Lead Opinion
A jury сonvicted Lyndon Fitzgerald Pace of four counts of malice murder, four counts of felony murder, four counts of rape, and two counts of aggravated sodomy. The jury recommended a death sentence for each malice murder conviction after finding beyond a reasonable doubt the existence of 19 statutory aggravating circumstances. OCGA § 17-10-30 (b) (2), (7). Pace appeals and we affirm.
1. The evidence adduced at trial shows that four women were murdered in their Atlanta homes in 1988 and 1989. On August 28, Í988, a roommate found the nude body of 86-year-old Lula Bell McAfee lying face-down on her bed. She had been sexually assaulted and strangled to death with a strip of cloth. On September 10, 1988, Mattie Mae McLendon, 78 years old, was found lying dead on her bed covered by a sheet. She had been sexually assaulted and strangled to death. No ligature was found. On February 4,1989, the police discovered the body of 79-year-old Johnnie Mae Martin lying on her bed nude from the waist down. She had been sexually assaulted and
The police determined that the killer entered each victim’s home by climbing through a window. Each attack occurred in the early morning hours. Vaginal lacerations and the presence of semen indicated that the victims had been raped and two of the women had been anally sodomized. The medical examiner removed spermatozoa from each victim and sent the samples to the FBI lab. DNA testing revealed the same DNA profile for each sperm sample, indicating a common perpetrator.
At 3:00 a.m. on September 24, 1992, 69-year-old Sarah Grogan confronted an intruder in her kitchen. She managed to obtain her gun and fire a shot which forced him to flee. The police discovered that the intruder entered Ms. Grogan’s house by climbing through a window. A crime scene technician lifted fingerprints from Ms. Grogan’s kitchen. At 2:00 a.m. on September 30, 1992, Susie Sublett, an elderly womаn who lived alone, awoke to discover an intruder taking money from her purse in her bedroom. Although the intruder was armed and threatened to “blow [her] brains out,” she fought with him and managed to flee to a neighbor’s house. The neighbor called the police. The police determined that the intruder entered Ms. Sublett’s house by climbing through a window. A crime scene technician lifted fingerprints from Ms. Sublett’s window screen.
The fingerprints from the Sublett and Grogan crime scenes matched Pace’s fingerprints, which were already on file with the police. Pace was arrested and agreed to give hair and blood samples to the police. Pace’s pubic hair was consistent with a pubic hair found on the sweat pants Annie Kate Britt wore on the night she was murdered, and with a pubic hair found on a sheet near Johnnie Mae Martin’s body. A DNA expert also determined that Pace’s DNA profile matched the DNA profile taken from the sperm in the McAfee, Martin, McLendon, and Britt murders. The expert testified that the probability of a coincidental match of this DNA profilе is one in 500 million in the McAfee, Martin, and Britt cases, and one in 150 million in the McLendon case.
The evidence was sufficient to enable a rational trier of fact to find beyond a reasonable doubt proof of Pace’s guilt of four counts of malice murder, four counts of felony murder, four counts of rape, and two counts of aggravated sodomy. Jackson v. Virginia,
2. Pace was arrested for the crimes against Ms. Sublett on October 2, 1992. At that time, the police were investigating the September 1992 murder of an elderly woman named Mary Hudson that they believed might be connected to the murders of McAfee, McLendon, Martin, and Britt. Because of the similarities between the Sublett robbery and the Hudson murder, the police sought Pace’s consent to obtain hair and blood samples. The consent form that Pace signed states, in part: “I fully understand that these hair and bodily fluid samples are to be used against me in a court of law and I am in agreement to give these hair samples for further use in this particular investigation.” The form further stated that Pace was a suspect in a murder which occurred on September 17 and the “name of the murder victim in this case is Mary Hudson.” There was no mention of the other four murders. The FBI and GBI crime labs were subsequently unable to match Pace’s DNA or hair to any evidence from the Hudson murder, but were able to obtain matches with evidence from the McAfee, McLendon, Martin, and Britt cases.
