A jury convicted William Mark Mize of malice murder in the shooting death of Eddie Tucker. The jury recommended a death sentence after finding two statutory aggravating circumstances: 1) that Mize caused or directed another to commit the murder and 2) that the murder was outrageously or wantonly vile, horrible or inhuman in that it involved an aggravated battery to the victim. OCGA § 17-10-30 (b) (6), (7). 1 We affirm.
Viewed in the light most favorable to the verdict, the evidence adduced at trial showed that Mize was the leader of a small group, similar to the Ku Klux Klan, called the National Vastilian Aryan Party (NVAP). Witnesses testified that Mize made all the decisions for the NVAP. Several witnesses also testified that Mize displayed a single-shot 12-gauge shotgun at an NVAP meeting and told the members that the shotgun was the kind of weapon that the group would use because it could not be traced. Several of Mize’s friends and coworkers were members of the NVAP, or in the initiation process. Eddie Tucker, the victim, had filled out an application form but was not a full member.
On Saturday, October 15, 1994, several NVAP members and applicants gathered at Mize’s home after Mize got off from work. Those present were Mize, Mark Allen, Chris Hattrup, Brian Dove, Samantha Doster (Mize’s girl friend), and Tucker. Mize told Doster that the group was going camping that night and they all got in Mize’s car. When they were driving, Mize told the group that there was a crack house in Athens that he wanted “gotten rid of.” Mize stated that he wanted Hattrup and Tucker to set the house on fire, and they stopped at a convenience store and bought a can of lighter fluid. Hattrup and Tucker were dropped off near the house but their attempt to set it on fire was unsuccessful. When they rejoined the group, Hattrup told Mize that he needed to talk with him. Hattrup *647 also said, referring to Tucker, that they “didn’t need anybody around that couldn’t follow orders.”
After spending an hour at a bar, Mize drove the group to a wooded area in Oconee County. Dove and Doster were given camping gear to carry and the group set out into the woods. No one had a flashlight even though it was night. Tucker was in the lead, followed by Mize, Allen, Doster, Dove and Hattrup. After they had gone only a short distance, Hattrup passed Dove and Doster and moved up the trail to talk with Allen and Mize. Mize told Allen to stop Dove and Doster from continuing into the woods. At this point, Tucker, Hat-trup and Mize were out of sight in the woods ahead of Allen, Dove and Doster. There was a shot, and Tucker exclaimed, “My God, what did you do that for?” There was a second shot. Doster heard Hattrup ask Mize if he had the gun and Mize replied, “No, man. I thought you had it.” Hattrup stated, “No. He took it away from me,” and Mize said, “If you can’t finish it I can.” Allen left Dove and Doster and moved up the trail. Dove and Doster heard a discussion among Mize, Allen, and Hattrup about muscle spasms and how Tucker was still moving. There was a third shot.
Dove and Doster ran back to Mize’s car. Mize emerged from the woods holding a shotgun and trying to break it down. Once in the car, Mize asked everyone if they knew why it was done. Everyone nodded in agreement. Mize told the group that the same thing could happen to them if they ran their mouth. Mize also told the group that, if asked about Tucker, they should say that they had dropped him off at a convenience store. While they were driving, Allen and Hattrup noticed that the barrel of the shotgun had shattered so they stopped at a bridge and threw the gun in a river. Later, Mize confided to Dos-ter that he had finished Tucker off by shooting him in the head.
The police discovered Tucker’s body several days later. He had been shot in the back, chest and head with a shotgun. The medical examiner testified that the back and chest wounds were inflicted by a shotgun fired at close range. The victim’s head exhibited widely scattered pellet wounds that failed to penetrate the skull; the head wounds were consistent with a close-range shotgun blast that had shattered the barrel. The medical examiner further testified that the shots to the back and chest tore through the victim’s right lung, but that none of the wounds were immediately fatal. The victim’s death was due to blood loss, and it could have taken him several minutes to die. A fragment of the shotgun barrel was discovered about two feet from the body’s location; the gun was not recovered.
