Wade v. State ( 1991 )

Smith, Presiding Justice.

This is the second appearance of this death penalty case. The facts are recounted in our previous opinion. Wade v. State, 258 Ga. 324 (368 SE2d 482) (1988). There we held that the evidence was “sufficient to establish beyond a reasonable doubt the defendant’s guilt of the offense of malice murder.” Id. at 325. Wade’s conviction was affirmed, but his sentence was reversed because of an error in the court’s sentencing-phase charge, and the case remanded for resentencing. The sentencing phase has now been retried before a new jury, and Wade has been resentenced to death. This is his appeal. ¹

1. As in the first trial, the state contended that this offense of murder was committed while the offender was engaged in the commission of aggravated battery. OCGA § 17-10-30 (b) (2). The jury agreed, and found this statutory aggravating circumstance, as did the jury at the first sentencing trial.

Wade contends the evidence is insufficient to “raise[] this case into that class of cases involving . . . aggravated battery that can justify a death sentence.” We disagree, and adhere to our previous opinion that the evidence was sufficient to prove Wade committed an aggravated battery which preceded the killing and was a separate and distinct act from the act causing death. Wade v. State, supra at 330. The evidence was sufficient to support the jury’s § b (2) finding. OCGA § 17-10-30 (b) (2); Davis v. State, 255 Ga. 588, 593 (3 c) (340 SE2d 862) (1986).² Moreover, we do not agree with Wade’s contention that his crime was not sufficiently aggravated to justify a death sentence. We find that his death sentence is neither excessive nor disproportionate to sentences imposed in similar cases, considering both the crime and the defendant. OCGA § 17-10-35 (c) (3). The similar cases listed in the Appendix support the imposition of a death sentence in this case.

2. The court’s instructions on mitigating circumstances were not deficient. Romine v. State, 251 Ga. 208 (10 b) (305 SE2d 93) (1983); Davis v. State, supra at (22).

3. The trial court charged the jury on reasonable doubt:

The law provides that when a person is convicted of a crime which may be punishable by death a sentence of death shall not be imposed unless the jury unanimously finds beyond a reasonable doubt that at least one statutory aggravating circumstance was present. . . .

A reasonable doubt means what it says. It is a doubt of a fair-minded, impartial juror honestly seeking the truth. It is not an arbitrary nor a capricious doubt, but it is a doubt arising from a conflict in the evidence. If, after giving consideration to all the facts and circumstances of this case, your minds are wavering, unsettled and unsatisfied, then that is the doubt of the law, and you would not be authorized to impose a death sentence. . . .

Wade contends the court erred by failing to tell the jury that a reasonable doubt can arise not only from “a conflict in the evidence” but also from “a lack of evidence.” He contends the court’s failure to include the phrase “or a lack of evidence” removed from the prosecution the burden of proving its alleged statutory aggravating circumstance beyond a reasonable doubt. We do not agree. The court’s instructions were sufficient; no reasonable juror could have been misled into believing that a reasonable doubt could not have arisen from a lack of evidence. There was no reversible error.

4. Concerning the statutory aggravating circumstance alleged by the state, the court instructed the jury that “a person commits aggravated battery when he maliciously, that is to say, intentionally and without justification or serious provocation, causes bodily harm to another by . . . [etc.].” The court also gave the usual instructions that “a person will not be presumed to act with criminal intent,” but that intent could be inferred from the “words, conduct, demeanor, motive and other circumstances” shown by the evidence.

The defendant contends the court erred by not giving his request to charge number 6. This request to charge was, in toto: “Defendant respectfully requests the court to fully charge on the element of malice as applied to aggravated battery.” On its face, this request seems to have been complied with. However, the defendant did elaborate somewhat during the charge conference, suggesting that the court should adapt an instruction on malice from OCGA § 16-5-1 (b), defining expressed and implied malice as it relates to the offense of murder. But the defendant did not explain, and has not yet, just how such an adaptation would read.

We find no error. The unmodified language of OCGA § 16-5-1 (b) is clearly not an appropriate instruction to give in relation to the aggravated battery statutory aggravating circumstance, and we decline to speculate about the utility of possible adaptations thereof not presented to the trial court or to this court.

The defendant contends, alternatively, that the court should at least have charged on “specific intent,” based on his request to charge number 4. That is, instead of telling the jury that aggravated battery is committed when the defendant “maliciously, that is to say, intentionally and without justification or serious provocation” causes the specified bodily harm, the court should have charged that it is committed when the defendant “maliciously and with specific intent” causes the bodily harm. This is not a correct statement of law. See Pope v. State, 256 Ga. 195, 212-213 (23) (345 SE2d 831) (1986). The court did not err by refusing to give the defendant’s request to charge number 4.

5. The court instructed the jury:

Another jury at another time found him guilty. As I told you earlier, you will not be considering the issue of guilt or innocence. You will be considering only what sentence to impose . . . [taking into consideration] all the evidence received here in Court presented by both the state and the defendant. . . .

These instructions were not erroneous, and did not, as the defendant contends, deprive him of his major argument against the death penalty. Potts v. State, 259 Ga. 96 (13) (376 SE2d 851) (1989).

