Alderman v. State, 241 Ga. 496, 246 S.E.2d 642 (Ga. 1978) (Direct Appeal).

Defendant was convicted by a jury in the Chatham Superior Court, Cheatham, J., of murder of his wife, and was sentenced to death. Defendant appealed. The Supreme Court, Bowles, J., held that: (1) even if error occurred in excluding for cause three prospective jurors, who, though not conscientiously opposed to capital punishment, testified that they could not write out a death verdict if elected foreman, such error, under circumstances, was harmless; (2) under circumstances, trial court did not abuse its discretion in denying defendant's motion for a continuance on ground of absence of witness; (3) even if error occurred in allowing officer to testify that defendant exercised his right to an attorney and remained silent during officer's noncustodial interview with defendant at time defendant was not under arrest, such error was harmless; (4) defendant's accomplice's testimony incriminating defendant was not “fortified” by officer's reference in prior testimony to polygraph examination which, as such testimony showed, had never been taken by accomplice; (5) State proved venue; (6) corraborating evidence of accomplice's testimony was sufficient to support verdict; (7) no error occurred in refusing to permit defense to complete examination of their expert witness pertaining to hypnotic treatment of defendant; (8) defendant was not denied effective assistance of counsel; (9) death penalty is not unconstitutional, and (10) under circumstances, death sentence would be affirmed. Judgment and sentence affirmed. Hall, J., filed opinion in which he concurred specially in division 3 and dissented as to division 1 and judgment. Hill, J., dissented and filed opinion.

BOWLES, Justice.

The appellant, Jack Alderman, was indicted by a Chatham County Grand Jury for the offense of murder. He was tried by a jury and found guilty of the offense. The jury found as statutory aggravating circumstances that *497 the murder was “committed . . . for the purpose of receiving money or any other thing of monetary value” (Code Ann. s 27-2534.1(b)(4)) and, that the offense of murder was “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” Code Ann. s 27-2534.1(b)(7). The appellant was sentenced to death by electrocution. Appellant's amended motion for new trial was overruled, and his case is now before this court on appeal and for our mandatory review of the death sentence imposed.

I. Summary of the Evidence

The state presented evidence from which the jury was authorized to find the following:

On the afternoon of September 19, 1974, the appellant approached John A. Brown, a close friend, and asked for his assistance in the killing of appellant's wife, Barbara J. Alderman. The appellant told Brown that if he helped he would split one-half the proceeds of his wife's life insurance policy with him. At first Brown thought Alderman was only “kidding,” but Alderman's persistence convinced Brown that he was serious.

Two days later the appellant called Brown and asked him to come over to his apartment in Chatham County. When Brown arrived the appellant handed him a 12-inch crescent wrench and told him, “it had to be done . . . all you have to do is hit her with the wrench.” Brown hesitated, but after the appellant threatened him with a gun, Brown proceeded into the dining room where he struck Mrs. Alderman in the back of the head with the wrench. Mrs. Alderman screamed and ran into the living room where she was tackled by her husband. He held her down, and with Brown's assistance, attempted to strangle her. After she passed out, the appellant asked Brown if he thought she was dead. When Brown said “yes” the appellant said “well, stay here with her while I go open the bathroom door.” Brown asked what for and the appellant replied “I'm going to drag her in there and drown her . . . I want to make sure that she doesn't do anything. Mrs. Alderman's body was then dragged into the bathroom and placed in the bathtub.

The appellant started running water in the tub while Brown attempted to clean bloodstains from the carpet where Mrs. Alderman's body had fallen. Brown then went back into the bathroom and saw Mrs. Alderman in the bathtub with water just over her face.

Brown and the appellant changed clothes and left the apartment. They stopped at a Piggly-Wiggly store where Alderman got $100 which he gave Brown for his help. From there they went to a bar and started drinking. At around 10 p.m. Brown and the appellant returned to the apartment. Mrs. Alderman's body was still in the bathtub, but only a small amount of water remained in the bottom of the tub. They picked her up out of the tub, put her body on a quilt and rolled her up in it. Her body was then placed in the trunk of her car. Brown drove the car while Alderman followed behind on a motorcycle. They drove to Rincan, Georgia, in Effingham County. When they arrived at Dasher Creek, Mrs. Alderman's body was taken out of the trunk and put in the driver's seat of her automobile. Brown put the vehicle in drive and released the emergency brake. The car rolled into the creek. Before leaving, Brown opened the door to permit the body to fall out. The two then departed on the motorcycle.

At trial the appellant testified in his own behalf. He denied having anything to do with the death of his wife. He testified that on the night in question he and his wife had engaged in a conversation concerning her inability to become pregnant. She had told him that because she was only half a woman she was going to leave him to allow someone else to better fill her position. She grabbed her pocketbook and went out the back door. Appellant testified that at approximately 7 p.m. he left the apartment and caught a bus to get a drink. He returned home at approximately 10 p.m. but his wife was not at home. He then decided to go to Rincan, where Mrs. Alderman's grandmother resided, in order to apologize to his wife. The appellant testified that when he crossed the bridge at Dasher Creek, he saw his wife's car in the creek. The door was open and his wife's body was lying under water. The appellant testified that she was dead. When he heard a car coming he got on his motorcycle and returned to a bar in Savannah. Appellant testified that he did not know why he had left his wife's body in the creek; that he *499 recalled nothing of his trip back to Savannah; and, the fact that his wife was dead had completely left his mind. Appellant testified that he first realized the full facts surrounding his wife's death after being treated by a psychiatrist who was able to bring back his memory as to the events of that night. He stated that after being treated he realized that fear had caused him to leave his wife's body in the creek because he knew her family would blame him for her death. The evidence will be examined in more detail as necessary in addressing appellant's enumerations of error.