After the body was discovered but before anyone was arrested, Chris Hattrup showed his roommate, Paul McDonald, the newspaper article about Tucker’s death and told him what had happened. When the crack house failed to burn, Mize asked how Tucker had done and *648 Hattrup responded that Tucker “didn’t do what he was supposed to do.” Mize then said, “you know what we have to do.” Hattrup admitted to McDonald that he shot Tucker in the back and chest, but that Tucker was still alive. He was out of ammunition, though, so he asked Mize for another shotgun shell and Mize gave it to him. Hat-trup then shot Tucker in the head. Hattrup also boasted to McDonald that he was now a “hit man for the Klan.”
Brian Dove told the police what he had seen and heard that night, and he later testified at Mize’s trial. The other four NVAP members involved in Tucker’s death were arrested. After spending a year in jail, Doster agreed to testify against the others and her charges were dropped.
1. The evidence summarized above was sufficient to authorize a rational trier of fact to find Mize guilty beyond a reasonable doubt of malice murder.
Jackson v. Virginia,
2. Mize claims that the State withheld exculpatory information in violation of
Brady v. Maryland,
that the State possessed evidence favorable to the defendant; the defendant did not possess the evidence nor could he *649 obtain it himself with any reasonable diligence; the prosecution suppressed the favorable evidence; and had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceeding would have been different.
Burgeson v. State,
The second contention, that the State withheld the identity of a GBI intern, is also not a Brady violation. Mize claims that the State should have given Mize the intern’s identity because the intern had information that was exculpatory. When the body was discovered, the GBI attempted to sweep the vicinity of the body with a metal detector, but a GBI agent testified that the batteries died before they could complete the job. The agent also testified that a GBI intern was operating the metal detector at the scene. A month after the murder, the GBI returned to the murder scene with another metal detector and recovered a shotgun barrel fragment within two feet of the body’s former location. At the hearing on the motion for new trial, Mize introduced an affidavit from Kevin Smith, the GBI intern, that stated that the batteries on the metal detector did not become low on the first crime scene search until after the area had been swept with the metal detector. Mize claims that the failure of the State to give the defense Kevin Smith’s name prevented Mize from using Smith’s information at trial to argue that the barrel fragment had been planted by the State. The name of the metal detector operator, though, is not by itself favorable to the defense. What Mize really contends is favorable to the defense is that the intern believed that the batteries had failed at a different time than the GBI agent supervising the crime scene. The record is clear that the State did not know this information before trial and therefore could not possess it and suppress it in violation of Brady. See Burgeson, supra. We find *650 no Brady violation with regard to the identity of the GBI intern.
3. Mize complains that the State introduced inflammatory, irrelevant evidence about Mize’s racist beliefs and Ku KLux Klan affiliation in an attempt to prejudice the jury. At trial, several witnesses testified about the racist goals and beliefs of Mize and the NVAP. Photographs of items seized from Mize’s home, such as flags bearing the NVAP or Klan insignia, a racist poster, a Klan belt buckle, and a cross with NVAP symbols, were admitted into evidence. Normally, evidence concerning a defendant’s political or racial beliefs is irrelevant to a determination of guilt or innocence. OCGA § 24-2-2. Under the facts of this case, however, the evidence was admissible because it explained Mize’s motive for the murder and his bent of mind. The evidence at trial showed that Mize, as leader of a small Klan-like organization, ordered and participated in Tucker’s murder because Tucker had failed to follow Mize’s orders to burn a crack house. “ ‘Evidence that is otherwise relevant and material to the issues in a criminal case does not become inadmissible simply because it incidentally puts a defendant’s character or reputation into evidence.’ ”
Boutwell v. State,
4. Mize contends that the trial court erred by allowing Deputy William Ricketts to serve as a bailiff during Mize’s trial. Mize claims that he needed to call Deputy Ricketts as a witness for impeachment purposes but could not do so because the deputy had formed a close relationship with the jury. Before trial, Mize moved to prevent any Oconee County deputies from serving as bailiffs during the trial. At a pre-trial hearing, Deputy Ricketts testified that his only role in the case was to provide security for a few hours on the road adjoining the crime scene. He never actually went into the woods to the crime scene, and was not involved in the investigation of the case. The State told the trial court that it did not intend to call Deputy Ricketts as a witness. The trial court ruled that Deputy Ricketts would serve as a bailiff because Deputy Ricketts was a certified EMT and the trial court wanted someone with medical training to be with the jury.
