Hоward Jones, the defendant, was convicted of armed robbery and murder by a DeKalb County jury. He was sentenced to life imprisonment for the armed robbery and to death for the murder. His case is here on direct appeal and for mandatory review of his death sentence.
We affirm.
The evidence presented at trial authorized the jury to find that defendant, his brother Gilbert Jones and another man named James Ameen conspired to rob a courier at a Seven-Eleven store. The courier’s job was to collect money taken in at various Seven-Eleven stores and the Seven-Eleven store which was the scene of this crime was toward the end of his route. The courier was accompanied by an armed guard, Frank Shelnut, the murder victim.
On the morning of the crime, two employees of the store and Frank Shelnut were in the public area of the store while the courier was in a back office counting money. During the course of the robbery, a struggle ensued between Frank Shelnut and one оf the robbers and shots were fired. James Ameen and Gilbert Jones were wounded (Gilbert Jones is now paralyzed from the waist down). Frank Shelnut was killed, having been shot six times. Gilbert Jones and James Ameen were arrested the same day while at Grady Hospital seeking treatment for their wounds. Howard Jones was arrested that evening.
Along with a great deal of circumstantial evidence linking defendant to the crime, one of the employees of the store identified defendant as being at the scene of the сrime from a photographic line-up. A witness who arrived at the scene as defendant and James Ameen were dragging Gilbert Jones out the store identified defendant from a photographic line-up although she was later unable to pick him out of a physical line-up. 1 Both *821 witnesses identified defendant at trial. James A meen testified as a witness for the State, related the course of events in planning and carrying out the robbery and identified the defendant as the robber who shot the victim repeatedly.
At trial, defendant testified in his own behalf and stated that he was at home during the robbery. He said that his only contact with any of the events pertaining to the crime occurred when Gilbert Jones showed up at his (defendant’s) apartment wounded and defendant had to call another brother to take him to the hospital.
After deliberating for 50 minutes, the jury returned a verdict of guilty of both armed robbery and murder. After the pre-sentence hearing, after returning twice for re-instruction, and after deliberating a total of 58 minutes, the jury returned with a recommendation of the death penalty finding the following aggravating circumstances: (1) "The offense of murder was committed while the offender was engaged in the commission of another capital felony, to-wit: armed robbery.” (2) "The offender by his act of murder knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person.”
Defendant brings sixteen enumerations of error to this court.
1. In his first, thirteenth and fourteenth enumerations of error, defendant contends that the exclusion of death-scrupled jurors denied him an impartial jury under Witherspoon. Three jurors (or possibly four)*
2
were excused by the court for cause based on their answers to questions about their feelings on the death penalty. Because when the twelfth juror was impaneled, the State had only used four of its allotted ten
*822
peremptory strikes, we need not consider whether or not the rule established in Witherspoon was in fact violated. If these three or four jurors had not been removed for cause, the state could have used its peremptory strikes to remove them as it did in the case of two other jurors who expressed reservations about the death penalty. Therefore, any error in excluding any juror for cause was harmless.
Alderman v. State,
Defendant also argues that not even peremptory strikes can be used to remove death-sсrupled jurors from the jury panel. We do not agree. The permissibility of the use of peremptory strikes to remove death-scrupled jurors who could not be removed for cause has not yet been decided by the United States Supreme Court. However, the validity of such use was established by implication in
Alderman,
supra, by the finding of harmless error when the state had unused peremptory strikes. Further, the reasoning of the United States Supreme Court in Swain v. Alabama,
We find no error based on defendant’s first, thirteenth and fourteenth enumerations of error.
2. In his second enumeration of error, defendant
*823
contends that a mistrial should have been granted based on the prosecutor’s improper opening remarks. During his opening statement, the prosecutor referred to a statement made by co-accused James Ameеn by stating to the jury, "The evidence will show you that he identified Howard Jones as the person who had actually shot and killed the security guard.” Defendant’s counsel objected arguing that this was a reference to a confession of a co-accused which would not be admissible into evidence. We find that the trial court correctly overruled the motion for mistrial on this point. The co-accused himself took the stand and testified to the same facts as those to which he testified in his previous statement. Testimony about the prior consistent statement itself was proper to rebut defendant’s attempt to show that the co-accused’s trial testimony was a fabrication in exchange for a lesser sentence for himself.
See Fuller v. State,
Defendant’s second enumeration of error is without merit.
. 3. In his third enumeration of error defendant complains that the trial court erroneously permitted the jury to disperse overnight during the trial. We find no error.
Code Ann. § 59-718.1 gives the trial court discretion to permit members of the jury to disperse under appropriate instruction except in cases in which the prosecution is seeking the death penalty. See
Jordan v. State,
supra. Even if the prosecution is seeking the death penalty, the trial court may permit jury dispersal with the consent of the accused.