* * *

In the instant case, the accomplice's testimony was amply corroborated in several particulars. A forensic serologist from the Georgia Crime Laboratory testified that the blood type of the stains found on the appellant's trousers matched the blood type of the victim. There was testimony concerning a motorcycle kickstand impression where the victim's body was found, as well as testimony from a witness who stated that as he drove toward the creek a motorcycle passed by in the opposite direction, and on the left hand side of the motorcycle he saw something white flapping in the wind. Defendant owned a motorcycle and admitted driving his motorcycle to the creek scene on the night in question. This evidence corroborated the accomplice's testimony that he and the appellant had departed the scene on a motorcycle and that the appellant was holding the quilt in which Mrs. Alderman's body had been wrapped. The corroborating evidence was sufficient to support the jury's verdict. Appellant's enumeration of error is, therefore, without merit.

* * *

In our sentence review we have considered the aggravating circumstances found by the jury and the evidence concerning the crime and the defendant introduced in court. We have reviewed the sentence as required by Ga.L.1973, p. 159 (Code Ann. s 27-2537 (c) (1-3), as we have in each case involving a death penalty imposed under this statute. We conclude that the sentence of death imposed on Jack Alderman was not imposed under the improper influence of passion, prejudice or any other arbitrary factor. Code Ann. s 27-2537 (c) (1).

The jury found as statutory aggravating circumstances that the accused committed the offense of murder for the purpose of receiving money or any other thing of monetary value (Code Ann. s 27-2534.1 (b) (4)) and, that the offense of murder was outrageously or wantonly vile, horrible or inhumane in that it involved torture, depravity of mind, or an aggravated battery to the victim (Code Ann. s 27-2534.1 (b) (7)). The evidence supports the jury's findings in regard to the statutory aggravating circumstances. Further, we have thoroughly reviewed the instructions of the trial court during the sentencing phase of appellant's trial and find that the charge as given was not subject to the defects dealt with in our decisions in Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977) and Hawes v. State, 240 Ga. 327, 240 S.E.2d 833 (1977).

In reviewing the death penalty in this case, we have considered the cases appealed to this court since January 1, 1970, in which a death or life sentence was imposed for murder and we find that those similar cases set forth in the appendix support affirmance of the death penalty. Jack Alderman's sentence to death for murder is not excessive or disproportionate to the penalty imposed in similar cases considering both the crime and the defendant. Code Ann. s 27-2537 (c) (3). The verdict is factually supported.

Judgment and sentence affirmed.

Alderman v. State, 254 Ga. 206, 327 S.E.2d 168 (Ga. 1985) (Direct Appeal).

Defendant was convicted in the Superior Court, Chatham County, Frank S. Cheatham, J., of murder and, upon being sentenced to death, he appealed. The Supreme Court, Weltner, J., held that: (1) the year 1984 was too late to raise, for the first time, a challenge to a 1975 grand jury array; (2) jurors were not erroneously excused for opposition to the death penalty; (3) jury was warranted in finding the aggravating circumstance that the offense of murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim; (4) evidence offered in mitigation was not erroneously excluded; (5) trial court did not err when certain witnesses, who had testified at previous trial on issue of guilt or innocence, were allowed to give testimony at resentencing trial which contained information not previously revealed; and (6) refusal to give defendant's request to charge that if jury could not reach a verdict on punishment, a life sentence would be imposed was not error. Affirmed.

WELTNER, Justice.

This is a death penalty case. In 1975, the appellant, Jack Alderman, was convicted in Chatham County for the murder of his wife and sentenced to death. On direct appeal, this court affirmed. Alderman v. State, 241 Ga. 496, 246 S.E.2d 642 (1978). Alderman subsequently obtained federal habeas relief as to sentence on the ground that three prospective jurors had been excused erroneously under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Alderman v. Austin, 695 F.2d 124 (5th Cir., Unit B, 1983) (en banc). Thereafter, another sentencing trial was conducted by Chatham County, and Alderman again was sentenced to death. He now appeals. FN1

FN1. The re-sentencing trial began in Chatham County on March 26, 1984 and the jury reached its verdict on March 31, 1984. Alderman filed a motion for new trial on April 11, 1984, and filed an amendment thereto on August 24, 1984. The motion was denied August 27, 1984. A notice of appeal was duly filed and the case was docketed in this court on September 27, 1984. Oral arguments were heard November 14, 1984.

1. In his 6th enumeration of error, Alderman complains of the trial court's denial of his challenge to the array of the grand jury which returned the indictment in this case back in 1975.

We find no merit to this enumeration. The year 1984 is too late to raise, for the first time, a challenge to a 1975 grand jury array. Walraven v. State, 250 Ga. 401, 297 S.E.2d 278 (1982); Young v. State, 232 Ga. 285, 206 S.E.2d 439 (1974).

