Thomas v. State

266 S.E.2d 499, 245 Ga. 688, 1980 Ga. LEXIS 895
CourtSupreme Court of Georgia
DecidedApril 23, 1980
Docket36046
StatusPublished
Cited by52 cases

This text of 266 S.E.2d 499 (Thomas 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
Thomas v. State, 266 S.E.2d 499, 245 Ga. 688, 1980 Ga. LEXIS 895 (Ga. 1980).

Opinions

Marshall, Justice.

Donald Wayne Thomas, the appellant, was convicted in Fulton County Superior Court of the April 19, 1979, murder of Dewey Baugus, a nine-year-old child. He was sentenced to death, and this is his appeal.

From the evidence introduced at trial, the jury was authorized to find the following facts:

On April 11, 1979, Dewey Baugus and a playmate left his mother’s home on Primrose Circle in Atlanta to go [689]*689to a ball game. After the game, the two children separated to return to their respective homes in the early evening darkness. This was the last time the victim was seen alive.

The appellant, a 19-year-old male, lived at a rooming house on Primrose Circle. Linda Cook, the appellant’s girlfriend, had stayed with him for approximately a week during the time in question. The appellant had kept her locked in the room when he was not there, with a bucket he provided as her only toilet facility. Linda Cook testified that when the appellant returned to the room on Friday, April 13, she noticed that he had a lot of blood on the front of his pants. The appellant took her to the railroad tracks behind Primrose Circle and showed her the body of the victim, lying face down, and told her that he had killed the child by beating him with a stick and choking him. In her presence, the appellant rolled the body over. Telling her that he had to make sure that he was dead, the appellant then jumped on the neck of the victim. Thereafter, he threw the victim’s body in the bushes. Thereafter, they returned to the room, where the appellant removed his pants and hid them behind the house. That same day, the appellant, again in Linda Cook’s presence, admitted the murder to his stepfather, Enzor Lowe. However, his stepfather testified that he did not believe him, because the appellant was grinning about it.

On April 19,1979, Calvin Banks discovered the body of the victim when he took a shortcut on his way back from applying for a job at the Dolly Madison Cake Co. When the body was discovered, it was partially decomposed, and the pants the victim was wearing were pulled down to mid-thigh level.

Sometime later, after she had stopped staying with the appellant, Linda Cook contacted the authorities and related what had occurred. She was charged with concealing a death and placed in juvenile detention. She pointed out to the authorities where the appellant had discarded his pants, and they were recovered. Crime Laboratory tests confirmed that the blood on the appellant’s pants was human, International Type B. The blood type of the victim could not be established due to decay.

Autopsy results showed the cause of death as [690]*690asphyxiation, and that numerous post- and ante-mortem bruises were on the body.

1. In enumerations of error 1, 2 and 10, the appellant urges the general grounds. He argues that the evidence does not support the verdict in that the evidence was circumstantial and did not exclude every reasonable hypothesis save the guilt of the accused. However, the jury was fully charged on circumstantial evidence and the reasonable-hypothesis rule pursuant to Code § 38-109. We do not find from the evidence, or from the lack of evidence, an hypothesis pointing to the innocence of the accused. Douthit v. State, 239 Ga. 81 (1) (235 SE2d 493) (1977). See Hawes v. State, 240 Ga. 327 (3) (240 SE2d 833) (1977); Corn v. State, 240 Ga. 130 (5) (240 SE2d 694) (1977). The credibility of witnesses is a matter left to the jury. Code § 38-1805; Turner v. State, 235 Ga. 826 (1) (221 SE2d 590) (1976).

We find that the evidence, viewed in the light most favorable to the verdict, supports a finding by a rational trier of fact of the essential elements of the crime of murder beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Patrick v. State, 245 Ga. 417 (1980); Fleming v. State, 236 Ga. 434 (224 SE2d 15) (1976).

2. The appellant contends in his third and eighth enumerations of error that the trial court erred in excusing jurors who were conscientiously opposed to the death penalty and in overruling the appellant’s motion to "strike or quash” the Georgia statute providing for death-qualification voir dire questions (Code Ann. § 59-806 (4)). We do not agree. It is clear from the voir dire examination that the jurors excused were "irrevocably committed before the trial began to vote against the death penalty regardless of the facts and circumstances that might emerge in the course of the proceedings.” Witherspoon v. Illinois, 391 U.S. 510 (88 SC 1770, 20 LE2d 776) (1968); Davis v. Georgia, 429 U.S. 122 (97 SC 339, 50 LE2d 339) (1977); Corn v. State, 240 Ga. 130, supra; Ward v. State, 239 Ga. 205 (236 SE2d 365) (1977).

The appellant’s assertion that the "death qualification voir dire question” (Code Ann. § 59-806 (4)) violates the defendant’s right to an impartial jury in that [691]*691it excludes an identifiable segment of the community, has been raised numerous times before this court, and in each instance has been rejected. Collins v. State, 243 Ga. 291 (253 SE2d 729) (1979); Corn v. State, 240 Ga. 130, supra; Douthit v. State, 239 Ga. 81, supra; Porter v. State, 237 Ga. 580 (229 SE2d 384) (1976).

The appellant’s contention that Code Ann. § 59-806 (4) is unconstitutional in that it does not meet the constitutional standards of specificity knd clarity in determining the view of the potential juror toward the death penalty, is clearly without merit, as the statute must be construed in light of the applicable case law. Witherspoon v. Illinois, supra. See Gregg v. Georgia, 428 U.S. 153 (96 SC 2909, 49 LE2d 859) (1976).

3. The constitutionality of the Georgia death penalty statute has been upheld by the Supreme Court of the United States and by this court each time it has been attacked on constitutional grounds. Collins v. State, 243 Ga. 291, supra, and cits. The appellant’s ninth enumeration of error is without merit.

4. The appellant made a motion for the court in camera to inform witness Enzor Lowe of his privilege not to testify as to matters which may incriminate himself or which shall tend to bring infamy or disgrace or public contempt upon himself or any member of his family. Code § 38-1205(a). The appellant argues that, since the witness was the stepfather of the appellant, the stepfather’s testimony as to the murder would bring infamy upon a member of his household and the court should have instructed him in this regard. However, this enumeration is without merit for two reasons. First, the privilege against self-incrimination is that of the person under examination as a witness, and is intended for his protection only; the defendant on trial has no standing to raise the issue. Lively v. State, 237 Ga. 35 (226 SE2d 581) (1976) and cits. Second, the privilege would not apply to the testimony of the witness in this case, in that a witness cannot refuse to testify relative to material matters concerning a crime committed by a member of his family on the basis that his answer would bring disgrace, infamy or public contempt upon him or his family. Brooks v. State, 233 Ga.

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Bluebook (online)
266 S.E.2d 499, 245 Ga. 688, 1980 Ga. LEXIS 895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-state-ga-1980.