Pace claims that he did not voluntarily consent to the drawing of his blood and the collection of his hair for use in the investigation of the four murders for which he was convicted. He argues that the police exceeded the bounds of his consent by using his blood and hair in investigations of murders other than the Hudson murder, and that the police obtained his consent through deceit because he believed that his hair and blood would be used only in the Hudson investigation. See State v. Long,
Pace’s situation is distinguishable from an implied consent case.
Additional evidence at the suppression hearing shows that when Paсe gave his consent he was 28 years old, was advised of and waived his rights, was not coerced or threatened, was not under the influence of drugs or alcohol, and was not handcuffed. The evidence does not support Pace’s claim that there was deceit involved in obtaining his consent. Upon viewing the totality of the circumstances, we conclude that the trial court did not err in finding Pace’s consent to be voluntary. See Raulerson v. State,
3. The trial court did not abuse its discretion by denying Pace’s motion to sever the murder counts.
Two or more offenses may be joined in one charge when the offenses are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan and where it would be almost impossible to present to a jury evidence of one of the crimes without permitting evidence of the other.
Bright v. State,
4. The State is permitted to charge a defendant with malice murder and felony murder for the same homicide and proceed to trial and obtain convictions on both murder counts. Malcolm v. State,
5. Pace claims that the trial court failed to grant an order limiting conversations between the bailiffs and the jury. However, there is no allegation of any improper conduct between the bailiffs and the jury. Therefore, this contention presents no error.
6. Pace argues that 27 of his pretrial motions were denied without an evidentiary hearing, and that the failure of the trial court to hold an evidentiary hearing on each motion abridged his “right to be heard.” The record shows that Pace was allowed to file any motions he desired accompanied by supporting briefs. The trial court also held hearings at which Pace’s counsel was afforded the opportunity to argue each motion. Contrary to Pace’s assertion, the trial court is not required by the Unified Appeal Procedure to hold an evidentiary hearing on every motion but is required to hold a hearing where each motion previously filed is heard. Unified Appeal Procedure Rule II (B). The trial court complied with the Unified Appeal Procedure and Pace was given the opportunity to be heard on every motion. Also, Pace could have made an evidentiary proffer with regard to each motion and did make proffers for some of these motions. See Mincey v. State,
7. “The death qualification of prospective jurors is not unconstitutional.” Cromartie v. State,
8. The trial court did not err by failing to excuse several prospective jurors for cause due to exposure to pretrial рublicity and alleged bias against Pace. “ ‘In order to disqualify a juror for cause, it must be established that the juror’s opinion was so fixed and definite that it would not be changed by the evidence or the charge of the court upon the evidence.’ ” DeYoung v. State,
9. Pace claims that the trial court erred by excusing four prospective jurors for cause. Prospective jurors Williams and Oldham knew Pace when he was a boy, could not be impartial, and could never vote for the death penalty. The trial court was authorized to excuse them for cause. Wainwright,
10. Pace contends that the trial court erred by failing to excuse for cause two prospective jurors with ties to law enforcement. Prospective juror Gholston was a corrections officer and prospective juror Jester was a security guard who had applied to join the Atlanta Police Department. However, since neither prospectivе juror was a sworn police officer with arrest power, they were not subject to an excusal for cause on this basis. Barnes v. State,
11. Pace claims that the State improperly struck female prospective jurors based on their gender. J.E.B. v. Alabama,
12. Bruce Harvey, a well-known attorney, was one of the lawyers representing Pace at trial. During general voir dire of all the prospective jurors, the trial court asked if anyone had formed or expressed an opinion regarding Pace’s guilt or innocence. A juror responded in a manner that Pace claims should have disqualified the entire panel. The colloquy went as follows:
TRIAL COURT: Just have a seat and we’ll come back to you. Anyone else?
PROSPECTIVE JUROR: Juror number 7.
TRIAL COURT: You have formed and expressed an opinion?
