Spears v. State ( 2015 )

In the Supreme Court of Georgia
Decided: February 16, 2015
S14P1344. SPEARS v. THE STATE.
BLACKWELL, Justice.
A jury convicted Steven Frederick Spears of murder and other crimes, all
in connection with the killing of Sherri Holland.1 The jury found the existence
1
Spears committed the crimes on August 24-25, 2001. He was indicted by a Lumpkin County
grand jury on November 19, 2001 and again on December 19, 2001, but both of these indictments were
later withdrawn by nolle prosequi. His final indictment was returned on January 6, 2003, and it charged
him with malice murder, felony murder predicated on burglary, felony murder predicated on aggravated
assault, felony murder predicated on kidnapping, aggravated assault, kidnapping with bodily injury,
burglary predicated on an intent to commit a theft, and burglary predicated on an intent to commit murder.
The State filed written notice on January 30, 2003 of its intent to seek the death penalty under this final
indictment. Jury selection was conducted from September 12-16, 2005; however, the trial court granted
a continuance and dismissed the prospective jurors based on an e-mail that defense counsel received from
a psychologist. Jury selection began anew on March 5, 2007. On March 20, 2007, at the conclusion of
the State’s guilt/innocence phase presentation, the trial court dismissed the count of the indictment alleging
felony murder predicated on burglary, reasoning that the indictment failed to place Spears on notice of the
particular type of burglary that was alleged in that count. On March 21, 2007, the jury found Spears guilty
on all of the remaining counts charged in the indictment. On March 22, 2007, the jury recommended a
death sentence for the murder. Later on March 22, 2007, the trial court imposed a death sentence for the
malice murder based on the jury’s sentencing verdict and, although incorrectly referring to the process as
“merg[ing]” counts, essentially and properly treated the two felony murder convictions as mere surplusage.
See OCGA § 17-10-31 (a) (“Where a statutory aggravating circumstance is found and a recommendation
of death is made, the court shall sentence the accused to death.”). See also Hulett v. State, 2014 Ga.
LEXIS 817, at *10 (2) (Ga. Oct. 20, 2014); Malcolm v. State, 263 Ga. 369, 371-372 (4) (434 SE2d 479)
(1993); OCGA § 16-1-7 (a). The trial court “merge[d]” the burglary count predicated on the intent to
commit murder into the burglary count predicated on the intent to commit a theft, an error that we discuss
in detail in Division 2. The trial court properly merged the aggravated assault count into the malice murder
count. See Hulett, 2014 Ga. LEXIS 817, at *14 (2) (a). The trial court then imposed the following terms
of imprisonment, each to be consecutive to one another and to the death sentence: life imprisonment for
the kidnapping with bodily injury and 20 years for the burglary predicated on the intent to commit a theft.
of two statutory aggravating circumstances and recommended a death sentence
for the murder. See OCGA § 17-10-30 (b). For the reasons set forth below, we
affirm the convictions and sentences already imposed in this case, we vacate the
erroneous merger of the two burglary counts, and we remand for the trial court
to impose an appropriate sentence on the burglary count for which Spears has
not yet been sentenced.
General Grounds
1. The evidence presented at trial, including Spears’s audio-recorded
confession at the sheriff’s department, showed that Spears and Sherri Holland
had previously dated each other but that their romantic relationship had ended.
Spears admitted the following about the relationship: “I told her when we
started dating a long time ago, if I caught her or found out she was screwin’
somebody else, I’d choke her ass to death.” He also admitted that he had told
several other people the same thing about Ms. Holland.
On April 13, 2007, Spears filed a motion for a new trial, which he amended on August 18, 2009. On
September 20, 2012, the trial court granted the motion insofar as it alleged that the evidence was
insufficient to prove the asportation element of the offense of kidnapping with bodily injury as that offense
was defined at the time of Spears’s crimes or to prove the related statutory aggravating circumstance
involving kidnapping with bodily injury. Cf. Tate v. State, 287 Ga. 364, 365-366 (1) (a) (695 SE2d 591)
(2010). The motion was otherwise denied. Spears filed a timely notice of appeal on October 17, 2012,
the appeal was docketed in this Court for the September 2014 term, and the case was orally argued on
September 8, 2014.
2
Suspecting that Ms. Holland had been in a romantic relationship with
someone else, Spears made preparations based on four separate plans for her
murder. Regarding the first plan, Spears stated: “I was gonna shock her ass to
death.” He entered the crawlspace under her house and used screws to attach
wires to the drain pipe and the cold water pipe of her shower, which he planned
to attach to the home’s circuit board while Ms. Holland showered during a
lightning storm when no one’s suspicions would be raised by her electrocution.
He bragged about this plan as follows: “I came up with that on my own. Pretty
creative, ain’t it.” His second plan for the murder involved his carving a
baseball bat from a tree branch, leaving it under a canoe at Ms. Holland’s house,
and beating her to death with it. His third plan involved his crawling into her
house through an air conditioner vent from the crawlspace and loading her
shotgun for future use during the murder. Regarding this plan, he stated:
“Because if she brought somebody else in there I was just gonna shoot him.”
His fourth plan was to choke her, bind her with duct tape that he had hidden
inside her house, and suffocate her with a plastic bag. For this plan, he hid duct
tape under her canoe.
3
After making the arrangements described above during previous illegal
entries, Spears entered Ms. Holland’s house again on August 25, 2001, for the
purpose of actually committing the murder. Ms. Holland’s son was staying with
her ex-husband that night, and Spears hid in the son’s closet from 10:00 p.m. on
August 24 until 2:30 or 3:00 a.m. on August 25, when he was certain that she
had fallen asleep. He entered her bedroom and told her to roll over so that he
could bind her hands and feet with duct tape. She struggled with him, and he
struck her in the head with his fist as she was attempting to flee the bedroom.
The struggle moved into the hallway just outside her bedroom, and it continued
for five to ten minutes, according to Spears’s estimate. Spears recounted her last
words as follows: “Last thing she said was she loved me. Swear to God, that’s
the last thing she said. Last words came out of her mouth.” When asked what
his reply had been, he stated: “I love you, too. Then I choked her ass right out.”
