The defendant was indicted on one count of murder and three counts of aggravated assault: the victim in each count being a police officer. He was found guilty on all charges and sentenced to death for the murder and to twenty years on each count of aggravated assault to *699 be served consecutively.
The record establishes that on January 22, 1979, the police stopped the defendant for questioning regarding the burglary of a department store in which several weapons had been taken. It was discovered that he was driving under the influence and without a license, whereupon he was arrested. After being questioned at the police station, the defendant agreed to ask around and find out who was involved in the burglary in exchange for his release upon his own recognizance. As a condition to his release, he was to report back by a certain time. When he did not contact the officer at the appointed time, nor for two days thereafter, the police began to look for him. On January 24, investigator Larry Stevens of the Richmond County Sheriffs Department located the defendant, followed him a short way and then stopped him. When the officer stopped the defendant, he radioed this fact and his location to fellow officers.
After the investigator stopped his automobile, he opened his car door and apparently leaned back to do something with his radio. The defendant fired into the car through the windshield striking investigator Stevens in the right forearm and rendering his right arm below the elbow useless. The police officer managed to get his gun out and fired wild shots through his automobile at the defendant. The defendant fired a second shot striking the officer in the right side. Then the defendant walked to the rear of the investigator’s automobile, turned, raised the weapon up to shoulder height, and fired in a very calm, deliberate manner through the rear window. The round hit the officer in the chest and was almost immediately fatal. The defendant then went to his car and drove off at a high rate of speed. He intended to go to his mother’s house, but stopped on the way at a store to purchase more ammunition. When he approached his mother’s house, authorities were waiting for him, and a high speed pursuit then occurred. This occurred approximately twenty-five minutes after the murder. Officers finally trapped the defendant in a cul-de-sac, and a gun battle with the police then ensued. The defendant maintained that when investigator Stevens stopped him, he exited his automobile with a loaded rifle in order to show the officer that he had recovered some of the guns from the burglary and that as he approached the officer’s car, the officer, for no reason, shot at him at which instance the defendant then opened fire shooting the officer in self-defense.
“Monkey” Warren testified that the defendant and Paul Lewis came to him on the Sunday night before the victim was killed and showed him some guns they wanted to sell him. The defendant showed him a rifle of the same type that killed the victim and when he didn’t want to buy it, the defendant shot through the floor and left.
*700 Enumerations of Error
1. In enumeration of error 1, the appellant contends the trial court erred in overruling his motion to sever the murder count from the aggravated assault counts for trial. The defendant relies on
Dingler v. State,
All the present charges against the defendant arise out of a continuous course of conduct and therefore come within the above quoted standard for joinder of offenses, escape being necessarily a part of the crime. See
Collier v. State,
From the nature of the entire transaction, it would be almost impossible to present to a jury evidence of one of the crimes without also permitting evidence of the other crimes to be introduced, as the murder of the police officer was the probable cause for the chase and the stopping of the defendant which resulted in the shootout.
Owens v. State,
2. In enumerations of error 2 and 6, the appellant contends the trial court erred in overruling defendant’s motion for sequestration of the jury panel during individual voir dire and his renewed motion for the same. The defendant argues that presence of peer pressure, when jurors are questioned in the presence of each other, could result in bias or prejudice, although he cites no incident of actual bias or prejudice.
In
Whitlock v. State,
The defendant does not show an abuse of discretion or any prejudice resulting from the failure to allow individual examination
*701
of the jurors; there is no merit in these enumerations of error.
Messer v. State,
3. In enumeration of error 3, the defendant argues that the trial court erred in overruling his motion to quash the indictment which was premised on the indictment’s listing of three other names for the defendant under “also known as.” The defendant argues that this was done in a deliberate attempt to prejudice the jury into thinking that before them stood, not just a man accused of a serious crime, but a desperado, i.e. one with many aliases. All but one of the listed names were different spellings or abbreviations of the appellant’s names.
A motion to quash is not a proper remedy for striking an alias from an indictment. The defendant should have filed a special plea of misnomer averring that he had never been known by any of the names set out in the indictment.
