

Punishment and in denying funds for an expert showing. Petitioner

, contends that the death penaity itself violates the Eighth

and Pourteenth Amendments as it is cruel and unusual punishment

per se. The Eighth Amendment prohibits punishment invclving

"torture or lingering death". In re Kemmler, 136 U.S. 436

(1890). Death sy electrocution may not be an instantaneous

death. Indeed, there are instances, such as Ethel Rosenberg,

and the recent execution in Alabama, where more than one

application of current was required to bring about death.

By failing to allow funds to compensate witnesses to present

evidence in this regard, the trial court acted inappropriately,

fi

} and petitioner's death sentence should be vacated.

The trial court also erred in overruling the Motion

to Preclude Death as a Possible Penalty. This motion attacked

, the prosecutor's decision to seek the death penalty against

petitioner while granting a life sentence to both of the

co-defendants. The evidence at the trial was clear that all

] three co-defendants intended to rob and were all aware of

| the plan to kill witnesses. Petitioner's co-defendants culpability

' is not significantly different despite the fact that the

co-defendants named petitioner as the sole trigger man. When

I defendants are equally culpable, constitutional principles

'' require that each receive equal treatment. Enmund vs. Plorida,

102 U.S. 3368 (1982), handed Gown the premise that a non-trigger

man who never intended the killing to occur should not receive

a death sentence for his participation in the crime. Petitioner

contends that a reverse application of Enmund would preclude

death as a penalty for petitioner in this case. Petitioner's

theory is based upon the following logic. Had the State elected

to pursue the death penalty agains? Jones and Jenkins, it

would not be precluded under Enmund from doing so since the

evidence was clear that the co-defendants accompanied petitioner

to the scene with full expectation of what would happen there.

Waiver of the death penalty as to Jones and Jenkins was occasioned

|| SOlely by virtue of their agreement to testify against petitioner

| at his trial. Under this rationale, petitioner's death sentence

5

| must be vacated.

3) THIS COURT SHOULD GRANT REVIEW TO DETERMINE WHETHER

THE TRIAL COURT'S DENIAL OP PETITIONER'S MOTION POR FUNDS

POR INVESTIGATION VIOLATED PETITIONER'S SIXTH AND FOURTEENTH

AMENDMENT RIGHTS.

Petitioner filed a Motion for Punds for Investigation

on April 30, 1982. (R-34) Somewhat later, a hearing was held

for the purposes of allowing petitioner to make out his showing

of indigency and need for investigative servies in support

of this motion. The court withheld ruling on the motion.

Later, the State employed the services of a retired criminal

investigator to assist the prosecutor in jury selection.

The State was never required to make any kind of showing

of need or inability to compensate the investigator from

the then exisiting budget and, indeed, addtional funds were

| atuhorized by the County for this purpose.

We are then left with a situation where a criminal defendant :

must make an evidentiary showing in support of his request

for funds, but a similar requirement is not made of the State.

Such a disparity violates the due process clause which requires

a balance of forces between the accused and the State. Wardius

vs. Oregon, 412 U.S. 470 (1973). While Wardius dealt with

reciprocal discovery rights of the parties, the underlyins

premise is also applicable in this case: what is fair for

one side is fair for the other side. The State should not

be allowed funds for extra services without a showing of

need for same when the defense is required to make such a

showing in support of its requests. The benefits and burdens

should be equal and that is what is required by the due process

clause. The failure to require the State to show the need

while requiring the petitioner to make such a showing violated

his Sixth and Fourteenth Amendment rights. The denial of

investigative funds could clearly have affected petitioner's

investigation of the case and his selection of a jury.

WHEREFORE, for the reasons shown, a writ of certiorari

should issue to review the judgment of the Supreme Court

of Georgia.

Respectfully submitted,

Michael R. Haupt#ian

Suite 1613 Counsel for Petitioner

57 Forsyth Street, N.W.

| Atlanta, Georgia 30303

404/525-4110

No. 83-

IN THE UNITED STATES SUPREME COURT

October Term, 1983

TERRY MICHAEL MINCEY,

Petitioner,

versus

STATE OF GEORGIA,

Respondent.

APPENDIX

Michael R. Hauptman

Counsel for Petitioner

Suite 1613

57 Forsyth Street, N.W.

Atlanta, Georgia 30303

404/525-4110

GLE APRIL TERM, 198). 9 |

Par II] to be limsed by its antecedents, so that it means opportunities which are

the result of trade, commerce, and industry directly financed by an authority. In

For the above reasons, we conclude that appellees’ stiempted application of

Deciven Jury 6, 1983 —

Rentaainc Demen Jury 21, 1983.

Injunction. Fulton Supencr Coun. Before Judge

Watson, Lawson, Joyner & Banke, Eugene E. Lawson, Allen R. Hiroas, for

appellants

Wilham R. McNally, R. Mark Mahler, lor appeilecs.

G Conley Ingram, Jonathon W. Lowe, Vickie Cheek Lyall, amicus curae.

39612, MINCEY v. THE STATE

251 Ga 255

MaasHatt, Pressding Jusuce

The defendant, Terry Mincey, was convicted in Bibb County for the offenses of

murder, armed robbery and aggravated bauery. The death penalty was imposed

for the murder This case was ined and is reviewed under the Unified Appeal

Procedure. We affirm

1 Appellant does not attack the sulficency of the evidence supporung his

convicuions. This court, however, has nonetheless renewed the endence pursuant

to Rule IV (B) (2) of the Unified Appeal Procedure. The evidence can be

summanzed as follows

Robert Jones, Timothy Jenkins and the defendam met in the evening of April

12, 1982, and discussed commutting a robbery. Each was armed, Jones with 2 12

gauge shoigun, Jenkins with a 34 caliber pumol and the defendant with a 380

caliber semi-automatic Llama penol. After several posmbilines were discussed and

rejected, the ino drove by a Mim Food Store located at the imersecuoa of Houston

Avenue and Hartley Bridge Road in Bibb County. They arcied back to the store

and parked The defendant emered the sore briefly and returned wo the car. He

told the others that there were only a female ciert and two teenagers innde and it

looked like a good place to rob He informed the others thai he did not plan oa

leaving any witnesses When Jenkins protested, the defendant told hum, “Ii you're

talking about not wasting nobody, you're im the wrong . . . car.” They waited,

hoping the kids would leave When, after a few minutes, they did not, the

defendant reentered the store. Jenkins positioned himacif outnde, between the ice

machine and the dumpster. Jones, the driver, sayed im the car.

Fourteen-year-old Mischell Cook and her 15-year-old brother, “Bubba,” were

AVPEND\x FA

MINCEY + STATE GLR

le the sore, visstung the cashier, Mrs Raggs When the defendant entered the

¢, ney recagmeaed hum as the same young white male who had emered the store

«|S minutes prevrousty He told Mrs. Riggs to “put the money in the bag” and

| the keds to go to the car.

enkins, sanding outside, saw two teenagers walk out of the store just as a

*-up (ruck pulled up to the gas pumps The driver, Russell Pererman, got out

| began to fill bes tank Meanwhile, Mra. Raggs, followed by the defendant,

ed the sore. When the defendant saw Peterman at the gas pumps, he turned

’ Riggs over to Jenkins and walked toward the pumps.

‘crerman testified that as he was pumping gas, he was conlromted by a young

ue man with 2 pemol un his hand, who sasd, “come go with me.” Peterman was

uprised that he failed to respond. The man said, “You think I'm joking, don't

7" Then he shot Peterman in the chest. Peverman fell to the ground, and the

n walked over and shot him wm the face.

Vhen this happened, Jenkins proceeded toward the getaway car and the

‘agers ram. Jones, sitting im the car, saw Mrs. Riggs run alter them, but she ran

lave The defendam came back across the parking lot and fired at her Jones saw

’ Riggs grab her neck and [ail behind the dumpmer The defendant walked

und the dumpster and bem down Jones heard a second shot.

