Cochran v. State

344 S.E.2d 402, 256 Ga. 113

• Court: Supreme Court of Georgia
• Decided: June 16, 1986
• Docket: 42891
• Status: Published

Opinions

Per curiam.

Henry Lee Cochran was convicted of the murder of his wife Essie Mae Cochran, who was found beaten and stabbed to death a day after Cochran escaped from the Mitchell County Correctional Institution. He was sentenced to life imprisonment.¹ We granted Cochran’s motion for an out-of-time appeal. Cochran v. State, 253 Ga. 10 (315 SE2d 653) (1984) and address here the enumerations of error filed by recently appointed counsel, which raise issues nearly identical to those listed by Cochran in his own brief.

1. Cochran alleges that the circumstantial evidence was insufficient to identify him as the perpetrator of the crime. The evidence showed that Cochran escaped from prison; came to his brother’s house; left blood-stained clothing; and tried to wash bloodstains from his car. He then fled to Texas. The blood from his clothes and his car matched that of the victim. The evidence is sufficient to sustain the conviction under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Cochran alleges that he was denied effective assistance of counsel. He complains that his lawyers did not investigate thoroughly, and failed to present an alibi defense. He filed a motion before trial requesting new counsel. He complained during the trial that his lawyers were disclosing certain private information to the prosecutors. No other motion was filed on this issue prior to this appeal. The issue of ineffective assistance of counsel is usually not addressed if it is raised for the first time on appeal because the trial court has not ruled on the issue, nor is there testimony from trial counsel. Brown v. State, 251 Ga. 598, 600 (3) (308 SE2d 182) (1983). However, in response to Cochran’s complaints about his attorneys, the trial judge stated on the record: “I know in court they’re doing everything that an attorney could. In fact, they’ve done more than most attorneys do.” Additionally, immediately after sentencing, the judge asked Cochran whether he was satisfied with the work of his attorneys; he replied that he was. Under this set of facts, the trial court ruled, albeit briefly, that Cochran was provided effective assistance of counsel. This determination is supported by the evidence. There was no error. Weldon v. Hawkins, 251 Ga. 188 (304 SE2d 66) (1983).

3. Cochran alleges that the trial court erred in denying his motion for funds to hire an investigator. The trial court heard argument on the motion and reserved consideration until the defense showed a necessity for such an investigation. No further request was made. There was no abuse of discretion. Wilson v. State, 250 Ga. 630, 634 (2) (c) (300 SE2d 640) (1983).

4. Cochran alleges that the state impermissibly placed his character in issue through evidence of prior acts and prior crimes. He objects to testimony of the smuggling of liquor into prison, and to the overruling of his motion in limine to exclude evidence of the crime of escape. The state correctly asserts that testimony concerning the confiscation of liquor, the change in Cochran’s work detail as a punishment, and his subsequent escape are relevant to show a motive for the crime. There was no error. Ingram v. State, 253 Ga. 622, 632-634 (6) (323 SE2d 801) (1984).

5. Cochran contends that the trial court should have granted his motion for a change of venue. In his motion he referred to six newspaper articles published in September and October of 1982, nearly a year before trial. He presented testimony that “nearly everybody” knew of the crime. He also shows that 14 of the 61 veniremen were excused, although of these, only five, or 8% of the venire, were excused for prejudice. The trial court’s finding that a fair trial was possible in the county in which the crime was committed has not been shown to be manifestly erroneous. Devier v. State, 253 Ga. 604, 609 (4) (323 SE2d 150) (1984).

6. Cochran contends that alleged juror misconduct warrants a new trial. A potential juror was observed speaking to the state’s chief witness. After voir dire, the court questioned this venireman while he was under the juror’s oath. The court determined that he had not discussed the case with the witness, nor was there any evidence that he had repeated the conversation to any other potential juror. The venireman was subsequently excused by the district attorney during jury selection, and did not participate in Cochran’s conviction. There was no error. Hardy v. State, 242 Ga. 702, 704 (3) (251 SE2d 289) (1978).

7. Cochran alleges that the trial court’s preliminary instructions to the jury during voir dire misled them as to the state’s burden of proof. The court instructed the jury properly at the close of the trial, however. Any error was corrected satisfactorily. Castell v. State, 250 Ga. 776, 784 (5) (a) (301 SE2d 234) (1983).

8. Cochran alleges that the trial court erred in rejecting his challenge to the array of the grand jury. He presents the following evidence: According to the 1980 census, black citizens comprised 48.39% of the population of Mitchell County, but only 36.58% of the grand jury list, a disparity of 11.8 percentage points. Women made up 52% of the population, but only 47.36% of the grand jury list, a disparity of 4.6 percentage points. He contends that he was denied a fair trial because of this disparity, and the even greater disparity within the grand jury that indicted him, which contained but two black grand jurors.

While Cochran would have us compare the disparity in percentile points between the percentage of blacks and women in the total population and the percentage on the grand jury list, the more significant information may be derived from a comparison of grand jury composition and the age-eligible population (as persons under 18 years of age are ineligible for jury service, OCGA § 15-12-60) in determining whether there is a fairly representative cross-section of the community. OCGA § 15-12-40 (a) (1); Devier v. State, 250 Ga. 652 (300 SE2d 490) (1983). See also West v. State, 252 Ga. 156, 157, n. 1 (313 SE2d 67) (1984). Pursuant to OCGA § 24-1-4, we may take judicial notice of the 1980 Census of Population, General Population Characteristics (Georgia) for Mitchell County, Georgia, as follows: blacks constituted 42.56% of the age-qualified population and women constituted 54%. The disparity between these figures and the percentage of blacks on the grand jury list is 6 percentage points, rather than 11.8 percentage points; the disparity as to women is 7.1 percentage points, rather than 4.6 percentage points. We do not find this underrepresentation of blacks or of women so significant a disparity as requires reversal of the conviction. See Parks v. State, 254 Ga. 403, 408 (6) (a) (330 SE2d ) (1985).

9. Cochran contends that the grand jury was tainted by the inclusion of an ineligible grand juror, who was over 65 years of age. Under the code section applicable at the time of Cochran’s trial, one who was over 65 years of age was entitled to an exemption from jury duty. The privilege of exemption belongs to the juror and does not extend to a litigant. Ingram v. State, supra at 625. There was no error.

10. Cochran’s contention as to the underrepresentation of young persons on the grand jury list is without merit. Spivey v. State, 253 Ga. 187, 198 (7) (a) (319 SE2d 420) (1984); Payne v. State, 233 Ga. 294, 308-9 (210 SE2d 775) (1974). But see Parks v. State, supra, 254 Ga. at 409.

Judgment affirmed.

All the Justices concur, except Gregory and Weltner, JJ., who concur specially, and Hunt, J., not participating.

1 Cochran was convicted August 11,1983. His notice of appeal was filed August 23,1983, and was docketed in this court on January 12, 1984. He was granted an out-of-time appeal May 22, 1984. The out-of-time appeal was filed in superior court on October 22, 1984, and in this court on October 23, 1985. The appeal was docketed November 7, 1985, and argued on February 11, 1986.