Once he choked her to unconsciousness in the hallway by wrapping his arm
around her neck, he dragged her the short distance back into the bedroom. He
bound her hands and feet with duct tape, wrapped her face and mouth with duct
tape, placed a plastic bag over her head, and secured the bag with duct tape. He
then placed her head on a pillow “so her face wouldn’t be smashed on the floor.”
4
He locked the padlock on the outside of her bedroom door that she used to keep
her son from entering her room, took her purse, and left through her back door.
He drove in her automobile back to where he had left his own automobile, but
he then realized that he had failed to take her cigarette case, in which she
typically kept her money. He returned to her house, reentered her house, took
her cigarette case money, and drove to his own house.
At his house, he changed out of his pants that Ms. Holland had urinated
on while he choked her, and he got his shotgun and ammunition. As he drove
away at approximately 5:00 a.m., a man in a red pick-up truck began following
him. In turn, he began following the truck. He planned to shoot the driver of
the truck if the driver turned into a church parking lot, but the truck stopped next
to another vehicle coming out of the church parking lot, blocking his way.
Regarding this planned additional murder, he stated as follows: “Look, one,
two, three; what difference does it matter. You know what I’m saying. I’ve
done went as far as I can go. What difference does it matter what I do now.”
He added: “If you’re gonna go to Hell, one sin or ten sins, what difference does
it make.” This additional murder never occurred, however, because the person
in the truck pulled up next to another vehicle and Spears did not want to kill “an
5
innocent bystander.” As shown by a receipt discovered by investigators in Ms.
Holland’s automobile, Spears drove to a store, where he bought fishing supplies,
a fishing license, a hat, and paint that he planned to use to conceal the black
stripes on Ms. Holland’s red automobile. He abandoned her automobile when
he began to fear that it had an anti-theft tracking device. He lived in the woods
for ten days, sleeping in a deer stand. At one point, he was followed by men in
camouflaged suits, and he said about them in his confession: “You know, if I’d
had knew that they were just old bullshit people, I’d [have] shot ‘em. I thought
they were cops or something.”
The investigation into Ms. Holland’s murder began on the afternoon
following the murder, after her ex-husband and son searched for her when she
failed to pick up her son, could not locate her, and called the police. Officers
detected a foul odor coming from the victim’s bedroom, removed the hinges
from her padlocked bedroom door with the assistance of her son, and discovered
her lifeless, decomposing body lying face down on a pillow with her hands and
feet bound behind her with duct tape and a plastic bag over her head secured
with duct tape. The thermostat in the home had been turned all the way up, and
the home was very hot inside. A flashlight not belonging to Ms. Holland or her
6
son was discovered in the foyer. A search of the crawlspace revealed a colored
light bulb that Spears had used to provide inconspicuous lighting as he prepared
for the murder, and the light bulb was connected to Spears through a receipt
discovered in his automobile. A search of Spears’s house revealed Ms.
Holland’s purse and a wrapper from a roll of duct tape. A search of his
automobile revealed a roll of duct tape with cut marks and other characteristics
matching those on the end of the piece of tape used to bind Ms. Holland’s hands,
along with a receipt for a colored light bulb and a flashlight. An autopsy
showed that Ms. Holland was injured from a blunt force trauma to her head,
suffered abrasions to her knee consistent with having fallen onto a ventilation
grate, and died from asphyxia as a result of being choked, having tape wrapped
around her mouth and face, and having a plastic bag placed over her head. A
warrant was obtained for Spears’s arrest. Ten days after the murder, an officer
spotted Spears walking along a highway, asked him for his name, and arrested
him. He claimed that he was walking back to Lumpkin County to call the police
and turn himself in. He was taken to the sheriff’s department, where he gave a
detailed confession, which has been referenced at several points above. Near the
end of his confession, Spears commented as follows on Ms. Holland’s murder:
7
“I loved her that much. I told her I wasn’t letting her go, and I didn’t.” He
added, “[I]f I had to do it again, I’d do it.”
Upon our review of the record, we conclude that the evidence presented
at trial and summarized above was sufficient to authorize a rational trier of fact
to find beyond a reasonable doubt that Spears was guilty of the crimes of which
he was convicted. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt
2781, 61 LE2d 560) (1979). See also UAP IV (B) (2) (providing that, in all
death penalty cases, this Court will determine whether the verdicts are supported
by the evidence).
2. As noted in footnote 1, the trial court “merge[d]” the two counts of
burglary upon which he was found guilty by the jury, one predicated on the
intent to commit a theft and one predicated on the intent to commit the felony
of murder. Where one course of conduct violates one criminal statute in several
ways described in the statute, a defendant is guilty of only one crime. See
Stinski v. State, 286 Ga. 839, 841 (1) (691 SE2d 854) (2010) (directing the trial
court to vacate one of two convictions for arson); State v. Marlowe, 277 Ga.
383, 383-384 (1) (589 SE2d 69) (2003). However, the evidence in Spears’s case
showed that he made one entry of Ms. Holland’s house with the dual intent to
8
commit a theft and to murder her but that he then left the victim’s house, drove
to a church, returned to the house after realizing that he had failed to steal the
victim’s cigarette case containing money, and reentered the house with the intent
to commit the theft of the cigarette case and money. Under the facts of this case,
Spears’s two separate entries into the house constituted two separate violations
of the burglary statute. Thus, the trial court erred by “merg[ing]” the burglary
counts in its sentencing order, the erroneous merger must be vacated, and the
trial court is directed to enter a sentence on the second of those burglary counts.
See Hulett, 2014 Ga. LEXIS 817, at *12-13 (2) (holding that this Court should
direct the trial court to correct the erroneous vacating or merging of a conviction
where the error is apparent on appeal, regardless of whether the matter is raised
by the State on appeal).
Pretrial Issues
3. Spears argues that the trial court erred by refusing to quash his
indictment based on the fact that a jury commissioner served on the grand jury
that indicted him and as that grand jury’s clerk. The grand juror in question was
randomly selected from the large master list of potential jurors approved by the
full jury commission. She could not recall Spears’s case specifically and did not
9
believe that she ever knew Spears’s victim, Ms. Holland. See also Brown v.
