Tommy Lee Waldrip was convicted of the malice murder of Keith Lloyd Evans as well as two counts of felony murder, kidnapping with bodily injury, aggravated battery, five counts of aggravated assault, theft by taking a motor vehicle, arson in the second degree, influencing a witness, concealing a death, possession of a firearm by a convicted felon, and two counts of possession of a firearm during commission of a felony. 1 The jury recommended the death penalty, *740 finding as aggravating circumstances that the murder was committed while the defendant was engaged in the commission of kidnapping with bodily injury or aggravated battery; and that the murder was outrageously wanton, vile, horrible and inhuman in that it involved aggravated battery to the victim. Waldrip appeals his convictions and death sentence. We affirm.
The jury was authorized to find that appellant murdered Keith Evans to prevent Evans from testifying against his son, John Mark Waldrip, at his armed robbery retrial in Forsyth County. Evans, who worked as a clerk in the store at the time of the robbery, testified as the State’s sole eyewitness at John Mark’s first trial in 1990. Although John Mark was convicted in the 1990 trial, the trial court granted his motion for new trial, and he was released on bond pending the retrial. At the time of his death, Evans was scheduled to testify at the retrial.
On Saturday afternoon, two days before the retrial was scheduled to begin, the appellant and his co-indictees, John Mark and appellant’s brother-in-law, Howard Livingston, 2 drove to Cleveland, Georgia and bought a used station wagon for $150, which they returned a half hour later because it was overheating. That evening, John Mark called Robert Garner, 3 who was also scheduled to testify against him at the retrial, and threatened to harm Garner if he testified. At approximately 9:30 p.m. appellant and John Mark left appellant’s apartment in appellant’s wife’s Ford Tempo. Sometime between 10:30 p.m. and midnight, the co-indictees met Evans at a highway crossing in Dawson County. After running Evans’ truck off the road, they shot at him through the windshield. He was hit with birdshot from a shotgun in the face and neck. Since Evans was still alive, the co-indictees drove his truck, with Evans in the passenger seat, to Hugh Stowers Road in Dawson County, where they beat him to death *741 with a blackjack. They buried Evans’ body in a shallow grave in Gilmer County and set his truck on fire.
The fire was reported at approximately 12:30 a.m. Sunday morning. A current insurance card for the Ford Tempo, belonging to appellant’s wife, Linda Waldrip, was found near the burned truck. Appellant was interviewed on Sunday afternoon and denied any involvement in Evans’ disappearance. During the interview, Linda Waldrip was asked for her insurance card for the Ford Tempo, and she produced an expired card. ,
John Mark’s retrial for armed robbery did not take place. On Monday morning, Keith Evans was missing and Garner refused to testify against John Mark. Garner subsequently informed the district attorney of the threats made against him, and John Mark was arrested and charged with influencing a witness.
Appellant was arrested on Tuesday, and on Thursday, confessed to shooting and beating the victim and burning his truck. He then led authorities to the victim’s body, and later, to the shotgun used in the crimes. 4 The following day, appellant gave a conflicting statement, in which he contended that John Mark and Livingston murdered the victim and burned his truck, and that he was merely a bystander. Appellant gave a third statement in which he related that all three of the co-indictees participated in the crimes.
The evidence was sufficient to enáble a rational trier of fact to find appellant guilty of the crimes charged beyond a reasonable doubt.
Jackson v. Virginia,
Competency Trial
Appellant raises seven claims of error relating to his competency trial.
1. The trial court did not abuse its discretion in denying appellant’s second motion for change of venue in the competency trial, based on appellant’s contention that the change of venue from Dawson County to Hall County was insufficient to avoid excessive pretrial publicity. Appellant has not attempted to show there is a substantial likelihood the competency trial was rendered unfair due to pretrial publicity, nor has he established prejudice by individual jurors.
Jones v. State,
2. The trial court did not abuse its broad discretion in limiting the scope of the voir dire at the competency trial by prohibiting questions of a technical or legal nature, or questions which required the jurors to prejudge the case.
McGinnis v. State,
3. Appellant’s contention that the State improperly placed his character in issue during the competency trial by referring to his prior criminal history is without merit. “[T]he issue at a competency trial is whether the defendant at the time of the trial is capable of understanding the nature and object of the proceedings against him and his own condition in reference to such proceedings, and is capable of rendering assistance to his attorney in the defense of his case.”
Black v. State,
The evidence of prior crimes committed by appellant was offered to counter expert testimony that appellant harbored the delusional belief he was being monitored by law enforcement officers, and also to show appellant’s familiarity with the criminal justice system. There was no reference to the facts of these prior offenses, and no testimony by the victims or witnesses of these crimes. We have found such evidence to be admissible to show whether a defendant understood the charges against him.