I'he defendact ran to the car, got im, and they left. They counted the money taken

mm the nore — about $40. Jones asked if the victims were dead. The defendant

4, “Well, 1 pes got a death semence.”

lones’ car was a mulu-colered Mustang with mag wheels, no hood, one working

dinght and a loud muffler. When police arrived a: the scene a few minutes afier

robbery, wunesses were able to describe the car and identify its owner. Jones

s soon located and placed wader arren. After he named the defendani as a

verpam. officers wemt to the defendant's residence and placed him under arrest.

¢ defendam thereahter admined wo law enforcemen officers that he had shot

‘erman and Mra Riggs

\irs. Roggs ced Aa awopey revesied that she had been shot twice. One bullet

cred her left car, wem through her head, and lodged in her right cheek This

bet was recovered. The other entered the right side of her head through the

wporal bone (driving bone fragments into her brain), deflected, and exited on the

msde of her neck. This bullet, which inflicied the fatal wound, was not

overed

des his ngit eyebrow. His left opuc nerve was damaged by the passage of ihe

let and he 13 now totally blind in his left eye. His right eye suffered severe retinal

mage and has a drooping upper lid, which may or may not eventually elevate on

own With the lid lafted out of the way, his right eye has approximately 40% of

ongnal vimon

\ 380 Liama pistol was recovered from the defendam's trailer. Ballistics

amunauon showed it to be the prstol which had fired the bullets recovered [rom

GLR APRIL TERM, 1963. 1%

Peterman and Mrs. Riggs.

reirial mation hearing conducsed pursuant to Rule il (B) of the Unslied Apes’

Peeedure, the court announced, before any evidence was preflered on behalf of

this motion, that it was demed.

challenge or his equal-protecuon challenge to the practice of death qualificanen of

wurors presemed any (actual questions requiring the presentation of evidence. Fe

contends, however, that Witherspoon v Illiness, 391 U. S. $10 (88 SC 1770, 20

| £2d 776) (1968), impliedly entitles him to an evidentiary hearing with regard to

his comention that death-qualihied juries are more likely t conwict than

non-death-qualified juries.’ The (ailure of the court to conduct such an evidentiary

hearing, appellant argues, was reveruble error.

We cannot agree. In the first place, had the court erred by refusing to conduct an

evidentiary hearing, the error could be cured by s remand for an endenuary

hearing Only if the defendant prevailed at that hearing (an unlikely event, 28 will

entitled to the relief sought. Senath v. Balkcom, 660 F2¢ 573, $78 (Sth Cir. 1981);

Spenketlink v Waunwngit, 578 F2d $82 (Sch Cir. 1978). In cach of these cases, the

F ich Circuit assumed, without deciding, that a death-qualified jury is mor= likely

te convict than a non-death-qualified jury and held that, nonetheless, the practice

of excluding for cause those potential jurors so wnequivecally opposed to the death

HPPc KAY A

MINCEY + STATE Gir

sity (Rat (ney would automaucally voir agansi 1, mo matier what the endence

ht reveal, dors not deny a écfendam hes consutwucnal mght to an umpariial

s the state suggests, “lifhe attack wpon the death qualificauen of jurors as

\vOInNg Comwmeiion-prome panes m= past the sage of aid hat, and has now become

cly a part of the (amuhar repervoere of death defendants, a sort of ‘golden oldie’

\eath penalty attacks” A plethora of Unwed Scases Supreme Court, Filth

wit and Georgna cases have wpheid the pracuce of excwssng purom who are 10

\erably opposed to the écath penalty tha: they cowld never umpose Hin any

The trial cowrt dad net err by summary overruling the éefendam's challenge

hes pracuoce The defendam's second enumersucn of error is meriticns.

The inal court ded mot err by overruling the defendant's challenge to the

wiiuoonalny of Georpa statutes relating to the umposstuion of the death penalty

argues that Georgia law umproperty allows the mate to prove non-capual

futt A ager rauon éurmng the semencng phase of the ina! and gives too much

reuon te the pery Coun our response to 8 question cerufied to us by the Unsned

ves Supreme Court (Zam + Secphens, 250 Ga 97 (297 SE2d 1) (1982)), the

crdan comends that the premuses underiying our siatwiory scheme for the

wonton of the death peasy will not withstand consutuuonal scruumy Since

defendam submened hes brief, however, the Unned Scates Supreme Court has

dved these comenuons adversely to the defendam. Zant v Seephens, —— U S

~ (103 SC 2733, 77 LE2d 235) (1983) Thus, the defendant's third cnumer-

of error is meruies

' Pror to nal, the defendam sought funds to pay for the services of caper

nesses to testely on behalf of hes challenge to electrocution as a means to carry

the death penalty. The «ial coun refused to supply these funds and

sequently overruled the challenge

‘Ve have previously reyected comentions that electrorwnon is a crue! and unusual

ushemem Nelson v. State, 247 Ga 172 (18) (274 SE2d 317) (1981), Collier v

se, 244 Ga. 553 (18) (261 SE2d 364) (1979). The trial court did not abuse its

‘Teuen by refumng to fund a renewed challenge to the Georgia method of

rywng out death semeences, Wilson v. Seater, 250 Ga. 630 (2 c) (300 SE2d 640)

'85), of by overruling the challenge.

' An atiorney was apneumied for the defendam on April 1}, 1962, the day afer

offense Some ume poor to May 6, an additional attorney was apponted for (ne

endant On May 6, the court heard the defendant's mouon for invesugative

‘stance The mouon alleged only a general necessty for assistance to imernew

nevees. The tral court mowed that the defendant was represented by two

nonsirate a need for asmstance The defendam made no further requests for

CMigative asemance The tral began im the lauer part of August 1962

in these circumstances, the court's refusal to award funds for investigative

mance was not an abuse of duscreuon Wilson v. State, supra. (2 b), Rivers »

te, 230 Ga. 303 (5) (298 SE2d 1) (1982). The defendant's eleventh enumeration

error 1s meruless.

» The defendant's sixth, seventh and cighth enumerations of error relate to the

alicy of hes arrest and the subsequen: custodial interrogauon and search of the

CLR APRIL TERM, 1983. 197

defendam's trasler

The events leading up to the arrest of the defendam began, for our purposes,

shorily after || 00 pm wh the arnval of law enforcement officers at the crume

scene Investigators soon obtained a descriptien of the getaway vehicle and

ascertained that Jones was us owner. Jones was locate” and arrened a 2: 30 a.m.

As he was being transported to the Law Ealorcement Cemer in Bibb County,

Jones admuied hus part im the robbery and named the defendam as ancther

parucipam. This informanon was relayed to the Bibb County sheriff's office.

Upon hes armval at the LEC, Jones was quesuened. By 4:00 a.m., he had given a

derasied matemem conmmem with unbormaizon that had been obuuned from oher

wiinesses, includeng Peverman and the two teenagers im the sore. In addition,

officers ottained from Jones a descripuon of the defendant's motorcycie and his

telephone number, whch they traced to Hill-N-Daie trailer park. At 4.30 am,

Macon police officer Mack Brown located the defendant's trailer. Seon afterward,

cher officers began to arnve

While they were watching the trasler, a woman came out. She idenufied herself

to the officers as the defendam's mother, Mra. Minocry, and wild them she was

gong neat door to sce a (mend. When asked if the defendant was inside, she

answered that he was and she thought he was asleep. She told the officers whach

bedroom she thought he was in

The sheriff arnwed at appromsmately 4 45 of 4:50 a.m. He talked briefly with

Officer Brown, who told hum that the defendam was inade and that Mra. Mincey

had gone next door Ai the shernfl's suggesuon, Brown went to the ncighbor’s

trailer and requewmed Mrs Muincey's assistance in calling her son. She dialed the

number and, when the defendant answered, gave the telephone to Brown. Then,

according to Brown. “1 asked hum to come outmde [The defendam| asked me

why I wanied hem to come outssde and | wold hum he had become a suspect in a

hommade and an armed robbery, and to please come on out mght now.” The

defendam ded. and was arrested om hus from yard at 456 am.

