Executed September 16, 2008 07:25 p.m. by Lethal Injection in Georgia
21st murderer executed in U.S. in 2008
1120th murderer executed in U.S. since 1976
3rd murderer executed in Georgia in 2008
43rd murderer executed in Georgia since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Jack Edward Alderman
W / M / 23 - 57
|Barbara Jean Alderman
W / F / 20
Alderman v. State, 241 Ga. 496, 245 S.E.2d 642 (1978), cert. denied, 439 U.S. 99 (1978) (Direct Appeal).
Alderman v. Austin, 663 F.2d 558 (5th Cir. 1981).
Alderman v. Austin, 695 F.2d 124 (5th Cir. 1983) (Reversed).
Alderman v. State, 254 Ga. 206, 324 S.E.2d 68 (1985).(Direct Appeal).
Alderman v. Zant, 22 F.3d 1541 (11th Cir. 1994) (Habeas).
Alderman v. Terry, 468 F.3d 775 (11th Cir. 2006).
Alderman did not make a special last meal request. Instead, at 4 p.m. Tuesday he was given the regular prison meal of baked fish, peas, cole slaw, carrots, cheese grits, bun, fruit juice and chocolate cake.
Georgia Department of Corrections (Jack Alderman)Alderman, Jack Edward
Contact: Susan Phillips, Director of Public Information, Office of Public Affairs
For Immediate Release: Lynd Execution Media Advisory - Inmate requests last meal
Atlanta – Georgia Department of Corrections
James E. Donald, Commissioner
Execution Date Set For Chatham County Murderer
Jack Alderman to be Executed on Tuesday, September 16, 2008
Atlanta–The Chatham County Superior Court has ordered the execution of convicted murderer Jack Alderman. The Court ordered the Department to carry out the execution between September 16, and ending seven days later on September 23, 2008. The execution is scheduled to take place at the Georgia Diagnostic and Classification Prison in Jackson at 7:00 p.m. on Tuesday, September 16.
Alderman was sentenced to death in 1984 for the murder of his wife. If executed, he will be the 20th inmate put to death by lethal injection.
Media interested in a picture of Alderman and a listing of his crimes may go to the Department of Corrections website (www.dcor.state.ga.us). At the main menu, look to the right and click on "inmate query." An acknowledgement of the disclaimer will allow access to the "offender query" page. To retrieve a photo and information, enter GDC ID number 385463.
The Department of Corrections is the fifth largest prison system in the United States and is responsible for supervising nearly 60,000 state prisoners and 140,000 probationers. It is the largest law enforcement agency in the state with nearly 15,000 employees.
Georgia Attorney General
Thursday, October 4, 2007
Attorney General Baker Announces Execution Date for Jack E. Alderman
Georgia Attorney General Thurbert E. Baker offers the following information in the case against Jack E. Alderman, who is currently scheduled to be executed during the execution window starting at noon on October 19, 2007 and ending at noon on October 26, 2007.
On October 3, 2007, the Superior Court of Chatham County filed an order, setting the seven-day window in which the execution of Jack Alderman may occur to begin at noon on October 19, 2007, and ending seven days later at noon on October 26, 2007. The Commissioner of the Department of Corrections has not yet set the specific date and time for the execution. Alderman has concluded his direct appeal proceedings and his state and federal habeas corpus proceedings.
Alderman and his wife, the victim, lived together at the Chatham City Apartments in Garden City, Chatham County, Georgia. (T. 1207). Alderman was employed as an Assistant Manager at a local Piggly-Wiggly Supermarket, and the victim was employed in the Tax Assessor’s Office for the City of Savannah. (T. 1190, 1196, 1197, 1206).
Through her employment with the City of Savannah, the victim had a $10,000 life insurance policy, with a clause providing for payment of double benefits in the event of the victim’s accidental death. (T. 663-664). Alderman was aware of this insurance policy on his wife’s life. (T. 1188-1189). The victim also had another insurance policy, in the amount of $25,000, with the victim’s mother named as the beneficiary of this policy. (T. 1156-1161).
Alderman had met John Arthur Brown when both Alderman and Brown were employed in the Vehicle Maintenance Department of the City of Savannah. (T. 1198, 1318). According to Alderman, he and Brown were not close friends, but would occasionally go for a beer and play pool together. (T. 1199). After Alderman left the job with the City of Savannah, he and Brown continued their relationship, seeing each other approximately every two or three weeks. (T. 1205-1206).
On Thursday, September 19, 1974 Brown testified that Alderman called Brown, requesting him to come to the Piggly-Wiggly Supermarket. (T. 751). During this visit, Brown testified that Alderman asked Brown to kill the victim, and offered Brown one half of the insurance proceeds Alderman would receive upon the victim’s death. (T. 752). Brown, claiming not to take Alderman seriously, accepted the proposition. (T. 752). Brown subsequently explained to the police, and testified, that the reason Alderman wished to murder the victim was to receive insurance proceeds from the victim’s death and to prevent the victim from seeking a divorce and a favorable financial settlement from Alderman. (T. 752, 839, 840, 926, 1162-1165).
Later in the day on Thursday, Brown borrowed Alderman’s motorcycle, and was involved in an accident while riding with Sally Wiess. (T. 753-754, 1104-1105, 1216). Brown subsequently repaired the motorcycle, and returned it to Alderman on Thursday evening. (T. 754-755, 841, 1216). Despite his anger about the damage to the motorcycle, Brown testified that Alderman still requested Brown’s help in murdering the victim. (T. 755, 846). Brown then asked the victim to take him home to Bloomingdale, and testified that Alderman was later angry with Brown for not having killed the victim on this trip. (T. 757).
On Saturday, September 21, 1974, Brown testified that Alderman called him and requested Brown to come to Alderman’s apartment. (T. 757, 863). Upon Brown’s arrival at the apartment at approximately 5:30 or 6:00 p.m., Alderman handed Brown a wrench, and instructed Brown to go into the bedroom and hit the victim. (T. 758, 867-868). Alderman then simulated Brown leaving the apartment, went into the bedroom with the victim, and later returned, pretending that Brown had returned to the apartment. (T. 759, 871). Alderman and Brown then began playing records on the stereo, and Alderman went and woke up the victim to have her clean up after Alderman’s dog in the dining room. (T. 759, 873). After Brown did not attack the victim while she was cleaning up the carpet, Alderman became angry and threatened Brown. (T. 760, 877).
Brown subsequently struck the victim on the back of the head with the wrench. The victim cried out for Brown not to strike her again and ran into the living room. (T. 760-761, 890-891). Alderman then tackled the victim in the living room and held his hands over the victim’s nose and mouth in an attempt to suffocate her. (T. 761-762, 893-894). Brown also attempted to strangle the victim. (T. 762, 894-895). When the victim became unconscious, Brown testified that he told Alderman the victim was dead, but Alderman stated he wanted to make sure. (T. 762-763, 895).
Alderman and Brown then carried the victim into the bathroom, and placed her in the bathtub. (T. 763, 896-898). As Alderman started to run water into the bathtub, Brown returned to the living room and dining room to clean up the blood from the carpeting. (T. 763-764, 898). Alderman then joined Brown, and attempted to clean the carpet with rug shampoo. (T. 763, 898-899). After this, both men both changed clothes. (T. 764-765, 899-900). Both men then went into the bathroom and Brown pulled aside the shower curtain to see the victim lying face up in the tub, with water covering her body. (T. 765). Alderman and Brown then left the apartment, going first to the Piggly-Wiggly Supermarket at approximately 6:00 to 6:30 p.m., where Alderman borrowed $100, and then going to two Savannah bars, Joey Dee's Bayshore Lounge and the Waving Girl Lounge. (T. 767-768, 900-908). At some point during the evening, Alderman gave Brown $100. (T. 765-766, 900).
At approximately 10:00 p.m., Alderman and Brown returned to Alderman’s apartment, where they removed the victim’s body from the bathtub and wrapped it in a green quilt. (T. 769, 910-911). Both men then placed the victim’s body in the trunk of Alderman’s 1974 Pontiac LeMans. (T. 769-770, 911, 1342). Brown, driving the car, then followed Alderman on the Alderman’s motorcycle to Rincon and Dasher’s Creek. (T. 771, 912). Once at the creek, both men removed the victim’s body from the trunk of the car, and placed it in the driver’s seat of the car. (T. 771, 914, 916). Leaving the engine and the lights on, and the car transmission in drive, at Alderman’s direction, Brown then reached into the window of the car, released the emergency brake and sent the car into the creek. (T. 772, 914-917). After the car did not go all the way into the creek, Alderman directed Brown to open the car door and let the victim’s body fall halfway out of the car. (T. 772, 918). According to Brown, the purpose of all these actions was to make the victim’s death look like an accident. (T. 920).
After removing the green quilt and the rubber trunk mat from the car, both men then left the scene on Alderman’s motorcycle, with Brown driving the vehicle. (T. 772-774, 921-922). On their way to dispose of the quilt and mat at a dump off of Highway 21, Brown testified that they passed a car on Wisenbaker Road. (T. 774-775). Both men then returned to Joey Dee’s Lounge in Savannah, and then went to Johnny Ganem’s establishment to eat. (T. 775-776, 925).
Ronnie Cowart testified that he passed over Dasher’s Creek on his way to Rincon at approximately 10:05 p.m. on September 21, 1974, and saw nothing in the creek. (T. 508-509). Cowart, whose house is one half mile from the creek, then testified that at approximately 10:15 p.m. that evening he heard a car and a motorcycle pass on Baker Hill Road and then turn onto Highway 131. (T. 510-511). According to Cowart, it was unusual to hear a motorcycle at that time of night. (T. 517).
Randy Hodges and Terry Callahan were returning home via Baker Hill Road and Highway 131 at approximately 11:00 p.m. on the evening of September 21, 1974. (T. 524, 542). While on Baker Hill Road, the men met a motorcycle coming from the opposite direction, with a light colored object flapping in the wind as it went by. (T. 525, 542-44). After the men turned onto Highway 131 and approached Dasher’s Creek, they noticed a car in the creek. (T. 528, 544). Hodges jumped out, saw that there was a woman in the car, and noticed that the car lights and interior fan were still on and that the car transmission was in neutral. (T. 529, 545). The victim’s body was laying half out of the car, face up in the water. (T. 529). Hodges noticed blood stains on the car seat. (T. 531). At the same time, Callahan went to Lamar Rahn’s house to call for help. (T. 531, 545). Both men noticed motorcycle tracks approximately 25 to 30 feet from the car, and also saw signs of a motorcycle kickstand. (T. 532, 546-547). Carol Riner Jones also arrived at Dasher’s Creek at approximately 11:00 p.m. on the evening of September 21, 1974. (T. 556). She also noticed that the car was in neutral, and that the car’s air conditioning lights were still on. (T. 557).
Effingham County Sheriff Lloyd Fulcher was summoned to the Dasher’s Creek scene. (T. 560-561). Sheriff Fulcher found the victim’s car in the water adjacent to the bridge, with the car lights and air conditioning fan on. (T. 561). There was no apparent physical damage to the car. Id. The victim’s body was removed from the car, and taken to a hospital, where a laceration at the base of her skull was later noticed. (T. 562). Sheriff Fulcher also observed that there were no skid marks from the car, and that motorcycle tracks were apparent in the area. (T. 571). The sheriff also noticed blood stains on the seat of the car, and that the pasteboard covering of the car trunk had been removed. (T. 574).