2. The practice of death-qualification of jurors is not unconstitutional for any reason urged. Mincey v. State, 251 Ga. 255(2), 304 S.E.2d 882 (1983); Thomas v. State, 245 Ga. 688, 266 S.E.2d 499 (1980). Nor do we find any merit to Alderman's contentions that the manner in which the death penalty is imposed in Georgia is unconstitutional. His 8th and 9th enumerations are meritless.

3. In his 7th enumeration, Alderman complains of the limitations placed by the trial court upon the defense voir dire. We find from our examination of the transcript that both parties were given “an opportunity to ascertain the ability of the prospective jurors to decide the case on its merits, with objectivity and freedom from bias and prior inclination.” Waters v. State, 248 Ga. 355, 363(3), 283 S.E.2d 238 (1981).

The trial court did not err by refusing to allow Alderman to ask veniremen what kinds of books and magazines they read; whether they were members of any political organization; what kinds of bumper stickers they had on their automobiles; whether they had read anything about the reliability of hypnosis; whether they had ever expressed an opinion about other criminal cases; whether, if Adolph Hitler was on trial for killing 6,000,000 Jews, they could give him the death penalty; whether a juror who had previously served in a criminal case had been the foreman; and whether any juror had ever been the foreperson of a grand jury. Henderson v. State, 251 Ga. 398(1), 306 S.E.2d 645 (1983).

4. In his 13th enumeration, Alderman contends that jurors were erroneously excused for opposition to the death penalty, contrary to the standards of Witherspoon v. Illinois, supra.

Alderman argues that the proper test for the excusal of jurors opposed to the death penalty is contained in footnote 21 of the Witherspoon opinion in which the court stated: “[N]othing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt.” 391 U.S. at 522-23, 88 S.Ct. at 1777.

We have formerly recognized this as the standard for excusing a prospective juror for opposition to capital punishment. It is now clear, however, that the oft-cited footnote no longer holds. The standard for disqualification now is “whether the juror's views [on capital punishment] would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980).

This standard is not transgressed if the juror merely expresses “qualms” about capital punishment ( Witherspoon, supra, 391 U.S. at 513, 88 S.Ct. at 1772) or acknowledges that the possible imposition of the death penalty might affect his deliberations in the sense that he would take his duties more seriously than otherwise he might. Adams v. Texas, supra. However, “the requirement that a juror may be excluded only if he would never vote for the death penalty is now missing; ... whether or not a venireman might vote for death under certain personal standards, the state still may properly challenge that venireman if he refuses to follow the statutory scheme and truthfully answer the questions put by the trial judge.” Wainwright v. Witt, supra 469 U.S. at ----, 105 S.Ct. at 851.

Applying this test to the facts of this case, we conclude that the trial court did not err by excusing six jurors who were opposed to the *208 death penalty.FN2

FN2. We note that one juror asserted that he could consider the evidence and arrive at a fair sentence. Further examination, however, showed that he did not consider the death penalty a fair sentence and that he would vote for a life sentence no matter what the evidence. The trial court did not err by disqualifying this juror despite his “protestations of impartiality.” Wainwright v. Witt, supra (quoting Patton v. Yount, 467 U.S. 1025, ----, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984)).Another prospective juror testified that she could vote to impose a death sentence if, under the law, she had no other choice. However, if she had a choice, she would vote against the death penalty under any conceivable set of facts. The trial court, noting that under Georgia law a juror always has the choice not to impose a death sentence, properly excused the juror for cause.

The answers of the remaining jurors demonstrate with sufficient clarity their inability to impose a death sentence, and the trial court did not err by finding that they were disqualified to serve as jurors in this case. Wainwright v. Witt, supra.

5. In his 14th enumeration, Alderman contends that the trial court erred by refusing to grant defense challenges to two prospective jurors who, he contends, were biased in favor of the death penalty. We disagree. The answers of these two jurors failed to show that their views on capital punishment would prevent or substantially impair their ability to decide the question of sentence in accordance with the instructions of the court. Wainwright v. Witt, supra; Godfrey v. Francis, 251 Ga. 652(11), 308 S.E.2d 806 (1983).

6. The jury found one statutory aggravating circumstance: “The offense of murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” See OCGA § 17-10-30(b)(7). In his first three enumerations of error, which are argued together, Alderman questions the evidence, the charge, and the verdict respecting this statutory aggravating circumstance.

(a) When we reviewed this case previously, we held that the evidence was sufficient to support the jury's finding of the § (b)(7) circumstance beyond a reasonable doubt. Essentially the same evidence in aggravation was presented to this jury. The facts, recounted in Alderman v. State, supra, 241 Ga. at 497-499, 246 S.E.2d 642, distinguish this case from cases in which a finding of the § (b)(7) circumstance would be inappropriate.

(b) The court did not err by charging the jury on all three sub-parts of the second component of § (b)(7) (torture, depravity of mind and aggravated battery), inasmuch as the state offered evidence to show that the murder involved all three. West v. State, 252 Ga. 156, 160, 313 S.E.2d 67 (1984).

(c) Alderman contends that the jury's verdict, given in the disjunctive by its finding of “torture, depravity of mind, or an aggravated battery” (emphasis supplied), is insufficiently definitive, and that it cannot be determined which of the elements of § (b)(7) the jury actually found.

