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Sears v. State

Supreme Court of Georgia

December 3, 1997


Reconsideration Denied Dec. 19, 1997.

Page 181

[268 Ga. 769] Carlton Crow Carter, Canton, J. Michael Treadaway, Ray Gary, Jr., Marietta, Tanya Greene, Southern Center for Human Rights, Atlanta, for Demarcus Ali Sears.

Thomas James Charron, Dist. Atty., Debra Halpern Bernes, Asst. Dist. Atty., Nancy I. Jordan, Asst. Dist. Atty., Jack E. Mallard, Asst. Dist. Atty., Cobb County District Attorney's

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Office, Marietta, Susan V. Boleyn, Senior Asst. Atty. Gen., Paige Reese Whitaker, Asst. Atty. Gen., Wesley Scott Horney, Asst. Atty. Gen., Department of Law, Atlanta, for the State.

Joseph L. Chambers, Sr., Prosecuting Attorneys Counsel, Smyrna, Stephen C. Bayliss, Georgia Resource Center, Michael Mears, MultiCounty Public Defender, Atlanta, for other interested parties.

FLETCHER, Presiding Justice.

A jury convicted Demarcus Ali Sears of the armed robbery and kidnapping with bodily injury of Gloria Ann Wilbur. [1] The jury found as aggravating circumstances that the kidnapping with bodily injury was committed while Sears was engaged in the capital felonies of armed robbery, rape, and murder, and that the kidnapping with bodily injury was outrageously vile, wantonly vile, horrible, and inhuman, in that it involved torture to the victim before death, depravity of mind of the defendant, and aggravated battery to the victim before death. [2] Sears was sentenced to death for the kidnapping with bodily injury. We affirm the jury's verdict of guilt, but because the trial court improperly restricted Sears from contacting jurors to investigate his claim of jury misconduct, we remand to allow Sears to develop a record on that issue.

The evidence showed that on the afternoon of October 7, 1990, Demarcus Sears and Phillip Williams were walking through Atlanta because their car had broken down. Wanting to return home to Ohio, where they lived, they walked to a Waffle House in Smyrna and tried to borrow money from several patrons in the restaurant. They told the patrons that their car had broken down and they needed money to go to Cincinnati. Sears carried a black briefcase that contained brass knuckles, knives and a set of old handcuffs that was missing a key. He opened the briefcase in the restaurant and tried to sell some of the items to a customer. After receiving directions and a couple of dollars for bus fare, Sears and Williams walked to a nearby Kroger [268 Ga. 760] food store. A police officer observed them loitering near the Kroger parking lot and briefly spoke with them before he left in response to a radio call. Subsequently, they decided to steal a car so they could drive back to Cincinnati.

They spotted the victim, Gloria Wilbur, when she parked her 1985 Buick and entered the Kroger. Around 8:00 p.m., Ms. Wilbur returned to her car and placed her groceries in the trunk. Sears approached her, struck her with the brass knuckles and forced her into the car. Williams then got behind the wheel and they drove north on I-75. Sears told Ms. Wilbur to keep quiet, pulled her into the back seat, and handcuffed her with her hands behind her back. When they stopped for gas and hamburgers, Sears wedged Ms. Wilbur down between the seats and covered her with book bags to prevent discovery. While they were driving through Tennessee, he raped her.

They crossed the border into Kentucky around 1:00 a.m. and stopped the car. Despite her pleas to remain in the car, Sears took the victim into the bushes along I-75 and stabbed her to death. Ms. Wilbur's body was found, still handcuffed, almost a week later. Her abandoned Buick was discovered in a Cincinnati suburb. Bloodstains in the car matched the victim and pubic hair taken from the back seat matched Sears.

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Based on an identification by witnesses at the Waffle House and a tip from an Ohio informant, the police questioned Williams and Sears. Both men gave statements. Sears admitted that he had taken the Buick and kidnapped, raped and killed the victim. His statement matched Williams' statement, except that Sears claimed that it was Williams who had struck Ms. Wilbur with the brass knuckles and Williams claimed that it was Sears. Both men stated that only Sears had raped and stabbed her. Sears also consented to a search of his mother's house, where he lived, and was escorted by police to this residence. He took the police to his room and showed them the black briefcase and brass knuckles. Williams pled guilty in exchange for two life sentences and testified for the state at Sears' trial.

