Lead Opinion
A jury convicted Frederick Ramone Whatley of malice murder, aggravated assault (two counts), armed robbery, motor vehicle hijacking, and possession of a firearm during the commission of a crime. The jury recommended death sentences for the murder and armed robbery after finding the following statutory aggravating circumstances: the offense of murder was committed while the defendant was engaged in the commission of an armed robbery, OCGA § 17-10-30 (b) (2); the offense of armed robbery was committed while the defendant was engaged in the commission of a murder, id.; and the offense of murder was committed by a person who has escaped from a place of lawful confinement, id. at (b) (9). The trial court sentenced Whatley to death for malice murder and, after recognizing that a death sentence cannot be imposed for armed robbery (Jarrell v. State,
1. The evidence showed that Whatley entered Roy’s Bait Shop in Griffin at about 8:45 p.m. on January 26, 1995. Whatley brandished a .32 caliber silver revolver and forced employee Tommy Bunn to lie face-down on the floor behind the counter. Whatley pressed the gun against Bunn’s head and instructed the owner of the store, Ed Allen, to hand over the money in the cash register. Allen put money in a paper sack and placed the sack on the counter. Whatley moved to the front of the counter, retrieved the paper sack, and fired two shots. One shot struck Allen in the chest and pierced his left lung. Expert testimony established that this shot was fired from a distance of 18 inches. The second shot was fired at Bunn’s head (Bunn was still lying prone behind the counter), but the bullet deflected off the
Outside the store, Whatley encountered Ray Coursey, who was getting out of his car near the store’s doorway. Whatley held his gun to Coursey’s head, forced him back into the driver’s seat of the car, and told him, “take me . . . where I want to go.” Whatley got in the back seat. Although mortally wounded, Allen obtained a hidden .44 caliber handgun, rushed to the front of the store, and fired several shots at Whatley, who returned fire. After the exchange of gunfire, Allen collapsed and died from internal bleeding caused by the previously-inflicted gunshot wound. Whatley exited Coursey’s car, dropped the paper sack after it tore open, and fled on foot. Coursey observed that Whatley was limping.
Coursey and Bunn told the officers who arrived on the scene that the assailant had used a silver revolver. One of the officers had taken a report the previous day from Franklin White, who said that his silver revolver was missing and he suspected that his cousin, Whatley, had taken it. The officers went to the house where Whatley was staying with a relative, and found him during a consent search. Whatley had a bullet wound in his leg that was still bleeding. Franklin White’s .32 caliber silver revolver, determined by a firearms expert to be the murder weapon, was found under Whatley’s mattress. The police also found a bloody pair of thermal underwear with a bullet hole in the leg, a bloody towel, and bloody boxer shorts in a trash can behind the house. Fibers on a .44 caliber bullet removed from Coursey’s car were consistent with fibers from the thermal underwear, and DNA taken from blood on the fibers matched Whatley. A palm print on the paper sack dropped next to Coursey’s car also matched Whatley. In the penalty phase, the state introduced evidence that Whatley was an escapee from a Washington D.C. halfway house, where he had been serving time for robbery.