We note that the trial court charged most of the suggested charge on § (b)(7) set forth in the appendix to West v. State, supra, except that the court omitted any reference to mutilation, serious disfigurement, or sexual abuse of a deceased victim as showing depravity of mind. Instead, the jury was instructed that in order to find depravity of mind, it had to find torture or an aggravated battery as those terms were defined in the charge. West, supra, at 161-162, 313 S.E.2d 67. In these circumstances, each of these three sub-parts of § (b)(7) describes essentially the same conduct. Blake v. State, 239 Ga. 292(5), 236 S.E.2d 637 (1977). Therefore, absent a timely objection to the form of the verdict, the verdict was appropriate. Romine v. State, 251 Ga. 208 (7), 305 S.E.2d 93 (1983).

7. In his next two enumerations of error, Alderman complains of the exclusion of evidence offered in mitigation.

In one instance, Alderman wished to show that shortly after the first trial, co-defendant Brown told a fellow inmate, John Sato, that he (Brown) had killed Alderman's wife and that Alderman had not been a party to the murder. Sato related this to Alderman, and his attorneys recorded electronically Sato's account of the incident. The tape subsequently disappeared, as did Sato.

The trial court refused to allow Alderman to testify to the jury that Sato said that Brown said that Alderman was innocent. This refusal, Alderman contends, was reversible error.

We note that Brown was a state's witness and that he testified that Alderman killed his wife with Brown's assistance. Therefore, his prior inconsistent statements, if any, would be admissible as substantive evidence over an objection that such out-of-court statements are hearsay, or impeaching only. Gibbons v. State, 248 Ga. 858, 286 S.E.2d 717 (1982). However, such a statement must be proved by competent evidence-notably, by a witness who heard it made. See Castell v. State, 250 Ga. 776(1b), 301 S.E.2d 234 (1983). Sato would have been such a witness, but Alderman was not. His only knowledge of the fact to be proved-i.e., Brown's inconsistent statement-is what someone else told him. Alderman's testimony was excluded properly.

We find no merit to Alderman's contention that Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979), compels the admission of such testimony at the sentencing phase of a death penalty trial. In Green, the United States Supreme Court considered the exclusion of an admission by a co-defendant that he (and not Green) had been the actual killer. The witness who heard the admission was available to testify. The Court stated: “The excluded testimony was highly relevant to a critical issue in the punishment phase of the trial, [cits.], and substantial reasons existed to assume its reliability.... Perhaps most important, the State considered the testimony sufficiently reliable to use it against [the co-defendant] and to base a sentence of death upon it. In these unique circumstances, ‘the hearsay rule may not be applied mechanistically to defeat the ends of justice.’ [cit.]” Id., 442 U.S. at 97, 99 S.Ct. at 2151. (Emphasis supplied.)

In this case, Alderman's hearsay version of the incident obviously was not reliable. Moreover, another witness (Robert Waters) testified to a statement substantially similar to that allegedly made to Sato. In the circumstances of this case, the hearsay rule was not “applied mechanistically to defeat the ends of justice.”

In the other instance, Alderman wished to place in evidence statements made by him while in a hypnotic trance. This evidence was excluded at the first trial, and the court's rejection of it was sustained on appeal. Alderman v. State, supra, 241 Ga. at 510-511, 246 S.E.2d 642. There was no error.

8. In his 11th enumeration, Alderman contends that the notice provisions of OCGA § 17-10-2 were violated when certain witnesses, who had testified at the previous trial on the issue of guilt or innocence, gave testimony at the re-sentencing trial which contained information not previously revealed.

Alderman objected when this first occurred, and the trial court ruled: “I'm just going to let every witness testify who testified in the case before and if they vary their testimony or add additional testimony, you can ask them why they did it, why they varied it or why they added new testimony.”

When a case is retried as to sentence, both the state and the defendant are entitled to offer evidence on the issue of guilt or innocence, not because the validity of the conviction is at issue, but because the jury needs to examine the circumstances of the offense (as well as any aspect of the defendant's character or prior record) in order to decide intelligently the question of punishment. Blankenship v. State, 251 Ga. 621, 308 S.E.2d 369 (1983); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); **174 Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Moreover, a jury should know the extent of a defendant's culpability and the strength of the state's evidence in this regard. See Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).

For these reasons, any evidence the state presents at a re-sentencing trial is “in aggravation,” in that the state relies upon it in seeking the death penalty. We cannot agree, however, that the state is required by OCGA § 17-10-2 to supply, in advance, a full prospectus of the expected testimony of every witness to the circumstances of the offense.

As to such witnesses, the requirement of OCGA § 17-10-2 is satisfied where, as here, the defendant has received not only the names of the witnesses, but a transcript of their prior testimony. The trial court's ruling was correct.

9. In his 11th enumeration, Alderman complains of the prosecutor's closing argument, which proceeded as follows: (The D.A.): “But since I've been in the office, which is 1977, several years after this case was tried, and this case has been there, I haven't been directly involved with it all the time, naturally not, but at no time do I know-” (Defense counsel): “Your Honor, we're going to object to any facts outside the record that the District Attorney might testify to.” (The D.A.): “Judge, I'm commenting essentially on the testimony.” (The Court): “Well, you can do that, but don't comment on anything that you know personally or did not know.” (The D.A.): “All right, sir.” Later, the following transpired: (The D.A.): “You can turn Alderman aloose just because you like the way he looks. Did you know that? You all ...” (Defense counsel): “Your Honor, I'm going to object to that. They can't turn Alderman loose. They're here for one limited purpose.” (The D.A.): “Excuse me, let me-I'm sorry, Judge. I didn't mean to say that. I meant to say it, but I said it the wrong way. [To the jury]: “You can give Alderman life just because you like the way he looks.”

