Hаving found Christopher Kirkprock Lewis guilty of malice murder, felony murder,
1. The evidence adduced at trial showed that Lewis and the victim, Cheryl Lewis, were married in 1992. Cheryl had two children from a previous marriage, Kellee and Sean, who were 13 and 10 years old respectively when their mother was killed. In 1995, Lewis and Cheryl began living apart and there were several incidents of domestic violence over the following year. During an altercation in March 1996, Lewis threatened Cheryl in the presence of a police officer, saying that it would be “this O.J. Simpson situation again” when he got out of jail. During another altercation in August 1996, Cheryl told Lewis that she wanted a divorce and Lewis argued against it. Starting in October 1996, Lewis often appeared at Cheryl’s apartment to bang on her door; he would also sit and watch her door for several hours at a time. In November, Cheryl and her children moved to another apartment, but Lewis’s behavior continued. On December 19,1996, Cheryl went to a Christmas party with a co-worker, Robbie Epps. The children remained in the apartment watching television. At approximately 11:00 p.m., Lewis began banging on Cheryl’s аpartment door, cursing and yelling, “[0]pen up the door, I know you’re in there.” The children did not open the door because their mother had instructed them not to open it. Eventually, the banging ceased and they went to sleep.
At 1:45 a.m., Kellee was awakened by her mother screaming. She went to her mother’s bedroom and saw Lewis on top of Cheryl holding a knife. Kellee could not find the cellular phone so she ran next door to call the police, telling the neighbor, “[I]t’s my step daddy, he’s killing my mama.” Sean testified that he also was awakened by his mother’s screams. He pretended tо be asleep and saw Lewis enter his bedroom, look through the blinds, and then run out of the room. The police arrived and found Robbie Epps, clad only in boxer shorts despite the frigid weather, standing in the parking lot. Epps looked scared and said there was a man in the apartment. The medical examiner testified that Cheryl had suffered 42 injuries, including 17-20 stab or cut wounds to the neck. She bled to death because her carotid artery and jugular vein had been severed. There was a bloody eight-inch serrated knife found at the scene that was consistent with the murder weapon. The poliсe determined that the assailant had entered
The evidence was sufficient to enable a rational trier of fact to find proof beyond a reasonable doubt of Lewis’s guilt of malice murder, felony murder, burglary, aggravated battery, and possession of a knife during the commission of a felony.
Jackson v. Virginia,
2. Lewis claims that the trial court erred by refusing to grant a mistrial after the State made religious references in its penalty-phase closing argument. See
Carruthers v. State,
Now, ladies and gentlemen, let me talk to you. There are many of you who аre Christians and what I say to you does not in any way suggest to you that any religious materials demand the death penalty at all, instead I think that it helps us understand the concept of deterrence and retribution and for this I speak to you. Romans tells us that every person is subject to the governing authоrities. And in fact in [Matthew] it says, who so sheddeth man’s blood by man shall his blood be shed.
Lewis’s counsel objected that the prosecutor was trying to inject biblical law into the case, and moved for a mistrial. In a bench discussion outside the hearing of the jury, the prosecutor cited cases which held that while a prosecutor cannot urge the imposition of the death penalty based upon religious beliefs or teachings, he can “ ‘allude to such principles of divine law relating to [the] transactions of men as may be appropriate to the case.’ ”
Hill v. State,
Ladies and gentlemen of the jury, to some extent I have sustained the defendant’s objection in that counsel for the State may [allude] to divine law without presenting it as some- ’ thing to be followed as the state law that I will give you. . . . However, those matters read to you by [the prosecutor] from the Bible are to be disregarded by you and not be used by you in any fashion in determining your decision in that regard. I will give you the charge from the court, the law that you’re to apply in this case. You are not to use what he read to you in any form or fashion in reaching and determining your verdict as it relates to the sentencing in this case. Is there any juror who does not understand that instruction? If so, please raise your hand.
No jurors raised their hands. The trial court then asked, “Is there any juror who is unwilling to follow this instruction or feels that they cannot follow this instruction? If so, raise your hand.” No jurors raised their hands. The prosecutor then continued with his closing argument without making another religious reference.