Brown v. State,
4. Appellant’s contention that the prosecutor misled the jury at the competency trial by asking appellant’s former attorney why she delayed notifying the trial court that appellant required psychiatric treatment has not been preserved for appellate review because appellant failed to renew his motion for mistrial after the trial court issued a curative instruction.
Woodham v. State,
5. Appellant’s contention that the trial court should have sua sponte rebuked the prosecutor and issued a curative instruction under OCGA § 17-8-75, when the psychologist who conducted the court-ordered examination referred to himself as the “judge’s witness” during the competency trial, is without merit. Even assuming appellant’s failure to object did not constitute waiver of this issue, the witness explained that under this Court’s opinion in
Tolbert v. State,
6. Appellant contends that the trial court erred by repeatedly allowing the State to refer to the pending charges against him at the competency trial. See Division 3, supra. Whether appellant understood the nature and gravity of the charges against him was highly relevant to the competency proceeding.
Black v. State,
7. Appellant’s contention that the prosecutor improperly commented on his exercise of his Fifth and Sixth Amendment rights during the competency trial is procedurally defaulted, based on his failure to object to these comments.
Earnest v. State,
Voir Dire
8. Appellant contends that the trial court committed reversible error in failing to excuse prospective jurors Larue Davis, Perry Gant, and Margaret Lynch because of bias.
(a) Appellant argues that Davis should have been excused under
Wainwright v. Witt,
It is the “final distillation” of the prospective juror’s thoughts, and not isolated responses, which determine whether the juror meets the
Witt
standard.
Taylor v. State,
(b) Appellant contends that Davis’ misunderstanding of his parole eligibility
7
impaired her ability to serve as a juror, thus mandating her disqualification. See, e.g.,
Burgess v. State,
(c) Although prospective juror Gant opined that the length of the State’s witness list indicated that appellant was probably guilty, his responses to questions intended to clarify this attitude support the trial court’s conclusion that this assumption did not reflect a fixed opinion which could not be changed by the evidence at trial. See
Foster v. State,
(d) Prospective juror Lynch initially stated that the death penalty was appropriate for murder committed with anger, hatred, or premeditation; however, Lynch later stated, in response to specific questions, that even when these factors were present, she would consider evidence in mitigation and the option of a life sentence.
Foster v. State,
9. Appellant contends that the trial court improperly restricted voir dire because he was not permitted to ask prospective jurors about their understanding of the meaning of a life sentence. Voir dire on this issue is generally not permitted, since a prospective juror’s views on this subject are extraneous to the ability to serve.
Burgess v. State,
The scope of voir dire and the propriety of the particular questions asked should be left to the sound discretion of the trial court.
Spencer v. State,
*746 Guilt Phase
10. Appellant argues that the trial court erred in admitting hearsay testimony by Robert Garner and Thomas Hitchcock under the exception to the hearsay rule for the statements of a co-conspirator. See OCGA § 24-3-5;
Denison v. State,
The State presented evidence at trial that on Saturday evening before the victim’s murder, John Mark called Robert Garner at the Forsyth County jail 8 and threatened him with harm if he testified at John Mark’s armed robbery retrial. At the time of the call, John Mark was at appellant’s apartment. Garner testified that John Mark interrupted the conversation because appellant was talking to him, indicating that appellant was present when the threats were made.
Hitchcock testified that a week before John Mark’s retrial was scheduled to begin, John Mark telephoned him at the Forsyth County jail and asked Hitchcock to notify him when Garner arrived at the jail. Hitchcock stated that he called John Mark several times that week at appellant’s residence.
(a) Appellant contends that the State failed to make a prima facie case that a conspiracy existed to kill Evans. Under OCGA § 24-3-5,
9
the State must make a prima facie showing of the existence of the conspiracy, without regard to the declarations of the co-conspirator, in order to admit his out-of-court declarations.
Copeland v. State,
The trial court admitted the hearsay testimony by Hitchcock and Garner based on the prosecutor’s representation that the State would be introducing appellant’s statement, which had already been ruled admissible, at a later point in the trial. The statement, which revealed that the co-indictees were together prior to the murder and participated in the murder, satisfied the requirement of a prima facie case without regard to the hearsay testimony itself. See, e.g.,
Jones v. State,
(b) Appellant argues that even if he conspired to kill Evans, there was no evidence that he was involved in any conspiracy against
*747
Garner, since it was John Mark who was charged with the crime of attempting to influence Garner. It is unnecessary to prove an express agreement between the parties in order to find the existence of a conspiracy.