State, 295 Ga. 240 (759 SE2d 489) (2014) (holding that the impartiality of one
or more grand jurors does not render an indictment invalid). Spears claims that
this grand juror suffered from a conflict of interest, but he relies exclusively on
irrelevant case law concerning the ethical duties of judges and lawyers. He also
argues that the grand juror in question would have had an undue influence over
the other grand jurors, but it is unclear to us why this would be the case any
more so than with grand jurors holding any number of other positions in society,
and such a heightened influence would not be disqualifying even if it existed.
See id. Persons who hold or have recently held “elective office” are prohibited
from serving on grand juries, but the grand juror in question here was appointed
to the jury commission, not elected. OCGA § 15-12-60 (b). See Ingram v.
State, 253 Ga. 622, 624-625 (1) (a) (323 SE2d 801) (1984) (defining “elective
office” for purposes of grand jury service). Because Spears has failed to
demonstrate otherwise, we conclude that the trial court did not err by denying
his motion to quash his indictment based on this grand juror’s service.
4. Spears argues that the trial court erred by denying his motion to
suppress the statements that he made as he was transported from the scene of his
10
arrest to the sheriff’s department. The evidence showed that a sheriff’s deputy,
after identifying Spears and confirming the existence of a warrant for his arrest,
handcuffed Spears and placed him in the backseat of a patrol vehicle. The
deputy testified that Spears, without any questioning, began talking. The deputy
testified that he opened the partition separating the back seat from the front seat
so that he could hear what Spears was saying. The deputy also activated a
microphone in the back seat of the vehicle so that the vehicle’s video recorder
would record Spears’s words. The audio portion of the recording, however, is
mostly unintelligible. The parties agree that Spears was under arrest and that no
Miranda warnings were administered. See Miranda v. Arizona, 384 U. S. 436(86 SCt 1602, 16 LE2d 694) (1966). The deputy testified that Spears began
speaking without any prompting and that the deputy only asked “[c]larifying
questions.” The deputy testified that the only such questions that he asked
concerned Spears’s account of being followed by unknown persons wearing
camouflage sometime during the nearly two weeks that he spent hiding in the
woods. The deputy testified that he concluded from his conversation with
Spears that the unknown persons were likely hunters. Spears argues on appeal
that his statements in the patrol vehicle were the result of interrogation by the
11
deputy and that, because no Miranda warnings were given, the statements
should have been suppressed. But two-and-a-half years after the evidentiary
hearing on Spears’s motion to suppress, after the State moved the trial court for
a ruling on the matter, the trial court inquired of defense counsel whether “the
defendant ha[d] anything to go forward on those statements.” Defense counsel
replied: “Although in custody, they were not as a result of interrogation and
therefore Miranda would not be applicable and we have nothing to present for
that at this time.” Three days later, the trial court issued an order denying
Spears’s motion to suppress, concluding as follows:
[T]he court finds that those statements were not the result of any
custodial interrogation as the evidence is uncontradicted that there
was [sic] no questions from Deputy Wallace directed to the
Defendant Steven Spears concerning the charge for which he was
arrested. Furthermore, the court finds that all statements made by
Mr. Spears were made voluntarily, that there was no promise or
slightest hope of benefit or reward made to Mr. Spears for such
statement, and that there was not the remotest fear or threat of injury
or of coercion. Furthermore, the evidence is that all statements
made by the Defendant were the result of the Defendant’s free and
voluntary choice to talk without any prompting or questioning.
To the extent that this ruling might have been erroneous, the error was induced
by Spears’s concession that his statements were not the result of interrogation
and that Miranda did not apply to them. Therefore, Spears has waived his right
12
to complain on appeal regarding the admissibility of the statements. See
Stinchcomb v. State, 280 Ga. 170, 173 (4) (626 SE2d 88) (2006) (“A party
cannot complain on appeal about errors he helped induce.”).
Furthermore, even if this issue had been preserved for appeal, we would
conclude that any error in refusing to suppress Spears’s statements inside the
patrol vehicle was harmless beyond a reasonable doubt. See Chapman v.
California, 386 U. S. 18, 24 (III) (87 SCt 824, 17 LE2d 705) (1967) (“[B]efore
a federal constitutional error can be held harmless, the court must be able to
declare a belief that it was harmless beyond a reasonable doubt.”). At trial, the
State presented testimony from the deputy about Spears’s statements inside the
patrol vehicle, but it did not play the mostly unintelligible recording. The
deputy’s trial testimony recounted only Spears’s statements about his intention
of turning himself in to the authorities, about his living in the woods for nearly
two weeks, about his being followed by unknown persons in camouflage, and
about his being upset when the newspaper failed to report on the case because
it left him uncertain of whether the victim had survived. Spears discussed each
of these same general topics in his later recorded statements at the sheriff’s
department. The admissibility of these later statements at the sheriff’s
13
department does not depend on whether the earlier statements in the patrol
vehicle were admissible because, as is discussed further below, the later
statements at the sheriff’s department were preceded by Miranda warnings, were
made after Spears signed a waiver of his Miranda rights, were made an hour-
and-a-half later, were made to different law enforcement officers, and were
made without the new officers’ reminding Spears of any of his statements in the
patrol vehicle. Cf. Missouri v. Seibert, 542 U. S. 600 (124 SCt 2601, 159 LE2d
643) (2004).
5. Spears argues that his statements at the sheriff’s department after his
arrest were not “made voluntarily, without being induced by another by the
slightest hope of benefit or remotest fear of injury.” Former OCGA § 24-3-50.2
He also argues that his waiver of his constitutional rights under Miranda was not
voluntary. See Miranda, 384 U. S. 436. We find no merit to these claims.
The uncontested evidence in the record shows that, at the time of his
arrest, Spears had been sleeping in a deer stand in the woods for ten days.
Spears was stopped by the arresting officer at approximately 4:39 p.m., he
arrived at the sheriff’s department at approximately 4:55 p.m., and almost
2
This provision of the Code is now found at OCGA § 24-8-824.