Garden City Police Officer J. D. Crosby, at the request of Sheriff Fulcher, went to Alderman’s apartment at approximately 12:00 to 12:15 a.m. on September 22, 1974. (T. 591). The apartment was locked. Id. Officer Crosby returned to the apartment at approximately 2:30 a.m. and found Alderman there with a white female. (T. 592). The officer informed Alderman that the victim had been involved in a traffic accident, and Alderman evidenced no reaction. (T. 592-593). Alderman was then asked to accompany Effingham County authorities to the hospital. (T. 597).
Georgia Bureau of Investigation Agent H. H. Keadle went to the Effingham County Hospital on September 21, 1974. (T. 612). His observation of the victim’s body showed a tear in the skin at the base of the victim’s head, and bloody material around the victim’s nose and mouth. Id. When Alderman arrived at the hospital at approximately 4:15 a.m. on September 22nd, Alderman was accompanied by a white female, Ms. Gerlinda Carmak. (T. 613-615). After both Agent Keadle and Sheriff Fulcher noticed a red/brown stain in the seat and crotch of Alderman’s pants, as well as on Alderman’s white belt, Alderman’s clothes were taken from him. (T. 573, 616-617, 1303-1304).
Further investigation led Agent Keadle to John Brown, who eventually gave a statement incriminating both himself and Alderman. (T. 623-625, 952-953). Agent Keadle’s investigation also confirmed that there were blood stains on the driver’s seat in Alderman’s car, that the car gear shift had been in neutral and that the lights were left on in the car. (T. 636-637). No extreme dents or damaged parts were evident anywhere on the car. (T. 638). Agent Keadle also observed the motorcycle marks at the scene where the car had been found. (T. 639). Agent Keadle recovered a stained portion of a green rug, which had been removed from Alderman’s apartment by the victim’s mother, as well as Alderman’s motorcycle helmet. (T. 620, 608-609, 639).
Alderman’s father, Jack Alderman, Sr., removed a crescent wrench from Alderman’s apartment on September 30, 1974, and turned it over to Chief Curtis Thompson of the Garden City Police Department. (T. 599-602). Chief Thompson was also responsible for transporting Brown back to Garden City from Statesboro, during which Brown made a number of incriminating statements. (T. 604, 948-951). Forensic Serologist Elizabeth Quarles, of the Georgia State Crime Laboratory, examined the blood found on Alderman’s clothes. (T. 651, 655). The blood, type A, subtype M, was consistent with the victim’s blood. (T. 653, 656-657). An examination of the victim’s automobile revealed one palm print and four fingerprints, which were stipulated to be Alderman’s. (T. 627). Brown’s fingerprints were not found on the car. (T. 645).
Dr. Charles Sullenger, performed the autopsy upon the victim. (T. 674). Dr. Sullenger discovered a laceration wound on the back of the victim’s head, which was inflicted by a relatively blunt instrument. (T. 678, 683). Dr. Sullenger also observed liquid in the victim’s lungs, which he determined had entered the lungs while the victim was still breathing. (T. 687-689). The doctor found no evidence of any abnormalities in the victim’s heart, no scratches on the victim’s forearms and no evidence of strangulation. (T. 688, 706).
According to Dr. Sullenger, the victim died as a result of asphyxia due to drowning. (T. 690). The doctor also concluded that the blow to the victim’s head did not occur as the result of a car accident, and that there was not enough blood present in the car to even establish that the blow to the head had occurred in the car. (T. 706, 726). Dr. Sullenger testified that it appeared the victim had been hit on the head somewhere else, then placed into the car and then driven into the creek. (T. 729). Dr. Sandra Conradi, a Forensic Pathologist employed by the University of South Carolina, testified on behalf of Alderman and in rebuttal to Dr. Sullenger’s autopsy report. (T. 966, 971). Dr. Conradi’s opinion, based upon her review of portions of the trial transcript, the autopsy report and other documents, suggested a number of ways in which the autopsy report could have been more complete. (T. 971-976).
Alderman testified on his own behalf, denying completely the story told by Brown. (T. 1215-1216, 1309, 1346, 1344). Instead, Alderman testified that after an argument, both he and the victim left the apartment separately on the evening of Saturday, September 21, 1974. (T. 1273, 1275, 1332, 1334). Alderman testified he took a bus to Savannah, Georgia, and then spent time in the Bayshore Lounge and the Waving Girl Bar. (T. 1277-1281). After seeing Brown and a number of other persons at these bars, Alderman testified he took a taxi back to his apartment, arriving at approximately 10:00 p.m. (T. 1282-1283).
As the victim had not returned to the apartment, Alderman testified that he decided to go Rincon to see the victim at her grandmother’s. (T. 1284-1286, 1335). Alderman testified that while on his way to Rincon on his motorcycle, he observed his car off the bridge at Dasher’s Creek. (T. 1286, 1321, 1290). Alderman stopped his motorcycle, and went down to the partially submerged car where he saw the victim. (T. 1290-1291). The car tail lights and interior lights were on, and the car door was open with the victim hanging out of the car, her face submerged in the water. (T. 1290-1292, 1336).
Alderman stated he squatted down and picked the victim’s head out of the water, placing it in his lap. (T. 1292, 1336). Hearing a noise, Alderman testified he suddenly became fearful, and fled the scene. (T. 1294-95). Forgetting that he had found his wife’s body, Alderman stated he then drove to Savannah where he returned to the Bayshore Lounge and then went to Johnny Ganem’s for breakfast with friends. (T. 1296-1298, 1313, 1320). Alderman then offered Gerlinda Carmak a ride home, and they stopped at his apartment on the way for Alderman to obtain a jacket. (T. 1299-1301). At that point, according to Alderman, the police took him to Effingham County and the hospital where he identified his wife’s body. (T. 1300-1302).
The testimony of Dr. Herbert Smith was presented at trial to confirm that Alderman had been in such shock from finding his wife’s body that he left the scene and forgot about the victim’s death. (T. 1035-1052). Additionally, the testimony of a number of other witnesses was presented to corroborate portions of Alderman’s testimony. (T. 880-885, 1061-1067, 1090-1096, 1100-1108, 1115-1126). A number of character witnesses were also presented on behalf of Alderman. (T. 885-888, 1068-1090, 1126-1161).
Finally, the testimony of Andrew J. Ryan, III, the Assistant District Attorney who prosecuted Alderman at the first trial, was presented. (T. 1024-1034). Mr. Ryan testified that no promise of any benefit was made to John Brown in order to obtain Brown’s testimony. (T. 1031-1033). As Brown himself had pointed out, not only was there no deal for his testimony, but Brown was subsequently found guilty of murder and sentenced to death. (T. 933-936).
The Original Trial and Appeal Proceedings (1974-1983)
Alderman was originally convicted in the Superior Court of Chatham County for the 1974 murder of his wife. Alderman was sentenced to death for this offense and the Georgia Supreme Court affirmed his conviction and death sentence in Alderman v. State, 241 Ga. 496, 245 S.E.2d 642 (1978), cert. denied, 439 U.S. 99 (1978), r’hrg denied, 439 U.S. 1132 (1979).
Alderman then challenged his conviction and death sentence by filing a petition for state habeas corpus relief. On June 4, 1979, the state habeas corpus court conducted a hearing and on that same date denied the application for habeas corpus relief. The Georgia Supreme Court denied Alderman a certificate of probable cause to appeal. The United States Supreme Court denied a petition for a writ of certiorari in Alderman v. Balkcom, 444 U.S. 1103 (1980), r’hrg denied, 445 U.S. 973 (1980).
Alderman then filed an application for federal habeas corpus relief in the United States District Court, and federal habeas corpus relief was granted as to both his conviction and sentence. Alderman v. Austin, 498 F. Supp. 1134 (S.D. GA. 1980). On appeal, the United States Court of Appeals for the Fifth Circuit affirmed the grant of relief as to Alderman’s death sentence, but reversed the grant of relief as to his conviction. Alderman v. Austin, 663 F.2d 558 (5th Cir. Unit B 1981); Alderman v. Austin, 695 F.2d 124 (5th Cir. Unit B 1983) (en banc).
The Resentencing Trial (1984)
Alderman’s resentencing trial was conducted on March 26-31, 1984 in the Superior Court of Chatham County, Georgia. On April 1, 1984, Alderman was again sentenced to death.
The Direct Appeal (1985)
The Georgia Supreme Court affirmed Alderman’s newly imposed death sentence on February 28, 1985. Alderman v. State, 254 Ga. 206, 324 S.E.2d 68 (1985). Alderman filed a petition for writ of certiorari in the United States Supreme Court, which was denied on October 15, 1985. Alderman v. Georgia, 474 U.S. 911, 106 S.Ct. 282 (1985). Alderman then filed a petition for rehearing, which was also denied by the United States Supreme Court on November 18, 1995. Alderman v. Georgia, 474 U.S. 1000 (1985).
FirstStateHabeas Corpus Petition (1986-1988)
Alderman, represented by G. Terry Jackson, filed a state habeas corpus petition in the Superior Court of Butts County on February 6, 1986. An amended petition for writ of habeas corpus was filed June 16, 1987, and a second amended habeas corpus petition was filed June 25, 1987. An evidentiary hearing was held on June 29, 1987. On September 10, 1987, the state habeas corpus court denied Alderman state habeas corpus relief. Alderman’s application for a certificate of probable cause to appeal filed in the Georgia Supreme Court was denied on October 28, 1987. Alderman then filed a petition for writ of certiorari in the United States Supreme Court, which was denied on March 7, 1988. Alderman v. Georgia, 485 U.S. 943 (1988). Alderman then filed a petition for rehearing, which was also denied by the United States Supreme Court on April 25, 1988. Alderman v. Georgia, 485 U.S. 1030 (1988).
First Federal Habeas Corpus Petition (1988-1994)
Alderman, represented by G. Terry Jackson, filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Georgia on June 20, 1988. The district court denied Alderman federal habeas corpus relief on June 6, 1989. The Eleventh Circuit Court of Appeals remanded the case to the United States District Court for a hearing on a claim concerning the traverse jury. After holding an evidentiary hearing, the district court entered an order denying the petition on all grounds on June 22, 1992. On October 23, 1992, the district court granted Alderman a certificate of probable cause to appeal. The Eleventh Circuit affirmed the decision of the district court and denied habeas corpus relief on April 14, 1994. Alderman v. Zant, 22 F.3d 1541 (11th Cir. 1994). Alderman then filed a petition for a writ of certiorari in the United States Supreme Court, which was denied on December 12, 1994. Alderman v. Thomas, 513 U.S. 1061, 115 S.Ct. 673 (1994).
