Lead Opinion
The grand jury indicted Joshua Daniel Bishop for the malice murder and armed robbery of Leverett Morrison. The State filed notice of its intent to seek the death penalty for the murder. After finding Bishop guilty of the crimes, the jury returned a verdict imposing a death sentence, finding, as the aggravating circumstance, that Bishop had murdered Morrison in the course of committing the additional capital felony of armed robbery. OCGA § 17-10-30 (b) (2). The trial court entered judgments of conviction and sentences on the jury’s guilty verdicts. Bishop’s motion for new trial was denied and he appeals.
General Grounds
1. The evidence presented at trial authorized the jury to find the following: Morrison drove Bishop and Bishop’s co-indictee, Mark Braxley, to a bar. Bishop and Braxley decided to steal Morrison’s car. The three left the bar around 11:00 p.m. and drove to Braxley’s trailer. Bishop reached into the sleeping Morrison’s pocket for the car keys, but Morrison awoke and sat up. Bishop began to beat Morrison about the head and face with a blunt object. When Morrison was unconscious, Bishop took the car keys. Eventually realizing that
The evidence is sufficient to enable any rational trier of fact to find proof of Bishop’s guilt of malice murder and armed robbery beyond a reasonable doubt. Jackson v. Virginia,
Pre-trial Rulings
2. Bishop urges that his inculpatory in-custody statement should not have been admitted because, as the result of antecedent drinking and smoking crack cocaine, he was unable to make a knowing waiver of his rights. Whether there was a knowing and voluntary waiver of rights depends upon the totality of the circumstances. Reinhardt v. State,
Bishop further contends that his statement was the inadmissible product of an unconstitutional warrantless arrest.
“[A] ‘warrantless arrest’ is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense.”
Crowe v. State,
3. Bishop argues that it was error to deny his ex parte motion for funds to hire an expert to assist him in his challenges to the arrays of the grand and traverse juries. The record indicates that the trial court did grant Bishop’s request for funds to hire a “jury composition expert” and that Bishop made no further request for funds. Moreover, it does not appear that the services of an expert would have been needed to investigate a challenge to the arrays. See Spivey v. State,
4. Bishop filed an unsuccessful challenge to the array of the grand jury based upon a prior history of alleged discrimination in the selection of forepersons and, on appeal, he urges that this challenge was meritorious. The trial court’s denial of Bishop’s motion does not
Jury Selection
5. Bishop urges that the trial court should have disqualified one of the prospective jurors, Ms. Baugh, because of her bias in favor of his guilt. Ms. Baugh initially expressed her belief that an indictee is more likely guilty than not. However, a prospective juror’s expression of such a belief does not necessarily require disqualification from service. The relevant test is whether the prospective juror has formed an opinion on the guilt or innocence of the accused which is “ ‘ “so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence.” ’ [Cits.]” McClain v. State,
6. Citing Pope v. State,
Ms. Baugh
Ms. Baugh stated she would probably vote for death in cases of “premeditated” murder. However, this response does not require disqualification, since “premeditated” murder is not a crime in Georgia, and premeditation is not an aggravating circumstance which would affect the jury’s sentencing determination pursuant to OCGA § 17-
Mr. Langston
Mr. Langston initially stated that he would always vote for the death penalty. However, once the nature of a bifurcated trial was explained to him, Mr. Langston said he could listen with an open mind to all of the evidence. He specifically stated that he could vote for any of the three sentencing options, even where there was an aggravating circumstance. Mr. Langston did subsequently state his belief that murder “deserved” the death penalty. However, such a personal belief would not disqualify Mr. Langston, unless it would prevent or substantially impair him from performing his duties as a juror in accordance with his instructions and his oath. Greene v. State,
Mr Williamson
Mr. Williamson did state that he had “pretty much made up his mind” to vote for the death penalty, assuming there was a finding of a statutory aggravating circumstance. However, Mr. Williamson’s other responses indicated that he certainly had not done so conclusively and irrevocably. He stated that he would listen to the evidence in aggravation and mitigation before arriving at a sentence and that he could vote for any of the three sentencing options, although he favored the death penalty in most cases of murder. Viewed in its entirety, Mr. Williamson’s voir dire is clearly distinguishable from that of the prospective juror in Pope v. State, supra. Mr. Williamson stated that he would not decide punishment until he had heard all of the evidence. Although Mr. Williamson personally favored the death penalty as punishment for murder, he declined to rule out voting for a life sentence. His voir dire may contain seemingly contradictory responses, but prospective jurors’ answers frequently will be somewhat contradictory “in response to the phrasing of the questions, the
Mr. Hurt
Mr. Hurt stated that he was inclined to vote for the death penalty for the more culpable forms of murder and that he personally believed in “an eye for an eye.” However, he also consistently indicated that he could vote for any of the three sentencing options. Although Mr. Hurt stated he would be more likely to impose the death penalty if the killing was “senseless” and there was “intent to kill,” his leaning toward a death sentence under specific circumstances does not necessarily mandate his disqualification. See Crowe v. State, supra at 588 (9) (a). Consideration of the entirety of Mr. Hurt’s voir dire authorized the trial court to find that he would set aside any personal beliefs and that he was, therefore, qualified to serve as a juror. Compare Pope v. State, supra.
