Jarrell v. State

413 S.E.2d 710 (1992)

261 Ga. 880

JARRELL v. The STATE.

No. S91P1481.

Supreme Court of Georgia.

February 20, 1992.

*711 Michael Mears, Michael Mears & Associates, Decatur, for Jarrell.

Thomas C. Lawler, III., Dist. Atty., Lawrenceville, Michael J. Bowers, Atty. Gen., Robert D. McCullers, Staff Atty., Atlanta, Debra K. Turner, Asst. Dist. Atty., Lawrenceville, for State.

Patsy Morris, Atlanta, Joseph L. Chambers, Sr., Pros. Attys., Council, Smyrna, for other interested parties.

BENHAM, Justice.

David Alfred Jarrell originally was convicted and sentenced to death in 1974. The judgment was affirmed in Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975). However, his death sentence was vacated in state habeas proceedings. Jarrell v. Zant, 248 Ga. 492, 284 S.E.2d 17 (1981). The case is here again on appeal from the resentencing *712 trial.[1] Finding error in the trial court's excusal of a prospective juror and in the court's acceptance of an inadequate sentencing verdict, we reverse and remand for resentencing.

1. A prospective juror testified on voir dire examination by the state that she "believe[d] in the death penalty" and that for bad crimes the death penalty was "justifiable." However, when asked by the state if she would be able to impose or vote for a death sentence, she testified she was not sure. The state then asked her if, "without knowing any of the evidence of the case," she would "be leaning" toward a life sentence. She answered, "Probably."

On examination by the defense, the prospective juror testified she would consider all the evidence before making a decision, and would follow the instructions of the court.

The court asked her:

As I understand, you tend to lean more at this point toward the life sentence; is that right, that you have some qualms about giving the death penalty?

She answered, "Yes."

Over objection, the trial court excused the prospective juror because she was "going into the trial of this case leaning toward an imposition of a life sentence," and therefore "would not be a fair and impartial juror."

As a general proposition, a juror who merely "leans" one way or the other before hearing any evidence is not disqualified. See, e.g., Waters v. State, 248 Ga. 355(2), 283 S.E.2d 238 (1981). This proposition applies with particular force to a juror who "leans" toward a life sentence before hearing any evidence, since a death penalty cannot be imposed absent evidence to support a finding of at least one statutory aggravating circumstance. OCGA § 17-10-30(c).

The death-qualification test is

whether the juror's views [on capital punishment] would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.' [Cit.] [Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 852, 83 L. Ed. 2d 841 (1985).]

As we pointed out in Alderman v. State, 254 Ga. 206, 207, 327 S.E.2d 168 (1985), "[t]his standard is not transgressed if the juror merely expresses `qualms' about capital punishment ..." Further voir dire examination of this juror might have established a reluctance to impose a death sentence so strong it would "prevent or substantially impair" the performance of her duties as a juror. Or it might have established the contrary. The voir dire testimony actually elicited, however, established no more than that the juror had some "qualms" about imposing a sentence she supported in principle and, before hearing any evidence, leaned toward a life sentence. Her testimony does not support a finding that she was disqualified and her excusal is reversible error. Davis v. Georgia, 429 U.S. 122, 97 S. Ct. 399, 50 L. Ed. 2d 339 (1976); Pope v. State, 256 Ga. 195, 202(7e), 345 S.E.2d 831 (1986).

2. If a jury recommends a death sentence, it must "designate in writing ... the aggravating circumstance or circumstances which it found beyond a reasonable doubt." OCGA § 17-10-30(c).

This written finding should recite all the essential, pertinent elements of the statutory aggravating circumstances found by the jury. At a minimum, the jury's intent must be shown with sufficient clarity that this court can rationally review the jury's finding. Cf. Godfrey v. Georgia, 446 U.S. 420, 428 (100 SC 1759, 64 *713 LE2d 398) (1980). [Romine v. State, 251 Ga. 208, 213, 305 S.E.2d 93 (1983).]

The jury was given instructions on two statutory aggravating circumstances contended by the state, namely, that the offense of murder was committed while the offender was engaged in the commission of another capital felony, OCGA § 17-10-30(b)(2), and that the offense of murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim, OCGA § 17-10-30(b)(7).

The jury's verdict was:

We, the jury, find the following statutory aggravating circumstance(s) to exist beyond a reasonable doubt (Fill in blanks): Armed robbery Depravity of mindpreverted (sic) Torturemental anguish[2]

As we have held consistently, the subsection (b)(7) aggravating circumstance has two parts:

First, the murder must be "outrageously or wantonly vile, horrible or inhuman." [Cit.] Second, the offense of murder must involve either torture, depravity of mind, or an aggravated battery to the victim (or a combination of these three elements). [Cits.] [Black v. State, 261 Ga. 791 (18), 410 S.E.2d 740 (1991).]

A jury's subsection (b)(7) verdict cannot be sustained if it "completely omits an essential element of the statutory aggravating circumstance." Ibid. Here, as in Black v. State, the "jury's verdict omitted any portion of the first part of the subsection (b)(7) circumstance."

Concerning the § (b)(2) finding, there is no indication in the jury's verdict that the offense of armed robbery was committed contemporaneously with the murder, as the statute requires. In Romine v. State, supra, the trial court dealt with a similar situation by polling the jury concerning its § (b)(2) finding. Id., 251 Ga. at 212-213, 305 S.E.2d 93. We held that the poll was sufficient to clarify the jury's written finding. In this case, the trial court refused to poll the jury "as to the aggravating circumstances." Absent such clarification, the jury's § (b)(2) finding, like its § (b)(7) finding was insufficient.[3]

3. Jarrell's death sentence is reversed. Since the evidence is sufficient to support proper § (b)(2) and § (b)(7) findings, the state may again seek a death sentence. Page v. State, 257 Ga. 538, 361 S.E.2d 153 (1987).

Judgment reversed and remanded for resentencing.

CLARKE, C.J., WELTNER, P.J., HUNT and FLETCHER, JJ., concur.

BELL, J., dissents.

NOTES

[1] After obtaining state habeas relief as to sentence, Jarrell sought federal habeas relief as to his conviction. Ultimately, this relief was denied. Jarrell v. Balkcom, 735 F.2d 1242 (11th Cir.1984), cert. den. 471 U.S. 1103, 105 S. Ct. 2331, 85 L. Ed. 2d 848, reh'g. den. 473 U.S. 921, 105 S. Ct. 3547, 87 L. Ed. 2d 670 (1985). The resentencing trial began on September 10, 1990, and ended September 22, 1990. Jarrell filed a motion for new trial on October 22, 1990. An amended motion was filed April 18, 1991. After hearing, the motion was denied on June 4, 1991. The case was docketed in this court on August 12, 1991, and argued orally on January 21, 1992.

[2] The non-emphasized portion of the verdict was pre-printed on the verdict form.

[3] We recognize the difficulties inherent in requiring lay jurors to draft their own verdicts. We do not read the Code's requirement that the jury's death-penalty verdict be "in writing," OCGA § 17-10-30(c), to mean that portions of the verdict could not be pre-printed. (Indeed, part of the verdict was pre-printed in this case. See footnote 2.) The Code requires only that the jury "designate" its findings "in writing," not that it draft the entire verdict. Ibid.