Stanley Edward Allen, 42, was
sentenced to death in Elbert County in July 1981.
Mr. Allen and an
accomplice, Woodrow Davis, 18, were convicted in the Jan. 5, 1981, break-in
of the home of Susie C. Rucker, 72. Both men raped the woman, and she
was strangled to death.
Mr. Davis was sentenced to life in prison. Mr.
Allen's death sentence was overturned by the Georgia Supreme Court in
January 1982, but he was resentenced to death in October 1984.
had previously been sentenced to 10 years in prison for rape in 1975.
Since September 1991, Mr. Allen has been awaiting a new sentencing trial
on the issue of mental retardation.
(253 Ga. 390)
(321 SE2d 710)
Murder. Elbert Superior Court. Before Judge Bryant.
This is the second appearance of this death
penalty case. Appellant, Stanley Edward Allen, and co-defendant
Woodrow Davis were indicted in Elbert County for the murder, rape
and robbery of Susie C. Rucker. In separate trials, they were
convicted. The state sought the death penalty in both cases, but it
was imposed in Allen s case only. The convictions were affirmed on
direct appeal. Davis v. State, 249 Ga. 784
(294 SE2d 504) (1982); Allen v. State,
248 Ga. 676 (286 SE2d 3) (1982).
However, Allen's death sentence was reversed for
Witherspoon error. Ibid; Witherspoon v. Illinois, 391 U. S. 510 (88
SC 1770, 20 LE2d 776) (1968). Upon retrial as to sentence, Allen was
again sentenced to death. The issue of sentence is now here on
direct appeal and for review pursuant to the Unified Appeal
Procedure and OCGA 17-10-35.
Mrs. Rucker's body was lying on her kitchen floor
when it was discovered by a neighbor at about 1:00 p.m. on January
6, 1981. Her underclothes were pulled down to her feet and her outer
clothes were pulled up to her waist. "Vegetable" debris, i.e.,
leaves and pine needles, were present in her clothing and hair.
There was a considerable amount of blood on her upper legs and about
the perineal region of her body.
An autopsy was conducted by Dr. Byron Dawson to
determine the cause of death. He observed that one side of her face
and the back of her head were swollen and bruised. Internal
examination of the head revealed a subdural hemorrhage along the
base of the brain which Dr. Dawson described as a potentially fatal
lesion which due to her death did not "finish developing."
On her chest was a "rather intense" contusion.
Her sternum and several ribs were broken. Internal bleeding
resulting from this injury had half-filled one of the pleural
cavities. Dr. Dawson testified that this internal bleeding
eventually would have caused her death.
Examination of the vaginal canal revealed a tear
which, because of an earlier hysterectomy, opened directly into the
abdominal cavity. The injury to this area produced "maybe a
potentially fatal hemorrhage and certainly . . . a potentially fatal
peritonitis, were it not treated appropriately at some reasonable
All of these injuries, according to Dr. Dawson,
occurred prior to Mrs. Rucker's death. He said her death was caused
by manual strangulation, evidenced by traumatic hemorrhage in the
internal musculator of the neck and petechial hemorrhage in and
about the neck and face, including the eyelids and gums.
One of the front windows was broken out of Mrs.
Rucker's home. Blood was observed on the floor of the bedroom and
kitchen. Portions of her clothing and two "Ace" bandages were found
in a wooded area to the rear of her home. Drag marks were observed
between that area and the back porch.
Allen was arrested and gave a statement to police
which was admitted in evidence at trial. This statement was
summarized in our prior opinion as follows:
Allen stated that he and Davis were together the
evening of January 5, 1981. "Davis borrowed his car at about 10 p.m.