Duffy v. State,
The jury could have inferred, from the evidence adduced at trial, that the common design of the co-indictees was to prevent John Mark from being convicted for armed robbery by eliminating material witnesses who would testify against him. Since this would not be accomplished by eliminating only Evans, the conspiracy encompassed John Mark’s threats against Garner.
(c) Appellant contends that admission of John Mark’s out-of-court statements violated his Sixth Amendment right to confrontation, citing
Dutton v. Evans,
*748
(d) Appellant’s contention that testimony by a law enforcement officer, regarding a jailhouse conversation he overheard between appellant and John Mark, was inadmissible as the statement of a co-conspirator, because the conspiracy was terminated after appellant led police to the victim’s body, has not been preserved for review. Appellant expressly waived objection to this testimony at trial. See, e.g.,
Waldrip v. State,
11. Appellant argues that the State improperly placed his character in issue by eliciting testimony from Officer Steve Hawkes that appellant was arrested two days after the victim’s disappearance for violating his probation on a prior unrelated offense. Evidence which incidentally puts character in issue may be admitted if otherwise relevant.
Hayes v. State,
(1994) .
12. Appellant’s contention that the trial court erred by allowing the State to read into the record the victim’s testimony, given at John Mark’s armed robbery trial, because the testimony was hearsay, not falling under any exception to the rule, is waived since he failed to object on this ground at trial.
White v. State,
*749
13. Appellant contends that venue in Dawson County was improper for the crime of concealing the death of another, since the victim was buried in Gilmer County. According to appellant’s statement, the victim died in Dawson County as a result of the beating inflicted by the co-indictees and was then transported in his truck to Gilmer County for burial. The place of burial is not dispositive of venue, since the crime of concealing Evans’ body could also have occurred in the vehicle traveling from Dawson County to Gilmer County. See, e.g.,
Addison v. State,
14. As appellant concedes, the question of whether the instruction on voluntary intoxication was burden-shifting has been decided adversely to him.
Bright v. State,
15. The trial court did not err in admitting autopsy photographs of the victim’s body, since the photographs showed aggravated battery in conjunction with the aggravating circumstances in OCGA § 17-10-30 (b) (2) & (7). The two autopsy photographs were cropped to show only those injuries which did not become apparent until the autopsy.
Carr v. State,
16. Appellant’s contention that one of his two felony murder convictions is improper is moot, since the felony murder convictions stand vacated by operation of OCGA § 16-1-7. See
Malcolm v. State,
*750 17. The State did not violate Brady v. Maryland 11 by failing to disclose GBI reports containing statements by appellant’s son, Paul Waldrip, and the results of lie detector tests administered to Paul. Appellant contends that the reports were material evidence, which could have been used to impeach law enforcement officials by showing that Paul Waldrip was once a suspect in the victim’s murder, tending to prove that Paul Waldrip was the third party at the crime scene rather than the appellant.
For purposes of a
Brady
claim, “ ‘The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ”
Rogers v. State,
The reports containing Paul’s statements do not show that Paul Waldrip had the motive, or opportunity, or was implicated in the crimes by evidence gathered during the police investigation. If appellant believed otherwise, he could have subpoenaed Paul to testify as a witness. Considering the polygraph results and Paul’s statements in the context of the entire record, we conclude there is no reasonable probability that the result of the proceeding would have been different had the evidence been disclosed to the defense prior to trial.
Kyles v. Whitley,
18. The trial court did not err in admitting into evidence an expired automobile insurance card belonging to appellant’s wife, Linda, under the “independent source” exception to the exclusionary rule. See
Nix v. Williams,
The admissibility of the card under the “independent source” exception depends on whether authorities established probable cause to seize the card, either before or after the illegal search, independent
*751
of any facts revealed by the unlawful search.
Murray v. United States,
19. The trial court did not err in denying appellant’s request for additional funds to pay the defense psychologist in the absence of any contention that appellant was denied adequate assistance by this expert. See
Jarrells v. State,
Penalty Phase
20. There is no merit to appellant’s assertion that the trial court’s ruling on an objection made by the prosecutor constituted an improper comment on appellant’s failure to testify. The rule prohibiting expressions of opinion by the trial court as to what has or has not been proved does not extend to colloquies between judge and counsel regarding the admission of evidence. OCGA § 17-8-57;
Adams v. State,
21. Appellant’s contention that the trial court erred in admitting copies of his prior guilty pleas in aggravation during the sentencing phase of the trial is without merit for the following reasons:
(a) Appellant received sufficient notice of the State’s intention to introduce his prior convictions. OCGA § 17-10-2 (a);
Ross v. State,
(b) Copies of the documents relating to these guilty pleas contained sufficient indicia of voluntariness on their face to justify their admission.