SecondStateHabeas Corpus Petition (1994-2002)
Alderman, represented by Thomas H. Dunn, filed a second state habeas corpus petition in the Superior Court of Butts County on December 22, 1994. An amended petition for writ of habeas corpus was filed on March 29, 1999. An evidentiary hearing was held on May 5-6, 1999. On December 29, 1999, the state habeas corpus court denied Alderman state habeas corpus relief. Alderman’s application for a certificate of probable cause to appeal filed in the Georgia Supreme Court was denied on January 10, 2002. Alderman then filed a petition for writ of certiorari in the United States Supreme Court, which was denied on October 21, 2002. Alderman v. Head, 537 U.S. 995, 123 S.Ct. 476 (2002).
Second Federal Habeas Corpus Petition (2003-2004)
Alderman, represented by Thomas H. Dunn, filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Georgia on February 10, 2003. The district court denied Alderman federal habeas corpus relief on July 19, 2004. The district court denied a motion to alter and amend judgment on August 3, 2004. The district court denied Alderman a certificate of appealability on October 4, 2004.
11th Circuit Court of Appeals (2004-2006)
On November 15, 2004, the Eleventh Circuit denied Alderman’s application for a certificate of appealability. On June 27, 2005, following an application to the court en banc for a certificate of appealability, the Eleventh Circuit granted Alderman’s certificate of appealability as to only one issue raised in the federal habeas corpus court’s order of July 16, 2004. The case was orally argued before the Eleventh Circuit on February 13, 2006. On October 30, 2006, the Eleventh Circuit issued an opinion which denied relief. Alderman v. Terry, 468 F.3d 775 (11th Cir. 2006). Alderman filed a petition for panel rehearing, which was denied on December 8, 2006.
United StatesSupreme Court (2007)
Alderman filed a petition for writ of certiorari in the United States Supreme Court on May 7, 2007, which was denied October 1, 2007.
Atlanta Journal Constitution
"Alderman’s death by lethal injection took 14 minutes," by Jeffry Scott. (Atlanta Journal-Constitution Tuesday, September 16, 2008)
JACKSON — The 20th man executed in Georgia by lethal injection took 14 minutes to die Tuesday night.
Witness described Jack Alderman’s manner as calm, almost serene, his eyes closed the entire time. For a few minutes before he was declared dead, they said he smiled.
Adlerman, pronounced dead at 7:25 p.m. Tuesday, has been on death row almost 35 years — longer than any of the 109 death row inmates in Georgia. He was convicted of the 1974 Chatham County murder of wife Barbara Alderman for $10,000 in insurance money. When that conviction was overturned by a federal appeals court, he was convicted in a second trial in 1984.
An accomplice in the murder, John Arthur Brown, beat Barbara Alderman with a crescent wrench. Then he and Alderman choked her and put her underwater in a bathtub to be sure she was dead. Brown was paroled in 1987 and died a free man in New York in 2000.
Alderman’s attorney, Michael Seiml, said Tuesday night — after he had exhausted his last appeals to the Georgia parole board for clemency and to the U.S. Supreme Court â€” that Alderman, 57, was a model prisoner who deserved to have his death sentence reduced to life. “Brown didn’t have a lick of character and the same board that refused clemency for Alderman this morning offered Brown parole,” Seiml said. He [Alderman] has been the model prison for 34 years. If that’s not enough to get clemency, it’s hard to imagine what is.”
But David Lock, an assistant district attorney in Chatham County, said Alderman instigated the crime. “He was more culpable, without him, the crime would not have taken place,” Lock said.
No members of Alderman’s family witnessed the execution, said Georgia Department of Corrections spokesman Paul Czachowski. Two members of Barbara Alderman’s family were at the prison but did not witness the execution.
Alderman made a recorded statement earlier in the day “thanking everyone who made his life better, considering the circumstances,” said Czachowski, paraphrasing the condemned man’s comment. Alderman declined a final comment. A chaplain prayed for him, saying at one point “Jack, may Christ … free you from excruciating pain.” Alderman was administered the lethal injection with needles in each arm while he was strapped down.
Alderman did not make a special last meal request. Instead, at 4 p.m. Tuesday he was given the regular prison meal of baked fish, peas, cole slaw, carrots, cheese grits, bun, fruit juice and chocolate cake. “He barely touched it,” said Czachowski.
"Calm" Alderman put to death by lethal injection," by Jeffry scott. (Atlanta Journal-Constitution Wednesday, September 17, 2008)
Jackson —- The 20th man executed in Georgia by lethal injection took 14 minutes to die Tuesday night. Witnesses described Jack Alderman’s manner as calm, almost serene, his eyes closed the entire time. For a few minutes before he was declared dead, they said he smiled. “He was calm,” said Jan Skutch, a media witness from the Savannah Morning News. “It was almost antiseptic.”
Alderman, pronounced dead at 7:25 p.m. Tuesday, had been on death row almost 35 years —- longer than any of the 109 death row inmates in Georgia.
He was convicted of the 1974 Chatham County murder of his wife Barbara Alderman for $10,000 in insurance money. When that conviction was overturned by a federal appeals court, he was convicted in a second trial in 1984.
An accomplice, John Arthur Brown, beat Barbara Alderman with a crescent wrench. Then he and Alderman choked her and put her under water in a bathtub to be sure she was dead. Brown was paroled in 1987 and died a free man in New York in 2000.
Alderman’s attorney, Michael Seiml, said Tuesday night —- after he had exhausted his last appeals to the Georgia parole board for clemency and to the U.S. Supreme Court —- that Alderman, 57, was a model prisoner who deserved to have his death sentence reduced to life. “Brown didn’t have a lick of character and the same board that refused clemency for Alderman this morning offered Brown parole,” Seiml said. “He [Alderman] has been the model prisoner for 34 years. If that’s not enough to get clemency, it’s hard to imagine what is.”
But David Lock, an assistant district attorney in Chatham County, said Alderman instigated the crime. “He was more culpable; without him, the crime would not have taken place,” Lock said.
No members of Alderman’s family witnessed the execution, said Georgia Department of Corrections spokesman Paul Czachowski. Two members of Barbara Alderman’s family were at the prison but did not witness the execution.
Alderman made a recorded statement earlier in the day “thanking everyone who made his life better, considering the circumstances,” said Czachowski, paraphrasing the condemned man’s comment. Alderman declined a final comment. A chaplain prayed for him, saying at one point “Jack, may Christ … free you from excruciating pain.” Alderman was administered the lethal injection with needles in both arms while he was strapped down.
Alderman did not make a special last meal request. Instead, at 4 p.m. Tuesday he was given the regular prison meal of baked fish, peas, coleslaw, carrots, cheese grits, bun, fruit juice and chocolate cake. “He barely touched it,” said Czachowski.
"Condemned killer Jack Alderman denied clemency; Scheduled to be put to death by lethal injection Tuesday at 7 p.m." (AP)
Georgia authorities on Tuesday prepared to execute the state’s longest-serving death row inmate for the murder of his wife. Jack Alderman, 57, who has been on death row for 33 years, is scheduled to be executed by lethal injection at 7 p.m. at the Georgia Diagnostic and Classification Prison in Jackson.About 6 p.m. Tuesday, Alderman’s lawyer, Michael Seiml, said the U.S. Supreme Court had rejected Alderman’s last appeal. The Georgia Supreme Court on Tuesday afternoon had yet to act on his request for a stay.
He and an accomplice beat her with a crescent wrench, choked her and left her submerged in water in a bathtub at their Chatham County home. The men then visited two Savannah bars before dumping her body in a creek near her family’s home in Rincon. Prosecutors said they wanted to collect $20,000 in life insurance money.
On Tuesday, the Georgia Board of Pardons and Paroles rejected Alderman’s bid for clemency for the second time. Alderman’s father was among those who asked the five-member panel to spare his life. His supporters argue that Alderman has been a model prisoner and mentor in his more than three decades behind bars. They have also noted that his accomplice, John Arthur Brown, was paroled after just 12 years in prison. “They were treated very differently,” Alderman’s lawyer Michael Siem said.
But David Lock, an assistant district attorney in Chatham County, said Alderman instigated the crime. “He was more culpable, without him, the crime would not have taken place,” Lock said.
Alderman was just a day away from execution last October when Georgia’s top court issued a stay to give the U.S. Supreme Court time to act on a constitutional challenge to lethal injection. Earlier this year, the justices cleared the way for executions to resume when they ruled lethal injection does not amount to cruel and unusual punishment.
As the case has slowly wound its way through the lengthy appeals process, the delay has been agonizing for Barbara Alderman’s sister, Rheta Braddy. She said her mother has died while Alderman has been on death row and that her brother-in-law has waited long enough to pay for his crime.
“It is time for Barbara to have some justice,” Braddy said.
"Man on Georgia's death row 33 years is executed." (Associated Press September 16 2008 at 8:36pm)
JACKSON, Ga. - A man who had been on Georgia's death row for 33 years was executed Tuesday for killing his wife in 1974. Jack Alderman was pronounced dead at 7:25 p.m. at the state prison in Jackson.
The 57-year-old kept his eyes closed through the lethal injection process and declined to make a final statement but accepted a prayer from a priest in the death chamber. ``Jack, may Christ keep you free from excruciating pain,'' the priest said. Alderman muttered a reply that could not be heard by witnesses. He had refused a sedative earlier in the evening and barely touched his last meal, prison officials said. He recorded a statement in which he thanked family for remaining supportive.
Alderman was calm throughout the 14-minute procedure. At one point he smiled, then his mouth went slack and his breathing gradually slowed. Outside the prison, about 20 death penalty opponents gathered quietly with signs.
Alderman was sentenced to die for killing his wife, Barbara. He and an accomplice beat her with a crescent wrench and choked her at their home near Savannah before dumping her body in a creek. Prosecutors alleged he wanted to collect $20,000 in life insurance money.
Alderman was the state's longest-serving death row inmate. He had been scheduled for execution last October but a stay was issued to allow the U.S. Supreme Court to sort out constitutional questions surrounding lethal injection.
Two members of the victims' family were at the prison but did not witness the execution, prison officials said. Earlier Tuesday, Alderman lost his bid for clemency before the Georgia Board of Pardons and Paroles. His father was among those who asked the five-member board to spare his life. The Georgia Supreme Court and the U.S. Supreme Court each declined to issue an 11th-hour stay.
ProDeathPenalty.comJack Alderman was sentenced to death for the Sept. 21, 1974, killing of his wife Barbara Jean Alderman. Alderman, an assistant manager at a grocery store in 1974, asked an acquaintance, John Arthur Brown, to help him kill his wife in order to collect her insurance proceeds of $10,000. She was employed in the tax assessors’ office in Savannah.
Brown went to the Aldermans’ apartment in Garden City and Jack Alderman got a 12-inch crescent wrench and gave it to Brown, telling him to hit his wife in the head with it as she lay sleeping. Barbara Alderman woke up and began cleaning up after their dog in the dining room. Brown followed her until he was able to hit her. She ran but her husband tackled her. Eventually, Alderman and Brown tried to strangle and choke her and covered her nose and mouth until she passed out. Alderman filled a bathtub and placed his wife under the water to make sure she was dead.