14
immediately upon his arrival, he made his first contact with the sheriff’s
investigator who would eventually participate in his interview. The sheriff’s
investigator did not interview Spears immediately but instead waited for the
arrival of a GBI agent. The arresting officer testified that Spears was dirty and
unshaven when he was arrested. The sheriff’s investigator testified that Spears
looked hungry and tired upon his arrival at the sheriff’s department, but he also
testified that Spears was given food and drink in an interview room and was
allowed to smoke outside. The GBI agent arrived at the sheriff’s department at
approximately 6:00 p.m. The agent testified that Spears was dirty and unshaven
and that Spears claimed to have been sleeping in the woods for approximately
two weeks, but the agent denied that Spears appeared tired or that Spears
claimed to have not slept or eaten much in several days. He summarized
Spears’s appearance by stating simply: “He looked like somebody that had been
camping out.” The agent ensured that Spears had been given something to eat
and drink since his arrival at the sheriff’s department. A written waiver of
Miranda rights was then presented to Spears at 6:04 p.m., and Spears verbally
15
acknowledged each of his rights and signed the form.3 In his subsequent audio-
recorded interview, which this Court has independently reviewed, Spears
appears to be alert and to understand his situation.
As outlined above, Spears was given food and drink and was allowed to
smoke prior to being asked if he wished to waive his Miranda rights and be
interviewed. Thus, we find Spears’s argument to be illogical insofar as it asserts
that his subsequent waiver of rights was involuntarily given because of his
desire to eat, drink, and smoke. See also Brown v. State, 290 Ga. 865, 868-869
(2) (b) (725 SE2d 320) (2012) (holding that a “hope of benefit” arises from
“promises related to reduced criminal punishment — a shorter sentence, lesser
charges, or no charges at all”); White v. State, 266 Ga. 134, 135 (3) (465 SE2d
277) (1996) (“The promise of a benefit that will render a confession involuntary
under [former] OCGA § 24-3-50 must relate to the charge or sentence facing the
3
The GBI agent testified that his recollection of the time that the waiver form was presented
to Spears was refreshed from the form itself, which clearly states that the form was presented to
Spears at 18:04, military time for 6:04 p.m. The agent then answered affirmatively when asked,
according to the transcript, whether the form was presented at “8:04.” In light of the agent’s
previous statement regarding the form and in light of the testimony from the sheriff’s investigator
that the interview was conducted “immediately” following the GBI agent’s arrival at approximately
“six o’clock,” it appears reasonably certain that the waiver form was presented at 6:04 p.m.
Furthermore, our reasoning here would not be affected if Spears actually rested, ate, drank, and
smoked for two extra hours before being interviewed.
16
suspect.”). We also find no support in the record for Spears’s assertion that a
lack of sound sleep made him vulnerable to being seduced by a “hope of
benefit” within the meaning of Georgia law or rendered his waiver of Miranda
rights and subsequent statement involuntary under constitutional standards. See
id. See also Bunnell v. State, 292 Ga. 253, 255 (2) (735 SE2d 281) (2013)
(holding that the State bears the burden to prove the voluntariness of a statement
by a preponderance of the evidence). We also reject Spears’s suggestion that the
statutory or constitutional analysis here should be affected by an alleged
breaching of the standard operating procedures of the sheriff’s department by
taking Spears for interrogation in an office at the sheriff’s department prior to
booking him at the adjacent jail, even if such a breach were assumed to exist
here.
6. Spears argues that the trial court erred by refusing to suppress the
evidence seized from his automobile pursuant to a search warrant. The warrant
was obtained and executed on the morning of August 27, 2001, which was the
day after the murder. Pretermitting the State’s argument that a certain written
order issued pretrial, combined with a verbal exchange between defense counsel
and the trial court at trial, should not be deemed to have preserved this claim for
17
review on appeal, we reject the claim for the simpler reason that it plainly lacks
merit.
When considering whether to issue a search warrant, the magistrate or
judge must make
a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him, including the
“veracity” and “basis of knowledge” of persons supplying hearsay
information, there is a fair probability that contraband or evidence
of a crime will be found in a particular place.
State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984). The magistrate or
judge must view the totality of the circumstances, and she must look “for
indications of the existence of reasonable probability that the conditions referred
to in the sworn testimony would continue to exist at the time of the issuance of
the search warrant.” Lewis v. State, 255 Ga. 101, 104 (2) (335 SE2d 560)
(1985). On appeal, this Court’s duty is to ensure that the magistrate or judge
had a substantial basis for concluding that probable cause existed. See
Stephens, 252 Ga. at 182.
In Spears’s case, the affidavit presented to the magistrate who signed the
search warrant, although not ideally drafted in every regard, provided a great
deal of information connecting Spears and his Ford Taurus to the murder of Ms.
18
Holland. The affidavit described the state of Ms. Holland’s body when it was
discovered, including the fact that she had been bound with duct tape and had
a plastic bag placed over her head. The affidavit did not specifically state that
the officer who sought the warrant actually observed the body, but the context
strongly implied that the body was discovered, or at least observed, by law
enforcement officers. The affidavit clearly stated that law enforcement officers
interviewed Derrick Holland, Ms. Holland’s son, and learned that a romantic
relationship between Spears and Ms. Holland had ended two months earlier, that
Ms. Holland was afraid of Spears, and that Ms. Holland believed that Spears,
although at an unspecified time, had been underneath her home. The affidavit
stated that law enforcement officers learned from a friend of Ms. Holland that
Spears, although at an unspecified time, had shoved Ms. Holland and had
threatened to strangle her. The affidavit stated that Ms. Holland visited her
former sister-in-law in person on the night before the murder, showed the sister-
in-law a green light bulb that she had found under her house, and told the sister-
in-law that she was afraid of Spears, that Spears had said that he would see her
dead before he would see her dating someone else, and that, although at
unspecified times, Spears had been under her house tapping her telephone. The
19
affidavit stated that a search of Ms. Holland’s house by the affiant had revealed
an insurance policy belonging to Spears that named his vehicle as being a 1993
Ford Taurus. Finally, the affidavit stated that law enforcement officers had
discovered a 1993 Ford Taurus parked about a half of a mile from Ms. Holland’s
house, with a tag number found to be registered to Spears and Ms. Holland and
with a partially used roll of duct tape and a receipt for a party light bulb visible
in plain view. Applying the standards described above, we conclude that the
affidavit provided a sufficient basis for the issuance of the warrant for a search
of Spears’s Ford Taurus.4
Jury Selection Issues
7. Spears argues that the trial court erred by refusing to excuse several
prospective jurors based on their alleged unwillingness to consider all three
sentencing options. A juror is unqualified to serve if he or she favors the death
penalty so strongly that he or she would be prevented from or substantially
impaired in the performance of his or her duties as a juror in accordance with the
4
Because we hold that there is no merit to Spears’s assertion that the warrant was not
supported by a showing of probable cause to the magistrate, we need not address the question, not
raised by the parties in the trial court or on appeal, of whether the search was also justified under the
“automobile exception” to the warrant requirement. See State v. Lejeune, 276 Ga. 179, 182-183 (2)
(576 SE2d 888) (2003).
