Wade v. State

• Decision Date: 15 March 1991
• Docket Number: No. S90P1631,S90P1631
• Citation: 261 Ga. 105,401 S.E.2d 701
• Parties: WADE v. The STATE.
• Court: Georgia Supreme Court

Page 701

401 S.E.2d 701

261 Ga. 105

WADE v. The STATE.

No. S90P1631.

Supreme Court of Georgia.

March 15, 1991.

Reconsideration Denied March 27, 1991.

John T. Strauss, Strauss & Walker, P.C., and J. Ellis Millsaps, Dist. Atty., Covington, for Johnny Lamar Wade.

John M. Ott, Dist. Atty., Monroe, Michael J. Bowers, Atty. Gen., and Andrew S. Ree, Atty., Dept. of Law, Atlanta, for the State.

Patsy Morris, Atlanta, for other appellant.

Joseph L. Chambers, Sr., Pros. Attorneys' Council, Smyrna, for other appellee.

SMITH, Presiding Justice.

This is the second appearance of this death penalty case. The facts are recounted in our previous opinion. Wade v. State, 258 Ga. 324, 368 S.E.2d 482 (1988). There we held that the evidence was "sufficient to establish beyond a reasonable doubt the defendant's guilt of the offense of malice murder." Id. at 325, 368 S.E.2d 482. Wade's conviction was affirmed, but his sentence was reversed because of an error in the court's sentencing-phase charge, and the case remanded for resentencing. The sentencing phase has now been retried before a new jury, and Wade has been resentenced to death. This is his appeal. ¹

1. As in the first trial, the state contended that this offense of murder was committed while the offender was engaged in the commission of aggravated battery. OCGA § 17-10-30(b)(2). The jury agreed, and found this statutory aggravating circumstance, as did the jury at the first sentencing trial.

Wade contends the evidence is insufficient to "raise[ ] this case into that class of cases involving ... aggravated battery that can justify a death sentence." We disagree, and adhere to our previous opinion that the evidence was sufficient to prove Wade committed an aggravated battery which preceded the killing and was a separate and distinct act from the act causing death. Wade v. State, supra at 330, 368 S.E.2d 482. The evidence was sufficient to support the jury's § b(2) finding. OCGA § 17-10-30(b)(2); Davis v. State, 255 Ga. 588, 593(3c), 340 S.E.2d 862 (1986). ² Moreover, we do not agree with Wade's contention that his crime was not sufficiently aggravated to justify a death sentence. We find that his death sentence is neither excessive nor disproportionate to sentences imposed in similar cases, considering both the crime and the defendant. OCGA § 17-10-35(c)(3). The similar cases listed in the Appendix support the imposition of a death sentence in this case.

2. The court's instructions on mitigating circumstances were not deficient. Romine v. State, 251 Ga. 208(10b), 305 S.E.2d 93 (1983); Davis v. State, supra, 255 Ga. at 598(22), 340 S.E.2d 869 (1986).

3. The trial court charged the jury on reasonable doubt:

The law provides that when a person is convicted of a crime which may be punishable by death a sentence of death shall not be imposed unless the jury unanimously finds beyond a reasonable doubt that at least one statutory aggravating circumstance was present....

A reasonable doubt means what it says. It is a doubt of a fair-minded, impartial juror honestly seeking the truth. It is not an arbitrary nor a capricious doubt, but it is a doubt arising from a conflict in the evidence. If, after giving consideration to all the facts and circumstances of this case, your minds are wavering, unsettled and unsatisfied, then that is the doubt of the law, and you would not be authorized to impose a death sentence....

Wade contends the court erred by failing to tell the jury that a reasonable doubt can arise not only from "a conflict in the evidence" but also from "a lack of evidence." He contends the court's failure to include the phrase "or a lack of evidence" removed from the prosecution the burden of proving its alleged statutory aggravating circumstance beyond a reasonable doubt. We do not agree. The court's instructions were sufficient; no reasonable juror could have been misled into believing that a reasonable doubt could not have arisen from a lack of evidence. There was no reversible error.

4. Concerning the statutory aggravating circumstance alleged by the state, the court instructed the jury that "a person commits aggravated battery when he maliciously, that is to say, intentionally and without justification or serious provocation, causes bodily harm to another by ... [etc.]." The court also gave the usual instructions that "a person will not be presumed to act with criminal intent," but that intent could be inferred from the "words, conduct, demeanor, motive and other circumstances" shown by the evidence.

