This is а death penalty case. In 1975, the appellant, Jack Aider-man, was convicted in Chatham County for the murder of his wife and sentenced to death. On direct appeal, this court affirmed.
Alderman v. State,
1. In his 6th enumeration of error, Alderman complains of the trial court’s denial of his challenge to the array of the grand jury which returned the indictment in this case back in 1975.
We find no merit to this enumeration. The year 1984 is too late to raise, for the first time, a challenge to a 1975 grand jury array.
Walraven v. State,
2. The practice of death-qualification of jurors is not unconstitutional for any reason urged.
Mincey v. State,
3. In his 7th enumeration, Alderman complains of the limitations placed by the trial court upon the defense voir dire. We find from our examination of the transcript that both parties were given “an opportunity to ascertain the ability of the prospective jurors to decide the case on its merits, with objectivity and freedom from bias and prior inclination.”
Waters v. State,
The trial court did not err by refusing to allow Alderman to ask veniremen what kinds of books and magazines they read; whether they were members of any political organization; what kinds of bumper stickers they had on their automobiles; whether they had read anything about the reliability of hypnosis; whether they had ever
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expressed an opinion about other criminal cases; whether, if Adolph Hitler were on trial for killing 6,000,000 Jews, they could give him the death penalty; whether a juror who previously had served in a criminal casе had been the foreman; and whether any juror had ever been the foreperson of a grand jury.
Henderson v. State,
4. In his 13th enumeration, Alderman contends that jurors were erroneously excused for opposition to the death penalty, contrary to the standards of Witherspoon v. Illinois, supra.
Alderman argues that the proper test for the excusal of jurоrs opposed to the death penalty is contained in footnote 21 of the
Witherspoon
opinion in which the court stated: “[N]othing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would
automatically
vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision аs to the defendant’s
guilt.”
We have formerly recognized this as the standard for excusing a prospective juror for opposition to capital punishment. It is now clear, however, that the oft-cited footnote no longer holds. The standard for disqualification now is “whether the juror’s views [on capital punishment] would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ”
Wainwright v.
Witt, _ U. S. _ (slip op., p. 11) (105 SC 844, 83 LE2d 841) (1985), quoting
Adams v. Texas,
This standard is not transgressed if the juror merely expresses “qualms” about capital punishment
(Witherspoon,
supra,
Applying this test to the facts of this case, we conclude that the trial court did not err by excusing six jurors who were opposed to the *208 death penalty. 2
5. In his 14th enumeration, Alderman contends that the trial court erred by refusing to sustain defense challenges to two prospective jurors who, he contends, were biased in favor of the death penalty. We disagree. The answers of these two jurors failed to show that their views on capital punishment would prevent or substantially impair their ability to decide the question of sentence in accordance with the instructions of the court.
Wainwright v. Witt,
supra;
Godfrey v. Francis,
6. The jury found one statutory aggravating circumstance: “The offense of murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” See OCGA § 17-10-30 (b) (7). In his first three enumerations of error, which are argued together, Alderman questions the evidеnce, the charge, and the verdict respecting this statutory aggravating circumstance.
(a) When we reviewed this case previously, we held that the evidence was sufficient to support the jury’s finding of the § (b) (7) circumstance beyond a reasonable doubt. Essentially the same evidence in aggravation was presented to this jury. The facts, recounted in
Alderman v. State,
supra,
(b) The court did not err by charging the jury on all three sub-parts of the second component of § (b) (7) (torture, depravity of mind and aggravated battery), inasmuch as the state offered evidencе to show that the murder involved all three.
West v. State,
(c) Alderman contends that the jury’s verdict, given in the disjunctive by its finding of “torture, depravity of mind, or an aggravated battery” (emphasis supplied), is insufficiently definitive, and that it cannot be determined which of the elements of § (b) (7) the jury actually found.
