It started on April 15, 1981 when police
found 22 year old Louise DalSanto strangled and face down in her bathtub
at Woodcreek apartments in Clarkston.
She had been sexually assaulted
and strangled by hand before her body was dumped face down and covered
with scalding water in her bathtub.
A month later, March 29, Gisele
Clardy, 22, was found in almost the same way as Louise DalSanto
was found, but this time it was at the Cherry Hill Apartments on Buford
On June 15, 1981, another victim, Patricia Berry,
22, was found dead the same
way the first two were found, raped and strangled, but at the Windermere Apartment complex
located on Roswell Road in Fulton County.
Law Enforcement started looking at all
similar type reports and found that on March 3rd a woman named Margaret
Finnerty, who leave in Windermere Apartment, reported that a man came
to her door and told her that he was there to fix the pipes and when she
cracked the door he forced his way in. He entered the apartment and
strangled her until she was unconscious. The suspect ransacked the
Apartment and took only a World War II Bayonet.
The second report that Law Enforcement
found was taken on March 16, where Constance Harold complained to police
about a man that had come to her door dressed as a floral delivery
person. When she opened the door, he attempted to force his way into the
Apartment. Constance Harold was able to slam the door before he could
With the police armed with these two new witnesses and
composites of the suspect from other witnesses in the apartment complex,
they were able to come up with a good tip, which led them to James
Samuel Walraven, a 32-year-old unemployed tennis bum, who hung out at
public tennis courts in Dekalb y Atlanta.
Walraven was detained and charged with
the crimes. He was condened to life wiyh parole.
WALRAVEN v. THE STATE
Murder, etc. DeKalb Superior Court. Before Judge Henley.
Appellant, James Samuel Walraven, was convicted of the "bathtub"
murder of Gisele Clardy and sentenced to death. Finding four of
appellant's enumerations of error to be meritorious, we reverse.
Gisele Clardy was employed as assistant manager of the Cherry Hill
Apartments in DeKalb County. On the afternoon of May 28, 1981, Gisele
left her office to post certain notices and to inspect vacant apartments.
James Buffington, an auto mechanic working in the parking lot near
building "U," saw Gisele drive into the parking lot shortly after 4:00
p.m. Behind her was a car with two men inside. Both cars parked. The
passenger, whom Buffington later identified as the appellant, James
Walraven, got out and talked briefly with Gisele. Both walked out of
sight toward building U. Ten or fifteen minutes later, appellant ran
back to the car, got in, and departed.
Gisele did not report to work the next day. Her body was discovered
that morning in apartment U-1, lying face down in the bathtub in three
or four inches of water. She was nude except for her blouse. Cause of
death was strangulation. No sperm or seminal fluid was discovered during
the autopsy, but bruises and contusions around her vagina indicated that
she had been sexually attacked.
The state contended at trial that the murder of Gisele Clardy was
one of a series of similar crimes. In support of its contention, the
state offered the following evidence.
Margaret Finnerty resided at Windermere Apartments on Roswell Road.
On March 3, 1981, a man claiming to be a maintenance man knocked on her
door and asked to be admitted so he could check her water. Mrs. Finnerty
opened the door and the man, whom she later identified as the appellant,
choked her with a kerchief or bandana until she passed out.
On March 16, 1981, a man in a tan uniform, wearing black gloves and
carrying a flower box under his arm, rang the doorbell to Constance
Harrold's home. When she opened the door, the man stated, "I have a
delivery for Mrs. Robinson." Then he tried to force his way into the
home. Mrs. Harrold managed to close the door, run out the back, and call
the police at a neighbor's house. The flower box was caught in the door.
No flowers were inside, but when the police arrived they discovered a
coil of rope lying on her front porch.
A man who jogged in the area resembled the description given by Mrs.
Harrold to the police. Based upon her identification of this man, he was
arrested, but was later released when Mrs. Harrold decided she had
identified the wrong man. Subsequently, Mrs. Harrold identified
appellant as the man who had assaulted her.
