Daniel Greene, 30, was
sentenced to death in December 1992 in Clayton County where the
venue was changed from Taylor County.
He committed a violent crime
spree the night of Sept. 27, 1991, when he walked into a Reynolds
convenience store and pulled a clerk into the back room, demanded
money and stabbed her. He then stabbed customer Bernard Walker, 20,
in the heart, killing him.
A short time later, he forced his way
into the home of an elderly couple he knew and stabbed both and
stole their car. He then went to a convenience store in Warner
Robins where he robbed and stabbed the clerk.
In May 1997, the state
Supreme Court let the conviction and sentence stand.
(266 Ga. 439)
(469 SE2d 129)
Murder. Taylor Superior Court. Before Judge Whisnant.
Daniel Greene was convicted of the murder
of a customer in a convenience store and he was also
convicted of armed robbery and of committing an aggravated
assault against the store clerk. As an aggravating
circumstance, the jury found that the murder had been
committed during the course of the armed robbery and Greene
was sentenced to death. OCGA 17-10-30
(b) (2). For the armed robbery, he received a life sentence
and, for the aggravated assault, a 20-year sentence. Greene
appeals from the judgments entered by the trial court.
1. The trial court did not abuse its
discretion in denying Greene's motion for funds for
investigative assistance, since Greene failed to show that
an investigator was necessary to his defense or that his
trial was rendered unfair because he was denied funds for
investigative assistance. See Isaacs v. State,
259 Ga. 717, 725 (13) (386
SE2d 316) (1989); Rogers v. State,
256 Ga. 139, 145 (8) (344
SE2d 644) (1986).
Likewise, Greene also failed to make a
threshold showing that his mental health would be an issue
in either phase of trial. Compare Bright v. State,
265 Ga. 265 (2) (e), (f) (455
SE2d 37) (1995). Instead, his attorneys merely made
conclusory statements that they needed assistance to
determine whether Greene's mental health would be a
significant issue, and they offered no evidence or testimony
to support those conclusory statements. See Todd v. State,
261 Ga. 766, 772 (11) (410
SE2d 725) (1991); Roseboro v. State,
258 Ga. 39, 41 (3) (d) (365
SE2d 115) (1988). It follows that the trial court did
not err in denying Greene's request for funds for a mental
2. Greene contends that the trial court
erred in excusing five prospective jurors for cause based
upon their opposition to the death penalty.
Wainwright v. Witt, 469 U. S. 412 (105 SC
844, 83 LE2d 841) (1985) is the controlling authority as to
the death-penalty qualification of prospective jurors and
its holding is unmistakably clear and unambiguous. The
proper standard for determining when a prospective juror may
be excluded for cause because of his or her views on capital
is whether the juror's views would "prevent
or substantially impair the performance of his duties as a
juror in accordance with his instructions and his oath." We
note that, in addition to dispensing with Witherspoon[ v.
Illinois, 391 U. S. 510 (88 SC 1770, 20 LE2d 776) (1968),]
reference to "automatic" decisionmaking, this standard
likewise does not require that a juror's bias be proved with
"unmistakable clarity." This is because determinations of
juror bias cannot be reduced to question-and-answer sessions
which obtain results in the manner of a catechism. What-common
sense should have realized experience has proved: many
veniremen simply cannot be asked enough questions to reach
the point where their bias has been made "unmistakably clear";
these veniremen may not know how they will react when faced
with imposing the death sentence, or may be unable to
articulate, or may wish to hide their true feelings. Despite
this lack of clarity in the printed record, however, there
will be situations where the trial judge is left with the
definite impression that a prospective juror would be unable
to faithfully and impartially apply the law. . . . [T]his is
why deference must be paid to the trial judge who sees and
hears the juror.
Wainwright v. Witt, supra at 424-426 (II).
Contrary to Greene's contentions, the
transcript of voir dire does not show that any of the
prospective jurors were disqualified merely for expressing "qualms"
about the death penalty or for "leaning" toward a life
sentence. Rather, the prospective jurors were disqualified
only after the trial court undertook an exhaustive and
conscientious effort to determine whether their views on the
death penalty would prevent or substantially impair the
performance of their duties in accordance with their
instructions and oaths. It is not determinative that, at
some point during voir dire, each of the prospective jurors
may have given answers which, if considered in isolation,
would indicate that his or her opposition to the death
penalty was not "automatic." Likewise, it is not necessary
that the disqualification of each of the prospective jurors
may not appear with "unmistakable clarity." The relevant
inquiry is whether the trial court's finding that the proper
standard for death-penalty disqualification was met as to
each of the prospective jurors is "fairly supported" by the
record "considered as a whole." Wainwright v. Witt, supra at
433 (IV). On review, an appellate court should not
substitute its findings for those of the trial court.
Wainwright v. Witt, supra at 434 (IV). The conclusion that a
prospective juror is disqualified for bias is one that is
based upon findings of demeanor and credibility which are
peculiarly within the trial court's province and such
findings are to be given deference by appellate courts.
Wainwright v. Witt, supra at 428 (III). Applying this
controlling authority here, it is clear that, whatever
ambiguity may exist in the record of the voir dire, "the
trial court, aided as it undoubtedly was by its assessment
of [the prospective jurors'] demeanor[s], was entitled to
resolve it in favor of the State." Wainwright v. Witt, supra
at 434 (IV).
Greene's contention that the trial court
erred in excusing the prospective jurors is based upon a
fundamental misconstruction of Witherspoon v. Illinois,
supra. Witherspoon did not create any new ground for
challenging a prospective juror in a death-penalty case, but
merely addressed the long-recognized ground of
disqualification for bias in the context of a death-penalty
case. Wainwright v. Witt, supra at 423 (II).
[T]here is nothing talismatic about juror
exclusion under Witherspoon merely because it involves
capital sentencing juries. Witherspoon is not grounded in
the Eighth Amendment's prohibition against cruel and unusual
punishment, but in the Sixth Amendment. Here, as elsewhere,
the quest is for jurors who will conscientiously apply the
law and find the facts. That is what an "impartial" jury
consists of, and we do not think, simply because a defendant
is being tried for a capital crime, that he is entitled to a
legal presumption or standard that allows jurors to be
seated who quite likely will be biased in his favor.
Wainwright v. Witt, supra at 423 (II).
Because a contrary holding would be based upon an
unauthorized "talismatic interpretation of Witherspoon and a
misapplication of the controlling authority of Wainwright,
the trial court's finding that the prospective jurors were
disqualified must be affirmed.
3. Greene urges that it was error to fail
to disqualify a prospective juror based upon her purported
bias in favor of the death penalty. However, this
enumeration likewise is controlled by Wainwright and the
trial court was authorized to find that the "final
distillation" of the prospective witness' thoughts
demonstrated her qualification. Taylor v. State,
261 Ga. 287, 292 (5) (404
SE2d 255) (1991).
4. Contrary to Greene's contentions, the
record reflects that the trial court was even-handed in its
efforts to obtain a jury whose members would not be biased
either for or against the imposition of the death penalty.