Hammond v. State,
(c) Any erroneous statement by the prosecutor regarding the burden of proof required for introduction of the guilty pleas was cured by the trial court’s instruction that the burden of showing that the pleas were knowing and voluntary rests with the State. Pope v. State at 209 (17).
22. The portion of the prosecutor’s argument relating to a prior burglary committed by appellant was based on facts in evidence, since the argument tracked information contained in the indictments of appellant’s prior convictions for burglary and criminal trespass which were admitted into evidence in aggravation of punishment.
*752
Alexander v. State,
23. The aggravating circumstances found in OCGA § 17-10-30 (b) (2) & (7) may both be found by a jury within the same case involving the same victim and facts.
Drane v. State,
24. The evidence supports the jury’s finding that the murder was committed while the appellant was engaged in the commission of kidnapping with bodily injury or aggravated battery, OCGA § 17-10-30 (b) (2); and that the murder was outrageously wanton, vile, horrible, and inhuman in that it involved aggravated battery to the victim, OCGA § 17-10-30 (b) (7). OCGA § 17-10-35 (c) (2).
Death Penalty Issues
25. Appellant argues that his death sentence is disproportionate to the life sentences received by his two co-indictees 12 because there is no supportable version of the facts under which he is the most culpable, and because of his age, history of non-violent behavior, and severe mental illness. OCGA § 17-10-35 (c) (3).
Appellant’s contention that he was merely an abettor is not supported by the evidence, which shows he actively conspired to plan, execute, and conceal an exceptionally brutal crime. Although we have held that the death sentence is disproportionate when a defendant is clearly not the “prime mover” in the crime, in this case there is no certainty on that issue, since appellant gave conflicting versions of the crime to authorities. Compare
Hall v. State,
*753 Appellant contends that under the State’s theory of the case, John Mark Waldrip had the motive and incentive to kill Evans, and therefore appellant and Livingston at most aided and abetted. The State’s theory, which is consistent with evidence presented by appellant that he would go to any length to protect John Mark, including confessing to a murder he did not commit, was that appellant was capable of participating in the murder of the victim to save John Mark from going to prison.
Finally, this is not a case in which the aider and abettor received a death sentence, and the principal was acquitted, or even allowed to plead guilty to a lesser offense. See, e.g.,
White v. State,
26. The death sentence was not imposed as a consequence of passion, prejudice, or other arbitrary factor. OCGA § 17-10-35 (c) (1).
27. The similar cases listed in the Appendix support the imposition of a death sentence in this case. OCGA § 17-10-35 (c) (3).
Judgments affirmed.
Appendix.
Hittson v. State,
Notes
The crimes occurred on April 13, 1991. Appellant was indicted during the February 1991 term of the Dawson County grand jury. The State gave its notice of intent to seek the death penalty on May 20, 1991. This Court granted interim review in this case, and rendered a decision on June 27, 1994.
Livingston v. State,
Following appellant’s convictions, John Mark and Livingston were convicted in separate trials. John Mark’s conviction and life sentence were affirmed on direct appeal. See
Waldrip v. State,
Garner, who drove the car during the armed robbery, did not testify at John Mark’s 1990 armed robbery trial. Shortly before the retrial was scheduled to begin, Garner gave a statement to police implicating himself and John Mark in the armed robbery and agreed to testify against John Mark.
According to this statement, appellant was responsible for all of the crimes against the victim, John Mark was let out of the car and left prior to the shooting, and Livingston, although present, was merely a bystander.
The original motion was made in 1991. Appellant’s competency trial was held in 1995.
Appellant relies on
Brown v. State
for his contention that evidence of prior crimes committed by the defendant is per se inadmissible during a competency trial. In
Brown,
the trial court permitted the victims of prior crimes to testify in order to show that the defendant understood the charges against him.
In response to the trial court’s question asking whether she could impose the death penalty, Davis stated that if a defendant was “guilty without a shadow of a doubt” and had no remorse, she could vote for death, because she did not think that the victim’s family should have to worry about him being released on parole after serving part of his life sentence.
Garner, who was incarcerated elsewhere, had been brought to the Forsyth County jail to await testifying at John Mark’s retrial.
OCGA § 24-3-5 provides: “After the fact of conspiracy is proved, the declarations by one of the conspirators during the pendency of the criminal project shall be admissible against all.”
OCGA § 24-3-5; see also
Chatterton v. State,
The State initially sought the death penalty against both John Mark Waldrip and Howard Livingston. The jury recommended sentencing John Mark to life imprisonment, and the State subsequently withdrew its request for the death penalty against Livingston, who also received a sentence of life imprisonment.