The appellant, Mark Howard McClain, shot and killed Kevin Scott Brown during an armed robbery of a Domino’s Pizza store in Augusta. 1 The jury sentenced McClain to death for murder, finding *379 the following statutory aggravating circumstances: The murder was committed while the offender was engaged in the commission of a burglary; the murder was committed while the offender was engaged in the commission of an armed robbery; and the murder was committed for the purpose of receiving money or things of monetary value. 2
The state presented evidence that McClain picked up his girl friend, Tina Butler, around midnight on November 19, 1994, and drove to her apartment. They discussed their relationship over a few drinks, and Butler told McClain she needed money. An hour later, McClain left Butler’s apartment, drove to the Domino’s Pizza store on Washington Road and parked his blue Buick beside the building. Shortly before 2:00 a.m., Domino’s delivery man, Phillip Weeks, returned from making his pizza deliveries. McClain approached Weeks as he was walking toward the store and asked to buy a pizza. Weeks told him the store was closed, but McClain became insistent and refused to leave. In an attempt to placate McClain, Weeks agreed to ask the manager, Kevin Brown, who was inside the store, to make an exception. Weeks began yelling to Brown from outside the store. Brown looked at Weeks, whose hand was on the door, and released the security lock. As the door opened, McClain attempted to force his way inside behind Weeks. Weeks sought to bar him from entering, but when McClain produced a small caliber revolver, Weeks fled through the store and out the back door. Brown, who weighed 450 pounds and could not move quickly, remained standing behind the counter. As Weeks reached the door, he heard McClain order Brown to give him the money.
Weeks fled to a service center on Washington Road to call police, but the pay telephone was broken. Before crossing the road, Weeks looked around and saw a blue car pull out of the driveway leading to Domino’s at high speed. Believing the driver of the car to be the perpetrator, Weeks ran back to the sidewalk. McClain saw Weeks and made an obscene gesture towards him with his middle finger as he drove by. Weeks ran into the road behind the car and memorized the car’s tag number. Weeks flagged down a passing driver, who drove him back to the store. Brown, who had been shot, was lying behind the counter, barely alive. Brown’s keys to the store’s till, which he normally kept in his pocket, were in the till where the store’s money was kept. There was evidence that just over $100 was missing from *380 the store. By the time paramedics arrived, Brown had bled to death from a single gunshot wound to the chest.
McClain returned to Butler’s house and gave her $100 without revealing its source. When McClain left Butler’s residence the next afternoon, he drove Butler’s car, leaving the Buick, the army jacket and boots he had worn during the robbery, and the gun he had used to shoot the victim at her house. Police traced the tag number of the Buick to McClain’s father, whose description of his son matched Weeks’ description of the perpetrator. The assistant manager at the Washington Road Domino’s store identified McClain as having bought a pizza in the store two days before the shooting under the name of Johnson. The box with the receipt for that pizza was found in the trash during a search of McClain’s residence.
The day after the shooting, McClain picked up the Buick at Butler’s house. He was arrested when he arrived at work in the car the following morning. That evening, McClain called Butler from the jail and told her to dispose of the clothes and gun he had left at her house. He demanded that Butler provide him with an alibi for the night of the shooting and threatened to implicate her if she refused. Butler hid the jacket in a neighbor’s shed and gave the gun to her nephew. The police questioned Butler on two occasions, and during the second interview, she told police about McClain’s telephone call and gave police the jacket and boots. The gun was recovered a month later, when Butler’s nephew was involved in a shooting. Butler testified against McClain at trial. McClain denied any involvement in the crime until trial, where he testified that he intended only to rob the store, but heard a noise as he was leaving, and believing that Brown was pursuing him, McClain shot him.
The evidence is sufficient to enable a rational juror to find McClain guilty of the crimes charged beyond a reasonable doubt.
Jackson v. Virginia,
1. McClain’s first four enumerations of error challenge the trial court’s rulings with regard to the qualifications of four jurors during voir dire.
