Lynd v. State

414 S.E.2d 5, 262 Ga. 58, 1992 Ga. LEXIS 179
CourtSupreme Court of Georgia
DecidedFebruary 27, 1992
DocketS91P1120
StatusPublished
Cited by74 cases

This text of 414 S.E.2d 5 (Lynd v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lynd v. State, 414 S.E.2d 5, 262 Ga. 58, 1992 Ga. LEXIS 179 (Ga. 1992).

Opinions

Hunt, Justice.

William Earl Lynd was convicted in Berrien County of kidnapping with bodily injury and murder and sentenced to death. He appeals. We affirm.1

1. Lynd and the victim lived together in her home in Berrien County. Following an argument three days before Christmas of 1988, Lynd shot the victim in the face and went outside to smoke a cigarette. The victim regained consciousness and followed him outside. Lynd shot her a second time, put her into the trunk of her car and drove away. Hearing the victim “thumping around” in the trunk, Lynd got out, opened the trunk and shot the victim a third time, killing her.

Lynd returned home, cleaned up the blood, and drove to Tift County, where he buried the victim in a shallow grave. He then drove [59]*59to Ohio. Lynd shot and killed another woman in Ohio and then sold the gun he used to kill her and the victim in this case. Eventually, Lynd returned to Georgia to surrender to Berrien County authorities. The murder weapon was recovered and identified by ballistics examination, and the victim’s body was located based on information provided by Lynd.

The evidence supports the conviction. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The denial of sequestered voir dire was not an abuse of discretion. Sanborn v. State, 251 Ga. 169 (3) (304 SE2d 377) (1983). There was no denial of individual voir dire. State v. Hutter, 251 Ga. 615 (307 SE2d 910) (1983).

3. The record supports the trial court’s conclusion that the defendant could receive a fair trial in Berrien County and that a fair and impartial jury was selected in this case. There was no error in the denial of the defendant’s motion for change of venue. Isaacs v. State, 259 Ga. 717 (15) (386 SE2d 316) (1989).

4. “A trial court retains the discretion to determine how late to hold court before recessing for the evening.” Spencer v. State, 260 Ga. 640, 647 (9) (398 SE2d 179) (1990). Lynd has not shown that the trial court maintained an “oppressive” trial schedule which left defense counsel insufficient time to review each day’s proceedings or to prepare for the next.

5. The trial court did not err by excusing for cause a prospective juror who testified he was opposed to the death penalty and could not vote for a death sentence in any case regardless of the evidence. Alderman v. State, 254 Ga. 206 (4) (327 SE2d 168) (1985).

6. Nor did the court err by refusing to disqualify another prospective juror for pro-death penalty bias. Although the juror was somewhat confused by the initial questions about the death sentence, the juror ultimately testified that he could consider and possibly vote for a life sentence after hearing all the evidence, and that he would “not just automatically” vote for a death sentence in the event the defendant was convicted. The trial court was authorized to conclude that the juror’s views would not “ ‘ “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” ’ [Cits.]” Alderman v. State, supra. Compare Pope v. State, 256 Ga. 195 (7 e) (345 SE2d 831) (1986).

7. In the final enumeration of error of his original brief, Lynd contends the evidence fails to support the jury’s findings of statutory aggravating circumstances. The jury found:

(1) The offense of murder was committed while the offender was engaged in the commission of another capital felony, to wit: kidnapping with bodily injury [see OCGA § 17-10-30 (b) [60]*60(2)].
(2) The offense of murder was committed while the offender was engaged in the commission of an aggravated battery. [See ibid.]

Lynd argues he did not commit the offense of kidnapping with bodily injury because the victim was unconscious after the second shot. However, even if we were to accept the untenable assumption the victim could not have been taken “against her will,” see OCGA § 16-5-40 (a) (defining kidnapping), if she were unconscious the entire time, see Taylor v. State, 194 Ga. App. 871 (2) (392 SE2d 57) (1990), the evidence is persuasive that she regained consciousness and vigorously protested her confinement in the trunk of her car before Lynd shot her a third time and killed her.

As to the aggravated battery finding, the evidence shows that Lynd seriously disfigured the victim with his first shot beneath her left eye. See OCGA § 16-5-24 (defining aggravated battery).

The evidence supports the jury’s findings of statutory aggravating circumstances. OCGA § 17-10-35 (c) (2).

8. Over two months after this case was argued orally to this court, Lynd filed a “supplemental brief” raising and arguing eight additional enumerations of error not raised or argued previously. The Attorney General has moved to exclude these supplemental enumerations as untimely, relying on Cohran v. Carlin, 254 Ga. 580 (1 a) (331 SE2d 523) (1985), which holds that “[arguments asserted for the first time in a post-oral argument brief are untimely, and will not be considered.” Id. at 584.

Our Georgia Unified Appeal Procedure states:

The Supreme Court shall review each of the assertions of error timely raised by the defendant during the proceedings in the trial court regardless of whether or not an assertion of error was presented to the trial court by motion for new trial, and regardless of whether error is enumerated in the Supreme Court. However, except in cases of plain error, assertions of error not raised on appeal shall be waived.”

[UAP, § IV (B) (2).]

If assertions of error “not raised” are waived, it follows that assertions of error not timely raised are also waived. Because there may have been some reasonable question about the applicability of the Cohran v. Carlin rule to death penalty cases, we will not apply it to this case, and we therefore deny the Attorney General’s motion to exclude. See Ford v. State, 257 Ga. 661, 665 (362 SE2d 764) (1987) (Gregory, J., dissenting). In the future, however, except in cases of [61]*61“plain error,”2 enumerations of error not timely raised and/or argued shall be waived.

9. Initially, an attorney was appointed for the defendant. Soon thereafter, the defendant retained an attorney to represent him. At a hearing on March 24, 1989, the trial court questioned the two attorneys about their experience and qualifications. The retained attorney testified that he had graduated from law school in 1986 and had been admitted to the Georgia bar in September of 1987. He had maintained a law office and a full-time practice in the year and a-half since being admitted to the bar. He testified that although he had handled “probably” 25 criminal cases, he had actually tried only one felony case before a jury. This was his first death-penalty case.

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Cite This Page — Counsel Stack

Bluebook (online)
414 S.E.2d 5, 262 Ga. 58, 1992 Ga. LEXIS 179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lynd-v-state-ga-1992.