5. In the State's exercise of its
peremptory strikes, Greene established a prima facie case of
discrimination against six African-American prospective
jurors. See Batson v. Kentucky, 476 U. S. 79 (106 SC 1712,
90 LE2d 69) (1986); Osborne v. State,
263 Ga. 214, 215 (3) (430 SE2d
576) (1993); Davis v. State,
263 Ga. 5, 7 (10) (426 SE2d
844) (1993). Therefore, the trial court properly
required the prosecutor to articulate the reasons for each
of these peremptory strikes. Greene contends that the trial
court erred in accepting the prosecutor's articulated
reasons, urging that those reasons were neither supported by
the record nor applied to white prospective jurors.
Contrary to Greene's contention, a
thorough review of the voir dire of each of the six
prospective jurors reveals a valid racially-neutral basis
for the employment of a peremptory strike. Batson does not
demand that the explanation proffered by a prosecutor be "persuasive,
or even plausible." Purkett v. Elem, ---- U. S. ---- (115 SC
1769, 131 LE2d 834) (1995). "[A] 'legitimate reason' is not
a reason that makes sense, but a reason that does not deny
equal protection." Purkett v. Elem, supra at 1771. The
prosecutor correctly noted that the first prospective juror
expressed sympathy for cocaine users who engage in
uncharacteristic criminal activity, the second failed to
disclose a criminal conviction, the third failed to report
for jury duty the first day and reported a kidney problem
which would interfere with her service, the fourth was a
single mother with no family in town to assist with child
care, the fifth expressed reservations about the death
penalty, and the sixth was a single mother with doubtful
child care arrangements who expressed hesitation about the
death penalty. The white prospective jurors to whom Greene
points for comparison did not in fact give comparable
answers on voir dire. For example, those with small children
were able to make arrangements for child care, none had
health problems which would interfere with service, and
those with some hesitation regarding the death penalty were
favorable to the State in other ways. The State's proffered
reason for striking a potential juror is sufficient to rebut
a prima facie showing of racial discrimination so long as it
is racially neutral, related to the case, clear and
reasonably specific. Gamble v. State,
257 Ga. 325, 327 (5) (357 SE2d
792) (1987). The State's explanations met this test
and the fact that the State accepted no similarly situated
white prospective juror undercuts any motive to exclude
African Americans. See Osborne v. State, supra at 216-217
Although Greene did respond to the
reasons articulated by the prosecutor, he urges that the
trial court erred in failing to afford him a more extensive
opportunity to rebut those proffered reasons. However, once
a race-neutral explanation has been tendered, the trial
court must then decide whether purposeful racial
discrimination has been proven. Purkett v. Elem, supra at
1770-1771. The prosecutor's proffered explanations in this
case satisfied the State's burden of articulating a
nondiscriminatory reason for the strikes and the inquiry
thus was properly framed for the trial court's determination.
Purkett v. Elem, supra at 1771.
Greene further contends that the trial
court erred in ruling that the State need not articulate its
reasons for exercising a peremptory strike against the only
prospective juror who was of Asian Indian descent. However,
the first step in establishing a prima facie case of
purposeful discrimination is to establish that the
prospective juror belongs to a cognizable racial or ethnic
group. See Batson, 476 U. S. at 94; Powers v. Ohio, 499 U.
S. 400, 402 (111 SC 1364, 113 LE2d 411) (1991). Greene did
not even attempt to show that Asian Indians are a cognizable
group and he cites no authority for aggregating racial or
ethnic groups. It follows that Greene failed to establish a
prima facie case of racial discrimination against Asian
Indians under Batson. See United States v. Bucci, 839 F2d
825, 833 (1st Cir. 1988), cert. denied, 488 U. S. 844 (109
SC 117, 102 LE2d 91) (1988).
6. Although a prospective juror initially
indicated that he would tend to believe a police officer
over a defendant, he later stated that he would judge a
police officer's credibility by the same criteria as any
witness. It follows that the trial court did not err in
denying Greene's challenge to this prospective juror for
alleged bias in favor of the police. See Foster v. State,
248 Ga. 409, 410 (3) (283
SE2d 873) (1981). See also Johnson v. State,
262 Ga. 652 (2) (424 SE2d 271) (1993).
State, 260 Ga. 640,
641 (1) (d) (398 SE2d 179)
(1990); Baxter v. State, 254 Ga. 538,
543 (7) (331 SE2d 561) (1985).
The Guilt-Innocence Phase of Trial
8. The evidence presented at trial
authorized the jury to find the following facts:
On the evening of September 27, 1991,
Greene made a series of trips to the Suwanee Swifty, a
convenience store and gasoline station in Reynolds, Taylor
County, Georgia. During his final visit, Greene grabbed the
store clerk, Virginia Wise, held a knife to her throat, and
told her to give him the money from the cash register.
After obtaining the money, $142.55,
Greene continued to hold the knife to Wise's throat. He
pulled her to the back room, then cut her across three
fingers and stabbed her through the lung and liver. Upon
hearing the automatic doorbell ring as Bernard Walker
entered the store, Greene placed Wise against the bathroom
wall, telling her that if she left the room he would have to
Greene reentered the public area of the
store and encountered Walker waiting at the counter to make
a purchase. He stabbed Walker in the heart, threw down the
knife, left the store and drove away. After attempting to
get help, Walker fell dead in the parking lot.
Later that evening, Greene went to the
home of Willie and Donice Montgomery, an elderly couple in
rural Macon County for whom Greene had worked as a farm
laborer for about two months. Greene burst through the
Montgomerys' kitchen door wielding a knife and asked for
their car keys. Mr. Montgomery gave Greene the keys, and
Greene proceeded to stab each victim multiple times in the
After leaving the Montgomerys' home,
Greene drove their car to a convenience store in Warner
Robins, Houston County, Georgia. Once there, he held a
butcher knife to the cashier, Bonnie Roberts, and forced her
to give him the money from the cash register. He then walked
toward her and attempted to stab her in the chest. She bent
down, and Greene drove the knife into the back of her
shoulder. Greene then drove the Montgomerys' car to the home
of an acquaintance in Warner Robins, where he was
Greene was tried separately and convicted
of the Macon and Houston County crimes. The trial from which
this appeal is taken concerned only Greene's indictment for
the crimes committed in Taylor County.
Before trial, Greene confessed to the
crimes, explaining in a videotaped interview that he had
committed them to obtain money for crack cocaine. At trial,
Greene testified that he could not remember committing the
crimes or confessing, and that he could only recall
experiencing a severe headache inside the Suwanee Swifty
after having smoked a cigarette given to him earlier by an
acquaintance. He theorized that his criminal behavior might
have been induced by the cigarette, which must have been
laced with a powerful, mind-altering drug.
The evidence is sufficient to enable any
rational trier of fact to find Greene guilty of the crimes
charged beyond a reasonable doubt. Jackson v. Virginia, 443
U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
9. Assuming, without deciding, that the
prosecutor's reference in his opening statement to the
murder victim's popularity in the community, and his comment
to the jurors in closing argument that they could not help
but have sympathy for the victim's family were improper,
Greene failed to object and those comments did not, in all
reasonable probability, change the result of trial. See Todd
v. State, supra at 767 (2) (a).