(a) McClain argues that the trial court erred in relying on prospective juror William L. Platte’s assurances that he could be impartial in denying McClain’s motion to excuse this juror for cause because Platte’s voir dire responses indicated that he was biased in favor of the state. Before a juror can be disqualified for cause, it must be shown that the juror has formed an opinion on the guilt or innocence of the accused which is “ ‘so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence.’ ”
Garland v. State,
The record does not support McClain’s assertion that Platte’s responses revealed he was obviously biased. Unlike the prospective jurors in
Lively
and
Walker,
Platte did not have a close relationship with either of the parties or the victim.
3
Moreover, even though factual circumstances strongly in favor of disqualification were absent in Platte’s case, the trial court did not rely solely on Platte’s own opinion of his ability to be impartial in finding Platte qualified to serve as a juror. After questioning Platte, the trial court articulated reasons for its ruling, specifically addressing the relationship between Platte and the prosecutor, Platte’s voir dire responses, and his demeanor. The trial court did not abuse its discretion in denying McClain’s motion to disqualify Platte.
Garland,
(b) McClain contends that the trial court erred in failing to remove prospective jurors Charles Penn and Robert Snyder for cause. Since Penn and Snyder qualified forty-third or later in the panel, the issue of whether they were qualified to serve as jurors is moot.
Crowe v. State,
(c) McClain argues that the trial court erred in excusing prospective juror Louise Head, sua sponte, because her voir dire responses failed to meet the standard for dismissal under
Wainwright v. Witt,
Head testified that her responsibilities as publicity chairman for an upcoming fiftieth anniversary reunion of a worldwide organization might distract her from her duties as a juror and interfere with sequestration. The trial court did not abuse its broad discretion in excusing Head because of her age and responsibilities in preparing
*382
for what was
“a
one time only event.”
Blankenship v. State,
2. McClain contends that the trial court erred in admitting testimony by a Richmond County deputy that McClain stated if he was convicted of Brown’s murder he would rather be executed than return to jail. During the guilt phase of trial, Deputy Sheriff Ronnie Strength testified that in a follow-up interview several days after McClain was arrested, Strength informed McClain that police were aware of his incriminating telephone conversation with his girl friend, Tina Butler, in which McClain instructed Butler to dispose of the jacket and boots he wore on the night of the crime and the gun, which he had also left at Butler’s house. Although McClain had previously denied any involvement in Brown’s murder, after Strength showed him the jacket and boots, McClain stated that if he were found guilty of Brown’s murder, he would rather die in the electric chair that day than return to prison. The trial court found McClain’s statement to be voluntary and admissible following a
Jackson v. Denno
hearing, and McClain does not challenge its reliability. Cf.
Christenson v. State,
McClain contends that Strength’s testimony is prejudicial and inflammatory and is irrelevant to the question of McClain’s guilt. We conclude, however, that Strength’s testimony was admissible because it can be inferred from McClain’s comment that he was implicitly acknowledging that the evidence that Strength summarized for him connected McClain to the crime. Thus, McClain’s comment, when considered in the context in which it was given, is, at least implicitly, an admission against interest, and is inconsistent with McClain’s earlier statement denying involvement in the crime. OCGA § 24-3-53;
Satterfield v. State,
McClain argues that the jury may have relied upon this testimony in determining McClain’s sentence. The sentencing hearing does not exclude matters heard in the guilt phase of trial but is for additional evidence.
Ford v. State,
3. Enumerations of error six and seven concern the prosecutor’s closing argument at the guilt-innocence phase of trial.
(a) McClain asserts that the trial court erred in allowing the prosecutor to make an improper “golden rule” argument, inviting jurors to place themselves in the victim’s position, by asking them to consider a day in the future when a housewife opens the door on moving day, and McClain introduces himself as “Mark.” 4
“ ‘[A]ny argument regardless of nomenclature, which importunes the jury to place itself in the position of the victim for any purpose must be carefully scrutinized to ensure that no infringement of the accused’s fair trial rights has occurred.’ ”
White v. State,
(b) (1) McClain argues that the prosecutor improperly injected his personal opinion that McClain was guilty of malice murder in closing argument by referring to McClain as a “murderer” who “chose to kill” the victim. Although expressions of personal opinion by the
*384
prosecutor are improper in closing argument, the prosecutor has wide latitude to argue inferences from the evidence.
