Executed June 17, 2014 11:56 p.m. by Lethal Injection in Georgia
21st murderer executed in U.S. in 2014
1380th murderer executed in U.S. since 1976
1st murderer executed in Georgia in 2014
54th murderer executed in Georgia since 1976
(Race/Sex/Age at Murder-Execution) |
Birth |
(Race/Sex/Age at Murder) |
Murder |
Murder |
to Murderer |
Sentence |
||||
(21) |
Marcus A. Wellons B / M / 44 - 58 |
India Roberts B / F / 15 |
Citations:
Final/Special Meal:
Wellons declined to request a special last meal and instead was offered the institution’s meal tray, consisting of shepherd's pie, mashed potatoes, red beans, cabbage relish salad, corn bread, sugar cookies and fruit punch.
Final Words:
Wellons apologized to the family of his victim and said: "I ask and hope that you will find peace with my death." His final words were: "I'm going home to be with Jesus."
Internet Sources:
"Marcus Wellons executed," by Rhonda Cook and Bill Rankin. (June 17, 2014)
Georgia inmate Marcus Wellons was put to death late Tuesday for the 1989 rape and murder of a Cobb County teenager in the state’s first execution where the source of its lethal-injection drug was cloaked in secrecy.
Wellons’ execution received heightened scrutiny because it was the first one in the country to be carried out since a botched execution occurred in Oklahoma seven weeks ago. That incident ratcheted up the debate over the lethal-injection process and the use of made-to-order drugs produced by undisclosed compounding pharmacies. Even a federal appeals court judge who declined to halt the execution Tuesday cited what happened in Oklahoma as a reason why Georgia should not have a lethal-injection secrecy law.
Wellons, 58, was pronounced dead at 11:56 p.m. after his final appeals were denied by the U.S. Supreme Court. Wellons apologized to the family of India Roberts the teenager he was convicted of killing and said, “I ask and hope they will find peace in my death.” He thanked his family and friends for their love and prayers and added, “I’m going home to be with Jesus.” Wellons hummed as prayer was being said and as the warden read the death warrant. Otherwise there was little movement visible as he lay on the gurney. He was seen to exhale a couple of times before his body seemed to quiver and then there was no more movement. Three minutes before Wellons was declared dead a nurse standing to his left was seen asking one of the corrections officers if he was ok, just before the officer fainted.
In 1993, a Cobb County jury sentenced Wellons to death for the rape and murder of 15-year-old India Roberts in the Vinings townhouse of Wellons’ girlfriend. Wellons was supposed to be moving out of the townhouse when he abducted India as she was walking to her school bus stop the morning of Aug. 31, 1989. She was believed to have been strangled with a telephone cord. Wellons’ trial became a focus of national attention in 2010 when the U.S. Supreme Court ordered a hearing because one of Wellons’ jurors gave a penis-shaped chocolate to the judge and another juror gave breast-shaped chocolates to the courthouse bailiff shortly after the verdict. After a review, the federal appeals court said that while the gifts were “tasteless and inappropriate,” Wellons did not deserve a new trial because they played no part in the jury’s deliberations.
This week, Wellons’ case was in the spotlight again because he was to become the first Georgia inmate put to death with a compounded sedative made specifically for his execution. A state law passed last year shields the public — and even the courts — from knowing the identity of the compounding pharmacy, the qualifications of the execution team and details about the lethal-injection drug, pentobarbital. Wellons’ execution was set just days after the state Supreme Court rejected a challenge to the secrecy law in a 5-2 decision issued last month. Wellons’ attorneys had argued that the recently botched execution in Oklahoma and the lack of oversight of compounding pharmacies presented real risks that Wellons could suffer significant pain during his execution.
On April 29, condemned Oklahoma inmate Clayton Derrell Lockett writhed, gasped and struggled to lift his head after he had been declared unconscious on the lethal-injection gurney. Prison officials tried to stop the execution, but Lockett died of a massive heart attack. A preliminary report released last week concluded that the IV line that was supposed to deliver the drugs had been improperly placed. The doctor who did the autopsy has asked for additional information to complete his report but was denied because of Oklahoma’s secrecy law regarding lethal injections.
Georgia has argued that it needs to protect the identities of lethal-injection drug providers to ensure the Department of Corrections can carry out executions. Public pressure has led pharmaceutical companies worldwide to refuse to sell such drugs to states for executions. Georgia initially used a three-drug cocktail but it had to change its protocols to using only one — a massive dose of pentobarbital, a sedative also used to euthanize animals. The state then had to make another change, turning to a compounding pharmacy, when it was still unable to obtain the drug.
On Tuesday, a three-judge panel of the federal appeals court in Atlanta unanimously declined to stop Wellons’ execution. The court said Wellons failed to clear a legal threshold by showing that the lethal-injection protocol to be used in his execution created a “demonstrated risk of severe pain that is substantial when compared to the known alternatives.” But Judge Charles Wilson, writing separately, expressed concern over the state’s secrecy law. How could Wellons, the judge asked, show that he faced a risk of needless pain and suffering “when the state has passed a law prohibiting him from learning about the compound it plans to use to execute him?”
Wilson questioned the need to keep information about the lethal-injection process concealed from the public and the courts, “especially given the recent much-publicized botched execution in Oklahoma.” “Unless judges have information about the specific nature of a method of execution,” Wilson wrote, “we cannot fulfill our constitutional role of determining whether a state’s method of execution violates the Eighth Amendment’s prohibition against cruel and unusual punishment before it becomes too late.”
"I'm going home to be with Jesus: Last words of killer who raped and murdered 15-year-old as he becomes the first US execution since botched lethal injection; Georgia inmate Marcus Wellons the first execution since April," by Snejana Farberov. (AP June 18, 2014)
A Georgia inmate who raped and murdered a 15-year-old girl in 1989 became the first person on death row to be executed since the botched lethal injection of Oklahoma killer Clayton Lockett in late April. Marcus Wellons, 59, received a lethal injection late Tuesday in Jackson, Georgia, after last-minute appeals to the U.S. Supreme Court were denied. A prison guard fainting shortly before he was pronounced dead at 11:56 p.m, more than an hour after the procedure began.
The Atlanta Journal-Constitution, which witnessed the execution, said Mr Wellons apologized for the 1989 rape and murder of his 15-year-old neighbor India Roberts in suburban Atlanta. Wellons reportedly apologized to the family of his victim and said: 'I ask and hope that you will find peace with my death'. His final words were: 'I'm going home to be with Jesus.'
The Georgia State Board of Pardons and Paroles on Monday denied clemency to Wellons, leaving his fate in the hands of the courts. Only five minutes after Wellons was pronounced dead, Missouri authorities commenced the lethal injection of John E. Winfield at 12.01am. He was pronounced dead at 12.10am. Winfield, 46, was put to death for shooting three St. Louis County women in the head in 1996, killing two.
Wellons was served Shepherd's Pie, mashed potatoes and red beans as a final meal although it was unclear if he ate it, according to Death Penalty Info. The same feed also said that Winfield declined to have a final meal. The executions were the first since the botched April 29 in Oklahoma raised new concerns about lethal injection.
Nine executions nationwide have been stayed or postponed since late April, when Oklahoma prison officials halted the execution of Clayton Lockett after noting that the lethal injection drugs weren't being administered into his vein properly. Lockett's punishment was halted and he died of a heart attack several minutes later. 'I think after Clayton Lockett's execution everyone is going to be watching very closely,' Fordham University School of Law professor Deborah Denno, a death penalty expert, said of this week's executions. 'The scrutiny is going to be even closer.'
Marcus Wellons' execution in Georgia was scheduled for 7pm, but was delayed pending the outcome of a U.S. Supreme Court appeal. Just before 11pm Eastern Time, the decision came down from the justices refusing to grant Wellons, 59, a last-minute reprieve, clearing the way for his execution an hour later. Georgia and Missouri both use the single drug pentobarbital, a sedative. Florida uses a three-drug combination of midazolam hydrochloride, vecuronium bromide and potassium chloride. Despite concerns about the drugs and how they are obtained, death penalty supporters say all three convicted killers are getting what they deserve.
Wellons was convicted in the 1989 rape and murder of India Roberts, his 15-year-old neighbor in suburban Atlanta. Soon after the girl left for school, another neighbor heard muffled screams from the apartment where Wellons was living. Later that day, a man told police he saw a man carrying what appeared to be a body in a sheet. Police found the girl's body in a wooded area. She had been strangled and raped.
Wellons was the first Georgia inmate executed since February 2013 and just the second since 2011.
Georgia Department of Corrections
Inmate: Marcus A. Wellons
Forsyth - The Cobb County Superior Court has ordered the execution of convicted murderer Marcus A. Wellons. The court ordered the Georgia Department of Corrections to carry out the execution June 17-24. Commissioner Brian Owens has set the date for Tuesday, June 17, 2014 at the Georgia Diagnostic & Classification Prison in Jackson at 7pm.
Wellons was sentenced to death for the August 1989 murder of 15-year-old India Roberts in Cobb County. If executed, Wellons will be the 31st inmate put to death by lethal injection.
Media interested in a picture of Wellons and a listing of his crimes may go to the GDC website (www.dcor.state.ga.us).
The GDC has one of the largest prison systems in the U.S. and is responsible for supervising nearly 55,000 state prisoners and over 160,000 probationers. It is the largest law enforcement agency in the state with approximately 12,000 employees. For more information on the GDC call 478-992-5247 or visit http://www.dcor.state.ga.us.
Wellons Execution Media Advisory - Inmate’s Last Meal
Forsyth - Condemned murderer Marcus Wellons is scheduled for execution by lethal injection at 7:00 p.m. on Tuesday, June 17, 2014, at Georgia Diagnostic and Classification Prison in Jackson. Wellons was sentenced to death in the 1989 murder of 15 year-old India Roberts in Cobb County.
Media witnesses for the execution are: Kate Brumback, The Associated Press; Jon Gillooly, The Marietta Daily Journal; Rhonda Cook, The Atlanta Journal-Constitution; Scott Kimbler, WYAY-FM – News Radio 106.7; and Adam Ragusea, Georgia Public Broadcasting.
Wellons declined to request a special last meal and instead will be offered the institution’s meal tray, consisting of shepherd's pie, mashed potatoes, red beans, cabbage relish salad, corn bread, sugar cookies and fruit punch.
There have been 53 men executed in Georgia since the U.S. Supreme Court reinstated the death penalty in 1973. If executed, Wellons will be the 31st inmate put to death by lethal injection. There are presently 91 men and one woman on death row in Georgia.
The Georgia Diagnostic & Classification Prison is located 45 minutes south of Atlanta off Interstate 75. From Atlanta, take exit 201 (Ga. Hwy. 36), turn left over the bridge and go approximately ¼ mile. The entrance to the prison is on the left. Media covering the execution will be allowed into the prison’s media staging area beginning at 5:00 p.m. on Tuesday.
PRESS ADVISORY
Execution Date Set for Marcus A. Wellons, Convicted of Raping and Murdering Cobb County Girl
Georgia Attorney General Sam Olens offers the following information in the case against Marcus A. Wellons, who is currently scheduled to be executed on June 17, 2014, at 7:00 p.m. for the rape and murder of 15 year old India Roberts.
Scheduled Execution
On May 28, 2014, the Superior Court of Cobb County filed an order setting the seven-day window in which the execution of Marcus A. Wellons may occur to begin at noon, June 17, 2014 and ending seven days later at noon on June 24, 2014. Wellons has concluded his direct appeal proceedings and his state and federal habeas corpus proceedings.
Wellons’ Crime (1989)
The Georgia Supreme Court summarized the facts of the case as follows: Throughout the summer of 1989, Wellons lived with his girlfriend, Gail Saunders, in her townhouse apartment in Cobb County. Early that summer, Saunders' 14-year-old son Tony also lived in the apartment. Tony and the victim [India Roberts], who lived in a neighboring apartment with her mother, were friends. The victim occasionally visited Tony inside Saunders' apartment, where the two youths would watch television or play Nintendo. Wellons encouraged Tony to date the victim, remarking several times that she was a good looking girl. At some point during the summer, Tony moved to Chattanooga to live with his grandparents. The victim continued to spend time with Saunders occasionally. Saunders described herself as the victim's "play mommy" with whom the victim shared confidences.
Wellons and Saunders had become acquainted at the hospital where both worked, Wellons as a counselor in the psychiatric ward. Wellons moved in with Saunders on the pretense that he owned a home but was unable to occupy it, because an ex-girlfriend had moved there with her two young daughters, and he could not in good conscience turn them out. Over the summer Wellons proposed marriage to Saunders. However, by then Saunders had become wary of Wellons, who was increasingly hostile and abusive. She verbally accepted his proposal out of fear, all the while seeking an escape from her predicament.
On the evening of August 30, 1989, Saunders told Wellons that their relationship was over and that he must move out of her apartment. Wellons, who had recently been fired from his job, purchased a one-way ticket to Miami for a flight departing on the evening of August 31. Fearing to be alone with Wellons the night before his departure, Saunders told Wellons that she was going to Chattanooga to spend the night with her parents and enroll Tony in school. Instead, Saunders went to the home of a female friend.
That evening, Wellons began making desperate attempts to reach Saunders by telephone. He called her mother in Chattanooga repeatedly, only to be told that Saunders had not arrived. Wellons then called Saunders' friends, but no one knew or revealed her whereabouts. He called his mother and told her he suspected that Saunders was with another man. Wellons became increasingly angry and began drinking. He ransacked Saunders' apartment. He overturned potted plants and furniture, threw flour onto the floor, and poured bleach over all of Saunders' clothes, carefully sparing his and Tony's belongings in the process. After the apartment was demolished, Wellons began attempts to cover up his deed. He broke a window, from the inside out, cutting his hand in the process and smearing blood around the apartment. He stacked electronic equipment by the door. He then called 911 at approximately 3:00 a.m. on August 31 to report a burglary. When a police officer arrived, Wellons told the officer that he had come home to find the apartment ransacked, although no items were missing. Wellons explained to the officer that he cut his hand while struggling to uncover a stash of money to determine if it had been taken. Sometime after the officer left, Wellons wrote a racial slur across the wall in Saunders' bedroom.
Several hours later, at approximately 8:00 a.m., the victim said goodbye to her mother and walked from her apartment, past Saunders' door, toward the school bus stop. Shortly thereafter, Saunders' next door neighbor heard muffled screams from inside Saunders' apartment.
The apartment building was close to a wooded area, beyond which was a grocery store. At approximately 2:00 p.m., Wellons approached an acquaintance who was employed at the grocery store and asked to borrow a car. The acquaintance refused. Wellons told the acquaintance that when he (Wellons) returned home the previous night, he encountered two white men who were burglarizing the apartment. Wellons said that he successfully fought off the intruders but explained that he had in the process sustained the injuries to his hand.
About half an hour later, Theodore Cole, a retired military police officer, was driving near the wooded area behind the apartment complex. He spotted in the distance a person carrying what appeared to be a body wrapped in a sheet. He distinctly saw feet dangling from the bottom of the sheet. Cole drove on but then returned for a second look. He drove around in the parking lot of the apartment complex and saw nothing. As he was driving away, however, he saw a man in his rear view mirror walk along the road and throw a sheet into the woods. Cole drove directly to the grocery store, where he called 911. Police officers arrived quickly and began a search of the woods.
The police first discovered sheets, clothing and notebooks bearing Tony's name. Then, upon close inspection of a pile of tree branches near where he had seen the man carrying the sheet, Cole spotted the body of India Roberts. When the branches were removed, the officers discovered that the victim was completely unclothed, with cuts on one side of her face and ear and bruises on her neck.
During the search of the woods, Cole spotted a black man with a bundle under his arm near the apartment building and identified him as the man Cole had seen carrying the sheet. Cole and an officer chased the man, but as they approached the building, the man turned the corner and Cole and the officer heard a door shut. The officer learned from a passerby which apartment was occupied by a man fitting the description given by Cole. He knocked on Saunders' door and announced his presence, but there was no answer. He returned to join the other officers, who were investigating the scene in full force, with helicopters overhead.
Wellons, now trapped inside Saunders' apartment with residual evidence of his crime, gave up his attempt to dispose of the evidence in the woods. He first tried to clean the apartment and his clothes. He then abandoned that project, changed into swim wear, grabbed an old, yellowed newspaper and a cup of wine, partially barricaded and locked the door, and headed for the pool. On his way, Wellons caught sight of a police officer and stopped abruptly. The officer began questioning him. Initially evasive, Wellons did ultimately tell officers that the injuries to his hand, and new scratches to his face, were sustained during a scuffle with two men whom he had caught burglarizing Saunders' apartment.
While investigating the scene, officers had asked Cole whether either of two black males was the man Cole had seen carrying the sheet. Cole immediately ruled out each of the men. Then, while officers were questioning Wellons, one officer standing at a distance from the questioning asked Cole whether Wellons was the man he had seen. Cole said that although Wellons was wearing different clothing from the man he had seen carrying the sheet, and whom he had again seen near the complex, Cole was 75 to 80 percent certain that Wellons was the same man.
Later that day, officers searched Saunders' apartment. Inside, they found numerous items of evidence including the victim's notebooks and earrings. In Tony's room, they discovered the victim's panties. They also found blood on Tony's mattress and box springs. The mattress had been flipped so that the bloody portion was facing downward, and the bed had been remade.
The autopsy revealed that the victim died from manual strangulation, which in itself would have taken several minutes. The autopsy also showed that Wellons had attempted to strangle the victim with a ligature, possibly a telephone cord, and that he had bruised her and cut her face and ear with a sharp object. The evidence suggested that Wellons had dragged or otherwise forcibly moved the victim from the kitchen up the stairs to Tony's bedroom. Finally, the autopsy revealed a vaginal tear and copious amounts of what appeared to be seminal fluid within the victim's vagina. She had defensive wounds to her hands, and her blouse was stained with her own blood. Wellons v. State, 266 Ga. at 78-81 (1995).