Mason v. State,
We find no merit in defendant’s third enumeration of error.
4. In his fourth enumeration of error defendant asserts that the trial court erroneously permitted a state witness to state a conclusion based on speculation. The witness, a forensic serologist, was testifying about her examination of blood stains on the defendant’s underclothing. She testified that she found blood on his T-shirt but that she was unable to determine whether or not it was human blood. When the prosecutor asked why, the defendant’s attorney objected, but the trial court permitted the expert witness to state her opinion. The witness testified that the stain was a dilute stain which could have been the result of laundering. The results of her tests were the results one gets if a stain has been laundered.
The defense stipulated that the witness was qualified as an expert in the field of forensic serology. As an expert, the witness was permitted to state her opinion based on her tests. See Code Ann. § 38-1710. See also
Bowden v. State,
5. In his fifth enumeration of error, the defendant contends that the trial court erred in allowing the stаte to impeach its own witness. The state called Ellen Jones, the wife of a co-accused, to the stand to testify as to the presence of the defendant at her home prior to the robbery. However, instead she testified that she could not remember the defendant being at her house that morning. The state then pleaded surprise and proceeded to impeach the witness by her previous inconsistent statement *825 placing the defendant at her home with her husband and the othеr co-accused.
Defendant claims that the state did not show that it was entrapped and, therefore, should not have been permitted to impeach the witness. Had defendant objected at trial, perhaps the prosecution would have made a more elaborate showing of surprise. See
State v. Westberry,
6. In his sixth enumeration of error, defendant contends that the trial court erred in allowing into evidence certain statements made by the defendant while in a custodial line-up without benefit of counsel. At trial, defendant testified that he did not know anything about blood on his T-shirt until he heard it in court. He specifically denied saying anything to the police about it stating that, "I had already been informed that anything that I said would be used against me, so I told them my name and my address up until today.”
Officer Doug Maple was called to the stand to impeach this testimony of the defendant. Outside the presence of the jury, the trial court conducted a Jackson-Denno hearing (Jackson v. Denno,
•First, defendant was not entitled to counsel at this line-up which was held not only prior to indictment but prior to the initiation of any adversary judicial criminal proceedings. See Kirby v. Illinois,
When a statement is properly admitted for impeachment purposes alone, the burden is on the trial court to caution the jury that the evidence is to be considered only for the purpose of assessing the defendant’s credibility and not to establish his guilt of the offense for which he is on trial.
Scott v. State,
supra. Failure to so instruct the jury could be error. Id. See
Campbell v. State,
7. In his seventh enumeration of error, the defendant contends that a mistrial should have been granted because of prejudicial remarks made in the prosecutor’s closing argument.
The prosecutor made no remarks which could be construed as urging his personal belief as to the credibility of the witness, Vicky Hink. Furthermore, this was nоt the objection which defense counsel voiced at trial. See
House v. State,
We find no merit in defendant’s seventh enumeration of error.
8. In his eighth enumeration of error, defendant contends that the trial court erred in allowing witnesses to identify the defendant based on an impermissibly suggestive photographic line-up. He contends that the photographic line-up was impermissibly suggestive in that it was conducted after a physical line-up and the defendant’s picture was the only one which reflected someone in the line-up. Defendant assеrts that the witnesses picked out the individual they had seen in the physical line-up.
Defendant’s allegation that the line-up took place before the photographic display is unsupported by the record. In fact, what evidence there is on the matter is to the contrary. One witness testified that she viewed the photographic display on the day of the robbery. The line-up was held at least a day later.
Defendant’s eighth enumeration of error is without merit.
9. In his ninth enumeration of error, the defendant contends that the trial court erred in allowing the jury to consider armed robbery as a capital offense and thus an aggravating circumstance for the purpose of imposing a death sentence. A jury is authorized to impose the death penalty if they find that "the offense of murder . . . was committed while the offender was engaged in the commission of another capital felony . . .” Code Ann. § 27-2534.1 (b) (2). Even though the death penalty may no
*829
longer be imposed for armed robbery alone (see
Collins v. State,
Defendant’s contention that the trial court allowed the jury to consider armed robbery as a capital felony itself and not merely as an aggravating circumstance is unfounded.
10. In his tenth enumeration of error, defendant contends that the trial court placed undue emphasis on the death penalty while instructing the jury. We do not agree.
During the penalty phase of the trial, the trial court instructed the jury that if they were going to recommend a life sentence for the defendant they would simрly leave the verdict as it then read — "We, the Jury, find the Defendant guilty.” On the other hand, if they were going to recommend a death sentence, they had to go further and write, "We recommend death and find the following statutory aggravating circumstances beyond a reasonable doubt,” and then write the aggravating circumstance or circumstances they had found to exist. Written copy of the three possible aggravating circumstances was enumerated and sent out with the jury. After deliberating on the sentence for a period of time, the jury returned to the courtroom and reported that they were having trouble with the wording of the verdict. The foreman stated, "We are in agreement on one and two if we can get it in writing.” The trial court then instructed them on the wording for a death sentence, the only sentence which needed "words.” It is apparent that at the time of re-instruction, the jury had already reached a verdict of death and that the trial court correctly instructed them on the propеr wording of the verdict.