Crowe v. State,
(b) (2) McClain also contends that the prosecutor argued his personal opinion, thereby invoking his expertise in such matters, by warning the jury “not to be fooled” by McClain, and by concluding, after describing the crime, that “if that’s not malice murder I don’t know what is. The evidence of malice is as tight as a tick on a dog.” Although this arguably was an expression of personal opinion, we do not find it to be an invocation of “the prosecutorial mantle of authority.”
Brooks v. Kemp,
762 F2d 1383, 1413 (11th Cir. 1985), vacated and remanded on other grounds,
Despite the phraseology, we find that these comments can most reasonably be seen as an attempt to draw inferences from the evidence.
Conklin v. State,
McClain’s contention that the trial court put its “stamp of approval” on this argument is without merit. A judge’s remarks assigning a reason for a ruling are neither an improper expression of opinion nor a comment on the evidence. OCGA § 17-8-57;
Crowe v. State,
4. (a) McClain objects to the prosecutor’s argument on general deterrence during the sentencing phase of trial, in which the prosecutor argued that the jury’s verdict would send a message to the community, and asked jurors whether they would like an imaginary billboard at the entrance of Richmond County to read: “Welcome to Richmond County where if you kill our people we find a way to give you a fifth, sixth or seventh chance?” The prosecutor then asked the jury, ‘Will you have your billboard or the word that goes to the criminals that try to invade your community with that kind of message?” McClain acknowledges that our holdings in
Fleming v. State,
A prosecutor may appeal to the jury to convict for the safety of the community or to send a message to others that criminal activities will be punished.
Davis v. State,
Although we find that portion of the prosecutor’s argument on general deterrence to be proper, we also note that a review of the entire sentencing phase argument alleviates any concern that McClain’s sentence was the result of the jury’s outrage and fear of criminals in general, and not McClain’s individual behavior. The prosecutor argued that by its verdict, the jury was deciding whether McClain, as a result of his own actions, had given up the right to live in a civilized society and asked jurors whether they should subject themselves to his “continuing, criminal, heinous, brutal acts.” The prosecutor noted that after three armed robberies, McClain had learned to leave no witnesses, and since he had proved his dangerousness, deserved the most effective punishment. The prosecutor *386 concluded with a plea to convict McClain by sending a signal to the community that such behavior will not be tolerated. We find that the argument was sufficiently tailored to the individual culpability of McClain, and there is no error on this ground.
(b) McClain’s contention that the trial court denied him an opportunity to respond to the state’s argument on deterrence is without merit. McClain began his responsive argument by asserting that there was absolutely no dispute that the death penalty is not a deterrent, although there were no facts in evidence to support this conclusion.
Hill v. State,
supra. Moreover, such facts are inadmissible under
Fleming,
which prohibits the introduction of outside evidence on the deterrent effect of the death penalty by either party.
5. The trial court’s recharge on the meaning of life without parole did not leave jurors to speculate regarding McClain’s parole eligibility if convicted of life without parole. The trial court instructed the jury that the “defendant shall be incarcerated for the remainder of his natural life and shall not be eligible for parole.” This instruction was proper, and the court was not required, as McClain argues, to respond “that life without parole means what it says.”
Henry v. State,
6. The trial court did not err in failing to instruct the jury that a unanimous finding on mitigating circumstances is not required, while charging the jury that its sentencing verdict had to be unanimous, since the court charged the jury that it was not necessary for the jury to find any mitigating circumstances to impose a life sentence.
Wellons v. State,
7. McClain argues that the (b) (2) aggravating circumstances of murder in the commission of a burglary and murder in the commission of an armed robbery are duplicative of the (b) (4) circumstance of murder committed for pecuniary gain, because the motive of obtaining money provides the impetus for all three aggravating facts. Aggravating circumstances are not invalid simply because they might overlap to some extent.
Thornton v. State,
8. The trial court did not err in failing to charge the jury on a burden of proof with regard to non-statutory aggravating circumstances.
Ross v. State,
9. The trial court did not err in instructing the jury it could “recommend” the imposition of the death penalty, since the charge made it clear that such a recommendation would be binding.
Hittson v. State,
10. McClain contends that admission of victim impact testimony by the victim’s father and the victim’s neighbor, Kyle Rondeau, was error on several grounds.
