This appeal is from the felony murder conviction of Levy James III. 1 On the day of the killing, James drove to the shoe repair establishment owned by his friend Steven Hood, and parked his car blocking the drive-through window. After Hood asked James three times to move the car, the men argued and Hood threatened James with physical violence. James got into his car as the argument continued, and when the unarmed Hood walked up to the car, shot him eight *676 times, three of which shots would alone have been fatal.
1. The evidence adduced at trial was sufficient to authorize a rational trier of fact to find James guilty of felony murder beyond a reasonable doubt.
Jackson v. Virginia,
2. James enumerates as error the trial court’s exclusion of expert testimony proffered by James on the subject of the effect marijuana use may have had on the victim. The evidence was intended to bolster James’s claim that his shooting of Hood was an act of self-defense. The expert witness testified in the defense’s proffer that evidence of marijuana use was found in Hood’s blood; that the amount found indicated use within a few hours before death, or indicated regular use and use within several days before death; and that marijuana use can have a disinhibiting function. On cross-examination, the witness admitted that there was no way to know whether Hood was actually under the influence of marijuana at the time James shot him. On redirect examination, the witness stated that he could not say what, if any, effect marijuana had on Hood at the time of his fatal argument with James. There was no evidence that Hood had smoked marijuana on the day of his death, the only evidence of his use being that he was a regular user. After considering that evidence, the trial court excluded the evidence as being too speculative.
That ruling is supported by the holding in
Hawes v. State,
3. During cross-examination of an eyewitness, defense counsel asked the witness to refresh his recollection with a statement the witness had given to the police. Defense counsel then contested several parts of the witness’s trial testimony, asking at one point whether, since he was now testifying differently, the witness had been mistaken when he gave the statement. After cross-examination, the trial court permitted the State, over defense objection, to have the witness read the whole statement. Contrary to James’s argument on appeal, that ruling was not error because where, as here, the veracity of a witness is at issue, and that witness is present at trial, under oath, and subject to cross-examination, the prior consistent out-of-court statement of the witness is admissible.
Edwards v. State,
4. James contends on appeal that the trial court erroneously *677 denied his motions for mistrial on four occasions: when members of the victim’s family appeared in the courtroom wearing pins showing the victim’s dates of birth and death; when a police officer, in testifying, used the word “murder,” which the trial court had forbidden; when a spectator in the courtroom called out in agreement with a witness’s statement; and when a witness said, of James and the victim, “he just shot him down like a dog.”
Whether to grant a motion for mistrial is within the sound discretion of the trial judge, and a decision based on that discretion will not be disturbed on appeal unless abuse of discretion is shown.
Isaac v. State,
5. The trial court did not err in permitting the State to have Hood’s fiancee identify a picture of him in life. “The general rule is that it is not error to admit a photograph of the victim while in life. [Cit.] However, the better practice is to not permit a victim’s family member to identify the victim where other nonrelated witnesses are able to do so . . . . [Cit.]”
Ledford v. State,
6. James sought to introduce as part of his showing of Hood’s propensity for violence a document by which Hood settled a domestic violence matter. Since the trial court permitted testimony establishing the facts of the domestic violence incident, including Hood’s pros
*678
ecution and the settlement of that prosecution, the document would have been merely cumulative. “It is not error to exclude otherwise relevant evidence if its probative value is substantially outweighed by considerations of avoiding the needless presentation of cumulative evidence from which the jury might or might not draw a certain inference. [Cit.]”
Green v. State,
7. After the jury had retired to deliberate, it asked the trial court for anatomical charts the medical examiner had used to illustrate testimony regarding the location of Hood’s wounds. The defense had earlier objected to the charts going out with the jury on the ground that the charts were “demonstrative evidence.” The trial court admitted the charts into evidence and sent them to the jury over James’s objection.
James now enumerates that decision as error, contending that numbers written on the charts may have caused the jury to believe the wounds were inflicted in that order when there was no testimony to that effect, and that permitting the exhibits to go to the jury amounted to sending the State’s argument into the jury room unrebutted. The first objection has no merit because the medical examiner testified clearly that he had no way of knowing the order in which the wounds were inflicted and that the numbers were there for his convenience only. Under those circumstances, we do not believe the jury could have been confused by the numbers on the charts. The other objection amounts to a “continuing witness” objection, which is not applicable to drawings or other documents which are “demonstrative evidence that serve only to illustrate testimony given by the witnesses.”
Gabbard v. State,
8. James contends the trial court erred in refusing to strike for cause a juror who stated that he felt the use of a gun to take another’s life would not be justified under any circumstances. However, the juror also stated that his feelings about gun use were personal to him, that self-defense was a circumstance under which taking a life would be justifiable, and that he would be able to consider the issues in this case impartially notwithstanding his personal principles regarding gun use. Since the juror clearly did not hold so fixed an opinion that he would be unable to set aside his personal feelings and decide the case on the evidence, we find no abuse of the trial court’s discretion.
Mize v. State,
*679
9. James’s contention that the trial court erred in giving a sequential charge on murder, felony murder, and voluntary manslaughter as is forbidden in
Edge v. State,
Analyzing the trial court’s charge in this case as a whole, as we must, we find that the charge was not impermissibly sequential. The charge regarding voluntary manslaughter was complete, and makes no indication that it could be considered only after malice and felony murder had been eliminated as possible verdicts. Similarly, nothing about the portion of the charge regarding the verdict form . . . precluded the jury’s consideration of provocation or passion unless and until it found Hall not guilty of felony and malice murder.
Id. at 26. We note additionally that the trial court in the present case told the jury in the charge on voluntary manslaughter that it would not be authorized to return a verdict for malice murder or felony murder without first determining whether mitigating evidence, if any, would cause the offense to be reduced to voluntary manslaughter. The charge was not, therefore, subject to the criticism to which the charge in Edge was subject.
10. James argues on appeal that the following portion of the jury instruction may have confused the jury regarding the State’s burden of proof:
No person shall be convicted of any crime unless and until every element of the alleged offense is proven beyond a reasonable doubt. The object of all legal investigation is the discovery of the truth, and the burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt.
James does not explain how that charge could confuse the jury into thinking the State’s burden of proof was less than beyond a reasonable doubt and we are unable to discern how that might be so. We note that a charge in almost identical language was found in
Gavin v. Vasquez,
11. The trial court did not err in giving the jury its instructions in writing after having charged the jury verbally.
Anderson v. State,
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12. On appeal, James complains of several portions of the State’s closing argument. At trial, however, he complained of only one portion, requesting a mistrial as to that allegedly improper argument. Since this is not a case in which the death penalty has been imposed, appellate consideration of other portions of the argument was waived by James’s failure to object to them at trial.
Metts v. State,
Judgment affirmed.
Notes
The shooting occurred on April 24, 1996, and James was indicted for malice murder and felony murder in a true bill returned on June 4, 1996. A trial begun on January 15, 1997, resulted in his conviction for felony murder on January 18, for which he was sentenced on that same day to life imprisonment. His motion for new trial, filed January 29,1997, and later amended, was denied on July 7,1998. A notice of appeal was filed on July 27,1998; the appeal was docketed in this Court on August 24, 1998; and the appeal was submitted for decision after oral argument on November 10,1998.