Alier the arrest, another officer envered the trasler wo see if anyone cise was there.

Thes officer testufied that he did not remasn insede the trasler for over a manute No

further search was conducted at this ume Laster in the day, a search warrant was

obtained and ine trasler searched With Mrs Mincey's asmstance, the defendant's

380 Liama prstol was found under the bathroom sink.

The éefendant comiends that the warrantless arrest was i”\gal and that his

Custodsai siatements and the pestol were fruss of the illegal arren. He further

comends that has custodial statements were not voluntary

(a) The defendamt concedes that his arrestung officers had probable cause to

make the arres. We agree At the ume of the arren, “the facts and arcumstances

within the knowledge of the arresting officers and of whach they had reasonably

trustworthy informanen were suffinent to warrant a prudent man in

that the accused had . snmined an offense. (Ca_|" Durden v. State, 250 Ga.

325. 326 (297 SE2d 237) (1982). The defendant comends that the arrest was

nonetheless illegal because the requirements of OCGA § 17-4-20 (a) (Code Ann.

§ 27-207) (pertanmng to warranties arrests) were not met. This contention is

answered adversely to the defendant by Durden » Staite, supra, wherein we held

that an arrest, “legal under ‘ederal ‘aw {1s} legal under sate law.” Id. at 327.

The question, then, not really addressed by the defendant, is whether his arren

LOP0cKri Prix be

18 MINCEY » STATE GLR

was legal under federal law. In United States v. Watson, 423 US. 411 (96 SC 820,

46 LE2d $98) (1976), the Unned Sunes Supreme Court upheld a warrantiess

arrest in a public place where the arresi:ng officer had probable cause to believe the

suspect was a felon However, the court subsequently held that the Fourth

Amendment “prohsbss the polece from making a warranties and nonconsensua!

entry into a suspect's home in order to make a rowune felony arrest.” Payton v

New York, 445 U. S. 573, $76 (100 SC 1371, 63 LE2d 639) (1980). Thus, snce

Payton, a warrantless arrest may be made snade a suspect's home only with his

consem or uader exigent arcumstances.

We need not determine whether exigem crcumsaaces eusied The defendant

was telephonically requested to exit his home and voluntanly did so. His arrest,

outside his home, by officers who had probable cause to believe that he had

parwcipated in an armed robbery and had murdered one person and severely

injured another, was constitutionally valid. See Unned States v Ruiz-Altschiller,

694 F2d 1104 (11 A) (8th Cir. 1962), Unned Scases v. Costa, 691 F2d 1358 (11)

(1 ith Cie 1962), Unned States v. Johnson, 626 F2d 753, 755-757 (Sth Cir. 1980)

(b) The defendant dors not attack the validity of the search warram. His only

comtenuion regarding the search is that 1 was the product of an illegal arrest and

that the evidence obtained in the search should therefore have been suppressed

Since we have held that the arrest was not illegal, this contention 1s meritless. Nor

was the search warram a “frun™ of the bref entry of appellant's trailer after his

arrest, assuming, arguendo, tha: this enury was illegal. Wong Sun v Unied States,

371 U S 471 (63 SC 407, 9 LE2d 441) (1963)

(c) Afver hearing the endence, the inal court found that the defendant had been

advised several umes of his mghis under Miranda v. Anzona, 384 U.S. 436 (86 SC

1602, 16 LE2d 694) (1966), that he underssood those mghus, that he had freely and

voluntarily waived those mghis, and that his subsequent saiements were [reely

and volunianly made. “These determinations by the tral court were not clearly

erroneous and we must therefore accep: them. Rose v. State, 249 Ga. 628 (2) (292

SE2d 678) (1962).” Brown v. State, 250 Ga. 66, 75 (8) (295 SE2d 727) (1982)

7? The defendant's ninth and iemth enumerauons of error relate wo the

composition of his grand and traverse purmes. He commends that young people

between 18 and 23 years of age are underrepresemed on Bibb County grand and

traverse juries.

To prevail om a challenge to pury compomuen under equal-proteciion doctrine,

Sixth Amendment doctrine, or under OCGA § 15-12-40 (Cade Ann. § 59-106), a

defendant “must establish pnma face that a disuact and idenufiable group in the

community is subssantially underrepresented on the pury verre being challenged ©

Wilson v State, 250 Ga., supra, at 635 (3 a). Appeilam has failed 10 demonstrate

that persons between the ages of 18 and 23 consutute a “distinct and sdenufiable

group in the community.” See, e.g, Bowen v. State, 244 Ga. 495 (4) (260 SE2d

855) (1979). The defendant's ninth and tenth enumerations of error are meritless

8 In enumerations of error 14 through 18, the defendam contends that the trial

court erroneously excused five purors in violation of Wuherspoon v. Illinois, supra

The excusal of three of these jurors requires no extended discussion. These three

prospective yurors clearly and unambiguously stated that they would vote against

the death penalty regardless of what transpired at trial. The defendant attempied

to rehabsluate these jurors by asking whether or not they could “consider” the

CLR APRIL TERM, 198) a]

death penalty “li us nos sulficoen that the juror be willing w ‘commder’ the death

penalty if he or she 13 commuted to ausomaucaily wore agasnet Ue death penairy

after having ‘conudered’ «.” Cofield + Sease, 247 Ga 98, 103 (2) (274 SE2d 530)

(1981). These jurors were so communed and thew cacusal was net error

The cther two prospective gerors were Ma Leche and Mr Pace

(a) In response to quesuemeng by the sammant dasunct anorney and Une cour,

Ms Leckie unambeguowsly sased that she was conscemucusly opposed to the

death penalty and had made up her mund prer we unal to woue agaenat the death

penalty regardiess of the (acts and orcwmetances that maght be presemeed at ural

In response to further questuomeng by counsel for the defendam, Ms Leck

indicated she could comssder the Geach penalty The court then asked her of she was

saying “that there are orcumsances wader which you could rewre « verdict of

death?” She rephed, “| suppose only f Ged wold me to, and | have been talked to by

God." The court asked, “Ms Leck, would pour conscience ever allow you

return a death penalty om amy case?” She anewered, “Only under that

arcumsiance.”

The trial court, after consdersuon, gramed the mase’s challenge for couse. The

coun reasoned “Her consmence sow says that she can't weer ever for the death

penalty The question is not whether at some pow um the future God may speak to

her and say, ‘Your comscsenct should now [aver the death penalty ' The quesuen

whether under the evsdence om thes case — under amy mate of the ersdence — and

whether under the charge of the cown she could return the death penalty, and |

think she said the answer wasme = [Soe sand that her comscoentsous obyecuen,

would have to disappear for a reason other than amy evidence thal mught appear

and the charge of the coun, and legally | belsewe chat dors mot sausly the cruena

| excuse her for cause ~

The record supports the unal cown's umerpreauen of Ms Leckst’s responses

and we agree with the court's reasonung We fund no error un Uhe court's excusal of

Ms Leck

(b) In response to the quesuons of the asemant dumnct anorncy, Mr Pase mated

that if the defendam were found guilty, he could umpose the death penalty Then

the following transpered

“MR. THORPE |for the stave] All mgt, mr Seo then you're aot opposed to

capual punishment « that correct’