Davis returned with the car at about 10:30 p.m. and said 'Stanley,
come on and go with me, we got something to do.' As they drove,
Davis told him he knew an old lady who had plenty of money and he
was going to get some of it. They went to the victim's home, where
Davis knocked on the door and said that he was Elijah Hunter (Elijah
Hunter was a neighbor of the victim's) and was out of gas. She
responded that he wasn't Elijah Hunter. After she went into the
bedroom and came out with a gun (either a rifle or a shotgun), Davis
and the defendant ran back to the car and left. The defendant
returned to his cousin's, arriving about 11 p.m., and Davis left in
his car. Davis returned about 11:15, picked him up, and asked if he
wanted to go back; the defendant responded that he did. The
defendant knocked on the back door. When the victim, a 72-year-old
woman, came to answer the door, Davis entered through a front window,
grabbed the victim, and opened the back door and let the defendant
in. The defendant looked around the house. He then followed Davis
into the woods behind the victim's house where he found Davis 'having
sex' with the victim. She was pleading with Davis, asking him not to
hurt her. Davis and the defendant carried the victim back into her
home and laid her on a bed. The defendant then 'had sex' with her.
While this was going on, Davis was looking through the house for
money, but found only jewelry. Unable to find any money, Davis threw
the victim on the floor and, according to the defendant, Davis
started stomping on her, asking 'Where's the money, where's the
money?' The defendant testified he pulled Davis off the victim and
they left the house. On the way out, the defendant picked up a
butcher knife but he fell and dropped it before he got to his car.
Davis took some jewelry, which he kept himself. The defendant also
stated that he was 26 and weighed about 170 at the time of the crime,
and Davis was 18 and weighed 120 or 130." Allen v. State, supra at
After he and Davis left the Rucker home, Allen
was seen by several witnesses with straw in his hair, blood on his
clothes, and a badly swollen right hand on which he wore an Ace
bandage. He explained to his girl friend that he had been in a fight.
Allen's clothes were examined by a serologist
from the state crime lab. The blood on his clothes was of the same
international blood group as that of the victim. Seminal fluid and
spermatozoa were present in his underwear. In addition, a pubic hair
discovered in his underwear was microscopically identical to that of
1. In his first enumeration, Allen complains of a
photograph admitted in evidence which shows a table near the broken
front window of the victim's home on which were a Bible, a book
written by evangelist Billy Graham, and numerous shards of broken
glass, indicating that the window was broken from the outside. We
find no error. "[P]hotographs depicting the crime scene are relevant
and admissible." Putman v. State, 251 Ga.
605, 608 (3) (308 SE2d 145)
(1983). This is no less true at a re-sentencing trial. Blankenship
v. State, 251 Ga. 621(308
SE2d 369) (1983).
2. In his second enumeration, Allen contends the
trial court erred by charging: "Whatever your verdict is, it must be
unanimous; that is, agreed to by all." We disagree. The jury was not
told that a verdict was required; the jury was told only that any
verdict it reached must be unanimous. Compare Legare v. State,
250 Ga. 875 (1) (302 SE2d 351) (1983).
The instruction given was a correct statement of the law. Ibid;
Felker v. State, 252 Ga. 351 (13d) (314
SE2d 621) (1984).
3. In Enumeration 3, Allen contends the trial
court erred by failing to instruct the jury on the law of
circumstantial evidence. We note that Allen failed to request a
charge on circumstantial evidence. Moreover, Allen stood convicted
of murder and there was direct evidence of the only statutory
aggravating circumstance contended for by the state. We find no
error. Whittington v. State, 252 Ga. 168 (7)
(313 SE2d 73) (1984); Burger v. State,
245 Ga. 458 (1) (265 SE2d 796) (1980).
4. The trial court did not commit reversible
error by failing to instruct on expert witnesses absent a request.
Burger v. State, supra.
5. In Enumeration 6, Allen contends that his
character was impermissibly placed in issue by testimony that around
8 or 8:30 p.m. on January 5, 1981, Allen had gone alone to the home
of Pierce Cobb, who lived six or seven miles from the victim. Allen
asked if he could use Cobb's phone. Cobb refused to let him in.