On April 15, 1981, Dario Dal Santo found the body of his sister,
Louise, lying face down in the bathtub of the Woodcreek apartment where
the two of them resided. She was nude. Sperm was discovered in her
vagina and mouth. Cause of death was manual strangulation. A pubic hair
recovered from the bath rug was compared with a sample later taken from
appellant. The two hairs were sufficiently similar that they could have
had a common origin. The semen sample obtained from Louise's body was
examined as was a sample of appellant's blood. Appellant could not be
eliminated as donor of the seminal fluid.
On the afternoon of June 5, 1981, Meredith Nelson saw appellant in
the hallway near her Windermere apartment. She followed him downstairs.
When she stopped to check her mail he told her, "I just thought I'd let
you know I was in your apartment earlier today . . . I was working on
On June 15, 1981, the body of Patricia Berry, who had lived across
the hall from Meredith Nelson, was discovered face down in her bathtub,
partially submerged in water. She was nude above the waist. Cause of
death was manual strangulation. Joseph Gann saw a man sneaking around
the corner of the apartments about 2:15 p.m. of June 15. This man, Gann
testified, was about 6' 1" or 6' 2" with blondish hair, had a good tan,
looked very strong, and was wearing a gold medallion around his neck.
Gann was 70 to 80% sure that the man he saw that day was the appellant,
Appellant was arrested July 14, 1981, and interrogated. During the
interrogation, appellant stated that "the only person he had ever had
sex with in his life was his sister," some years before.
David Zorda, a convicted forger and a prisoner at the Henry County
jail at the time of the trial, testified that in July of 1981 he was
incarcerated in the DeKalb County Jail. On July 24, 1981, he and
appellant were the only white inmates at the jail store and talked
together briefly. Appellant told Zorda that he had "killed those goddamn
After the state rested appellant presented his case.
Martha Delagarza lived at Cherry Hill apartments, where Gisele
Clardy had worked. About a week before Gisele was killed, Martha was
followed home by a strange man in a telephone van. When she turned left
into the apartment complex, he passed her, made a u-turn, and followed
her all the way to building U, where she lived. The driver was a large,
muscular looking man with straw-colored hair. She testified that he was
not the appellant, James Walraven.
Dr. Richard Rasche, a clinical psychologist, testified that at the
request of the DeKalb police, he placed James Buffington (the mechanic
who had seen appellant with Gisele Clardy on the afternoon of her death)
under hypnosis, in an attempt to heighten his recall of the events of
that afternoon. Under hypnosis, Buffington stated that the man he saw
talking to Gisele was only a couple of inches taller than she and was
wearing a watch on his right wrist. Buffington recalled seeing a
telephone company van parked nearby.
On the afternoon of March 16, 1981 (the day Constance Harrold was
attacked), Helen Whitehead was working at a house up the street from Mrs.
Harrold's residence. Ms. Whitehead testified that a man came to the door
and asked for a coathanger to unlock his car. She described the man as
being in his late 20's, having blond hair, and wearing a beige jumpsuit.
A long white box was sitting on top of his car. She testified that the
man she saw was not the appellant, James Walraven.
Peggy Brodsky, the manager of Glenlake Tennis Center, testified that
on April 15, 1981 (the day Louise Dal Santo was killed), appellant
manned the phones at the tennis center from 4:00 p.m. to 10:00 p.m.
Jonathan Linton testified that he saw appellant at Blackburn Park
between 4:15 and 4:30 p.m. on June 15, 1981 (the day Patricia Berry was
killed). He and appellant warmed up together and both played in a tennis
tournament later that evening.
Robert Melton, commander of the jail division of the DeKalb County
Sheriff's Department, testified that David Zorda spent approximately
three days in the DeKalb County Jail and that Zorda and appellant were
both in the jail store on July 24, 1981, and no other time. They both
would probably have been placed in the same holding area of the store.