20
trial court’s instructions and the oath taken by the jurors. See Lance v. State,
275 Ga. 11, 15 (8) (560 SE2d 663) (2002). The same standard applies where a
juror is allegedly unqualified based on his or her disfavor toward a life sentence
with or without parole. Id. at 16 (9). In evaluating a trial court’s application of
this standard, this Court will consider a juror’s voir dire responses as a whole,
will give deference to the findings of the trial court, and will upset the trial
court’s findings only upon a showing of an abuse of the trial court’s discretion.
Id. at 15-16 (8), 16 (9). “Because a defendant is entitled to a full panel of
qualified jurors at the beginning of peremptory strikes, ‘the erroneous qualifying
of a single juror for the panel from which the jury was struck’ would require
reversal.” Rice v. State, 292 Ga. 191, 194-195 (3) (733 SE2d 755) (2012)
(quoting id. at 15 (8)).
(a) Juror Harkins indicated that he understood the bifurcated trial
procedure, did not oppose the death penalty, would not automatically impose a
death sentence, and would consider all three sentencing options. He later stated,
“[I]f the evidence shows that a person has committed a crime that by law is
punishable by death, then I can abide by that.” Then, when asked if he “would
automatically give the death penalty if they are found guilty of [an] offense
21
punishable by death,” he replied, “Only if the evidence proved they was.”
However, he later explained as follows regarding the three sentencing options
for murder: “If I was given those options, then I would have to weigh each one
to see which one would be the fair and impartial [sic].” Even when the specific
factual allegations in the indictment were recited, he stated regarding the
sentencing options, “I’d have to give all three of them equal consideration.”
Finally, he explained that, despite his comment about situations where “the law
was dictating” a death sentence, he would consider all three sentencing options
under the law as it had been explained to him. Considering Juror Harkins’s voir
dire as a whole, we conclude that the trial court did not abuse its discretion in
concluding that he was qualified to serve.
(b) Juror Saba stated that she would not automatically impose a death
sentence upon finding a defendant guilty of murder and that she would keep an
open mind to all three sentences. When asked for her general views on the death
penalty, she explained that she was “for it in some cases and not for it in other
cases,” that her “automatic reflex” was for a death sentence in cases involving
children, and that she would not want a person “living in prison off the
taxpayers forever” if the person were a “sociopath.” She added, however, that
22
“it would depend on the situation.” She even confirmed that she would consider
all three sentencing options if the specific factual allegations in Spears’s
indictment were proven. She indicated that she would lean against allowing for
parole but that she would give it “meaningful consideration” and would not be
“dead set” against it. See Lance, 275 Ga. at 16-17 (9) (a) (holding that a juror
who stated that he “might favor or ‘lean towards’ the death penalty” but who
stated that he would consider all three sentencing options was not unqualified);
Pace v. State, 271 Ga. 829, 834 (7) (524 SE2d 490) (1999) (“A prospective juror
is not subject to excusal for cause for merely leaning for or against a death
sentence.”).
(c) Juror Allen initially stated under questioning by the trial court that he
would automatically vote for a death sentence upon a conviction for murder
without considering all of the evidence and the law given, then stated that he
would give death only if a defendant were found guilty, and then stated that he
would not vote for death automatically if the law said he could only do so under
certain circumstances. However, when asked by the prosecuting attorney to give
his general views on the death penalty, he stated, “It just depends on the crime,”
and he indicated that some crimes are “harsh, cruel murder” while others, like
23
accidental killings, are not. When asked whether he could consider life with the
possibility of parole upon a conviction for murder, he stated, “Depending on the
circumstances,” and he confirmed that he would also consider the other two
possible sentences. He also confirmed that he would keep an open mind until
he heard all of the evidence and instructions. Under questioning by defense
counsel, he indicated that giving a death sentence for him was not just based on
guilt, that he “believe[d] in all three” options, and that “it’s all depending on the
case whether [he] would vote” for the death penalty. He confirmed that he
would consider all three options even if the specific factual allegations in
Spears’s indictment were proven. Finally, he stated, “I guess so,” when asked
if he thought that the death penalty should be sought in every murder case.
Considering Juror Allen’s voir dire as a whole, we conclude that the trial court
did not abuse its discretion in concluding that he was qualified to serve.
(d) Although not noted by the parties, our review of the record reveals
that Juror Woodford was not on the list of potential jurors from which the jurors
who actually deliberated were stricken. Accordingly, we need not address
whether he was qualified to serve. See Heidler v. State, 273 Ga. 54, 57 (3) (c)
(537 SE2d 44) (2000) (holding that the erroneous qualifying of a potential juror
24
is harmless if he or she was not among those potential jurors from which the
jurors who actually deliberated were selected).
8. Spears argues that the trial court erred by excusing two prospective
jurors who he claims, contrary to the trial court’s findings, would have been
willing to consider a death sentence for murder. The same standard applies to
this claim as applies to claims regarding jurors’ willingness to consider the other
two sentencing options for murder. See Lance, 275 Ga. at 17 (10). As set forth
in greater detail below, we find no abuse of the trial court’s discretion in
excusing these two jurors.