Character is not a forbidden issue in the
sentencing phase of a trial. Fair v. State,
245 Ga. 868 (2) (268 SE2d 316) (1980).
In any event, regardless of the probative value of Cobb's testimony,
Allen did not object to it and, absent any objection, we find no
reversible error in its admission in evidence. Mincey v. State,
251 Ga. 255 (17) (304 SE2d 882) (1983).
6. The only statutory aggravating circumstance
contended by the state, and found by the jury, was that "[t]he
offense of murder was outrageously or wantonly vile, horrible and
inhuman in that it involved torture to the victim or depravity of
mind on the part of the defendant." See OCGA
17-10-30 (b) (7). Allen contends the trial court erred by
failing to direct a verdict on this issue and by failing to grant
his motion for new trial on the ground that the evidence was
insufficient to support the jury's finding of this statutory
We have stated that "torture occurs when a living
person is subjected to the unnecessary and wanton infliction of
severe physical or mental pain, agony or anguish." West v. State,
252 Ga. 156, 161 (Appendix) (313
SE2d 67) (1984). Moreover, "the fact that the victim was
tortured . . . will also support a finding of depravity of mind . .
." Hance v. State, 245 Ga. 856, 862 (268
SE2d 339) (1980).
Prior to her death by strangulation, Mrs. Rucker
was hit on the head so hard that she suffered a potentially fatal
brain hemorrhage; she was kicked in the chest hard enough to break
her sternum and several ribs and to cause potentially fatal internal
bleeding; and she was raped so forcefully that she received
potentially fatal injuries to her vaginal tract. The victim, an
elderly woman weighing less than 100 pounds, was raped, brutally
beaten, and then strangled to death. The evidence amply supports a
finding of torture and depravity of mind.
Allen contends, however, that he did not torture
Mrs. Rucker himself, and that the (b) (7) aggravating circumstance
is therefore inapplicable to him. We disagree. Although Allen's
custodial statement indicated that Davis was the one who broke into
the front window and who "started stomping" the victim and that
Allen tried to pull Davis off, other evidence indicated that the
extent of Allen's participation in the commission of the crime was
greater than he was willing to admit. We note that it was Allen's
hand that was injured, his hair that had straw in it, his clothes
that had blood and seminal fluid on them, that he was the one who
handled the butcher knife, and that it was his car in which the
victim's ring was found.
Moreover, by his own admission, after Mrs. Rucker
had been forcefully removed from her home, carried into the woods
and raped by co-defendant Davis, Allen helped Davis carry the victim
back into the house where Allen "had sex" with her. From this
statement -- together with the testimony of Dr. Dawson describing
the considerable bleeding caused by injuries to the victim's vaginal
tract and the photographs corroborating this testimony it must be
inferred either that Allen "had sex" with the victim after she had
been severely injured by the Davis rape, or that Allen's own act was
so savage that it caused the potentially fatal injuries to the
victim's vaginal tract. In either event, Allen directly participated
in the intentional infliction of serious sexual abuse. This serious
sexual abuse alone would have been sufficient to support a finding
of torture and depravity of mind. Hance v. State, supra at 861.
We conclude that the jury's finding of the (b)
(7) statutory aggravating circumstance is supported by the evidence.
OCGA 17-10-35 (c) (2); Jackson v.
Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Compare
Whittington v. State, supra (9 b); Phillips v. State,
250 Ga. 336 (6) (297 SE2d 217) (1982).
7. Allen relies upon Enmund v. Florida, 458 U. S.
782 (102 SC 3368, 73 LE2d 1140) (1982), to argue that his death
sentence is excessive and disproportionate.
Enmund holds that the Eighth Amendment forbids
the imposition of the death penalty upon a defendant "who aids and
abets a felony in the course of which a murder is committed by
others but who does not himself kill, attempt to kill, or intend
that a killing take place or that lethal force will be employed." We
find that under no reasonable interpretation of the evidence in this
case was Allen's participation in the murder of Mrs. Rucker so
limited. Unlike Enmund -- who was not present at the scene of the
murder, who did not directly commit either the murder or the felony
underlying the felony-murder conviction, and whose only
participation in the crime was that he drove the get-away car --
Allen was an active participant in the events that led to the
victim's death. 3
8. Allen also contends that his death sentence is
excessive and disproportionate to the life sentence given to co-defendant
In Hall v. State, 241 Ga.