Wayne Krier testified that he was the "house man" for the "Northeast
Max" cell block of the DeKalb County Jail. Appellant was incarcerated in
the same cell block. Krier testified that during the first six weeks of
appellant's incarceration, appellant never went to the store without
Krier being present. Krier never saw appellant talking to David Zorda
and never heard appellant confess to Zorda or anyone else.
G. L. Smith, an investigator with the DeKalb County Police
Department, testified that he searched appellant's apartment on July 14,
1981, and found nothing that connected appellant with Gisele Clardy's
murder or any other crime.
Appellant testified on his own behalf. He denied being at the Cherry
Hill Apartments on May 28, 1981, and claimed he had not been there in
over three years. He testified that he is right-handed and wears his
watch on his left wrist. He testified that he never wore any other
jewelry, including medallions. He never saw David Zorda until the latter
testified; he did not know the whereabouts of Windermere Apartments; he
did not own a car; and he did not kill Gisele Clardy, Louise Dal Santo,
or Patricia Berry, or attack Mrs. Finnerty or Mrs. Harrold.
1. In his tenth enumeration of error, appellant contends the trial
court erred in refusing to hear the challenge to the array of the grand
Rule 11 (A) (5) of the Unified Appeal Procedure states that at the "first
proceeding," which is to be held at "the earliest possible opportunity
after indictment and before arraignment," "[t]he court shall determine
whether or not the defendant intends to challenge the arrays of the
grand or traverse juries . . . If a challenge is presented, the court
shall hear the asserted factual and legal basis of challenge although
under law the right to challenge may have been waived."
The first proceeding in this case was conducted September 10, 1981.
In response to the court's query, counsel for appellant stated that he
needed additional time to complete his investigation to determine
whether or not any jury challenge would be appropriate. The state
responded that it was satisfied with this preliminary statement, so long
as appellant gave a definite answer at the time of the motion hearing.
See Rule 11 (B). The court allowed appellant additional time to answer
Appellant filed his challenge to the arrays of the grand and
traverse juries on September 25. On September 28, the court granted
appellant's motion for continuance with regard to his motion to change
venue and his jury challenges.
The court convened October 16, 1981, for the purpose of hearing
appellant's challenges to the arrays of the grand and traverse juries.
At this hearing, the state, for the first time, contended that since the
challenge to the array of the grand jury had not been filed prior to the
indictment, the challenge was waived. See, e.g., Sanders v. State,
235 Ga. 425, 426 (219
SE2d 768) (1975). The court agreed, ruled that the challenge to
the array of the grand jury was untimely, and refused to allow appellant
to make an offer of proof with regard to the merits of his challenge.
We agree with appellant that the purpose of Rule 11 (A) (5) of the
Georgia Unified Appeal Procedure is to allow a defendant in a death
penalty case to challenge the array of his grand jury after indictment.
Failure to announce at the first hearing that defendant does, in fact,
intend to challenge the array of the grand jury might ordinarily bar a
subsequent challenge. In this case, however, the court allowed appellant
additional time to determine whether or not to make such a challenge. We
conclude, therefore, that no waiver occurred.
The trial court erred in refusing to hear the merits of appellant's
grand jury challenge. We must remand this case to the trial court with
direction to conduct a hearing on appellant's challenge to the array of
the grand jury. Since the grand jury that indicted appellant was
selected prior to the release of the final, official 1980 census, the
validity of the composition of the grand jury shall be determined by
reference to the 1970 official decennial census. If the grand jury
challenge is meritorious, the indictment must be quashed and a new
indictment obtained from a proper grand jury, selected by reference to
the now released official 1980 decennial census.
2. Appellant contends in his seventh enumeration of error that the
trial court erred in allowing David Zorda to testify about appellant's
statement made to Zorda while both were in police custody at the DeKalb
County Jail, because the state failed to comply with Code Ann. 27-1302
by furnishing appellant with the statement at least 10 days prior to the
trial of the case. We agree.