Alderman and Brown then left the apartment and went to two Savannah bars. Around 10 pm, they returned to the apartment and took Barbara’s body out of the tub and wrapped it in a green quilt. They placed her body in the trunk of Alderman’s car and, with Brown driving the car, Alderman followed on his motorcycle to Dasher’s Creek in Rincon. Once there, they put Barbara’s body behind the steering wheel and pushed the car toward the water, trying to make her death look like an accident. They left the engine and the lights on and the transmission in drive, but the car did not go all the way into the creek. Alderman then told Brown to open the car door and let the victim’s body fall out slightly, leaving the impression that it was an accident.
Alderman later said he found his wife's body that night in the creek but was so traumatized by her death, he didn't tell anyone. Brown testified against Alderman at the trial. Alderman and Brown were each found guilty of murder and sentenced to death in 1984. Alderman has been on death row for 34 years, nearly a record, and has outlived almost everyone involved in his case, including his accomplice, the victim's mother, the trial court judge, the prosecutors and his defense attorney.
In 1983, a federal appeals court vacated Alderman's death sentence and ordered a new sentencing hearing. A second jury sentenced Alderman to death in 1984. Alderman received a stay in October 2007, just one day from his scheduled execution, while the US Supreme Court considered challenges to the issue of lethal injection.
Debra Blase, the victim's sister, said, "We're just hoping it will soon be over with. We live with this every day. He's been through appeal after appeal after appeal." Before his trial, John Arthur Brown rejected an offer of a life sentence. After serving three years on death row, Brown's sentence was overturned and he was resentenced on a plea bargain to life in prison.
In late 1986, the parole board notified Barbara Alderman's family that they were considering parole for Brown. Barbara's mother, Rheta Earlene Blase, opposed Brown's release, writing to the parole board and asking how they would feel if it was their daughter. Brown was paroled in March of 1987. In 1988, he was investigated on charges of molesting two teenage girls. In 1994, the parole board commuted his life sentence to time served. In February 2000, Brown committed suicide at age 51 when police tried to arrest him on the child molestation charges and charges of illegal possession of firearms.
SundayPaper.Com"A lifetime on death row; Some of Georgia’s inmates were sentenced to death more than 20 years ago," by Stephanie Ramage. 8-10-07)
On Aug. 3, the Georgia Supreme Court agreed to consider whether recantations of testimony from witnesses for the state is sufficient reason to grant a new trial to Troy Anthony Davis, who was convicted of the 1989 slaying of Savannah police officer Mark Allen MacPhail. “If they decide that recantations should count, we may be entitled to a hearing in Savannah,” says Davis’ attorney, Jason Ewart.
Davis was scheduled to die by lethal injection on July 17, but a clemency hearing on July 16, in which the state Board of Pardons and Paroles was reminded that seven of nine people who testified against him have since disavowed their statements, resulted in a 90-day delay of execution. With the state supreme court now agreeing to reconsider the significance of the recantations, the delay is moot.
According to the Georgia Department of Corrections, Davis is one of 106 inmates on death row. Seven of those are there as a result of the efforts of Fred Bright, district attorney for the Ocmulgee Judicial Circuit in middle Georgia. Bright has prosecuted 12 death penalty cases. He says families of victims have often added momentum to such cases because they want the closure that the execution can bring them. “I tell them, ‘Be prepared for endless appeals,’” he says.
As of Aug. 9, Georgia has 10 inmates who have resided on death row for more than 20 years because of such appeals. Some are in limbo because of considerations like mental capacity or orders for new sentencing trials, but the GDOC still lists them on death row. It just so happens that one of these, Eddie W. Finney Jr., was prosecuted by Bright’s predecessor. Bright says he does not consider Finney’s case an “active” death penalty case.
“There is a legal impediment to carrying out the death penalty,” says Bright. “The Finney case has been remanded to the trial court for a jury trial on the mental retardation issue.” (Since Georgia passed a law prohibiting execution of mentally retarded individuals in the late 1980s, there has been a substantial number of death row inmates seeking a determination as to whether they can be classified as mentally retarded.) Cases like Finney’s are so old that witnesses and survivors may have passed away or moved. Tim Vaughn, district attorney for the Oconee Judicial Circuit in Southeast Georgia, says that Telfair County’s former sheriff still occasionally calls and checks in on the status of that county’s only death row inmate, John W. Conner. The actual case was before Vaughn’s time.
Similarly, Chatham County’s Chief Assistant District Attorney David Locke says he’s familiar with the cases against two of the state’s longest-serving death row inmates, Jack Alderman and Roy W. Blankenship, even though they were originally prosecuted before he took office.
Some believe there are ways to speed up the appeals process without compromising constitutional rights. Cobb County District Attorney Patrick Head suggests that appeals at the state and federal level should be pursued simultaneously, and he believes that there should be a time limit on how long judges can hold up a case. “It’s frustrating to me when a judge has said he’s going to extend discovery for a year and then it sits,” says Head.
At the Southern Center for Human Rights, senior counsel Stephen Bright (no relation to D.A. Fred Bright) points out that some death row inmates die of natural causes before an execution date is set. Even the prosecutors in some capital cases, he says, can’t see the point in dragging the inmate—as well as the victims’ families—through another proceeding given that an inmate in his 50s, for example, is unlikely to live much longer because prison life expectancies are substantially shorter than those on the outside.
He notes that trying to gauge who will go next to Georgia’s lethal injection chamber, is almost impossible. “There is no way to know, given the vagaries of the court system,” says Stephen Bright. “Some people with death sentences are effectively serving life without parole.” SP
Here are Georgia’s longest-serving death row inmates, according to the 2007 “Under Death Sentence” list from the Georgia Department of Corrections, in order of time served:
Jack Alderman was sentenced to death 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 codefendant, John Arthur Brown, plea bargained and told investigators that Alderman had wanted to kill his wife for the insurance money. Brown was paroled in 1987. Alderman has spent his time on death row studying sacred texts of the major religions and writing poetry. One of his poems, “Unrest in Pieces,” can be found on a Web site that features the paintings of British artist Simone Sandelson, who has taken up Alderman’s cause. Alderman may be the next death row inmate executed. “Around the end of September, the U.S. Supreme Court has to decide whether they will take another look at the Alderman case,” says Chief Assistant District Attorney David Locke. “If they decide not to, we will be signing an execution warrant.”
Virgil D. Presnell Jr., was sentenced to death in October 1976 in Cobb County. Five months earlier, on May 4, 1976, he kidnapped two schoolgirls. Presnell confessed to laying in wait for the 10- and 8-year-old girls. 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. According to Cobb County D.A. Patrick Head, Presnell was retried in 1999 and given the death penalty again. “There is no doubt as to Presnell’s guilt,” says Head. “But here we are, 31 years later, and he is still sitting on death row.” Presnell filed a petition with federal court in June. On August 14, the court will schedule a date for an evidentiary hearing.
Edward W. Finney Jr. was sentenced to death for robbing, raping, and beating Thelma Kalish, 69, and Ann Kaplan, 60. On Sept. 22, 1977, the two elderly women, according to the district attorney, were tied up, raped and beaten to death with a two-by-four. Finney and Johnny Mack Westbrook, who had both done yardwork for the women, were convicted of the crimes. The Georgia Supreme Court reversed Westbrook’s death sentence and he died of natural causes in prison in 1993. Finney’s is not, according to D.A. Bright, an “active” death penalty case because of issues related to mental retardation.
Roger Collins was sentenced to death for the rape and murder of Deloris Luster, 17. On Aug. 6, 1977, Collins and a friend offered the young woman a ride. The teen was raped; afterwards, Collins killed her with a car jack. William Durham was sentenced to life in prison. Collins’ case has since been cited by Ireland’s Senate in discussions of international pressure on the U.S. to abolish the death penalty. Much of that debate has centered on Collins’ age (18) at the time the crime was committed. An Irish group has also participated in marathons while wearing T-shirts bearing his image to draw attention to his case. In a written statement on the Web site rogercollins.com, Collins admits to being part of a “situation that left a young lady murdered” and adds, “Although I didn’t directly kill anyone, I still very much deserve every single day I have served in prison.” Collins’ case was remanded in March 1991 for a jury trial to rule on the issue of mental retardation.
Brandon Astor Jones was sentenced to death for the June 17, 1979 murder of 29-year-old gas station manager Roger Tackett. Jones and Van Roosevelt Solomon were arrested at the scene after an officer just happened to drive up and heard gunshots. In the storeroom, the officer found Tackett’s body. He had been shot in the arms and legs and beaten before the fatal shot was fired into his skull. Solomon also was sentenced to death, and was executed on Feb. 20, 1985. According to a Web site devoted to Jones, he is a writer who has had articles published around the world. In “Without War,” which he describes as a “roman á clef,” he writes about the brutality involved in tracking runaway slaves in the pre-Civil War South. Jones was sentenced to death in a 1997 retrial during which international supporters testified that he had been rehabilitated. Currently, there is a decision pending in the Georgia Supreme Court on an application for certificate of probable cause to appeal.
Roy W. Blankenship’s victim, 78-year-old Sara Bowen, for whom Blankenship had done yardwork, died from a heart attack brought on by being raped, beaten, bitten, scratched and stomped. Blankenship has been sentenced to death three times, the last time in June 1986. He filed a petition with the U.S. district court in 2005. A final ruling by the court is pending. If petition is not granted, Blankenship can appeal to the 11th Circuit Court.
James Randall Rogers was sentenced to death for the 1980 rape and murder of his 75- year-old neighbor, Grace Perry of Rome, and the assault of Perry’s 63-year-old cousin, Edith Polston. Perry died of massive hemorrhaging caused by Roger’s use of a rake in the attack. In 2005, after the jury in Rogers’ retardation hearing returned a “not retarded” verdict, one of Polston’s daughters, now in her 60s, told the Rome News-Tribune regarding Rogers: “He’s going to outlive all of us.” Polston, for example, is now deceased. Rogers filed an appeal with the Georgia Supreme Court in May; oral argument is scheduled for Sept. 10.
Willie J. Wilson Jr. was sentenced to death for the shooting deaths of Alfred Boatwright, 64, and Morris Highsmith, 58, during an armed robbery in June 1981 at a store Boatwright owned. Wilson’s case was sent back to the trial court on the issue of mental retardation in March of 1991.
John W. Conner was sentenced to death for what Oconee Judicial Circuit District Attorney Tim Vaughn describes as the “stomping” death of James T. White, 29. Conner and White were drinking together when Conner became enraged and started beating White. Vaughn says Conner left a tennis-shoe print on White’s forehead. The U.S. district court denied a discovery motion in Sept. 2004 and has not as yet issued a separate finding on procedural default.
Lawrence Jefferson was sentenced for the beating death of Edward Taulbee, his construction supervisor. On May 1, 1985, Jefferson and Taulbee went fishing at Lake Allatoona. Taulbee’s body was found the next day; his skull had been crushed. A federal habeas petition regarding Jefferson’s sentence was granted in May of this year, with the federal court finding ineffective assistance of counsel in failing to investigate and present mental health evidence. A brief from the state in answer to the finding is due Aug.13. SP
Information for this list was gathered from interviews with district attorneys, defense attorneys and staff at the Georgia Attorney General’s office, as well as from legal documents, and archived published accounts in the Rome News-Tribune, the Augusta Chronicle and the Macon Telegraph.