10. When the murder victim's mother began
crying and was escorted from the courtroom, Greene moved for
a mistrial. The trial court denied the motion, but did give
curative instructions. When, in his closing argument, the
prosecutor made reference to this incident, Greene
immediately objected and the trial court again instructed
the jurors to put the incident out of their minds.
Thereafter, Greene failed to move for a mistrial or any
additional instructions and we find no reasonable
probability that the prosecutor's comments changed the
result of the trial. Todd v. State, supra at 767 (2) (a).
11. The record does not support Greene's
contention that his right against self-incrimination was
violated by references to his decision not to testify.
12. Likewise, the record does not support
Greene's contention that there were improper references made
to his failure to testify at his earlier trial in another
13. Greene urges that the trial court
erred in admitting evidence of the crimes that he committed
in Macon and Houston counties on the evening of September
27, 1991, and early morning of September 28, 1991,
immediately following his commission of the crimes for which
he was on trial in the present case. However, those crimes
were admissible as elements of one crime spree and as
evidence of Greene's bent of mind and of the circumstances
of his arrest. See Todd v. State, supra at 771 (7); Davis v.
State, 255 Ga. 598, 605 (9) (340
SE2d 869) (1986); Ingram v. State,
253 Ga. 622, 632 (6) (323
SE2d 801) (1984).
Greene further contends that the jury was
exhorted to convict him as punishment for the crimes he
committed in Macon and Houston counties. In context, however,
the prosecutor's remarks conveyed to the jurors that they
should only consider evidence of those crimes for proper
purposes, such as its tendency to rebut the defense theory
that Greene merely ran into Walker accidentally as Greene
was running out of the Suwanee Swifty with a knife in his
14. The State indicated that various of
its witnesses had testified in the Macon or Houston County
trials regarding Greene's alleged crime spree. By doing so,
the State did not engage in improper bolstering of those
witnesses. Furthermore, Greene failed to object, and there
is no reasonable probability that the outcome of the trial
was changed. See Todd v. State, supra at 767 (2) (a).
15. When Greene attempted to question the
deputy sheriff as to whether the victim's cousin had ever
been investigated for any crime, the trial court sustained
the State's relevance objection. There was no error in this
evidentiary ruling, since Greene's identity as the
perpetrator was not contested.
16. On direct examination, Ms. Montgomery,
one of the Macon County victims, testified that when Greene
was coming in the door of her home, she heard her husband
say, "Don't come in here; don't come in here." The statement
was admissible as part of the res gestae. See Jarrett v.
State, 265 Ga. 28, 29 (2) (453
SE2d 461) (1995).
17. During direct examination of the
Montgomerys' son, the prosecutor asked, "Mr. Montgomery, is
there anything you know, any reason you know why Daniel
Greene would want to go in there and do that to your mom and
dad?" The witness answered in the negative. Assuming,
without deciding, that the question was improper, Greene has
failed to show harm.
18. The trial court did not err in
allowing the State to question two witnesses about their
prior inconsistent statements, since the requirements of
OCGA 24-9-83 were met. See
Meschino v. State, 259 Ga. 611,
613 (2) (385 SE2d 281) (1989).
It follows, therefore, that the prosecutor's references to
the inconsistent statements in closing argument were not
improper. The trial court did not err in failing to instruct
on impeachment, since Greene admitted that such an
instruction was unnecessary. See Jones v. State,
242 Ga. 893, 895 (5) (252
SE2d 394) (1979). 19. Greene contends that the
prosecutor's closing argument was improper in several
(a) Contrary to Greene's contention, the
prosecutor did not improperly vouch for the credibility of
an eyewitness, but merely defended the witness' credibility
(b) The prosecutor's characterization of
Greene as mean" was not improper, but was a legitimate
inference to be drawn from the evidence.
(c) It was improper for the prosecutor to
ask the jurors rhetorically what they would have done in
Wise's situation, "as the jurors were thereby 'invited to
place themselves in the victim's place in regard to the
crime itself. (Cit.)' [Cit.]" Burgess v. State,
264 Ga. 777, 785 (20) (450
SE2d 680) (1994). However, as was the case in Burgess,
the error was harmless given the overwhelming evidence of
(d) The prosecutor did not improperly
shift the burden of proof to Greene or comment on Greene's
failure to testify by remarking to the jurors that they had
heard nothing that showed the victim deserved to die nor any
evidence of self-defense. It is not improper to comment on
the failure of the defense to present evidence to rebut the
State's evidence of guilt. See Thornton v. State,
264 Ga. 563, 567 (4) (a) (449
SE2d 98) (1994). Likewise, the prosecutor's comment
on Greene's demeanor in the courtroom was not improper. See
Christenson v. State, 261 Ga. 80,
88 (7) (b) (402 SE2d 41)
(e) Greene's contention that the
prosecutor improperly alluded to extrajudicial knowledge of
a witness lacks merit. Read in context, the comment was
merely a logical deduction from evidence presented at trial.
(f) The prosecutor did not invoke his
expertise as a basis for returning a verdict as to Greene's
guilt or the imposition of the death penalty. See Conklin v.
State, 254 Ga. 558, 573 (11)
(b) (331 SE2d 532) (1985).
Moreover, as was the case in Conklin, supra at 573 (11) (b),
considering the evidence that was presented, "it is unlikely
that prosecutorial experience or expertise played a
discernible role in the jury's evaluation of the vileness
and brutality of [Greene's] crime[s]."
(g) Contrary to Greene's contention, the
prosecutor neither misstated the burden of proof nor misled
the jury on the definition of "malice aforethought."
(h) The prosecutor made two references to
the sentencing phase of the trial and, after each reference,
the trial court admonished the prosecutor that punishment
was not an appropriate topic for the guilt-innocence phase.
We conclude that the court's admonitions were sufficient to
address any confusion in the minds of the jurors.
The Sentencing Phase of Trial
20. There was no issue as to Greene's
mental illness or retardation and, when Greene testified in
his own behalf, he conceded his sanity and lack of
retardation. Accordingly, it was not error for the
prosecutor to pursue that topic and to argue to the jury
that mental illness or retardation was not an impediment to
imposition of the death penalty.
21. Greene urges that a witness was
erroneously allowed to give an opinion as to sentencing.
Childs v. State, 257 Ga. 243,
256 (19) (b) (357 SE2d 48)
(1987). However, there was no objection at trial. Moreover,
the jury's finding of a statutory aggravating circumstance
was clearly supported by the record, Greene's crimes were
gruesome and unprovoked, and his evidence in mitigation was
weak. Under these circumstances, we do not find a reasonable
probability that, but for the witness' expression of his
opinion, the jury would have returned a life sentence. See
Ford v. State, 255 Ga. 81, 94
(8) (i) (335 SE2d 567) (1985).
22. Greene urges that the direct
examination of his witnesses in mitigation was erroneously
curtailed. However, the trial court was authorized to
disallow questions which called for speculation or a witness'
religious or philosophical attitudes about the death penalty.
Childs v. State, supra at 256 (19) (b).