“JUROR. Not mm that parucular mmance

“MR THORPE Well —

“JUROR. Not of «'s 2 semeence of lle unprisonmen ~

Following this indscanon that the puror ded not understand the meamng of the

phrase, “capital puneshment,” the asuemtanmt dsinct atiorney asked Mr. Pate

several times if he could under amy Corcumetances wor for the “elecurc chasr.~ The

juror stated unequivocally that he dad not beleve un une elecune chair and woukd mot

under any circummuances wour for «

Then the defendant's attorney quesoned Mr Pare, and the wor dure ended as

follows

“MR COOK |for the defendam| | want you to umagine yoursell on a pury and

tell us of there is any case, howewer bad, that you can think of where you would

consider vouung for the death penalty’

“JUROR If u was ife om prison, | could

PLFENDIX P

=o MINCEY + STATE Gir

“MR. COOK Ne, we're talkang abow woung for the death penalty

“JUROR Ne, ar”

The mace challenged the peror The court ruled, “! thonk u's obvious thar Mr

Pace wowkd mever comméer amyumeag cher (hae Lic umpmsonmen He is ¢acused

for cawae ” We find ne error

9 In hes unereench emumersuen, the éeiendam comends that the inal coun

erred by cxcumng poror Diner fer couse

in response to the matwtery weer dere quemuons, see OCCA § 15-1 2-164 (Code

Ann §§ 59-806, 59-807), Ms Diace mased tha: she had known the defendani's

parencs lor years, kat at ome sme the Gelemdam 1 (acher had been ihe pastor of her

church, and that she ded mot feel that she cowld be 2 [aur and wmparual puror She

sasd, “| know the parencs and | know them weil |and! | de act wish w be mm a

poston (hac | min mow ~ She asked to be dramissed Upon [umber ques onirs by

une écfendam s auernecy, she enequrvocally mared tha: of she were selecied as a

poror she cowld met decade the case based upon the evidence and the law and that

under no crcummances could she rewurn a verdect of gusty

The inal court ded mot err by granung the mare's challenge to thes juror

Compare Jordan + Scaee, 247 Ga 328 (6) (276 SE2d 224) (1981)

10 In enumerauons of error i2 and 19. the defen dam comends thai the tnal

court errec when « cefueed to cucuse two porrmal jurors because of thew

predspostion to unpoer the drach penalty We find no error Both purors sated

(hat (new precomerved mouons cowld be land amde and that they would wan unt!

(ne evedence was presemed to decade what semence mght be appropnace They

Doh tad Uney comkd [aurty commdéer bach poambie semences for the defendam |) us

clear (rom (new answers Unai meniher peror was Commutied to automatically vou for

the death penal; “ the dcfendam was connected Thus, the trial court was not

required to cacuse unem fer cause, and these two enumerauens of error are without

mer

i) Im hes twenueth enumerauon, the defendant commends that the trial coun

erred by adrwtung, over obyrcnon, a photograph of the deceased, Mra Riggs,

= hoch showed her and her two chiidren The éciendamt comends that the inciuson

of ihe choidren om the phosagraph rendered « inflammatory

When ihe cctendam obgeried to the phosagraph the disinc auorney responded

(hat he needed: prowe the sdemuty of Une wictum and that the pury could compare

(hit peclure with Une awiepey photographs and conclude uhat the deceased was in

fact Mra Roggs He unformed the cour that he preferred not to ask Mr Riggs to

sdemuly tes wile from the autopsy pectures and that there were no pictures

avaclable whech showed Mra Riggs om life that did mot also show her children

The rule announced in Brown Siate, 250 Ga 862 (5) (302 SE2¢ 347) (1983),

mapplcable here Thus, the defendant's obyrcnon is answered by Ramey +

State, 2590 Ga 455, 456 (1) (298 SE2d S03) (1963), wherein we held

“Photographs whach are relevant to any issue in the case are aderussible even

though they may have an effect upon the pury ~

12 Im hes twenty-first enwmerauon, the defendant comends that the trial court

erred Dy admuting hearsay evidence to explain conduc when thai conduct was not

in (t3ue

A polce officer was allowed 10 testify over obyertsan that Jones admutied to hum

Gla APRIL TERM, 1983. .

that, “he was part of the robbery and that Terry Mincey |was}.__ imvolved: and

that Terry Mincey had been che inggermas ..” This tesumony was offered to

explain why the defendam was laver arremed The wrial court instructed the jury

that the officer's tesumony was not adenismible to prove the truth of what Jones wold

the officer, but only to explain why the officer might have taken some action as 2

result of having been told this See OCGA § 24-3-2 (Cade Ann. § 34-302)

In Momon + State, 249 Ga 865, 867 (294 SE2¢ 482) (1982), this court adopeed

the following rule “When, un & legal invesugauon, the conduct and motives of the

But where the conduct and motives of the acter are not matiers concerning which

the truth must be found (ie. are irrelevant to the issues on trial) then the

informauon, etc on whuch he or she acted shall not be ademussible under [OCGA §

24-}-2 (Code Ann § 36-302)|”

Whether ut is necessary for the sate to explain why a defendant was arremed a:

the ume, the place and under the orcummances shown, depends upon the facts of

the parucular case See Gaskins » Stace, 250 Ga 386 (297 SE2d 729) (1982). la

to determine on conflicting ewdence whether the alleged | matements were} (reely

and volumianly made “ Cofield » State, 247 Ga 98. supra, at 109 (cung Sems v

Georma, 385 U S$ $38(87SC 699.17 LE24 $93) (1967)) In these Orcummances,

we Cannot say thar the conduct and mauves of thz officer to whom Jones made a

MALEMEN! were not “matters concerning which the truth must be found ” Hence,

the trial cour did not err by allowing the officer to tesufy as to Jones’ statements in

order to explain hus subsequent comduct

In any event, sance the tesuumony was later fully corroborated by the tesumony of

Jones humself. any error was clearly harmices Gaskins + Siate. wapra

13 Co-defendamts Jones and Jenkins temified at the defendant's inal. They

were extensively cross-ecxamuned by the defendant concerning the terms of ther

plea bargains ' For example. the defendant asked Jenkins, “You know the nave

Can (ake into consigeration your tesuumony here today in recommending a scnience

to the court on the battery charge, don't you? And you are here today tesufying

against |the defendant) to fulfill your end of the plea bargain, aren't you?” He

asked Jones, “Is that why you are here today tesufying, Mr. Jones, wo avoid the

without-parole provision of the Habstual Offender Statute?”

The state's response to thes line of Quesuoning was to show that these witnesses

had given statements, consistent with ther tnal tesumony, before any

discussions had taken place with regard to emierning pleas of guilty In his

hwemty-second and iwenty-third enumerauons of error, the defendant commends

mmenced for the sggravaced banery

BLE SUPIV A

22 MINCEY » STATE CLR

that the court erred in allowing these references to prior consisiem matements We

find no error “If an atvemps be made u» discredst a witness on the ground that his

l\evumony is gven under the influence of some mouve prompung him to make a

(alse of colored statement, he may be allowed to show in reply that he made sirular

deciar ations at a ume when the motuve umputed to hum did not exast."|Cits |" Fuller

» Stave, 197 Ga 714, 718 (2) (30 SE2d 608) (1944) See also, Jones v. State, 243

Ga 820 (2) (256 SE2d 907) (1979)

14 In hes twency-fownth enumerauon of error, the defendant complains of the

emphamaed porvon of the following argument by the district attorney occurring

during the guilt-inaccence phase of the inal

“ . Hawe we done anything wrong? Is u wrong to encourage people who sce a

murder to come unto court and tell the truth? Now, Mr. Daniel has brought out

what (he sentences are Mr Jones has been semenced to life. That's an irrevocable

and final semence He has been semenced to 10 years consecutive to that. That's a

final and irrevocable semience. Bui on the other count, his sentence is open. And

I'm sure Mr Jones hopes that by the testumony he gave yesterday that the pudge,

who comrols his final semence, will gve hum some conssderation for coming in here

and telling the truth Anything wrong with that?