We find no reversible error in the foregoing. Regarding the remainder of the argument, we find nothing that requires reversal of the death penalty. Spivey v. State, 253 Ga. 187(4), 319 S.E.2d 420 (1984).

10. The trial court did not err in refusing to give Alderman's request to charge that if the jury could not reach a verdict, a life sentence would be imposed. Ingram v. State, 253 Ga. 622(15), 323 S.E.2d 801 (1984); Allen v. State, 253 Ga. 390(2), 321 S.E.2d 710 (1984). Alderman's 12th enumeration is without merit.

11. In his 15th enumeration, Alderman contends the court's charge was improper. (a) The court prefaced its charge by stating: “I'm going to start this Charge today by stating some general principles of law that you are to apply to the evidence and then after I do that, I'm going to give you the substantive law as it applies to your responsibilities in this particular case.” Then the court instructed the jury on standard principles of law, including burden of proof beyond a reasonable doubt, credibility of witnesses, impeachment, expert testimony, circumstantial evidence, and parties to a crime. Afterwards, the court gave instructions usual to death penalty cases, including mitigating and aggravating circumstances, and the scope of the jury's sentencing discretion. Alderman contends the court erred by referring only to the latter portion of the charge as being “substantive.”

Reviewing the charge as a whole, the jurors were properly instructed. Felker v. State, 252 Ga. 351(16), 314 S.E.2d 621 (1984). Although Alderman is doubtless correct in his contention that all of the court's charge was “substantive,” we do not agree that the manner in which the charge was given denigrated the importance of any of its several parts (if, indeed, so fine a point was ever registered in the mind of a single juror!)

(b) The court did not err by instructing the jury that Alderman already had been found guilty, and that the jury could not alter that finding. This instruction was a correct statement of law. Conjoined with the further instruction that the jury could nonetheless consider the strength of the evidence of guilt in determining sentence, this charge clearly benefited Alderman.

(c) The court's instructions on mitigating circumstances were sufficient. (d) The court did not err by failing to instruct the jury that the indictment was not evidence, inasmuch as Alderman stood convicted of the crime charged in the indictment. The copy sent out with the jury did not show the previous jury's sentencing verdict.

12. We find that the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor. OCGA § 17-10-35(c)(1).

13. We conclude that Alderman's death sentence is neither excessive nor disproportionate to penalties imposed in similar cases, considering both the crime and the defendant. OCGA § 17-10-35(c)(3).

Judgment affirmed. All the Justices concur.

Alderman v. Austin, 663 F.2d 558 (5th Cir. 1981) (Habeas).

State prisoner filed petition for habeas corpus relief. The United States District Court for the Southern District of Georgia, at Savannah, B. Avant Edenfield, J., 498 F.Supp. 1134, granted the petition, and warden appealed. The Court of Appeals, James C. Hill, Circuit Judge, held that: (1) although Bureau of Investigation special agent, in his testimony at petitioner's state court trial, alluded at one point to the fact that petitioner had expressed his wish, during interview, to exercise his right to an attorney and to remain silent, such comment was neither solicited by the prosecutor, objected to by petitioner's attorney, nor mentioned in the course of trial; accordingly, this alleged constitutional error was harmless, and provided no basis for federal habeas corpus relief where the indicia of guilt was overwhelming; but (2) the jury which convicted petitioner of murder and sentenced him to death suffered from a defect of the type held violative of due process in Witherspoon, where the prosecutor elicited from three prospective jurors that he or she, if elected foreman, would be unable to sign a verdict that would effect capital punishment of a defendant, and where the prosecutor then moved successfully to strike those three veniremen from the jury for cause. Affirmed in part; reversed in part; remanded. Thomas A. Clark, Circuit Judge, filed an opinion concurring in part and dissenting in part.

* * *

The district court order issuing the Writ, on the basis of Witherspoon v. Illinois, is affirmed. Petitioner's existing death sentence shall not be carried out. The district court's finding of harmful constitutional error on petitioner's Doyle v. Ohio ground is reversed. The case is remanded for proceedings not inconsistent with this opinion. It is so ORDERED. AFFIRMED in part; REVERSED in part; REMANDED.

Alderman v. Austin, 695 F.2d 124 (5th Cir. 1983) (Habeas).

Inmate filed habeas corpus petition. The United States District Court for the Southern District of Georgia, B. Avant Edenfield, J., 498 F.Supp. 1134, granted petition, and appeal was taken. The Court of Appeals, 663 F.2d 558, affirmed in part, reversed in part and remanded. On rehearing en banc, the Court of Appeals, James C. Hill, Circuit Judge, held that: (1) investigating officer's single reference to defendant's expression of wish to exercise right to have attorney and right to remain silent was harmless error, and (2) panel holding that jury was constitutionally defective reinstated. Alderman v. C.A.11 (Ga.),1994.

Alderman v. Zant, 22 F.3d 1541 (5th Cir 1994) (Habeas).