The defendant contends the court erred by not giving his request to charge number 6. This request to charge was, in toto:

Defendant respectfully requests the court to fully charge on the element of malice as applied to aggravated battery.

On its face, this request seems to have been complied with. However, the defendant did elaborate somewhat during the charge conference, suggesting that the court should adapt an instruction on malice from OCGA § 16-5-1(b), defining expressed and implied malice as it relates to the offense of murder. But the defendant did not explain, and has not yet, just how such an adaptation would read.

We find no error. The unmodified language of OCGA § 16-5-1(b) is clearly not an appropriate instruction to give in relation to the aggravated battery statutory aggravating circumstance, and we decline to speculate about the utility of possible adaptations thereof not presented to the trial court or to this court.

The defendant contends, alternatively, that the court should at least have charged on "specific intent," based on his request to charge number 4. That is, instead of telling the jury that aggravated battery is committed when the defendant "maliciously, that is to say, intentionally and without justification or serious provocation" causes the specified bodily harm, the court should have charged that it is committed when the defendant "maliciously and with specific intent" causes the bodily harm. This is not a correct statement of law. See Pope v. State, 256 Ga. 195, 212-13(23), 345 S.E.2d 831 (1986). The court did not err by refusing to give the defendant's request to charge number 4.

5. The court instructed the jury:

Another jury at another time found him guilty. As I told you earlier, you will not be considering the issue of guilt or innocence. You will be considering only what sentence to impose ... [taking into consideration] all the evidence received here in Court presented by both the state and the defendant....

These instructions were not erroneous, and did not, as the defendant contends, deprive him of his major argument against the death penalty. Potts v. State, 259 Ga. 96(13), 376 S.E.2d 851 (1989).

6. The jury's original sentencing verdict included the finding: "Aggravated battery was committed prior to the death of [the victim.]" Upon objection by the defendant to the form of the verdict, the court returned the jury to the jury room for further deliberation. The jury then returned the following finding of a statutory aggravated circumstance: "Aggravated battery committed prior to the death of [the victim] and in relation to and in connection with the death of said victim."

Wade contends the first "verdict" was legally insufficient to support a death sentence, and should have been accepted in this form and a life sentence imposed. We disagree. The trial court did not err by returning the jury to the jury room for further deliberations, and did not, as the defendant contends, express an opinion violating OCGA § 17-8-57. Wade v. State, supra, 258 Ga. at 332(12), 368 S.E.2d 482, and cits. The subsequent verdict, which was accepted by the court, while not in the exact language of OCGA § 17-10-30(b)(2), suffices as a finding of the § b(2) circumstance. Romine v. State, supra, 251 Ga. 208(7), 305 S.E.2d 93 (1983).

7. The court did not err by excluding unreliable hearsay testimony by a witness who overheard someone say that the defendant was still in her store when the victim rode away on his bicycle, where the witness could not identify the out-of-court declarant, and had heard numerous different stories about the crime from a variety of customers at her store. Alderman v. State, 254 Ga. 206(7), 327 S.E.2d 168 (1985).

8. The court did not err by denying Wade's motion in limine to prevent the state from presenting evidence not directly relating to proof of (a) statutory aggravating circumstances or (b) the defendant's character. Ford v. State, 257 Ga. 461(1), 360 S.E.2d 258 (1987); Blankenship v. State, 251 Ga. 621, 308 S.E.2d 369 (1983).

9. We do not find an abuse of discretion in the court's control of the voir dire examination, Curry v. State, 255 Ga. 215, 218(2b), 336 S.E.2d 762 (1985). The court's excusals of jurors conscientiously opposed to the death penalty were within the deference due the trial court's determination under Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). Jefferson v. State, 256 Ga. 821(2), 353 S.E.2d 468 (1987).

10. In his enumerations of error 21 through 24, Wade raises issues he concedes were raised in his previous appeal and decided contrary to his contentions. These enumerations are without merit for reasons stated in our previous opinion.

11. In his 26th enumeration, Wade contends the denial of his motion for new trial was error "for all the above and foregoing reasons." Nothing is raised here that is not raised elsewhere in his brief, and this enumeration is without merit.

12. Enumerations 27 and 28 are not argued, and absent plain error, which we do not find, are waived. Georgia Unified Appeal Procedure, § (IV)(B)(2).

13. Wade contends it was error to allow the sentencing jury to see his indictment showing the prior jury's verdict of guilty of malice murder and felony murder. See Wade v. State, supra, 258 Ga. at 325- 26(2), 368 S.E.2d 482. Wade contends the sentencing jury may have been misled into believing he had a prior record or had been...