This is a death penalty case. On December 15, 1978, William Henry Hance was convicted by a jury of the murder of Brenda Gail Faison, also known as Gail Jackson or Gail Bogen. He was sentenced to death, the jury having found that “the murder was outrageously or wantonly vile, horrible or inhuman in that it involved an aggravated battery to the victim.” See OCGA § 17-10-30 (b) (7). The conviction and sentence were affirmed on direct appeal.
Hance v. State,
After exhausting his state habeas remedies, Hance filed a petition for habeas corpus in the U. S. District Court for the Middle District of Georgia which was denied. On appeal, the Eleventh Circuit set aside the death penalty on the grounds that the prosecutor’s closing argument rendered the sentencing fundamentally unfair, and that two jurors were improperly excluded in violation of
Witherspoon v. Illinois,
Following a resentencing trial, Hance was again sentenced to death. The jury found the same aggravating circumstance as had been found in the first trial'(see above). This is Hance’s appeal following resentencing. 1
1. In related enumerations of error, Hance contends that four jurors were erroneously excluded in violation of Witherspoon, supra, that Witherspoon qualification produces a death prone jury, and that the trial court erred in declining to strike for cause several jurors who expressed a bias for the death penalty. We will address these contentions seriatim.
The four jurors whom Hance contends were erroneously excluded are Calhoun, Middlebrooks, Lacy and Gates. We have reviewed the transcript of the voir dire, and conclude that each of these jurors was properly excluded under the standard recently set forth in
Wainwright v. Witt,
Hance also challenges the jury selection process, arguing that the
Witherspoon
qualification produced a jury prone to give the death penalty both through the exclusion of jurors with scruples about the death penalty and through the emphasis on the death penalty throughout the voir dire necessitated by
Witherspoon
2
We conclude that it did not, and we note that a like contention was exhaustively treated and decided contrary to Hance’s position in
Mincey v. State,
Finally, Hance contends that the trial court erred in declining to strike for cause six jurors who expressed a bias against him and in favor of the death penalty: Parker, Deal, Park, Smith, Greene and Cook. Hance, however, only objected at trial to three of the six, Parker, Greene and Cook, and the trial court did not err in failing to excuse the other three absent any objection.
Spivey v. State,
2. Hance also appeals the denial of his motion for a continuance, which was filed on the day trial commenced, Monday, May 7, 1984. The motion set forth that at the time of defendant’s earlier trial — December 1978 — the city where he was originally tried and scheduled to be retried — Columbus, Georgia — “was in the midst of a ‘manhunt’ for a person known only as the ‘Stocking Strangler’ who had been responsible for seven murders as well as at least one unsuccessful attack with apparent intent to commit murder.” The motion further alleged that: “This Defendant was directly tied into the ‘Stocking Strangler’ situation in that it was alleged that this Defendant had written several letters to the Police Department under the name of ‘The Forces of Evil,’ wherein the writer of the letters threatened to kill certain people if the police did not find the Columbus Stocking Strangler.” 2 3 The motion further set out that just that *577 past week the police had arrested a suspect in the stocking stranglings, one Carlton Gary, and that on Friday, May 4, 1984, the Muscogee County Grand Jury had indicted Gary on three counts of murder, and the DA had announced that he would seek the death penalty. Finally, the defendant alleged that the current intense publicity about the stocking strangler case made it impossible for him to receive a fair trial at that time. No evidence was introduced in support of the motion. After hearing argument of counsel, the court overruled the motion, noting that the effect of the publicity might be an appropriate area of inquiry on voir dire.
This area was inquired into during voir dire. We have reviewed the voir dire, and find that it does not support the defendant’s assertion that the stocking strangler publicity resulted in prejudice to him. The trial court did not abuse its discretion in overruling the motion for continuance.
4
See
Davis v. State,
3. Hance complains of the admission of evidence of a murder for which he was not indicted, that of Irene Thirkield.
5
He recognizes that this evidence was previously held admissible.
