Willie James Bell was indicted for murder and possession of a firearm in the commission of a felony. A jury found him guilty of voluntary manslaughter and the firearm possession charge, and he appeals from the judgment of conviction and sentence entered on the *110 jury’s verdict.
1. Although the record shows that at a pretrial motions heаring, the trial court agreed to reinspect the prosecution’s file in camera in light of any special defenses, it is not necessary that we determinе whether the trial court actually did so because appellant did not object to any alleged failure, and we are thus foreclosed from reviewing this issue on appeal.
Wisdom v. State,
2. Appellant asserts error regarding two incidents that occurred during jury selection. The first involved an outburst of crying by a woman in the crоwded courtroom. The trial judge was not aware of the woman’s identity until she was identified as the victim’s mother by appellant’s counsel, and the woman’s identity was never disclosed to the jury. The trial court denied appellant’s ensuing motion for a mistrial or, in the alternative, to quash the jury panel. “Many, if not most, trials by jury involve sоme degree of emotion by at least one party or the other. It would be unreasonable to expect that all emotions be completely frozen during a trial by jury when such effective bridle on emotions cannot be sustained elsewhere. Demonstrations and outbursts which occur during the course of a triаl are matters for the trial court’s discretion.” (Citations and punctuation omitted.)
Forney v. State,
The second incident involved a jurоr who approached the judge with a question after the outburst. She indicated that she would rather not serve, vaguely expressing a fear of what might happen should the jury’s verdict go a certain way. The trial court’s questioning of this juror, rather than constituting impermissible comment, as urged by appellant, was merely an аttempt to understand the basis for the juror’s hesitation, and we find no error in the trial court’s denial of appellant’s motion to quash the jury panel based on this inсident.
3. Appellant contends the trial court erred by admitting bone fragments and certain photographs into evidence on the ground that they were prоffered solely to inflame the jury. We do not agree with appellant that these exhibits were irrelevant to the issues tried, as a police officer tеstified that the bone fragments were recovered near the victim’s body immediately after the shooting, and the photographs depicted the victim’s body аt the scene shortly after the shooting. “[R]elevant evidence ‘may be excluded if its probative value is
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substantially outweighed by the danger of unfair prejudicе, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’ ”
Hicks v. State,
4. We find no error in the trial court’s jury charge. Contrary to appellant’s contention, the trial court did charge the jury on self-defense and voluntary manslaughter. No evidence was adduced at trial which would indicate self-defense other than the evidence showing that appellant and the intended victim were engaged in mutual combat, and a charge on justification as related to mutual combat was given.
McCord v. State,
We do not agree with appellant that this case is controlled by
Johnson v. State,
The court’s charge on inferred intent and transferred intent was a corrеct statement of the law and not impermissibly burden-shifting. The Supreme Court specifically approved this charge in
Wilson v. Jones,
5. In three enumeratiоns of error appellant challenges certain aspects of his sentencing hearing. Contrary to appellant’s assertion, the record does not show that the presentence report was used in aggra
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vation of his sentence rather than in mitigation. Nor was the State’s recommendation regarding sentencing “evidence” that required disclosure to appellant in advance of the sentencing hearing. See
Munsford v. State,
In response to appellant’s showing in mitigation of sentence that he had attempted to apologize to the victim’s mother, the trial court commеnted that the mother was “not too bitter about it, except that she feels that [appellant] should serve some time.” Although this remark indicates the trial judge had some familiarity with the opinion of the victim’s mother in this regard, the record does not indicate whether the statement attributed by the trial court to the victim’s mother was derived from an official victim impact statement, the probation department’s presentence investigation, or some other source. Hоwever, even assuming that it was contained in a victim impact statement which was not disclosed to appellant prior to the hearing as required by OCGA § 17-10-1.1 (d), we cannot agree with appellant that resentencing is necessary in this case.
First, we do not agree that the victim’s mother’s feeling that she was not bitter but that appellant should serve some time constitutes an instance of witness’ testimony or prosecutor’s remarks “so infecting] the sentencing proceeding аs to render it fundamentally unfair” so as to require resentencing under Justice O’Connor’s concurrence in
Payne v. Tennessee,
Second, appellant complains not of thе content of the statement but of the prosecutor’s failure to disclose it to him prior to the hearing. However, subsection (g) of OCGA § 17-10-1.1, the statute setting forth the рrocedure to be used regarding victim impact statements, provides that “[n]o sentence shall be invalidated because of failure to comply with thе provisions of this Code section.”
6. We have carefully reviewed appellant’s remaining enumerations of error and find them without merit.
Judgment affirmed.