The evidence was sufficient to enable a rational trier of fact to find proof beyond a reasonable doubt of Whatley’s guilt of malice murder, aggravated assault (two counts), armed robbery, motor vehicle hijacking, and possession of a firearm during the commission of a crime. Jackson v. Virginia,
2. Whatley claims that the trial court erred by failing to excuse for cause three prospective jurors due to bias. The record shows that Whatley did not move to strike two of these prospective jurors for cause, and the trial court did not err by failing to excuse them sua sponte. Spencer v. State,
3. Whatley claims that three prospective jurors should have been excused for cause because they favored a death sentence. Whatley did not object to the qualification of two of these prospective jurors, and the trial court did not err by failing to excuse them sua sponte. Spencer,
4. A prospective juror stated that she would vote with the other jurors if her views were in the minority. Whatley objected that this juror was too willing to surrender her beliefs to the majority. The trial court stated that the juror may not have understood the question, and elicited from the juror that she would not surrender to a majority if she believed that Whatley was not guilty. The juror also stated that she would not surrender to a death-sentence majority if she believed that life without parole was the appropriate sentence. The trial court did not abuse its discretion in finding that this prospective juror was qualified. McClain v. State,
5. Whatley complains that the state improperly asked prospective jurors on voir dire whether Whatley’s relatively young age (28)
6. Whatley argues that the state used scientific evidence that was inherently unreliable. However, the record shows that all of the state’s experts who testified were properly qualified as expert witnesses by the trial court, and Whatley had no objection to any witness’ qualification. Harper v. State,
7. Whatley complains that a photograph of the murder weapon was erroneously admitted into evidence. However, the actual murder weapon was admitted into evidence without objection, and the introduction of evidence that is cumulative of other evidence presented at trial does not constitute reversible error. See Beene v. State,
8. The trial court did not err by allowing the state to introduce a photograph of the victim in life through the testimony of Tommy Bunn. “The general rule is that it is not error to admit a photograph of the victim while in life.” Ledford v. State,
9. Whatley complains that the state’s closing argument in the guilt-innocence phase was improper. Whatley, however, did not object to any portion of the state’s closing argument. ‘When no timely objection is interposed, the test for reversible error is not simply whether or not the argument is objectionable, or even if it might have contributed to the verdict; the test is whether the improper argument in reasonable probability changed the result of the trial.” Todd v. State,
(a) The trial court charged the jury that Whatley was innocent until proven guilty. Whatley asserts that the trial court should have said “unless” instead of “until.” This contention is without merit. Nash v. State, 225 Ga. App. 10, 11 (3) (
(b) The trial court instructed the jury that if there is a conflict in the evidence, or a conflict between witnesses, “it is your duty to settle that conflict if you can without believing that any witness made a false statement or committed perjury. If you cannot do this, then it becomes your duty to believe that witness or those witnesses you think best entitled to belief.” Whatley complains that this instruction told the jurors to presume that state witnesses were telling the truth. Although this Court has recommended that such a presumption-of-truthfulness charge not be used (Noggle v. State,
(c) Viewed as a whole, the trial court’s charge on reasonable doubt was proper.
(d) Whatley complains about the trial court’s charge on circumstantial evidence. The trial court, however, gave the exact charge on circumstantial evidence requested by Whatley. Even if the charge was incorrect, such invited error is not grounds for reversal. Barnes v. State,
(e) Whatley did not request several charges that he claims the trial court should have given to the jury. Absent a request, the failure to give these charges is not error. See, e.g., Mauldin v. State,
11. Whatley complains that the trial court erred by allowing the state in the sentencing phase to introduce evidence of two incidents as non-statutory aggravating circumstances, without pretrial notice. The first incident involved Whatley asking the police to return to him the money that he had stolen during the armed robbery. The second incident involved Whatley telling a jailer that he hoped that the transfer process from jail to prison did not take long because he was worried about missing the Super Bowl. All aspects of a defendant’s crime, character, and attitude, including evidence of his lack of remorse, is admissible in the sentencing phase. See McMichen v. State,
12. The trial court did not err by sustaining a state hearsay objection in the sentencing phase to the testimony of Whatley’s cousin, Lorraine Goodman. Ms. Goodman began to testify on direct examination about what Whatley had told her concerning his relationship with his mother when he lived in Washington D.C. The state objected that this was hearsay, and the trial court sustained the objection. We find no error. The hearsay rule is not suspended in the sentencing phase, and Whatley made no proffer to enable us to determine if this potential mitigation testimony outweighed the harm from a violation of the hearsay rule. Davis v. State,
13. It is asserted that the prosecutor engaged in improper cross-examination of Whatley in the sentencing phase by repeatedly asking him if other witnesses had lied. See Cargill v. State,
15. Whatley claims that the state’s closing argument in the penalty phase was improper. Whatley did not object to any portion of the state’s argument so he can only prevail if the state’s improper argument in reasonable probability changed the sentencing verdict. Hicks v. State,
(a) Whatley asserts that the state made several statements about the commission of the crimes that are unsupported by the facts in the record. The record reveals that these statements were proper inferences. See Morgan v. State,
(b) Whatley complains that the prosecutor improperly compared him, without any evidence to support the comparison, to other murderers who had an easy time in prison. For example, the prosecutor argued:
Remember Richard Speck, the man who around 1968 killed six nurses in Chicago? That man — some of you may have seen it. They had him on video. He made a video while he was in jail, it was undercover. They found it after he died of natural causes, cause he didn’t get the death penalty. They thought he deserved another chance. And on that film . . . he said, if people knew how much fun I was having, they would turn me loose.