1. After reviewing the evidence in the light most favorable to the jury's determination of guilt, we conclude that a rational trier of fact could have found Sears guilty of the crimes charged beyond a reasonable doubt. [3]


2. Sears challenges the trial court's ruling that required him to reveal the identity of his expert witnesses and their written reports [268 Ga. 761] as a violation of this court's decision in Rower v. State. [4] In Rower, we held that the state may discover any written reports of experts that the defendant intends to introduce at trial. The defendant is not required to have the opinions of his experts reduced to writing nor is he required to produce any report that he will not offer at trial. [5]

The record fails to support Sears' assertion that the trial court required his experts to provide written reports and release them to the state. Sears initially sought public funds to hire a psychiatrist, microanalyst, and forensic odontologist and filed a motion in limine to bar the state from calling his expert witnesses at trial. Before the trial court could rule on the motions, and without presenting any argument at the ex parte hearing, Sears withdrew his motion for funds for a psychiatrist to assist in the guilt-innocence phase of the trial. The trial court later approved the hiring of a microanalyst and forensic odontologist to review the materials used by the state's expert to establish the identity of the victim. In approving their employment, the trial court ordered Sears to reveal their identity to the state. At no time did the trial court order the defendant's experts to produce written reports and give them to the state. Given that Sears withdrew his request for a psychiatrist before any court ruling, did not consult a microanalyst, and eliminated the need for the odontologist's testimony by stipulating at trial to the victim's identity, he has failed to show any chilling effect or other harm from the ruling that he must give the name of his experts to the state. [6]

3. Sears contends that the trial court erred by denying his pretrial motion to compel the state to provide the juvenile record of a state witness. Phillip Williams, Sears' accomplice, had several prior juvenile adjudications in Ohio for robbery and theft and a pending juvenile action for forgery. Under Ohio law, juvenile criminal records are not public records because they are sealed. [7] According to Sears, Williams' juvenile record amounted to exculpatory evidence under Brady [8] and should have been provided to the defense for impeachment purposes. Sears maintains that the failure of the state to deliver certified copies of Williams' juvenile record to the defense denied Sears his right to fully confront and cross examine Williams. [9]

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[268 Ga. 762] It is undisputed, however, that Sears had access to the state's file in this case and that Williams' Ohio juvenile records were not a part of that file. "Brady does not impose an affirmative obligation on the prosecution to seek out information for the defense, even if such information is more accessible to the prosecution than to the defense." [10] Therefore, the state is not required to provide to the defense the confidential out-of-state juvenile records of a state witness, when those records are not a part of the state's file. [11]

Even assuming that the state had a duty to obtain Williams' juvenile records, Sears failed to show that he was denied beneficial information that was so important that its absence prevented him from receiving a fair trial and materially prejudiced his case. [12] Sears' attorney discussed Williams' juvenile record in detail in his opening statement and cross examined Williams about his former drug dealing and his plea of guilty to the crimes against Ms. Wilbur in exchange for two life sentences. A state witness also testified that Williams was being held at a juvenile detention center in Ohio at the time he was brought in for questioning on the crimes in Georgia. We find no error in the trial court's denial of the motion to compel the state to obtain Williams' juvenile records from Ohio.

4. The police obtained Sears' consent to search his mother's house and executed a warrantless search that uncovered several incriminating items, including brass knuckles and a black briefcase. "A valid consent obviates the need for a search warrant." [13] Sears alleges, however, that his consent was not freely and voluntarily given due to coercion, promises, and his drug-induced state. In order to determine whether the consent was voluntary, courts examine the totality of the circumstances surrounding the consent. [14] Demarcus Sears was eighteen years old, had an eleventh grade education, had been held by the police for less than two hours, was not subject to any ...

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