After affirmance of murder conviction and death sentence, 241 Ga. 496, 246 S.E.2d 642, petition was filed for writ of habeas corpus. The United States District Court for the Southern District of Georgia, No. CV 488-122, B. Avant Edenfield, Chief Judge, denied petition, and petitioner appealed. The Court of Appeals, Fay, Senior Circuit Judge, held that: (1) petitioner's Brady/ Giglio allegation was procedurally barred; (2) petitioner was not entitled to benefit of fundamental miscarriage of justice exception to overcome procedural or abuse of writ bars; (3) there was no promise, understanding or agreement between state and codefendant/witness requiring disclosure of same to petitioner; and (4) trial court's exclusion of references to petitioner's hypnotic treatment did not deprive petitioner of fundamentally fair trial. Affirmed.

FAY, Senior Circuit Judge:

On June 23, 1992, the United States District Court for the Southern District of Georgia denied Alderman's petition for habeas corpus relief. On October 23, 1992, the district court granted Alderman a certificate of probable cause and thus this appeal. Because we find Petitioner's multiple allegations to be procedurally barred, an abuse of the writ, or in the alternative without merit, we AFFIRM the ruling of the district court.

FACTS

The Petitioner, Jack E. Alderman (“Alderman”), and his wife, Barbara Alderman (“Mrs. Alderman”), lived in an apartment in Chatham County Georgia. Alderman was employed as an assistant manager at the local Piggly Wiggly supermarket. Mrs. Alderman was employed in the Tax Assessor's office for the City of Savannah. In conjunction with her employment, Mrs. Alderman maintained a $10,000.00 life insurance policy that paid double benefits in the event of accidental death. Mrs. Alderman also had another life insurance policy in the amount of $25,000.00 which named her mother as beneficiary.

Alderman met John Arthur Brown (“Brown”), later convicted as an accessory to Mrs. Alderman's murder, when both Alderman and Brown were employed in the vehicle maintenance department for the City of Savannah. Brown testified that on September 19, 1974, Alderman phoned Brown and asked him to meet him at the Piggly Wiggly supermarket. Brown stated that during this meeting Alderman asked Brown to kill Mrs. Alderman in exchange for half the insurance proceeds. Brown, although claiming not to take Alderman seriously, accepted the proposition.

On Saturday, September 21, 1974, Alderman asked Brown to come to his apartment. When Brown arrived, Alderman handed Brown a twelve-inch crescent wrench and instructed Brown to go into the bedroom and kill Mrs. Alderman. Testimony indicates that Brown was initially reluctant, but agreed to strike Mrs. Alderman when persuaded by the gun wielding Alderman. Brown entered the dining room and struck Mrs. Alderman in the head with the wrench. Mrs. Alderman cried out and ran into the living room where she confronted her husband. Alderman tackled Mrs. Alderman, then assisted by Brown, placed his hands over Mrs. Alderman's nose and mouth until she was unconscious.

Alderman and Brown carried Mrs. Alderman's limp body to the bathroom and placed it in the bathtub. Alderman started to fill the tub while Brown cleaned the blood stains from both the living and dining rooms. Alderman and Brown changed clothes and left the apartment for several hours. The two men went to the Piggly Wiggly supermarket where Alderman borrowed $100.00. Alderman and Brown then went to two local Savannah bars. At some time during the evening Alderman gave Brown the $100.00.

Alderman and Brown returned to the apartment around 10:00 p.m., removed Mrs. Alderman's body from the bathtub and wrapped it in a green quilt. The two men carried the body to Alderman's 1974 Pontiac and placed it in the trunk. Brown drove Alderman's car as Alderman followed on his motorcycle. Alongside a creek in Rincon, Georgia, Brown and Alderman removed the body from the trunk and placed it in the driver's seat. At Alderman's direction, Brown reached in the driver's window and released the emergency brake allowing the car to roll into the creek. The car stopped halfway into the creek. Again at Alderman's direction, Brown opened the car door, pulled Mrs. Alderman's body halfway out and allowed her face to fall into the creek. The two men removed the green quilt and the rubber trunk mat from the car and fled the scene on Alderman's motorcycle.

Later that evening, on September 21, 1974, Randy Hodges (“Hodges”) and Terry Callahan (“Callahan”) were driving home on Baker Hill Road and Highway 131. As they turned onto Highway 131 and approached Dasher's Creek, they noticed a car in the creek. Hodges jumped out, saw that there was a woman in the car and sent Callahan to Lamar Rahn's house to call for help. Effingham County Sheriff Lloyd Fulcher (“Fulcher”) responded to the call. Upon his arrival at the scene, Fulcher found the victim's car in the water adjacent to the bridge. Fulcher noticed no apparent physical damage to the car. He ordered Mrs. Alderman's body to be removed from the car and taken to the hospital. Fulcher observed that there were no skid marks from the car but that motorcycle tracks were apparent in the area. Fulcher also noticed blood stains on the seat of the car and that the trunk mat was missing.