At trial, Investigator Ed Norman of the Oconee County Sheriff’s Department testified that GBI Agent Cooper told him that the metal detector’s batteries had died, but Investigator Norman’s report stated that it was Deputy Ricketts who told him about the dead batteries. Mize claims that he needed to call Deputy Ricketts to impeach Investigator Norman, and that this dilemma should have resulted in a mistrial, which the trial court denied. We disagree with Mize’s con
*651
tention. First, Investigator Norman could have been impeached with his own written report. Second, nothing prevented Mize from calling Deputy Ricketts for the purpose of impeaching Investigator Norman. Mize points to
Radford v. State,
5. Mize claims that the State failed to prove chain of custody for the fragment of shotgun barrel admitted into evidence. This contention is without merit. There is no need to prove chain of custody for non-fungible physical evidence identified by a witness, since these items can be recognized by observation.
Harper v. State,
6. Mize complains that several prospective jurors were improperly qualified to serve by the trial court.
(a)
Juror Hunsinger.
Mize claims that Juror Hunsinger knew several of the law enforcement witnesses on the State witness list and was biased in favor of the prosecution. She stated that she had gone to high school with two of the witnesses, and that she had met another State witness because of her son’s traffic violations. But she also stated that she had never been close friends with any of the witnesses, and that she had had very little contact with them in the previous decade (she had talked with one of her high school friends four times in the past eleven years). Even though Juror Hunsinger stated that she would be “hard pressed” to believe that the State witnesses whom she knew would fabricate evidence, she repeatedly and firmly stated that she would judge the credibility of the witnesses and the guilt of the defendant based on the evidence and the trial court’s instructions. Whether to strike a juror for cause lies within the sound
*652
discretion of the trial court and the trial court did not abuse its discretion by denying the motion to strike Juror Hunsinger.
Brown v. State,
(b) Jurors Miller and Cutler. Mize claims that these jurors should have been struck for cause because they believed that the defense had a burden to produce evidence of Mize’s innocence. It is apparent from the voir dire transcript that these jurors were confused about the State’s burden to prove the defendant guilty beyond a reasonable doubt because they had not yet received any legal instruction from the trial court. When apprised that the State had the burden of proof and the defense did not need to produce any evidence, both jurors stated that they could adhere to this principle in their consideration of the case. The trial court did not abuse its discretion by refusing to strike these jurors for cause. Brown, supra.
(c)
Juror Hicks.
Mize did not move to strike Juror Hicks for cause, and the trial court did not err by failing to excuse her sua sponte.
Spencer v. State,
(d)
Juror Gibson.
Mize argues that Juror Gibson should have been excused for cause because he was predisposed to a death sentence. “The proper standard for determining the disqualification of a prospective juror based upon his views on capital punishment ‘is whether the juror’s views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” ’ ”
Greene v. State,
(e)
Juror Rice.
Mize complains that Juror Rice should have been excused for cause because he had negative feelings about the Ku Klux Klan that prevented him from being impartial. During voir dire, Juror Rice stated that he had personal feelings against the Klan
*653
and that he might not consider a member of the Klan to be as credible as another witness. Upon further questioning, Juror Rice stated that he had previously misstated and that he would not disbelieve someone just because they were in the Klan. He testified that he was against all kinds of hate groups, but that he would not apply his personal feelings when listening to the evidence. He further stated that Mize was presumed innocent and that he would follow the trial court’s instructions. The trial court did not manifestly abuse its discretion by concluding that Juror Rice was able to lay aside his opinion concerning the Klan and render a verdict based on the evidence presented in court. See
Diaz v. State,
7. Mize complains that the trial court erred by allowing Samantha Doster to testify for the State even though the State failed to include Samantha Doster on its witness list. We disagree. A defendant has a constitutional and statutory right to a list of State witnesses before trial. Ga. Const., Art. I, Sec. I, Par. XIV; OCGA §§ 17-16-3; 17-16-8; USCR 30.3. While Doster was not included on the State’s witness list, this omission does not require a reversal because the purpose of the rule was satisfied. The witness list rule is designed to prevent a defendant from being surprised at trial by a witness that the defendant has not had an opportunity to interview.
