After appellant Samuel David Crowe was indicted for the malice murder of Joe Pala and for armed robbery, the State filed notice of its intent to seek the death penalty for the murder. Crowe subsequently offered to plead guilty as to the murder and to enter a guilty plea pursuant to
North Carolina v. Alford,
General Grounds
1. The evidence presented at the sentencing trial authorized the jury to find the following:
The victim was a manager at Wickes Lumber Company in Douglasville, Georgia. Crowe was a former manager trainee at Wickes and his wife was a current Wickes employee. Crowe was acquainted with the victim and with the procedure for closing the store each evening. Crowe was experiencing financial difficulties and, on the afternoon before the murder, he planned to rob Wickes to obtain money to pay his debts. While the victim was closing the store for the evening, Crowe knocked at the door of the store and was permitted to enter. Crowe then engaged the victim in conversation. While the victim’s back was turned, Crowe shot him, piercing his lung and causing him to bleed to death. Before his death, however, the victim attempted to escape and Crowe shot at him twice more but missed. Crowe then hit the victim several times with a paint can and poured paint over his face. Believing the victim to be clinging to life, Crowe beat in the victim’s skull with a crowbar and then stole $1,160.30 from the store.
The following day, after the victim’s body was found, police *584 learned that a car matching the description of that belonging to Crowe’s wife was seen at Wickes at the approximate time of the murder. Officers questioned Crowe’s wife and learned that Crowe had driven her car on the evening of the murder and that, upon returning home, he had uncharacteristically undressed in the basement, claiming that he had thrown up on himself and that he would discard his clothes. Crowe’s wife also informed the police that she owned a .44 caliber handgun. A .44 caliber lead bullet was recovered from the scene. Police learned from a Wickes employee that, one week before the murder, Crowe asked for a loan in the amount of $1,500 and that he seemed desperate for money. Upon searching Crowe’s wife’s car, police discovered paint similar to that found on the victim. Thereafter, police searched Crowe’s home and car, finding the murder weapon, a paint can, a crowbar, the victim’s keys, and Crowe’s clothes stained with blood and paint. Among the clothes was a pair of Crowe’s tennis shoes with tread matching paint tracks at the scene.
Following his arrest the day after the murder, Crowe gave two consistent, tape-recorded statements to the sheriff. In those two statements, he admitted that he killed the victim and that he did so to obtain money. Six months later, however, Crowe moved to suppress his two earlier statements and then claimed at the hearing on that motion that he did not kill the victim, but that he arrived at the scene after the victim was already dead and that he took the money and several other pieces of evidence. He also testified at the suppression hearing that he had originally confessed due to a mistaken belief that his wife had been charged with the murder. Approximately one year after his arrest, Crowe contacted the sheriff and gave yet a third, videotaped statement in which he confessed to killing the victim during an argument and thereafter taking the money to make it appear that the victim had been killed during a robbery.
Although Crowe’s guilty pleas render the general grounds moot as to his guilt of the murder and armed robbery, we nevertheless find that this evidence would be sufficient to enable any rational trier of fact to find him guilty of those crimes beyond a reasonable doubt.
Jackson v. Virginia,
Guilty Pleas
2. Before Crowe pled guilty, he made two telephone calls to the trial judge. He urges that the trial judge impermissibly interfered with his attorney-client relationship by accepting these telephone calls and then erred by failing immediately to disclose the two ex *585 parte contacts to Crowe’s counsel.
Crowe himself initiated the contacts. The trial judge testified in the hearing on the extraordinary motion for new trial that, in the first call, Crowe indicated he had problems with his counsel but was generally satisfied, that Crowe did not state the nature of the problems, and that the trial judge suggested that Crowe confer with his counsel. In court the following day, Crowe stated for the record that he was pleased with his representation and, based upon Crowe’s telephone conversation, it certainly was not inappropriate for the trial judge to accept this statement without any further inquiry. With regard to the second telephone call, the trial judge testified that Crowe merely asked about the date of a hearing. The trial judge disclosed both contacts to Crowe’s counsel within days after Crowe had called. Crowe may not complain now of his own earlier failure to inform his counsel of his contacts with the trial judge and he has not shown that he was in any way prejudiced by the timing of the trial court’s disclosure.