2008-09-12 | JACK ALDERMAN SCHEDULED FOR EXECUTION ON SEPTEMBER 16, 2008 - ACT NOW!
Jack Alderman is the longest serving prisoner on death row in the United States. Sentenced to death in June 1975 for the murder of his wife, Jack has been on death row in Georgia for over 34 years and is scheduled to die by lethal injection on Tuesday, September 16, 2008 at 7:00 p.m.
John Brown, a neighbor and former colleague of Jack's, confessed to killing Jack's wife, Barbara Jean, and staging an accident in an attempt to cover up the crime. Brown claimed that he and Jack killed Barbara Jean together and that Jack promised to pay him for his role in the killing. There was no forensic evidence and Jack was convicted on just one man's word, the word of a man who was admittedly drunk and high on drugs the night of the murder. According to the District Attorney who prosecuted Jack, "he structured the entire case around [John Brown's testimony]" and Brown's testimony "is the case" against Mr. Alderman. Even worse, it was later revealed that Brown made a deal with prosecutors to implicate Jack in the crime. Two of the jurors have since affirmed that they would never have voted to execute Jack had the prosecutors acknowledged the existence of the deal with Brown, and five jurors have now urged that Jack's life be spared.
Both Jack Alderman and John Brown were sentenced to death, but Brown later pled guilty in return for a prison sentence. He was freed after serving only 12 years and went on to terrorize and molest girlfriends, their children and stepchildren, and other young girls and boys. Jack, however, has always maintained his innocence. In 1985, he declined the opportunity to have his sentence commuted to life in return for a guilty plea; he said that he could not confess to a crime that he did not commit. MORE http://www.ipetitions.com/petition/JusticeForJack
Please visit http://www.ExonerateJack.org for background on the case, as well as our most recent posts on http://www.AnitaRoddick.com and http://www.IAmAnActivist.org
SAD UPDATE: After granting Jack a clemency hearing, the state of Georgia rejected his appeal and executed him on 16 September. http://www.anitaroddick.com/readmore.php?sid=754&PHPSESSID=fad6367820a5c8bee8ce2538f2c4e55e
Exonerate Jack!Jack Alderman is the longest serving prisoner on Death Row in the USA. For nearly 34 years Jack Alderman has sought justice. His final appeal was denied in November 2006. He was only hours from execution on October 18th 2007 when he received a temporary stay while the US Supreme Court considered the constitutionality of lethal injection. However it was sanctioned on April 16th 2008, despite overwhelming evidence that it may cause excruciating pain. London artist, Simone Sandelson is fighting for a last minute reprieve for the man who has inspired her paintings.
On September 2nd 2008, Jack was called to the prison wardens office and handed a death warrant. He was not permitted to return to his cell to say his goodbyes but was immediately removed to the 'Death House' where he spends the next two weeks in isolation from his fellow inmates under 24 hour surveillance by armed guards. He will be killed by lethal injection on Tuesday September 16th.
Georgians for Alternatives to the Death Penalty
Alderman v. State, 241 Ga. 496, 246 S.E.2d 642 (Ga. 1978) (Direct Appeal).
Defendant was convicted by a jury in the Chatham Superior Court, Cheatham, J., of murder of his wife, and was sentenced to death. Defendant appealed. The Supreme Court, Bowles, J., held that: (1) even if error occurred in excluding for cause three prospective jurors, who, though not conscientiously opposed to capital punishment, testified that they could not write out a death verdict if elected foreman, such error, under circumstances, was harmless; (2) under circumstances, trial court did not abuse its discretion in denying defendant's motion for a continuance on ground of absence of witness; (3) even if error occurred in allowing officer to testify that defendant exercised his right to an attorney and remained silent during officer's noncustodial interview with defendant at time defendant was not under arrest, such error was harmless; (4) defendant's accomplice's testimony incriminating defendant was not “fortified” by officer's reference in prior testimony to polygraph examination which, as such testimony showed, had never been taken by accomplice; (5) State proved venue; (6) corraborating evidence of accomplice's testimony was sufficient to support verdict; (7) no error occurred in refusing to permit defense to complete examination of their expert witness pertaining to hypnotic treatment of defendant; (8) defendant was not denied effective assistance of counsel; (9) death penalty is not unconstitutional, and (10) under circumstances, death sentence would be affirmed. Judgment and sentence affirmed. Hall, J., filed opinion in which he concurred specially in division 3 and dissented as to division 1 and judgment. Hill, J., dissented and filed opinion.
The appellant, Jack Alderman, was indicted by a Chatham County Grand Jury for the offense of murder. He was tried by a jury and found guilty of the offense. The jury found as statutory aggravating circumstances that *497 the murder was “committed . . . for the purpose of receiving money or any other thing of monetary value” (Code Ann. s 27-2534.1(b)(4)) and, that the offense of murder was “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” Code Ann. s 27-2534.1(b)(7). The appellant was sentenced to death by electrocution. Appellant's amended motion for new trial was overruled, and his case is now before this court on appeal and for our mandatory review of the death sentence imposed.
I. Summary of the Evidence
The state presented evidence from which the jury was authorized to find the following:
On the afternoon of September 19, 1974, the appellant approached John A. Brown, a close friend, and asked for his assistance in the killing of appellant's wife, Barbara J. Alderman. The appellant told Brown that if he helped he would split one-half the proceeds of his wife's life insurance policy with him. At first Brown thought Alderman was only “kidding,” but Alderman's persistence convinced Brown that he was serious.
Two days later the appellant called Brown and asked him to come over to his apartment in Chatham County. When Brown arrived the appellant handed him a 12-inch crescent wrench and told him, “it had to be done . . . all you have to do is hit her with the wrench.” Brown hesitated, but after the appellant threatened him with a gun, Brown proceeded into the dining room where he struck Mrs. Alderman in the back of the head with the wrench. Mrs. Alderman screamed and ran into the living room where she was tackled by her husband. He held her down, and with Brown's assistance, attempted to strangle her. After she passed out, the appellant asked Brown if he thought she was dead. When Brown said “yes” the appellant said “well, stay here with her while I go open the bathroom door.” Brown asked what for and the appellant replied “I'm going to drag her in there and drown her . . . I want to make sure that she doesn't do anything. Mrs. Alderman's body was then dragged into the bathroom and placed in the bathtub.
The appellant started running water in the tub while Brown attempted to clean bloodstains from the carpet where Mrs. Alderman's body had fallen. Brown then went back into the bathroom and saw Mrs. Alderman in the bathtub with water just over her face.
Brown and the appellant changed clothes and left the apartment. They stopped at a Piggly-Wiggly store where Alderman got $100 which he gave Brown for his help. From there they went to a bar and started drinking. At around 10 p.m. Brown and the appellant returned to the apartment. Mrs. Alderman's body was still in the bathtub, but only a small amount of water remained in the bottom of the tub. They picked her up out of the tub, put her body on a quilt and rolled her up in it. Her body was then placed in the trunk of her car. Brown drove the car while Alderman followed behind on a motorcycle. They drove to Rincan, Georgia, in Effingham County. When they arrived at Dasher Creek, Mrs. Alderman's body was taken out of the trunk and put in the driver's seat of her automobile. Brown put the vehicle in drive and released the emergency brake. The car rolled into the creek. Before leaving, Brown opened the door to permit the body to fall out. The two then departed on the motorcycle.
At trial the appellant testified in his own behalf. He denied having anything to do with the death of his wife. He testified that on the night in question he and his wife had engaged in a conversation concerning her inability to become pregnant. She had told him that because she was only half a woman she was going to leave him to allow someone else to better fill her position. She grabbed her pocketbook and went out the back door. Appellant testified that at approximately 7 p.m. he left the apartment and caught a bus to get a drink. He returned home at approximately 10 p.m. but his wife was not at home. He then decided to go to Rincan, where Mrs. Alderman's grandmother resided, in order to apologize to his wife. The appellant testified that when he crossed the bridge at Dasher Creek, he saw his wife's car in the creek. The door was open and his wife's body was lying under water. The appellant testified that she was dead. When he heard a car coming he got on his motorcycle and returned to a bar in Savannah. Appellant testified that he did not know why he had left his wife's body in the creek; that he *499 recalled nothing of his trip back to Savannah; and, the fact that his wife was dead had completely left his mind. Appellant testified that he first realized the full facts surrounding his wife's death after being treated by a psychiatrist who was able to bring back his memory as to the events of that night. He stated that after being treated he realized that fear had caused him to leave his wife's body in the creek because he knew her family would blame him for her death. The evidence will be examined in more detail as necessary in addressing appellant's enumerations of error.
* * *
In the instant case, the accomplice's testimony was amply corroborated in several particulars. A forensic serologist from the Georgia Crime Laboratory testified that the blood type of the stains found on the appellant's trousers matched the blood type of the victim. There was testimony concerning a motorcycle kickstand impression where the victim's body was found, as well as testimony from a witness who stated that as he drove toward the creek a motorcycle passed by in the opposite direction, and on the left hand side of the motorcycle he saw something white flapping in the wind. Defendant owned a motorcycle and admitted driving his motorcycle to the creek scene on the night in question. This evidence corroborated the accomplice's testimony that he and the appellant had departed the scene on a motorcycle and that the appellant was holding the quilt in which Mrs. Alderman's body had been wrapped. The corroborating evidence was sufficient to support the jury's verdict. Appellant's enumeration of error is, therefore, without merit.
* * *
In our sentence review we have considered the aggravating circumstances found by the jury and the evidence concerning the crime and the defendant introduced in court. We have reviewed the sentence as required by Ga.L.1973, p. 159 (Code Ann. s 27-2537 (c) (1-3), as we have in each case involving a death penalty imposed under this statute. We conclude that the sentence of death imposed on Jack Alderman was not imposed under the improper influence of passion, prejudice or any other arbitrary factor. Code Ann. s 27-2537 (c) (1).
The jury found as statutory aggravating circumstances that the accused committed the offense of murder for the purpose of receiving money or any other thing of monetary value (Code Ann. s 27-2534.1 (b) (4)) and, that the offense of murder was outrageously or wantonly vile, horrible or inhumane in that it involved torture, depravity of mind, or an aggravated battery to the victim (Code Ann. s 27-2534.1 (b) (7)). The evidence supports the jury's findings in regard to the statutory aggravating circumstances. Further, we have thoroughly reviewed the instructions of the trial court during the sentencing phase of appellant's trial and find that the charge as given was not subject to the defects dealt with in our decisions in Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977) and Hawes v. State, 240 Ga. 327, 240 S.E.2d 833 (1977).
In reviewing the death penalty in this case, we have considered the cases appealed to this court since January 1, 1970, in which a death or life sentence was imposed for murder and we find that those similar cases set forth in the appendix support affirmance of the death penalty. Jack Alderman's sentence to death for murder is not excessive or disproportionate to the penalty imposed in similar cases considering both the crime and the defendant. Code Ann. s 27-2537 (c) (3). The verdict is factually supported.
Judgment and sentence affirmed.
Alderman v. State, 254 Ga. 206, 327 S.E.2d 168 (Ga. 1985) (Direct Appeal).