Andrews v. State,
In the present case, two of the former convictions introduced at the sentencing phase of the defendant’s trial were in the names of two of the aliases listed in the indictment. There is no merit in this enumeration of error.
4. In enumeration of error 4, the appellant contends the trial court erred in overruling his motion for change of venue. In the present case, there were some four articles about the shooting and two editorials and four letters from the public concerning the death penalty as related to the killing of police officers. All of these appeared within a three-week span after the death of the officer, and defendant’s trial was not until one year later. Additionally, there were several news reports on radio and television stations at the time of the occurrence.
Although thirty-four of the forty-six jurors stated that they had either read or heard a news broadcast of the occurrence, none of them thought it would influence their decision in the case.
In
Mooney v. State,
The defendant has failed to show a “ ‘pattern of deep and bitter prejudice’ [created by pre-trial publicity] present throughout the community.” Irvin v. Dowd,
5. In Enumeration of error 5, the defendant contends the trial court erred in overruling his motion for the appointment of an expert witness to examine the State’s evidence. The defendant’s only argument on this issue is that the State’s expert witnesses, being employees of the State Crime Laboratory are under the direction of prosecution.
The defendant has not alleged that he was harmed by the failure to appoint an expert witness nor has he shown how his defense would have been aided by such a witness. The appointment of expert witnesses lies within the sound discretion of the trial court and absent a showing of an abuse of that discretion, this court will not interfere.
Patterson v. State,
6. Defendant, in enumerations of error 7 and 8, contends that the trial court erred in allowing the widow of the victim, following her testimony at trial, to remain in the courtroom. Both the prosecution and the defense sequestered all witnesses.
After the widow of the victim testified, the district attorney requested that she be allowed to remain in the courtroom. Defense counsel objected; upon questioning by the court, however, defense counsel admitted that his objection was not for the purpose of eliciting future testimony from the witness, but to keep her from being seen by the jury. The trial court allowed her to remain in the courtroom but required her to sit in the area furthest from the jury and out of their direct view.
The trial court is vested with broad discretion in the enforcement of the sequestration rule. Dampier v. State, supra, and cites. The rule of sequestration does not prohibit persons from *703 remaining in the courtroom during the proceedings, but merely gives a right to either party to have the witnesses for the other party examined out of the hearing of each other. Code Ann. § 38-1703. Therefore, the trial court did not abuse its discretion in allowing the widow of the victim to remain in the courtroom as she was no longer a witness.
The victim’s wife, on direct examination by the State, was asked the usual preliminary questions as to marriage, children and employment. The appellant argues that the testimony of the witness was elicited for the sole purpose of playing on the sympathy and prejudice of the jury. We do not agree. The witness identified the coat and shirt of the victim and testified that the victim was righthanded, a crucial part of the State’s case. Her testimony was relevant and admissible.
Solomon v. State,
7. Defendant’s ninth and tenth enumerations of error contend the trial court erred in admitting two statements given by the defendant. The first statement of the defendant was made to the officer who was transporting him to the Sheriff’s office. The defendant told the officer that the victim was a “no good son-of-a-bitch and should have had it happen to him a long time ago.” After a hearing, the court found that the officer had not initiated any interrogation of the defendant, but that the incriminating statement was spontaneous and therefore admissible. “The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona,
The second statement was made after being given his Miranda warnings, and defendant acknowledged that he understood these rights. The defendant argues that even though this is true, the statement is inadmissible because his mother had retained an attorney; the attorney had called the jail looking for the defendant, *704 and the jailer informed the attorney that the defendant had not been logged into the jail. There is no evidence that the jailer knew the whereabouts of the defendant who was being interrogated at the Sheriffs office. The attorney then told the jailer to inform the defendant not to make any statements until he had consulted with him. By virtue of these event's, the appellant contends that the statement was inadmissible although the interrogating officers had no knowledge of these events.
The rights guaranteed under the Fifth and Sixth Amendments are personal. The defendant having chosen to waive his rights (and there being no misconduct on the part of the investigating officers), the trial court did not err in admitting these statements.