Ms. Lattimore
Ms. Lattimore initially stated that she did not think that she could vote for a life sentence with the possibility of parole once the defendant had been convicted and there was a finding of a statutory aggravating circumstance. However, she later qualified her response, stating that she was unsure as to how she would vote in that situation and would have to consider all of the evidence. Ms. Lattimore also stated that she could not say she would always vote for the death penalty. It is not decisive that some of Ms. Lattimore’s responses, if considered in isolation, could be construed as disqualifying. Ms. Lattimore’s voir dire also contains qualifying responses and the trial court, having heard all of Ms. Lattimore’s responses, concluded that she was qualified. This is in contrast to the prospective juror in Pope, who categorically and unequivocally stated that mitigating evidence would not change his mind. Although Ms. Lattimore may personally have favored the death penalty for murder, she repeatedly responded that there could be situations in which she would vote for another sentence. Based upon a review of all of Ms. Lattimore’s voir dire, we find that it supports the trial court’s determination that she was qualified to serve.
7. Bishop urges that he should have been allowed to ask prospec
Bishop further contends that the trial court erred by preventing him from exploring the prospective jurors’ attitudes with regard to the various forms of murder, such as “premeditated” murder. However, there is no such offense in Georgia and, therefore, it was not improper to curtail questioning in that regard. Ledford v. State, supra at 63 (5).
8. The trial court’s pre-voir dire charge included an instruction on the sentence of life without parole, which informed the prospective jurors, in accordance with OCGA § 17-10-31.1 (d) (1), that such a sentence would result in incarceration for the remainder of the defendant’s natural life and his ineligibility for parole, “unless he is subsequently adjudicated to be innocent of the offense for which he was sentenced.” Bishop urges that the inclusion of this qualifying phrase may have misled the prospective jurors into believing that there was a potential “loophole” in the life-without-parole sentence and that this may then have caused them to reject imposition of that sentence.
The qualifying phrase is a part of the statutory language applicable to a life-without-parole sentence, and this Court recently held that such an instruction is not misleading. Henry v. State,
9. Prospective jurors who arrived late were allowed to read the trial court’s pre-voir dire charge and, on appeal, Bishop contends that this was error. Whether to give pre-voir dire instructions is within the discretion of the trial court. Frazier v. State,
Guilt-Innocence Phase
10. Because the sheriff was a State’s witness, the trial court sustained Bishop’s objection to the sheriff’s acting as bailiff. Although Bishop raised no other objection in the trial court, he asserts on appeal that the trial court erred by allowing the sheriff and chief deputy, who also testified for the State at trial, to perform certain ministerial functions on behalf of the court.
Court decisions do condemn allowing law enforcement officers who give key testimony for the State to be “ ‘charged with the care and protection of the jurors.’ [Cit.]” Radford v. State,
11. Bishop urges that, in the opening statement to the jury, counsel for the State erroneously alluded to a felony murder theory, even though the indictment charged only malice murder. A review of the relevant portion of the transcript shows that counsel merely asserted that, even if Bishop did not inflict the fatal blow, he was still guilty of Morrison’s murder. This does not allude to a felony murder theory, hut only to Bishop’s guilt for malice murder under a party-to-the-crime theory. Moreover, even if the contested statement could be construed as a reference to a felony murder theory, Bishop was on notice that he could be convicted of felony murder, because he was indicted for both murder and armed robbery. See McCrary v. State,
12. In his opening statement, the prosecuting attorney also referred to Bishop as the “main one” or “prime mover” in the crimes.
13. Over Bishop’s objection, the trial court admitted into evidence numerous photographs of Morrison’s body. None of the photographs depicted an alteration of the body as proscribed in Brown v. State,
14. It is urged that, in his closing argument, counsel for the State erroneously asserted a personal belief in Bishop’s guilt. Bishop failed to object to any portion of the closing argument. Accordingly, reversal is warranted only if there was improper argument and it is reasonably probable that such argument changed the result of the trial. Todd v. State,
Counsel has wide latitude to argue inferences from the evidence. McClain v. State, supra at 384 (3) (b) (2). Here, the attorney for the State made several comments similar to the following: “[A]nyway you . . . look at it, he’s guilty.” Considered in context, these comments are no more than an expression of the State’s position, and are not the personal opinion of its counsel, regarding Bishop’s guilt.
