Lead Opinion
Kelly Renee Gissendaner was convicted of the malice murder of her husband, Douglas Morgan Gissendaner.
1. Gissendaner and the victim had been married, divorced, remarried, separated, and reunited between 1989 and 1997. Ms. Gissendaner was in a relationship with Gregory Bruce Owen and at one point stated to a co-worker that she was unhappy with her husband and in love with Owen.
Prior to Gissendaner’s trial, Owen entered an agreement not to seek parole within 25 years, pled guilty, and received a sentence of life in prison. Owen testified at Gissendaner’s trial that it was she who first raised the idea of murder and that she later raised the idea again several other times. Owen suggested divorce as an alternative, but Gissendaner insisted upon murder because she believed she would receive insurance money from her husband’s death and because she believed he “wouldn’t leave [her] alone by just divorcing him.” Gissendaner had previously stated to Owen’s sister that she intended to use the victim’s credit to get a house and then “get rid of him.”
During the days leading up to the murder, Gissendaner made 47
On the evening of February 7, 1997, Gissendaner drove Owen to her family’s home, gave him a nightstick and a large knife, and left him inside the home to wait for the victim. Gissendaner then drove to a friend’s house, and, upon Gissendaner’s insistence that the group keep their plans for the evening, she and her friends went out to a nightclub.
The victim arrived home shortly after 10:00 p.m. Owen confronted the victim from behind, held a knife to his throat, forced him to drive to a remote location, forced him to walk into the woods and kneel, and then killed him by striking him with the nightstick and then stabbing him repeatedly in the back and neck with the knife. As instructed by Gissendaner, Owen took the victim’s watch and wedding ring before killing him to make the murder appear like a robbery.
Gissendaner returned home from the nightclub at about the time the murder was being carried out, paged Owen with a numeric signal, and then drove to the crime scene. After inquiring if her husband was dead, she took a flashlight and went toward the body to inspect it. Owen burned the victim’s automobile with kerosene provided by Gissendaner, and the pair returned to their respective homes in Gissendaner’s automobile. Owen disposed of the nightstick, the knife, a pair of his own jeans, and the victim’s stolen jewelry by placing them in the garbage. A pair of Owen’s sweat pants also worn on the night of the murder was recovered, however, and DNA analysis of blood found on them showed a likely match with the victim’s and Owen’s blood.
After the murder, Gissendaner concealed her relationship with Owen from police and claimed not to have initiated contact with him for some time. Telephone records, Owen’s testimony, and other witness testimony proved otherwise. After her arrest, Gissendaner called her best friend and confessed to her active and willing role in the murder, although she then called a second time and claimed that she was coerced into participating. Gissendaner wrote a letter while in jail in an effort to hire someone to give peijured testimony and to rob and beat witnesses.
Viewed in the light most favorable to the verdict, we find that the evidence introduced at trial was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that Gissendaner was guilty of the crimes of which she was convicted and that statutory aggravating circumstances existed. Jackson v. Virginia,
2. Gissendaner contends that the trial court erred in denying her motion for a change of venue. The trial court reserved its ruling until after voir dire had been completed and then denied the motion. We find that the trial court acted properly within its discretion in denying the motion. Tolver v. State,
A capital defendant seeking a change of venue must show that the trial setting was inherently prejudicial as a result of pretrial publicity or show actual bias on the part of the individual jurors. Jenkins v. State,
The trial court acted properly in reserving its ruling on Gissendaner’s motion for a change of venue until voir dire had been conducted because “[t]he decisive factor in determining whether a change of venue is required is ‘the effect of the publicity on the ability of prospective jurors to be objective.’ ” Wilson v. State,
3. We find that the trial court did not err in refusing to strike for cause the jurors discussed in Gissendaner’s appeal.
(a) Shortly before voir dire began, juror Mason had seen a newspaper article reporting on Gissendaner’s upcoming trial, including the fact that a statement made by Gissendaner had been suppressed. However, Ms. Mason stated that she had “just skipped through” the article and could not remember details from it. She did vaguely recall something about “whether rights were read,” but she had no recollection of the substance of Gissendaner’s suppressed statement or anything else prejudicial to Gissendaner. Furthermore, she stated clearly that she would set aside any prior knowledge of the case and consider only the evidence presented at trial.