(a) Juror Hall stated under questioning by the trial court that she was not
opposed to the use of the death penalty, but she then added that her views might
“[p]ossibly” substantially impair her ability to follow the law in sentencing and
that she would have “a hard time” with having someone’s life in her hands. She
stated: “I would definitely try to follow the law, I mean, but subconsciously,
you never know what happens.” Under questioning by the prosecuting attorney,
she stated that it bothered her somewhat that, according to what she had heard,
it costs more to execute someone than to keep him or her in prison, that she
“honestly d[id]n’t know” if she could keep an open mind to all three sentencing
25
options, that she “would really try very hard” to follow the trial court’s
instructions, and that, based on her lack of knowledge about the case, she would
wait to hear all of the evidence before making up her mind. The defense then
asked no questions on her sentencing views. When questioned further by the
prosecuting attorney regarding her ability to vote for death, she said: “I don’t
know. I mean, I do – I believe in the death penalty, but I have a hard time
deciding the fate of someone else’s life.” She then said that, although “different
evidence might be able to sway [her] opinion,” she would have a “very hard
time” sentencing someone to death. When further questioned by the trial court
about whether she could consider a death sentence, she said: “I mean, I cannot
say 100 percent yes, so I guess I should say no.” She added: “Because no
matter what somebody does, I don’t want to be the person that says you have to
die now. I mean, I don’t think I can do that.” She also said: “I don’t think I
could say you can serve a little bit in jail and maybe be paroled later on. I don’t
think I can do that, either. I don’t think that would be an option.” Spears argues
that this Court should consider, in addition to her responses regarding the death
penalty, Juror Hall’s responses concerning the personal hardship that jury
service in the case might cause her, suggesting that she might have been seeking
26
to be found unqualified. Considering her voir dire as a whole, we conclude that
the trial court did not abuse its discretion in finding Juror Hall to be unqualified
based on her impaired ability to consider a death sentence or a sentence of life
with the possibility of parole.
(b) Juror Flanagan, under questioning by the trial court, stated: “Well, I
always thought [that the death penalty] was a good idea, but if I was put on the
spot to make that decision, I don’t know if I could do that.” She also indicated,
however, that she could give meaningful consideration to all three sentencing
options. Under questioning by the prosecuting attorney, she again indicated that
she would keep an open mind regarding all three options. She then stated, when
asked if she could impose a death sentence: “I believe – I believe I could. I just
– I don’t know.” When asked if she could affirm a death sentence during the
polling of the jury, she indicated that she could not. She then stated regarding
whether she could vote for a death sentence: “That’s a lot of responsibility. I
don’t know if I could live with that.” When the trial court asked her again if she
could consider all three options, she stated: “Well, I feel like I can, but then
when it comes right down to it, when I picture myself being in that position, I
just don’t know if I could actually make that decision.” Finally, when the trial
27
court asked her to state whether she believed that she could vote for a death
sentence, she stated: “No. I don’t think so.” Considering her voir dire as a
whole, we conclude that the trial court did not abuse its discretion in finding
Juror Flanagan to be unqualified.
9. Spears argues that the trial court erred by refusing to excuse Juror
Walker. In her voir dire, Juror Walker stated that her husband had died
approximately three months earlier and that her mother-in-law had died
approximately two months earlier, that she was sometimes distracted or
forgetful, that she sometimes cried because she was now living alone, that her
responsibilities, including settling her husband’s and mother-in-law’s estates,
“would be in the back of [her] mind the whole time” during her sequestration for
trial, and that she did not think that she could focus totally on the trial without
having thoughts of “all the stuff piling up for [her] to have to take care of.”
When asked a follow-up question about whether she would be unable to
concentrate in court, she responded: “I think I – in court I would listen to what
was happening in court and when we went to the hotel room and you had to –
I think that I would be thinking what’s happening at home or what came in the
mail or what else is going on.” She also indicated that her anxiety about her
28
outside responsibilities would be diminished if she were allowed to attend to
estate matters and speak to her sons in the evenings. The trial court did not
abuse its discretion in denying Spears’s motion at the conclusion of this portion
of Juror Walker’s voir dire on the ground that “she’s just got too much going on
in life right now.” See Gulley v. State, 271 Ga. 337, 344 (7) (519 SE2d 655)
(1999).
After the jury was selected and sworn, Juror Walker presented a letter
written by a physician to the trial court, which prompted further voir dire. She
stated that she sometimes took a prescription drug, which she stated was
“Xanax, Valium.” She stated that she took the drug “[a]s needed for sleep or for
rest” but that she had not taken the drug on the day of her initial voir dire, which
had occurred in the afternoon. She stated that the only daytime side effect of the
drug following her taking it at night was some sleepiness, but she added that she
was always able to conduct her work as a dental hygienist without any difficulty
beginning at 8:00 a.m. following her having taken the drug at night. She
responded affirmatively when the trial court asked her if she would “be awake
and alert and do the job as a juror just as well” even if she were to take the drug
at night, which she indicated that she had done the night before. Although
29
defense counsel stated that he intended to rely solely on the defense motion
made during Juror Walker’s initial voir dire and would otherwise “remain moot
[sic],” the trial court made a finding that her subsequent voir dire did not show
her to be an unqualified juror. Pretermitting whether the matter was waived by
counsel’s comments preceding this finding, we hold that the trial court did not
abuse its discretion in making that finding. Cf. Stokes v. State, 281 Ga. 875,
878 (4) (644 SE2d 116) (2007) (finding no abuse of discretion where the trial
court excused a prospective juror based on his “twice daily” use of a
prescription drug for back pain, his use of a prescription drug for a mental
illness, and his inability to concentrate).
Guilt/Innocence Phase Issues
10. Spears argues that the trial court erred by admitting a photograph of
a portion of the victim’s skull taken after an incision was made and her scalp
was partially pulled back. The trial court did not abuse its discretion in
admitting this photograph, because it depicted a hematoma below the surface of
the scalp that was not visible prior to the autopsy. See Brown v. State, 250 Ga.
