Lewis v. State

• Decision Date: 20 January 2004
• Docket Number: No. S03P1825.,S03P1825.
• Citation: 277 Ga. 534,592 S.E.2d 405
• Parties: LEWIS v. The STATE.
• Court: Georgia Supreme Court

592 S.E.2d 405

277 Ga. 534

LEWIS v. The STATE.

No. S03P1825.

Supreme Court of Georgia.

January 20, 2004.

Thomas M. Martin, Fayetteville, for appellant.

Robert E. Keller, Dist. Atty., Todd E. Naugle, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Karen A. Johnson, Asst. Atty. Gen., for appellee.

BENHAM, Justice.

Having found Christopher Kirkprock Lewis guilty of malice murder, felony murder, aggravated battery, burglary, and possession of a knife during the commission of a felony, the jury recommended a death sentence for the malice murder conviction, finding beyond a reasonable doubt three statutory aggravating circumstances to support its verdict of death: the murder was committed while Lewis was engaged in the commission of an aggravated battery; the murder was committed while Lewis was engaged in the commission of a burglary; and the murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, and an aggravated battery to the victim before death. OCGA § 17-10-30(b)(2), (7). On direct appeal from that sentence, we addressed only issues involving Lewis's motion for new trial, reversing the denial of that motion and remanding for another motion for new trial hearing before a different judge. Lewis v. State, 275 Ga. 194, 565 S.E.2d 437 (2002). After that mandated hearing was conducted, the trial court denied Lewis's motion for new trial. Lewis appeals, and we affirm. ¹

1. The evidence adduced at trial showed that Lewis and the victim, Cheryl Lewis, were married in 1992. Cheryl had two children from a previous marriage, Kellee and Sean, who were 13 and 10 years old respectively when their mother was killed. In 1995, Lewis and Cheryl began living apart and there were several incidents of domestic violence over the following year. During an altercation in March 1996, Lewis threatened Cheryl in the presence of a police officer, saying that it would be "this O.J. Simpson situation again" when he got out of jail. During another altercation in August 1996, Cheryl told Lewis that she wanted a divorce and Lewis argued against it. Starting in October 1996, Lewis often appeared at Cheryl's apartment to bang on her door; he would also sit and watch her door for several hours at a time. In November, Cheryl and her children moved to another apartment, but Lewis's behavior continued. On December 19, 1996, Cheryl went to a Christmas party with a co-worker, Robbie Epps. The children remained in the apartment watching television. At approximately 11:00 p.m., Lewis began banging on Cheryl's apartment door, cursing and yelling, "[O]pen up the door, I know you're in there." The children did not open the door because their mother had instructed them not to open it. Eventually, the banging ceased and they went to sleep.

At 1:45 a.m., Kellee was awakened by her mother screaming. She went to her mother's bedroom and saw Lewis on top of Cheryl holding a knife. Kellee could not find the cellular phone so she ran next door to call the police, telling the neighbor, "[I]t's my step daddy, he's killing my mama." Sean testified that he also was awakened by his mother's screams. He pretended to be asleep and saw Lewis enter his bedroom, look through the blinds, and then run out of the room. The police arrived and found Robbie Epps, clad only in boxer shorts despite the frigid weather, standing in the parking lot. Epps looked scared and said there was a man in the apartment. The medical examiner testified that Cheryl had suffered 42 injuries, including 17-20 stab or cut wounds to the neck. She bled to death because her carotid artery and jugular vein had been severed. There was a bloody 8-inch serrated knife found at the scene that was consistent with the murder weapon. The police determined that the assailant had entered the apartment through a kitchen window after prying the window lock and fled through the rear sliding glass door after the attack. They went to Lewis's apartment complex and arrested him in the parking lot. He told them he knew they would catch up to him. They found a 12-inch butcher knife hidden in his right sleeve. DNA taken from bloodstains on his shoe and sweat pants matched the DNA profile of Cheryl Lewis.

The evidence was sufficient to enable a rational trier of fact to find proof beyond a reasonable doubt of Lewis's guilt of malice murder, felony murder, burglary, aggravated battery, and possession of a knife during the commission of a felony. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The evidence was also sufficient to authorize the jury to find beyond a reasonable doubt the statutory aggravating circumstances which supported his death sentence for the murder. Jackson v. Virginia, supra; OCGA § 17-10-35(c)(2).