“Is there anything wrong with a judge or a disirict attorney making a

recommendation that would say thot at beast on the third count of these three counts

aman who comes in and tells the truth should get somewhai better ireaument than a

man who refused to tell the truth? Nowhing snuser about that — uniess, uniess in

an effort to umprove their own postions Jones and Jenkins came in here and told

something different, changed thew stomes to come im here and make some deal

Now, | would agree with Mr Damel. So you have to ask yourself the question Did

Jones and Jenkins change their momes and come in here and make accusations

against this poor man to make themsecives a deal? ~

The defendam concedes that the argument was not a direct reference to the

defendani's faslure to testify, but comends that 1 was umproper because 1 might

have been construed as such by the pury See Ranger v State, 249 Ga. 315 (3) (290

SE2d 63) (1982) The defendam, however, failed to interpose a timely objection to

the argument, thus, this court has nothing to review. Rivers » Siate, 250 Ga,

supra, at 308 (7), McAlister v Scate, 231 Ga 368 (1) (202 SE2d $4) (1973)

1S The defendam commends, in his twenty-fifth enumeration, that the tnal

coun erred by allowing the state to conduct an umproper redirect examination of a

witness

* Redirect examination and recross are suncily speaking, not for the purpose of

introducing new matter, but the yudge im his discretion may permit the questioner

te inquire about something which he should have asked about during an earlier

wep but which was overlooked ' Green, Ga Law of Evidence 317, Wunesses. §

126, [cus |" Goodrum » State, 158 Ga App 602 (2) (281 SE2d 254) (198i)

“The trial pudge, in his discretion, found the evidence brought in on re-direct

examination to be relevant and admissible Absent a showing of gross abuse of

discretion, we find no error [Cus |" Afaher » Siate, 239 Ga 3S, 6 (2) (2%

SE2d 647) (1977)

16 In his twenty-siath enumeration of error, the defendant complains that the

state s pre-trial discusmons with three povential defense witnesses diminished their

willingness to testify on mitigation during the sentencing phase of the inal. The

GLR APRIL TERM, 1983 2)

siaie’s misconduct, the defendam contends, and the resulting “chilling eflean”™ on

these potential witnesses, amounted to “outrageous prosecutorial overreaching,”

requiring a retmal as to sentence Endence was presenied on behalf of this

comenuon at the defendant's mouon for new tral

(a) Gen Willis, who had three forgery convicuons, was a former pri fnend of

the defendant She was umtermewed pror to inal by investugaiors from the district

attorney's office and later by the distinct attorney and one of his assustamts. Ai this

imernew, Ms Willis told the prosecutors: (1) thai, when the defendant was about

to be released [rom prison, he asked her to bring him a gun, because he wanted her

to help hum rod a bank in Pearson, Georgua, (2) that he had asked her to heip hum

rob her own mother and father; (3) that he once broke her jaw, because she put the

wrong dressing on his salad, (4) that the defendant had told her that, as a child, he

inked to set cats on fire and to bury them up to their necks and run over them with a

lawn mower, and (5) that the defendant felt he had mite a mistake in the past by

leaving witnesses behind and had said that, in the future, when he comemutied an

armed robbery, he would kill all the witnesses, including his co-robbers.

Ms Willis tesufied at the hearing on the mouon for new tral that this imermew

lasted unul 400 pm , caumng her to miss a scheduled appoinument with defense

attorney Rick Cook She did, however, talk to Cook's partner, John Schaffer, to

whom she was hostile, because the asmstant distinct atiorney had characterized

Cook as a “smooth iaiker” who would try to convince her to “go for the defense ”

Assistant distren attorney Thorpe testified that he told Ms Willis that she could

alk io Mr Cook if she wanted to, but that she did not have to If she did talk to him,

she should tell hum the truth and not he as she did when she firs talked to

investigators from the district attorney's office

Defense artorney Cook tesufied that Ms Woillis had made some statements to

Schaller that were inconsistent with what she had told Cook in several pre-inal

clephone conversations and in one face-to-face conversation pror to the

commencement of the sentencing phase of the tnal Cook tesuiied that he had

checked with other persons who knew Ms Willis, and, from these conversations,

from his own discussions with Ms Willis and from Schafler’s report of his

interwiew with her, had concluded that she was unstable. He deaded not to ese her

as a witness (The state did not use her enther)

The only thing to which Ms. Willis maght have tesufied in muugation was her

observation tha: the defendam had undergone a personality change after a

motorcycle acendent in 1980 We nove that the defendant commutted three armed

robbernes in 1977. three years pror to his moto. .ycle acadent. On one of these

orrasions a siranee car pulled into the parking jot of the convenience sore being

robbed The defendant fired several shots at ut. later observing that ve driver

didn't have any business out that ume of night, anyway.”

We agree with the trial court thal no prosecutoma!l misconduct was shown a3 to

his witness and that, in any event, her tesumony would have been more harmful

than heipful

b) Prior totnal. Cassse Mitchell and her husband, Jesne James Michell, were

asked to come to the district attorney's office by assustant district attorney Thorpe

Thorpe had talked to Cassie earlier that day and she had been cooperauve. When

she returned with her husband, Jessie informed Thorpe that he had been convicted

of statutory rape and did not intend to help “the law.” Thorpe asked hum if he

ALPE MAI #

204 MINCEY + STATE GLR

would refuse to help even if he had reievant evidence that would tend to prove that

the defendant was guilty of murder. Jesme answered thai he would not teil Thorpe

anything uniess « would heip the defendant. Thorpe, at this point, gave jJesme a

“ten-minute opening-satement-type summary of the evidence” against the

defendant, describing, among other things, how Mn Riggs had been killed, and

mentioning that she had left small chuldren behind. Thorpe showed Jesse some of

the crime-scene photographs

Jessie and Casme both testified that this presentation had an effect on them

Jessie had previowsty doubted that the defendant was guilty. He tesufied that, afier

Thorpe's presematuon, he became convinced of the defendant's guilt and was no

longer willing to help the defendant avord - ¢ death penalty. He cooperated with

Thorpe and confirmed that he and Cassie had gone to see the defendant in jail and

askedtum why he “did 1," and that the defendant's only response had been, “Acid

City Cassee testified that, alter she heard Tharpe's presentation, she thought the

defendant “should burn”

Jerse tenified at the hearing on the defendant's motion for new trial that, if he

had been called as a defense witness at the sentencing phase of the trial, he could

have testified that the defendant had told him to qutt drinking and get a job, and

(hat the defendam had good character Defense attorney Cook conceded that he did

not know whether he would have used Jesme as a defense witness

Cassie tesufied that, alter she heard that the defendant received the death

penalty, she felt guilty that she had not contacted the defense prior to trial and had

not testified on the defendam's behalf She testified that his girl frend, Geri Willis,

had told a lot of les and had hurt the defendant She had written bad checks

against him” and had lied about a job opportunity in Virguma When Casne had

been pregnant and her husband was in prison, the defendant had tried to help her

and had loaned her some of his mother's clothes, bedspreads and silverware

(without his mother's knowledge) She once talked to the defendant about an

legitimate child that might have been the defendan:’s. The defendant told her,

Well. if you see |the mother] and if she thinks I'm the father of that child, you tell

her that I'll help support u, because one thing | am, you know, I'm a man, I'm

gong (0 support my children" Cassie suggested that there were two types of

fx-convicts those who were going back to prison, and those who were “going to

make st" She said, “Terry |Mincey} was going to make nw. He had that atutude. it

was get cut, let's get a job, let's be somebody, let's hold our heads up, let's start all

over

The defendant comends that only because of Thorpe's dramatic presentation

was Casse unwilling to come forward as a defense witness prior to tnal. The

record suggests otherwise

Ger Wills called Cassie prior to trial and told her that the defendani had

(Mreatened to kill Cassie if she testified agains: him. Cassie thereafter contacted

Thorpe and told him she wanted no part of the case, she was afraid of the

defendant There had been, moreover, an earlier incident im which the defendant

had come to Cassie's place of employment brandishing a knife. She left by the back

door and went to a restaurant. An hour or so later, the defendant appeared at the

restauram, still brandishing the knife, threatening to use it (against whom, the

record 1s not clear) In the words of Thorpe. “When she told that incident to me, it

was something which had scared the fool out of her”

CLR APRIL TERM, 1963 mm

Cassie testified, in addition, that she had been afraid that her tesumony would

reveal that she had been assonating with a convicted felon in nolation of the terms

of her probation She had felt, moreover, that she would not be a good character

tines Decause of her por record of convicuons of several forgeries and a theft by

taking

The defendant insists that Cassie's testimony would have been sufficiently

helpful. that he would have used her as a defense witness had she not been rendered

unavailable by prosecutonal misconduct. We conclude that, whether or not

Cassie's testimony would have benefited the defendant's case, her absence was not

the result of prosecutomal musconduct.