Hance v. State,
supra,
*578
4. The defendant contends that the trial court erred in admitting into evidence photographs of the victim’s body and pieces of the victim’s bones, bone chips, and teeth found in the vicinity of her body, and pictures of Irene Thirkield’s body. All of the photographs complained of on appeal were taken at the scene where the bodies were discovered, and all depict the injuries inflicted upon the victims. While they are undeniably unpleasant, they are also undeniably relevant.
Brown v. State,
The other physical evidence introduced over objection related to the murder of Brenda Gail Faison. This consisted of bones, bone fragments, and teeth. Testimony indicated where they were found. Thus, the exhibits were relevant to the issue being tried; that is, the testimony and exhibits taken together illustrate the force with which the victim was beaten, and the extent of that force is relevant to the sentencing decision, especially where the statutory aggravating circumstance is OCGA § 17-10-30 (b), which requires a finding that the murder be “outrageously or wantonly vile, horrible or inhuman.” See
Hance v. State,
supra,
5. The defendant contends that the prosecutor’s closing argument at the sentencing phase deprived him of due process. He cites in support of this contention the fact that the district attorney told the jury that if they returned a verdict recommending death they would not be responsible for Hance’s execution any more than would be the police officers involved, the grand jurors, the prison officials, the DA himself or the trial judge. Rather, he argued, Hance himself bore the ultimate responsibility because it was he who committed the crime which authorized imposition of the death sentence. We do not find this accurate statement of the criminal justice process to be objectionable, and we hold that it did not introduce “passion, prejudice or any other arbitrary factor,” OCGA § 17-10-35 (c) (1), nor did it tend to diminish the jury’s sense of responsibility or deny the defendant fundamental fairness. See
Conner v. State,
6. The defendant contends that the evidence does not support the aggravating circumstance found because it does not establish that an aggravated battery occurred before death. He argues that this case is controlled by
Patrick v. State,
The evidence in the case before us is quite different. The evidence presented in this resentencing was substantially the same as that presented at the first trial. In Hance’s first appeal, we held: “Under the evidence of this case, the victim was struck on the head with a karate chop and fell over bleeding. She was pulled from the car with such force that her elbow was dislocated. All of these injuries occurred prior to death. The victim, again while still alive, was beaten with a tire jack with such force and savagery that when found her face from the top of the eyes down was completely missing, and parts of her jaw and skull were found within a nine foot radius of the body. The cause of death was
multiple
compound fractures of the skull and face, and evulsion (removal) of the victim’s brain. Although it is unknown at what exact time during the beating the victim died, the jury was authorized to find from the evidence, an aggravated battery prior to death in that the victim’s elbow and face were at a minimum rendered useless. Code Ann. § 26-1305. See
Baker v. State,
7. We have reviewed this resentencing trial pursuant to OCGA § 17-10-35 (c) (1) and Rule IV (B) (2) of the Unified Appeal Procedure. 246 Ga. A 1, A 16 (1980). We conclude that the sentence of death is supported by the evidence according to law, and was not imposed under the influence of passion, prejudice or any other arbitrary factor.
8. The foregoing divisions of this opinion respond to enumerations raised on defendant’s behalf by his attorney. The defendant himself has written this court arguing that the trial court erred in failing to suppress his confession, and that the evidence does not connect him to the crime. Those issues were decided adversely to defendant in
Hance v. State,
supra,
Judgment affirmed.
Appendix.
Allen v. State,
Notes
The two case numbers are the result of the first notice of appeal having been filed before the motion for new trial was overruled. There is only one appeal.
This contention was waived by Hance’s failure to raise it below.
State v. Williamson,
The certain people the letter writer threatened to kill were Gail Jackson and “Irene,” see Division 3, infra. One of the letters described the condition Gail Jackson’s body would be *577 in when found.
Hance had previously filed two motions for continuance on different grounds, both of which had been granted.
Irene Thirkield’s body was found on Fort Benning. Hance’s attorney explained, in arguing his motion in limine to exclude any reference to Thirkield’s murder, that Hance was court-martialed and found guilty of her murder. The conviction was, however, reversed on appeal, and he was not retried.