Code Ann. 27-1302 provides in part: "The defendant shall be entitled
to have a copy of any statement at least 10 days prior to the trial of
the case given by him while in police custody . . . Failure of the
prosecution to comply with a defendant's timely written request for a
copy of his statement, whether written or oral, shall result in such
statement being excluded and suppressed from the prosecution's use in
its case-in-chief or in rebuttal."
On September 16, 1981, appellant filed a ". . . Motion for Discovery
pursuant to Ga. Code Sections 27-1302 and 27-1303 requesting that the
state make the following available to him: (1) Any statement given by
defendant while in police custody, whether written or oral . . ."
Appellant was arraigned November 9, 1981, and the case was tried
November 9 through November 16.
Appellant's request was both timely and sufficiently specific.
McCarty v. State, 249 Ga. 618 (292 SE2d 700)
(1982); State v. Meminger, 249 Ga. 561
(292 SE2d 681) (1982).
The state argues that since the statement made by appellant to Zorda
was not the product of custodial interrogation, Code Ann. 27-1302 is
inapplicable. We cannot agree. The statute plainly refers to "any
statement . . . given by [the defendant] while in police custody." See
Reed v. State, 163 Ga. App. 364 (295 SE2d 108)
The state does not contend that the statement was newly discovered,
nor is there any indication in the record that appellant had notice,
until just before the testimony was offered, that the state intended to
prove the statement. It should have been excluded. Moreover, since the
statement was direct evidence of appellant's guilt in a primarily
circumstantial case, we cannot conclude its admission was harmless.
Compare Wallin v. State, 248 Ga. 29 (279 SE2d
687) (1981). Thus, even if, on remand, appellant's grand jury
challenge is found to be without merit, a new trial is necessary. If, on
retrial, Code Ann. 27-1302 has been complied with, Zorda's testimony
will be admissible. Tanner v. State, 160 Ga. App.
266 (287 SE2d 268) (1981).
3. Since this case must be retried, we need not determine whether or
not appellant's traverse jury challenge was meritorious. However, since
the trial court measured disparity incorrectly and since appellant might,
upon retrial, file a new traverse jury challenge, we point out that
where a defendant makes a Sixth Amendment fair-cross-section attack upon
the composition of the traverse jury, "the fair-cross-section
requirement involves a comparison of the makeup of jury venires or other
sources from which jurors are drawn with the makeup of the community,
not of the voter registration lists." Duren v. Missouri, 439 U. S. 357,
365, n. 23 (99 SC 664, 58 LE2d 579) (1979). Moreover, "the fair cross
section analysis employs a prima facie test which is virtually identical
to the equal protection prima facie test for establishing a presumption
of discrimination. [Cits.] There is a significant distinction, however,
in the way that each prima facie case may be rebutted. For an equal
protection claim, the presumption can be rebutted by proving an absence
of discriminatory intent. [Cit.] In a fair cross section analysis,
purposeful discrimination is irrelevant since the emphasis is purely on
the structure of the jury venire; a prima facie case can be rebutted
only by establishing a significant government interest which justifies
the imbalance of classes. [Cit.]" United States v. Perez-Hernandez, 672
F2d 1380, 1384, n. 5 (11th Cir. 1982).
4. We find it necessary to deal with other errors that might
otherwise occur upon retrial:
(a) Appellant's third enumeration of error is meritorious. The trial
court failed to specifically rule that appellant's statements made
during custodial interrogation were voluntary.
In Sims v. Georgia, 385 U. S. 538 (87 SC 639, 17 LE2d 593) (1967),
the U. S. Supreme Court held that while "the judge need not make formal
findings of fact or write an opinion, his conclusion that the confession
is voluntary must appear from the record with unmistakable clarity." "As
in Sims, here there has been no ruling on the issue of voluntariness
made with the required 'unmistakable clarity.' " Cofield v. State,
247 Ga. 98, 109 (4) (274
SE2d 530) (1?81).