A prospective juror need not be “totally ignorant of the facts and issues involved” in a criminal proceeding in order to be qualified to serve. Irvin v. Dowd,
(b) Gissendaner contends that the trial court erred in denying her motion to excuse juror Vandenakker for cause based upon his views on the death penalty. Mr. Vandenakker’s responses initially evinced a preference for the death penalty in cases of “premeditated murder.” However, his responses seeming to favor the death penalty were elicited by defense counsel’s attempt to direct the juror’s atten
(c) Gissendaner contends that the trial court improperly denied her motion to disqualify juror Schie. Contrary to Gissendaner’s argument on appeal, a juror who expresses a leaning toward the death penalty is not necessarily unsuited for service. Mize v. State,
Likewise, our review of the record indicates that neither juror Still’s nor juror Love’s views on capital punishment disqualified them for service. Although they both admitted some leaning toward the death penalty, they both also stated clearly and repeatedly that they would consider all three sentencing options and that they were capable of voting in favor of a sentence less than death.
(d) Juror Winn acknowledged that he might, as surely all jurors might, be led to lean toward a determination of guilt or innocence based upon some of the evidence presented at trial but before all of the evidence had been presented. He stated: “I might come to some initial thought. I could see that happening, something might be said that would trigger a strong feeling one way or the other before the whole thing is over. That’s entirely possible.” Not only do we not find this acknowledgment troubling standing alone, we further note that the juror specifically stated that he would reserve final judgment
(e) The record does not support Gissendaner’s assertion that juror Beavers was predisposed toward the death penalty. Furthermore, Ms. Beavers stated clearly that she would consider all evidence and all three sentencing options and that she was capable of imposing a sentence less than death. We also find that Ms. Beavers’s limited knowledge of the case drawn from her vague recollection of news reports did not require her disqualification. Irvin v. Dowd,
(f) The trial court did not err in disqualifying juror Strong based upon her statement to the trial court, after some equivocation under questioning by counsel, that she did not know if she could impose the death penalty and based upon her becoming emotionally distraught during questioning on the topic. The trial court did not abuse its discretion in excusing this juror. Greene v. State,
4. Upon reviewing the record, we conclude that the trial court did not improperly restrict Gissendaner’s questioning on voir dire in general or with regard to the following jurors specifically discussed on appeal: Still; Beavers; Hampton; Strong; Mathis; Chappell; Smith; Derda; and Rumble. The trial court permitted a thorough examination of each of the jurors and properly sustained meritorious objections. “The scope of voir dire is largely left to the trial court’s discretion, and the voir dire in this case was broad enough to ascertain the fairness and impartiality of the prospective jurors.” Barnes v. State,
5. Gissendaner contends that the jury pools from which her grand jury and traverse jury were selected were created in a racially-discriminatory manner. We disagree.
Gissendaner’s expert witness testified before the trial court that African-Americans comprised 5.1 percent of the population of the county according to the 1990 census but only 3.8 percent of registered voters. The expert concluded that Caucasians were selected from the
Members of the county’s jury commission testified that the percentage of African-Americans in the jury pool was precisely the same as the percentage of African-Americans in the population in the county as determined by the 1990 census, and Gissendaner’s expert testimony seemed to confirm their testimony. The method of forced balancing employed by the county in ensuring this proportionality was not unlawful. Sears v. State,
Gissendaner, by recalculating figures appearing in an exhibit provided by her expert witness, now asserts on appeal that African-Americans actually comprised 7.4 percent of the registered voters in the county and, therefore, that it was African-Americans rather than Caucasian persons who were selected in less than proportional numbers. Without addressing the waiver issue involved in Gissendaner’s reversal of argument, we conclude that, even assuming the validity of the figures set forth on appeal, the jury pools did not unlawfully exclude African-Americans. See Unified Appeal Procedure, Rule II (A) (6).
Trial Proceedings
6. The trial court did not err in excluding testimony by one of the victim’s co-workers about a statement made by the victim.
Hearsay must be necessary and must be accompanied by particular guarantees of trustworthiness in order to be admissible under the necessity exception. OCGA § 24-3-1 (b); Chapel v. State,
The trial court admitted one hearsay statement by the deceased victim where the statement had been made immediately after concluding a telephone call and where the victim appeared “really scared and jolted.” In contrast, the excluded hearsay statement was made after the victim, returning from his lunch break, “just nonchalantly walked in and was talking to [the witness].” The witness further stated during the defense’s proffer that the declarant “didn’t look afraid or nothing.” Application of the necessity exception requires
“a circumstantial guaranty of the trustworthiness of the offered evidence - that is, there must be something present [in the making of the statement] which the law considers a substitute for the oath of the declarant and his [or her] cross examination by the party against whom the hearsay is offered.”