252 (8) (244 SE2d 833) (1978), this court held that our
statutorily mandated proportionality review of death sentences
includes special consideration of the sentences received by co-defendants
in the same crime. Therefore, as we did in Hall v. State, we have
examined the evidence presented at the codefendant's trial.
It was there shown that Davis had given several
statements to law officers. He claimed at first that he had nothing
to do with the crime except that he had given a ride to Allen
afterwards. He later admitted entering the Rucker home after Allen
first broke out the front window. Davis claimed that Allen took the
victim outside while he (Davis) searched the house. Davis denied
having harmed the victim. It was shown that Allen's clothes had
blood and seminal fluid on them but that Davis' clothes did not.
Davis testified at his trial that Allen forced Davis to join him in
Allen's plan to rob Mrs. Rucker. Witnesses testified that Davis had
a reputation in the community for being nonviolent and that he was a
Allen and Davis have each attempted to portray
the other as the more culpable party to the crime. However, the
evidence as a whole provides greater support for Davis' attempt to
portray himself as the less culpable party. In view of all the
circumstances of the crime and of the defendants, including the
difference in age and the extent of admitted culpability, we
conclude that the death sentence imposed in Allen's case is not
excessive or disproportionate to the sentence received by Davis. The
fact that one jury concluded that Davis deserved mercy while another
concluded that Allen did not was, we believe, based upon rational
distinctions between the two defendants and the circumstances of
their offenses. Compare Horton v. State, 249
Ga. 871 (13) (295 SE2d 281) (1982).
We further find that Allen's death sentence is
neither excessive nor disproportionate to sentences imposed in
similar cases generally. OCGA 17-10-35
(c) (3). The cases listed in the appendix support the affirmance of
the death penalty.
9. 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 The verdict
of death was returned August 12, 1982. A motion for new trial was
filed August 23, 1982, and an amendment thereto was filed December
3, 1952. The motion, as amended, was heard February 8, 1983, and
denied January 26, 1984. The case was then appealed to this court
and orally argued June 26, 1984.
2 Trial counsel
Tom Strickland filed an appellate brief urging error in the trial
court's denial of his motion for new trial. Subsequently, attorney
Andrew Hill was appointed to represent Allen on appeal and he has
filed six additional enumerations of error. References in the
opinion to numbered enumerations of error are to the Hill brief.
However, pursuant to the Unified Appeal Procedure, as amended, 252
Ga. A-13 et seq., we also address alleged errors raised in the
3 The result in
Enmund v. Florida does not turn on the mere fact that Enmund was
convicted of felony murder. It is important to note how attenuated
was Enmund's responsibility for the deaths of the victims in that
case. Enmund did not directly commit the armed robbery. However, as
the driver of the get-away car, he assisted in the commission of the
robbery and thus was guilty of the robbery as a party to the crime.
Then, since he was legally guilty of having committed the robbery,
and since two people were unlawfully killed as a result of the
commission of the robbery, Enmund was found guilty of murder under
the felony murder rule, even though he did not kill, attempt to kill,
or intend that a killing take place or that lethal force be employed.
As we state above, Allen's culpability was not so
limited.Nonetheless, resolution of an Enmund issue is not
facilitated by the practice of allowing a general verdict of guilty
in a case in which both malice murder and felony murder are charged
to the jury. Requiring the jury to specify whether the defendant is
guilty of malice murder or of felony murder would clarify the jury's
findings in this respect. Therefore, we suggest that in such a case
the jury be instructed on three possible verdicts (guilty of malice
murder, guilty of felony murder or not guilty) instead of the usual
two (guilty or not guilty).
Lindsay A. Tise, Jr., District Attorney,
Francis J. George, Assistant District Attorney, Michael J.
Bowers, Attorney General, Paula K. Smith, Staff Assistant
Attorney General, for appellee.
Andrew J. Hill, Jr., for appellant.
DECIDED OCTOBER 11, 1984.
Stanley Edward Allen