The Trial (1990-1993)
Wellons was indicted in the Superior Court of Cobb County, Georgia on April 5, 1990, for the rape and murder of India Roberts. On June 5, 1993, a jury found Wellons guilty of rape and murder. The jury’s recommendation of a death sentence was returned on June 8, 1993.
The Direct Appeal (1995-1996)
The Georgia Supreme Court affirmed Wellons’ convictions and sentences on November 20, 1995. Wellons v. State, 266 Ga. 77 (1995). The United States Supreme Court denied Wellons’ request to appeal on October 7, 1996. Wellons v. Georgia, 519 U.S. 830 (1996).
State Habeas Corpus Proceedings (1997-2001)
Wellons, represented by Michael McIntyre and Carol Michel, filed a petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia on May 27, 1997. An evidentiary hearing was held on February 4, 1998. On July 20, 1998, the state habeas corpus court entered an order denying Wellons state habeas relief. The Georgia Supreme Court denied Wellons’ appeal. The United States Supreme Court denied Wellons’ request to appeal on October 29, 2001. Wellons v. Turpin, 534 U.S. 1001 (2001).
Federal Habeas Corpus Proceedings (2001-2007)
Wellons, represented by attorneys from the Federal Defender Program, Inc., filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Georgia on May 18, 2001. Wellons filed amendments to his petition for writ of habeas corpus on September 30, 2002 and March 19, 2004. On February 20, 2007, the district court denied Wellons federal habeas corpus relief.
11th Circuit Court of Appeals (2008-2009)
Wellons’ case was appealed to the Eleventh Circuit Court of Appeals in 2008. The case was orally argued before the Eleventh Circuit on July 11, 2008. On January 5, 2009, the Eleventh Circuit denied relief. Wellons v. Hall, 554 F.3d 923 (11th Cir. 2009).
United States Supreme Court (2009-2010)
Wellons requested to appeal to the United States Supreme Court on July 31, 2009. On January 19, 2010, the United States Supreme Court granted Wellons’ petition for writ of certiorari, vacated the judgment of the appellate court and remanded the case to the Eleventh Circuit for further consideration regarding a claim of alleged juror misconduct.
Remand Proceedings (2010-2013)
On April 19, 2010, the Eleventh Circuit remanded the case to the federal district court for further proceedings. Wellons was allowed to conduct extensive discovery on the claim of juror misconduct. Thereafter, the federal district court denied Wellons’ claim of juror misconduct on August 5, 2011. Wellons appealed to the Eleventh Circuit Court of Appeals in January of 2012. On September 19, 2012, the Eleventh Circuit denied relief. Wellons v. Warden, GDCP, 695 F.3d 1202 (11th Cir. 2012).
United States Supreme Court (2013)
Wellons requested to appeal to the United States Supreme Court, which was denied October 7, 2013. Wellons v. Humphrey, 134 S.Ct. 177 (2013).
"Man who raped, killed teen executed," by Kate Brumback. (Associated Press Wednesday, June 18, 2014 5:09am)
JACKSON, Ga. — In the first lethal injection since a botched execution in Oklahoma nearly two months ago, a Georgia death row inmate convicted in 1993 of raping and murdering his 15-year-old neighbor was executed just before midnight Tuesday. Marcus Wellons, 59, was executed by injection after several last-minute appeals were denied. He was pronounced dead shortly before midnight. The execution seemed to go smoothly with no noticeable complications . . . .
"Georgia inmate put to death, first since Oklahoma's botched execution," by David Beasley. (Wed Jun 18, 2014 1:25am EDT)
ATLANTA (Reuters) - A man convicted of the 1989 rape and strangulation of a teenage girl in Georgia was executed on Tuesday, the first U.S. inmate to be put to death since a botched lethal injection in Oklahoma in April renewed a national debate over capital punishment.
Marcus Wellons, 58, was executed by lethal injection at a prison inmate intake facility that also houses Georgia's death row and was pronounced dead at 11:56 pm local time, shortly after the U.S. Supreme Court denied his 11th-hour bid for a reprieve.
State corrections spokeswoman Gwendolyn Hogan said Wellons' execution went smoothly, without complications. She said he issued a statement of apology and recited a brief prayer before he was put to death.
Two more inmates were slated for execution elsewhere in the United States on Wednesday, one each in Missouri and Florida. On Tuesday, the Supreme Court cleared the way for the Missouri execution to proceed as scheduled, rejecting a request for a stay by convicted double-murderer John Winfield, 43.
Wellons was the first inmate put to death since condemned Oklahoma killer and rapist Clayton Lockett died on April 29, suffering an apparent heart attack about 30 minutes after prison officials there had halted his execution because of problems in administering the lethal injection.
The case reignited national scrutiny of the death penalty, and even the White House criticized the botched execution as failing to adhere to humane standards.
Wellons was convicted of killing his 15-year-old neighbor, India Roberts, whom he abducted as she was walking to a school bus stop.
In his appeal to the Supreme Court, Wellons' attorneys cited the Oklahoma case to bolster their argument that Georgia had not provided enough detail about the state's execution protocol. However, the high court denied three separate applications for a stay of execution without comment.
On Monday, the Georgia Board of Pardons and Paroles turned down the inmate's request for clemency. Wellons became the 21st person executed in the United States this year, according to Richard Dieter, executive director of the non-profit Death Penalty Information Center.
He also was the first inmate executed in Georgia since the state's Supreme Court upheld a new law in May shielding the identity and methods of compounding pharmacies that formulate lethal injection drugs.
Wellons and Gail had become acquainted at the hospital where both worked, Wellons as a counselor in the psychiatric ward. Wellons moved in with Gail on the pretense that he owned a home but was unable to occupy it, because an ex-girlfriend had moved there with her two young daughters, and he could not in good conscience turn them out. Over the summer Wellons proposed marriage to Gail. However, by then Gail had become wary of Wellons, who was increasingly hostile and abusive. She verbally accepted his proposal out of fear, all the while seeking an escape from her predicament.
On the evening of August 30, 1989, Gail told Wellons that their relationship was over and that he must move out of her apartment. Wellons, who had recently been fired from his job, purchased a one-way ticket to Miami for a flight departing on the evening of August 31. Fearing to be alone with Wellons the night before his departure, Gail told Wellons that she was going to Chattanooga to spend the night with her parents and enroll Tony in school. Instead, Gail went to the home of a female friend.
That evening, Wellons began making desperate attempts to reach Gail by telephone. He called her mother in Chattanooga repeatedly, only to be told that Gail had not arrived. Wellons then called Gail's friends, but no one knew or revealed her whereabouts. He called his mother and told her he suspected that Gail was with another man. Wellons became increasingly angry and began drinking. He ransacked Gail's apartment. He overturned potted plants and furniture, threw flour onto the floor, and poured bleach over all of her clothes, carefully sparing his and Tony's belongings in the process. After the apartment was demolished, Wellons began attempts to cover up his deed. He broke a window, from the inside out, cutting his hand in the process and smearing blood around the apartment. He stacked electronic equipment by the door. He then called 911 at approximately 3:00 a.m. on August 31 to report a burglary. When a police officer arrived, Wellons told the officer that he had come home to find the apartment ransacked, although no items were missing. Wellons explained to the officer that he cut his hand while struggling to uncover a stash of money to determine if it had been taken. Sometime after the officer left, Wellons wrote a racial slur across the wall in Gail's bedroom.
Several hours later, at approximately 8:00 a.m., India said goodbye to her mother and walked from her apartment, past Gail's door, toward the school bus stop. Shortly thereafter, Gail's next door neighbor heard muffled screams from inside Gail's apartment. The apartment building was close to a wooded area, beyond which was a grocery store. At approximately 2:00 p.m., Wellons approached an acquaintance who was employed at the grocery store and asked to borrow a car. The acquaintance refused. Wellons told the acquaintance that when he (Wellons) returned home the previous night, he encountered two white men who were burglarizing the apartment. Wellons said that he successfully fought off the intruders but explained that he had in the process sustained the injuries to his hand.
About half an hour later, Theodore Cole, a retired military police officer, was driving near the wooded area behind the apartment complex. He spotted in the distance a person carrying what appeared to be a body wrapped in a sheet. He distinctly saw feet dangling from the bottom of the sheet. Cole drove on but then returned for a second look. He drove around in the parking lot of the apartment complex and saw nothing. As he was driving away, however, he saw a man in his rear view mirror walk along the road and throw a sheet into the woods. Cole drove directly to the grocery store, where he called 911. Police officers arrived quickly and began a search of the woods. The police first discovered sheets, clothing and notebooks bearing Tony's name. Then, upon close inspection of a pile of tree branches near where he had seen the man carrying the sheet, Cole spotted the body of India Roberts. When the branches were removed, the officers discovered that the victim completely unclothed, with cuts on one side of her face and ear and bruises on her neck.
During the search of the woods, Cole spotted a black man with a bundle under his arm near the apartment building and identified him as the man Cole had seen carrying the sheet. Cole and an officer chased the man, but as they approached the building, the man turned the corner and Cole and the officer heard a door shut. The officer learned from a passerby which apartment was occupied by a man fitting the description given by Cole. He knocked on Gail's door and announced his presence, but there was no answer. He returned to join the other officers, who were investigating the scene in full force, with helicopters overhead. Wellons, now trapped inside Gail Saunders' apartment with residual evidence of his crime, gave up his attempt to dispose of the evidence in the woods. He first tried to clean the apartment and his clothes. He then abandoned that project, changed into swim wear, grabbed an old, yellowed newspaper and a cup of wine, partially barricaded and locked the door, and headed for the pool. On his way, Wellons caught sight of a police officer and stopped abruptly. The officer began questioning him. Initially evasive, Wellons did ultimately tell officers that the injuries to his hand, and new scratches to his face, were sustained during a scuffle with two men whom he had caught burglarizing Gail's apartment.
While investigating the scene, officers had asked Cole whether either of two black males was the man Cole had seen carrying the sheet. Cole immediately ruled out each of the men. Then, while officers were questioning Wellons, one officer standing at a distance from the questioning asked Cole whether Wellons was the man he had seen. Cole said that although Wellons was wearing different clothing from the man he had seen carrying the sheet, and whom he had again seen near the complex, Cole was 75 to 80 percent certain that Wellons was the same man.
Later that day, officers searched Gail's apartment. Inside, they found numerous items of evidence including India's notebooks and earrings. In Tony's room, they discovered India's panties. They also found blood on Tony's mattress and box springs. The mattress had been flipped so that the bloody portion was facing downward, and the bed had been remade. The autopsy revealed that India Roberts had died from manual strangulation, which in itself would have taken several minutes. The autopsy also showed that Wellons had attempted to strangle India with a ligature, possibly a telephone cord, and that he had bruised her and cut her face and ear with a sharp object. The evidence suggested that Wellons had dragged or otherwise forcibly moved India from the kitchen up the stairs to Tony's bedroom. Finally, the autopsy revealed a vaginal tear and copious amounts of what appeared to be seminal fluid within the victim's vagina. She had defensive wounds to her hands, and her blouse was stained with her own blood. Although a not guilty plea was entered for Wellons, he did not dispute his participation in the crimes. Instead, he urged the jury to return a verdict of not guilty by reason of insanity or guilty but mentally ill.
UPDATE: After several hours of delays while appeals were considered and rejected by the US Supreme Court, Marcus Wellons was executed by lethal injection. Wellons apologized for his crime. “I ask and hope that you will find peace with my death. I’m going home to be with Jesus.”
Georgians for Alternatives to the Death Penalty
Jack Edward Alderman, 45, was sentenced to death in June 1975 by a Chatham County jury for killing his wife, Barbara Jean Alderman, 27, on Sept. 21, 1974. His sentence was overturned on a federal appeal in 1980, but in April 1984, he was again sentenced to death. A co-defendant, John Arthur Brown, pleaded guilty for a life sentence and told investigators Mr. Alderman wanted to kill his wife for the insurance money. Mr. Brown was paroled in 1987. The state appeal concerning the fairness of Mr. Alderman's second trial has been pending in Mr. Alderman's case since December 1994.
Stanley Edward Allen, 42, was sentenced to death in Elbert County in July 1981. Mr. Allen and an accomplice, Woodrow Davis, 18, were convicted in the Jan. 5, 1981, break-in of the home of Susie C. Rucker, 72. Both men raped the woman, and she was strangled to death. Mr. Davis was sentenced to life in prison. Mr. Allen's death sentence was overturned by the Georgia Supreme Court in January 1982, but he was resentenced to death in October 1984. Mr. Allen had previously been sentenced to 10 years in prison for rape in 1975. Since September 1991, Mr. Allen has been awaiting a new sentencing trial on the issue of mental retardation.
James Douglas Andrews, 28, was sentenced to death on Oct. 16, 1992, in Muscogee County for rape, robbery and murder. Investigators say that on July 23, 1990, he broke into the home of Viola Hick, 78. His first appeal to the state Supreme Court hasn't been filed.
Joseph Martin Barnes, 27, was sentenced to death in Newton County in June 1993 for the robbery and shooting death of Prestiss Lamar Wells, 57, on Feb. 13, 1992. Although Mr. Barnes was sentenced to death four years ago, his first appeal hasn't been filed yet.
Norman Darnell Baxter, 45, was sentenced to death in Henry County in November 1983 for the murder of Kathryn June "June Bug" Brooks, 22. Her nude body bound feet, wrists and neck was found a week after she was reported missing in July 1980. Mr. Baxter, who spent time in state mental hospitals, had prior criminal convictions. A new sentencing trial has been pending since February 1995.
Jack Alfred Bennett, 68, was sentenced to death in Douglas County for killing his 55-year-old wife four days after they were married on June 24, 1989. As she lay sleeping, Mr. Bennett stabbed her more than 100 times and caved in the left side of her head with a claw hammer. His state appeal challenging the fairness of his trial has been pending since December 1995.
Billy Sunday Birt, 60, and Bobby Gene Gaddis, 56, were sentenced to death in Jefferson County for the Dec. 22, 1973, torture and killing of Lois and Reed Oliver Fleming, ages 72 and 75. Three other men, including the man who arranged the robbery-killings, were granted immunity. A third man, Charles Reed, was sentenced to life in prison. Four years after Mr. Birt and Mr. Gaddis were sentenced to death for killing the white couple, their sentences were overturned by a state judge reviewing the fairness of their trials. Nothing has been done since and this year the Department of Corrections moved Mr. Birt and Mr. Gaddis off death row.
Joshua Daniel Bishop, 22, was sentenced to death in Baldwin County on Feb. 13, 1996, for the robbery and beating death of Leverett Lewis Morrison, 44, who refused to turn over his jeep keys. Mr. Bishop helped beat to death another man and that evidence was used against him in his capital murder trial. His first appeal is pending.
Roy Willard Blankenship, 41, was sentenced to death in April 1980 in Chatham County for beating, raping and killing Sara Bowen, 78, for whom he had done work in the past. Ms. Bowen actually died from a heart attack brought on by trauma including being bitten, scratched and stomped. Mr. Blankenship has been sentenced to death three times, the last time in June 1986, following the reversal of his sentence. A state appeal challenging the fairness of his trial has been pending since March 1994.
Kenneth Dan Bright, 36, was sentenced to death in Muscogee County for the Oct. 30, 1989, robbery and murder of his grandparents, R.C. Mitchell, 74, and Fannie Monroe Mitchell, 69, less than eight months after being released from a mental hospital. Mr. Bright was a crack addict on parole at the time of the killings. His sentence was overturned by the state Supreme Court in March 1995. He's still awaiting retrial.
Ward Anthony Brockman, 25, was sentenced to death March 12, 1994. He and three others killed a service station attendant during an attempted robbery on June 27, 1990. Mr. Brockman, who was the triggerman, and his accomplices had pulled a number of armed robberies, and he was arrested after a chase in Phenix City, Ala. His first appeal to the state Supreme Court hasn't been filed yet.
James Willie Brown, 48, was sentenced to death in Gwinnett County in July 1981 after he had been hospitalized for nearly six years. Mr. Brown, who had a history of mental illness and convictions for an attempted rape and robbery, killed Brenda Sue Watson, 19, on May 12, 1975, after the two went out for dinner and dancing. A federal court reversed Mr. Brown's death sentence in 1988. He was sentenced to death a second time in February 1990.
Raymond Burgess, 38, was sentenced to death on Feb. 25, 1992, in Douglas County. During a robbery spree with co-defendant Norris Young. Mr. Burgess shot and killed Liston Chunn, 44, eight months after he was paroled from a life sentence for another robbery-killing. Mr. Burgess was also convicted in 1977 of armed robbery and sexual assault. Mr. Young was sentenced to life in prison. Mr. Burgess' state appeal challenging the fairness of his trial has been pending since August 1995.
David Loomis Cargill, 38, was sentenced to death in Muscogee County in July 1985 for the robbery and murder of a couple with four children under age 10. Cheryl Williams, 29, and Danny Williams, 41, were at a service station when Mr. Cargill and his brother, Tommy, robbed it the night of Jan. 22, 1985. The couple was forced to lie on the floor where David Cargill shot both twice in the head. Tommy Cargill received a life sentence. David Cargill's federal appeal challenging the fairness of his trial is pending.
Timothy Don Carr, 26, was sentenced to die in Monroe County in October 1992. He and his girlfriend were partying the night of Oct. 8, 1992, with Keith Patrick Young, 18, whom Mr. Carr stabbed numerous times, slit his throat and bashed his head with a baseball bat. Mr. Carr, who was on probation, and his girlfriend stole Mr. Young's car and $120. The girlfriend was sentenced to life in prison plus 20 years. Mr. Carr's first appeal to the state Supreme Court was denied in February. Mr. Carr's execution was set in August. Since Mr. Carr had no attorneys, a deadline to appeal to the U.S. Supreme Court passed in May. The state Supreme Court and U.S. Supreme Court rejected the Attorney General's attempt to lift the stay of execution.