After the conclusion of Lewis’s trial, this Court held a similar argument by the same prosеcutor in another death penalty case to be reversible error as to the death sentence.
Carruthers,
supra.
2
We determined that the
We conclude, however, that the prosecutor’s argument in this case, although improper, does not require the reversal of the death sentence. The trial court issued lengthy curative instructions to the jury, informing thеm that Lewis’s objection had been sustained in part, demanding that the prosecutor’s argument be completely disregarded, and charging them that the law that they would use to decide Lewis’s sentence would come only from the trial court. The trial court asked the jurors to indicate whether аny of them did not understand or could not follow her curative instructions, and none responded. By contrast, the trial court in
Carruthers,
which had overruled the defendant’s objections to the biblical passages, did not issue any curative instructions. Under the circumstances in this case, we believe
the extensive curative instructions were sufficient to cure the harm from the prosecutor’s brief religion-based argument. See
Mobley v. State,
3. Lewis claims that there was an improper communication between the jury and either the judge or an unspecified person during deliberations. See, e.g.,
Hanifa v. State,
The trial judge testified that she received no notes from the jury about the substance of the case during the trial, although she may have received a written request for a break. 3 She averred that she always turns over substantive jury notes to the court reporter for inclusion in the record and, if a note dealt with anything like the definition of malice, she would have convened the litigants for a hearing on the matter.
After the judge hearing the post-remand motion for new trial reopеned the evidence, the bailiff testified that he did not remember any notes during Lewis’s trial, but that he always took jury notes immediately to the judge and he always returned her written responses to the jury. The jury foreman testified that he communicated to the judge from the jury room only three times: to ask for lunch tо be sent in, to ask that the physical evidence be brought in so they could begin deliberating, and to tell the judge they had reached a verdict. There were no other communications, he stated, and the jury never asked for any re-charges or legal definitions. He testified
that all the communiсations
We conclude the motion-for-new-trial court did not err by finding no improper communication with the jury during the trial. “The trial court’s findings of fact on motion for new trial are upheld unless clearly erroneous.”
Peralta v. State,
4. Lewis’s death sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor. OCGA § 17-10-35 (c) (1). The death sentence is also not excessive or disproportionate to the penalty imposеd in similar cases, considering both the crimes and the defendant. OCGA § 17-10-35 (c) (3). Lewis harassed his estranged wife; broke into her apartment through a window; and stabbed and slashed her over 40 times while her children were present in the apartment. The similar cases listed in the Appendix support the imposition оf the death penalty in this case, in that all involve a murder during the commission of a burglary or an aggravated battery or the finding of the OCGA § 17-10-30 (b) (7) aggravating circumstance.
Judgment affirmed.
Appendix.
Braley v. State,
Notes
Lewis committеd the crimes on December 20, 1996. The grand jury indicted Lewis on October 22, 1997, for malice murder, felony murder (two counts), aggravated battery, burglary (two counts), and possession of a knife during the commission of a felony. The State filed its notice of intent to seek the death penalty on October 23, 1997. The trial took place November 9-14, 1998. The jury convicted Lewis on all counts on November 13 and recommended the death penalty on November 14. In addition to the death penalty, the trial court sentenced Lewis to consecutive sentences of twenty years for burglary, twenty years for aggravated battery, and five years for possession of a knife during the commission of a felony The felony murder convictions were vacated by operation of law
(Malcolm v. State,
The prosecutor argued in Carruthers:
Now, ladies and gentlemen, let me talk to you a moment about some biblical references that help us in this case. Deterrence is very important and the Bible suggests to us why deterrence is appropriate. Romans tells us that every person is subject to the governing authority, every person is subject. And in Matthew it tells us, who sheddeth man’s blood by man shall his blood be shed for in the image of God made [he] man. For all they who take the sword shall die by the sword, and this is a message that is very clear, that society must deter criminals.
(Footnote omitted.) Carruthers, supra at 308 (2).
The transcript reflects discussion about only one note to the trial court from a juror. This note was received before guilt-innocence phase closing arguments and requested the opportunity to make a phone call home.