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We note that the trial court charged most of the suggestеd charge on § (b) (7) set forth in the appendix to
West v. State,
supra, except that the court omitted any reference to mutilation, serious disfigurement, or sexual abuse of a deceased victim as showing depravity of mind. Instead, the jury was instructed that in order to find depravity of mind, it had to find torture or an aggravated battery as those terms were defined in the charge.
West,
supra at 161-162. In these circumstances, each of these three sub-parts of § (b) (7) describes essentially the same conduct.
Blake v. State,
7. In his next two enumerations of error, Alderman cоmplains of the exclusion of evidence offered in mitigation.
In one instance, Alderman wished to show that shortly after the first trial, co-defendant Brown told a fellow inmate, John Sato, that he (Brown) had killed Alderman’s wife and that Alderman had not been a party to the murder. Sato related this to Alderman, and his attorneys recоrded electronically Sato’s account of the incident. The tape subsequently disappeared, as did Sato.
The trial court refused to allow Alderman to testify to the jury that Sato said that Brown said that Alderman was innocent. This refusal, Alderman contends, was reversible error.
We note that Brown was a state’s witness аnd that he testified that Alderman killed his wife with Brown’s assistance. Therefore, his prior inconsistent statements, if any, would be admissible as substantive evidence over an objection that such out-of-court statements are hearsay, or impeaching only.
Gibbons v. State,
We find no merit to Alderman’s contention that
Green v. Georgia,
In
Green,
the United States Supreme Court considered the exclusion of an admission by a co-defendant that he (and not Green) had been the actual killer. The witness who heard the admission was. available to testify. The Court stated: “The excluded testimony was highly relevant to a critical issue in thе punishment phase of the trial, [cits.], and substantial reasons existed to assume its reliability. . . . Perhaps most important, the State considered the testimony suffi
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ciently reliable to use it against [the co-defendant], and to base a sentence of death upon it.
In these unique circumstances,
‘the hearsay rule may not be applied mechanistically to defeat the ends of justice.’ [Cit.]” Id.
In this case, Alderman’s hearsay version of the incident obviously was not reliable. Moreover, another witness (Robert Waters) testified to a statement substantially similar to that allegedly made to Sato. In the circumstances of this case, the hearsay rule was not “applied mechanistically to defeat the ends of justice.”
In the other instance, Alderman wished to place in evidence statements made by him while in a hypnotic trance. This evidence was excluded at the first trial, and the court’s rejection of it was sustained on appeal.
Alderman v. State,
supra,
8. In his 10th enumeration, Alderman contends that the notice provisions of OCGA § 17-10-2 were violated when certain witnesses, who had testified at the previous trial on the issue of guilt or innocence, gave testimony at the re-sentencing trial which contained information not previously revealed.
Alderman objected when this first occurred, and the trial court ruled: “I’m just going to let evеry witness testify who testified in the case before and if they vary their testimony or add additional testimony, you can ask them why they did it, why they varied it or why they added new testimony.”
When a case is retried as to sentence, both the state and the defendant are entitled to offer evidence on the issue of guilt or innocence, nоt because the validity of the conviction is at issue, but because the jury needs to examine the circumstances of the offense (as well as any aspect of the defendant’s character or prior record) in order to decide intelligently the question of punishment.
Blankenship v. State,
For these reasons, any evidence the state presents at a re-sentencing trial is “in aggravation,” in that the state relies upon it in seeking the death penalty. We cannot agree, however, that the state is required by OCGA § 17-10-2 to supрly, in advance, a full prospectus of the expected testimony of every witness to the circumstances of the offense.
As to such witnesses, the requirement of OCGA § 17-10-2 is satisfied where, as here, the defendant has received not only the names of the witnesses, but a transcript of their prior testimony.
*211 The trial court’s ruling was correct.
9. In his 11th enumeration, Alderman complains of the prosecutor’s closing argument, which proceeded as follows:
(The D.A.): “But since I’ve been in the office, which is 1977, several years after this case was tried, and this case has been there, I haven’t been directly involved with it all the time, naturally not, but at no time do I know — ”
(Defense counsel): “Your Honоr, we’re going to object to any facts outside the record that the District Attorney might testify to.”