PROSPECTIVE JUROR: When I saw Mr. Harvey in the room, I said most of his clients —
*836 TRIAL COURT: No. I just wanted to know have you expressed an opinion?
PROSPECTIVE JUROR: Yes, I have.
Pace moved to disqualify the entire panel based on these remarks, but the trial court denied the motion. We conclude that Pace shows no harm from this ruling because the prospective juror was stopped before she said anything prejudiciаl, if she was planning to say anything prejudicial. See Robinson v. State,
13. Contrary to Pace’s assertion, the trial court did not tell the prospective jurors that they were expected to convict Pace and proceed to the second phase of the trial. Informing prospective jurors that death penalty trials are conducted in two phases, with the second phase conditional on a guilty verdict in the first phase, is not improper.
14. The trial court did not abuse its discretion by refusing to permit Pace to question prospective jurors about bumper stickers they had on their cars. Alderman v. State,
15. Pace was not denied a fair trial by the trial сourt’s refusal to pay the child care costs of prospective jurors who were primary caregivers. McMichen v. State,
16. Pace claims the trial court erred by excusing for cause 19 prospective jurors because they would never vote to impose the death penalty for religious reasons. He contends that the removal of a juror due to religious opposition to the death penalty violates the State and Federal Constitutions. This argument has been decided adversely to Pace. Cromartie v. State, supra. “The standard for excusing a prospective juror based upon the prospective juror’s views on the death penalty dráws no religious or secular distinction.” Id. The record shows that the trial court did not erroneously excuse any prospective jurors who were biased against the death penalty. See Wainwright,
17. Pace claims that the State failed to provide exculpatory evidence to him in violation of Brady v. Maryland,
After receiving the report, Pace moved for a mistrial on Brady grounds. Pace claimed that some of the information in the report was exculpatory and that the report differed significantly from the medical examiner’s testimony. The report contains information supposedly рrovided by medical examiners that two of the women had been vaginally penetrated by an object other than a penis (possibly a hand) and that the anal sodomy had occurred postmortem. Pace also moved to strike the medical examiner’s testimony and withdraw his stipulation. Pace moved for a continuance to contact the authors of the report, which was granted.
The record shows that the medical examiners who performed the autopsies and the GBI agents who authored the report were contacted. The medical examiners denied supplying any reports to law enforcement personnel in addition to the autopsy reports, which were provided to Pace before trial. They maintained that they had never said the victims were not raped. One of the GBI agents who authored the report said there was nothing in his notes indicating that he had spoken with the medical examiners. In addition, the transcript of the medical examiner’s trial testimony shows that he did in fact testify before the jury that anal trauma to one of the victims probably occurred postmortem. The trial court ruled that Pace had obtained all the information regarding the report and denied the motions for a further continuance, a strike of the medical examiner’s testimony, and a mistrial. The State had not rested in the guilt-innocence phase, and the trial court informed Pace that he could recall the medical examiner for additional cross-examination. Pace declined.
We find no error with the trial court’s rulings regarding the psychological profile. The information that Pace alleges was exculpatory (the possibility that the vaginal penetration of two of the victims was by an object other than a penis and that the anal sodomy had been postmortem) was in the report provided to Pace during the trial when he could still have used it to cross-examine the medical examiner. See Dennard v. State,
18. Several times during the guilt-innocence phase, Pace attempted to cross-examine witnesses about other suspects in the murders and the trial court sustained the State’s objections to the questions. Pace claims the repeated interference with defense questioning about other suspects violated his right to a fair trial. A defendant is entitled to introduce relevant and admissible testimony tending to show that someone else committed the crimes for which he is being tried. Klinect v. State,
19. The burglaries of Ms. Sublett’s and Ms. Grogan’s homes were properly admitted as similar transactions to show identity, scheme, and course of conduct. See Freeman v. State,
20. Pace’s claim that a State’s witness provided false testimony is without merit. A police detective testified that Pace was arrested pursuant to an arrest warrant for the murder of Ms. McAfee. After Pace objected, the witness corrected himself and stated that Pace was