3. Crowe urges that the trial court erred by accepting the guilty pleas without inquiring as to whether he had made a knowing and intelligent waiver of counsel. Such an inquiry was unnecessary, since Crowe never expressed any desire to undertake his own defense. Compare
Faretta v. California,
Because Crowe never expressed a desire to defend himself pro se and, in fact, never proceeded pro se, the trial court was obligated to determine only whether Crowe’s guilty pleas were knowingly and voluntarily made, not whether Crowe had waived the right to counsel and was capable of conducting his own trial. See
Stano v. Dugger,
921 F2d 1125, 1144-1145, 1148 (11th Cir. 1991), cert. denied,
4. Crowe urges that the trial court erred in accepting his guilty plea to the armed robbery charge as a valid
Alford
guilty plea. “An individual accused of crime may voluntarily, knowingly, and understandably consent to the imposition of a . . . sentence even if he is
*586
unwilling or unable to admit his participation in the acts constituting the crime.”
North Carolina v. Alford,
supra at 37. Here, the trial court was presented with a sufficient factual basis for Crowe’s plea and reasonably concluded that Crowe entered the plea knowingly and voluntarily. Crowe knew and remarked that the evidence against him, including his own confessions, was overwhelming. See
North Carolina v. Alford,
supra at 38. We need not address whether a plea coupled with a claim of innocence requires any additional inquiry into the conflict between the two. See
Minchey v. State,
Crowe further contends that the trial court erred in failing to warn him of the consequence that his guilty plea could have in his sentencing trial for the murder. Contrary to Crowe’s contention, however, the trial court specifically advised him, and Crowe stated that he understood, that he was pleading guilty to an aggravating circumstance which could be used against him at the sentencing trial.
Pre-sentencing
5. Crowe urges that the trial court erroneously failed to suppress his first two tape-recorded inculpatory statements. The trial court was authorized to find, from the evidence adduced at the suppression hearing, that the statements either had not been taken after Crowe’s invocation of his right to counsel or that, if they had been, Crowe initiated them.
Hall v. State,
Contrary to Crowe’s contention, the evidence also warranted a finding that his statements were not coerced by concern over the whereabouts of his young stepdaughter. There was testimony that Crowe readily agreed to have his stepdaughter taken to the home of an officer, who was a neighbor.
Crowe further contends that the statements were inadmissible fruits of his unconstitutional warrantless arrest. However,
[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 *587 they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense.
Callaway v. State,
6. Crowe contends that the trial court erred in failing to suppress tangible evidence seized in a warrantless search of his home and car.
Evidence adduced at the suppression hearing demonstrated that Crowe voluntarily consented to the searches, both orally and in writing, and that his wife also gave written consent to the search of the home. A valid consent obviates the need for a search warrant.
State v. McBride,
Sentencing Trial
7. Crowe contends that the prosecution improperly withheld material, exculpatory, impeaching evidence consisting of reports of various officers who had been involved in his arrest. The prosecution gave Crowe open access to its file and permitted him to photocopy anything contained therein. Furthermore, Crowe concedes that his counsel reviewed the file and discovered the reports.
Brady v. Maryland,
8. Because the prosecution’s file was open to Crowe, there was no error in the trial court’s denial of Crowe’s request that an in camera inspection of that file be conducted or that the file be sealed. See
Reed v. State,
*588 9. The trial court’s refusal to strike several prospective jurors for cause is enumerated as error.
(a) Four potential jurors were challenged on the basis of their purported prejudice in favor of the imposition of the death penalty. A potential juror may be excused for cause when his views on the death penalty would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.”
Adams v. Texas,
(b) Another prospective juror had formerly worked for the sheriff’s department and stated that he had respect for the sheriff’s opinions. However, Crowe never moved to strike this prospective juror for cause at any time during the trial and the trial court did not err in failing to excuse him sua sponte. See
Childs v. State,
(c) Crowe contends that the trial court erred by failing to strike for cause a prospective juror whose place of business had been peripherally involved in the investigation. However, this prospective juror only vaguely recalled that someone in law enforcement had inquired about a check. Such tangential involvement does not mandate the striking of a prospective juror for cause. See generally
Foster v. State,
10. Crowe contends that four prospective jurors were erroneously stricken for cause based upon their purported prejudice against imposition of the death penalty.