23. Relying upon OCGA
17-8-76 (a), Greene urges that,
on numerous occasions, the prosecutor made a reference to
the possibility of parole and that the trial court failed to
declare a mistrial.
On one occasion, the prosecutor made a
comment which could reasonably be construed as referring to
the possibility of Greene's escape rather than to his parole.
In response to Greene's motion for a mistrial, the trial
court nevertheless gave curative instructions and we find no
error. See Finney v. State, 253 Ga.
346, 348 (5) (320 SE2d 147)
(1984). This was Greene's only motion for mistrial based
upon OCGA 17-8-76 and on no
other occasion did the prosecutor mention the word "parole."
Even assuming that the prosecutor's other references
violated the tenor of OCGA 17-8-76
(a), Greene's failure to make a motion for a mistrial under
OCGA 17-8-76 (b) resulted in a
waiver of his statutory right thereunder. Finney v. State,
supra at 348 (5).
24. Greene contends that, in the cross-examination
of his witnesses in mitigation, the State was erroneously
allowed to use evidence of his other criminal activities in
violation of OCGA 17-10-2.
However, not only was there a failure to object, OCGA
17-10-2 was not applicable and
there was no error. Christenson v. State, supra at 90 (8)
25. Greene contends that an out-of-court
statement attributed to him was inadmissible hearsay and
that the Sheriff of Taylor County was erroneously allowed to
testify to that statement. However, an out-of-court
statement is considered hearsay only if it is offered to
prove the truth of what is contained therein. Bundrage v.
State, 4265 Ga. 813, 814
(2) (462 SE2d 719) (1995).
Here, the out-of-court statement was not offered to prove
that Greene spoke the truth when he said that he was
prepared to behave unless and until he received the death
penalty. To the contrary, the out-of-court statement was
offered to explain the pre-sentencing conduct of Greene and
the Sheriff and, if their pre-sentencing conduct was a
relevant inquiry, the statement would be admissible as
original evidence and not as an exception to the hearsay
rule. Bundrage v. State, supra at 814 (2); Teague v. State,
252 Ga. 534 (1) (314 SE2d 910) (1984).
Greene called the Sheriff as his own
witness during the sentencing phase and, on direct
examination, Greene undertook to show that he had been a
model prisoner who was amenable to incarceration. This
direct examination rendered the conduct of Greene and the
Sheriff a relevant topic of inquiry by the State on cross-examination.
If it could, the State should be allowed to show that
Greene's previous "model prisoner" conduct was merely a ploy
to evade the death penalty and to show that the Sheriff's
previous conduct in securing Greene's person was not
consistent with that afforded a "model prisoner." See Blake
v. State, 239 Ga. 292, 295 (1)
(236 SE2d 637) (1977). The
out-of-court statement attributed to Greene accomplished
both purposes. It explained Greene's pre-sentencing conduct
toward the Sheriff and it explained the Sheriff's pre-sentencing
conduct toward Greene, showing that the conduct of neither
was consistent with the "model prisoner" status which
Greene's direct examination of the Sheriff had intimated.
Since it was Greene himself who rendered the inquiry into
the pre-sentencing conduct of himself and the Sheriff a
relevant topic, he cannot object that the State thereafter
sought to explain that conduct with admissible original
evidence. Under OCGA 24-9-64,
the State, as the opposite party, had the right to a
thorough and sifting cross-examination of the witnesses whom
Greene had called in an effort to avoid the death penalty.
At some point after Greene's out-of-court
statement had been introduced over Greene's hearsay
objection, the prosecutor questioned the Sheriff with
general regard to the security measures that had been taken
in the courtroom. Greene did not object to the question that
the prosecutor posed to the Sheriff or to the Sheriff's
answer thereto. The only objection that was ever raised by
Greene was a hearsay objection to the Sheriff's testimony
regarding the out-of-court statement attributed to Greene.
That hearsay objection would not be broad enough to extend
to a question and answer which were related, not to any out-of-court
statement, but to the Sheriff's in-court actions. In any
event, the mere passing reference to extraordinary-but-unspecified
security measures was not inadmissible. Since the topic of
Greene's status as "model prisoner" had been introduced by
Greene himself, he cannot object that the State made a
general showing that security measures utilized during his
trial were not those which would be employed during the
trial of a "model prisoner."
26. During closing argument in the
sentencing phase, the prosecutor made references to certain
Biblical teachings. Although Greene made no objection to
these references in the trial court, he urges on appeal that
those references mandate a reversal of his death sentence.
It is not and has never been the law of
this state that religion may play no part in the sentencing
phase of a death-penalty trial. As Hill v. State,
263 Ga. 37, 46 (19) (427
SE2d 770) (1993) clearly holds in Georgia, it is
improper for the prosecutor to urge imposition of the death
penalty based upon the defendant's beliefs or to urge that
the teachings of a particular religion mandate the
imposition of that sentence, but the prosecutor nevertheless
" 'may allude to such principles of divine law relating to
transactions of men as may be appropriate to the case.' (Cit.)
Conner v. State, 251 Ga. 113,
122-123 (303 SE2d 266)
(1983)." Hill v. State, supra at 46 (19). See also Crowe v.
State, 265 Ga. 582, 593 (18)
(d) (458 SE2d 799) (1995).
[I]t is clear that neither the Eighth
Amendment nor OCGA 17-10-35
(c) (1) ([cit.]) forbids a death penalty based in part on an
emotional response to factors in evidence which implicate
valid penological justifications for the imposition of the
death penalty. Perforce, argument by the prosecutor which "dramatically
appeals" to such legitimate emotional response is not "constitutionally
Conner v. State, supra at 122 (5).
Greene points to nothing in the
prosecutor's argument which urged the imposition of the
death sentence based upon his religious belief or urged that
the teachings of a particular religion mandated the
imposition of that sentence against him. Rather, the
argument challenged by Greene consists entirely of
references to principles of divine law related to the
penological justifications for the death penalty, including
the concept of retribution and whether, considering the
enormity of his crime, Greene should be extended mercy. It
is just this type of argument that was found to be
authorized in Hill and Crowe.
Moreover, even assuming that the
prosecutor's argument was impermissible, it does not follow
that Greene's death sentence must be reversed. On the issue
of whether the prosecutor's argument in this case, to which
there was no objection, warrants a reversal of the death
sentence, Crowe and Hill cannot be distinguished and, as
controlling authority, those cases mandate a finding that "there
is no reasonable probability that this argument, even if
improper, changed the result of the trial. [Cit.]" Crowe v.
State, supra at 593 (18) (d).
27. Greene enumerates as error various
other instances of alleged improper argument by the
prosecutor in the sentencing phase.
(a) Contrary to Greene's contention, the
prosecutor limited his argument to reasonable inferences
from the evidence and to matters within common knowledge.
See Hall v. State, 259 Ga. 412,
414 (2) (383 SE2d 128) (1989).
(b) When the prosecutor mentioned the
victim's weeping mother who had been escorted from the
courtroom during the guilt-innocence phase, Greene made no
objection and we find no reasonable probability that this
reference resulted in the imposition of the death sentence.
Ford v. State, supra at 94 (8) (i).