Roddy Elroy Childress, 49, was sentenced to death in May 1994 in Glynn County for the shooting deaths of his half-sister's husband, Patrick Kappus, 40, and her daughter, Emma Kappus, 15, on May 1, 1989. Mr. Childress' conviction and sentence were overturned in March 1996, however, because Mrs. Kappus violated the rules of sequestration during the trial by talking to other witnesses about testimony. Mr. Childress is awaiting a new trial.
Scott Lynn Christenson, 26, was sentenced to death in Harris County in March 1990 for the robbery and murder of Albert L. Oliver III, 31. Mr. Oliver gave Mr. Christenson a ride on July 6, 1989. His body, with five gunshot wounds, was found later that day. Mr. Christenson, then 18, had a juvenile record of burglaries and thefts and adult convictions for forgery, burglary and car thefts. His state appeal challenging the fairness of his trial has been pending since October 1995.
Michael Anthony Cohen, 40, was sentenced to death in Glynn County in December 1986. Mr. Cohen, who had a history of burglary convictions, had been out of prison about a month when he started burglarizing homes again, stealing a handgun Oct. 13, 1985. The next day, Auzzie Douglas Sr., 55, a disabled man, was shot to death inside his home. His case has been sent back to Glynn County on the issue of mental retardation.
Robert Lewis Collier, 49, was convicted in Catoosa County in August 1978 for shooting to death a sheriff's investigator, Baxter Shavers, 24. Investigator Shavers was investigating a robbery call April 14, 1978, when shot. Investigator Shavers, the youngest chief deputy in state history at the time, was married with one son. Jeremy Shavers followed in his father's footsteps and now is a sheriff's deputy in Catoosa County. Mr. Collier's second federal appeal challenging the fairness of his conviction is pending in the 11th U.S. Circuit Court of Appeals.
Roger Collins, 38, was sentenced to death in Houston County on Feb. 17, 1978, for the rape and murder of Deloris Luster, 17. On Aug. 6, 1977, he and a friend offered Ms. Luster a ride. The teen was raped, then Mr. Collins killed her with a car jack. William Durham was sentenced to life in prison. Mr. Collins' case was returned to the Houston County trial court in March 1991 on the issue of mental retardation.
Robert Dale Conklin, 36, was sentenced to death in June 1984 in Fulton County. Mr. Conklin was having an affair with attorney George Grant Crooks, 27, when the two got into an argument on March 28, 1984, and Mr. Conklin stabbed the other man in the ear with a screw driver. Mr. Conklin said he panicked afterward because he was on parole at the time. So he drained the blood from Mr. Crook's body and cut it up into nine pieces. Mr. Conklin's appeal is pending in federal court.
John Wayne Conner, 40, was sentenced to death in July 1982 in Telfair County. Six months before, Mr. Conner was drinking with his friend, James T. White, 29, when he became enraged and started beating Mr. White with his fist, a whiskey bottle and a stick. In the most recent appeal action, Mr. Conner's state appeal challenging the fairness of his trial was denied in December. That decision is being appealed to the state Supreme Court.
Eddie A. Crawford, 50, was sentenced to death in Spalding County in March 1984 for the kidnapping, rape and murder of his 29-month old niece, Leslie Michelle English, on Sept. 25, 1983. The toddler was strangled to death, bruised and raped. He told police he remembered the toddler had been in his car and remembered carrying her out of the car. He was sentenced to death twice. He was on probation when he killed the girl.
Samuel David Crowe, 36, was sentenced to death in Douglas County in November 1989. The former church deacon was convicted of the robbery and murder of his former boss, Joe Pala, 39. Mr. Pala was knocked to the floor of Wickes Lumber Co., shot, hit with a paint can and crowbar, and covered in paint the night of March 2, 1988. Mr. Crowe had no criminal record before the killing. His first appeal to the state Supreme Court was denied in June 1995, and the U.S. Supreme Court rejected hearing the case on appeal in March 1996.
George Bernard Davis Jr., 39, was sentenced to death in Elbert County in February 1985. He was convicted of robbing and shooting to death Richard L. Rice, 63. The garage owner was found dead in his tow truck Feb. 13, 1984. His wallet had been stolen along with more than $800. Mr. Davis had argued with Mr. Rice over payments for car repairs. Davis, who had no major felony convictions before the killing, has been awaiting a trial court decision on the issue of mental retardation since April 1990.
Troy Anthony Davis, 28, was sentenced to death in Chatham County in September 1991 for killing an off-duty police officer, Mark Allen MacPhail, 27. Officer MacPhail was trying to break up a fight between Mr. Davis and another man when Mr. Davis shot him. He was wearing a bullet-proof vest, but as Mr. Davis stood over the officer and shot him again, the bullet pierced his side. Mr. Davis' state appeal challenging the fairness of his trial has been pending since March 1994.
Andrew Grant DeYoung, 22, was sentenced to die in October 1995 in Cobb County. He and a friend, David Michael Haggerty, 28, stabbed to death his parents and little sister Gary Wayne, 42, Kathryn, 41, and Sarah, 14, on July 15, 1993. Mr. DeYoung had no prior criminal record. Mr. Haggerty was sentenced to life in prison in July 1996. An appeal hasn't been filed yet for Mr. DeYoung.
Wilbur Wiley Dobbs, 48, was sentenced to death in Walker County in May 1974 for the shotgun slaying of Roy L. Sizemore, 50. The grocery store owner was killed Dec. 14, 1973, when Mr. Dobbs and two others robbed the store. A salesman visiting the store was also shot but survived, as did a female customer who suffered a skull fracture after she was hit with a gun butt. Mr. Dobbs' co-defendants were sentenced to life in prison. In May, a federal judge ordered a new sentencing hearing for Mr. Dobbs, ruling his trial attorney was ineffective.
Leonard Maurice Drane, 37, was sentenced to death in Elbert County in September 1992 for killing Linda Renee Blackmon, 27, on June 13, 1990, while he was on probation for other crimes. The trial was moved from Spalding County to Elbert County. She had been raped and shot. Her throat was cut. Co-defendant David Robert Willis was sentenced to life in prison. Three years ago, the state Supreme Court sent Mr. Drane's case back to the trial court for a ruling on appeal issues.
Eric Lynn Ferrell, 34, was sentenced to death in September 1988 in DeKalb County for the robbery and murder of his 72-year-old grandmother and 15-year-old cousin. The bodies were found Dec. 30, 1987. Both had been shot twice in the head at close range. Mr. Ferrell was on probation at the time. At the time of his grandmother's and cousin's killings, two of his uncles had killed a man and police initially thought the double homicide was revenge for that homicide. When arrested, police found four spent .22-caliber casings in Mr. Ferrell's pockets, along with $600. The murder weapon was later found at his home. A state appeal challenging the fairness of his trial and sentence has been pending since July 1995.
Eddie William Finney Jr., 40, was sentenced to death in Jones County in November 1977 about three months after the bodies of Thelma Kalish, 69, and Ann Kaplan, 60, were found in their home. On Sept. 22, 1977, the women were robbed, raped and beaten to death. Mr. Finney and Johnny Mack Westbrook, who had both done yard work for the women, were convicted and sentenced to death. The Georgia Supreme Court reversed Mr. Westbrook's death sentence because the judge sent the jury back into the deliberation room when it first voted for life. Mr. Westbrook died of heart disease in prison in 1993. Mr. Finney's case was returned to the trial court in April 1991 for a decision on the issue of mental retardation.
Son Fleming, 66, was sentenced to death in January 1978 in Lanier County for the murder of Ray City Police Chief Ed Giddens, 29. The officer stopped a speeding car in February 1976, not knowing the men inside had just pulled an armed robbery. It was Chief Giddens' last day on the job he had intended to move to Florida. Mr. Fleming's brother was sentenced to life in prison. Henry Willis III, 36, was sentenced to death, too, and he was executed May 18, 1989. Mr. Fleming was the test case for the 1988 mental retardation exception for the death penalty. He was returned to Lanier County in March 1991 for a new sentencing trial.
Melbert Ray Ford Jr., 36, was sentenced to death in Newton County in October 1986. Seven months before, Mr. Ford shot to death his former girlfriend, Martha Chapman Matich, 31, and her 11-year-old niece, Lisa Renee Chapman. Although prosecutors contended Mr. Ford killed the woman and child in revenge for a romantic breakup, Mr. Ford also robbed the store where Ms. Matich was working that night. His attorneys are currently appealing the denial of his first appeal challenging the fairness of his trial and sentence.
Timothy Tyrone Foster, 29, was sentenced to death in Floyd County in May 1987. Mr. Foster confessed that on the night of Aug. 27, 1986, he broke into the home of Queen Madge White, 79. Her jaw was broken, she had gashes on the top of her head and she had been sexually assaulted and strangled. Mr. Foster had a juvenile record including armed robbery. In July 1991, his case was sent back to the trial court on the issue of mental retardation.
Wallace Marvin Fugate III, 47, was sentenced to death in Putnam County in April 1992 for killing his estranged wife, Pattie Fugate, 40. On May 4, 1991, he broke into his wife's home and waited for her. When she came in, he grabbed Ms. Fugate and dragged her outside to his vehicle, pistol whipped her about 50 times and then shot her in the forehead. Their son, who witnessed the killing and testified against his father, was the victim of a homicide the next year. One of the men who beat his son to death is now on Death Row too. Mr. Fugate's attorney has appealed the denial of his first appeal, challenging the fairness of his trial and sentence in October 1996.
Kenneth E. Fults, 28, was sentenced to death in May in Spalding County for killing a neighbor, 19-year-old Cathy Bonds, after breaking into her home on Jan. 30, 1996. Mr. Fults smothered her with a pillow and then shot her before stealing her car. Mr. Fults had a history of mental illness but no prior felony convictions. A direct appeal hasn't been filed yet.
Carlton Gary, 46, was sentenced to death in Muscogee County in August 1986. Between Sept. 11, 1977, and April 19, 1978, eight elderly women in Columbus were raped and strangled in their homes. One survived. In 1984, a gun stolen in the same neighborhood as the killing spree was found in Michigan in the possession of Mr. Gary's cousin. Mr. Gary's fingerprints were then matched to some left in the homes of four of the homicide victims. He was convicted of murdering three women. Mr. Gary had been accused of the rape and murder of an 89-year-old New York woman in 1970 and an additional rape, but he blamed another man who was tried and acquitted. Mr. Gary's second state appeal challenging the fairness of his trial and sentence was denied in December 1995. On May 27, the U.S. Supreme Court rejected an appeal on the same grounds.
Johnny Lee Gates, 41, was sentenced to death in Muscogee County in September 1977. On Nov. 30, 1976, Mr. Gates posed as a gas company employee to get into the home of 19-year-old Katharina Wright, whom he robbed, raped and then shot in the head. Mr. Gates was on parole at the time. He was arrested on unrelated charges Jan. 31, 1977, and confessed. Between Mrs. Wright's killing and his arrest, Mr. Gates also committed two other armed robberies and voluntary manslaughter. In 1992, Mr. Gates' case was sent back to Muscogee County for a new sentencing trial on the question of mental retardation.
Exzavious Lee Gibson, 25, was sentenced to death in Dodge County in June 1990. He was convicted of robbing and stabbing to death 46-year-old Douglas Coley at the Eastman convenience store where Mr. Coley was working Feb. 2, 1990. Mr. Gibson, who was covered in Mr. Coley's blood when arrested shortly after the robbery-slaying, was convicted four months later. This year, Augusta Judicial District Superior Court Judge J. Carlisle Overstreet denied Mr. Gibson's state appeal challenging the fairness of his trial, although Mr. Gibson had no legal counsel.
Fred Marion Gilreath Jr., 59, was sentenced to death in Cobb County in March 1980 for the killing of his estranged wife and her father. On May 11, 1979, Linda Gilreath, 28, and Gerrit W. VanLeevwen, 57, were shot to death she had been shot five times with a rifle, and then shot in the face at close range with a 12-gauge shotgun, he was shot with a rifle, shotgun and handgun. Mr. Gilreath's federal appeal challenging the fairness of his trial was denied in April 1996.
Daniel Greene, 30, was sentenced to death in December 1992 in Clayton County where the venue was changed from Taylor County. He committed a violent crime spree the night of Sept. 27, 1991, when he walked into a Reynolds convenience store and pulled a clerk into the back room, demanded money and stabbed her. He then stabbed customer Bernard Walker, 20, in the heart, killing him. A short time later, he forced his way into the home of an elderly couple he knew and stabbed both and stole their car. He then went to a convenience store in Warner Robins where he robbed and stabbed the clerk. In May, the state Supreme Court let the conviction and sentence stand.
Dennis Charles Hall, 41, was sentenced to death in August 1990 in Barrow County for the shotgun killing of his 10-year-old son, Adrian Hall. Police had been called to the Hall home numerous times before Jan. 7, 1990, when they found a drunken Hall and the dead child. His wife and two daughters told police Mr. Hall became enraged at Adrian for being noisy. The girls tried to hide Mr. Hall's gun, but he found it and shot the boy. He told a neighbor afterward, " I couldn't learn him nothing by beating him with a belt. So I guess I learned him something this time." His state appeal challenging the fairness of his trial has been pending since December 1995.
Willie James "Bo" Hall, 40, was sentenced to death in DeKalb County in February 1989 for killing his estranged wife, Thelma Hall, 23, who moved out of the family home just six days before her murder. On July 11, 1988, Ms. Hall made a frantic call to 911, and the dispatcher heard the sound of breaking glass and screams. Police arrived in minutes but, Mr. Hall had stabbed her 17 times. The day before, Mr. Hall told his sister-in-law that he would kill his wife and wouldn't get more than 10 years in prison for it. His state appeal was denied.
Emanuel Fitzgerald "Demon" Hammond, 30, was sentenced to die in Fulton County in March 1990 for the kidnapping, robbery, rape and murder of 27-year-old Julie Love. She was last seen by her boyfriend the night of July 11-12, 1988, when she left his apartment for home. A year later, in August 1989, Janice Weldon filed assault charges against Mr. Hammond after he tried to strangle her. Ms. Weldon told police that he and his cousin Maurice Porter killed Ms. Love. Mr. Porter confessed and took police to Ms. Love's remains near a trash pile. Ms. Love was kidnapped at gunpoint, Mr. Porter told police. Ms. Love was raped by Mr. Porter and beaten. Then the men tried to strangle her by wrapping a coat hanger around her neck and pulling the opposite ends. When that didn't work, Mr. Hammond shot her. Mr. Hammond had carjacked three other women stabbing one and leaving her to die on a trash pile, and he also broke into a woman's home and raped her. As a juvenile, he raped, robbed and kidnapped a woman and slit her throat, and he raped and sodomized another. While awaiting trial, he bragged to a deputy that he also had raped Ms. Love. His state appeal challenging the fairness of his trial was filed in December 1995.
George Russell Henry, 28, was sentenced to death in Cobb County in November 1994 for shooting to death a police officer. Officer Robert Ingram, a two-year police veteran, was shot in the face and behind his left ear while he was investigating a report of a suspicious person. Mr. Henry had previously been convicted of burglaries and forgery and was on probation at the time of the murder. His first appeal to the state Supreme Court hasn't been filed yet.
Robert Karl Hicks, 40, was sentenced to death in January 1986 in Spalding County for the kidnapping, rape and murder of 28-year-old Toni Strickland Rivers. On July 13, 1985, Ms. Rivers was waiting for a friend at a public park when she disappeared. That night, two men driving down a country road heard a scream and saw a man making stabbing motions. Ms. Rivers bled to death. Mr. Hicks had previously been convicted of rape. At his trial, doctors testified yes and no that Mr. Hicks was mentally ill. The denial of his state appeal challenging the fairness of his trial was upheld by the state Supreme Court in November 1995.
Jose Martinez High, 38, was sentenced to death in December 1978 in Tallaferro County for the kidnap and murder of 11-year-old Bonnie Bulloch who was kidnapped along with his father in July 1976. Judson Ruffin and Nathan Brown also were convicted and sentenced to death for Bonnie's murder, but their cases were reversed on appeal. They were resentenced to life in prison. A fourth man with the gang when Bonnie and his father were kidnapped and shot, Alphonso Morgan, was convicted and sentenced to die in Richmond County for another abduction and murder in the gang's crime spree. His sentence, however, also was overturned and he's now serving a life sentence. A second federal appeal challenging the fairness of Mr. High's trial is pending.
John W. Hightower, 53, was sentenced to death in Morgan County in May 1988 for killing his wife and two stepdaughters. Mr. Hightower's trial was moved from Baldwin County, where on July 12, 1987, the bodies of Dorothy Hightower, 42, Sandra Reaves, 22, and Evelyn Reaves, 19, were found at their home. Each had been shot. Mr. Hightower was arrested hours later in his wife's car, a bloody handgun inside. He bought the murder weapon the day before the slayings. A federal appeal challenging the fairness of his trial has been pending since November.
Floyd Ernest Hill, 60, was sentenced to death in July 1981 in Cobb County for shooting to death Austell Police Officer Gregory Mullinax. On Feb. 8, 1981, Officer Mullinax was sent to a trailer park on a domestic disturbance call. Officer Mullinax became the target of the battling couple when Mr. Hill got into the fray and shot the officer, and the officer shot and killed another person in the fight. Mr. Hill's death sentence was overturned on federal appeal in December.
Warren Lee Hill, 36, was sentenced to death in September 1991 in Lee County for beating to death fellow inmate Joseph Handspike, 34, with a nail-embedded board on Aug. 17, 1990. At the time, Mr. Hill was serving time for a 1985 murder. Mr. Hill's state appeal challenging the fairness of his trial has been pending since April 1994.
Travis Clinton Hittson, 26, was sentenced to death in Houston County in March 1993 for killing 20-year-old Conway U. Herbeck, a fellow sailor. On April 3, 1993, Mr. Hittson, Edward Vollmer and the victim left Pensacola, Fla., where they were stationed, and drove to Mr. Vollmer's parent's home in Warner Robins. Mr. Vollmer wanted to kill Mr. Herbeck and gave Mr. Hittson a baseball bat to use on April 5, 1992. Mr. Hittson hit the victim in the head several times with the bat and then shot him. They cut up Mr. Herbeck's body, buried the torso in Houston County and the rest in Pensacola. Mr. Vollmer was sentenced to life in prison. Mr. Hittson had never been convicted of a felony before the killing. A state appeal challenging the fairness of his trial has been pending since December 1995.