The defendant’s tenth enumeration of error is without merit.
11. In his eleventh enumeration of error, defendant argues that the trial court erred in charging the jury on conspiracy when it was not alleged in the indictment. Clearly the evidence in this case indicated a conspiracy to
*830
rob this Seven-Eleven store. "When the evidence tends to show a conspiracy, a charge upon the subject is not error even if not alleged in the indictment.”
Montgomery v. State,
Defendant’s eleventh enumeration of error is without merit.
12. In his twelfth enumeration of error, defendant argues that he was denied effective assistance of counsel such as to deny him a fair trial. He enumerates some twenty acts or omissions which he contends illustrate ineffective assistance of counsel. We have carefully reviewed the record in this regard and disagree that the alleged acts or omissions constitute ineffective assistance of counsel.
As we have held repeatedly, the right to counsel is the right to effective counsel. " 'We interpret counsel to mean not errorless counsel, and
not counsel judged ineffective by hindsight,
but counsel reasonably likely to render
and rendering
reasonably effective assistance.’ ”
Pitts v. Glass,
The acts or omissions of counsel, listed by defendant, are matters of strategy and trial tactics which he cannot now question. Trial counsel at the hearing on motion for new trial testified that he was a member in good standing *831 of the State Bаr of Georgia having been admitted in 1949. During the course of his career he had tried approximately 2,000 criminal cases including twelve capital felonies out of which only one other client received the death penalty. In preparation for defendant’s trial, counsel attended the trial of a co-defendant and took notes, interviewed defendant numerous times and with the help of his investigator familiarized himself with the witnesses and their testimony and filed certain pre-trial motions. At trial, сounsel asked questions on voir dire, struck certain jurors from the panel, vigorously and extensively cross examined key prosecution witnesses, objected to statements made by the prosecution, presented defendant’s sole defense, and presented a closing argument in which he attacked the credibility and reliability of the testimony of prosecution witnesses.
Defendant’s twelfth enumeration of error is without merit.
13. In his fifteenth enumeration of error, defendant argues that the imposition of the death penalty, particularly by electrocution, is cruel and unusual punishment. These arguments have been decided adversely to defendant by the United States Supreme Court in Gregg v. Georgia,
14. In his sixteenth enumeration of error, defendant contends that the systematic exclusion of blacks from the jury denied him trial by an impartial jury. This point, raised for the first time after verdict, presents nothing for review. In any event, we have held that removal by peremptory strikes of all black jurors from the jury panel in a particular case does not deny due process. Jordan v. State, supra.
There is no merit in defendant’s sixteenth enumeration of error.
15. Sentence Review.
(a) We find that the sentence of death in this case was not imposed under the influence of passion, prejudice, *832 or other arbitrary factor. Code Ann. § 27-2537 (c) (1).
(b) The jury’s finding that "the offense of murder was committed while the offender was engaged in the commission of another capital felony, to-wit: armed robbery” (Codе Ann. § 27-2534.1 (b) (2)) is supported by the evidence. The jury’s finding that "the offender by his act of murder knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person” (Code Ann. § 27-2534.1 (b) (3)) is supported by the evidence. We conclude that a .32 caliber automatic, the murder weapon in this case, is a weapon which is normally hazardous to the lives of more than one person, when used in a public place.
(c) In reviewing the death penalty in this case, we have considered the cases appealed to this court since January 1, 1970, in which a death or life sentence was imposed for murder, and we find the cases listed in the appendix support affirmance of the death penalty. The defendant’s death sentence is not disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Codе Ann. § 27-2537 (c) (3).
We have reviewed the instructions given by the trial judge during the sentencing phase and find that they are not subject to the defects dealt with in our decisions in
Fleming v. State,
Judgment affirmed.
Appendix.
Lingo v. State,
Notes
his witness was a high school student and testified *821 that, having never seen a line-up, she was greatly upset to see the line of men pressed up against glass. She was very positive as to her identification at trial.
The record does not show that the fourth juror in question was excused at all. Apparently she was, however, because that would leave the correct number of *822 jurors at the end of voir dire. Furthermore, the defendant contends that four jurors were excused for cause.
We held in
Scott v. State,
The statement by the prosecutor was: "The man testified and he told the truth.” This was a logical deduction from the evidence since the witness’ testimony had been corroborated by the testimony of other witnesses and by the physical evidence. See
Manning v. State,