Hance v. State,
8. In enumeration of error 11, the defendant contends the trial court erred in failing to give his request to Charge No. 2. Defendant requested a charge that the aggravated assaults on the three police officers were justified if the officers placed him in reasonable apprehension of immediately receiving a violent injury.
The charge is to be considered as a whole, and where the charge covers the subject matter of the request, it is not error although not in the exact language of the request.
Hawes v. State,
9. In his twelfth enumeration of error, the defendant contends the trial court erred in failing to charge his request to Charge No. 3. Defendant’s request was taken from the language of
Harrell v. State,
*705
This court considered this same contention in
Terry v. State,
In the instant case, the defendant’s incriminating statements are not consistent with the physical facts. The victim was shot three times with a high-powered rifle, and therefore, his claim of self-defense could be rejected.
Jenkins v. State,
supra;
Smith v. State,
10. In enumerations of error 13 and 14, the defendant contends the trial court erred in failing to give two requested charges on involuntary manslaughter. The defendant argues that he used excessive force in the act of self-defense and thus was entitled to a charge on a lawful act performed in an unlawful manner. This argument was raised and rejected in
Crawford v. State,
11. In enumeration of error 15, the defendant contends the trial court erred in failing to give his request to charge on simple assault as a lesser included offense of aggravated assault. There is no evidence in this case that would require a charge on the lesser included offense of simple assault. There is no merit in this enumeration of error.
12. In enumeration of error 16, the defendant contends the trial court erred in charging that malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart. The defendant contends this is a burden-shifting charge in violation of the constitutional standards set forth in Sandstrom v. Montana,
*706
This same argument was made in
Tucker v. State,
13. The defendant, in his seventeenth enumeration of error, argues that the trial court erred in charging Code Ann. § 26-902 (b). This Code section involves self-defense and subsection (b) contains the negative or exception to the self-defense theory.
“It is not usually cause for a new trial that an entire Code section is given.
Ford v. State,
14. In enumeration of error 19, the defendant contends the trial court erred in allowing evidence of prior non-capital convictions at the sentencing phase of his trial. The defendant argues that although this court has consistently held that prior convictions can be admitted at the sentencing phase of a murder trial, these cases should be overruled.
If the defendant had no prior criminal record, he would certainly want this fact in evidence, and the State should be allowed the same consideration in presenting its case. See,
Hughes v. State,
15. In enumerations of error 20, 21, 22 and 23, the defendant contends the trial court erred in its charges on aggravating circumstances and in recharging a portion after objection by defendant. The court charged three aggravating circumstances: that the murder was committed to prevent a lawful arrest; that the murder was committed against a police officer engaged in the performance of his duties; and, that the murder was outrageously and wantonly vile, horrible and inhuman, in that it involved torture and depravity of mind.
The defense counsel objected to the use of the word torture, and the trial court recharged omitting this word; therefore, counsel *707 cannot now complain. Nor was the recharge an impermissible expression of the trial court’s opinion as to the evidence. Finney v. State, supra. The aggravating circumstances contended by the State form the issue to be tried during the punishment phase of the trial of a capital felony. Code Ann. § 27-2534.1 (b) (1-10). The court properly charged the contentions of the State, and there is no merit in these enumerations of error.
16. In enumerations of error 25 and 27, the defendant contends the trial court expressed an opinion in ruling on an objection to a question asked defendant on cross examination and in questioning witnesses. “It was not error for the trial judge to refer to the testimony in deciding the objections raised in this case and it was clear that the trial judge was not expressing an opinion but ruling on the objections made. [Cits.]”
Wright v. State,
17. This court and the Supreme Court of the United States have upheld the constitutionality of the Georgia death penalty statute in a number of cases, and the appellant has advanced no new reason for us to reconsider our position. Gregg v. Georgia,
18. In enumerations of error 28, 29, 30, 31, 32 and 33, the defendant contends the trial court erred in failing to charge seven requests to charge at the sentencing phase of defendant’s trial. Each request to charge contained some fact or circumstance in evidence and instructed the jury that it could be considered in mitigation.