Dallas Bernard Holiday, 34, was sentenced to death in November 1986 in Jefferson County for killing 66-year-old Leon Johnson Williams on March 11, 1986. Mr. Williams went on his usual early morning walk when Mr. Holiday attacked him, hitting him in the head at least seven times and shooting him. Mr. Holiday had broken into a home the night before and stolen the murder weapon. Mr. Holiday had prior felony convictions. His case was returned to the trial court on the issue of mental retardation in June 1990.
Robert Wayne Holsey, 31, was sentenced to death on Feb. 13, 1997, in Morgan County where his trial was moved. In December 1995, he shot to death Baldwin County Sheriff's Deputy Will Robinson, 26. The officer had stopped Mr. Holsey's vehicle after an armed robbery. At the time, Mr. Holsey had been out on parole less than a year following convictions for assault and armed robbery.
Tracy Lee Housel, 38, was sentenced to death in February 1986 in Gwinnett County for the rape and murder of 46-year-old Jean D. Drew. Ms. Drew was in the habit of stopping at a truck stop for a snack after her ballroom dancing lessons. On the night of April 7, 1985, she met Mr. Housel at the restaurant. Her body was found the next day, and he was arrested about a week later in Daytona Beach, Fla., after using her credit cards. He confessed to killing Ms. Drew, killing a man in Texas, and trying to kill two others in Illinois and Texas. He also confessed to murders in California and Tennessee. A decision is pending from the 11th Circuit Court of Appeals on Mr. Housel's federal appeal challenging the fairness of his trial.
Carl J. Isaacs, 43, was sentenced to death in Seminole County in 1974 and again in Houston County at a retrial in 1988. In May 1973 when he was 19 years old, he escaped from a Maryland prison and took off for Florida with his brother Billy, half brother Wayne Coleman and friend George Dungee. On May 14, 1973, they ran out of gas in Seminole County and stopped to burglarize a trailer. Within hours, they had shot to death Jerry Alday, Ned Alday, Jimmy Alday, Chester Alday and Aubrey Alday in addition to raping Mary Alday and then killing her. They were arrested in West Virginia with the murder weapons and items belonging to the Alday family. Billy Isaacs, 15 years old at the time of the killings, received a 40-year sentence. He was taken to Maryland in 1993 to serve a life sentence there for murder. At the 1988 retrial, Mr. Coleman and Mr. Dungee received life sentences.
Jonathen Jarrells, 40, was sentenced to death in March 1988 in Walker County for the robbery and murder of Gertie E. Elrod, a 77-year-old woman. On Aug. 24, 1987, Ms. Elrod and her sister, Lorraine Elrod, were attacked in their home by Mr. Jarrells. He stabbed both with scissors, tied their hands and feet and beat them with an iron. Lorriane survived the attack although she lost the sight in one eye and her hearing in one ear. When arrested in Hazard, Ky., he had items belonging to the Elrod sisters in his possession. In May 1991, Mr. Jarrell's case was sent back to the trial court on the issue of mental retardation.
Lawrence Joseph Jefferson, 42, was sentenced to death in March 1986 in Cobb County for the robbery and killing of his construction job supervisor Edward Taulbee, 37. On May 1, 1985, they went fishing at Lake Allatoona. Later, Mr. Jefferson arrived home in the victim's vehicle and told a neighbor, "My fat little buddy is dead." Mr. Taulbee's body was found the next day; he had been beaten with a stick and then his skull was crushed with a 40-pound tree trunk. In 1979, Mr. Jefferson had pleaded guilty in Louisville to armed robbery and burglary. His first appeal to the state Supreme Court and next state appeal challenging the fairness of his trial have been denied.
Larry L. Jenkins Jr., 21, was sentenced to death in Wayne County for the robbery and killing of the owner of a laundry and her 15-year-old son. Mr. Jenkins accosted Terry Ralston, 37, and her son Michael on Jan. 8, 1993. He kidnapped the mother and son and shot them both to death in a rural area. Although sentenced to death in September 1995, his first appeal to the Georgia Supreme Court hasn't been filed yet.
Ashley Lyndol Jones, 23, was sentenced to death in June 1995 in Coffee County. On March 31, 1993, in Ware County, Mr. Jones and co-defendant Allen Brunner were drinking and driving in a stolen vehicle when it developed car trouble. Mr. Jones knocked on the door at Carlton Keith Holland's home and asked for help. As Mr. Holland, 39, leaned over the engine and his wife watched through the window, Mr. Jones slammed a wrench and later a sledgehammer on Mr. Holland's head. Mr. Brunner was sentenced to life without parole. In March, the state Supreme Court affirmed Mr. Jones' conviction and death sentence.
Brandon Aston Jones, 54, was sentenced to death in October 1979 in Cobb County. On June 17, 1979, he and Van Roosevelt Solomon were arrested at a service station after an officer who just happened to drive up heard gunshots. In the storeroom, the officer found 29-year-old Roger Tackett, the station manager, who had been shot in the legs and arms and beaten before the fatal contact shot was fired behind his left ear. Mr. Solomon also was sentenced to death and he was executed on Feb. 20, 1985. In 1989, a U.S. District Court judge reversed Mr. Jones' sentence, ruling it was unfairly imposed considering the prosecutor's Bible quoting. Mr. Jones is still awaiting a new sentencing trial. In September 1996, the Department of Corrections transferred him off death row and into the general prison population.
Ronald Leroy Kinsman, 39, was sentenced to death April 18, 1987, in Muscogee County for the robbery and murder of a Hardee's manager. Bruce Keeter, 29, was found shot to death the morning of Sept. 14, 1984. About $400 was stolen from the restaurant safe, and Mr. Keeter's car was later found abandoned. Two years later, a friend of Mr. Kinsman's told police Mr. Kinsman had admitted to the murder. In 1976, Mr. Kinsman had been convicted of another robbery-murder and was paroled not long before Mr. Keeter was murdered. A state appeal challenging the fairness of his trial has been pending since December 1995.
J.W. Ledford Jr., 25, was sentenced to death in Murry County with a jury selected from Gordon County in November 1992 for the murder of a neighbor he had known all his life, Dr. Harry Johnston Jr., 73. On Jan. 31, 1992, Mr. Ledford went to the Johnston home and asked his wife, Antoinette, to speak to Mr. Johnston. He forced his way into the home at knife point, demanding money and guns. Mr. Johnston's body was found later, his head nearly cut off and a knife in his back. Mr. Ledford's state appeal challenging the fairness of his trial has been pending since December 1995.
James Allyson Lee, 22, was sentenced to death in June by a Charlton County Superior Court jury. On Nov. 17, 1996, he shot his 43-year-old stepmother, Sharon Varnadore Chancey, to death. Although Mr. Lee pleaded with the jury to spare him because he wasn't the same man who committed murder, when first questioned by police, Mr. Lee said killing was so easy it would be easy to do again.
Larry Lee, 36, was sentenced to death in November 1987 in Wayne County for the robbery and killing of a couple and their 14-year-old son. Clifford and Nina Murray Jones Sr., both 48, and Clifford Jones Jr. were killed April 26, 1988 all had been shot, stabbed and beaten. Mr. Lee's brother Bruce Lee was reportedly also involved in the triple homicide, but he died while committing a burglary two months after the Jones family killings. Mr. Lee's state appeal challenging the fairness of his trial was denied, but the judge was ordered to reconsider it in June 1995 because of new case law.
William Anthony Lipham, 33, was sentenced to death in Coweta County in February 1987 for the rape, robbery, burglary and murder of a 79-year-old woman, Kate Furlow. Mr. Lipham was seen in Ms. Furlow's home on Dec. 4, 1985. The next day, her nude body was found at home with a .25-caliber bullet wound in her head. Mr. Lipham confessed but said he had sex with the elderly woman after she was dead. A state appeal challenging the fairness of his trial has been pending since 1989.
William Earl Lynd, 42, was sentenced to death in February 1990 for killing his girlfriend three days before Christmas 1988. Mr. Lynd was living with 27-year-old Virginia "Ginger" Moore when they got into an argument and he shot her in the face and went outside. Ms. Moore followed him outside where he shot her again and put her in the trunk of his car. When he heard noise from the trunk, he stopped the car and shot her a third time. After burying her body, Mr. Lynd drove to Ohio where he shot and killed another woman. He returned to Georgia and surrendered to police on New Year's Eve. Mr. Lynd had numerous convictions for prior assaults on women. His state appeal challenging the fairness of his trial has been pending since December 1995.
James Mathis, 51, was sentenced to death in Douglas County in May 1991 for killing J.L. Washington and his wife Ruby Washington, both 69. On Thanksgiving Day 1980, Mr. Mathis was seen in the back seat of the Washington's vehicle as they drove through their apartment complex. Their bodies were found in a wooded area. Both had been beaten, stabbed and shot. In 1989, a U.S. District judge reversed Mr. Mathis' death sentence because of ineffective counsel, but in 1992 the 11th Circuit sent the case back to the federal judge to explain the ruling.
Mark Howard McClain, 30, was sentenced to death in Richmond County in September 1995 for the robbery and murder of a Domino's Pizza store manager. In November 1994, Mr. McClain, who had previously been convicted of armed robbery, forced his way into the closed Domino's store and robbed Kevin Brown, 28. As Mr. McClain turned to leave he shot and killed Mr. Brown, an eyewitness testified. The witness got the license tag number off the getaway car and police traced the vehicle to Mr. McClain's girlfriend. Earlier this year, the state Supreme Court affirmed Mr. McClain's conviction and sentence, and in June, the U.S. Supreme Court refused to consider an appeal of that decision.
James R. McDaniel, 23, was sentenced to death in June by a Butts County Superior Court jury. He was convicted of murdering his grandparents Erner and Eugene Barkley, ages 70 and 75, and his 10-year-old stepbrother, Justin Davis. Family members of the victims, also Mr. McDaniel's family, opposed the death penalty for the young man with a history of commitments to mental hospitals and crack addition. Police said Mr. McDaniel robbed his grandfather to buy crack.
Kim Anthony McMichen, 39, was sentenced to death in Douglas County in July 1993 for the shooting deaths of his estranged wife and her boyfriend. On Nov. 16, 1990, he shot Luan McMichen, 27, and Jeff Robinson, 27, and then walked his 8-year-old daughter past the bodies. Ms. McMichen's friends told police he had harassed her since she left him in January 1990 and that he had raped her. Mr. McMichen had no prior criminal convictions. His first appeal to the Georgia Supreme Court hasn't been filed.
Jimmy Fletcher Meders, 36, was sentenced to death in April 1989 in Glynn County for the robbery and murder of a convenience store clerk. Don Anderson, 47, was shot twice as he lay on the floor after being robbed of $38 the night of Oct. 14, 1987. Police say two men with Mr. Meders weren't involved in the killing and they weren't prosecuted. Mr. Meders' current attorneys claims just the opposite that the other two men did the robbery and killing while a drunken Mr. Meders was in the back of the store. All three men had prior felony convictions. Mr. Meders state appeal challenging the fairness of his trial has been pending since April 1993.
Michael Miller, 34, was sentenced to death in November 1988 in Walton County for the robbery and killing of 35-year-old Larry Judson Sneed. On Oct. 29, 1987, Mr. Sneed was driving along a Walton County road when shots were fired at his vehicle and he was forced off the road. Mr. Sneed got out and ran but he was shot in the back and bled to death. Two days before, Mr. Miller and another man had kidnapped a man during a burglary. In January 1995 his case was sent back to the trial court on the issue of mental retardation.
Terry Mincey, 37, was sentenced to death in August 1982 in Bibb County for the robbery and killing of a store clerk, the mother of two small children. On April 12, 1982, Paulette Riggs was working at a convenience store when Mr. Mincey and two others decided to rob it. After making Ms. Riggs hand over the money, he walked her outside where Russell Peterman was pumping gas into his car. Mr. Mincey shot Mr. Peterman in the chest and when he fell, Mr. Mincey shot him again in the face. Ms. Riggs tried to run away, but Mr. Mincey shot her and after she fell, he shot her in the face. Mr. Peterman survived but lost 40 percent of his vision in one eye and lives with a bullet lodged near his spine. Mr. Mincey, a preacher's son, had at least three prior armed robbed convictions in 1977. His two co-defendants in the 1989 killing received life sentences. In September 1996, his federal appeal challenging the fairness of his trial was filed.
Nelson Earl Mitchell, 34, was sentenced to death in January 1990 in Early County for killing Iron City Police Chief Robert Cunningham, 51, during a routine traffic stop. Mr. Mitchell, who had prior convictions for larceny and theft, testified that the white police chief used racial slurs and the gun went off during a struggle. One issue the defense may raise on appeal is an allegation that the jury foreman's husband was sitting in the courtroom and allegedly signaled his wife to vote for death by drawing his finger across his throat. Although it's been more than seven years since his conviction, the first appeal to the Georgia Supreme Court hasn't been filed.
William Mark Mize, 40, was sentenced to death in Oconee County in December 1995 after demanding the jury sentence him to death. The Klansman ordered the killing of William Eddie Tucker, 34, because he was angry Mr. Tucker had messed up an arson job on a crack house in October 1994. Mr. Mize had prior convictions for escape, theft, arson, and being a felon in possession of a firearm. Co-defendants Christopher Hattrup and Mark Allen received life sentences.
Stephen Anthony Mobley, 31, was sentenced to death in Hall County in February 1994. During a Feb. 17, 1991, robbery of a Domino's store, he shot and killed 24-year-old John Copeland Collins. Mr. Mobley had been convicted of burglary and forgery, but he didn't get into violent crimes until 1991 when he began a robbery spree that ended in Mr. Collins' death. While awaiting trial, Mr. Mobley raped his cellmate and had Domino's tattooed on his chest. His state appeal challenging the fairness of his trial has been pending since March 1996.
Larry Eugene Moon, 52, was sentenced to death in Catoosa County in January 1988 for killing 34-year-old Ricky Callahan who had driven to a convenience store to buy his wife some aspirin on Nov. 24, 1984. At the time Mr. Callahan was murdered, Mr. Moon was hiding out in Georgia after committing a Tennessee murder. After killing Mr. Callahan, Mr. Moon drove back to Chattanooga and on Dec. 1, 1984, he robbed an adult book store and kidnapped a female impersonator whom he raped. The next day, he killed another man in Gatlinburg, Tenn., and shot at a woman; then on Dec. 7, 1984 he robbed a Chattanooga convenience store. He was arrested Dec. 14, 1984 in Oneida, Tenn., in another stolen car containing a number of guns, including Mr. Callahan's murder weapon. Mr. Moon's prior record included seven burglaries, three aggravated assaults and escape. Mr. Moon's federal appeal challenging the fairness of his trial was filed in April 1996.
Carzell Moore, 45, was sentenced to death in January 1977 in Monroe County for the Dec. 12, 1976 rape, robbery and murder of 18-year-old Teresa Carol Allen, an honors college student. Mr. Moore met up with Roosevelt Greene the day before the killing. Mr. Greene had just escaped from prison. On Feb. 12, 1976, they robbed the store where Ms. Allen worked, taking her, $466 and her vehicle. Both men raped Ms. Allen and Mr. Moore shot her. Mr. Green was arrested in South Carolina driving Ms. Allen's car. He was sentenced to death and executed Jan. 9, 1985, at the age of 28. Mr. Moore's sentence was overturned once but he was resentenced to death. It was overturned a third time, and a new sentencing trial has been pending since August 1992. Mr. Moore, who has a Web site, was transferred to the general prison population last September.
Ernest Ulysses Morrison, 36, was sentenced to death in November 1987 by Richmond County Superior Court Judge Albert Pickett. Mr. Morrison pleaded guilty to the rape, robbery and murder of a family acquaintance, Mary Edna Griffin, 54, on Jan. 9, 1987. Mr. Morrison asked Judge Pickett to sentence him to death. At the time he killed Mrs. Griffin, he was an escapee from the Aiken jail where he was awaiting trial for rape and robbery. A new sentencing trial to include the issue of mental retardation has been pending in Richmond County Superior Court since June 1993.
Robert L. Newland, 54, was sentenced to death in August 1987 in Glynn County for killing Carol Beatty, a 27-year-old woman who lived across the street from Mr. Newland and his roommate. Mr. Newland used a pocket knife to cut Ms. Beatty, slashing her throat deep enough to cut her vocal cords and her stomach enough for her intestines to show. Ms. Beatty lived for 22 hours after the attack and with an investigator's help she was able to spell out the name of her attacker. Mr. Newland had previously been convicted of a similar assault, but that conviction was reversed on appeal. His state appeal challenging the fairness of his trial has been pending since January 1991.
Curtis Osborne, 27, was sentenced to death in Spalding County in August 1991 for shooting to death two acquaintances Linda Lisa Seaborne, 28, and Arthur Lee Jones, also 28. Mr. Osborne confessed that on Aug. 6, 1990, he shot both people as they sat in a car parked alongside a dirt road. His state appeal challenging the fairness of his trial and sentence has been pending since June 1994.
Lyndon Fitzgerald Pace, 32, was sentenced to death in March 1996 in Fulton County. Mr. Pace committed a series of rapes and murders, mainly preying on elderly women from August 1988 through February 1989. He was convicted of killing women ages 78, 86, 79, 78 and 42. He was also convicted of several burglaries during that time period His first appeal to the Georgia Supreme Court hasn't been filed yet.
Bryan Ashley Parker, 36, was sentenced to death in Douglas County in November 1984 for the sexual assault and murder of an 11-year-old girl June 1, 1984. When Christie Anne Griffith disappeared from her trailer park home, Mr. Parker was among the people police questioned. They later learned he had been convicted in Florida of a child molesting charge. Mr. Parker choked and tried to rape the girl while he left his 2-year-old son sitting a car parked nearby. His federal appeal challenging the fairness of his trial was filed in December.