Ellis v. State,
8. Mize complains that the prosecutor injected extrinsic and prejudicial matters into the guilt/innocence closing argument that had no basis in the evidence. See
Bell v. State,
We find no error sufficient to overcome Mize’s procedural default. The prosecutor’s Manson analogy was used to illustrate Mize’s control over the NVAP and his criminal liability from ordering Tucker’s murder. “Analogizing a defendant or a defendant’s case to a well-known defendant or case is permissible during argument if the analogy is supported by facts in evidence.”
Carr v. State,
9. Mize complains that the State introduced irrelevant and prejudicial evidence. At trial, the State introduced a flag bearing a marijuana leaf and the slogan “this bud’s for you” that was hanging in Mize and Doster’s home when Mize was arrested there. Pretermit-ting the issue of admissibility, we conclude that any error would be harmless because Doster testified that the flag belonged to her and not to Mize.
10. Mize claims that the trial court erred by allowing the State to display a weapon in the courtroom that was not the murder weapon. The murder weapon was not recovered. During the direct examination of a State witness who testified that he had been at an NVAP meeting where Mize had brandished a single-shot 12-gauge shotgun, the State showed the witness a single-shot 12-gauge shotgun and asked him if it was similar to the weapon that Mize had displayed. This was not improper. “A weapon that was not actually used in the commission of an offense, but which is similar to that which was so used is generally admissible into evidence.”
Boyd v. State,
11. Mize’s trial counsel was not ineffective under
Strickland v. Washington,
12. Mize refused to allow his attorneys to investigate and prepare for a mitigation defense during the sentencing phase of his trial. After the jury reached a guilty verdict, Mize informed the trial court that he had forbidden his lawyers from presenting a mitigation case, against his counsel’s advice. Mize stated that, as a Christian, he believed in an “eye for an eye” and that, since the jury believed him to be guilty of murder, he should receive a death sentence. The trial court ordered a mental evaluation and a competency hearing before the trial could proceed. The psychologist testified that Mize was competent and was making an informed decision, and the trial court allowed the trial to continue. Mize took the stand, against his lawyer’s advice, and asked the jury to return a death sentence. No other evidence was presented by Mize during the sentencing phase. Mize’s lawyer then argued in closing that the State had failed to prove the statutory aggravating circumstances (Mize had tried to prevent his lawyer from arguing on his behalf in the sentencing phase but the trial court had refused to accede to this request). The trial court *656 instructed the jury on all three sentencing options, and charged that they could return a life sentence for any reason or no reason at all.
Mize now complains that it was error to allow him to prevent the introduction of mitigation evidence. We disagree. The record reveals that Mize’s lawyers, despite Mize’s resistance, conducted some investigation of Mize’s background and informed Mize about pursuing a mitigation defense. But the final decision about the defense belonged to Mize.
[A]fter having been informed, the defendant, and not his attorney, makes the ultimate decision about, for example, what line of defense to pursue, [cit.], whether or not to testify in his own behalf, [cit.], whether or not to plead guilty, [cit.], and whether or not to present witnesses in mitigation, [cit.].
Morrison v. State,
In the final analysis, however, the lawyer should always remember that the decision whether to forego legally available objectives or methods because of nonlegal factors is ultimately for the client and not for himself.
The record shows that Mize was competent and understood his decision. See EC 7-12; Morrison, supra. The death sentence in this case is supported by the statutory aggravating circumstances and was not imposed under the influence of passion, prejudice or other arbitrary factor. OCGA § 17-10-35 (c) (1), (2). Accordingly, we find no error.
13. The trial court instructed the jury on life without the possibility of parole: “Mr. Mize would be incarcerated for the remainder of his natural life and would not be eligible for parole unless he is subsequently adjudicated to be innocent of the offense for which he was sentenced.” This jury charge tracked the language of OCGA § 17-10-31.1 (d) (1), and was proper.