21. Pace argues two errors with regard to the State’s use of hair comparison evidence.
(a) Denial of the motion for continuance. At a hearing in September 1995, a prosecutor stated that he would not introduce hair comparison evidence. However, on January 19, 1996, three days before the start of trial, the State served a copy of a Crime Lab report on Pace showing that Pace’s pubic hair was microscopically similar to pubic hairs found at two of the murder scenes. Pace moved for a continuance to prepare to counter this evidence. The prosecutor stated that he had wanted the Crime Lab to examine the hairs much earlier, but that the Crime Lab had refused because it was their policy not to further test “trace evidence” when they already had a DNA match. The prosecutor managed to prevail on the Crime Lab to conduct the hair testing in January 1996, and the prosecutor gave the report to the defense as soon as it was received. The trial court denied Pace’s motion for a continuance after noting that voir dire was expected to last four-six weeks (the guilt-innocence phase did not start until February 20). The trial court also stated that it would provide funds for Pace to hire his own hair comparison expert, require the Crime Lab’s microanalyst to meet with the defense ex parte, and conduct a separate hearing during the trial to allow the defense to question the Crime Lab’s microanalyst about the rеliability of hair comparison evidence before it was admitted. We find no error. The remedy for late notice of a scientific report is a continuance at the trial court’s discretion. See OCGA § 17-8-22; Wade v. State,
(b) The scientific reliability of hair comparison evidence. Pace claims that hair comparison evidence does not satisfy a constitutional standard of reliability to permit its admission in this case. See Harper v. State,
22. We find no error in the denial of several of Pace’s requests to charge in both phases of the trial. The trial court is not required to identify specific mitigating circumstances in its sentencing phase jury charge as long as the jury is charged that it could return a life sentence for any reason or no reason. See Jenkins v. State,
23. The guilt-innocence phase jury charge on the consideration of hair comparison and DNA evidence was not improper. OCGA § 24-4-6. During the guilt-innocence phase deliberations, the jury requested a recharge on the definitions of robbery and burglary, which were underlying felonies for the felony murder counts, and the trial court complied. Pace claims that the recharge unduly emphasized robbery and burglary because the trial court did not re-instruct the jury that these were only supporting felonies for felony murder. We find no error. See Williams v. State,
24. The FBI DNA analyst was properly qualified as a forensic DNA analysis expert. See Carr,
25. Photographs of the crime scenes and the victims were relevant and admissible. See Jenkins,
26. The State did not need to prove a chain of custody for Ms. Britt’s sweat pants and a pillow that were admitted into evidence
27. The State’s closing argument in the guilt-innocence phase was not reversible error. See Conner v. State,
28. An investigator for the medical examiner’s office testified that he transported some evidence from the murders to the Crime Lab in a sealed paper bag. However, he could not remember to whom he delivered the bag at the Crime Lab, and the trial court allowed the State to refresh his memory with a Crime Lab report generated in 1996. Pace claims that this was error because the document was created seven years after the investigator delivered the evidence. We
29. There is no fatal variance resulting from the indictment alleging that Pace choked Ms. McAfee to death with his hands and the evidence at trial showing that she was choked with a ligature. See Battles v. State,
30. In the sentencing phase, Pace presented Mary Booker, a family friend, who testified that she had received several inspiring letters from Pace while he was in jail awaiting trial. One of the letters was admitted into evidence; Ms. Booker said that she had thrown out the other letters. When Pace’s counsel asked her what was in the letters she had thrown out, the State objected on hearsay grounds. The trial court sustained the objection. Pace claims that the trial court erred because the rules of evidence are relaxed in the sentencing phase of a capital trial. See Barnes,
31. In the sentencing phase, the admission of non-statutory aggravating evidence about several previous burglaries and other offenses committed by Pace was not error. Jefferson v. State,