The State’s counsel also made comments, such as: “[Wje’re not going to bring something to court unless we can prove it and if we can’t prove this is the murder weapon, we ain’t going to produce it to you.” These remarks appear to be only a reference to the fact that no
Sentencing Phase
15. Evidence that Bishop had made prior threats and assaults on others was relevant to his character and was, therefore, admissible in aggravation of his sentence. Ford v. State,
16. Bishop enumerates as error the admission of evidence that he murdered Wills. In aggravation of the sentence, the State may prove the defendant’s commission of another crime, “despite the lack of a conviction, so long as there has not been a previous acquittal.” Jefferson v. State,
Bishop contends that the evidence admitted in connection with the murder of Wills was excessive. However, the State is not limited to showing that the defendant has been charged with another offense. We find no error in the quantum of the evidence admitted in connection with Bishop’s murder of Wills.
17. Photographs of Wills’ body were admissible in the sentencing phase for the same reasons that the photographs of Morrison’s corpse were admissible in the guilt-innocence phase. See Division 13.
18. In its charge at the sentencing phase, the trial court was not required to define or explain the function of mitigating circumstances. Ross v. State,
Death Penalty Review
19. As discussed in Division 1 of this opinion, the evidence supports the jury’s finding that Bishop murdered Morrison while committing the additional capital felony of armed robbery. OCGA § 17-10-30 (b) (2).
20. Bishop urges that, because he suffers from “Intermittent Explosive Disorder” which is triggered and aggravated by alcohol and drugs, he lacks the personal culpability that is constitutionally required for imposition of the death penalty. However, Bishop acknowledges that he is not mentally ill and the psychiatrist who testified for Bishop at the sentencing phase did not find him to be mentally ill as defined by OCGA § 17-7-131 (a) (2). It was for the jury to decide whether Bishop’s mental health and history of alcohol and drug abuse were sufficiently mitigating so as to justify a life sentence. Carr v. State, supra at 558 (8) (b).
21. Bishop’s death sentence was not imposed under the influence of passion, prejudice or other arbitrary factor. OCGA § 17-10-35 (c) (1). The death sentence is neither excessive nor disproportionate to penalties imposed in similar cases, considering both the crime and the defendant. Bishop’s argument that his sentence is disproportionate to the life sentence received by Braxley is without merit. Carr v. State, supra at 559 (11). Nor do we find that the death sentence is rendered inappropriate by virtue of Bishop’s history of alleged abuse. Hittson v. State, supra at 688 (8). The similar cases listed in the Appendix support the imposition of the death sentence in this case.
Judgments affirmed.
Appendix.
Greene v. State,
Notes
The crimes occurred on June 25, 1994 and the grand jury indicted Bishop on July 11, 1994. On August 9, 1995, the State filed its notice of intent to seek the death penalty. The trial was held January 31-February 12,1996. The jury returned its verdicts on February 12, 1996, and the trial court sentenced Bishop on February 12 and 13, 1996. Bishop filed a motion for new trial on March 8,1996, which motion the trial court denied on September 19, 1996. Bishop filed his notice of appeal on October 16, 1996, and the case was orally argued on March 11, 1997.
Concurrence Opinion
concurring specially.
This Court in Division 8 approves a jury instruction on the sentence of life without parole because it “is a part of the statutory language” of OCGA § 17-10-31.1 (d). The fact that a jury instruction is taken directly from a statute does not automatically qualify it as an appropriate jury instruction.
The trial judge instructed the jury prior to voir dire concerning the three possible punishments — death, imprisonment for life without parole, or life imprisonment. On the second option, the trial court stated:
The second punishment, life without parole, means that the defendant shall be incarcerated for the remainder of his natural life and shall not be eligible for parole unless he is subsequently adjudicated to be innocent of the offense for which he was sentenced.
This instruction is taken directly from OCGA § 17-10-31.1 (d) (1), which grants authority to the trial court to give the instruction during the sentencing phase of trial.
Although the statute is good law, the phrase “unless he is subsequently adjudicated to be innocent of the offense for which he was sentenced” causes problems when used in a jury instruction. This phrase misleads the jury by suggesting that a person sentenced to life without parole may be eligible for parole. If, however, a court or the State Board of Pardons and Paroles determines that a person is innocent of the crime for which he was convicted, then the proper procedure would be to vacate the sentence or grant a pardon. Moreover, the phrase is not necessary to inform the jury about the meaning of life without parole. Life without parole, as the first part of the statute states, “means that the defendant shall be incarcerated for the remainder of his natural life and shall not be eligible for parole.” No more explanation is needed; none should be given.
Because the majority opinion blindly adheres to the rule that any statute, no matter how confusing, is a valid basis for a jury charge, I concur specially to Division 8. Although trial courts should not give the offending phrase in the future as part of their jury
See Ford. v. Uniroyal Goodrich Tire Co.,