(a) McClain’s contention that OCGA § 17-10-1.2, which governs the introduction of victim impact testimony during the sentencing phase of a capital trial, violates the State and Federal Constitutions has been decided adversely to McClain.
Payne v. Tennessee,
(b) When asked about the effect of the victim’s death on the community, Rondeau responded that the victim’s murder was the primary topic of a local radio show in the weeks following the crime and “there was much anger expressed about the crime and the apparent trend.” McClain contends that this is unreliable personal opinion testimony which is not supported by any evidence and which exceeds the scope of permissible evidence authorized by OCGA § 17-10-1.2 and
Livingston.
Under OCGA § 17-10-1.2 (b) (6), the trial court has discretion to question witnesses regarding the effect of the victim’s death on the community. Although we noted in
Livingston
that even legal victim impact testimony may be inflammatory if admitted in excess, Rondeau’s testimony regarding the community’s anger about the crime was neither a “detailed narrative of the emotional and economic suffering of the community,” nor did it encourage comparative judgments between Kevin Brown’s value to the community and that
*388
of another victim.
Livingston,
(c) McClain contends that the prosecutor, and not the trial court, read the written questions to Rondeau at trial in violation of OCGA § 17-10-1.2 (b) (6), which states that the court is required to ask the questions authorized by the statute. We find that the procedure followed by the trial court substantially complied with the provisions of the statute, since the questions were previously approved by the trial court. Moreover, failure to comply with the procedure in the Code section does not constitute reversible error absent a constitutional violation. OCGA § 17-10-1.2 (d).
11. The trial court did not err in denying McClain’s motion to suppress evidence seized from his residence pursuant to a search warrant, because the warrant affidavit contained no information McClain returned to his residence following the crime, or that the items sought were at the residence. The affidavit contained information from an eyewitness describing the crime, as well as information that the license tag on the car driven by the perpetrator was traced to McClain’s father and that McClain had a prior record. The warrant listed boots, clothes and a gun as the items sought in the search. A reviewing court will pay substantial deference to a search warrant finding probable cause issued by a magistrate.
Williams v. State,
12. Contrary to McClain’s contention, district attorneys do not have unfettered discretion to seek the death penalty, and the decision to impose it rests with the jury and cannot be upheld absent a finding of an aggravating circumstance.
Crowe v. State,
McClain’s sentence is not disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. The similar cases listed in the Appendix support the imposition of the death penalty in this case.
Judgment affirmed.
Appendix.
Mobley v. State,
Notes
The crimes occurred on November 20, 1994. McClain was indicted on November 29, 1994, for malice murder, felony murder, armed robbery, possession of a firearm during the commission of certain crimes and possession of a firearm by a convicted felon. McClain was reindicted for the original charges, with the addition of burglary, on January 4, 1995. On September 7, 1995, the jury found McClain guilty on all counts except possession of a firearm by a convicted felon, which count was not initially tried with the others. McClain subsequently pled guilty to possession of a firearm by a convicted felon. On September 15, 1995, McClain was sentenced to death for murder, twenty years consecutive for burglary, a consecutive life sentence for armed robbery, fjve years consecutive for possession of a firearm *379 during the commission of a crime and five years consecutive for possession of a firearm by a convicted felon. McClain filed a motion for new trial on September 29,1995, and amended it on February 27, 1996. The motion was denied on March 5, 1996. McClain’s notice of appeal was filed on March 18, 1996. The case was docketed on April 25, 1996, and orally argued on September 26, 1996.
OCGA § 17-10-30 (b) (2) (4).
The prosecutor probated Platte’s father’s estate when Platte was six or seven and taught Platte’s eighth grade Sunday School class. There had not been any contact between Platte and the prosecutor for eight years prior to McClain’s trial. Platte’s relationship with law enforcement officers was even more attenuated. Platte testified that he had played softball and occasionally socialized with Richmond County policemen, although he characterized only one of these individuals as a “good friend.”
McClain’s objection was to arguing facts not in evidence. McClain testified at trial that he was employed by a moving company, and his job entailed packing customers’ belongings in their homes.
We note that there was some authority for introducing the issue of a defendant’s future dangerousness in guilt stage closing argument at the time this case was tried.
Vance v. State,