(c) Argument regarding general deterrence
was not improper. Fleming v. State,
265 Ga. 541, 542 (458 SE2d 638)
(d) Argument regarding the bias and
impeachment of Greene's mother as a character witness was
(e) It was not improper for the
prosecutor to comment on the failure to produce witnesses as
to certain of Greene's contentions. See Isaac v. State,
263 Ga. 872, 874 (4) (b) (440
SE2d 175) (1994).
(f) The prosecutor's statement that the
videotape of Greene's confession had been in evidence for
some time may not have been accurate, but the confession had
been admitted and the reference to the length of time it had
been in evidence could not have misled the jury into
returning a death sentence.
28. Greene enumerates as error the trial
court's refusal to give several of his requested charges.
However, our review of the record shows that Greene's
requests were either improper or were covered by the full
and fair charge that was given by the trial court.
29. The trial court's failure to give
certain charges which were never requested was not error.
30. We do not find that Greene's death
sentence was imposed under the influence of passion,
prejudice, or other arbitrary factor. See OCGA
17-10-35 (c) (1). The death
sentence is not excessive or disproportionate to penalties
imposed in similar cases, considering both the crime and the
defendant. The similar cases listed in the Appendix support
the imposition of the death sentence in this case.
FLETCHER, Presiding Justice, concurring
specially in part.
I concur in the majority opinion except
for the rationale of Division 25.
Greene's evidence during the sentencing
phase that he was a model prisoner made relevant his conduct
during his incarceration prior to trial. Therefore, the
state's evidence that Greene made violent threats while
purporting to be a model prisoner was admissible.
Greene's attempt to show that he had been
a model prisoner while in the custody of the Sheriff of
Taylor County did not, however, make relevant the fact that
the Sheriff of Clayton County undertook extraordinary
security measures during trial. Had an objection been raised,
the trial court should have sustained it because that
evidence was not relevant.
The admission of this evidence, even if
over objection, was not so highly prejudicial as to require
reversal. Visible signs of extraordinary security and
conditions such as shackles and prison clothing are
considered highly prejudicial because they are "constant
reminder[s] of the accused's condition."
2 The challenged evidence
here was a passing reference to unspecified security
measures. In the absence of any details or embellishment,
this brief statement was unlikely to influence the jury as
would the constant sight of shackles.
BENHAM, Chief Justice, concurring in part
and dissenting in part.
I concur in the affirmance of Greene's
convictions, but I must respectfully dissent to the
affirmance of the death sentence on several grounds. First,
the trial court erred in excusing for cause several
prospective jurors who said that they could vote for the
death penalty but would have qualms about it. Second, the
prosecutor improperly elicited testimony in the sentencing
phase that, based on hearsay suggesting Greene might become
violent at sentencing, extreme and unprecedented measures
were taken to secure the courtroom. Finally, the prosecutor
improperly urged execution on religious grounds. Each of
these errors requires reversal of the sentence under settled
principles of law.
1. Greene contends that the trial court
committed reversible error in excusing five prospective
jurors for cause on the ground that they dismisses this
contention as unsupported both factually and legally. Yet
the majority opinion fails to provide any summary of the
voir dire and fails to cite any of our cases interpreting
the standard articulated in Wainwright v. Witt, 469 U. S.
412 (105 SC 844, 83 LE2d 841) (1985). In fact, the record
shows that although the prospective jurors expressed qualms
about the death penalty, four of them unambiguously
indicated on voir dire that they could vote to impose a
death sentence in an appropriate case. Therefore, this case
is indistinguishable from Jarrell v. State,
261 Ga. 880 (1) (413 SE2d 710) (1992),
and reversal is required.
The standard for death-qualification is
whether the prospective juror's views on capital punishment
would " 'prevent or substantially impair the performance of
[her] duties as a juror in accordance with [her]
instructions and [her] oath.' " Wainwright v. Witt, 469 U.
S. at 424, quoting Adams v. Texas, 448 U. S. 38, 45 (100 SC
2521, 65 LE2d 581) (1980). If a venire member merely
indicates on dire that she the death penalty or is leaning
toward a life sentence, she may not be disqualified on that
basis. See Jarrell v. State, 261 Ga. at 880 (1) (reversing
death sentence where juror who was excused for cause said
capital punishment is justifiable for bad crimes but that
she had qualms, was not sure she could vote for it, and
would probably lean toward a life sentence); Isaacs v. State,
259 Ga. 717 (24) (386 SE2d 316)
(1989); Alderman v. State, 254
Ga. 206 (4) (327 SE2d 168) (1985). Wainwright v. Witt
does not alter the holding of Witherspoon that
a sentence of death cannot be carried out
if the jury that imposed or recommended it was chosen by
excluding veniremen for cause simply because they voiced
general objections to the death penalty or expressed
conscientious or religious scruples against its infliction.
Witherspoon v. Illinois, 391 U. S. 510,
522 (88 SC 1770, 20 LE2d 776) (1968). See Alderman, 254 Ga.
at 207 (4). To eliminate from the venire all persons voicing
such scruples is to distort the "conscience of the community"
which the jury is assembled to express. See Witherspoon, 391
U. S. at 519-520. That distortion in turn undermines the
legitimacy of the judicial process in the exercise of its
unparalleled power to determine whether an individual
citizen will live or die. Execution of a death sentence
imposed by a jury of such skewed composition would
unconstitutionally deprive the defendant of life without due
process of law. See id. at 523.
Examining in detail the voir dire of each
of the prospective jurors in turn, it is plainly apparent
that exclusion of at least four of them was clear error
under the standard articulated in Wainwright v. Witt and
applied in Jarrell v. State:
The first of the four prospective jurors
indicated that it would be harder for her to impose the
death penalty than a life sentence, that she would hate to
know that she helped to put someone to death, and that she
leaned toward a life sentence. However, she said
unequivocally and repeatedly that she could vote for the
death penalty under appropriate circumstances. She stated
that her hesitation about the death penalty would not affect
her decision on conviction. Asked if she would want jurors
like herself to serve if the victim were her son, she said
that she would not, but she explained that as the victim's
mother, she would want revenge.
Although the second of the prospective
jurors initially stated that she was conscientiously opposed
to the death penalty, she then clearly stated that under
some circumstances she would vote for it. She expressed "some
serious concerns about the death penalty," primarily of a
religious nature, commenting on the price she would have to
pay for partaking in something that resulted in the taking
of another's life. When then asked by the prosecutor if it
would be fair to say that, for religious or other reasons,
she just had a feeling against the death penalty, she said,
"Okay, I have a feeling against the death penalty." She also
agreed that her predisposition was long-held. She reiterated
on continued questioning by the prosecutor that although she
had problems with the death penalty, she would be open-minded
enough to consider all the evidence and that she was not
leaning toward either sentence in advance in this case,
although in general she leans toward life. When the court
asked her if she could "just lay aside [her] religious
beliefs," she said that she could not say definitely that
she would be able to do so. Thereafter, the prosecutor asked
her if she could "just casually cast aside" her views, and
the juror answered, "I don't think you can just casually
cast aside what's going to happen to someone's life." On
repeated questioning, she said that she would bring her
views to the jury room. However, she stated that her
reservations would not keep her from considering the
evidence and the instructions of the court, that she would
listen to both sides, and that she would vote to impose the
death penalty if the evidence warranted it. These responses
clearly do not disqualify the juror from service. Wainwright
v. Witt does not require that a prospective juror casually
cast off her religious views at the jury room door, nor that
she lack serious concern about imposing the death penalty.