David Aaron Perkins, 36, was sentenced to death in June in Clayton County for the Aug. 13, 1995, slaying of Herbert Ryals III, a 38-year-old man who lived in the same apartment complex. Prosecutors believe Mr. Perkins, who had a long history of criminal convictions for violence and theft, lured Mr. Ryals to his home to rob him. Mr. Ryals' body was found in the bathroom where he had fledtrying to defend himself from more than 11 stab wounds. During his trial when a Virginia police officer testified how Mr. Perkins had thrown a fellow officer through a window, Mr. Perkins taunted the courtroom by making boxing gestures.
Jack H. Potts, 52, was sentenced to death in March 1976 in two counties Forsyth and Cobb counties for the kidnapping and murder of a 24-year-old good Samaritan, Michael Priest. Mr. Priest agreed to help Mr. Potts, who told him there had been an accident May 8, 1975. His co-defendant pleaded guilty to aggravated assault in exchange for a 10-year sentence. Mr. Potts escaped from the Forsyth County Jail in September 1987 and was shot twice by officers. Mr. Potts' conviction was overturned in May 1984, but he was resentenced to death in 1988 and again 1990.
Virgil Delano Presnell Jr., 43, was sentenced to death in October 1976 in Cobb County. Five months earlier, on May 4, 1976, he kidnapped two school girls . Mr. Presnell lay in wait for the 10- and 8-year-old girls, he confessed. He raped and sodomized the older girl and when 8-year-old Lori Ann Smith tried to run away, he drowned her in a stream. His sentence was overturned in 1992 by a federal appeals court. Mr. Presnell is still awaiting a new sentencing trial.
Mark Anthony Pruitt, 32, was sentenced to death in September 1987 in Pulaski County for the Montgomery County killing of 5-year-old Charise Walker. The girl was found raped, sodomized and beaten Nov. 15, 1986, when she disappeared from home. Charise, who's skull was fractured and leg broken, died a short time later. Mr. Pruitt was seen coming out of the woods where Charise was found. He wasn't wearing any pants and had blood on him. Mr. Pruitt has been awaiting a new sentencing trial on the issue of mental retardation since September 1994.
Timothy Pruitt, 25, was sentenced to death in Lumpkin County in October 1996 for the stabbing and strangulation killing of a 10-year-old neighbor girl. Wendy Nicole Vincent was killed in her own home. Mr. Pruitt's first appeal to the Georgia Supreme Court has not been filed yet.
William Howard Putman, 54, was sentenced to death in September 1982 in Cook County. Mr. Putnam, who had no prior felony record, attacked and robbed people at a truck stop the night of July 10, 1980, killing William Gerald Hodges, 49, David N. Hardin, 22, and Katie Christine Back, 28. His state appeal challenging the fairness of his trial was denied, as was his appeal of that to the state Supreme Court in September 1995.
Willie James Pye, 29, was sentenced to death in Spalding County in July 1996. He was convicted of the November 1993 rape, sodomy and shooting death of a 21-year-old woman in a supposed drug deal gone bad. His co-defendant was sentenced to life in prison. Mr. Pye still claims he's innocent and a motion for a new trial is pending.
Billy Daniel Raulerson Jr., 27, was sentenced to death in March 1996 in Chatham County for a Memorial Day 1993 killing spree. Mr. Raulerson killed 18-year-old Charlye Dixon and her fiance, 19-year-old Jason Hampton, raping Ms. Dixon after her murder. Mr. Raulerson then broke into the home of Teresa Gail Taylor, 40, and killed her. His first possible appeal to the Georgia Supreme Court has not been filed yet.
James Randall Rogers, 36, was sentenced to death in May 1982 in Floyd County for the torture and killing of a 75-year-old woman. On May 21, 1980, Grace Perry died when a rake handle was forced up her vagina so hard it punctured a lung, causing massive hemorrhaging. At the time of the killing, Mr. Rogers was on parole for burglary. Mr. Rogers' case has been pending in the trial court since 1994 on the issue of mental retardation.
Larry Romine, 45, was sentenced to die in April 1982 in Pickens County for the shotgun slayings of his parents, Roy Lee, 48, and Aville R. Romine, 50. Police say robbery was the motive for the March 19, 1991, double homicide. Mr. Romine's death sentence was reversed by the Georgia Supreme Court in June 1983, but he was resentenced to death again in August 1985. His federal appeal challenging the fairness of his trial was filed in 1996.
William C. Sallie, 31, was sentenced to death in March 1991 in Bacon County for killing his 41-year-old ex-father-in-law. In a violent rampage against his ex-wife and her family on March 31, 1990, Mr. Sallie shot to death John Lee Moore and wounded Mr. Moore's wife. He then kidnapped his ex-wife and her sister and took them to Liberty County where he repeatedly raped both women. His first possible appeal to the Georgia Supreme Court has not been filed yet.
Demarcus Ali Sears, 25, was sentenced to death in September 1993 in Cobb County. He and Phillip Williams kidnapped Gloria Ann Wilbur, 59, on Oct. 7, 1990, and then robbed, raped, stabbed and beat her with brass knuckles over a four-hour period. Mr. Williams was sentenced to two life sentences in May 1991. Mr. Sears first appeal to the Georgia Supreme Court has not been filed yet.
David Phillip Smith, 20, was sentenced to death Jan. 24 in Clayton County. He was convicted of the shotgun slaying of 16-year-old Jeremy Javies, a friend and neighbor. Mr. Smith methodically shot Jeremy in the arms and legs before putting the barrel of a sawed-off shotgun in the teen-ager's mouth and firing a final time. The first appeal to the state Supreme Court hasn't been filed yet.
Norris Speed, 26, was sentenced to death in October 1993 in Fulton County for killing a police officer, 32-year-old Niles Johantgen, known on his beat as "Russian." Prosecutors contended Mr. Speed was angry with Officer Johantgen who had arrested a man selling drugs from Mr. Speed's home, and for stopping and patting down three friends on Dec. 12, 1991. Witnesses said Mr. Speed walked up behind Officer Johantgen and shot him in the head. Mr. Speed had prior felony convictions. His first possible appeal to the state Supreme Court hasn't been filed yet.
Ronald Keith Spivey, 57, was sentenced to death in August 1977 in Muscogee County for shooting to death Columbus Police Officer Billy Watson, 41. The officer was off-duty on Dec. 28, 1976, when Mr. Spivey was in the process of robbing a lounge. Officer Watson, a six-year veteran officer, was married with three children. A federal appeal challenging the fairness of his trial has been pending since November 1995.
William Kenny Stephens, 49, was sentenced to death in Richmond County in February 1980 and again in November 1989. The second jury heard evidence of Mr. Stephens' schizophrenia and mental retardation but found death was the appropriate punishment for the shooting death of Investigator Larry D. Stevens, 38. The state Supreme Court sent Mr. Stephens' case back to Richmond County Superior Court for an answer to a question nearly seven years ago. The case has been pending every since.
Alphonso Stripling, 39, was sentenced to death in July 1989 in Douglas County. Mr. Stripling, who served time for armed robberies in 1973, 1979 and 1980, was convicted of shooting four co-workers on Oct. 15, 1988, when he decided to rob the fast food restaurant. Two of the employees 19-year-old Anthony Evans and 34-year-old Gregory Bass died from gunshot wounds. A state appeal challenging the fairness of his trial has been pending since June 1995.
Keith Bryan Taylor, 43, was sentenced to death in October 1990 in Pierce County for killing his 29-year-old estranged wife the day he received a court order to stay away from her. When an officer went to check on Lorrie Taylor on Jan. 12, 1989, Mr. Taylor answered the door dripping blood. The jury rejected an insanity defense by Mr. Taylor, who had been hospitalized for paranoid schizophrenic in 1987 and 1988. His state appeal challenging the fairness of his trial has been pending since December 1995.
Bryan Keith Terrell, 29, was sentenced to death in January 1995 in Newton County for the robbery and murder of 70-year-old John Henry Watson. Mr. Terrell had been released on parole about two months before Mr. Watson's June 22, 1992, murder. Mr. Terrell had forged about $8,000 in checks on Mr. Watson's bank account before the killing. Mr. Watson was beaten in the head and shot four times. Mr. Terrell's first possible appeal to the state Supreme Court hasn't been filed yet.
Keith Leroy Tharpe, 39, was sentenced to death in January 1991 in Jones County for the shotgun slaying of his 29-year-old sister-in-law, Jacqueline Freeman. On Sept. 25, 1990, Mr. Tharpe, who had repeatedly threatened and harassed his estranged wife and her family, used his vehicle to force his wife's car off the road. After shooting Ms. Freeman twice, he kidnapped and raped his estranged wife. Mr. Tharpe's only prior arrests were for driving violations. The state Supreme Court ordered the trial court to reconsider Mr. Tharpe's sentence, and that has been pending since February 1993.
Gary Chad Thomason, 21, was sentenced to death in Floyd County in October 1996. Mr. Thomason was convicted of killing 34-year-old Jerry Self, who was shot in his truck in his own driveway when he interrupted a burglary. Mr. Thomason's defense attorney had him plead guilty and waive a jury trial, leaving a judge to determine his punishment. The Supreme Court affirmed his conviction and sentence in July.
Ronnie Thornton, 32, was sentenced to death in November 1992 in Douglas County for the beating death of his girlfriend's 2-year-old daughter, Artealia Lavant, on May 7, 1991. Doctors determined Artealia and her siblings had been repeatedly abused. The state Supreme Court reversed Mr. Thornton's convictions in May 1994 because the prosecutor used videotaped testimony instead of calling the children to testify. A retrial hasn't been held yet and Mr. Thornton was transferred off death row in September. Artealia's mother, Shirley Lavant, pleaded guilty to cruelty to children and received a four-year sentence.
William Lamar Todd, 40, was sentenced to death in May 1989 in Harris County. On July 12, 1988, a co-worker found the body of Randy Churchwell, 33, at his home. Mr. Churchwell had been hit at least 12 times with a hammer. Mr. Todd later told police that he and his girlfriend stole Mr. Churchwell's wallet and car and headed to Texas where they were arrested two weeks later. Mr. Todd's only prior conviction was for simple possession of marijuana in Florida. A state appeal challenging the fairness of his trial has been pending since December 1995.
Johnny Lamar Wade, 41, was sentenced to death in March 1987 in Newton County for the strangulation killing of 13-year-old Lance Barnes. The boy disappeared Aug. 8, 1986, after riding his bike to the store. Lance was seen leaving the store with Mr. Wade, his bike in the back of Mr. Wade's pickup truck. Lance's body was found the next day in the woods, his bike nearby. He had been beaten on the head and strangled. The Georgia Supreme Court reversed Mr. Wade's death sentence, but he was resentenced to death by another jury in April 1989. His state appeal challenging the fairness of his second trial has been pending since January 1994.
Tommy Lee Waldrip, 51, was sentenced to death in October 1994 in Dawson County for killing an eyewitness to a robbery that his son committed. Keith Evans, 23, was beaten and shot to death on April 13, 1991. Mr. Waldrip's son John Mark Waldrip and friend Howard Kelly Livingston were both sentenced to life in prison. In March the Georgia Supreme Court affirmed Mr. Waldrip's conviction and sentence. In July, the state Supreme Court overturned Mr. Livingston's conviction.
Jamie Ray Ward, 41, was sentenced to death in July 1991 in Walker County for killing a 23-year-old woman who was five months pregnant. Investigators believe Mr. Ward was a serial rapist whose crimes escalated to murder on Aug. 17, 1989, when he abducted Nikia Gilbreath from her home. Mr. Ward was arrested months later after he kidnapped and raped a woman in another county and police found items belong to Mrs. Gilbreath at his home. Mr. Ward's state appeal challenging the fairness of his trial has been pending since April 1993.
Eurus Kelly Waters, 52, was sentenced to death in January 1981 in Glynn County for killing a teen-age girl and a woman. On April 25, 1980, emergency workers found 35-year-old Kathryn Ann Culpepper bleeding from a chest wound. She described Mr. Waters and his car and told police that she and her friend, 16-year-old Anita Lynette Paseur, were fishing when accosted. Anita's body was found that night on a back road, and Ms. Culpepper died five days later. Mr. Waters, a Waycross cab driver, had been treated for mental illness since 1978. His case was sent back to the trial court on the issue of mental retardation in December 1995.
Marcus Wellons, 41, was sentenced to death June 1993 in Cobb County. In December, Mr. Wellons came within three hours of execution because an attorney who had just volunteered to file an appeal petition was denied time to study the case. A U.S. District judge stayed the execution. Mr. Wellons was convicted of the rape and murder of 15-year-old India Roberts who lived in the same apartment building as Mr. Wellons' girlfriend on the morning of Aug. 31, 1989.
Frederick R. Whatley, 23, was sentenced to die in Spalding County this year for the Nov. 3, 1993, robbery and beating death of a McDonald's restaurant employee. The 18-year-old victim, Mark Fugate, was a key witness against his own father, Wallace Marvin Fugate III, who killed his mother and is now on death row in Georgia. Mr. Whatley's co-defendant Jeffery Cross hasn't been tried yet. Mr. Whatley's first appeal to the Georgia Supreme Court hasn't been filed yet.
Alexander E. Williams, 29, was sentenced to death in Richmond County in August 1986 for the kidnapping, robbery, rape and murder of 16-year-old Aleta Carol Bunch. She disappeared March 4, 1986. Her body was found 11 days later after Mr. Williams' then attorney told police where to look. Mr. Williams had prior convictions for theft and entering an automobile. In August, U.S. District Judge Dudley H. Bowen Jr. denied Mr. Williams' federal appeal challenging the fairness of his trial.
Willie James Wilson Jr., 40, was sentenced to death in February 1982 in Pierce County for the shooting deaths of two men during an armed robbery. Alfred Boatwright, 64, and Morris Highsmith, 58, were shot to death June 22, 1981 at Mr. Boatright's handyman store. At the time, Mr. Wilson was a soldier who was AWOL from Fort Stewart. In March 1991, Mr. Wilson's case was sent back to the trial court on the issue of mental retardation.
A total of 54 individuals convicted of murder have been executed by the state of Georgia since 1976:
1. John Eldon Smith 15 December 1983 electric chair Ronald Akins and Juanita Akins
Wellons v. State, 266 Ga. 77, 463 S.E.2d 868 (Ga. 1995). (Direct Appeal)
Defendant was convicted in the Superior Court, Cobb County, Mary Staley, J., of malice murder and rape of 15–year-old victim and received death sentence for murder and life sentence for rape. Defendant appealed. The Supreme Court, Thompson, J., held that: (1) evidence supported convictions; (2) black potential jurors' reservations about death penalty justified state's peremptory strikes; (3) potential juror's responses during voir dire justified trial court's decision to exclude them for cause; (4) eyewitness identification procedure was sufficiently reliable to render identification admissible; (5) trial court was not required to recuse herself on basis of alleged contact with jurors; (6) evidence supported finding of aggravating circumstances that defendant committed murder while engaged in commission of other capital felonies and that murder was wantonly vile and horrible; (7) defendant failed to establish prima facie case of jury discrimination; and (8) imposition of death sentence was appropriate. Judgments affirmed.
THOMPSON, Justice.
Marcus A. Wellons was convicted of the malice murder and rape of 15–year–old India Roberts. The jury found as statutory aggravating circumstances that the murder was committed in the course of two other capital felonies, rape and kidnapping with bodily injury, and that the murder was wantonly vile and horrible in that it involved torture to the victim before death and depravity of mind. The jury sentenced Wellons to death for the murder. He received a life sentence for the rape. Wellons appeals from the judgments entered by the trial court.FN1 Wellons contends among his 35 enumerated errors that, by erroneously requiring him to disclose the identities and reports of all experts with whom he consulted pretrial, whether or not he chose to call the experts to testify, the trial court so chilled his consultation with experts that he was prevented from effectively presenting his insanity defense in the guilt-innocence phase of trial and his evidence in mitigation in the sentencing phase. We disagree, finding that although based on present law the trial court's ruling was in error, Wellons suffered no harm. Having thoroughly considered each of Wellons' enumerated errors and the entire record on appeal, we affirm.
FN1. The crimes occurred on August 31, 1989. Wellons was indicted on April 5, 1990 and reindicted on December 3, 1991. On April 20, 1990, the state filed its notice of intent to seek the death penalty. Voir dire commenced on May 19, 1993, and the trial of the case began on June 1, 1993. The jury returned its sentencing phase verdict on June 8, 1993, and the trial court sentenced Wellons that same day. Wellons filed a motion for new trial on July 2, 1993. He amended the motion on June 23, 1994. The trial court denied the motion on October 5, 1994. Wellons filed his notice of appeal on November 3, 1994. The case was docketed on January 20, 1995 and orally argued on June 19, 1995.
1. The evidence presented at trial authorized the jury to find the following facts:
Throughout the summer of 1989, Wellons lived with his girlfriend, Gail Saunders, in her townhouse apartment in Cobb County. Early that summer, Saunders' 14–year–old son Tony also lived in the apartment. Tony and the victim, who lived in a neighboring apartment with her mother, were friends. The victim occasionally visited Tony inside Saunders' apartment, where the two youths would watch television or play Nintendo. Wellons encouraged Tony to date the victim, remarking several times that she was a good looking girl. At some point during the summer, Tony moved to Chattanooga to live with his grandparents. The victim continued to spend time with Saunders occasionally. Saunders described herself as the victim's “play mommy” with whom the victim shared confidences.
Wellons and Saunders had become acquainted at the hospital where both worked, Wellons as a counselor in the psychiatric ward. Wellons moved in with Saunders on the pretense that he owned a home but was unable to occupy it, because an ex-girlfriend had moved there with her two young daughters, and he could not in good conscience turn them out. Over the summer Wellons proposed marriage to Saunders. However, by then Saunders had become wary of Wellons, who was increasingly hostile and abusive. She verbally accepted his proposal out of fear, all the while seeking an escape from her predicament.