The tnal court found that assistant distria attorney Thorpe committed no

impropriety when he attempted, in Casme’s presence, to persuade Jemie to

Cooperate by telling him the facts of the case and by emphasizing the strength of the

evidence against the defendant. We agree with this finding. The record does not

suggest that anything Thorpe told Jessie was untrue Any “chilling effect” in this

regard was simply a natural consequence of the antipathy evoked by the facts of the

crime The record, moreover, shows that Cassie had additional reasons for not

waniing to get involved in the case, and these reasons had nothing to do with any

conduct. of misconduct, on the pant of anyone in the distnct attorney's office.

The trial court further found that no one in the distinct attorney's office ever told

Cassie or Jessie that they could not testify for the defense or that they should not

cooperare wiih the defense Nor, the trial court found. did anyone in the district

attorney s office threaien Casne regarding her probauonary status. These findings

are supported by the record

The record simply does not support the defendant's claim of prosecuional

overreaching, and the defendant's twenty-sixth enumeration of error is meritless

17 In his twenty-seventh and twenty-eighth enumerations of error, the

defendant contends that, although he made a umely and sufficiently specific

request for the defendant's statements under OCGA § 17-7-210 (Code Ann. §

27-1302), the state failed in two instances to supply the defendant with statements

which were thereafter used at trial

(a) During the guilt-innocence phase of the inal, co-defendant Jenkins testified

(hat, while he and the defendant were in custody following their arrest for the

crime on trial, the defendant told Jenkins, “Look, if anybody asks you, | was wired

out on acid I'm going to try and get an insanity plea”

No objection was interposed to this testumony. This procedural default preciudes

further review of lenkins’ teximony Rivers v State, 250 Ga 3}. supra, (7)

b) Durwood Shores testified, at the seniencing phase of the trial, that after he

and the defendant got “locked up” for an armed robbery in 1977, the defendant

said that if he ever commuted another one, he would not leave any witnesses. The

delendant was not notified, prior to trial, that this statement would be introduced

iN aggravation by the state The defendant's Only objection to this testimony, at

trial, was (hati was not “proper redirect.” On appeal, he contends that admission

of (his testimony was error under OCGA § 17-7-210 (Code Ann § 27-1302)

We need not determine if OCGA § 17-7-210 (Code Ann § 27-1302) requires

the state, upon umely demand, to provide the defense with custodial statements

made by the defendant years before he committed the crime for which he is on trial.

DLPLEMNiv &

208 MINCEY » STATE CLR

See Walraven » Site, 250 Ga 401 (2) (297 SE24 278) (1982) Nor need we

determine the applicabtelny of OCG 4 § 17-10-2 (a) (Code Ann § 27-2503)

(which provides “tha: only such evidence in aggravation as the sate has made

known to the defendani prior to his tna! shall be admusuble”) Assumung thai the

proflered testumony was subyrct to exciumen. on proper obyection. under either of

the above Code secsons. mance mo such obyection was made. we need only devermine

whether the texumony rendered the defendant's death senience invalid on the bass

(hat was umposed under the influence of pasmon, prepudice, or other artetrary

factor OCGA § 17-10-30 (c) (1) (Cade Ana § 27-2534 1) We conctude tha:

Shores’ icsumony d:d not have that effect Testumony thai the defendam spoke to

Shores of leaving no witnesses, adds nothing inflammatory io a record that includes

letumony from bok of hes co-defendants thai, on the magi of the armed robbery,

the defendam mated that he did not imiend to leave any witnesses

18 Im has twemy-ninth emumerauoa of error, the defendani contends that the

(nal coun should have gramed his mouon for new trial as to senience. based on

newly discovered exndence

Prior to and for some tume alter the defendant's trial. Jones was confined in the

Houston County jaul. in a “solitary” section of the jal comta:ning mine ceils. Also

confined in thus secuon of the Houston County jul were Wilham Durden, Ellis

Wayne Feiker and Charies Wayne Radford, all of whom were being held on

murder charges Ai the hearing om the defendani's mouon, these three fellow

prisoners tesufied thai Jones had bragged to them thai Jones and not the defendan:

had sha Prierman

Specifically, Jones had sated to his fellow prisoners that he and the defendant

had entered the sore and confromed Mrs Riggs, who was alone Jones left the

sore to confrom Prierman and, when Peterman reached for his gun, shot him

twice Mra Riggs was shot by the defendani

The testumony of Feiner, Durden and Radford was corroborated by Jones, who

admutied at the hearing that he had told his fellow prisoners the foregoing sory He

testified, however, thai it was mot true, and that, pust as he had tesufied at trial, ihe

defendant had shot both Mra Riggs and Peerman. When asked why he told his

fellow prisoners otherwise, he explained that they were all charged with niolent

crumes and inchned to regard disfavorably his cooperation with the state im a

murder case, and thai he therefore made false statemenis to them for his own

praecuon, to make hum “look bag in from of them

lt is undisputed chat mevther the prosecutson nor the defense was aware until late

November 1982 (some three months after the trial), that Jones had made

extrayud@ioal statements which were inconsstent with his tnal testemony. The

Mate dors not comiend that the defendant's attorneys lacked dilagence by fasling to

discover these inconsistent matements, and concedes thai these statements would

have been admissible as substantive evidence under the rule announced in Crbbons

vy Stare, 248 Ga 858 (286 SE2d 717) (1982)

The defendant coniends that, sunce the evidence presemed at tral showed that

the defendant shot bowh wcums, the newly discovered evidence, which tends to

show that he only shot one, might have persuaded the yury nex to umpose the death

penalty Thus, the defendant comends. he is enutled to a new tral as to sentence

Prevermutting any question whether the “newly discovered” evidence is, in fact,

GLR APRIL TERM, 1963 Py

newly discovered,’ we conclude thai it os mot of such materiality as to require a new

trial See Emmett v State, 232 Ga. 110, 117 (205 SE2d 231) (1974) Had the jury

been presented with Jones’ extrayudsaal statements, and had 1 chosen %© believe

them, i nonetheless would have been confromed by undisputed evidence that the

defendani shot and killed Mrs. Riggs and was a party to the shooung of Peverman,

all of which occurred during an armed robbery at whach the defendant had planned

to leave no witnesses: More umportantly, ot us haghly unlikely, im wew of the other

evidence presented. that the yury would have chosen to believe Jones’ jailhour-

braggadono

To believe Jones’ extrayudinal starement, the jury would have had to repent

credible evidence establishing that Mrs Riggs and Peterman were shot by the

same gun lt would have had to reject the tesumony of the two teenagers who

tesufied that they were in the store when it was robbed and that oaly one of the

robbers entered the store |t would have had to wgnore Jenkins’ tesumony, which

was consisient with the texumony of Jones and inconsistent with Jones’

eatrayudiaal staiemenis. And it would have had to disbeliewe the defendani’s

admission that he had shot Peterman

Our conclusion thai the defendant is not entitled to a new sentenang tral is

bolsiered by a letter the defendant sem, afier trial, to Jones (which would be

admissible om retrial) In this letter, the defendant stated

“I want you to know that I don't hold any hard feelings against you because in

my eyes you told things as close to the truth as posssble. Bui | think we both know

that you got more than 10 dollars’

I'm sorry | got you imo this shu, Bobby, and | want you to know that is the

truth We half-ass did a job and this is our price for mistakes.”