(b) Appellant's fourth enumeration of error is meritorious.
Appellant contends the trial court erred in allowing a witness for the
state to testify that during custodial interrogation, appellant stated
that "the only person he had ever had sex with in his life was his
sister." Appellant contends this testimony was irrelevant, attacked his
character and introduced evidence of another crime, separate and
independent of the one for which he was being tried.
Even if character is not one of the ultimate issues in the case,
character evidence is logically relevant: "Character is circumstantial
evidence of conduct and state of mind . . . A person is more likely to
act in accord with his character than contrary to it." Waters v. State,
248 Ga. 355, 366 (283
SE2d 238) (1981) (cites omitted). Nonetheless, because the
probative value of such evidence is outweighed by the danger of
prejudice, such evidence is generally legally irrelevant. Code Ann.
38-202. A specific application of the general rule is that in criminal
cases, "no evidence of general bad character or prior convictions shall
be admissible unless and until the defendant shall have first put his
character in issue." Code Ann. 38-415. However, if "the evidence is
substantially relevant for some other purpose than to show a probability
that [the defendant] committed the crime on trial because he is a man of
criminal character," McCormick on Evidence, 190 at 447 (2d Ed. 1972), it
is admissible even if it incidentally puts the defendant's character in
issue. Tiller v. State, 196 Ga. 508 (3) (26
SE2d 883) (1943).
Purposes for which evidence of previous criminal acts might be
offered, other than to show criminal character, include: Motive; intent;
absence of mistake or accident; plan or scheme, of which the crime on
trial is a part; and identity. McCormick, supra; Hamilton v. State,
239 Ga. 72 (235 SE2d 515) (1977). Thus, in
certain circumstances, evidence of independent crimes is admissible. Two
conditions must be satisfied. "First, there must be evidence that the
defendant was in fact the perpetrator of the independent crime. Second,
there must be sufficient similarity or connection between the
independent crime and the offense charged, that proof of the former
tends to prove the latter." French v. State, 237
Ga. 620, 621 (229 SE2d 410) (1976).
The alleged incest is not similar to the crime for which appellant
was tried. This the state concedes, but contends that it shows motive
and state of mind and is therefore logically connected even if
dissimilar. We cannot agree.
"The state of mind that will permit the admission of an unrelated
crime is the state of mind at the time of the commission of the offense
as shown by the acts or words of the defendant so close in time to the
alleged offense as to have a bearing upon his state of mind at that
time. Defendant's conduct over the years cannot be shown to prove that
he has a depraved or wicked state of mind generally." Commonwealth v.
Boulden, 116 A2d 867, 873 (Penn. Super. Ct. 1955).
Nor can we agree that evidence of an incest occurring years ago
illustrates motive for committing a "bathtub" murder. See Larkins v.
State, 230 Ga. 418 (2) (197 SE2d 367) (1973).
In our view, the only relevance of the evidence was to show bad
character or criminal propensity. Absent the injection of the issue of
character into the case by the defendant, such evidence is inadmissible.
(c) In reviewing the sentencing charge of the court, we have noted
that the court failed to clearly and explicitly instruct the jury about
the nature or function of mitigating circumstances. Hawes v. State,
240 Ga. 327 (9) (240 SE2d 833) (1977);
Fleming v. State, 240 Ga. 142 (7) (240 SE2d 37)
(1977). See Spivey v. Zant, 661 F2d 464 (5th Cir. 1981). Compare
Horton v. State, 249 Ga. 871 (8) (295 SE2d 281)
(1982); Johnson v. Zant, 249 Ga. 812 (2)
(295 SE2d 63) (1982).
Robert E. Wilson, District Attorney, Jonathan C. Peters, Assistant
District Attorney, Michael J. Bowers, Attorney General, Virginia H.
Jeffries, Staff Assistant Attorney General, for appellee.