Presnell Jr., was sentenced to death in October 1976 in Cobb County.
Five months earlier, on May 4, 1976, he kidnapped two schoolgirls.
Presnell confessed to laying in wait for the 10- and 8-year-old girls.
He raped and sodomized the older girl, and when 8-year-old Lori Ann
Smith tried to run away, he drowned her in a stream.
Cobb County D.A. Patrick Head, Presnell was retried in 1999 and given
the death penalty again. “There is no doubt as to Presnell’s guilt,”
says Head. “But here we are, 31 years later, and he is still sitting on
(274 Ga. 246)
(551 SE2d 723)
Murder. Cobb Superior Court. Before Judge Staley.
Virgil Delano Presnell, Jr. was convicted in 1976
of malice murder, kidnapping with bodily injury and other crimes and
was sentenced to death for the murder. Presnell v. State,
241 Ga. 49 (243 SE2d 496) (1978),
reversed and remanded as to sentence, Presnell v. Georgia, 439 U. S.
14 (99 SC 235, 58 LE2d 207) (1978), opinion vacated in part and
death sentence upheld, Presnell v. State, 243
Ga. 131 (252 SE2d 625) (1979). In 1992, Presnell's death
sentence was vacated during Federal habeas corpus proceedings.
Presnell v. Zant, 959 F2d 1524 (11th Cir. 1992). A re-sentencing
trial was held in 1999 and the jury recommended a death sentence
after finding beyond a reasonable doubt that Presnell committed the
murder while engaged in the commission of kidnapping with bodily
injury and that the murder was outrageously or wantonly vile,
horrible, or inhuman in that it involved torture and depravity of
mind. OCGA 17-10-30 (b) (2), (7).
Presnell appeals from the re-sentencing verdict.
1. The evidence adduced at trial authorized the
jury to find that on April 23, 1976, Presnell attempted to abduct a
ten-year-old girl in Clayton County as she was walking home from
school on a wooded trail. Although he grabbed her and threatened her
with a knife, the girl managed to break free and escape.
On May 3, 1976, Presnell staked out an elementary
school in Cobb County and observed a ten-year-old girl walking home
on a wooded trail. He returned the following day and waited on the
trail. In his car, he had a rug and a jar of lubricant.
When the ten-year-old girl came walking down the
trail with her eight-year-old friend, Lori Ann Smith, Presnell
abducted both girls. He taped their mouths shut and threatened to
kill them if they did not cooperate; he also said he had a gun. They
got into Presnell's blue Plymouth Duster. While Presnell was driving,
he forced the older girl to orally sodomize him and inserted his
finger into her vagina.
They drove to a secluded area and Presnell walked
the children into the woods. He carried the rug and the jar of
lubricant. He made both girls undress and he raped the older girl on
the rug. Her vagina was torn during the rape and began bleeding.
Presnell then said that he was going to take Lori Ann back to his
car and that the older girl should wait for him. On the way back to
the car, Lori Ann tried to run away, but Presnell caught her and
forced her face underwater in a creek, drowning her.
The medical examiner testified that there was
water, sand and plant matter in her lungs and stomach and that it
would have taken one to several minutes for her to die. She had
bruises on her neck and a bruise on her back from where Presnell
apparently placed his knee. Presnell returned to the older girl and
again forced her to orally sodomize him. He then locked her in his
car trunk and began driving, but a tire went flat so he dropped her
off in another wooded area after forcing her to commit oral sodomy
Although Presnell told her he would return, the
older girl heard the sound of a nearby gas station and walked there.
She later gave police a description of Presnell and his blue Duster
and stated that his tire was flat. Shortly thereafter the police
spotted Presnell changing a tire on his blue Duster at his apartment
complex not far from where he dropped off the older girl.
Presnell initially denied everything but later
admitted that he knew the location of the missing girl and led the
police to Lori Ann's body. He also confessed. A search of Presnell's
bedroom uncovered a handgun and child pornography depicting young
We find that the evidence presented at Presnell's
re-sentencing trial was sufficient to enable any rational trier of
fact to find the existence of the statutory aggravating
circumstances beyond a reasonable doubt. Jackson v. Virginia, 443 U.