At the direction of Fulcher, Garden City police officer J.D. Crosby (“Crosby”) went to Alderman's apartment only to find it locked. Crosby later returned to the apartment at approximately 2:30 a.m. and found Alderman there with a woman. Crosby informed Alderman that his wife had been involved in a traffic accident, and asked him to accompany Effingham County authorities to the hospital. Georgia Bureau of Investigation Agent H.H. Keadle (“Keadle”) was present at the Effingham County hospital. Keadle and Fulcher noticed red/brown stains in the seat and crotch of Alderman's pants and on his belt. At that time, Alderman's clothes were taken from him. Keadle's investigation confirmed Crosby's findings at the accident scene. Keadle also recovered a stained portion of a green rug and Alderman's motorcycle helmet, which had been removed from the Alderman's apartment by Mrs. Alderman's mother. Alderman's father, Jack Alderman, Sr., also gave the police the twelve inch crescent wrench that he had removed from Alderman's apartment.

Forensic Serologist Elizabeth Quarles, of the Georgia State Crime Laboratory, examined the blood found on Alderman's clothes. The blood type was consistent with Mrs. Alderman's blood. An examination of the vehicle revealed one palm print and four fingerprints which were stipulated as Alderman's. Brown's fingerprints, however, were not found on the car.

Dr. Charles Sullinger (“Dr. Sullinger”) performed the autopsy upon Mrs. Alderman's body. Dr. Sullinger concluded that the laceration on the back of Mrs. Alderman's head was inflicted by a blunt instrument. Dr. Sullinger also concluded that because there existed only a small amount of blood in the car, the blow to Mrs. Alderman's head did not occur as a result of the accident. Dr. Sullinger found no evidence of any abnormalities in the heart, no scratches on the forearms and no evidence of strangulation. Dr. Sullinger concluded that the liquid in Mrs. Alderman's lungs revealed that Mrs. Alderman died as a result of asphyxia due to drowning.

Keadle's investigation led him to Brown. Brown eventually gave a statement incriminating himself and Alderman. At trial, Alderman testified on his own behalf and denied that he killed his wife.FN1 Alderman testified that on the night of September 21, 1974, he and his wife had an argument and that he left the apartment alone. He allegedly took a bus to Savannah where he spent some time at two local bars. Alderman testified that he returned home at approximately 10:00 p.m. but his wife was not at home. Alderman decided to go to Rincon, Georgia to see if Mrs. Alderman was at her grandparent's home.

FN1. A more complete version of Alderman's defense may be found in Alderman v. State, 241 Ga. 496, 246 S.E.2d 642, 644-45, cert. denied, 439 U.S. 991, 99 S.Ct. 593, 58 L.Ed.2d 666 (1978), reh'g denied, 439 U.S. 1122, 99 S.Ct. 1036, 59 L.Ed.2d 84 (1979).

Alderman testified that on his way to Rincon, he observed his car on the side of the bridge at Dasher's Creek. Alderman stopped his motorcycle and went to the car where he discovered his wife's body. Alderman stated that he picked up Mrs. Alderman's head and placed it in his lap. Upon hearing a noise, Alderman fled the scene in shock and fear. Alderman allegedly forgot about his wife's body, drove to Savannah and returned to a local bar. Alderman then went to Johnny Ganem's for breakfast with friends. While at breakfast, Alderman offered Gerlina Carmack (the female present in the Alderman's apartment when Officer J.D. Crosby arrived) a ride home. Alderman had allegedly stopped at his apartment to pick up a jacket when the police arrived and took him to the hospital where he identified his wife's body.

Alderman testified that he did not know why he had left his wife's body in the creek; that he recalled nothing of his trip back to Savannah; and, the fact that his wife was dead had completely left his mind. Appellant testified that he first realized the full facts surrounding his wife's death after being treated by a psychiatrist who was able to refresh his memory as to the events surrounding her death. He further testified that after being treated by the psychiatrist he realized that fear had caused him to leave his wife's body in the creek because he knew her family would blame him for her death.

PROCEDURAL HISTORY

Alderman was originally convicted in the Superior Court of Chatham County for the murder of his wife, Barbara Alderman. The jury determined guilt accompanied by two statutory aggravating circumstances: (1) Ga.Code Ann. § 27-2534.1(b)(4), i.e., murder “committed ... for the purpose of receiving money or any other thing of monetary value”; and (2) Ga.Code Ann. § 27-2534.1(b)(7), i.e., murder which was “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” The jury sentenced Alderman to death. On direct appeal, the Supreme Court of Georgia affirmed his conviction and sentence. Alderman v. State, 241 Ga. 496, 246 S.E.2d 642, cert. denied, 439 U.S. 991, 99 S.Ct. 593, 58 L.Ed.2d 666 (1978), reh'g. denied, 439 U.S. 1122, 99 S.Ct. 1036, 59 L.Ed.2d 84 (1979).

Alderman sought state habeas corpus relief in an action filed in the Superior Court of Chatham County, Georgia. Alderman v. Griffin, Civil Action No. 14385-C. On June 4, 1979, the state habeas corpus court held a hearing without restricting counsel in the presentation of evidence or argument. Relief was denied. The Supreme Court of Georgia subsequently denied Alderman a certificate of probable cause to appeal. The Supreme Court of the United States denied Alderman's petition for a writ of certiorari. Alderman v. Balkcom, 444 U.S. 1103, 100 S.Ct. 1068, 62 L.Ed.2d 788, reh'g denied, 445 U.S. 973, 100 S.Ct. 1670, 64 L.Ed.2d 252 (1980).