On the evening of August 30, 1989, Saunders told Wellons that their relationship was over and that he must move out of her apartment. Wellons, who had recently been fired from his job, purchased a one-way ticket to Miami for a flight departing on the evening of August 31. Fearing to be alone with Wellons the night before his departure, Saunders told Wellons that she was going to Chattanooga to spend the night with her parents and enroll Tony in school. Instead, Saunders went to the home of a female friend.
That evening, Wellons began making desperate attempts to reach Saunders by telephone. He called her mother in Chattanooga repeatedly, only to be told that Saunders had not arrived. Wellons then called Saunders' friends, but no one knew or revealed her whereabouts. He called his mother and told her he suspected that Saunders was with another man. Wellons became increasingly angry and began drinking. He ransacked Saunders' apartment. He overturned potted plants and furniture, threw flour onto the floor, and poured bleach over all of Saunders' clothes, carefully sparing his and Tony's belongings in the process.
After the apartment was demolished, Wellons began attempts to cover up his deed. He broke a window, from the inside out, cutting his hand in the process and smearing blood around the apartment. He stacked electronic equipment by the door. He then called 911 at approximately 3:00 a.m. on August 31 to report a burglary. When a police officer arrived, Wellons told the officer that he had come home to find the apartment ransacked, although no items were missing. Wellons explained to the officer that he cut his hand while struggling to uncover a stash of money to determine if it had been taken. Sometime after the officer left, Wellons wrote a racial slur across the wall in Saunders' bedroom.
Several hours later, at approximately 8:00 a.m., the victim said goodbye to her mother and walked from her apartment, past Saunders' door, toward the school bus stop. Shortly thereafter, Saunders' next door neighbor heard muffled screams from inside Saunders' apartment.
The apartment building was close to a wooded area, beyond which was a grocery store. At approximately 2:00 p.m., Wellons approached an acquaintance who was employed at the grocery store and asked to borrow a car. The acquaintance refused. Wellons told the acquaintance that when he (Wellons) returned home the previous night, he encountered two white men who were burglarizing the apartment. Wellons said that he successfully fought off the intruders but explained that he had in the process sustained the injuries to his hand.
About half an hour later, Theodore Cole, a retired military police officer, was driving near the wooded area behind the apartment complex. He spotted in the distance a person carrying what appeared to be a body wrapped in a sheet. He distinctly saw feet dangling from the bottom of the sheet. Cole drove on but then returned for a second look. He drove around in the parking lot of the apartment complex and saw nothing. As he was driving away, however, he saw a man in his rear view mirror walk along the road and throw a sheet into the woods. Cole drove directly to the grocery store, where he called 911. Police officers arrived quickly and began a search of the woods.
The police first discovered sheets, clothing and notebooks bearing Tony's name. Then, upon close inspection of a pile of tree branches near where he had seen the man carrying the sheet, Cole spotted the body of India Roberts. When the branches were removed, the officers discovered that the victim was completely unclothed, with cuts on one side of her face and ear and bruises on her neck.
During the search of the woods, Cole spotted a black man with a bundle under his arm near the apartment building and identified him as the man Cole had seen carrying the sheet. Cole and an officer chased the man, but as they approached the building, the man turned the corner and Cole and the officer heard a door shut. The officer learned from a passerby which apartment was occupied by a man fitting the description given by Cole. He knocked on Saunders' door and announced his presence, but there was no answer. He returned to join the other officers, who were investigating the scene in full force, with helicopters overhead.
Wellons, now trapped inside Saunders' apartment with residual evidence of his crime, gave up his attempt to dispose of the evidence in the woods. He first tried to clean the apartment and his clothes. He then abandoned that project, changed into swim wear, grabbed an old, yellowed newspaper and a cup of wine, partially barricaded and locked the door, and headed for the pool. On his way, Wellons caught sight of a police officer and stopped abruptly. The officer began questioning him. Initially evasive, Wellons did ultimately tell officers that the injuries to his hand, and new scratches to his face, were sustained during a scuffle with two men whom he had caught burglarizing Saunders' apartment.
While investigating the scene, officers had asked Cole whether either of two black males was the man Cole had seen carrying the sheet. Cole immediately ruled out each of the men. Then, while officers were questioning Wellons, one officer standing at a distance from the questioning asked Cole whether Wellons was the man he had seen. Cole said that although Wellons was wearing different clothing from the man he had seen carrying the sheet, and whom he had again seen near the complex, Cole was 75 to 80 percent certain that Wellons was the same man.
Later that day, officers searched Saunders' apartment. Inside, they found numerous items of evidence including the victim's notebooks and earrings. In Tony's room, they discovered the victim's panties. They also found blood on Tony's mattress and box springs. The mattress had been flipped so that the bloody portion was facing downward, and the bed had been remade.
The autopsy revealed that the victim died from manual strangulation, which in itself would have taken several minutes. The autopsy also showed that Wellons had attempted to strangle the victim with a ligature, possibly a telephone cord, and that he had bruised her and cut her face and ear with a sharp object. The evidence suggested that Wellons had dragged or otherwise forcibly moved the victim from the kitchen up the stairs to Tony's bedroom. Finally, the autopsy revealed a vaginal tear and copious amounts of what appeared to be seminal fluid within the victim's vagina. She had defensive wounds to her hands, and her blouse was stained with her own blood.
Although a not guilty plea was entered for Wellons, he did not dispute his participation in the crimes. Instead, he urged the jury to return a verdict of not guilty by reason of insanity or guilty but mentally ill.
The evidence is sufficient to enable any rational trier of fact to find appellant guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).In keeping with our opinion in Sabel v. State, 248 Ga. 10, 18, 282 S.E.2d 61 (1981), the trial court ordered Wellons to disclose before trial the identities and reports of all experts consulted by the defense, whether or not those experts would be called to testify. Since the date of trial, we held in Rower v. State, 264 Ga. 323, 325, 443 S.E.2d 839 (1994) that the state is only entitled to discover those scientific reports which the defense intends to use at trial. Although Rower was decided after this case was tried, Wellons' appeal was “in the pipeline,” so the Rower rule applies, and there was error. See Thornton v. State, 264 Ga. 563, 574, 449 S.E.2d 98 (1994). The question, therefore, is whether under the facts of this case, the error was harmful.
The state correctly notes that the defense in fact made no disclosures incompatible with the ruling in Rower. The defense disclosed no reports of non-testifying experts. Only one non-testifying expert was even identified, and he was never mentioned at trial.
Nevertheless, Wellons contends that he was seriously harmed by the trial court's ruling. He contends that the ruling chilled his ability to consult with mental health experts, forcing him to choose blindly between unacceptable alternatives. On the one hand, he could cooperate with an expert assessment and risk both having to disclose an unfavorable evaluation and indirect disclosure by the expert of his confidential communications about the murder. On the other hand, he could decline to cooperate with experts and risk foregoing the presentation of a viable insanity or mental health defense. Wellons repeatedly urged the trial court to reverse its ruling until shortly before trial, when he finally decided to cooperate with his expert psychologist, psychiatrist and sociologist, short of discussing the murder itself, and to present a defense of insanity or mental illness. At that point, he contends that he did not have enough time to effectively prepare his mental health evidence in defense or in mitigation. He further contends that he was left without time to evaluate the viability of those defenses as contrasted with a defense of actual innocence or insufficient evidence. Finally, he contends that he suffered unfairly from his psychologist's failure to prepare a report on short notice, because at trial the state portrayed the failure to prepare a report as an effort to conceal the truth.
A thorough review of the record on appeal convinces us that Wellons' contentions have no merit. Wellons presented testimony from 17 witnesses in mitigation. Included among them were lay witnesses who testified regarding the abuse suffered by Wellons' family, and most notably by Wellons himself, at the hands of Wellons' father. They also testified to some degree of substance use or abuse by Wellons. An expert sociologist testified about the typical effects of an abusive childhood. She then testified regarding her compilation of Wellons' family history through interviews with testifying witnesses and other neighbors and relatives. Finally, Wellons' expert psychologist, who testified that he was directed by defense counsel not to reduce his report to writing, offered his conclusions based on his testing of and conversations with Wellons and on the written report of the sociologist. The psychologist testified that Wellons suffers from post-traumatic stress, a mixed personality disorder and substance abuse. He testified that Wellons does not suffer from organic brain damage and is not psychotic. He further acknowledged in his testimony that Wellons was also evaluated by a court-appointed psychiatrist, who concluded that Wellons is an intelligent, well-educated man with a significant personality disorder but no brain damage and no psychosis.
Although Wellons presented no expert testimony in the guilt-innocence phase of trial, the evidence as a whole demonstrates that his defenses of insanity and mental illness were simply not viable. See Bright v. State, 265 Ga. 265, 273–274, 455 S.E.2d 37 (1995) (greater showing of mental health problems than in present case held inadequate even to entitle defendant to expert assistance in guilt-innocence phase). Nor did Wellons have a viable alternate defense of actual innocence or insufficient evidence. The evidence of guilt was overwhelming. Therefore, the error, though it might well have initially had a chilling effect on consultation with experts, was ultimately harmless. The chilling effect could have been and apparently was cured after Wellons decided to raise the insanity defense. His counsel made an intelligent, strategic choice not to contest Wellons' participation in the crimes, to merely introduce the idea of mental illness in the guilt-innocence phase of trial, and then to bring every effort to bear in mitigation.
3. The state exercised its peremptory strikes to remove from the jury three of the four African Americans on the panel, citing as a reason for each of the strikes that the potential juror was weak on the death penalty. Wellons contends that the state's reasons are pretextual and that the state engaged in purposeful discrimination against African American jurors. See Batson v. Kentucky, 476 U.S. 79, 97–98, 106 S.Ct. 1712, 1723–24, 90 L.Ed.2d 69 (1986). He argues that the state's discriminatory intent is evident upon a review of the entire voir dire of each of the stricken jurors—none of whom expressed more than slight reservations about the death penalty—in conjunction with the voir dire of white jurors who were not stricken and who were at least as reticent to impose the death penalty.
The trial court's determination that Wellons failed to establish purposeful discrimination was not clearly erroneous. See Lingo v. State, 263 Ga. 664, 666, 437 S.E.2d 463 (1993). The prosecutor presented “concrete, tangible, race-neutral and neutrally-applied” reasons for the strikes sufficient to overcome Wellons' prima facie case of discrimination. See id. Two of the three stricken black jurors expressed some reservations about the death penalty, and the prosecution contemporaneously noted on the record the apparent reticence of the third, who hesitated in her answers on the subject. Each of the white jurors who expressed slight reservations about the death penalty and who were not stricken also expressed moderate to strong reservations about a mental health defense. Therefore, on balance, those jurors were more favorable for the state than for the defense.
4. Wellons contends that the trial court erred in failing to excuse for cause seven potential jurors who stated that death would be the appropriate penalty for murder. Read as a whole, the voir dire of each of the prospective jurors supports the trial court's finding that the juror could serve impartially and consider both the evidence in mitigation and the trial court's instructions. See Mobley v. State, 265 Ga. 292, 295, 455 S.E.2d 61 (1995). Therefore, we find no error.
5. Wellons next maintains that the court erroneously excluded for cause five potential jurors who expressed reservations about imposing the death penalty. Read as a whole, however, the voir dire of each juror established that her views on capital punishment would have prevented or substantially impaired the performance of her duties in accordance with her instructions and oath. Alderman v. State, 254 Ga. 206, 207, 327 S.E.2d 168 (1985).
6. (a) Wellons contends that the trial court erred in failing to excuse for cause the following prospective jurors: (1) one whose son was killed in a vehicular homicide which was the subject of ongoing prosecution by the District Attorney's office; (2) a forensic expert with the State Crime Lab who has testified as an expert for the prosecution in Georgia in 900 to 1,000 cases and who was acquainted with various witnesses; (3) a prospective juror whose sister was a murder victim and who stated that he is more callous than he used to be; and (4) two prospective jurors who expressed qualms about a mental health defense. We find no error. The decision to strike a juror for cause lies in the sound discretion of the trial court. See Garland v. State, 263 Ga. 495, 496, 435 S.E.2d 431 (1993). The court did not abuse its discretion with respect to any of the five jurors, whose voir dire shows that none of them held opinions or biases which were so fixed that they could not be set aside to decide the case on the evidence. Id.
(b) The trial court did not err in excusing for cause a Korean American prospective juror with evident difficulty speaking and understanding English. See Bennett v. State, 262 Ga. 149, 151, 414 S.E.2d 218 (1992). The prospective juror said herself that she would not be able to follow all of the testimony at trial nor to understand each of her fellow jurors during deliberations.
7. Wellons contends that Cole's eyewitness identification of him, described above, was the unreliable product of unduly suggestive procedures, creating a substantial risk of misidentification at trial, and that therefore it should not have been admitted. Wellons further contends that the district attorney was involved in the suggestive procedure and therefore had a conflict of interest as prosecutor and witness. He argues that, because the defense was unable to call the district attorney to testify, a new trial is mandated.
We find no error. First, the district attorney stated in his place at a hearing that he was not involved in the identification procedure, and the testimony of Cole supports that recollection. Second, the identification procedure was sufficiently reliable. Cole had an opportunity to view Wellons at close range in broad daylight at the time he saw Wellons carrying the sheet; Cole was a retired military police officer with 25 years of experience who paid close attention when he returned to the scene in his car specifically to get a second view of the person he had seen carrying the victim's body; he had given an accurate description of Wellons, including his skin tone, approximate height and build, and had seen Wellons again near the apartment complex before the identification at issue; only a short time had passed between Cole's earlier sightings of Wellons and the identification; and Cole stated at the scene and at trial that he was 75 to 80 percent certain Wellons was the same man he had seen with the sheet. Manson v. Brathwaite, 432 U.S. 98, 113–116, 97 S.Ct. 2243, 2252–2254, 53 L.Ed.2d 140 (1977). Furthermore, there is no evidence that Cole was coerced to make the identification. See Manson, 432 U.S. at 116, 97 S.Ct. at 2254. Significantly, Cole had already excluded two other individuals as possible suspects. Under all of these circumstances, we cannot find “a very substantial likelihood of irreparable misidentification.” See id., citing Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). It was therefore for the jury to decide the weight to be accorded to the testimony. See Manson, 432 U.S. at 116, 97 S.Ct. at 2254.
8. There is no merit to Wellons' contention that the prosecutor falsely argued that the victim was tortured prior to death. The evidence supports the conclusion that Wellons, a large, 34–year–old man, raped the 15–year–old victim, cut her, strangled her with a ligature and ultimately crushed her throat with his hands, and that she struggled to free herself. This clearly constitutes torture. See Hill v. State, 246 Ga. 402, 409–410, 271 S.E.2d 802 (1980); Hance v. State, 245 Ga. 856, 861, 268 S.E.2d 339 (1980).
9. The prosecutor did not improperly interject victim impact evidence in either phase of trial. The age of the victim was relevant and thus an appropriate subject for comment by the prosecutor. See Smith v. State, 255 Ga. 685, 686, 341 S.E.2d 451 (1986). In particular, in the sentencing phase, her young age could be considered in the jury's determination whether Wellons acted with a depraved mind. See Hance v. State, 245 Ga. 856, 862, 268 S.E.2d 339 (1980). The prosecutor's characterization of the victim as a little girl was neither improper nor inaccurate. The fact that the victim was a sophomore in high school was relevant background information, because the murder occurred during the first week of the school year, the victim was abducted on her way to the school bus stop, and her school supplies were strewn at the scene of the murder and admitted into evidence. One could reasonably infer from the evidence that the murder was unprovoked, so the prosecutor's comment that the victim did nothing to deserve her death was not inappropriate. See Fugate v. State, 263 Ga. 260, 265, 431 S.E.2d 104 (1993); Kinsman v. State, 259 Ga. 89, 92, 376 S.E.2d 845 (1989). Argument that Wellons deprived the victim of life experiences and opportunities which he had enjoyed, such as dating, college, marriage and parenting, was not impermissible. See Ledford v. State, 264 Ga. 60, 67–68, 439 S.E.2d 917 (1994). The prosecutor's comment that perhaps the victim, like Wellons, could have complained about her formative years was merely an example to rebut Wellons' claim that his troubled childhood was a mitigating factor. Pleas for retribution, such as the request that the jury return “one for India,” are not improper. See Walker v. State, 254 Ga. 149, 159, 327 S.E.2d 475 (1985); Johnson v. State, 187 Ga.App. 803, 804, 371 S.E.2d 419 (1988).
10. Wellons contends that the prosecutor improperly commented on Wellons' failure to testify. In closing argument in the guilt-innocence phase of trial, the prosecutor said that “only two people know what went on in that apartment,” and “there's only two people who can tell us how long that horror lasted.”
We find no error. Reversal for prosecutorial misconduct requires a finding that the prosecutor's manifest intent was to comment on Wellons' failure to testify or that the jury would naturally and necessarily understand the remarks as a comment on Wellons' silence. See Lobdell v. State, 256 Ga. 769, 774–775, 353 S.E.2d 799 (1987). In context, the prosecutor's comments were but a small part of a summary of the evidence best understood as conceding the ambiguities therein and were unlikely to be interpreted as comments on Wellons' failure to testify. Furthermore, the trial court appropriately charged the jury that no adverse inferences were to be drawn from Wellons' silence.
11. Wellons enumerates as error various other comments made by the prosecutor in closing argument. We find no impropriety in any of the remarks. In particular, the prosecutor's comment that Saunders was a meticulous housekeeper who valued family things was relevant to Wellons' motive in ransacking her apartment and destroying items she treasured, and it was also relevant to an understanding of the evidence collected at the scene. The prosecutor's argument that Wellons' presentation of evidence about his religious beliefs was offensive and should not be considered as mitigating was a proper comment on the genuineness of a “jail-house” religious conversion, because the argument “addresses itself to the sincerity of the defendant's rehabilitation, which is a legitimate consideration on the issue of sentence.” Todd v. State, 261 Ga. 766, 768 n. 2, 410 S.E.2d 725 (1991).
