Todd v. State

• Decision Date: 27 November 1991
• Docket Number: No. S91P0845,S91P0845
• Citation: 410 S.E.2d 725,261 Ga. 766
• Parties: TODD v. The STATE.
• Court: Georgia Supreme Court

Page 725

410 S.E.2d 725

261 Ga. 766

TODD v. The STATE.

No. S91P0845.

Supreme Court of Georgia.

Nov. 27, 1991.

Reconsideration Denied Dec. 18, 1991.

David L. Roberts, Columbus, for Todd.

Douglas C. Pullen, Dist. Atty., Columbus, Michael J. Bowers, Atty. Gen., Atlanta, Edward F. Berry, Peter B. Hoffman, Asst. Dist. Attys., Columbus, Susan V. Boleyn, Sr. Asst. Atty. Gen., Atlanta, for the State.

Robert D. McCullers, Staff Atty., Atlanta.

Patsy Morris, Mark E. Olive, Benna Kushlefsky, Atlanta.

Joseph L. Chambers, Sr., Pros. Attys.' Council, Smyrna.

HUNT, Justice.

William Lamar Todd was convicted by a jury in Harris County of murder and armed robbery. He was sentenced to death for the murder. ¹

1. After the victim failed to appear for work on July 12, 1988, the police were called to his home. The victim lay on the kitchen floor. He had been bludgeoned to death. A blood-soaked towel and bedspread found near the body indicated someone had attempted, unsuccessfully, to clean the blood from all over the kitchen. The victim's car and many items from his home were missing.

Two weeks later, Todd and his female companion, still in possession of the victim's car, were arrested in Texas. Todd gave several statements to the police. Todd at first denied knowing the victim. Then he admitted knowing him, but denied killing him. In a third statement, Todd admitted killing the victim after a struggle. After it was pointed out to him that there were no signs of a struggle, Todd gave a fourth statement. He told police that he and his female companion intended to wait until the victim (with whom Todd was living) was asleep, tie him up and take his car. Todd's companion however, was tired of waiting in her hiding place (an old bus) and told Todd to hurry or she would leave. Todd got a hammer, entered the victim's kitchen and hit him in the head until he "laid down," and Todd "seen all that stuff coming out of his head." (The autopsist testified that the victim had been hit in the head at least 12 times.)

Todd and his companion then took various of the victim's possessions from his house, took his car and drove off.

After selling some of the stolen items in Georgia, the two drove to Birmingham, Alabama. They sold more of the victim's possessions there, and discussed trading the victim's car for cocaine. Todd got into an argument with one of the men with whom they were staying, hit him on the head with a hammer, shot him, and took his wallet. Todd and his companion drove to Galveston, sold some more of the victim's possessions, got into more arguments, and finally were arrested.

The evidence supports the conviction for murder and armed robbery. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. In his first two enumerations of error, Todd complains of the prosecutor's closing arguments at the guilt and sentencing phases of the trial.

(a) At trial, Todd objected to only one of the three portions of the prosecutor's guilt-phase closing argument about which he now complains. The time to object to improper closing argument is when the impropriety occurs at trial, when the trial judge may take remedial action to cure any possible error. See, e.g., UAP § (A)(2)(d). 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. Ford v. State, 255 Ga. 81, 90, 335 S.E.2d 567 (1985). As to the two portions of the state's guilt-phase argument not objected to at trial, we find no harm sufficient to overcome the defendant's procedural default, even assuming that the two arguments were, as the defendant contends, objectionable.

In the third instance, in response to the defendant's closing argument about the criminal backgrounds of many of the state's witnesses, the prosecutor pointed out that the state had to take its witnesses as it found them and that this was a "dope-related homicide." The defendant objected that the prosecutor misstated the evidence. A prosecutor, however, has the right to argue reasonable inferences from the evidence, and the characterization of this homicide as being "dope-related" was eminently reasonable. See Conner v. State, 251 Ga. 113(6), 303 S.E.2d 266 (1983). The denial of Todd's motion for mistrial was not error.