(The D.A.): “Judge, I’m commenting essentially on the testimony.”
(The Court): “Well, you can do that, but don’t comment on anything that you know personally or did not know.”
(The D.A.): “All right, sir.”
Later, the following transpired:
(The D.A.): “You can turn Alderman aloose just because you like the way he looks. Did you know that? Yоu all . . .”
(Defense counsel): “Your Honor, I’m going to object to that. They can’t turn Alderman loose. They’re here for one limited purpose.”
(The D.A.): “Excuse me, let me — I’m sorry, Judge. I didn’t mean to say that. I meant to say it, but I said it the wrong way.
[To the jury]: “You can give Alderman life just because you like the way he looks.”
We find no reversible errоr in the foregoing. Regarding the remainder of the argument, we find nothing that requires reversal of the death penalty.
Spivey v. State,
10. The trial court did not err in refusing to give Alderman’s request to charge that if the jury could not reach a verdict, a life sentence would be imposed.
Ingram v. State,
11. In his 15th enumeration, Alderman contends the court’s charge was improper.
(a) The court prefaced its charge by stating: “I’m going to start this Charge today by stating some general principles of law that you are to apply to the evidence and then after I do that, I’m going to give you the substantive law as it applies to your responsibilities in this particular case.” Then the court instructed the jury on standard principles of law, including burden of proof beyond a reasonable doubt, credibility of witnesses, impeachment, expert testimony, circumstantial evidence, and parties to a crime. Afterwards, the court gave instructions usual to death penalty cases, including mitigating and aggravating cirсumstances, and the scope of the jury’s sentencing *212 discretion.
Alderman contends the court erred by referring only to the latter portion of the charge as being “substantive.”
Reviewing the charge as a whole, the jurors were properly instructed.
Felker v. State,
(b) The court did not err by instructing the jury that Alderman already had been found guilty, and that the jury could not alter that finding. This instruction was a correct statement of law. Conjoined with the further instruction that the jury could nonetheless consider the strength of the evidence of guilt in determining sentence, this charge clearly benefited Alderman.
(c) The court’s instructions on mitigating circumstances were sufficient.
(d) The court did not err by failing to instruct the jury that the indictment was not еvidence, inasmuch as Alderman stood convicted of the crime charged in the indictment. The copy sent out with the jury did not show the previous jury’s sentencing verdict.
12. 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).
13. We concludе that Alderman’s death sentence is neither excessive nor disproportionate to penalties imposed in similar cases, considering both the crime and the defendant. OCGA § 17-10-35 (c) (3).
Judgment affirmed.
Appendix.
Conner v. State,
Notes
The re-sentencing trial began in Chatham County on March 26, 1984 and the jury reached its verdict on March 31, 1984. Alderman filed a motion for new trial on April 11, 1984, and filed an amendment thereto on August 24, 1984. The motion was denied August 27, 1984. A notice of appeal was duly filed and the the case was docketed in this court on September 27, 1984. Oral arguments were heard November 14, 1984.
We note that one juror asserted that he could consider the evidence and arrive at a fair sentence. Further examination, however, showed that he did not consider the death penalty a fair sentence and that he would vote for a life sentence no matter what the evidence. The trial court did not err by disqualifying this juror despite his “protestations of impartiality.”
Wainwright v. Witt,
supra at p. 11 (quoting
Patton v. Yount,
Another prospective juror testified that she could vote to impose a death sentence if, under the law, she had no other choice. However, if she had a choice, she would vote against the death penalty under any conceivable set of facts. The trial court, noting that under Georgia law a juror always has the choice not to impose a death sentence, properly excused the juror for cause.
The answers of the remaining jurors demonstrate with sufficient clarity their inability to impose a death sentence, and the trial court did not err by finding that they were disqualified to serve as jurors in this case. Wainwright v. Witt, supra.