32. Pace complains that several parts of the prosecutor’s sentencing phase closing argument were reversible error.
(a) Use of a cartoon. The prosecutor used a cartoon as a visual aid during his argument. The cartoon depicted a jury returning a verdict of “not guilty by reason of insanity, ethnic rage, sexual abuse, you name it.” The prosecutor argued, with regard to the cartoon, that Pace was going to use his upbringing to claim that “it’s everybody else’s fault that he turned into a serial killer but his own.” The prosecutor told the jury “not to go for that.” Pace objected that the cartoon
(b) Comparison to other serial killers. The prosecutor compared Pace to-serial killers like Bundy and Dahmer when arguing that the families of these serial killers would have also said nice things about them when they were children. Under these circumstances, this is not an improper argument. See Robinson v. State,
(c) Intent to rape a girl. The State presented aggravating evidence that Pace had previously broken into a home and, armed with a knife, told a 15-year-old girl to take her clothes off. No sexual assault occurred beсause the girl faked an asthma attack. It was a reasonable inference that he intended to rape her. See Todd,
(d) Easy life in prison. The State’s argument that Pace should not be spared so he could get free room and board and a television in prison is not improper. See Williams v. State,
(e) Comment on Pace’s right to silence. The prosecutor frequently-asked mitigation witnesses who had spoken or corresponded with Pace after his arrest whether he had ever expressed remorse or said he was sorry. The prosecutor then argued in closing that Pace had never repented or said he was sorry. Pace objected, but the trial court found that this argument was not a comment on Pace’s right to remain silent. Under these circumstances, we conclude that the trial court did not err. See Ledford v. State,
(f) Deterrence. It was not improper for the prosecutor to argue that a death sentence would “send a message” and deter other killers. See McClain v. State,
(g) Religious reference. The prosecutor told the jury that he anticipated that Pace’s counsel would tell a New Testament parable about forgiveness and mercy, and he argued that there should not be forgiveness unless there is remorse. The prosecutor also stated in a different part of his argument that some of the jurors had said they believed in an “eye for an eye” during voir dire and that the State was now asking for an eye for an eye. Pace did not object to any religious references by the prosecutor, and the prosecutor did not argue that divine law called for a death sentence. The religious references in this case do not rise to the level of the inflammatory argument made in Hammond v. State,
(h) Putting jury in the victims’ shoes. The prosecutor told the jury to “imagine being asleep, and you wake up to hands tearing off your clothes. You wake up to hands grappling your body. . . . Something is tied around your neck and you are strangled.” It is well settled that it is improper to ask the jury to imagine themselves in the victim’s place. See Greene v. State,
(i) Simulated tearing of a Georgia law book. At the conclusion of his argument, the prosecutor picked up a book, apparently Title 17 of the Official Code of Georgia Annotated, and said: “This is a Georgia law book which has the punishments and the crimes in it. If based on the evidence in this case, you don’t return a death penalty verdict, you have snatched that section of the book about the death penalty out.” The prosecutor then simulated tearing out a section of the book.
33. The trial court’s sentencing phase jury charge was not improper. OCGA § 17-10-30 (b) (2), (4), (7); West v. State,
34. Life imprisonment without parole was not a sentencing option at Pace’s trial. OCGA § 17-10-16 (a). Therefore, it was not error for the trial court to prevent Pace from asking questions about parole during voir dire, Burgess v. State,
35. Evidence on the nature of execution by electrocution is not admissible in the sentencing phase. Smith,
36. Although the prosecutor made several improper comments during closing argument in both phases of the trial, we conclude, given the overwhelming evidence of Pace’s guilt and the enormous amount of evidence in aggravation, that the death sentences in his case were not imposed under the influence of passion, prejudice, or
Judgment affirmed.