In urging that it was error to strike these four prospective jurors, Crowe relies only upon selected portions of their voir dire. However, when the entirety of their voir dire is considered, the trial court was authorized to find as follows: One of the prospective jurors indicated that, although she believed the death penalty may be appropriate in certain cases, she herself could not impose it; another indicated that she was sure that, if she were presented with a choice between a life sentence and a death sentence, she would choose life; another stated that she could not think of any situation in which she would vote for the death penalty and that her personal feelings would interfere with her ability to listen to the facts and follow the trial court’s legal instructions; the last of the four stated that she was too tender-hearted ever to vote for the death penalty. From the entirety of voir dire, the trial court was authorized to find that each of the four prospective jurors was disqualified. The party seeking exclusion of a juror need not demonstrate bias with “unmistakable clarity.” Wainwright v. Witt, supra at 424; Ledford v. State, supra at 63-64.
11. The trial court’s admission into evidence of various photographs of the victim is enumerated as error.
Although Crowe had pled guilty to the murder, the photographs nevertheless were admissible in aggravation of his punishment. See
Potts v. State,
12. Although Crowe urges that the trial court abused its discretion in allowing the jury to visit the murder scene, the jury view was authorized as an aid in determining which of Crowe’s conflicting statements was true and the trial court properly instructed the jury that the view was not evidence. See
Forney v. State,
*590 13. Crowe contends that his pre-trial suppression hearing testimony was erroneously admitted as evidence in the sentencing trial.
Unlike
Simmons v. United States,
14. Crowe urges that the trial court erred in allowing the prosecutor to introduce victim impact evidence. The record shows that no victim impact evidence was admitted, only rebuttal evidence. For example, one of Crowe’s contentions was that the motive for the killing was not armed robbery, but the victim’s threat to tell Crowe’s wife that Crowe had a drug problem. Accordingly, the State was entitled to show that the victim had no tendency to interfere in the personal affairs of others. Another of Crowe’s contentions was that the victim had agreed to lend him $1,500. Accordingly, the State was entitled to show that the victim did not carry large amounts of cash or earn a high salary.
15. Crowe urges that his third videotaped statement was erroneously admitted into evidence, because it was obtained by the sheriff’s interference with his right to counsel and promise that he would receive a life sentence.
Neither before nor during the sentencing trial did Crowe object to the introduction of this statement. Instead, Crowe relied heavily upon the statement as mitigation evidence, arguing that it, rather than his prior statements, conveyed the truth about the murder. Crowe first raised the claim that his statement was inadmissible in his extraordinary motion for new trial, which was filed months after the sentencing trial. Such motions “ ‘are not favored, and a stricter rule is applied to an extraordinary motion for a new trial based on the ground of newly available evidence than to an ordinary motion on
*591
that ground.’ ”
Dick v. State,
In an affidavit filed with the extraordinary motion, Crowe stated that the facts underlying his present contentions came to light only after the conclusion of his sentencing trial 11 months earlier. He stated that he had withheld the facts from his attorneys until after the initial shock of his sentence and of the death of his mother days thereafter had subsided. The trial court was not required to believe this self-serving affidavit and was authorized to find that Crowe had contemporaneous knowledge of the facts and had not been diligent in raising the issue. Moreover, the trial court also was authorized to find that there was no factual basis to support the assertions in Crowe’s motion. The evidence adduced at the hearing on Crowe’s extraordinary motion showed that he himself had initiated the interview which resulted in the third statement. Furthermore, the record reflects that, before entry of Crowe’s guilty pleas, the trial court expressly told him that it would not impose the sentence, but rather Crowe would proceed to a sentencing trial before a jury which would consider both a life sentence and the death penalty. In response, Crowe indicated that he would like to retain his counsel for the sentencing phase of trial.
16. The trial court did not err by refusing to allow the original indictment to go out with the jury. An indictment is not evidence and the trial court correctly so charged the jury.
Bostick v. Ricketts,
17. The trial court did not err in refusing to direct a verdict in favor of Crowe with regard to armed robbery as an aggravating circumstance of the murder. In his statements to police which were properly admitted into evidence, Crowe confessed that he planned and executed an armed robbery and that he killed the victim in the course of that armed robbery.