862, 867 (5) (302 SE2d 347) (1983) (“A photograph which depicts the victim
after autopsy incisions are made or after the state of the body is changed by
30
authorities or the pathologist will not be admissible unless necessary to show
some material fact which becomes apparent only because of the autopsy.”). See
also Bunnell, 292 Ga. at 258 (5) (applying an abuse of discretion standard
regarding the admission of post-autopsy photographs). Contrary to Spears’s
argument, it is irrelevant that the incision that revealed the injury below the
scalp passed through a bruise visible on the surface of the scalp, because the
photograph of the injury below the scalp was necessary to show the full extent
of the victim’s head injury.
Sentencing Phase Issues
11. Spears argues that the prosecuting attorney made several improper
arguments at the conclusion of the sentencing phase. We find no reversible
error.
In his closing argument in the sentencing phase, the prosecuting attorney
reminded the jury of the portions of Spears’s confession where he admitted that
he had intended to murder the driver of the pick-up truck that followed him after
the murder of Ms. Holland, that he would have murdered the persons who
followed him in the woods if he had known that they were not police officers,
that he would have murdered anyone that Ms. Holland had brought home with
31
her on the night of her murder, and that he believed that it did not matter if he
murdered one, two, or three other persons. The prosecuting attorney then
argued as follows:
If given the chance, this man in the future will kill again. If he gets
a life sentence and is serving time in prison, it could be a prison
guard, it could be a fellow inmate. If he ever escaped, it could be
you, it could be a family member, another innocent bystander.
Spears objected to this argument, arguing that it was speculative regarding the
future, and the prosecuting attorney responded by arguing that “the State gets
to argue future dangerousness.” The trial court overruled Spears’s objection.
Later in his argument, the prosecutor argued as follows: “[H]e is a cold-blooded
killer and if he ever gets the chance to do it again, he will, and the State would
urge you to take care of this rabid animal, do the right thing.” Spears raised no
further objection at this point.
(a) About future dangerousness, this Court has said:
An argument that a death sentence is necessary to prevent future
dangerous behavior by the defendant in prison must be based on
evidence suggesting that the defendant will be dangerous in prison.
“Arguments addressing [future dangerousness] are not improper if
based on evidence adduced at trial.” But it is improper for the State
to argue that a defendant will kill in prison simply because he killed
while free.
32
Henry v. State, 278 Ga. 617, 619-620 (1) (604 SE2d 826) (2004) (alteration in
original).5 As outlined within the prosecuting attorney’s closing argument,
Spears’s confession showed that he was willing to and had planned to commit
other murders and that he had no concern about the number of murders that he
might commit. Furthermore, there were other aspects of his confession not
referred to by the prosecuting attorney but summarized above that further
supported the notion that he represented a future danger, including these
statements: “What difference does it matter what I do now?” and “If you’re
gonna go to Hell, one sin or ten sins, what difference does it make?” Contrary
to Spears’s argument, the fact that he was arrested while attempting to turn
himself in after having hidden in the woods for ten days and the fact that he was
cooperative once arrested do not eliminate the probative nature of the statements
that he made in his confession showing his willingness to kill again whenever
it might serve his purposes. Thus, we conclude that the trial court properly
overruled Spears’s objection alleging that the prosecuting attorney’s argument
regarding future dangerousness was based on mere speculation.
5
In Henry, a majority of the Court said these things – relying on an earlier special
concurrence – over the dissent of three Justices. We need not address the correctness of these
statements because, even if they are right, there is no reversible error in this case.
33
(b) Spears also argues that the prosecuting attorney’s argument described
above violated the “Golden Rule.” The “Golden Rule” prohibits any argument
“that, regardless of the nomenclature used, asks the jurors to place themselves
in a victim’s position.” Braithwaite v. State, 275 Ga. 884, 885 (2) (b) (572 SE2d
612) (2002). A “Golden Rule” argument “is generally impermissible because
it encourages the jurors to depart from neutrality and to decide the case on the
basis of personal interest and bias rather than on the evidence.” 75A Am. Jur.
2d Trial § 547 (2014). This Court has not previously addressed the application
of the “Golden Rule” to the jury’s consideration during the sentencing phase of
the possible future acts of a defendant. Nevertheless, we conclude now that the
prosecuting attorney violated the “Golden Rule” and improperly attempted to
personalize the sentencing question for the jury by arguing, “If he ever escaped,
it could be you.”
Because Spears did not raise any objection at trial regarding the “Golden
Rule,” his claim on appeal based on it is waived insofar as it concerns his
convictions. See Gissendaner v. State, 272 Ga. 704, 713 (10) (b) (532 SE2d
677) (2000). However, as part of our analysis of whether a death sentence has
been “imposed under the influence of passion, prejudice, or any other arbitrary
34
factor,” we consider whether any improper arguments by the prosecuting
attorney in reasonable probability changed the jury’s sentencing verdict. OCGA
§ 17-10-35 (c) (1). See Gissendaner, 272 Ga. at 714 (10) (b). See also Braley
v. State, 276 Ga. 47, 54-55 (36) (572 SE2d 583) (2002) (addressing a “Golden
Rule” argument that was not objected to at trial in a death penalty case). Upon
our examination of the entire trial record, we conclude that the absence of the
prosecuting attorney’s violation of the “Golden Rule,” which was a marginal
one whose impropriety was not obvious from our prior case law, would not in
reasonable probability have changed the jury’s sentencing verdict.
(c) Finally, Spears notes in his argument regarding the prosecuting
attorney’s argument on future dangerousness that the argument referred to
Spears as a “rabid animal.” This reference apparently connects with the
following argument that the prosecuting attorney had made earlier:
Yesterday the defendant’s sister got on the stand and talked about
him having a bad childhood. His bad childhood is like being bitten
by rabies. It’s a disease that gets in you and takes time to grow and
it manifested itself the day he planned to kill Sherri Holland. What
about Derrick’s [the victim’s son’s] childhood? The defendant is
passing this disease on to Derrick, and if he gets a chance, to
anyone else. Please keep that in mind.
35
Thus, the reference to rabies was, at least initially, a proper illustration used to
respond to Spears’s mitigating evidence. Nevertheless, we find that the final
reference to Spears as a “rabid animal” was “‘unnecessary and undesirable.’”