The third of the prospective jurors, when
asked whether she was conscientiously opposed to the death
penalty, said, "Well, I've never in my heart felt like that
you should take one life for another. So, you know, it's
kind of hard for me to answer." When the court asked her if
she was so conscientiously opposed to capital punishment
that she would not vote for the death penalty under any
circumstances, she said that if upon hearing all of the
evidence she was totally convinced that the death penalty
was appropriate, she would vote for it. Later, when asked
whether she could ever impose the death penalty, she
contradicted her earlier answer, saying, "I don't know. It'd
just be hard for me to do it. I guess my answer would have
to be no." However, she explained that she was having a hard
time answering without having the benefit of any evidence
about the case. She said that, because of her lack of
information, she did not have a leaning toward either
sentence at that time. She then clearly responded to a
series of the court's questions by indicating that she could
vote to impose the death penalty. She did express misgivings
about having to send someone to the electric chair. Also,
when the prosecutor asked her if it bothered her that the
case was a death penalty case, she said that, having never
been involved in one, she did have some reservations. The
prosecutor then asked her,
So, really and truly, insofar as the
death penalty is concerned, your mind is not impartial
between the two penalties, you would favor a life sentence
just automatically because of the way you feel?
She answered, "Well, I wouldn't say that
automatically, I mean, I would rather go for a life sentence
than the death penalty." The prosecutor then asked the juror
whether he would be able to talk her out of her personal
views on the death penalty, and she responded that it would
take more than just him. The state notes that the juror
seemed to take offense at questions about the death penalty,
but she explained that the questioning made her feel as if
she were on trial. Again, the juror's answers, taken as a
whole, clearly do not disqualify her from service. The law
does not require complete impartiality between sentencing
options in the abstract, nor does it disqualify from jury
service all citizens with any misgivings about electrocution.
Furthermore, the law requires jurors to impose the death
penalty only when they have been convinced to do so by the
facts in evidence, never by the arguments of counsel.
The fourth of the prospective jurors said
she was not conscientiously opposed to the death penalty.
Then, on first being asked whether she could vote for death
in the electric chair, she said, "I don't think so." After
reiterating that view several times, she said that under
some circumstances, she probably could vote for the death
penalty. Ultimately, in response to the court's questions,
she said that she was not leaning toward either sentence.
When the prosecutor began his questioning, she explained the
apparent conflict in her answers, saying that she had not
understood the questions at first, but that her decision
about the penalty would depend entirely on the evidence and
circumstances. She said she would probably vote for life
imprisonment and that her belief that she would probably do
so is one from which the prosecutor could not dissuade her.
Finally, after the prosecutor asked her to concede that she
is opposed to the death penalty, that she could never vote
for it, and that she could not cast her beliefs aside, the
juror said, I still say it all depends on what the
circumstances are. I would have to first weigh it in my mind
and think about it. But I just couldn't right off say, yes
After more prodding, she said,
Well, you know, I've told you I would
have to hear what the evidence is and everything, and the
surrounding things that led up to it or what's what. I
couldn't just right off say yes or no.
In questioning by the defense, she
clearly stated that she could vote for the death penalty.
Despite strong and repeated coaxing down the path of
disqualification, the prospective juror clearly demonstrated
that she was qualified to serve.
Clearly these prospective jurors did not,
as the majority indicates, merely at some point in voir dire
give answers which, if considered in isolation, would
indicate that their opposition to the death penalty was not
"automatic." Nor is the record of voir dire ambiguous. On
the contrary, each of the prospective jurors stated
unambiguously that she could vote to impose the death
penalty after considering all of the evidence and
instructions. The majority's deference to the trial court's
imagined findings regarding demeanor and credibility, under
these facts, seriously undermines this Court's ability ever
to review any excusal for cause under Wainwright v. Witt. As
such, it is a dramatic departure from precedent. See, e.g.,
Jarrell, 261 Ga. at 880 (1).
Prosecutors, like defense attorneys, have
available to them peremptory strikes. The prosecutor in this
case could and did use a number of peremptory strikes to
remove jurors perceived to lean toward a life sentence.
However, the trial court's practice of removing for cause
any prospective juror with serious concerns about imposing
the death penalty was plainly unconstitutional. See
Witherspoon, 391 U. S. at 523. "In its quest for a jury
capable of imposing the death penalty, the State produced a
jury uncommonly willing to condemn a man to die." Id. at
Because the voir dire of four jurors who
were excused for cause, viewed as a whole, fails to fairly
support the trial court's finding that any was disqualified,
the death penalty cannot stand. See Davis v. Georgia, 429 U.
S. 122, 123 (97 SC 399, 50 LE2d 339) (1976); Pope v. State,
256 Ga. 195 (7) (d), (e) (345
SE2d 831) (1986). Therefore, I must respectfully
2. In Division 25, the majority holds
that the trial court properly admitted testimony regarding
an out-of-court statement allegedly made by Greene to
another inmate, because it was not hearsay and was
admissible to explain the conduct of Greene, as well as the
conduct of the sheriff in employing certain security
measures at trial.
The majority further holds that testimony
regarding the security measures themselves was admissible to
rebut the witness' testimony that Greene had behaved in
prison. On the contrary, admission of testimony as to both
Greene's alleged statements and the security measures was
highly improper and so prejudicial that it may well have
determined the outcome of the sentencing phase of trial.
This case was tried in Clayton County.
Over objection, the court permitted Sheriff Giles of Taylor
County to testify on cross-examination that he had told the
sheriff of Clayton County that an inmate had reported to
Giles a statement that Greene allegedly made to the inmate.
Specifically, Giles testified that Greene allegedly told the
inmate that Greene would behave and there would be no
trouble during trial up to the moment the jury announced its
sentencing phase verdict, whereupon, if Greene received a
death sentence, the sheriffs would have to kill Greene in
the courtroom, and "that would be the end of it." After
eliciting the testimony, the prosecutor asked Giles whether,
as a result of the information, there were measures taken to
secure Greene in the courtroom "that we haven't previously
had in our part of the world." Giles answered in the
affirmative, and no further evidence was offered regarding
the measures which had been taken.
The majority holds that the testimony
regarding Greene's alleged statements to the inmate was
admissible not as hearsay but as original evidence to
explain the conduct of the sheriff of Clayton County in
taking security precautions. However, although out-of-court
statements are sometimes admissible to explain the conduct
or motive of a law enforcement officer, the conduct must
involve matters relevant to the issues on trial. Morris v.
State, 264 Ga. 823 (2) (452 SE2d 100)
(1995); Teague v. State, 252
Ga. 534 (1) (314 SE2d 910) (1984). Although any
actions of or threats made by Greene which might have
prompted the sheriff to employ extreme security precautions
might arguably be relevant to rebut testimony regarding
Greene's good conduct, the sheriff's conduct in actually
employing those measures was completely irrelevant, just as
it would be if the sheriff had utilized extreme security
measures in an abundance of caution with no basis to believe
that they were warranted. Therefore, admission of the
information that formed the basis of the sheriff's conduct
cannot be justified on the ground that it was original
evidence explaining his conduct.
