Jones v. State , 261 Ga. 665 ( 1991 )

Weltner, Justice.

Johnnie Dee Jones was convicted of murder in the stabbing of Randall Garvin Reeves. He was sentenced to death.¹

1. (a) Jones claims error in the trial court’s failure to grant his motion for a change of venue on the ground of excessive pre-trial publicity. In Berryhill v. State, 249 Ga. 442 (291 SE2d 685) (1982), we affirmed the trial court’s denial of the motion for the change of venue. We held:

Both this court and the Supreme Court of the United States have considered the “small-town syndrome” before. [Cit.] A serious case draws public attention, and hardly any prospective juror will not have formed some impression or opinion about the cáse. However, the proper test is whether the prospective juror “can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” [Cits.] [Id. at 443.]

(b) Examining the record in this case, however, we conclude that, under Berryhill, the trial court should have granted the motion for a change of venue.² Hence, the conviction and sentence is set aside, and the case is remanded for a new trial.

2. (a) The approach followed in BerryhiU and our earlier cases concerning change of venue in death penalty cases is, we believe, too restrictive. Our inquiries have been laborious, and often have yielded what might appear to be distinctions without differences. The history of the noted “Alday murders” ³ demonstrates the agonies of retrials. We need a better and a surer rule.

(b) Accordingly, we announce a new standard.⁴ Trial courts will order a change of venue for death penalty trials in those cases in which a defendant can make a substantive showing of the likelihood of prejudice by reason of extensive publicity.⁵

3. Other claims of error are without merit.⁶

Judgment reversed and case remanded.

All the Justices concur, except Smith, P. J., Bell and Hunt, JJ., who dissent.

1 The homicide occurred on July 28, 1988, and Jones was indicted for murder on July 29, 1988. He was found guilty of malice murder on July 1, 1990, and was sentenced on the same date. His motion for new trial was filed on July 30, 1990, amended on July 31, 1990, and denied on December 21, 1990. A notice of appeal was filed on January 16, 1991. The appeal was docketed on February 1, 1991, and argued on April 17, 1991.

2 In Berryhill, supra, we found:

The record in this case shows that 67 prospective jurors were examined. Of this number, 6 jurors were excused for prejudice or a fixed opinion as to guilt or innocence. Nineteen persons had opinions of guilt but expressly stated that they could lay aside any opinion and render a verdict solely based upon the evidence. This low percentage of venirepersons excused for prejudice (approximately 8%) strongly corroborates the expressions of impartiality by the other jurors who were not excused for prejudice. [Id. at 444.]

In this case, the trial court examined 138 prospective jurors on voir dire, excused 30 for prejudice (21.7 percent) and qualified 57. Of the 57, 42 were impaneled. Thirty-eight of the 42 impaneled jurors had prior knowledge of the case; 12 had formed an opinion as to guilt; seven had formed an opinion as to punishment; and 26 had heard discussions within the community.

We acknowledge the existence of other variables that might argue for a differing comparison. However, crediting each prospective juror with the best of good intentions, we note that this case demonstrates substantially a higher and more pervasive prior knowledge on the part of the venire than was reflected in BerryhiU.

3 In 1976, three men were tried for murdering five members of the Alday family in 1973. The convictions were affirmed by this court, but habeas corpus relief was granted by the federal court in 1985 and a change of venue granted because of pre-trial publicity. See Coleman v. State, 237 Ga. 84 (226 SE2d 911) (1976); Isaacs v. State, 237 Ga. 105 (226 SE2d 922) (1976), and Dungee v. State, 237 Ga. 218 (227 SE2d 746) (1976) (affirmance of death penalty as to Coleman, Dungee, and Isaacs); Coleman v. Kemp, 778 F2d 1487 (11th Cir. 1986) and Isaacs v. Kemp, 778 F2d 1482 (11th Cir. 1986) (grant of habeas relief to all three); Isaacs v. State, 257 Ga. 126 (355 SE2d 644) (1977) (reversal of trial court’s denial of motion to recuse judge as to all three); Isaacs v. State, 257 Ga. 798 (364 SE2d 567) (1988) (affirmance of denial of several motions as to Isaacs); Isaacs v. State, 259 Ga. 717 (386 SE2d 316) (1989) (affirmance of death penalty as to Isaacs upon retrial).

In Coleman v. State, 237 Ga. 84, supra, this court affirmed the denial of the motion for change of venue under the following circumstances:

The record in this case shows that 106 prospective jurors were examined and that twenty of these were excused initially for personal reasons (children, health, hearing, etc.), leaving eighty-six prospective jurors. Of these nine were stricken for normal cause (seven for relationship to the victims or the prosecutors and two for unalterable opposition to the death penalty), leaving seventy-seven prospective jurors who were examined as to having formed or expressed an opinion and other matters. Thirty-eight of these were stricken on the defendant’s motion for having fixed opinions as to the guilt of the accused. [Id. at 89-90.]

4 This new rule will be effective on January 16, 1992, which is the date that this case appears in the advance sheets of the Supreme Court Reports.

5 Upon hearing a motion for change of venue, the trial court may reserve ruling until after voir dire responses.

6 (a) Jones claims error in the admission of a videotape of the crime scene, contending that it was inflammatory and cumulative of other evidence. There was no error. Foster v. State, 258 Ga. 736 (374 SE2d 188) (1988).

(b) Jones asserts error in the admission of a pre-trial statement, claiming that fatigue, hunger, and failure to warn him concerning the possibility of a death sentence should preclude use of the statement. He was given adequate Miranda warnings; the interrogation was halted at the first indications of fatigue; Jones did not complain of hunger during the interrogation. There is no error.

(c) Jones asserts error in the admission of a second statement on the ground that he did not receive additional Miranda warnings. There was no error. See Mainor v. State, 259 Ga. 803 (387 SE2d 882) (1990); Newberry v. State, 260 Ga. 416 (395 SE2d 813) (1990).

(d) The evidence was sufficient to enable a rational trier of fact to find Jones guilty of the offense of murder beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).