Tharpe v. State

416 S.E.2d 78, 262 Ga. 110, 92 Fulton County D. Rep. 11, 1992 Ga. LEXIS 228
CourtSupreme Court of Georgia
DecidedMarch 17, 1992
DocketS91P1642
StatusPublished
Cited by88 cases

This text of 416 S.E.2d 78 (Tharpe 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
Tharpe v. State, 416 S.E.2d 78, 262 Ga. 110, 92 Fulton County D. Rep. 11, 1992 Ga. LEXIS 228 (Ga. 1992).

Opinions

Weltner, Presiding Justice.

Keith Leroy Tharpe was convicted by a jury in Jones County of malice murder and two counts of kidnapping with bodily injury. Finding the presence of three statutory aggravating circumstances, see OCGA § 17-10-30, the jury sentenced Tharpe to death for the murder. He appeals. We affirm.1

Tharpe’s wife left him on August 28, 1990 and moved in with her mother. Following various threats of violence made by the defendant to and about his wife and her family, a peace warrant was taken out against him, and the defendant was ordered not to have any contact with his wife or her family. Notwithstanding this order, Tharpe called his wife on September 24, 1990 and argued with her, saying if she wanted to “play dirty,” he would show her “what dirty was.”

On the morning of the 25th, his wife and her sister-in-law met Tharpe as they drove to work. He used his vehicle to block theirs and force them to stop. He got out of his vehicle, armed with a shotgun and apparently under the influence of drugs, and ordered them out of their vehicle. After telling the sister-in-law he was going to “f— you up,” he took her to the rear of his vehicle, where he shot her. He rolled her into a ditch, reloaded, and shot her again, killing her.2

Tharpe then drove away with his wife. After unsuccessfully trying to rent a motel room, Tharpe parked by the side of the road and [111]*111raped his wife. Afterward, he drove to Macon, where his wife was to obtain money from her credit union. Instead she called the police.

1. The evidence supports the convictions. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Haynes v. State, 159 Ga. App. 34 (1) (283 SE2d 25) (1981).

2. There is no merit to any of Tharpe’s constitutional attacks on the Unified Appeal Procedure. See, e.g., Meders v. State, 260 Ga. 49 (9) (389 SE2d 320) (1990).

3. Tharpe was not entitled to review the prosecution’s jury records. Wansley v. State, 256 Ga. 624 (2) (352 SE2d 368) (1987).

4. During the trial, a hearing was conducted outside the presence of the jury concerning possible communications between a jailer and some of the jurors.

(a) Tharpe testified first, soon drawing a hearsay objection. The court implicitly overruled the objection, stating that although the hearsay might have no probative value, it was a “foundation for what may come later on.” Later, Tharpe testified that the jailer had questioned him about the crime. When his attorney asked him whether he had been advised of his right to remain silent, the state objected that “this was a motion for mistrial based on misconduct with the jury,” not any Miranda issue. The court did not rule on this objection because Tharpe’s attorney withdrew the question, stating he would “just abandon this line for right now.”

Tharpe now argues that “the trial court twice cut off the defense questioning of [Tharpe], unconstitutionally chilling the exercise of his right to testify on his own behalf.” The court at no time cut off defense questioning. There was no error.

(b) Tharpe next presented testimony of two inmates who stated that they heard the jailer say it was his job to “pick up some of the jurors that support the death penalty.” The state called the jailer to the stand. He denied having any contact with any of the jurors. He testified that he did not “pick them up” or “haul them around,” and had not told any of the inmates that he had.

The trial court found that no contact had occurred and denied Tharpe’s motion for mistrial. The court’s finding was not, as Tharpe contends, contrary to the evidence, and the denial of a mistrial was not erroneous.

5. Tharpe urges error in the denial of his motion for change of venue under Jones v. State, 261 Ga. 665 (409 SE2d 642) (1991). Less than 12 percent of the venire was excused because of the effect of pretrial publicity. No “actual prejudice” has been shown, Lee v. State, 258 Ga. 82 (9) (365 SE2d 99) (1988) and, under the rules applicable to this trial, there was no error.

6. Tharpe contends the prosecutor discriminated racially in the exercise of his peremptory challenges. See Batson v. Kentucky, 476 [112]*112U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). Of the qualified venire of 42 jurors from which the jury was selected, 9, or 21 percent were black. The prosecutor used nine of his ten allotted peremptories, striking five blacks and four whites. Tharpe used 17 of his 20 allotted peremptories, striking 16 whites and 1 black. Two of the twelve members of the jury (16.67 percent) were black. (One of the two alternate jurors also was black.)