Henry v. State,
14. Mize claims that one of the statutory aggravating circumstances found by the jury, OCGA § 17-10-30 (b) (6), is invalid because it applies only to contract killings. OCGA § 17-10-30 (b) (6) states: “The offender caused or directed another to commit murder or committed murder as an agent or employee of another person.” Mize points to
Whittington v. State,
15. Mize complains that the trial court erred by allowing the jury to learn about one of Mize’s prior convictions during the sentencing phase. Mize had four previous felony convictions: robbery (1977), escape (1978), arson (1987), and possession of a firearm by a convicted felon (1987). The trial court ruled that the certified copy of the robbery conviction, which resulted from a guilty plea, was not admissible because the State lacked a transcript of the plea colloquy to prove that the plea was intelligent and voluntary.
Pope v. State,
In
Pope,
this Court held that the State has the burden to prove a valid waiver before a conviction resulting from a guilty plea may be used as aggravating evidence during the sentencing phase. Id. The State must prove that the earlier plea was voluntary and intelligent because “presuming waiver from a silent record is impermissible.”
Boykin v. Alabama,
16. Mize claims that one of his attorneys violated the duty of loyalty and that this conflict of interest requires a new trial. From the beginning, Mize had refused to allow his lawyers to develop mitigation evidence in preparation for the sentencing phase of his trial. Mize’s counsel asked Nancy Mau, an attorney with the MultiCounty Public Defender, to speak with Mize in an attempt to get his social history and to convince him to allow his attorneys to conduct a mitigation defense. Ms. Mau met with Mize and managed to obtain some limited information, but Mize continued to refuse to allow a mitigation defense. At no time did Mau actually represent Mize, and she conducted no investigation on his behalf. She testified that the staff at the MultiCounty Public Defender’s Office frequently serve in an advisory capacity for attorneys representing capital defendants, and she considered herself only an advisor in the Mize case. Later, Ms. Mau met with Samantha Doster, at the request of Doster’s counsel, and she encouraged Doster to keep her lawyer (Doster had threatened to fire her lawyer) and to seek a deal from the State. Doster’s counsel was present for this meeting, and he had informed Mau that he was trying to strike a deal with the State. There was no conflict of interest in Mau meeting both Doster and Mize because
*659
Mau. did not represent either of them, and her role in both cases was very limited. “A theoretical or speculative conflict will not impugn a conviction which is supported by competent evidence.”
Lamb v. State,
17. The death penalty in this case was not imposed under the influence of passion, prejudice or other arbitrary factor. OCGA § 17-10-35 (c) (1). The death sentence is also not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. OCGA § 17-10-35 (c) (3). The cases listed in the Appendix support the imposition of the death penalty in this case as they all involve the (b) (6) or (b) (7) aggravating circumstances.
Judgment affirmed.
Appendix.
Waldrip v. State,
Notes
The crime occurred on October 15 or 16, 1994. Mize was indicted by the Oconee County Grand Jury on January 11, 1995, for malice murder. The State filed a notice of intent to seek the death penalty on March 29, 1995,' and Mize was tried before a jury from December 4-13, 1995, convicted and sentenced to death. Mize filed a motion for new trial on January 4,1996, and an amended motion for new trial on May 20,1996. After a hearing, the amended motion for new trial was denied on August 22, 1996. Mize appealed to this Court, but his original trial counsel withdrew from the case. We remanded to the trial court on November 22, 1996, to consider appointment of new counsel issues. New counsel was appointed on January 30,1997. A motion for new trial following remand was filed on March 3, 1997, amended on June 30, 1997, and supplemented on August 4, 1997. The amended motion for new trial following remand was denied on October 2, 1997, and a second notice of appeal was filed on October 31, 1997. This case was docketed on December 10, 1997, and orally argued on March 9,1998.
Mize did not elect to have OCGA § 17-16-1 et seq. apply to his case. We note, however, that the prosecutor’s notes of his interview with Doster would not have been discoverable under OCGA § 17-16-7 because they were “notes or summaries made by counsel.” OCGA § 17-16-1 (2) (C);
Forehand v. State,