Nor can admission be justified on the
novel theory, never advanced by the state or trial court,
that the testimony is not hearsay because it was offered to
explain Greene's conduct. If the evidence was offered for
that purpose, it had to have been offered to prove the truth
of the matter asserted, and it was therefore hearsay.
Finally, even if Greene's alleged
statements were admissible to rebut testimony that Greene
behaved himself in prison, the state could at best introduce
the alleged statements through the inmate who, according to
the sheriff, told him what Greene had allegedly said. Yet
the state never even attempted to call the inmate as a
witness. Therefore, Greene had no opportunity to impeach the
Testimony that Greene's dangerousness
required unprecedented security measures was not only
inadmissible under any theory, it was highly prejudicial. It
is widely recognized that any extreme security measure which
is visible to a jury, such as shackling, is inherently
prejudicial and may not be implemented unless justified by
an essential state interest after giving the defendant an
opportunity to contest the information which is its basis.
See Holbrook v. Flynn, 475 U. S. 560, 568-569 (106 SC 1340,
89 LE2d 525) (1986); Elledge v. Dugger, 823 F2d 1439,
1450-1452 (11th Cir. 1987), cert. denied, 485 U. S. 1014 SC
1487, 99 LE2d 715). In this case, Greene had been fitted
with a "stun" belt which was deliberately concealed under
his clothing to avoid unfairly prejudicing Greene. The state
had not attempted to show that an essential state interest
required the use of security measures that would be visible
to the jury, and it certainly made no showing that the jury
needed to be informed of concealed security measures.
Informing the jurors of the alleged need to employ extreme
measures was far more prejudicial than merely permitting
them to view shackles would have been, as the jurors might
have assumed shackling was routine.
Testimony that Greene allegedly
threatened violence in the courtroom, and that unprecedented
security measures had been employed to control him, could
reasonably have made the difference between a life or death
sentence for Greene. Before the jurors heard the testimony,
they likely believed that Greene's crimes were heinous but
that they were part of an isolated spree when Greene was
addicted to crack cocaine. After the improper testimony, the
jurors likely viewed Greene as consistently and
fundamentally violent, with or without drugs, and as a
threat even to themselves. 3
Because the evidence consisted of hearsay
and testimony regarding matters wholly irrelevant to the
issues at trial, all of which was so inherently prejudicial
that it might well have determined the outcome of the
sentencing phase, its admission mandates that Greene's death
sentence be overturned. Therefore, I must respectfully
3. In Division 26, the majority concludes,
citing Hill v. State, 263 Ga. 37 (19)
(427 SE2d 770) (1993), that because the prosecutor
did not urge imposition of the death penalty based upon
Greene's religious beliefs and did not specifically urge
that the teachings of a particular religion mandate
imposition of the death penalty, the prosecutor's religious
arguments were not improper. However, the prosecutor did
implicitly urge the jury that certain passages of the Bible,
as interpreted by the Baptist faith, mandate imposition of
the death penalty in this case. First, he informed the jury
that he was "a plain old country Baptist." He then argued as
Let's get down to what this trial and
what the laws are all about and this is retribution. An eye
for an eye. A tooth for a tooth. Right there in the Bible
with all those nice things that I'm sure that the lawyers
over there . . . are going to be talking about. But no act
in that Bible took those words out of it.
And one more thing. Remember this, that
that was a limiting, limiting liberal rule in the old
testament. That is, if you and I had an eye taken out you
could not take out two. It was not to be harsh but to be
limiting, to be just. How do we put it now? Let the
punishment fit the crime.
Later, the prosecutor argued:
As you hear that word mercy there is one
phrase from the Sermon on the Mount that I want you to hear
at the same time. I'm not going to be able to come back and
talk to you. But at the same time you hear those lawyers
yell mercy hear blessed are the merciful for they shall
obtain mercy. And you drank [sic] his whole and entire being
and see if you can find a grain of mercy extended to anybody.
Thus, the prosecutor's arguments were
improper under Hill. See 263 Ga. at 46 (19). Furthermore,
Hill merely provides two examples of prohibited religious
argument, not an exhaustive list. Neither it nor Crowe v.
State, 265 Ga. 582 (18) (d) (458
SE2d 799) (1995), which involved a far less extensive
religious reference in rebuttal to defense efforts to play
on religious sentiments, limit our ability to find error in
new prosecutorial approaches to religious discourse.
Religion should not be urged, however cleverly, as a basis
for a jury's sentencing decision in a death penalty trial.
See, e.g., Jones v. Kemp, 706 FSupp. 1534, 1559 (N.D. Ga.
1989). See also United States v. Giry, 818 F2d 120, 133 (1st
Cir. 1987) (prosecutor's reference to religion constituted
irrelevant and inflammatory appeal to jurors' religious
beliefs and warranted "especial condemnation"), cert. denied,
484 U. S. 855 (108 SC 162, 98 LE2d 116) (1987).
It is true that defense counsel did not
object to the prosecutor's improper references to religion.
However, the improprieties in this case were of such
magnitude that there is a reasonable probability that they
may have altered the outcome of the sentencing phase. See
Ford v. State, 255 Ga. 81 (8)
(i) (335 SE2d 567) (1985). The
prosecutor did not stop at quoting Biblical text. Instead,
he directed the jurors' attention to Biblical passages which,
in context, are subject to varying interpretations, and,
speaking with a voice of authority, interpreted them
virtually to require imposition of the death penalty.
Furthermore, he disparaged mercy as a valid sentencing
consideration, thereby striking at "the most important
component of a capital jury's discretion favoring capital
defendants." See Jones v. Kemp, 706 FSupp. at 1560, citing
Wilson v. Kemp, 777 F2d 621, 626 (11th Cir. 1985), cert.
denied, 476 U. S. 1153 (106 SC 2258, 90 LE2d 703) (1986).
Therefore, because of the impropriety of the prosecutor's
argument, the sentence of death must be vacated, and I
4. In Division 23, the majority briefly
dismisses Greene's contention that the prosecutor made
improper references to parole, on the ground that Greene
waived his rights by failing to move for a mistrial. I
address this enumeration because I believe the prosecutor's
misconduct in referring to parole likely contributed to the
impact of the erroneous admission of the sheriff's testimony
in determining the outcome of the sentencing phase of trial.
Pursuant to OCGA
17-8-76 (a), no attorney shall argue to or in the
presence of the jury that a defendant, if convicted, may not
be required to suffer the full penalty imposed by the court
or jury due to pardon, parole or clemency. If an attorney
does so, opposing counsel may request a mistrial, in which
case it is mandatory that the trial court grant the motion.
See id. at (b). The statute proscribes all reference to
parole. Davis v. State, 255 Ga. 598,
616 (25) (340 SE2d 869)
(1986). Greene argues that his sentence must be reversed
because the prosecutor made frequent references to parole,
and the trial court failed to declare a mistrial.