Alderman then filed an application for federal habeas corpus relief in federal district court. The district court ruled on two issues and granted relief as to the conviction and sentence. Alderman v. Austin, 498 F.Supp. 1134 (S.D.Ga.1980). On appeal, the Fifth Circuit Court of Appeals reversed the death sentence but affirmed the conviction. Alderman v. Austin, 663 F.2d 558 (5th Cir. Unit B 1981); Alderman v. Austin, 695 F.2d 124 (5th Cir. Unit B 1983) ( en banc ). Alderman did not urge the district court to rule on the remaining issues, and proceeded with a new sentencing hearing in the Superior Court of Chatham County, Georgia.

A new sentencing hearing was held in the Superior Court of Chatham County in March, 1984. Alderman was again sentenced to death. The Supreme Court of Georgia affirmed the death sentence. Alderman v. State, 254 Ga. 206, 327 S.E.2d 168, cert. denied, 474 U.S. 911, 106 S.Ct. 282, 88 L.Ed.2d 245, reh'g. denied, 474 U.S. 1000, 106 S.Ct. 419, 88 L.Ed.2d 369 (1985). Alderman then filed a petition for state habeas corpus relief in the Superior Court of Butts County, Georgia. Alderman v. Kemp, Civil Action No. 86-V-524. The state habeas corpus court dismissed the petition on September 10, 1987 following a hearing on June 29, 1987. On October 28, 1987, the Supreme Court of Georgia denied the application for a certificate of probable cause to appeal. The United States Supreme Court denied the petition for a writ of certiorari. Alderman v. Georgia, 485 U.S. 943, 108 S.Ct. 1124, 99 L.Ed.2d 285, reh'g denied, 485 U.S. 1030, 108 S.Ct. 1588, 99 L.Ed.2d 903 (1988).

On June 23, 1988, Alderman filed a second federal petition for a writ of habeas corpus in the United States District Court for the Southern District of Georgia. The district court denied relief on June 6, 1989, without an evidentiary hearing. Subsequent to the entry of the judgment, both Alderman and the State (“Respondent”) filed motions to alter and amend. On June 22, 1989, the district court entered an order denying Alderman's Motion to Alter and Amend but did not rule on Respondent's motion. During the pendency of Respondent's Motion to Alter and Amend, Alderman filed a notice of appeal.

On August 10, 1990, this Court dismissed the appeal for lack of jurisdiction based on Respondent's pending Motion to Alter and Amend. On remand, the district court entered an order on September 20, 1990 granting Respondent's Motion to Alter and Amend in part and denying the motion in part.FN2 Alderman then filed an appeal challenging both decisions by the district court while at the same time challenging the court's jurisdiction to consider his own appeal due to the failure to rule on an issue. On December 27, 1991, this Court again dismissed the appeal for lack of jurisdiction because the district court failed to rule on Petitioner's claim regarding the unconstitutional composition of the traverse jury.FN3

FN2. The district court specifically reaffirmed its finding that the Petitioner did not abandon or waive any of his rights by agreeing to a resentencing hearing. However, the court went on to amend its Order dated June 6, 1989 in regard to nine of the Petitioner's allegations it had previously held to be an abuse of the writ. The court stated that because the second state habeas court found that O.C.G.A. § 9-14-51 barred nine of the allegations contained in the successive petition, the court should defer to those rulings unless the Petitioner was able to show cause for his failure to raise the issues on the first state habeas petition. Presnell v. Kemp, 835 F.2d 1567, 1580 (11th Cir.1988), cert. denied, 488 U.S. 1050, 109 S.Ct. 882, 102 L.Ed.2d 1004 (1989). Therefore, the court amended its Order of June 6, 1989, and held that the nine allegations it previously found to be an abuse of the writ were, in the alternative, procedurally barred.

FN3. In remanding Petitioner's appeal to the district court, this Court also stated:Since we have had the advantage of briefs and oral arguments on the merits of this case, we note that upon remand the district court will have jurisdiction to hold an evidentiary hearing on Alderman's claims for violation of Giglio v. United States, 405 U.S. 150 [92 S.Ct. 763, 31 L.Ed.2d 104] (1972); Brady v. Maryland, 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] (1963), and prosecutorial misconduct based on the alleged failure to disclose a deal between the state and witness John Brown. (Order of December 27, 1991 at 4 n. 4.)

On February 21, 1992, the district court ordered the parties to submit briefs and scheduled an evidentiary hearing for March 18, 1992. On May 11, 1992, the district court denied Petitioner's request for an evidentiary hearing on the traverse jury issue, and refused to consider the issue at the evidentiary hearing. Subsequent to the evidentiary hearing, the deposition of Brown taken on May 20, 1992, was made part of the record. On June 23, 1992, the district court entered an order denying the petition for habeas corpus relief. On October 23, 1992, the district court granted Alderman a certificate of probable cause to appeal.

* * *

Appellant challenges the verdict stating that the evidence did not support a finding of the seventh statutory aggravating circumstance. We, like the district court, disagree. We find that the state court, the state supreme court and the district court properly found that there was sufficient evidence to support a finding of Georgia's (b)(7) statutory aggravating circumstance, namely that the offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim. Therefore, we agree with the district court finding that no federal constitutional deprivation was occasioned and that there was sufficient evidence to corroborate the testimony of Brown.

CONCLUSION