The trial court properly dened the defendant's motion for a new sentencing

trial, and the defendant's twenty-ninth enumeration of error is mentless

19 Nothing in Enmund v Flomda, —— U. S$. —— (102 SC 3368, 73 LE2¢

1140) (1982), umples that, where the prosecutor waives the death penaiiy for two

of three co-defendants, he may not seek a death penalty against a chird. Nor does

equal- protection docirine mandaie that co-defendanus receive idenucal semences

The defendant's fifth enumerauon of error is meniless.

Semence Renew

20 The jury found the following statutory aggravating circumstances: “{1) The

offense of murder was commutied by a person with a pnor record of conviction for a

capttal felony (2) The offense of murder was committed while the offender was

engaged in the commission of another capual felony, to-wit armed robbery ”

The first statutory aggravating circumstance is supported by evidence (cenufied

copies of prior convictions) that the defendant had three pmor connections for

armed robbery The second statutory aggravating arcumsiance is supported by the

same evidente which suppomed his connciuon

The jury's finding of statutory aggravated orcumsiances is supported by the

evidence beyond a reasonable doutt OCCA § 17-10-35 (c) (2) (Cade Ann §

27-2537)

21 After review of the record in this case, including arguments of counsel, the

-/

‘If the defendant had shot only Mra Riggs he surely wowld have been aware of the (act ewen if he

was unaware thai Jones had made apy watements im suppert thereof

JAPPLEL DIK A

MINCEY » STATE GLR

rge of the court and mauers dealt with in Divisions 11, 16 and 17 of this

mon, we conclude that the semence of death was now umposed under the

uence of pasmon, prepudsce, or other arbuurary factor. OCGA § 17-10-35 (c) (1)

de Ann § 27-2537)

2 We find that the semence of death 1s not excessive or disproportionate to

vences imposed in sumular cases, comssdering both the crime and the defendant

GA § 17-10-35 (c) (3) (Cade Anam. § 27-2537). Our cases show that purnes find

death penalty to be appropriate punishment where an adult defendant commits

rder during an armed robbery

n this case, the defendam sated before the robbery began that he intended to

ve no witnesses. He thereafter shot two uaremsiuing, unarmed wcums, each of

om was dropped by ome shot and thereafter shot in the head. The defendani

ended to kill both weums and only by chance did one survive. The callous and

i-blooded behawnor of this defendani has been condemned by death in many

er cases

In addition, the defendant had been convicted three times previously of armed

ibery This serious prior record of comnction for capral felonies additionally

ports the umposmtion of the death penalty im this case

The cases iisied in the appendix suppor the death penalty in this case

Judgment affirmed All the Jusuces concur

Decinen Jury 7, 1983 —

ReWeARING Demin Jiay 21, 1983

\turder. etc Bibb Superor Court Before Judge Johnson

[ Robert Daniel lot appeliam

Willis B Sparks 111 Distt Attorney, Thomas J Mathews, Assistant District

worney, Alwhael | Bowers, Attorney General, Janice G Hildenbrand, Staff

usiant Attorney General. for apprilee

APPENDIX

(Castells State. 250 Ga 776( 301 SE2d234)(1983), Hortony State, 249 Ga 871

'S SE2d 281) (1982), Jo.ss © State, 249 Ga 605 (293 SE2d 708) (1982),

rryhillv Stave 249 Ga 442 (291 SE2d 685) (1982), Solomon v State, 247 Ga

277 SE2d 1) (1981), Duck » State, 246 Ga. 697 (273 SE2d 124) (1980).

weker vy Siate, 245 Ga 68 (263 SE2d 109) (1980), Jones » State, 243 Ga 820

5@ SE2d 907) (1979), Amadeo v. State. 243 Ga 627 (255 SE2d 718) (1979),

uwey » Stace, 241 Ga 477 (246 SE2d 288) (1978); Davis v. Scate, 241 Ga 376

47 SE2d 45) (1978), Corm v State, 240 Ga 13 (240 SE2d 694) (1977); Young

State. 237 Ga 852 (2 SE2d 287) (1976), Stephens v Scate, 237 Ga 259 (227

t2d 261) (1976), Spencer» State, 236 Ga 697 (224 SE2d 910) (1976); Pulliam

State, 236 Ga 460 (224 SE2d 8) (1976); Dobbs ». State, 236 Ga 427 (224 SE2d

(1976), Mason v State. 2% Ga 46 (222 SE2d 339) (1976), Mitchell v. Scate,

44 Ga 160 (214 SE2d 90) (1975)

Om MOTION FOR REHEARING

We nove that the imal yudge, in his ruling on the state's challenge for cause of

ospective puror Nis Lecise, made a finding of fact that the prospective juror was

mscentiousl: opposed to the imposition of the death penalty We point out that it

helpful to this court for the trial yudge to make such a finding rather than merely

sling om the challenge, particularly when several months have passed ance the

GLR APRIL TERM, 1985 ra]

cast was ined by the ume the case reaches this court

39617, 39618 ROBERTS et al v GUNTER ex al; and vice versa

251 Ga 276

Garecory, Jusuce

This appeal and cross-appeal rase quesuons regarding Georgia's bank share

tax statute, OCGA § 48-690 (Code Ann. § 91A-3301)

In 1974 the Gunters purchased approximately 60% of the stock of Se Hamilioe

Bank and Trust Company from a bank holding company In F “ruary 1975,

Hamilion Bank filed with the Fulton County taxing authoriues (appeilancs here)

a document which the Bank claumed was its 1975 bank share tax return. In May

‘975, the County Board of Tax Assessors furnished the Bank with a notice of

assessment which assessed the Bank's shares at a higher value than the Bank's

return ($1,584,724) The 1975 bank share tax bell was sent to and received by the

Bank, but it was mot sent to the Gunters personally. On December 31, 1975,

Hamilton issued a check for $396 18 for the purpose of paying the enure bank

share tax on Hamilton's shares for 1975 (the 1975 tax ball sem by the county was in

excess of $100,000)

In March 1976, Hamilton Bank requested an extension, which was graned,

until April to file the bank's 1976 bank share tax return. Hamulion Bank filed what

it argued was its 1976 bank share tax return in Apni (value of shares returned at

$958,426) In March 1976, Hamilton also established a special reserve account for

payment of the bank share tax

Hamilton Bank ceased banking operations and was placed in receivership on

October 8, 1976, with the Federal Deposit Insurance Corporation taking over the

bank operations The National Bank of Georgia purchased certain assets and

assumed certain liabiluies of Hamilton (including ube bank shares tax spenal

reserve account. which then comained $136,512, and corresponding tax liability),

which it held for eight months before transferring them to the FDIC. The lazing

authorities never sought (o recover those funds from NBG. On Octcher 11, 1976,

the Tax Commissioner sent his nouces of assessment to the now defunct Hamilton

Bank (the 1976 county assessment was at $1,627,410)

National Bank of Georgia transferred the accounts of the former Hamilton

Bank to the FDIC in June 1977. The Tax Commissioner filed a claim for the

unpaid 1975 and 1976 bank shares taxes in the receiverstup proceedings, which

claim the FDIC disallowed

In January 1977, attorneys for Fulton County sent notices of fi fa. to the

Gunters along with a leuer explaining that the fi. fa writs established a hen

enforceable agains: any property owned by Mr. and Mrs. Gunter to satisfy Laxes

owed based upon their stock ownership in the Hamilton Bank and Trust

Company The Gunters filed an Affidavit of Ilegality, challenging the imposition

of the tax. which they were allowed to amend later, and posted $ 1 50,000 cash bond

The Gunters sought summary judgment on their onginal Affidawn, which was

denied, summary judgment being insiead granted to the Fulton County tax

authorities A yury trial was held in June 1982, and a general verdict in favor of the

Gunters was returned Ir its pudgment, the trial cour cancelled the fi. fa. writs

which had been issued againsi the Gunters and returned their cash bond

BPPRPrNNIX A

17-10-30. Procedure for imposition of death penalty generally.