Defendant was convicted in the Superior Court, Chatham County, Frank S. Cheatham, J., of murder and, upon being sentenced to death, he appealed. The Supreme Court, Weltner, J., held that: (1) the year 1984 was too late to raise, for the first time, a challenge to a 1975 grand jury array; (2) jurors were not erroneously excused for opposition to the death penalty; (3) jury was warranted in finding the aggravating circumstance that the offense of murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim; (4) evidence offered in mitigation was not erroneously excluded; (5) trial court did not err when certain witnesses, who had testified at previous trial on issue of guilt or innocence, were allowed to give testimony at resentencing trial which contained information not previously revealed; and (6) refusal to give defendant's request to charge that if jury could not reach a verdict on punishment, a life sentence would be imposed was not error. Affirmed.
This is a death penalty case. In 1975, the appellant, Jack Alderman, was convicted in Chatham County for the murder of his wife and sentenced to death. On direct appeal, this court affirmed. Alderman v. State, 241 Ga. 496, 246 S.E.2d 642 (1978). Alderman subsequently obtained federal habeas relief as to sentence on the ground that three prospective jurors had been excused erroneously under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Alderman v. Austin, 695 F.2d 124 (5th Cir., Unit B, 1983) (en banc). Thereafter, another sentencing trial was conducted by Chatham County, and Alderman again was sentenced to death. He now appeals. FN1
FN1. The re-sentencing trial began in Chatham County on March 26, 1984 and the jury reached its verdict on March 31, 1984. Alderman filed a motion for new trial on April 11, 1984, and filed an amendment thereto on August 24, 1984. The motion was denied August 27, 1984. A notice of appeal was duly filed and the case was docketed in this court on September 27, 1984. Oral arguments were heard November 14, 1984.
1. In his 6th enumeration of error, Alderman complains of the trial court's denial of his challenge to the array of the grand jury which returned the indictment in this case back in 1975.
We find no merit to this enumeration. The year 1984 is too late to raise, for the first time, a challenge to a 1975 grand jury array. Walraven v. State, 250 Ga. 401, 297 S.E.2d 278 (1982); Young v. State, 232 Ga. 285, 206 S.E.2d 439 (1974).
2. The practice of death-qualification of jurors is not unconstitutional for any reason urged. Mincey v. State, 251 Ga. 255(2), 304 S.E.2d 882 (1983); Thomas v. State, 245 Ga. 688, 266 S.E.2d 499 (1980). Nor do we find any merit to Alderman's contentions that the manner in which the death penalty is imposed in Georgia is unconstitutional. His 8th and 9th enumerations are meritless.
3. In his 7th enumeration, Alderman complains of the limitations placed by the trial court upon the defense voir dire. We find from our examination of the transcript that both parties were given “an opportunity to ascertain the ability of the prospective jurors to decide the case on its merits, with objectivity and freedom from bias and prior inclination.” Waters v. State, 248 Ga. 355, 363(3), 283 S.E.2d 238 (1981).
The trial court did not err by refusing to allow Alderman to ask veniremen what kinds of books and magazines they read; whether they were members of any political organization; what kinds of bumper stickers they had on their automobiles; whether they had read anything about the reliability of hypnosis; whether they had ever expressed an opinion about other criminal cases; whether, if Adolph Hitler was on trial for killing 6,000,000 Jews, they could give him the death penalty; whether a juror who had previously served in a criminal case had been the foreman; and whether any juror had ever been the foreperson of a grand jury. Henderson v. State, 251 Ga. 398(1), 306 S.E.2d 645 (1983).
4. In his 13th enumeration, Alderman contends that jurors were erroneously excused for opposition to the death penalty, contrary to the standards of Witherspoon v. Illinois, supra.
Alderman argues that the proper test for the excusal of jurors opposed to the death penalty is contained in footnote 21 of the Witherspoon opinion in which the court stated: “[N]othing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt.” 391 U.S. at 522-23, 88 S.Ct. at 1777.
We have formerly recognized this as the standard for excusing a prospective juror for opposition to capital punishment. It is now clear, however, that the oft-cited footnote no longer holds. The standard for disqualification now is “whether the juror's views [on capital punishment] would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980).
This standard is not transgressed if the juror merely expresses “qualms” about capital punishment ( Witherspoon, supra, 391 U.S. at 513, 88 S.Ct. at 1772) or acknowledges that the possible imposition of the death penalty might affect his deliberations in the sense that he would take his duties more seriously than otherwise he might. Adams v. Texas, supra. However, “the requirement that a juror may be excluded only if he would never vote for the death penalty is now missing; ... whether or not a venireman might vote for death under certain personal standards, the state still may properly challenge that venireman if he refuses to follow the statutory scheme and truthfully answer the questions put by the trial judge.” Wainwright v. Witt, supra 469 U.S. at ----, 105 S.Ct. at 851.
Applying this test to the facts of this case, we conclude that the trial court did not err by excusing six jurors who were opposed to the *208 death penalty.FN2
FN2. We note that one juror asserted that he could consider the evidence and arrive at a fair sentence. Further examination, however, showed that he did not consider the death penalty a fair sentence and that he would vote for a life sentence no matter what the evidence. The trial court did not err by disqualifying this juror despite his “protestations of impartiality.” Wainwright v. Witt, supra (quoting Patton v. Yount, 467 U.S. 1025, ----, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984)).Another prospective juror testified that she could vote to impose a death sentence if, under the law, she had no other choice. However, if she had a choice, she would vote against the death penalty under any conceivable set of facts. The trial court, noting that under Georgia law a juror always has the choice not to impose a death sentence, properly excused the juror for cause.
The answers of the remaining jurors demonstrate with sufficient clarity their inability to impose a death sentence, and the trial court did not err by finding that they were disqualified to serve as jurors in this case. Wainwright v. Witt, supra.
5. In his 14th enumeration, Alderman contends that the trial court erred by refusing to grant defense challenges to two prospective jurors who, he contends, were biased in favor of the death penalty. We disagree. The answers of these two jurors failed to show that their views on capital punishment would prevent or substantially impair their ability to decide the question of sentence in accordance with the instructions of the court. Wainwright v. Witt, supra; Godfrey v. Francis, 251 Ga. 652(11), 308 S.E.2d 806 (1983).
6. The jury found one statutory aggravating circumstance: “The offense of murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” See OCGA § 17-10-30(b)(7). In his first three enumerations of error, which are argued together, Alderman questions the evidence, the charge, and the verdict respecting this statutory aggravating circumstance.
(a) When we reviewed this case previously, we held that the evidence was sufficient to support the jury's finding of the § (b)(7) circumstance beyond a reasonable doubt. Essentially the same evidence in aggravation was presented to this jury. The facts, recounted in Alderman v. State, supra, 241 Ga. at 497-499, 246 S.E.2d 642, distinguish this case from cases in which a finding of the § (b)(7) circumstance would be inappropriate.
(b) The court did not err by charging the jury on all three sub-parts of the second component of § (b)(7) (torture, depravity of mind and aggravated battery), inasmuch as the state offered evidence to show that the murder involved all three. West v. State, 252 Ga. 156, 160, 313 S.E.2d 67 (1984).
(c) Alderman contends that the jury's verdict, given in the disjunctive by its finding of “torture, depravity of mind, or an aggravated battery” (emphasis supplied), is insufficiently definitive, and that it cannot be determined which of the elements of § (b)(7) the jury actually found.
We note that the trial court charged most of the suggested charge on § (b)(7) set forth in the appendix to West v. State, supra, except that the court omitted any reference to mutilation, serious disfigurement, or sexual abuse of a deceased victim as showing depravity of mind. Instead, the jury was instructed that in order to find depravity of mind, it had to find torture or an aggravated battery as those terms were defined in the charge. West, supra, at 161-162, 313 S.E.2d 67. In these circumstances, each of these three sub-parts of § (b)(7) describes essentially the same conduct. Blake v. State, 239 Ga. 292(5), 236 S.E.2d 637 (1977). Therefore, absent a timely objection to the form of the verdict, the verdict was appropriate. Romine v. State, 251 Ga. 208 (7), 305 S.E.2d 93 (1983).
7. In his next two enumerations of error, Alderman complains of the exclusion of evidence offered in mitigation.
In one instance, Alderman wished to show that shortly after the first trial, co-defendant Brown told a fellow inmate, John Sato, that he (Brown) had killed Alderman's wife and that Alderman had not been a party to the murder. Sato related this to Alderman, and his attorneys recorded electronically Sato's account of the incident. The tape subsequently disappeared, as did Sato.
The trial court refused to allow Alderman to testify to the jury that Sato said that Brown said that Alderman was innocent. This refusal, Alderman contends, was reversible error.
We note that Brown was a state's witness and that he testified that Alderman killed his wife with Brown's assistance. Therefore, his prior inconsistent statements, if any, would be admissible as substantive evidence over an objection that such out-of-court statements are hearsay, or impeaching only. Gibbons v. State, 248 Ga. 858, 286 S.E.2d 717 (1982). However, such a statement must be proved by competent evidence-notably, by a witness who heard it made. See Castell v. State, 250 Ga. 776(1b), 301 S.E.2d 234 (1983). Sato would have been such a witness, but Alderman was not. His only knowledge of the fact to be proved-i.e., Brown's inconsistent statement-is what someone else told him. Alderman's testimony was excluded properly.
We find no merit to Alderman's contention that Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979), compels the admission of such testimony at the sentencing phase of a death penalty trial. In Green, the United States Supreme Court considered the exclusion of an admission by a co-defendant that he (and not Green) had been the actual killer. The witness who heard the admission was available to testify. The Court stated: “The excluded testimony was highly relevant to a critical issue in the punishment phase of the trial, [cits.], and substantial reasons existed to assume its reliability.... Perhaps most important, the State considered the testimony sufficiently reliable to use it against [the co-defendant] and to base a sentence of death upon it. In these unique circumstances, ‘the hearsay rule may not be applied mechanistically to defeat the ends of justice.’ [cit.]” Id., 442 U.S. at 97, 99 S.Ct. at 2151. (Emphasis supplied.)
In this case, Alderman's hearsay version of the incident obviously was not reliable. Moreover, another witness (Robert Waters) testified to a statement substantially similar to that allegedly made to Sato. In the circumstances of this case, the hearsay rule was not “applied mechanistically to defeat the ends of justice.”
In the other instance, Alderman wished to place in evidence statements made by him while in a hypnotic trance. This evidence was excluded at the first trial, and the court's rejection of it was sustained on appeal. Alderman v. State, supra, 241 Ga. at 510-511, 246 S.E.2d 642. There was no error.
8. In his 11th enumeration, Alderman contends that the notice provisions of OCGA § 17-10-2 were violated when certain witnesses, who had testified at the previous trial on the issue of guilt or innocence, gave testimony at the re-sentencing trial which contained information not previously revealed.
Alderman objected when this first occurred, and the trial court ruled: “I'm just going to let every witness testify who testified in the case before and if they vary their testimony or add additional testimony, you can ask them why they did it, why they varied it or why they added new testimony.”