12. Wellons contends that the prosecutor elicited improper testimony regarding Wellons' prior difficulties with the victim without first giving notice pursuant to Uniform Superior Court Rule 31.3. Saunders testified that sometime in the weeks prior to the murder, when the victim was watching television in Saunders' apartment, Saunders saw Wellons stare at the victim with a look in his eyes and a gesture that made Saunders uncomfortable. Saunders further testified that, as a result of what she observed, she later told Wellons never to let the victim in the apartment when Saunders was not home.
Compliance with USCR 31.3 before admitting evidence of prior acts between the victim and the accused is mandatory. Barrett v. State, 263 Ga. 533, 535, 436 S.E.2d 480 (1993). We do not think that the described conduct rises to the level of a prior difficulty.FN2
FN2. Even assuming arguendo that we view the evidence as a prior difficulty and that the trial court erred in admitting it absent prior notice, any such error was harmless. In light of the overwhelming evidence of Wellons' guilt, it is highly probable that admission of the evidence did not contribute to the verdict. See Barrett, supra.
13. Wellons contends that the prosecutor improperly introduced evidence of uncharged conduct and other bad acts allegedly committed by Wellons. We disagree. In each instance, the state properly impeached Wellons' character witnesses. One of the witnesses had been a member of the campus security police force when Wellons was in college. After he testified regarding Wellons' good character, the state properly questioned whether he had knowledge of two incidents on campus involving Wellons. The witness denied personal knowledge of one incident but stated that the second incident was resolved in Wellons' favor and that the witness personally reprimanded the officer involved. Immediately following the question regarding the first incident, the trial court instructed the jury that the testimony did not establish that the incident occurred and that the question was allowed for the limited purpose of testing the witness' knowledge of Wellons' character and activities. The other witness was a deputy sheriff who testified on direct regarding Wellons' good behavior in jail. Defense counsel elicited testimony from the witness that he had no first-hand knowledge of Wellons' disciplinary problems and only knew of them from records. On cross-examination, the state properly obtained an admission from the witness that he was aware of a stack of disciplinary reports involving Wellons which had preceded the witness' employment at the jail and that he was aware that Wellons had constantly been in trouble. When a defendant places his character in issue, the state may cross-examine character witnesses to test the extent and foundation of the witnesses' knowledge of the defendant's character. Jones v. State, 257 Ga. 753, 756, 363 S.E.2d 529 (1988). The pretrial notice requirements of OCGA § 17–10–2 did not apply. See Christenson v. State, 261 Ga. 80, 90–91, 402 S.E.2d 41 (1991). The state was required only to demonstrate, following Wellons' objections, that its questions were asked in good faith and based on reliable information that could be supported by admissible evidence. See id. The state made the requisite demonstration, so its inquiries were proper. See Medlock v. State, 264 Ga. 697, 698–699, 449 S.E.2d 596 (1994).
14. Having found no prosecutorial misconduct, we reject Wellons' contention that the cumulative effect of prosecutorial misconduct requires reversal.
15. The trial court did not improperly restrict defense counsel's voir dire of prospective jurors. Presented with Wellons' pretrial motion requesting the latitude to pose questions regarding a variety of issues, the trial court merely applied settled principles of law.
16. The trial court did not err in failing to instruct the jury in the guilt-innocence phase on delusional compulsion. There was no evidence in the record to support such a charge, and the defense never suggested at any time during the trial that Wellons acted upon a delusional compulsion. Nor did the court err in failing to give Wellons' requested charge on voluntary intoxication. Voluntary intoxication is a defense only when such intoxication has caused more than a temporary alteration of brain function which negates intent. Horton v. State, 258 Ga. 489, 491, 371 S.E.2d 384 (1988). The only evidence of intoxication was that Wellons appeared with a cup of wine when police were conducting their investigation hours after the murder and that Wellons had been drinking the night before the murder. There was no evidence of altered brain function.
17. Wellons contends that the court improperly charged on reasonable doubt, reducing the burden of proof on the prosecution. The court stated that “moral and reasonable certainty is all that can be expected in a legal investigation” and that “a reasonable doubt is a doubt for which a reason can be given.” Because the charge as a whole accurately conveyed the concept of reasonable doubt, we find no error. See Armstrong v. State, 265 Ga. 18, 19, 453 S.E.2d 442 (1995).
Wellons contends that the trial judge should have recused herself because she and the bailiffs allegedly had improper communications with jurors. Wellons supports his allegations solely with affidavits of defense counsel relating hearsay regarding post-trial interviews with jurors. He contends first that the judge spoke with the jurors in a restaurant on one occasion and second that, at or before the close of the sentencing phase, jurors presented the judge and a bailiff with gag gifts.
We find no error. Upon being presented with a motion for recusal pursuant to Uniform Superior Court Rule 25.1, it is the duty of the trial judge to determine whether, assuming the truth of any of the facts alleged, a reasonable person might conclude that the judge harbors a bias, stemming from an extra-judicial source, which is of such a nature and intensity that it would impede the exercise of impartial judgment. Birt v. State, 256 Ga. 483, 485–486, 350 S.E.2d 241 (1986). Assuming that the trial judge in fact encountered and spoke to the jurors in a restaurant and that she and a bailiff were the passive recipients of gag gifts, there was no basis for concluding that judicial bias existed.
19. Wellons next contends that the trial judge should have recused herself because she allegedly displayed emotion in the presence of the jury during the state's closing argument in the penalty phase. This allegation was supported solely by the affidavit of trial counsel regarding his personal observations during trial. Pursuant to USCR 25.1, motions to recuse must be filed “not later than five days after the affiant first learned of the alleged grounds for disqualification.” Wellons' motion was filed several months after trial. Therefore, the trial court properly found that Wellons failed to satisfy the time requirement or to show good cause for such failure, and denial of the motion to recuse was proper. See USCR 25.3; Pope v. State, 257 Ga. 32, 35, 354 S.E.2d 429 (1987).
20. There is no merit to Wellons' contention that the trial judge erred in failing to disqualify herself from presiding over the motion for new trial after Wellons gave notice that she would be a witness regarding the issues involved in the motion to recuse.
21. The trial court did not err in failing to instruct the jurors that they should assume that a life sentence means imprisonment for one's natural life. OCGA § 17–10–31.1(d) was not applicable to this case. Nevertheless, the trial court did charge language virtually identical to that requested by Wellons.
22. The trial court did not err in failing to give all of Wellons' requested jury instructions verbatim in the sentencing phase. Each principle of law was substantially covered by the court's pattern charges. See Hawkins v. State, 262 Ga. 193, 193, 415 S.E.2d 636 (1992).
23. The trial court did not err in charging the jury that its sentencing verdict had to be unanimous while failing to charge that findings as to mitigating circumstances need not be unanimous. The court clearly charged that it was not necessary for the jury to find any mitigating circumstances to impose a life sentence. See Ledford v. State, 264 Ga. 60, 69, 439 S.E.2d 917 (1994).
24. Wellons contends that the trial court's instructions on the statutory aggravating circumstances were unconstitutionally vague and unsupported by the facts. We disagree. The evidence amply supports the court's charges on, and the jury's findings of, the following aggravating circumstances: that Wellons committed the murder while engaged in the commission of another capital felony, rape, OCGA § 17–10–30(b)(2); that Wellons committed the murder while engaged in the commission of another capital felony, kidnapping with bodily injury, id.; and that the murder was wantonly vile and horrible in that it involved torture and depravity of mind, OCGA § 17–10–30(b)(7). That the jury had convicted Wellons of rape in the guilt-innocence phase did not prevent its finding of rape as an aggravating circumstance for the crime of murder. See Jefferson v. State, 256 Ga. 821, 829, 353 S.E.2d 468 (1987). The state's decision not to indict Wellons for kidnapping did not prevent use of that offense as a statutory aggravating circumstance. See Skipper v. State, 257 Ga. 802, 807, 364 S.E.2d 835 (1988). Nothing prevented the jury from finding two aggravating circumstances under OCGA § 17–10–30(b)(2). See Lynd v. State, 262 Ga. 58, 59–60, 414 S.E.2d 5 (1992). Finally, the court adequately guided the jury's discretion with respect to the (b)(7) aggravating circumstance.
25. The trial court did not err in excluding evidence that Wellons offered to plead guilty in exchange for two life sentences and that in other cases in Cobb County the state has accepted such a plea. See Mobley v. State, 265 Ga. 292, 300, 455 S.E.2d 61 (1995); Jones v. State, 263 Ga. 904, 905, 440 S.E.2d 161 (1994).
26. Wellons' contention that the trial court erred in refusing to suppress evidence seized from his residence lacks merit. Probable cause clearly existed for the issuance of the warrant to search Saunders' apartment. Furthermore, Saunders, the sole lessee of the apartment who shared a room with Wellons, voluntarily consented to the search orally and in writing. See Hall v. State, 239 Ga. 832, 833, 238 S.E.2d 912 (1977).
27. The trial court did not err in permitting the jury to view a videotape of the crime scene. See Foster v. State, 258 Ga. 736, 740, 374 S.E.2d 188 (1988). The videotape was relevant to show the location of the body in relation to various evidence and to the scene of the murder, the extent to which Wellons had concealed the body from view, and the relationship of various items of evidence inside the apartment. Therefore, it was clearly probative of central issues, including intent, Wellons' mental state, kidnapping and the reliability of Cole's identification of Wellons.
28. OCGA § 15–12–40, which prior to its recent amendment required the jury commission initially to compose the grand and petit jury lists from the official registered voters list of the county, did not unconstitutionally discriminate against historically underrepresented groups, because it provided for supplementation of the lists from other sources if necessary to achieve a fairly representative cross-section of the citizens of the county. Wellons has failed to show support for his contention that young adults, women, poor people and minorities were in fact underrepresented on the grand or petit juries.
29. Wellons contends that the computer selection of the petit jury pool was manipulated in a manner that resulted in discrimination against certain groups. First, he contends, but failed to show, that the method of selection excluded a segment of young people, and of people within certain other age ranges, because the computer selected only persons whose years of birth ended in a specific number or numbers. Even if Wellons' contention were true, he has failed to make out a prima facie case of jury discrimination, because he has not shown that the excluded age groups are distinct and cognizable. See Larmon v. State, 256 Ga. 228, 230, 345 S.E.2d 587 (1986); Berryhill v. State, 249 Ga. 442, 445, 291 S.E.2d 685 (1982). Furthermore, young people are not a constitutionally highly protected class, and their underrepresentation does not invoke a high standard of judicial review. Parks v. State, 254 Ga. 403, 411, 330 S.E.2d 686 (1985). Second, Wellons complains that computer selection was manipulated by disproportionately drawing African Americans from the list of registered voters until their representation on the petit jury list equalled that in the general population. He contends that this procedure failed to produce a fair cross-section of the county. In Sears v. State, 262 Ga. 805, 806, 426 S.E.2d 553 (1993), we rejected the argument that this method of creating a “forced list” is constitutionally infirm. Wellons has failed to show a level of disparity which would necessitate a result different from that in Sears.
30. There is no merit to Wellons' contention that the death penalty scheme is unconstitutional because the district attorney has unfettered discretion. McMichen v. State, 265 Ga. 598, 611, 458 S.E.2d 833 (1995). The law authorized the state to seek the death penalty in this case, and Wellons' claim that the decision to do so was racially motivated is purely speculative, particularly given that the victim was also African American. See Rower v. State, 264 Ga. 323, 323, 443 S.E.2d 839 (1994).
31. The method by which this court reviews the proportionality of death sentences is constitutionally sound. McMichen, 265 Ga. at 611, 458 S.E.2d 833.
32. Electrocution is not cruel and unusual punishment. Id.
The Unified Appeal Procedure is not unconstitutional. Ledford v. State, 264 Ga. 60, 65, 439 S.E.2d 917 (1994).
34. The provisions of the Unified Appeal and OCGA § 17–10–35(a) providing for a report of the trial court in death penalty cases are not unconstitutional. McMichen, 265 Ga. at 613, 458 S.E.2d 833.
35. Wellons enumerates as error the overruling of numerous defense objections throughout trial. Having thoroughly reviewed the entire record and carefully considered each of the enumerated rulings, we find no error.
36. Wellons' claim that the presence of the media denied him effective assistance of counsel, a fair trial and the opportunity to effectively confront and cross-examine witnesses is unsupported in the record.
37. We do not find that Wellons' death sentence was imposed under the influence of passion, prejudice or other arbitrary factor. See OCGA § 17–10–35(c)(1). The death sentence is not excessive or disproportionate to penalties imposed in similar cases, considering both the crime and the defendant. The similar cases listed in the Appendix support the imposition of the death sentence in this case.
Judgment affirmed. All the Justices concur.
Wellons v. Hall, 558 U.S. 220, 130 S.Ct. 727 (2010). (Federal Habeas)
Background: Following affirmance of his convictions for malice murder and rape and of the imposition of death penalty, 266 Ga. 77, 463 S.E.2d 868, petitioner sought federal habeas relief. The United States District Court for the Northern District of Georgia, Willis B. Hunt, Jr., J., denied the petition. Petitioner appealed. The United States Court of Appeals for the Eleventh Circuit, Wilson, Circuit Judge, 554 F.3d 923, affirmed. Certiorari was granted.
Holdings: The Supreme Court held that:
(1) petitioner's claims of judge, juror, and bailiff misconduct were not procedurally barred, and
(2) grant of certiorari, vacatur of judgment below, and remand was warranted. Vacated and remanded. Justice Scalia filed dissenting opinion in which Justice Thomas joined. Justice Alito filed dissenting opinion in which Chief Justice Roberts joined.
PER CURIAM.
From beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect. The disturbing facts of this case raise serious questions concerning the conduct of the trial, and this petition raises a serious question about whether the Court of Appeals carefully reviewed those facts before addressing petitioner's constitutional claims. We know that the Court of Appeals committed the same procedural error that we corrected in Cone v. Bell, 556 U.S. ––––, ––––, 129 S.Ct. 1769, 1780–82, 173 L.Ed.2d 701 (2009). We do not know how the court would have ruled if it had the benefit of our decision in that case.
Petitioner Marcus Wellons was convicted in Georgia state court of rape and murder and sentenced to death. Although the trial looked typical, there were unusual events going on behind the scenes. Only after the trial did defense counsel learn that there had been unreported ex parte contacts between the jury and the judge, that jurors and a bailiff had planned a reunion, and that “either during or immediately following the penalty phase, some jury members gave the trial judge chocolate shaped as male genitalia and the bailiff chocolate shaped as female breasts,” 554 F.3d 923, 930 (C.A.11 2009). The judge had not reported any of this to the defense.
Neither Wellons nor any court has ascertained exactly what went on at this capital trial or what prompted such “gifts.” Wellons has repeatedly tried, in both state and federal court, to find out what occurred, but he has found himself caught in a procedural morass: He raised the issue on direct appeal but was constrained by the nonexistent record, and the State Supreme Court affirmed his conviction and sentence. Wellons v. State, 266 Ga. 77, 88, 463 S.E.2d 868, 880 (1995). He sought state habeas relief and moved to develop evidence. But the court held that the matter had been decided on appeal and thus was res judicata. See 554 F.3d, at 932. He raised the issue again in his federal habeas petition, seeking discovery and an evidentiary hearing. But the District Court “concluded that Wellons' claims ... were procedurally barred, and accordingly denied his motion for an evidentiary hearing on these claims.” Id., at 933.FN1 Before the Eleventh Circuit, Wellons “argue [d] that the district court erred in denying his motions for discovery and an evidentiary hearing to develop his judge, juror, and bailiff misconduct claims because they are not procedurally barred.” Id., at 935. The court disagreed, holding that Wellons' claims were procedurally barred. Ibid.
FN1. Although the District Court found most of petitioner's claims to be procedurally barred, it alternatively declined to permit an evidentiary hearing because Wellons did not have enough evidence of bias or misconduct. Justice ALITO wrongly suggests that the District Court reached that conclusion by reviewing a proffer that Wellons' attorneys assembled by “contacting all but 1 of the jurors,” many of whom “spoke freely.” Post, at 734 (dissenting opinion). Even apart from the fact that these interviews were informal and unsworn, they shed almost no light on what had occurred. The juror who allegedly “gave the penis to the judge,” App. C to Pet. for Cert. 36, was “hostile and refused to talk,” id., at 37; one “refused to talk about the trial,” id., at 36; another “did not want to talk about the case,” id., at 37; and one “conferr[ed]” with his wife who then “slammed and bolted the door,” ibid. Of those jurors who were willing to talk at all, one admitted to being “concerned that she might say something that would be used for a mistrial,” id., at 35, and none admitted to knowing how or why the jury selected its “gifts,” see id., at 35–36, 37. (Implausibly, Justice ALITO suggests that Wellons' lawyers may not have asked how or why the jury selected its “gifts,” post, at 734, though he bases that speculation only on the fact that no questions appeared in the proffer of facts.) Rather, the jurors discussed other matters and did so in the briefest of terms. All told, “everything that Petitioner ... learned,” App. C to Pet. for Cert. 38, filled only a few sheets of paper, see id., at 35–36, 37.
Moreover, the subjects that the jurors did discuss may very well support Wellons' view that his trial was tainted by bias or misconduct. For example, one interviewee “was surprised” that a fellow juror had been allowed to serve on a capital trial, given that her sister had been murdered by a man after he completed serving a life sentence. Id., at 36.
As our dissenting colleagues acknowledge, post, at 732 (opinion of SCALIA, J.); post, at 733 (opinion of ALITO, J.), the Eleventh Circuit's holding was an error under Cone, 556 U.S., at ––––, 129 S.Ct., at 1780–82. “When a state court declines to review the merits of a petitioner's claim on the ground that it has done so already, it creates no bar to federal habeas review.” Id., at ––––, 129 S.Ct., at 1781. Both dissenting opinions assume that “the issue on which Cone throws light does not affect the outcome” because “the Eleventh Circuit ... also decided that petitioner was not entitled to habeas relief on the merits.” Post, at 732 (opinion of SCALIA, J.). Having found a procedural bar, however, the Eleventh Circuit had no need to address whether petitioner was otherwise entitled to an evidentiary hearing and gave this question, at most, perfunctory consideration that may well have turned on the District Court's finding of a procedural bar.