(Citations and emphasis omitted.) Chrysler Motors Corp. v. Davis,
7. The trial court did not err, as Gissendaner contends, in admitting photographs and a videotape depicting the victim’s body as it was found at the crime scene and prior to autopsy. Jackson v. State,
The photograph of the victim in life was also properly admitted. Ledford v. State,
8. The trial court, after hearing testimony from law enforcement officers that road conditions leading to the scene were unsafe, did not abuse its discretion in denying Gissendaner’s motion to have the jury view the crime scene. Sutton v. State,
9. Gissendaner argues that the trial court improperly limited her closing argument. Prior to an objection by the State, Gissendaner’s counsel argued the following:
[T]hrough the evidence, we have learned a lot about Doug Gissendaner. We know he was a healthy, strong individual. We know he outweighed Mr. Owen. We know he was tall. We know he worked as a mechanic, and we know that Doug Gissendaner had recently served in the United States Army. We know that in the United States Army he went through basic combat training. We know that he trained in combat arms. He was combat arms qualified. We know he was a tanker in the Army corps. We know he served in a combat theater in Desert Storm. And, therefore, we know that he had escape and evasion training.
The State then raised an objection, which the trial court sustained stating, “Counsel can only comment on what’s in evidence.” Defense counsel’s argument was again interrupted by an objection after counsel stated the following: “I would suggest to you as a reasonable inference from his service in the army and from his having served in a combat theater he was trained in how to defend himself in the woods.” The trial court sustained the objection and stated, as part of an instruction that is difficult to interpret definitively in print: “That’s testimony. It’s not permissible.”
Counsel certainly are permitted to argue reasonable inferences from the evidence presented at trial. Simmons v. State,
10. We disagree with Gissendaner’s contention that the State made improper arguments at the close of the guilt/innocence phase of her trial that require reversal of her conviction and death sentence.
We are concerned that counsel should adhere to the highest standards of professionalism and proper courtroom decorum, see Davis v. State,
(b) Gissendaner contends that other statements by the prosecutor constituted improper personal attacks upon defense counsel, but because no objections were raised to these allegedly-improper statements, Gissendaner’s contention is waived insofar as it concerns the jury’s determination of her guilt. Miller v. State,
(c) Gissendaner contends that her conviction should be reversed because the Senior Assistant District Attorney referred to her as “evil” in his closing argument. Because Gissendaner made no objection at trial, this issue is waived insofar as it concerns the jury’s determination of her guilt. Miller v. State,
(d) There is no merit to Gissendaner’s argument that the State improperly sought to bolster the credibility of its witnesses by commenting that the defendant’s presentation of witnesses resembled “somebody drowning, grasping at straws.”
11. OCGA § 17-10-1.2 is not unconstitutional as written, and the trial court properly reviewed the State’s victim impact testimony prior to trial and did not admit unduly inflammatory or prejudicial evidence. Livingston v. State,
Sentencing Phase
12. During the sentencing phase of her trial, Gissendaner sought to admit into evidence several letters from her children in order to show the children’s love for her. The trial court excluded the letters as hearsay but allowed the children’s grandmother to testify that the children had written letters to their mother in jail.