(a) The death penalty may he unpesed for the offenses of aircraft

hyaching or treason in ams case

(b) In all cases of other offenses for which the cleath penalts may be

authorized. the judge shall consider. or he shell uxtude in his instructions

to the yurs for it to consider. ans HUT CH CUMIN OS OF aggra\ ating

circumstances otherwise authorized by law and am of the followiy statu

tOrY aggras ating circumstances which may be supported by the evidence

(1) The offense of murder rape. armed robbery, or kidnapping was

commutied by a person with a prior record of consmuon for a capital

felons

(2) The offense of murder rape. armed robbery. o1 Kidnappuig was

committed while the offender was chgaged in the commussion of an-

vther capital felons of agiravated batters. or the offense of tmourcder

was Committed while the offend was Chgayed im the commnission of

burglars or arson on the firs: deyice

(3 [he Oofiencdes ys.) sodas “nt of wn salen sre? oresbsleees

hiclapy 4 ATOWIIRIN Created a great 1 skool death ton © thane conn

personina pubin place bs means of as capenor device which would

normallh be Pazarctous te he tives of prreore tiaate cone Per sat

(4) The offender ct mitted! the offense of murder foor tistrise lf

another for the PUT pm rse ol recen Th Pee. Ct ans othe thing a

moneturs value

5 The n irecier «ot vs ciM tot cr. Teo cliactal olfie er clistrict

Attories om Savile iteor tot feont ! ctist L sttteotanec ey oan Silke ptee wis

committed durmg or iene tise cof mw eNCrCise Of ties offecnal clatpes

(t) The Otlecmecr C.tlisetl aor cf cutoal canpeothnes te» COnnperael suitcley )

commutted murder as an ager reny ‘ce ol another Person

(7) The offense of murder rape. anneal polplaens on hechiappurng 4 as

Outrageousis of wantonly vile. beorrelle COP EPRERCOETLND Ont That at anvolved

torture. depravity of nund. or an deeravated batters to the victim

(8) The offense of murder was comunitied against any peace officer.

corrections employee, or fireman while engaged in the performance of

his official duties

(9) The offense of murder « as Committed by a person in, or who has

exaped from, the lawful custuds of a peace olfier or place of lawful

continement: or

(10) The murder was committed for the purpose of avoiding,

uterfering with, or preventing a lawful arrest or custody in a place of

lawful confinement, of himself or another

(c) The statutory instructions as determined by the trial judge to be

warranted by the evidence shall be given in charge and in writing to the

jury for us deliberation. The jury. if its verclaet is a recommendation of

death, shall designate in writing. sagned by the foreman of the jury, the

as8ravating Circumstance or circumstances which it found bevond a rea-

sonable doubt. In nonjurv cases the judge shall make such designation

Except in cases of treason or aircraft hyacking. unless at least one of the

SatulOry aggravating circumstances enumerated in subsection (b) of this

Code section is so found. the death penalty shall not be imposed. (Code

1933. § 27-2534.1. enacted by Ga. L. 1973 p. 159, § 3.)

BPFENDIY R

17-8-75. Improper statements by counsel generally.

Where counsel in the hearing of the JUIN make statements of preyudh-

cial matters whah ae not in evidence. itis the duis of the court to

imerposc and prevent the sane. On olyection made. the court shall alse

rebuke the counsel and by all needful and Proper mstructions to the pury

endeavor to remove the improper HM pression from them mands: or. a his

discretion, he may order a mostra! othe prosecuting attorneys is the

offender (Civil Code 1895, § 4419: Cival Code 1910.8 4957; Code 1933

§ Si-liun)

17-10-36. Establishment of unified review procedure by Supreme

Court; effect on habeas corpus.

(a) The Supreme Court of Georgia shall establish. bv rules. a unified

motion for review procedure to provide for the presentation to the

sentencing court and to the Supreme Court of all possible challenges to

the comviction, sentence, and detention of defendants upon whom the

sentence of death has been imposed. which challenges before March 20.

1980, have been presented for review by motion for new trial. motion to

withdrasy a guilty plea, appeal. writ of habeas corpus, or amy other writ,

mouon, or proceeding cognizable in the courts of this state. except a claim

or proceeding challenging the competency of counsel

(6) The Supreme Court shall establish, bv rules. a series of check lists

tu be utilized by the trial court. the prosecuting attorney, and defense

counsel! privr to. during. and after the tial ol cases in which the death

penalty is sought, to make certam that all possible matters which could be

raised im defense have been considered bv the defemdant and defense

counsel and emher asserted in a tunel, and correct manner or waived in

accordance with applicable legal requirements. so that. if the defendant

is convicted and the sentence of death ws umpeosed. the record and tran-

“rt of proceedings will be complete for a unified review bs the

semencing court and the Supreme Court of all possible challenges to the

judgment of comvction, semence of death. and the detention of the

defendant

(c) Nothing in this Code section or in the rules of the Supreme Court

shall lima or restrict the grounds of review or suspend the rights or

remedies available through the procedures governing the writ of habeas

corpus

(d) The procedures governing the writ of habeas corpus may be

emploved to assert rights or seek remedies if the procedures established

in the rules of the Supreme Court as applied to the petitioner are

inadequate or ineffective in ams constitutional sense (Code 1933,

§ 27-2538, enacted by Ga. L. 14980. p. 340, § 1.)

17-10-31. Requirement of jury finding of aggravating circumstance

and recommendation that death penalty be imposed prior to

imposition of death sentence.

Where. upon a trial by JUTY. a person ts convicted of an offense which

ma\ be punishable by death. a senteme of death shall not be imposed

unless the jury verdict includes a finding of at least one statutors

*gRTavating circumstame and . recommendation that such sentence be

unposed. Where a statutors (RETAIN CHcuMms«ance is found and a

recommendation of death is made, the court shall sentence the defendant’

io death. Where a sentence uf death is not recommended by the jury. th

court shall sentence the defendant to Imprisonment as provided i. "08g

Uniess the jury irving the case makes a finding of at least one statutory

affect a sentence when the case is tried without a

jury or when the

a a plea of guilty. (Code 1933, § 26-3102. enacted by Ga. L. 4908,

P1249, § 1: Ga L. 1969, p 809. § 1 Ga L 1973, p159.§7) ©

TERRY MICHAEL MINCEY,

Petit ner

Vv.

STATE OF GEORGIA,

Respondent

: RARI

meine =aneinen » os apn

SUPREME COUR DF EC IA

BRIEF IN OPPOSITION FOR THE RESPONDENT

WILLIAM B HILI IF

Counsel f Record

for Respondent

MICHAEL J. BOWERS

Attorney General

JAMES P GOOGE JR

.

®

a |

a

Please serve: DENNIS R. DUNN

WILLIAM B. HILL, JR.

132 State Judicial Bldc.

e

40 Capitol Square, S.W.

Atlanta, Georgia 30334

(404) 656-3359

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