2. Lewis claims that the trial court erred by refusing to grant a mistrial after the State made religious references in its penalty-phase closing argument. See Carruthers v. State, 272 Ga. 306, 308-311(2), 528 S.E.2d 217 (2000). In his closing argument in the penalty phase, the prosecutor argued the following:

Now, ladies and gentlemen, let me talk to you. There are many of you who are Christians and what I say to you does not in any way suggest to you that any religious materials demand the death penalty at all, instead I think that it helps us understand the concept of deterrence and retribution and for this I speak to you. Romans tells us that every person is subject to the governing authorities. And in fact in [Matthew] it says, who so sheddeth man's blood by man shall his blood be shed.

Lewis's counsel objected that the prosecutor was trying to inject biblical law into the case, and moved for a mistrial. In a bench discussion outside the hearing of the jury, the prosecutor cited cases which held that while a prosecutor cannot urge the imposition of the death penalty based upon religious beliefs or teachings, he can "`allude to such principles of divine law relating to the transactions of men as may be appropriate to the case.'" Hill v. State, 263 Ga. 37, 45-46(19), 427 S.E.2d 770 (1993). See also Crowe v. State, 265 Ga. 582, 593(18)(d), 458 S.E.2d 799 (1995). However, the trial court sustained Lewis's objection in part, told the prosecutor not to "read passages" from the Bible, and instructed the jury:

Ladies and gentlemen of the jury, to some extent I have sustained the defendant's objection in that counsel for the State may [allude] to divine law without presenting it as something to be followed as the state law that I will give you. ... However, those matters read to you by [the prosecutor] from the Bible are to be disregarded by you and not be used by you in any fashion in determining your decision in that regard. I will give you the charge from the court, the law that you're to apply in this case. You are not to use what he read to you in any form or fashion in reaching and determining your verdict as it relates to the sentencing in this case. Is there any juror who does not understand that instruction? If so, please raise your hand.

No jurors raised their hands. The trial court then asked, "Is there any juror who is unwilling to follow this instruction or feels that they cannot follow this instruction? If so, raise your hand." No jurors raised their hands. The prosecutor then continued with his closing argument without making another religious reference.

After the conclusion of Lewis's trial, this Court held a similar argument by the same prosecutor in another death penalty case to be reversible error as to the death sentence. Carruthers, supra.² We determined that the argument in that case was reversible error because it injected the irrelevant and often inflammatory issue of religion into the sentencing process and improperly appealed to the jurors' religious beliefs in deciding whether a defendant should live or die. See id. at 309, 528 S.E.2d 217. The prosecutor's use of language of command and obligation derived from religious authority also diminished the jury's sense of responsibility for their sentencing decision and implied that they should base their decision on a different, higher law than that of the state of Georgia. Id.

We conclude, however, that the prosecutor's argument in this case, although improper, does not require the reversal of the death sentence. The trial court issued lengthy curative instructions to the jury, informing them that Lewis's objection had been sustained in part, demanding that the prosecutor's argument be completely disregarded, and charging them that the law that they would use to decide Lewis's sentence would come only from the trial court. The trial court asked the jurors to indicate whether any of them did not understand or could not follow her curative instructions, and none responded. By contrast, the trial court in Carruthers, which had overruled the defendant's objections to the biblical passages, did not issue any curative instructions. Under the circumstances in this case, we believe the extensive curative instructions were sufficient to cure the harm from the prosecutor's brief religion-based argument. See Mobley v. State, 265 Ga. 292, 300(19), 455 S.E.2d 61 (1995); Hill, supra at 43-44(12), 427 S.E.2d 770. The trial court did not err by denying Lewis's motion for a mistrial.

3. Lewis claims that there was an improper communication between the jury and either the judge or an unspecified person during deliberations. See, e.g., Hanifa v. State, 269 Ga. 797, 806-808(6), 505 S.E.2d 731 (1998); Turpin v. Todd, 268 Ga. 820, 822(1)(b), 493 S.E.2d 900 (1997). He bases this claim on the testimony of two trial jurors at the motion for new trial hearing that one and possibly two notes had been sent out of the jury room during deliberations and that written responses were received by the jury. No jury notes appear in the trial record. Juror Wright could not remember what questions were on the notes or if there were one or two notes. She...