6. The jury’s original sentencing verdict included the finding: “Aggravated battery was committed prior to the death of [the victim.]” Upon objection by the defendant to the form of the verdict, the court returned the jury to the jury room for further deliberation. The jury then returned the following finding of a statutory aggravated circumstance: “Aggravated battery committed prior to the death of [the victim] and in relation to and in connection with the death of said victim.”

Wade contends the first “verdict” was legally insufficient to support a death sentence, and should have been accepted in this form and a life sentence imposed. We disagree. The trial court did not err by returning the jury to the jury room for further deliberations, and did not, as the defendant contends, express an opinion violating OCGA § 17-8-57. Wade v. State, supra, 258 Ga. at 332 (12), and cits. The subsequent verdict, which was accepted by the court, while not in the exact language of OCGA § 17-10-30 (b) (2), suffices as a finding of the § b (2) circumstance. Romine v. State, 251 Ga., supra at (7).

7. The court did not err by excluding unreliable hearsay testimony by a witness who overheard someone say that the defendant was still in her store when the victim rode away on his bicycle, where the witness could not identify the out-of-court declarant, and had heard numerous different stories about the crime from a variety of customers at her store. Alderman v. State, 254 Ga. 206 (7) (327 SE2d 168) (1985).

8. The court did not err by denying Wade’s motion in limine to prevent the state from presenting evidence not directly relating to proof of (a) statutory aggravating circumstances or (b) the defendant’s character. Ford v. State, 257 Ga. 461 (1) (360 SE2d 258) (1987); Blankenship uv. State, 251 Ga. 621 (308 SE2d 369) (1983).

9. We do not find an abuse of discretion in the court’s control of the voir dire examination, Curry v. State, 255 Ga. 215, 218 (2 b) (336 SE2d 762) (1985). The court’s excusáis of jurors conscientiously opposed to the death penalty were within the deference due the trial court’s determination under Wainwright v. Witt, 469 U. S. 412 (105 SC 844, 83 LE2d 841) (1985). Jefferson v. State, 256 Ga. 821 (2) (353 SE2d 468) (1987).

10. In his enumerations of error 21 through 24, Wade raises issues he concedes were raised in his previous appeal and decided contrary to his contentions. These enumerations are without merit for reasons stated in our previous opinion.

11. In his 26th enumeration, Wade contends the denial of his motion for new trial was error “for all the above and foregoing reasons.” Nothing is raised here that is not raised elsewhere in his brief, and this enumeration is without merit.

12. Enumerations 27 and 28 are not argued, and absent plain error, which we do not find, are waived. Georgia Unified Appeal Procedure, § (IV) (B) (2).

13. Wade contends it was error to allow the sentencing jury to see his indictment showing the prior jury’s verdict of guilty of malice murder and felony murder. See Wade v. State, supra, 258 Ga. at 325-326 (2). Wade contends the sentencing jury may have been misled into believing he had a prior record or had been convicted of two murders.

Wade did not object to the delivery of the unaltered indictment and verdict to the sentencing jury. Had he done so, the trial court may well have excised all references to the felony murder count. Nevertheless, we do not agree that there was a significant possibility the jury was misled or confused about how many murders the defendant had committed. The court instructed the jury that Wade had been convicted of “murder,” and the indictment shows on its face that each count alleged the same victim and the same date. Moreover, no evidence was presented about any other murder than the one for which the defendant was convicted. There was no harmful error.

14. The trial court did not err by denying Wade’s motion for change of venue or, in the alternative, for a continuance. Isaacs v. State, 259 Ga. 717, 725-726 (15) (386 SE2d 316) (1989).

15. We do not find that Wade’s death sentence was imposed as the result of passion, prejudice, or other arbitrary factor. OCGA § 17-10-35 (c) (1).

16. For the foregoing reasons, Wade’s death sentence is affirmed.

Judgment affirmed.

All the Justices concur, except Clarke, C. J., Weltner, and Benham, JJ., who dissent.

Appendix.

Newland v. State, 258 Ga. 172 (366 SE2d 689) (1988); Hicks v. State, 256 Ga. 715 (352 SE2d 762) (1987); Hance v. State, 254 Ga. 575 (332 SE2d 287) (1985) (see factual statement in Hance v. State, 245 Ga. 856 (268 SE2d 339) (1980)); Conner v. State, 251 Ga. 113 (303 SE2d 266) (1983); Smith v. State, 249 Ga. 228 (7) (290 SE2d 43) (1982); Krier v. State, 249 Ga. 80 (287 SE2d 531) (1982); Cunningham v. State, 248 Ga. 558 (9) (284 SE2d 390) (1981): Cape v. State, 246 Ga. 520 (272 SE2d 487) (1980); Dix v. State, 238 Ga. 209 (232 SE2d 47) (1977).

1 The state’s motion to reconsider the sentence reversal was denied on June 22, 1988. The sentencing phase was retried from April 3 through April 6, 1989. Sentence was imposed on the latter date. On April 17, 1989, the defendant filed his motion for new trial. After several amendments were filed, the motion was heard on January 25, 1990, and denied by written order dated May 22, 1990. The case was docketed in this court on October 4, 1990, and after the parties were granted extensions of time to file their briefs, the case was orally argued on January 15, 1991.

2 At the retrial, as at the original trial, the state proved that the victim was struck twice in the head with a heavy stick and that one of the blows lacerated his scalp, tore the brain tissue, and fractured his skull.