Ellington v. State, 292 Ga. 109, 144 (10) (d) (735 SE2d 736) (2012) (citation
omitted). However, Spears raised no objection to the use of this phrase, which
would not have formed the basis for reversal even if it had been objected to and
had been erroneously allowed. See id. (“[A]lthough we have characterized
arguments using metaphors for a defendant such as ‘animal’ and ‘snake’ as
‘unnecessary and undesirable,’ we have held that allowing them is not reversible
error.” (citation omitted)).
12. Spears argues that the trial court’s sentencing phase charge would
have led the jurors to believe that unanimity was required in order to find
mitigating circumstances and that the jurors would not have been aware that
they could impose a life sentence with the possibility of parole despite their
finding one or more statutory aggravating circumstances. Pretermitting the
State’s argument that this issue was waived at trial, we reject Spears’s argument
as meritless. The trial court’s charge defined mitigating circumstances and
informed the jury that “[e]ach individual juror has the authority to decide for
36
himself or herself what constitutes a mitigating circumstance and to attach
whatever significance to that circumstance as he or she feels is appropriate,” that
no mitigating circumstances were necessary for a sentence of life with the
possibility of parole, that the jury would be “authorized to sentence the
defendant to life in prison” even if it found one or more statutory aggravating
circumstances, and that the jury could “fix the penalty at life in prison if [it saw]
fit to do so for any reasons satisfactory to [it] or without any reason.” The trial
court instructed the jury on the precise language that it should use on its verdict
form if it decided to impose a sentence of life. The trial court’s subsequent
charge on the form of the verdict if the jury decided to impose a sentence of life
without parole or death did not contradict this charge regarding a verdict of life.
In fact, after the charge on the form of the verdict regarding life without parole
or death, the trial court again charged the jury that it could “impose the penalty
of life for no reason or any reason which [was] satisfactory to [it].” The trial
court’s sentencing phase jury charge, taken as a whole, would not have misled
the jurors regarding how to reach and record their sentencing verdict, and more
specifically, it would not have misled the jurors to think that unanimity was
required to find a mitigating circumstance. See Palmer v. State, 271 Ga. 234,
37
238 (6) (517 SE2d 502) (1999) (noting that a sentencing phase jury charge
should be evaluated as a whole). Furthermore, contrary to Spears’s further
argument, the charge clearly did not constitute a personal expression of opinion
by the trial court. Cf. McMillan v. State, 253 Ga. 520, 523 (4) (322 SE2d 278)
(1984) (“Any personal expression of opinion by the trial court [in a jury charge]
as to what has or has not been proved during the course of a trial is reversible
error.”).
Sentence Review
13. Upon our review of the record, we conclude that the sentence of death
in Spears’s case was not imposed under the influence of passion, prejudice, or
any other arbitrary factor. See OCGA § 17-10-35 (c) (1).
14. The jury found the existence of two statutory aggravating
circumstances: the murder was committed while Spears was engaged in the
capital felony of kidnapping with bodily injury and the murder was committed
while Spears was engaged in the offense of burglary. See OCGA § 17-10-30 (b)
(2). As noted above in footnote 1, the trial court, in response to Spears’s motion
for a new trial, vacated the jury’s finding regarding the statutory aggravating
circumstance related to kidnapping with bodily injury because the evidence was
38
insufficient to support a conviction for kidnapping with bodily injury under the
definition of that crime that applied at the time of the murder. Cf. Tate, 287 Ga.
at 365-366 (1) (a). However, as Spears acknowledges, this Court has held that
an insufficiency of the evidence to support one or more statutory aggravating
circumstances found by the jury does not require reversal where a death
sentence remains supported by at least one valid statutory aggravating
circumstance. See Edenfield v. State, 293 Ga. 370, 392 (13) (744 SE2d 738)
(2013) (citing Zant v. Stephens, 462 U. S. 862 (103 SCt 2733, 77 LE2d 235)
(1983)). Upon our review of the record, we conclude that the evidence was
sufficient to support the jury’s finding beyond a reasonable doubt the existence
of the statutory aggravating circumstance related to burglary and, thus, that the
evidence was sufficient to support the death sentence. See OCGA § 17-10-35
(c) (2) (requiring a review of the statutory aggravating circumstances found by
the jury); UAP IV (B) (2) (providing that, in all death penalty cases, this Court
will determine whether the verdicts are supported by the evidence). See also
Ring v. Arizona, 536 U. S. 584 (122 SCt 2428, 153 LE2d 556) (2002); Jackson,
443 U. S. at 319 (III) (B).
39
15. Considering both the crimes and the defendant, we conclude that the
death sentence in Spears’s case is not disproportionate punishment within the
meaning of Georgia law. See OCGA § 17-10-35 (c) (3); Gissendaner, 272 Ga.
at 716-717 (19) (a) (stating that this Court’s statutorily mandated proportionality
review concerns whether a particular death sentence “is excessive per se” or is
“substantially out of line” for the type of crime involved). The cases listed in
the Appendix support this conclusion in that each shows a jury’s willingness to
impose a death sentence in a case involving a murder committed with significant
premeditation during a burglary. See OCGA § 17-10-35 (e).
Judgment affirmed in part, vacated in part, and case remanded with
direction. All the Justices concur.
APPENDIX
Rice v. State, 292 Ga. 191 (733 SE2d 755) (2012); Tate v. State, 287 Ga. 364(695 SE2d 591) (2010); Stinski v. State, 286 Ga. 839 (691 SE2d 854) (2010);
O’Kelley v. State, 284 Ga. 758 (670 SE2d 388) (2008); Lewis v. State, 277 Ga.
534 (592 SE2d 405) (2004); Sallie v. State, 276 Ga. 506 (578 SE2d 444) (2003);
Raheem v. State, 275 Ga. 87 (560 SE2d 680) (2002), overruled on unrelated
grounds by Patel v. State, 282 Ga. 412 (651 SE2d 55) (2007); Lance v. State,
275 Ga. 11 (560 SE2d 663) (2002); Fults v. State, 274 Ga. 82 (548 SE2d 315)
(2001); Heidler v. State, 273 Ga. 54 (537 SE2d 44) (2000); Morrow v. State,
272 Ga. 691 (532 SE2d 78) (2000); Pye v. State, 269 Ga. 779 (505 SE2d 4)
(1998).
40