During the cross-examination of Greene,
the prosecutor asked Greene if he wanted to go to Georgia's
electric chair. Greene testified that he did not. The
prosecutor then asked Greene if he wanted to spend the rest
of his life in the Georgia penitentiary. Greene responded, "Yes,
sir, . . . I would appreciate that." The prosecutor reacted
with disbelief, saying, "You want to? You're saying, gosh,
please let me do that, I don't ever want to breathe a free
breath?" Greene answered as follows:
Well, you know, life in prison is better
than death. You know what I'm saying? You will have, you
might have an opportunity to get out, you might not. But
that's the chance you've got to take.
Having coaxed Greene into purportedly
opening the door to testimony regarding the possibility of
release, the prosecutor then asked Greene if he had told the
deputy that when he "got out," he was going to buy himself a
Nissan pickup truck. Then, the prosecutor asked Greene
whether, "by one means or another . . . [he] want[ed] to get
out where there are more knives and more dope." Later, the
prosecutor asked, "You would reach for any straw that you
could find to try to save your life so you could get out and
get that Nissan pickup truck, wouldn't you?" Greene's
attorneys did not object to any of the challenged questions.
In closing argument, the prosecutor asked
the jurors whether Greene had given them "the slightest
indication that this trial is anything more to him than some
kind of hindrance between him and his Nissan pickup truck."
Later, after informing the jury that there are knives and
drugs in prison, the prosecutor asked the jurors to put
themselves in the position of a young man who has made a
mistake and gone to prison, is putting his life together,
and is introduced to Greene as his new roommate. He then
went on to argue:
Put another way, so long as breath is in
him he's going to be living next door to somebody. Do you
want him living next door to you? What would you do if he
came to your door with a butcher knife in his hands? Put it
on a personal basis and then understand a little bit more
about what he does.
Once again, the defense failed to object.
Although the prosecutor never
specifically used the word "parole," his arguments and
questions clearly were intended to refer to the possibility
that the defendant "might not be required to suffer the full
penalty imposed by the court." See OCGA
17-8-76. The purpose of the
statute prohibiting such remarks is to prevent prosecutors
from urging the jury to give a more severe sentence to
compensate for, or avert, possible pardon, parole or other
clemency. See Gilreath v. State, 247
Ga. 814, 835 (15) (279 SE2d
650) (1981). "The jury should not be encouraged to
recommend the death penalty because it fears that parole
officials may grant parole if the defendant is given a life
sentence." Davis v. State, 255 Ga. at 615 (25). In this
case, the prosecutor clearly intended to urge the jury to
sentence Greene to death lest he be released on parole. I am
unpersuaded that Greene's concession on cross-examination,
that he would not genuinely like to be incarcerated for the
remainder of his life and would prefer to be freed at some
juncture, opened the door to the prosecutor's otherwise
prohibited conduct. Nor am I persuaded that the prosecutor's
juxtaposition of a discussion of prison roommates with an
argument that Greene might someday live next door to a juror
obscured the implication that Greene would be released
someday if not sentenced to die. The prosecutor violated the
spirit and letter of the law in maneuvering to introduce
improper considerations in the sentencing phase of trial.
The improper references to parole compounded the impact of
the prosecutor's other misconduct and reinforce my
conviction that the death sentence should be reversed.
For the foregoing reasons, I respectfully
dissent. I am authorized to state that Justice Sears joins
in this dissent.
SEARS, Justice, concurring in part and
dissenting in part.
I join fully in the Chief Justice's
partial concurrence and dissent. I write separately in order
to call special attention to two serious concerns raised by
the majority's affirmance of Greene's death sentence. First,
in Division 2, the majority relies entirely upon the
standard enunciated in Wainwright v. Witt
4 in dismissing Greene's
argument that the trial court committed reversible error by
dismissing five prospective jurors because they expressed
varying degrees of opposition to the death penalty, without
considering this Court's treatment of Wainwright. Our cases
interpreting the Wainwright standard establish that a
prospective juror may not be disqualified merely for stating
on voir dire that they would have difficulty imposing the
death penalty, that they have misgivings about the death
penalty, or that they would tend to lean toward a life
sentence. 5 The record of
voir dire in this case, explained at length in the Chief
Justice's opinion, makes it clear that under our case law
interpreting Wainwright, each of the five prospective jurors
was qualified to serve, and that the trial court committed
reversible error in ruling otherwise.
Second, in Division 26 the majority
opinion sanctions the State's use of certain religious
teachings in arguing for the imposition of the death penalty,
contrary to our law. In Georgia, it is improper to urge that
the teachings of a particular religion command the
imposition of the death penalty. Rather, jurors must be
charged with sentencing on the death penalty, as in all
cases, in accordance with the laws of the State. The
prosecutor's direct references during closing argument to
the Baptist faith, biblical commandments concerning
retribution and mercy, and the Sermon on the Mount, all of
which are quoted in the Chief Justice's opinion, constituted
inflammatory appeals to the private religious beliefs of the
jurors, and therefore were improper. Such comments are
especially unjustifiable coming from a State's attorney, "whose
duty is as much to refrain from improper methods calculated
to produce a conviction as it is to use every legitimate
means to bring about a just one."
William L. Kirby II, Charlotta Norby,
Stephen B. Bright, Herbert L. Wells, for appellant.
Douglas C. Pullen, District Attorney, J.
Gray Conger, Lori L. Canfield, Assistant District Attorneys,
Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior
Assistant Attorney General, for appellee.
crimes occurred on September 27, 1991. Greene was indicted
on October 14, 1991. On June 15, 1992, the state filed its
notice of intent to seek the death penalty. Voir dire
commenced on November 30, 1992, and the trial of the case
began on December 5, 1992. On December 7, 1992, the jury
returned its verdict finding Greene guilty of the crimes
charged. The jury returned its sentencing phase verdict on
December 8, 1992, and the trial court sentenced Greene on
December 9, 1992. Greene filed a motion for new trial on
March 22, 1993. He amended the motion on May 4, 1994. The
trial court denied the motion on March 24, 1995. Greene
filed his notice of appeal on April 25, 1995. The case was
docketed on May 22, 1995, and orally argued on September 18,
Estelle v. Williams, 425 U. S. 501, 504 (96 SC 1691, 48 LE2d
impact of this image was magnified by the prosecutor's
improper references to the possibility that Greene would be
released if sentenced to life in prison and would be a next
door neighbor to someone, perhaps a juror. This issue is
discussed in Division 4, infra.
U. S. 412 (105 SC 844, 83 LE2d 841) (1985).
Jarrell v. State, 261 Ga. 880,
881 (413 SE2d 710) (1992);
Isaacs v. State, 259 Ga. 717,
731 (386 SE2d 316) (1989);
Alderman v. State, 254 Ga. 206,
207 (327 SE2d 168) (1985). See
also Witherspoon v. Illinois, 391 U. S. 510, 522 (88 SC
1770, 20 LE2d 776) (1968) (quoted at p. 453 of the Chief
DECIDED MARCH 15, 1996 -- RECONSIDERATION DENIED MARCH 28,