Likewise, the trial court did not err in refusing to direct a verdict in favor of Crowe with regard to aggravated battery as an aggravating circumstance of the murder. Properly admitted evidence showed that, after the victim was shot but before he died, Crowe beat him with a paint can and crow bar. According to Crowe’s own description of the
*592
events, all of the injuries he inflicted upon the victim preceded the victim’s death. The evidence was, therefore, sufficient to support a finding of aggravated battery. See
Jefferson v. State,
The aggravating circumstances arose from a continuous and interrelated series of events, but, contrary to Crowe’s contention, aggravating circumstances are not invalid simply because they might overlap to some extent. See
Castell v. State,
18. Crowe contends that various statements made by the prosecutor in closing argument warrant reversal.
(a) In his opening statement, Crowe’s counsel told the jury that Crowe had fired his attorneys and pled guilty pro se. In his closing argument, the prosecutor referred to Crowe’s failure to introduce evidence to substantiate this claim. This argument was an appropriate response to the opening statement of Crowe’s counsel. There was no evidence that Crowe had fired his counsel, merely that he had pled guilty against the advice of his counsel. Furthermore, Crowe failed to object to the argument at trial. Therefore, even if the prosecutor’s argument had been improper, there would be no reversible error unless there is a reasonable probability that it changed the result of trial.
Todd v. State,
(b) In his opening statement, Crowe’s counsel told the jury that Crowe was not playing “lawyer games.” In his closing argument, the prosecutor characterized Crowe’s defense to imposition of the death penalty as “lawyer games.” This argument was an appropriate response to the opening statement of Crowe’s counsel.
Burgess v. State,
(c) In his closing argument, the prosecutor characterized Crowe as someone who
believes in the death penalty, who believes in the execution of human beings without a jury trial, without Miranda warnings, without a tape recorder, without looking them in the eye .... Joe Pala can’t be here today. You can’t find out anything about Joe Pala. . . . Our law says that the only thing you shall consider is David Crowe.
This argument was not improper, since considerable latitude is allotted to prosecutors in making closing argument.
Philmore v. State,
(d) Crowe contends that the prosecutor impermissibly injected religion into the sentencing determination by arguing to the jury that “the Bible says that you shall be put to death if you kill somebody. . . .” However, Crowe’s own evidence in mitigation consisted largely of appeals to religion. His witnesses included several ministers and fellow churchgoers, all of whom praised Crowe for his Christianity and religious activities, including past service as a minister of music and a deacon. When read in context, the prosecutor’s argument is reasonably construed as a legitimate effort to counter these witnesses. The prosecutor did not urge the jury to return a death sentence based on Crowe’s religious beliefs or argue that the teachings of a particular religion command the imposition of the death penalty in the case at hand, but merely “allude[d] to such principles of divine law ... as [were] appropriate to the case.”
Hill v. State,
(e) Crowe contends that the prosecutor made an impermissible comment on his failure to testify at the sentencing trial by arguing
That man right there (indicating), David Crowe, he’s a liar; he’s a thief; he’s a drug user; he’s a murderer; he’s a coward. He doesn’t have the guts to come in here and tell you the truth. He’s done nothing but give you lies. That’s all he has the guts to give you.
The trial court did not err in finding that, when this argument is considered in its proper context, it was not an impermissible direct reference to Crowe’s failure to testify in person, but a permissible attack on the credibility of Crowe’s conflicting statements and particularly his third, videotaped statement. Ledford v. State, supra at 68 (18) (b). In his opening statement, Crowe’s counsel informed the jury that Crowe was remorseful and had told the truth in his third statement and that the jury would have the opportunity to see Crowe himself on videotape describing the “unfortunate night” and his reasons for killing the victim. Yet Crowe’s third statement was both self-serving and inconsistent with his previous statements and the physical evidence. The prosecutor was therefore entitled to argue that Crowe was a “liar” and that the evidence he had submitted in mitigation was “lies,” since a prosecutor may argue inferences from the evidence. *594 Hill v. State, supra at 45.
19. Crowe urges that OCGA § 17-8-57 was violated when, in overruling one of his objections to closing argument by the prosecutor, the trial court made a comment on what had been proven in the sentencing trial. “However, remarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence. [Cits.]”
Johnson v. State,
20. The trial court gave the standard, general charge on impeachment. Contrary to Crowe’s contentions, this charge did not have the effect of instructing the jury that it could disregard undisputed mitigating evidence. Furthermore, contrary to Crowe’s contention, the charge could not have authorized the jury to draw an adverse inference from his silence at trial. The trial court specifically instructed the jury that it could not draw an adverse inference from Crowe’s failure to testify.