We have held that trial courts should exercise broad discretion in admitting any mitigating evidence during the sentencing phases of death penalty trials. Barnes v. State
The trial court in Gissendaner’s case expressed a reasonable concern about the reliability of hearsay statements written by young
In light of all of the foregoing, we conclude that the trial court did not err in excluding the disputed letters. Davis v. State,
13. We find no merit in Gissendaner’s contention that certain statements made by the Chief Assistant District Attorney in his closing argument during the sentencing phase were improper. The prosecutor did not improperly emphasize the worth of the victim. See Ward v. State,
14. The trial court’s charge on the definition of mitigating circumstances was correct and would not have misled the jury. Fugate v. State,
The trial court properly charged the jury by stating, “You shall also consider the facts and circumstances, if any, in extenuation and mitigation.” See Romine v. State,
It was not necessary for the trial court to charge the jury that findings regarding mitigating circumstances need not be unanimous or on how mitigating circumstances should be weighed, because the trial court properly charged the jury that it was not necessary to find any mitigating circumstances in order to return a sentence less than death. Palmer v. State,
The trial court did not err in failing to charge the jury on the consequences of a deadlock. Jenkins v. State,
Constitutional Questions
15. Execution by electrocution is not cruel and unusual punishment. DeYoung v. State,
16. Georgia’s death penalty statute is not unconstitutional, and Gissendaner has failed to show that application of the statute in her case is unconstitutional. McCleskey v. Kemp,
17. Qualification of jurors based upon their willingness to consider the death penalty as a sentencing option does not deny capital defendants their right to an impartial jury drawn from a representative cross-section of the community and is not otherwise unconstitutional. DeYoung v. State,
18. The Unified Appeal Procedure exists to protect the rights of capital defendants and is not unconstitutional. Jackson v. State,
Sentence Review
19. Gissendaner contends that the death sentence she received is “disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” OCGA § 17-10-35 (c) (3). Upon a review of the record and of similar cases in Georgia, we conclude that it is not.
(a) Our review of all death sentences includes a special vigilance for categories of cases that have so consistently ended with sentences
We are also directed by OCGA § 17-10-35 (c) (3) to consider “the defendant” in weighing the proportionality of a death sentence, and, therefore, the special individual characteristics of an appellant are appropriate for consideration. See Corn v. State,
(b) In considering Gissendaner’s role in the murder, we note several aggravating factors from the record. First, the record indicates that she was the moving force in the crime. Owen, her co-conspirator, testified that Gissendaner insisted her husband be murdered rather than divorced so that she would receive insurance money to pay off
Gissendaner’s conduct after the night of the murder is also an appropriate concern for our sentence review, as it was an appropriate concern for the jury who sentenced her. Evidence at trial showed that Gissendaner, prior to her arrest, drove angrily toward a witness while declaring, “I ought to run the bitch over.” While in jail, she wrote a letter and drew a map of her house in an effort to locate a person willing to accept money to commit perjury and to rob and beat witnesses.
(c) We conclude that the deliberate, even insistent, manner in which Gissendaner pursued her husband’s death, the fact that the murder was the unprovoked and calculated killing of a close family member, the fact that she arranged the murder to obtain money, and the fact that she attempted to avoid responsibility for her conduct by suborning perjury and orchestrating violence against witnesses all weigh heavily against her claim that the death penalty in her case is disproportionate. Our review of the sentences imposed in similar cases in Georgia reveals that the death sentence imposed in Gissendaner’s case, considering both the gravity of her crime and the apparent depravity of her character, is not disproportionate. OCGA § 17-10-35 (c) (3). The cases appearing in the Appendix support this conclusion in that each involved the careful devising of a plan to kill, killing for the purpose of receiving something of monetary value, kidnapping with bodily injury, or causing or directing another to kill.
(d) Gissendaner also contends her death sentence is impermissibly disproportionate to the sentence received by her co-conspirator. The evidence showed that Gissendaner was the moving force behind the murder and even insisted upon murder when her co-conspirator suggested divorce instead. See Waldrip v. State,
20. We find that the sentence of death in this case was not imposed under the influence of passion, prejudice, or any other arbitrary factor. OCGA § 17-10-35 (c) (1).
Judgment affirmed.
Appendix.
Wilson v. State,
Notes
The murder occurred on February 7, 1997. Gissendaner was indicted on April 30, 1997, by the Gwinnett County Grand Jury for malice murder and felony murder. The State filed written notice of its intent to seek the death penalty on May 6, 1997. Gissendaner’s trial began on November 2, 1998, and the jury found her guilty of malice murder and felony murder on November 18, 1998. The felony murder conviction was vacated by operation of law. Malcolm v. State,
Cases where notice that the State intends to seek the death penalty is given after January 27, 2000, shall be governed by the revised version of the Unified Appeal Procedure. The corresponding rule in the revised outline is Rule II (C) (6).
Dissenting Opinion
dissenting.
While I concur with the majority’s affirmance of appellant’s adjudication of guilt, I respectfully dissent to Division 15 of the majority opinion and the sentence for the same reasons as stated by Justice Sears in her dissent in Wilson v. State,