Notes
Pace was indicted on June 22, 1993, for malice murder (four counts), felony murder (four counts), rape (four counts), and aggravated sodomy (two counts). The State filed a notice to seek the death penalty on August 13,1993. Pace’s trial took place from January 22 to March 7, 1996. Pace was convicted of all counts on March 5, 1996, and the jury recommended four death sentences for the malice murder convictions on March 7, 1996. In addition to the death sentences, the trial court sentenced Pace to six consecutive life sentences for the rape and aggravated sodomy convictions. The felony murder convictions were vacated by operation of law. Malcolm v. State,
The expert obtained six-probe matches in the McAfee, Martin, and Britt cases, and a four-probe match in the McLendon case.
The 27 pretrial motions decided without an evidentiary hearing include: a motion to bar execution by electrocution, several motions challenging the constitutionality of the death penalty, a motion to require the district attorney to respond to Pace’s motions in writing, a motion to require the judge to reveal any basis for recusal, a motion to remove the Georgia flag from the courtroom, a motion to bar victim-impact evidence, a motion to make the Georgia statutes providing for victim-impact evidence non-retroactive, a motion to pay current wages and day care costs to jurors who are primary caregivers, motions to strike the murder, rape and aggravated sodomy statutes as unconstitutional, and a motion to make the jurors’ notes part of the record.
Dissenting Opinion
dissenting in part.
Now, come with me to that scene of the crime. Imagine that night. Ms. McAfee is laying in bed asleep. She is violently awakened by somebody standing ovеr her. Somebody grabbing at her. If you could imagine being asleep, and you wake up to hands tearing off your clothes. You wake up to hands grappling your body. And just as you wake up and realize what’s going on, your clothes are ripped from you. Something is tied around your neck, and you áre strangled.
This is the argument the prosecution used to persuade the jury to sentence Pace to death. The prosecutor did not stop with Ms. McAfee but continued this argument when he invited the jury to imagine themselves in the place of the next victim:
So come with me and think about [the next] crime scene. How would you feel in Ms. McClendon’s situation? Again, to wake up with some man standing up over you choking the life out of you and pulling on your clothes.
Where, as here, no objection was made to the prosecutor’s golden rule argument, this Court must “determine whether there is a reasonable probability the improper argument changed the outcome of the sentencing proceeding. [Cit.]” Carr v. State,
In order to determine whether there is a reasonable probability that, but for an improper argument, a death verdict would not have been given, the reviewing court must evaluate the improper remarks in the context of the entire proceeding. Brooks v. Kemp, 762 F2d 1383, 1413 (V) (11th Cir. 1985). In this case, the prosecutor deliber
The prosecutor’s golden rule argument was dramatic in its details and was uttered for the purpose of prejudicing the jury against exercising mercy in its sentencing decision. See OCGA § 17-10-35 (c) (1). While I support giving prosecutors wide latitude in their choice of style, tactics and language used in closing argument, Georgia law clearly prohibits prosecutors from urging jurors to imagine themselves in the victim’s place. “Wide latitude” does not justify the prosecutor’s impermissible use of the golden rule argument under the facts of this case.
Based on the State’s deliberate and extensive introduction of a prohibited argument into the closing of Pace’s capital sentencing hearing, the absence of any factors to mitigate that impermissible argument, and indicators that the evidence of Pace’s guilt did not automatically predispose the jury to consider only a death sentence, I would hold that the prosecutor’s use of the golden rule argument here undermined confidence in the outcome of the sentencing proceeding, i.e., that there is a “‘reasonable probability that the improper arguments changed the jury’s exercise of discretion in choosing between life imprisonment or death.’ [Cit.]” Ford, supra,
I am authorized to state that Presiding Justice Fletcher joins this dissent.
Appendix.
Gulley v. State,
Concurrence Opinion
concurring in part and dissenting in part.
I concur in the majority’s affirmance of appellant’s adjudication of guilt. However, for the reasons explained in my partial concurrence and partial dissent in Wilson v. State,
In all capital cases, this Court is obligated to undertake a sua sponte review of the death sentence to determine, among other things, whether the penalty is excessive. OCGA § 17-10-35. “This penalty question is one of cruel and unusual punishment, and is for the court to decide” in all cases. Blake v. State,