Similar contentions were presented in
Spivey v. State,
*708
19. In enumerations of error 34, 35, 36, 37, 38 and 39, the defendant contends the trial court erred in excusing six prospective jurors for cause under Witherspoon. Each juror answered unequivocally that he or she was opposed to capital punishment and could not vote for the death penalty regardless of the evidence presented in the case. Although counsel for defendant attempted to rehabilitate these jurors by informing them that they were not required to return a verdict of death, in the final analysis, each said that he or she could not impose a sentence of death. We find no merit in these enumerations of error. See,
Ruffin v. State,
20. In enumerations of error 40, 41 and 42, defendant raises general grounds. We have reviewed the entire record in this case and find the evidence sufficient to support the finding of the jury beyond a reasonable doubt. Jackson v. Virginia,
Sentence Review
As required by Georgia law (1973) p. 159 et. seq., (Code Ann. § 27-2537 (c) (1-3)) we have reviewed the death sentence in this case. We have considered the aggravating circumstances found by the jury, and the evidence concerning the crime and the defendant. We conclude that the sentence of death in this case was not imposed under the influence of passion, prejudice or any arbitrary factor.
The jury found the following aggravating circumstances to exist beyond a reasonable doubt: (1) § 27-2534.1 (b) (7) — The offense of murder was outrageously and wantonly vile, horrible and inhuman, in that it involved depravity of mind; (2) § 27-2534.1 (b) (10) — The murder was committed for the purpose of preventing the lawful arrest of the offender; (3) § 27-2534.1 (b) (8) — The offense of murder was committed against a peace officer while he was engaged in the performance of his official duties.
Although, for reasons noted below, we reverse the first and second aggravating circumstances found by the jury, we find that the evidence factually supports a finding beyond a reasonable doubt that the offense of murder was committed against a peace officer while he was engaged in the performance of his official duties. Jackson v. Virginia,
The State introduced evidence that the officer was on duty at the time of the murder, that he was investigating a burglary, and that he was stopping the defendant based upon the defendant’s agreement that he would provide information as to the burglary and the arms taken therein as a condition for his release upon his own *709 recognizance.
“Where two or more statutory aggravating circumstances are found by the jury, the failure of one circumstance, or in this case two, does not taint the proceedings so as to invalidate the other aggravating circumstance found and the sentence of death based thereon.”
Burger v. State,
Accordingly, we affirm the imposition of the death penalty in the present case.
21. The trial court in its charge to the jury during the sentencing phase of the trial instructed the jury as to Code Ann. § 27-2534.1 (b) (7) in the following manner: “The offense of murder was outrageously and wantonly vile, horrible and inhuman in that it involved depravity of mind.” The jury, after a time of deliberation, requested the court to define “depravity.” The trial court answered the jury’s question by instructing them that the charge was complete in itself.
Appellant argues that the trial court erred in failing to define “depravity” when requested to do so by the jury, citing Godfrey v. Georgia,
22. The State did not prove a technically lawful arrest of the offender beyond a reasonable doubt.
23. The charge of court complied with standards set forth in
Spivey v. State, 241
Ga. 477 (
24. Finally, defendant argues the trial court erred in refusing to allow Dr. Phillip Reichel to testify as an expert witness on the subject of the nondeterrent effect of capital punishment on crime. This issue has been raised before and decided adversely to defendant’s position.
Franklin v. State,
The murder was an execution-style slaying of a police officer engaged in the performance of his official duties. The fatal shot was deliberate and inflicted only after the officer was lying helplessly in his automobile, seriously wounded. In reviewing the death penalty in *710 this case, we have considered the cases appealed to this court since January 1, 1970, in which a death or life sentence was imposed.
We find the following similar cases listed in the appendix support the affirmance of the death penalty. Defendant’s sentence to death for murder is not excessive or disproportionate to the penalty imposed in similar cases considering the crime and the defendant.
The twelve cases in which the death penalty was imposed supports the death penalty in the instant case. All of these cases except Jones (it involved the killing of a security guard) involved the deliberate killing of a police officer thus showing a jury’s willingness to give the death penalty under these circumstances.
Judgment affirmed.
Appendix.
Johnson v. State,