Tharpe contends that these numbers, conjoined with the prosecutor’s “history of racially discriminatory jury practices” as “documented” in Horton v. Zant, 941 F2d 1449 (11th Cir. 1991), established a prima facie case of racial discrimination. We find that the prosecutor successfully has rebutted that charge.

The prosecutor struck four whites and three of the five blacks because they were opposed conscientiously to the death penalty. As we have held, reasons falling short of justifying an excusal for cause might well justify the exercise of a peremptory strike. Hall v. State, 261 Ga. 778, 780 (2 a) (415 SE2d 158) (1991). A prospective juror’s conscientious aversion to the imposition of the death sentence is an adequate reason to justify a peremptory strike in a death-penalty case. Foster v. State, 258 Ga. 736 (2) (374 SE2d 188) (1988).

The state struck one of the two remaining black prospective jurors because she had served recently on a jury in another murder case, and had voted to acquit that defendant, who was represented by the defense attorney involved in this case. This, too, was a justifiable reason for striking her.

The remaining prospective juror was struck for several reasons. One was for stating that she had attended three years of elementary school, four years of junior high school and twelve years of high school. Her responses on the questionnaire as well as her demeanor during the voir dire examination showed “a great deal of immaturity.” Moreover, “she kept making close eye contact with the defendant all during the questioning.”

It can be argued that explanations by the state as to the striking of black jurors — who allegedly make minor mistakes on the jury questionnaire; or show signs of immaturity; or demonstrate certain aspects of eye contact — reflect certain stereotypical attitudes as to particular groups. Any such explanations should be given additional scrutiny by the trial court before they are found acceptable. However, the trial court determined that the prosecutor had presented legitimate reasons for his challenges. We do not find this determination clearly erroneous. Hightower v. State, 259 Ga. 770 (11) (386 SE2d 509) (1989).

7. Previous difficulties between Tharpe and his family were admitted properly to show Tharpe’s bent of mind toward them. Wright v. State, 184 Ga. 62 (8) (190 SE 663) (1937). These difficulties were [113]*113connected logically to the crime on trial. Hall v. State, supra, 261 Ga. at 781 (6).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

WILLIAMS v. HARVEY
858 S.E.2d 479 (Supreme Court of Georgia, 2021)
Keith Tharpe v. Warden
Eleventh Circuit, 2018
Tharpe v. Warden
898 F.3d 1342 (Eleventh Circuit, 2018)
Downey v. State
783 S.E.2d 622 (Supreme Court of Georgia, 2016)
von Thomas v. State
748 S.E.2d 446 (Supreme Court of Georgia, 2013)
Ledford v. State
709 S.E.2d 239 (Supreme Court of Georgia, 2011)
Loyd v. State
705 S.E.2d 616 (Supreme Court of Georgia, 2011)
Dalton v. State
647 S.E.2d 580 (Supreme Court of Georgia, 2007)
Perkinson v. State
610 S.E.2d 533 (Supreme Court of Georgia, 2005)
Riley v. State
604 S.E.2d 488 (Supreme Court of Georgia, 2004)
Sallie v. State
578 S.E.2d 444 (Supreme Court of Georgia, 2003)
Mullins v. Thompson
553 S.E.2d 154 (Supreme Court of Georgia, 2001)
King v. State
539 S.E.2d 783 (Supreme Court of Georgia, 2000)
Tharpe v. Head
533 S.E.2d 368 (Supreme Court of Georgia, 2000)
Gissendaner v. State
532 S.E.2d 677 (Supreme Court of Georgia, 2000)
Morrow v. State
532 S.E.2d 78 (Supreme Court of Georgia, 2000)
Pace v. State
524 S.E.2d 490 (Supreme Court of Georgia, 1999)
Drane v. State
523 S.E.2d 301 (Supreme Court of Georgia, 1999)
Sears v. State
514 S.E.2d 426 (Supreme Court of Georgia, 1999)
Mullins v. State
511 S.E.2d 165 (Supreme Court of Georgia, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
416 S.E.2d 78, 262 Ga. 110, 92 Fulton County D. Rep. 11, 1992 Ga. LEXIS 228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tharpe-v-state-ga-1992.