When a case is retried as to sentence, both the state and the defendant are entitled to offer evidence on the issue of guilt or innocence, not because the validity of the conviction is at issue, but because the jury needs to examine the circumstances of the offense (as well as any aspect of the defendant's character or prior record) in order to decide intelligently the question of punishment. Blankenship v. State, 251 Ga. 621, 308 S.E.2d 369 (1983); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); **174 Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Moreover, a jury should know the extent of a defendant's culpability and the strength of the state's evidence in this regard. See Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).
For these reasons, any evidence the state presents at a re-sentencing trial is “in aggravation,” in that the state relies upon it in seeking the death penalty. We cannot agree, however, that the state is required by OCGA § 17-10-2 to supply, in advance, a full prospectus of the expected testimony of every witness to the circumstances of the offense.
As to such witnesses, the requirement of OCGA § 17-10-2 is satisfied where, as here, the defendant has received not only the names of the witnesses, but a transcript of their prior testimony. The trial court's ruling was correct.
9. In his 11th enumeration, Alderman complains of the prosecutor's closing argument, which proceeded as follows: (The D.A.): “But since I've been in the office, which is 1977, several years after this case was tried, and this case has been there, I haven't been directly involved with it all the time, naturally not, but at no time do I know-” (Defense counsel): “Your Honor, we're going to object to any facts outside the record that the District Attorney might testify to.” (The D.A.): “Judge, I'm commenting essentially on the testimony.” (The Court): “Well, you can do that, but don't comment on anything that you know personally or did not know.” (The D.A.): “All right, sir.” Later, the following transpired: (The D.A.): “You can turn Alderman aloose just because you like the way he looks. Did you know that? You all ...” (Defense counsel): “Your Honor, I'm going to object to that. They can't turn Alderman loose. They're here for one limited purpose.” (The D.A.): “Excuse me, let me-I'm sorry, Judge. I didn't mean to say that. I meant to say it, but I said it the wrong way. [To the jury]: “You can give Alderman life just because you like the way he looks.”
We find no reversible error in the foregoing. Regarding the remainder of the argument, we find nothing that requires reversal of the death penalty. Spivey v. State, 253 Ga. 187(4), 319 S.E.2d 420 (1984).
10. The trial court did not err in refusing to give Alderman's request to charge that if the jury could not reach a verdict, a life sentence would be imposed. Ingram v. State, 253 Ga. 622(15), 323 S.E.2d 801 (1984); Allen v. State, 253 Ga. 390(2), 321 S.E.2d 710 (1984). Alderman's 12th enumeration is without merit.
11. In his 15th enumeration, Alderman contends the court's charge was improper. (a) The court prefaced its charge by stating: “I'm going to start this Charge today by stating some general principles of law that you are to apply to the evidence and then after I do that, I'm going to give you the substantive law as it applies to your responsibilities in this particular case.” Then the court instructed the jury on standard principles of law, including burden of proof beyond a reasonable doubt, credibility of witnesses, impeachment, expert testimony, circumstantial evidence, and parties to a crime. Afterwards, the court gave instructions usual to death penalty cases, including mitigating and aggravating circumstances, and the scope of the jury's sentencing discretion. Alderman contends the court erred by referring only to the latter portion of the charge as being “substantive.”
Reviewing the charge as a whole, the jurors were properly instructed. Felker v. State, 252 Ga. 351(16), 314 S.E.2d 621 (1984). Although Alderman is doubtless correct in his contention that all of the court's charge was “substantive,” we do not agree that the manner in which the charge was given denigrated the importance of any of its several parts (if, indeed, so fine a point was ever registered in the mind of a single juror!)
(b) The court did not err by instructing the jury that Alderman already had been found guilty, and that the jury could not alter that finding. This instruction was a correct statement of law. Conjoined with the further instruction that the jury could nonetheless consider the strength of the evidence of guilt in determining sentence, this charge clearly benefited Alderman.
(c) The court's instructions on mitigating circumstances were sufficient. (d) The court did not err by failing to instruct the jury that the indictment was not evidence, inasmuch as Alderman stood convicted of the crime charged in the indictment. The copy sent out with the jury did not show the previous jury's sentencing verdict.
12. We find that the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor. OCGA § 17-10-35(c)(1).
13. We conclude that Alderman's death sentence is neither excessive nor disproportionate to penalties imposed in similar cases, considering both the crime and the defendant. OCGA § 17-10-35(c)(3).
Judgment affirmed. All the Justices concur.
Alderman v. Austin, 663 F.2d 558 (5th Cir. 1981) (Habeas).
State prisoner filed petition for habeas corpus relief. The United States District Court for the Southern District of Georgia, at Savannah, B. Avant Edenfield, J., 498 F.Supp. 1134, granted the petition, and warden appealed. The Court of Appeals, James C. Hill, Circuit Judge, held that: (1) although Bureau of Investigation special agent, in his testimony at petitioner's state court trial, alluded at one point to the fact that petitioner had expressed his wish, during interview, to exercise his right to an attorney and to remain silent, such comment was neither solicited by the prosecutor, objected to by petitioner's attorney, nor mentioned in the course of trial; accordingly, this alleged constitutional error was harmless, and provided no basis for federal habeas corpus relief where the indicia of guilt was overwhelming; but (2) the jury which convicted petitioner of murder and sentenced him to death suffered from a defect of the type held violative of due process in Witherspoon, where the prosecutor elicited from three prospective jurors that he or she, if elected foreman, would be unable to sign a verdict that would effect capital punishment of a defendant, and where the prosecutor then moved successfully to strike those three veniremen from the jury for cause. Affirmed in part; reversed in part; remanded. Thomas A. Clark, Circuit Judge, filed an opinion concurring in part and dissenting in part.
* * *
The district court order issuing the Writ, on the basis of Witherspoon v. Illinois, is affirmed. Petitioner's existing death sentence shall not be carried out. The district court's finding of harmful constitutional error on petitioner's Doyle v. Ohio ground is reversed. The case is remanded for proceedings not inconsistent with this opinion. It is so ORDERED. AFFIRMED in part; REVERSED in part; REMANDED.
Alderman v. Austin, 695 F.2d 124 (5th Cir. 1983) (Habeas).
Inmate filed habeas corpus petition. The United States District Court for the Southern District of Georgia, B. Avant Edenfield, J., 498 F.Supp. 1134, granted petition, and appeal was taken. The Court of Appeals, 663 F.2d 558, affirmed in part, reversed in part and remanded. On rehearing en banc, the Court of Appeals, James C. Hill, Circuit Judge, held that: (1) investigating officer's single reference to defendant's expression of wish to exercise right to have attorney and right to remain silent was harmless error, and (2) panel holding that jury was constitutionally defective reinstated. Alderman v. C.A.11 (Ga.),1994.
Alderman v. Zant, 22 F.3d 1541 (5th Cir 1994) (Habeas).
After affirmance of murder conviction and death sentence, 241 Ga. 496, 246 S.E.2d 642, petition was filed for writ of habeas corpus. The United States District Court for the Southern District of Georgia, No. CV 488-122, B. Avant Edenfield, Chief Judge, denied petition, and petitioner appealed. The Court of Appeals, Fay, Senior Circuit Judge, held that: (1) petitioner's Brady/ Giglio allegation was procedurally barred; (2) petitioner was not entitled to benefit of fundamental miscarriage of justice exception to overcome procedural or abuse of writ bars; (3) there was no promise, understanding or agreement between state and codefendant/witness requiring disclosure of same to petitioner; and (4) trial court's exclusion of references to petitioner's hypnotic treatment did not deprive petitioner of fundamentally fair trial. Affirmed.
FAY, Senior Circuit Judge:
On June 23, 1992, the United States District Court for the Southern District of Georgia denied Alderman's petition for habeas corpus relief. On October 23, 1992, the district court granted Alderman a certificate of probable cause and thus this appeal. Because we find Petitioner's multiple allegations to be procedurally barred, an abuse of the writ, or in the alternative without merit, we AFFIRM the ruling of the district court.
The Petitioner, Jack E. Alderman (“Alderman”), and his wife, Barbara Alderman (“Mrs. Alderman”), lived in an apartment in Chatham County Georgia. Alderman was employed as an assistant manager at the local Piggly Wiggly supermarket. Mrs. Alderman was employed in the Tax Assessor's office for the City of Savannah. In conjunction with her employment, Mrs. Alderman maintained a $10,000.00 life insurance policy that paid double benefits in the event of accidental death. Mrs. Alderman also had another life insurance policy in the amount of $25,000.00 which named her mother as beneficiary.
Alderman met John Arthur Brown (“Brown”), later convicted as an accessory to Mrs. Alderman's murder, when both Alderman and Brown were employed in the vehicle maintenance department for the City of Savannah. Brown testified that on September 19, 1974, Alderman phoned Brown and asked him to meet him at the Piggly Wiggly supermarket. Brown stated that during this meeting Alderman asked Brown to kill Mrs. Alderman in exchange for half the insurance proceeds. Brown, although claiming not to take Alderman seriously, accepted the proposition.
On Saturday, September 21, 1974, Alderman asked Brown to come to his apartment. When Brown arrived, Alderman handed Brown a twelve-inch crescent wrench and instructed Brown to go into the bedroom and kill Mrs. Alderman. Testimony indicates that Brown was initially reluctant, but agreed to strike Mrs. Alderman when persuaded by the gun wielding Alderman. Brown entered the dining room and struck Mrs. Alderman in the head with the wrench. Mrs. Alderman cried out and ran into the living room where she confronted her husband. Alderman tackled Mrs. Alderman, then assisted by Brown, placed his hands over Mrs. Alderman's nose and mouth until she was unconscious.
Alderman and Brown carried Mrs. Alderman's limp body to the bathroom and placed it in the bathtub. Alderman started to fill the tub while Brown cleaned the blood stains from both the living and dining rooms. Alderman and Brown changed clothes and left the apartment for several hours. The two men went to the Piggly Wiggly supermarket where Alderman borrowed $100.00. Alderman and Brown then went to two local Savannah bars. At some time during the evening Alderman gave Brown the $100.00.
Alderman and Brown returned to the apartment around 10:00 p.m., removed Mrs. Alderman's body from the bathtub and wrapped it in a green quilt. The two men carried the body to Alderman's 1974 Pontiac and placed it in the trunk. Brown drove Alderman's car as Alderman followed on his motorcycle. Alongside a creek in Rincon, Georgia, Brown and Alderman removed the body from the trunk and placed it in the driver's seat. At Alderman's direction, Brown reached in the driver's window and released the emergency brake allowing the car to roll into the creek. The car stopped halfway into the creek. Again at Alderman's direction, Brown opened the car door, pulled Mrs. Alderman's body halfway out and allowed her face to fall into the creek. The two men removed the green quilt and the rubber trunk mat from the car and fled the scene on Alderman's motorcycle.
Later that evening, on September 21, 1974, Randy Hodges (“Hodges”) and Terry Callahan (“Callahan”) were driving home on Baker Hill Road and Highway 131. As they turned onto Highway 131 and approached Dasher's Creek, they noticed a car in the creek. Hodges jumped out, saw that there was a woman in the car and sent Callahan to Lamar Rahn's house to call for help. Effingham County Sheriff Lloyd Fulcher (“Fulcher”) responded to the call. Upon his arrival at the scene, Fulcher found the victim's car in the water adjacent to the bridge. Fulcher noticed no apparent physical damage to the car. He ordered Mrs. Alderman's body to be removed from the car and taken to the hospital. Fulcher observed that there were no skid marks from the car but that motorcycle tracks were apparent in the area. Fulcher also noticed blood stains on the seat of the car and that the trunk mat was missing.