(c) Because Whatley had been convicted of a malice murder committed while he was an escapee from a detention facility, it was a reasonable inference, and therefore a proper argument, that Whatley could harm or kill a prison guard during an escape attempt. See Pye v. State,
(d) Whatley cannot show sufficient prejudice to overcome his procedural default with regard to other arguments he asserts were improper. Hicks, supra.
16. After closing arguments in the penalty phase but before the trial court’s charge, the jury foreman asked the trial court, “Could [life without parole] get commuted at a later date, parole, discharge due to crowded conditions, etcetera?” The trial court conferred with counsel for both parties. Defense counsel told the trial court that the court’s charge answers the question. The trial court agreed and instructed the jury, “I cannot specifically answer that question because I don’t know and nobody else knows what is going to occur in the future. Let me invite your attention to my charge of law.” Whatley did not object to this response, but he now complains that the trial court failed to properly answer the jury’s question about parole eligibility. It is well settled that a party cannot ignore an error at trial, take his chance on a favorable verdict, and later complain about the error on appeal. Dennard,
17. One of the statutory aggravating circumstances found by the jury is invalid. The state sought the death penalty for armed robbery and the jury found that “[t]he offense of. . . armed robbery . . . was committed while the [defendant] was engaged in the commission of another capital felony,” to-wit: murder. OCGA § 17-10-30 (b) (2). A
18. The death sentence 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 involve a deliberate murder during the commission of an armed robbery, or a murder committed by an escapee.
Judgment affirmed.
Notes
The crimes were committed on January 26, 1995. On June 4, 1996, the grand jury indicted Whatley for malice murder, felony murder, aggravated assault (two counts), armed robbery, motor vehicle hijacking, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. The state filed a notice of intent to seek the death penalty on July 3, 1996. The state nolle prossed the charge of possession of a firearm by a convicted felon. Whatley’s trial took place from January 6-16,1997, and the jury acquitted him of felony murder and convicted him of all remaining counts. On January 16, 1997, the jury recommended death sentences for the murder and armed robbery, and the trial court sentenced Whatley to death for murder, life imprisonment for armed robbery, twenty years for each aggravated assault, twenty years for motor vehicle hijacking, and five years for possession of a firearm during the commission of a crime, all sentences to be served consecutively. Whatley filed a motion for new trial on February 3, 1997, amended on April 23, 1998, which the trial court denied on April 23,1998. The case was docketed on May 11,1998, and Whatley filed his notice of appeal the following day. Oral argument took place on July 20, 1998.
Whatley does not complain that he was placed in shackles, only that the jury was permitted to see him that way.
Concurrence Opinion
concurring specially.
I fully concur with all that is said by the majority, except for its reasoning in Division 9.
Because Whatley failed to object to any portion of the State’s closing argument in the guilt-innocence phase, I conclude that he has waived his right to assert error on appeal as to that phase of the trial. See Miller v. State,
Applying the “reasonable probability” standard in this case to the effect that the state’s guilt-innocence phase closing argument may have had on Whatley’s death sentence, I would find no error sufficient to overcome Whatley’s procedural default.
I am authorized to state that Justice Hunstein and Justice Carley join in this special concurrence.
Appendix.
Bishop v. State,