Although Wellons appealed the denial of “his motions for discovery and an evidentiary hearing,” 554 F.3d, at 935, the Eleventh Circuit did not purport to address the merits of that issue at all.FN2 The court stated only that “[e]ven if we assume that Wellons's misconduct claims are not procedurally barred, they do not entitle Wellons to habeas relief.” Id., at 936 (emphasis added). This opaque statement appears to address only whether petitioner was entitled to ultimate relief in the form of a new trial, not whether petitioner's allegations, combined with the facts he had learned, entitled him to the discovery and evidentiary hearing that he sought.
FN2. As Justice ALITO explains at some length, see post, at 733 – 735, the District Court did discuss the merits of that issue, but the District Court's analysis has little relevance on whether the Court of Appeals made an alternative holding or rather affirmed the District Court's decision on the ground that petitioner's claim was procedurally barred.
The Eleventh Circuit's reasoning does not suggest otherwise. The court observed that Wellons' claims of misconduct were “grounded in his speculation as to the meaning underlying the jurors' chocolate ‘gifts' ” and “the surmise attached to their passive receipt of these gifts.” Ibid. This statement likewise indicates only that on the existing record, habeas relief was inappropriate, not that an evidentiary hearing should be denied. After all, had there been discovery or an evidentiary hearing, Wellons may have been able to present more than “speculation” and “surmise.” The Eleventh Circuit also pointed to the state court's decision on direct appeal, see id., at 937, and reviewed that decision “[i]n light of the evidence presented before the Georgia Supreme Court,” ibid. This, too, is typical of a court reviewing the denial of habeas relief, not the denial of discovery or an evidentiary hearing. FN3
FN3. Justice ALITO asserts that the Eleventh Circuit “stated in unequivocal terms that its holding on the merits of petitioner's claim was independent of its holding on the question of procedural default.” Post, at 733. But that does not address the question: The merits of what? The question whether to grant habeas relief or whether to permit discovery and an evidentiary hearing?
Contrary to our dissenting colleagues, post, at 735 (opinion of ALITO, J.), we do not find it dispositive that the section of the Eleventh Circuit's opinion about judge, juror, and bailiff misconduct began with a full page statement of the standard of review, which in turn included a sentence about the circumstances under which an evidentiary hearing is warranted. See 554 F.3d, at 934–935. Immediately following the standard of review that Justice ALITO quotes, the panel explained that “ ‘if the record ... precludes habeas relief, a district court is not required to hold an evidentiary hearing,’ ” and that “the record reveals that [Wellons'] claims ... are procedurally barred.” Id., at 935.
Moreover, the allegedly “unequivocal” holding that Justice ALITO quotes was preceded by a discussion of the deference owed under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to the “Georgia Supreme Court's judgment as to the substance and effect of the ex parte communication.” Id., at 937. This is the classic formulation of a decision of whether to grant habeas relief. Indeed, it would be bizarre if a federal court had to defer to state-court factual findings, made without any evidentiary record, in order to decide whether it could create an evidentiary record to decide whether the factual findings were erroneous. If that were the case, then almost no habeas petitioner could ever get an evidentiary hearing: So long as the state court found a fact that the petitioner was trying to disprove through the presentation of evidence, then there could be no hearing. AEDPA does not require such a crabbed and illogical approach to habeas procedures, and there is no reason to believe that the Eleventh Circuit thought otherwise.
Moreover, even assuming that the Eleventh Circuit intended to address Wellons' motions for discovery and an evidentiary hearing, we cannot be sure that its reasoning really was independent of the Cone error. The fact that his claims rested on “speculation” and “surmise” was due to the absence of a record, which was in part based on the Cone error. And as the Eleventh Circuit's reasoning turned on “the evidence presented before the Georgia Supreme Court,” 554 F.3d, at 937, there is serious doubt about whether it necessarily relied on the very holes in the record that Wellons was trying to fill.
Our dissenting colleagues allege that the Court is “degrad [ing] ... our traditional requirements for a GVR.” Post, at 733 (opinion of SCALIA, J.); see post, at 735 (opinion of ALITO, J.). But the standard for an order granting certiorari, vacating the judgment below, and remanding the case (GVR) remains as it always has been: A GVR is appropriate when “ intervening developments ... reveal a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration, and where it appears that such a redetermination may determine the ultimate outcome” of the matter. Lawrence v. Chater, 516 U.S. 163, 167, 116 S.Ct. 604, 133 L.Ed.2d 545 (1996) (per curiam). As already discussed, there is, at least, a “reasonable probability,” ibid., that the denial of discovery and an evidentiary hearing rested in part on the Cone error. And in light of the unusual facts of the case, a “redetermination may determine the ultimate outcome,” 516 U.S., at 167, 116 S.Ct. 604; cf. Williams v. Taylor, 529 U.S. 420, 442, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (holding that several “omissions as a whole disclose the need for an evidentiary hearing”); Smith v. Phillips, 455 U.S. 209, 215, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) ( “This Court has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has an opportunity to prove actual bias”). The Eleventh Circuit's opinion is ambiguous in significant respects. It would be highly inappropriate to assume away that ambiguity in respondent's favor. That is especially so in a case in which petitioner's allegations and the unusual facts raise a serious question about the fairness of a capital trial.
Both dissenting opinions suggest that if there is a strong case for discovery and an evidentiary hearing, then the Court “should summarily reverse or set the case for argument.” Post, at 732 – 733 (opinion of SCALIA, J.); see also post, at 735 (opinion of ALITO, J.). But as we have explained, “a GVR order conserves the scarce resources of this Court,” “assists the court below by flagging a particular issue that it does not appear to have fully considered,” and “assists this Court by procuring the benefit of the lower court's insight before we rule on the merits.” Lawrence, supra, at 167, 116 S.Ct. 604.
Unlike Justice SCALIA, post, at 733, we do not believe that a “self-respecting” court of appeals would or should respond to our remand order with a “summary reissuance” of essentially the same opinion, absent the procedural default discussion. To the contrary, in light of our decision in Cone, we assume the court will consider, on the merits, whether petitioner's allegations, together with the undisputed facts, warrant discovery and an evidentiary hearing.
The petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit and the motion of petitioner for leave to proceed in forma pauperis are granted. The judgment is vacated, and the case is remanded to the Eleventh Circuit for further consideration in light of Cone v. Bell, 556 U.S., at ––––, 129 S.Ct., at 1780–82.
Justice SCALIA, with whom Justice THOMAS joins, dissenting.
Petitioner Marcus Wellons was convicted in Georgia state court of capital murder and sentenced to death. After exhausting direct appeal and state postconviction review, he filed a petition for habeas corpus in federal court under 28 U.S.C. § 2254. Wellons claims, among other things, that misconduct on the part of the trial judge, jurors, and court bailiff deprived him of a fair trial. The District Court denied relief, and the Eleventh Circuit affirmed.
Today the Court grants Wellons' petition for certiorari, vacates the judgment of the Eleventh Circuit, and remands (“GVRs”) in light of Cone v. Bell, 556 U.S. 449, 129 S.Ct. 1769 (2009). The Eleventh Circuit concluded that Wellons' claims were procedurally barred because the state postconviction court, noting that the State Supreme Court had rejected them on direct appeal, held the claims were res judicata. See 554 F.3d 923, 936, and n. 6 (2009). This was error under Cone, see 556 U.S., at –––– – ––––, 129 S.Ct., at 1780–82, as respondent recognizes; indeed, the Eleventh Circuit has already recognized the abrogation of the opinion below on this point, see Owen v. Secretary for Dept. of Corrections, 568 F.3d 894, 915, n. 23, (2009). But, as Justice ALITO's dissent demonstrates, post, pp. 732 – 733, the Eleventh Circuit (like the District Court) also decided that petitioner was not entitled to habeas relief on the merits. 554 F.3d, at 936–938. Thus the Court GVRs in light of Cone even though the issue on which Cone throws light does not affect the outcome.
The Court has previously asserted a power to GVR whenever there is “a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration, and where it appears that such a redetermination may determine the ultimate outcome of the litigation.” Lawrence v. Chater, 516 U.S. 163, 167, 116 S.Ct. 604 (1996) (per curiam). I have protested even that flabby standard, see id., at 190–191, 116 S.Ct. 604 (SCALIA, J., dissenting), but today the Court outdoes itself. It GVRs where the decision below does not “rest upon” the objectionable faulty premise, but is independently supported by other grounds—so that redetermination of the faulty ground will assuredly not “determine the ultimate outcome of the litigation.” The power to “revise and correct for error,” which the Court has already turned into “a power to void for suspicion,” id., at 190, 116 S.Ct. 604 (same) (internal quotation marks and alteration omitted), has now become the power to send back for a re-do. We have no authority to decree that. If the Court thinks that the Eleventh Circuit's merits holding is wrong, then it should summarily reverse or set the case for argument; otherwise, the judgment below must stand. The same is true if (as the Court evidently believes) the Court of Appeals should have required an evidentiary hearing before resolving the merits question. If they erred in that regard their judgment should be reversed rather than remanded “in light of Cone v. Bell”—a disposition providing no hint that what we really want them to do (as the Court believes) is to consider an evidentiary hearing.
The systematic degradation of our traditional requirements for a GVR has spawned a series of unusual dispositions, including the GVR so the government can try a less extravagant argument on remand, see Department of Interior v. South Dakota, 519 U.S. 919, 921, 117 S.Ct. 286, 136 L.Ed.2d 205 (1996) (SCALIA, J., dissenting), the GVR in light of nothing, see Youngblood v. West Virginia, 547 U.S. 867, 872, 126 S.Ct. 2188, 165 L.Ed.2d 269 (2006) (same), and the newly-minted Summary Remand for More Extensive Opinion than Petitioner Requested (SRMEOPR), see Webster v. Cooper, 558 U.S. 1039, ––––, 130 S.Ct. 456, 457, 175 L.Ed.2d 506 (2009). Today the Court adds another beast to our growing menagerie: the SRIE, Summary Remand for Inconsequential Error—or, as the Court would have it, the SRTAEH, Summary Remand to Think About an Evidentiary Hearing.
It disrespects the judges of the Courts of Appeals, who are appointed and confirmed as we are, to vacate and send back their authorized judgments for inconsequential imperfection of opinion—as though we were schoolmasters grading their homework. An appropriately self-respecting response to today's summary vacatur would be summary reissuance of the same opinion, minus the discussion of Cone. That would also serve the purpose of minimizing the delay of justice that today's GVR achieves (Wellons has already outlived his victim by 20 years; he committed his murder in 1989).
Justice ALITO, with whom THE CHIEF JUSTICE joins, dissenting.
The Court's disposition of this case represents a misuse of our authority to grant, vacate, and remand (GVR). The decision of the Court of Appeals plainly rests on two independent grounds: first, that petitioner procedurally defaulted his claim that the judge, bailiff, and jurors had an inappropriate relationship that impaired his right to a fair trial and, second, that petitioner's claim failed on the merits. See 554 F.3d 923, 936 (C.A.11 2009). While it is true that the first of these grounds is inconsistent with Cone v. Bell, 556 U.S. 449, 466–467, 129 S.Ct., at 1780–82 (2009), there is no basis for vacating the decision below unless some recent authority or development provides a basis for reconsideration of the second ground as well. But the per curiam identifies no such authority. Instead, the per curiam uses Cone as a vehicle for suggesting that the Court of Appeals should reconsider its decision on the merits of petitioner's claim.
In order to defend this disposition, the per curiam refuses to credit the Court of Appeals' explanation of the basis of its decision. The Court of Appeals twice stated in unequivocal terms that its holding on the merits of petitioner's claim was independent of its holding on the question of procedural default. See 554 F.3d, at 937–938 (“[E]ven if these claims were properly before us on habeas review, we would not disturb the Georgia Supreme Court's conclusion on the merits of these claims”); id., at 936 (“Even if we assume that Wellons's misconduct claims are not procedurally barred, they do not entitle Wellons to habeas relief”). But the per curiam states that the Court of Appeals' consideration of the merits “may well have turned on the District Court's finding of a procedural bar” and that “we cannot be sure that [the panel's] reasoning really was independent of the Cone error.” Ante, at 730, 731.
Even worse, the per curiam unjustifiably suggests that the Court of Appeals gave at most only “perfunctory consideration” to petitioner's claim that he was entitled to an evidentiary hearing and may not have “carefully reviewed” the relevant facts. Ante, at 730, 728. The majority may not be satisfied with the Court of Appeals' discussion, but the majority has no good reason for suggesting that the lower court did not give the issue careful consideration.
The District Court refused petitioner's discovery request on the ground that petitioner did not make a sufficient showing to warrant interrogation of the jurors. As the detailed opinion of the District Court reveals, the state habeas judge allowed petitioner's attorneys to contact all of the jurors and relevant court personnel; the attorneys succeeded in contacting all but 1 of the jurors; 6 of the 11 jurors who were contacted, as well as the bailiffs and court reporter, were interviewed; and the attorneys made a proffer of the information provided by these interviewees.FN1 There is no suggestion that the attorneys were restricted in the questions that they were permitted to ask the interviewees, and it appears that the jurors who were interviewed spoke freely, even discussing their understanding of the judge's instructions on the law and the jury's deliberations.FN2 Cf. Fed. Rule Evid. 606(b). Interestingly, the proffer does not reflect that the attorneys asked any of the jurors what would appear to be the most critical question, namely, why the strange gifts were given to the judge or the bailiff.FN3 See App. C to Pet. for Cert. 34–38. If any such questions had been asked and answers favorable to petitioner's position had been provided, one would expect that information to appear in the proffer.
FN1. As the District Court observed, “[p]etitioner's state habeas corpus counsel contacted all but one of the jurors seeking their comments.” App. C to Pet. for Cert. 34. The proffer shows that six jurors were interviewed: DeArmond, id., at 35, Henry, ibid., Givhan, id., at 36, Humphrey, id., at 37, Moore, ibid., and Smith, ibid. The Court's description of some of the matters that the jurors mentioned during the interview confirms that these jurors “‘spoke freely.”’ See ante, at 729, n. 1.
FN2. The per curiam assumes that the jurors who were interviewed must have spoken only “in the briefest of terms” because “ ‘everything that Petitioner ... learned’ ” “filled only a few sheets of paper.” Ibid. The mere fact that the unsworn proffer submitted by petitioner's state habeas counsel consisted of four pages, see App. C to Pet. for Cert. 35–38, does not seem to me to provide a sufficient basis for concluding that the jurors interviewed spoke only “in the briefest of terms.” The length of the proffer is equally consistent with the possibility that the jurors interviewed spoke at length but did not supply information that petitioner's counsel deemed helpful to his case.
FN3. The main reason for the interviews was to inquire about the gifts, and the proffer shows that the jurors who were interviewed discussed this matter. See, e.g., App. C to Pet. for Cert. 35 (a juror “stated that ‘we,’ the jurors gave a pair of chocolate breasts to the bailiff and the chocolate penis just followed”); ibid. (a juror “stated that some of the jurors decided to send a pair of edible chocolate breasts to one of the female bailiffs and an edible chocolate penis to the trial judge”); id., at 37 (a juror “remembered discussion about giving a chocolate penis to the judge”). Nevertheless, petitioner's proffer includes no information as to why the gifts were given—not even a statement to the effect that the jurors interviewed were asked this question and said that they did not know. Cf. id., at 35 (noting that a particular juror “did not know whose idea it was to send the chocolate penis to the judge,” but not including any representation as to her understanding of why the gifts may have been given (emphasis added)).
After examining the proffer made by petitioner's attorneys, the District Court concluded that this submission did not justify formal discovery. With respect to what the per curiam describes as the “unreported ex parte contacts between the jury and the judge,” ante, at 729—which apparently consisted of a brief exchange of words that occurred when the judge entered the room in a restaurant where the jurors were dining—the District Court concluded that “nothing that Petitioner has presented provides even the slightest indication that anything more than a simple greeting occurred,” App. C to Pet. for Cert. 43.
With respect to the gifts that were given to the judge and a bailiff after the trial ended, the District Court stressed that they were “inappropriate” and represented “an unusual display of poor taste in the context of a proceeding so grave as a capital trial,” ibid., but the Court noted that petitioner had not proffered any evidence that any of the jurors or court personnel who were interviewed had said anything that substantiated the assertion that “an inappropriate relationship existed between the judge, the bailiff, and the jury,” id., at 44.
A fair reading of the Court of Appeals' opinion is that that court likewise held that petitioner was not entitled to the discovery he sought because that discovery was unlikely to yield evidence substantiating his claim. See 554 F.3d, at 935 (quoting Schriro v. Landrigan, 550 U.S. 465, 474, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) (“When deciding whether to grant a federal habeas petitioner's request for an evidentiary hearing, ‘a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief’ ”)).
I agree with the Court that the strange and tasteless gifts that were given to the trial judge and bailiff are facially troubling, and I am certainly not prepared at this point to say that the decision below on the discovery issue was correct. But unlike the Court, I do not think it is proper for us to use a GVR to address this matter. The lower courts have decided the discovery issue, and now this Court has two options. First, if we wish to review the question whether petitioner made a sufficient showing to justify interrogation of the jurors, we should grant the petition for a writ of certiorari and decide that question. Second, if we do not wish to tackle that fact-bound question, we should deny review or GVR in light of a recent authority or development that casts doubt on the judgment of the court below. What the Court has done—using a GVR as a vehicle for urging the Court of Appeals to reconsider its holding on a question that is entirely independent of the ground for the GVR—is extraordinary and, in my view, improper.
GDC#: 91080
Race: Black
Date of Birth: 07/55
Sentenced to Death: 06/93
County of Conviction: Cobb
May 28, 2014
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