At the direction of Fulcher, Garden City police officer J.D. Crosby (“Crosby”) went to Alderman's apartment only to find it locked. Crosby later returned to the apartment at approximately 2:30 a.m. and found Alderman there with a woman. Crosby informed Alderman that his wife had been involved in a traffic accident, and asked him to accompany Effingham County authorities to the hospital. Georgia Bureau of Investigation Agent H.H. Keadle (“Keadle”) was present at the Effingham County hospital. Keadle and Fulcher noticed red/brown stains in the seat and crotch of Alderman's pants and on his belt. At that time, Alderman's clothes were taken from him. Keadle's investigation confirmed Crosby's findings at the accident scene. Keadle also recovered a stained portion of a green rug and Alderman's motorcycle helmet, which had been removed from the Alderman's apartment by Mrs. Alderman's mother. Alderman's father, Jack Alderman, Sr., also gave the police the twelve inch crescent wrench that he had removed from Alderman's apartment.
Forensic Serologist Elizabeth Quarles, of the Georgia State Crime Laboratory, examined the blood found on Alderman's clothes. The blood type was consistent with Mrs. Alderman's blood. An examination of the vehicle revealed one palm print and four fingerprints which were stipulated as Alderman's. Brown's fingerprints, however, were not found on the car.
Dr. Charles Sullinger (“Dr. Sullinger”) performed the autopsy upon Mrs. Alderman's body. Dr. Sullinger concluded that the laceration on the back of Mrs. Alderman's head was inflicted by a blunt instrument. Dr. Sullinger also concluded that because there existed only a small amount of blood in the car, the blow to Mrs. Alderman's head did not occur as a result of the accident. Dr. Sullinger found no evidence of any abnormalities in the heart, no scratches on the forearms and no evidence of strangulation. Dr. Sullinger concluded that the liquid in Mrs. Alderman's lungs revealed that Mrs. Alderman died as a result of asphyxia due to drowning.
Keadle's investigation led him to Brown. Brown eventually gave a statement incriminating himself and Alderman. At trial, Alderman testified on his own behalf and denied that he killed his wife.FN1 Alderman testified that on the night of September 21, 1974, he and his wife had an argument and that he left the apartment alone. He allegedly took a bus to Savannah where he spent some time at two local bars. Alderman testified that he returned home at approximately 10:00 p.m. but his wife was not at home. Alderman decided to go to Rincon, Georgia to see if Mrs. Alderman was at her grandparent's home.
FN1. A more complete version of Alderman's defense may be found in Alderman v. State, 241 Ga. 496, 246 S.E.2d 642, 644-45, cert. denied, 439 U.S. 991, 99 S.Ct. 593, 58 L.Ed.2d 666 (1978), reh'g denied, 439 U.S. 1122, 99 S.Ct. 1036, 59 L.Ed.2d 84 (1979).
Alderman testified that on his way to Rincon, he observed his car on the side of the bridge at Dasher's Creek. Alderman stopped his motorcycle and went to the car where he discovered his wife's body. Alderman stated that he picked up Mrs. Alderman's head and placed it in his lap. Upon hearing a noise, Alderman fled the scene in shock and fear. Alderman allegedly forgot about his wife's body, drove to Savannah and returned to a local bar. Alderman then went to Johnny Ganem's for breakfast with friends. While at breakfast, Alderman offered Gerlina Carmack (the female present in the Alderman's apartment when Officer J.D. Crosby arrived) a ride home. Alderman had allegedly stopped at his apartment to pick up a jacket when the police arrived and took him to the hospital where he identified his wife's body.
Alderman testified that he did not know why he had left his wife's body in the creek; that he recalled nothing of his trip back to Savannah; and, the fact that his wife was dead had completely left his mind. Appellant testified that he first realized the full facts surrounding his wife's death after being treated by a psychiatrist who was able to refresh his memory as to the events surrounding her death. He further testified that after being treated by the psychiatrist he realized that fear had caused him to leave his wife's body in the creek because he knew her family would blame him for her death.
Alderman was originally convicted in the Superior Court of Chatham County for the murder of his wife, Barbara Alderman. The jury determined guilt accompanied by two statutory aggravating circumstances: (1) Ga.Code Ann. § 27-2534.1(b)(4), i.e., murder “committed ... for the purpose of receiving money or any other thing of monetary value”; and (2) Ga.Code Ann. § 27-2534.1(b)(7), i.e., murder which was “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” The jury sentenced Alderman to death. On direct appeal, the Supreme Court of Georgia affirmed his conviction and sentence. Alderman v. State, 241 Ga. 496, 246 S.E.2d 642, cert. denied, 439 U.S. 991, 99 S.Ct. 593, 58 L.Ed.2d 666 (1978), reh'g. denied, 439 U.S. 1122, 99 S.Ct. 1036, 59 L.Ed.2d 84 (1979).
Alderman sought state habeas corpus relief in an action filed in the Superior Court of Chatham County, Georgia. Alderman v. Griffin, Civil Action No. 14385-C. On June 4, 1979, the state habeas corpus court held a hearing without restricting counsel in the presentation of evidence or argument. Relief was denied. The Supreme Court of Georgia subsequently denied Alderman a certificate of probable cause to appeal. The Supreme Court of the United States denied Alderman's petition for a writ of certiorari. Alderman v. Balkcom, 444 U.S. 1103, 100 S.Ct. 1068, 62 L.Ed.2d 788, reh'g denied, 445 U.S. 973, 100 S.Ct. 1670, 64 L.Ed.2d 252 (1980).
Alderman then filed an application for federal habeas corpus relief in federal district court. The district court ruled on two issues and granted relief as to the conviction and sentence. Alderman v. Austin, 498 F.Supp. 1134 (S.D.Ga.1980). On appeal, the Fifth Circuit Court of Appeals reversed the death sentence but affirmed the conviction. Alderman v. Austin, 663 F.2d 558 (5th Cir. Unit B 1981); Alderman v. Austin, 695 F.2d 124 (5th Cir. Unit B 1983) ( en banc ). Alderman did not urge the district court to rule on the remaining issues, and proceeded with a new sentencing hearing in the Superior Court of Chatham County, Georgia.
A new sentencing hearing was held in the Superior Court of Chatham County in March, 1984. Alderman was again sentenced to death. The Supreme Court of Georgia affirmed the death sentence. Alderman v. State, 254 Ga. 206, 327 S.E.2d 168, cert. denied, 474 U.S. 911, 106 S.Ct. 282, 88 L.Ed.2d 245, reh'g. denied, 474 U.S. 1000, 106 S.Ct. 419, 88 L.Ed.2d 369 (1985). Alderman then filed a petition for state habeas corpus relief in the Superior Court of Butts County, Georgia. Alderman v. Kemp, Civil Action No. 86-V-524. The state habeas corpus court dismissed the petition on September 10, 1987 following a hearing on June 29, 1987. On October 28, 1987, the Supreme Court of Georgia denied the application for a certificate of probable cause to appeal. The United States Supreme Court denied the petition for a writ of certiorari. Alderman v. Georgia, 485 U.S. 943, 108 S.Ct. 1124, 99 L.Ed.2d 285, reh'g denied, 485 U.S. 1030, 108 S.Ct. 1588, 99 L.Ed.2d 903 (1988).
On June 23, 1988, Alderman filed a second federal petition for a writ of habeas corpus in the United States District Court for the Southern District of Georgia. The district court denied relief on June 6, 1989, without an evidentiary hearing. Subsequent to the entry of the judgment, both Alderman and the State (“Respondent”) filed motions to alter and amend. On June 22, 1989, the district court entered an order denying Alderman's Motion to Alter and Amend but did not rule on Respondent's motion. During the pendency of Respondent's Motion to Alter and Amend, Alderman filed a notice of appeal.
On August 10, 1990, this Court dismissed the appeal for lack of jurisdiction based on Respondent's pending Motion to Alter and Amend. On remand, the district court entered an order on September 20, 1990 granting Respondent's Motion to Alter and Amend in part and denying the motion in part.FN2 Alderman then filed an appeal challenging both decisions by the district court while at the same time challenging the court's jurisdiction to consider his own appeal due to the failure to rule on an issue. On December 27, 1991, this Court again dismissed the appeal for lack of jurisdiction because the district court failed to rule on Petitioner's claim regarding the unconstitutional composition of the traverse jury.FN3
FN2. The district court specifically reaffirmed its finding that the Petitioner did not abandon or waive any of his rights by agreeing to a resentencing hearing. However, the court went on to amend its Order dated June 6, 1989 in regard to nine of the Petitioner's allegations it had previously held to be an abuse of the writ. The court stated that because the second state habeas court found that O.C.G.A. § 9-14-51 barred nine of the allegations contained in the successive petition, the court should defer to those rulings unless the Petitioner was able to show cause for his failure to raise the issues on the first state habeas petition. Presnell v. Kemp, 835 F.2d 1567, 1580 (11th Cir.1988), cert. denied, 488 U.S. 1050, 109 S.Ct. 882, 102 L.Ed.2d 1004 (1989). Therefore, the court amended its Order of June 6, 1989, and held that the nine allegations it previously found to be an abuse of the writ were, in the alternative, procedurally barred.
FN3. In remanding Petitioner's appeal to the district court, this Court also stated:Since we have had the advantage of briefs and oral arguments on the merits of this case, we note that upon remand the district court will have jurisdiction to hold an evidentiary hearing on Alderman's claims for violation of Giglio v. United States, 405 U.S. 150 [92 S.Ct. 763, 31 L.Ed.2d 104] (1972); Brady v. Maryland, 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] (1963), and prosecutorial misconduct based on the alleged failure to disclose a deal between the state and witness John Brown. (Order of December 27, 1991 at 4 n. 4.)
On February 21, 1992, the district court ordered the parties to submit briefs and scheduled an evidentiary hearing for March 18, 1992. On May 11, 1992, the district court denied Petitioner's request for an evidentiary hearing on the traverse jury issue, and refused to consider the issue at the evidentiary hearing. Subsequent to the evidentiary hearing, the deposition of Brown taken on May 20, 1992, was made part of the record. On June 23, 1992, the district court entered an order denying the petition for habeas corpus relief. On October 23, 1992, the district court granted Alderman a certificate of probable cause to appeal.
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Appellant challenges the verdict stating that the evidence did not support a finding of the seventh statutory aggravating circumstance. We, like the district court, disagree. We find that the state court, the state supreme court and the district court properly found that there was sufficient evidence to support a finding of Georgia's (b)(7) statutory aggravating circumstance, namely that the offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim. Therefore, we agree with the district court finding that no federal constitutional deprivation was occasioned and that there was sufficient evidence to corroborate the testimony of Brown.
Based upon the foregoing discussion, and for the reasons stated in the district court's dispositive orders regarding those issues enumerated in footnote 4, supra, we AFFIRM the district court's denial of relief.