(b) Todd objected to only one of the three portions of the prosecutor's sentencing-phase arguments about which he now complains. As to the portions of the sentencing-phase argument not objected to, pretermitting any question of their propriety we do not find sufficient prejudice to overcome the procedural default. ²

The defendant did object when the prosecutor analogized the defendant's testimony about his refusal to shoot the man who may have killed the defendant's sister to a scene in a well-known movie in which a murder suspect refused to kill a fly that had landed on his face so that his accusers might think he was "so harmless he wouldn't even hurt a fly." We do not agree with the defendant that this argument impermissibly introduced "facts" not in evidence. See Conner v. State, supra at 123, 303 S.E.2d 266. Parables of the kind at issue here generally are permissible, and the mere reference to a movie title added nothing of any great significance to the point of the prosecutor's argument. The trial court did not err by denying the defendant's motion for mistrial.

3. Todd contends in his 3rd, 5th, and 17th enumerations of error that the trial court erred by denying three motions for mistrial during the state's cross-examination of him at the sentencing phase of the trial.

The first motion was made when the victim's mother left the courtroom sobbing after Todd graphically described hitting the victim in the head and watching the blood "squirt[ ] out." Todd contends that her reaction was the result of improper cross-examination by the district attorney. We do not agree that the state's cross-examination was improper; in view of the defendant's conflicting statements and trial testimony about the facts of the crime, and his denial even at the sentencing phase that he was guilty of murder, the state was entitled to examine the defendant about just what the defendant contended was the truth about the victim's death.

The victim's mother immediately left the courtroom, and the trial court instructed the jury to disregard the incident. The court did not abuse its discretion by denying the motion for mistrial. Messer v. State, 247 Ga. 316(6), 276 S.E.2d 15 (1981).

The second motion for mistrial followed this portion of the state's cross-examination:

A. ... I realize this is your first capital case as a D.A.; but I am not a murder[er] and I don't just go around hitting and killing people.

Q. Are you keeping score of my capital cases?

A. I remember when you were elected. I think I was still in ... jail here when you took the position as D.A. ...

Q. I believe I've been around and have been here with a lot more folks like you--

A. As D.A.? Like me? Like me?

Q. No, I'll withdraw that. I've not run across one like you.

The defense objected "to the comparisons" and moved for a mistrial. The court did not explicitly rule on either the objection or the motion, directing instead that the parties simply "get on with it."

The prosecutor should not have compared the defendant to others in his experience. Nevertheless, the subject of the prosecutor's expertise was brought up by the defendant. We do not think the jury was impressed either way by this colloquy, and find any error harmless. The implicit denial of a mistrial was not an abuse of discretion. Sabel v. State, 250 Ga. 640(5), 300 S.E.2d 663 (1983).

The third motion for mistrial came after a brief redirect examination in which the defendant claimed never to have been convicted of anything other than a traffic violation before being convicted of murder and armed robbery in this case. Asked on re-cross about a narcotics charge in Florida, the defendant admitted having been arrested for possession of marijuana and paying a "misdemeanor fine."

The marijuana charge was a proper subject of rebuttal. Wade v. State, 258 Ga. 324, 329(10), 368 S.E.2d 482 (1988). Moreover, at the sentencing phase of a death penalty trial, a prior crime may be proven by means other than a certified copy of a conviction. Hammond v. State, 260 Ga. 591(6), 398 S.E.2d 168 (1990). It follows that when a defendant contradicts his own testimony on re-direct by his admission on re-cross that he has a prior drug conviction, his testimony is not excludable merely because the state does not choose to bolster its impeachment with a certified copy of that conviction.

The state did not prove merely that the defendant had been charged with a crime. See Jefferson v. State, 256 Ga. 821, 827(8b), 353 S.E.2d 468 (1987). The trial court did not err by overruling the objection and denying Todd's motion for mistrial.

4. Relying on Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), the defendant contends that improper "victim-impact" evidence and argument were presented to the jury. Booth v. Maryland however, has been overruled. Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Under Payne, just as the defendant may introduce evidence about his individual personality and argue that evidence to the jury, so may a prosecutor similarly address the "human cost of the crime of which the defendant stands convicted." Id., 111 S.Ct. at 2609. There is no merit to this enumeration of error.

5. There was no improper curtailment of the death-qualification voir dire. Cargill v. State, 255 Ga. 616 (4), 340 S.E.2d 891 (1986). The trial court's rulings on the death-qualifications of the prospective jurors were "within the deference due the trial judge's determination." Jefferson v. State, 256 Ga. 821, 824(2)...