21. Crowe contends that the trial court erroneously failed to instruct the jury that, pursuant to his Alford plea, he could still maintain his innocence as to each and every element of the crime of armed robbery.
Crowe waived his right to enumerate any error in the charge and the charge, as given, was not erroneously deficient as a matter of law. It informed the jury of the definition of an
Alford
plea and the definition of armed robbery and the trial court further charged that the jury had to find that the armed robbery was a statutory aggravating circumstance beyond a reasonable doubt. Moreover, a charge based upon Crowe’s claim of innocence to the offense of armed robbery would not have been adjusted to the evidence. Crowe made no claim of innocence at the time he entered the
Alford
guilty plea and his contention that he made a claim of innocence in his third statement, wherein he asserted that he took the money from the dead victim only as an afterthought, incorrectly assumes that one cannot rob a dead victim. See
Prince v. State,
22. Crowe contends that the trial court erred in refusing to give a requested charge on the definition of “maliciously” in connection with *595 its charge on aggravated battery.
The trial court did not give an erroneously incomplete charge on the definition of “maliciously,” it merely failed to give any charge on the definition of that term. Compare
Wade v. State,
23. The trial court did not err in denying Crowe’s post-conviction motion for recusal of the assistant district attorney. At the hearing on his motion, Crowe offered no evidence in support thereof.
Death Penalty Statute
24. Crowe contends that the death penalty statute is unconstitutional because it gives district attorneys unfettered discretion.
Contrary to Crowe’s contention, district attorneys do not have unfettered discretion under the death penalty statute. A district attorney’s decision to seek the death penalty requires the exercise of professional judgment as to whether an aggravating circumstance exists and, thus, as to whether the imposition of the death penalty should be submitted for a jury’s determination. The decision to impose the death penalty is entirely with the jury and cannot be upheld absent a finding that an aggravating circumstance does in fact exist. That different district attorneys may vary in their decisions to seek the death penalty and that different juries may return varying verdicts as to the imposition of the death penalty does not show that Crowe’s constitutional rights were violated. See
Rower v. State,
25. Although Crowe contends that the phrase “outrageously or wantonly vile, horrible or inhuman” in OCGA § 17-10-30 (b) (7) is unconstitutionally vague, the Supreme Court of the United States and this court have already upheld the statute against this constitutional attack.
Godfrey v. Georgia,
Death Penalty Review
26. As discussed in Division 1, the evidence supports the jury’s findings of the following aggravating circumstances: that Crowe committed the murder during the course of another capital felony, armed robbery, OCGA § 17-10-30 (b) (2); that Crowe committed the murder for the purpose of receiving money, OCGA § 17-10-30 (b) (4); and that the murder was outrageously and wantonly vile, horrible or inhuman in that it involved depravity of mind and an aggravated battery, OCGA § 17-10-30 (b) (7).
27. We do not find that Crowe’s death sentence was imposed under the influence of passion, prejudice or other arbitrary factor. OCGA § 17-10-35 (c) (1). The death sentence is not excessive or disproportionate to penalties imposed in similar cases, considering both the crime and the defendant. The similar cases listed in the Appendix support the imposition of the death sentence in this case.
Judgments affirmed.
Appendix.
Burgess v. State,
Notes
The crimes occurred on March 2, 1988. Crowe was indicted on March 8, 1988. On September 22, 1988, the State filed its notice of intent to seek the death penalty. Voir dire commenced on November 8, 1989, and the trial of the case began on November 14, 1989. The jury returned its verdict on November 18, 1989, and the trial court sentenced Crowe on November 20, 1989. Crowe filed his notice of appeal on December 8, 1989. Thereafter, Crowe filed an extraordinary motion for a new trial on April 16,1990. The trial court refused to hold a hearing on the motion and dismissed the motion on April 20, 1990. Crowe filed a notice of appeal of that ruling on June 1, 1990. This court remanded the case to the trial court on July 5, 1990, retaining jurisdiction, pursuant to Rule 4 (B) (1) of the Unified Appeal Procedure, ordering a hearing solely on the issues Crowe attempted to raise in his extraordinary motion for new trial. The trial court denied Crowe’s extraordinary motion for new trial on May 13, 1994. On May 26, 1994, Crowe filed his notice of appeal of the denial of the extraordinary motion. On October 5, 1994, this court consolidated Crowe’s direct appeal and appeal of the order denying the extraordinary motion for new trial. The case was orally argued on January 20, 1995.