S. 307 (99 SC 2781, 61 LE2d 560) (1979). See also OCGA
17-10-35 (c) (2). Contrary to
Presnell's contention, the evidence was sufficient to authorize the
jury to find beyond a reasonable doubt the two subparts of the (b)
(7) aggravating circumstance, torture and depravity of mind.
Presnell stalked elementary school children; planned his crimes;
abducted the victim, an eight-year-old child, as she was walking
home from school; taped her mouth shut; threatened to kill her; took
her to a remote area; made her strip naked; forced her to watch as
he raped and forced other sex acts on her friend; chased her as she
tried to escape; and held her head underwater where she struggled
for several minutes before dying. See Hance v. State,
245 Ga. 856, 861 (3) (268
SE2d 339) (1980) (psychological abuse inflicted by the
defendant on the victim where it is shown to have resulted in severe
mental anguish in anticipation of physical harm may amount to
torture and depravity of mind); Thomas v. State,
245 Ga. 688 (7) (266 SE2d 499) (1980)
(the young age of the victim is relevant to a consideration of
torture and depravity of mind).
2. Presnell challenged the composition of the
Cobb County Board of Jury Commissioners, which authorized Presnell's
jury pool, on the basis that the board was composed of only five
members instead of the six members required by OCGA
15-12-20. Presnell has failed to show
reversible error in the five-member composition of the board. See
Pope v. State, 256 Ga. 195 (1) (c) (345
SE2d 831) (1986) (requiring a showing of such disregard of
the essential and substantial provisions of OCGA
15-12-20 as would vitiate the jury
arrays); Dillard v. State, 177 Ga. App. 805
(4) (341 SE2d 310) (1986) (provisions of statute are merely
directory and were not intended to vest procedural rights in
criminal defendants). Moreover, OCGA 15-12-20
(c) allows for each county to establish a lesser number of jury
commissioners by local rule, and the trial court found that Cobb
County had indeed promulgated such a rule requiring only five jury
commissioners which, contrary to Presnell's contention, was not
repealed or otherwise set aside.
3. Presnell complains that the trial court
erroneously excused several prospective jurors for cause.
(a) Prospective jurors Brennan, Kidwell, Chun,
Green, Fuller, and Allen were excused by the trial court due to
their inability to vote for the death penalty as a possible sentence.
The proper standard for determining the
disqualification of a prospective juror based upon his views on
capital punishment "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.' " [Cit.]
Greene v. State, 268 Ga.
47, 48 (485 SE2d 741) (1997). A
juror's bias for or against the death penalty does not need to be
proved with unmistakable clarity; the relevant inquiry on appeal is
whether the trial court's finding that a prospective juror is
disqualified is supported by the record as a whole. Id. at 48-49.
Often the trial court must resolve equivocal and contradictory
answers by the prospective juror in determining whether his views
would substantially impair his ability to consider all possible
sentences. Id. at 49. For this reason, an appellate court must pay
deference to the trial court's finding that a particular prospective
juror is qualified or not qualified to serve on the jury. Id. "Whether
to strike a juror for cause is within the discretion of the trial
court and the trial court's rulings are proper absent some manifest
abuse of discretion. [Cit.]" Id. at 50.
Prospective jurors Brennan, Chun, Green, Fuller,
and Allen unequivocally stated that they could never vote to impose
a death sentence under any circumstances. The trial court correctly
found that they were disqualified. Greene, supra, 268 Ga. at 48-50;
Wainwright v. Witt, 469 U. S. 412 (II) (105 SC 844, 83 LE2d 841)
(1985). Prospective juror Kidwell initially stated that he did not "weigh
strongly either way," but he then stated that he would pick life if
given the choice between life or death and that he was "swaying"
toward a conscientious objection to the death penalty as voir dire
progressed. He reiterated that he would always pick life, then
stated that he could perhaps vote for the death penalty for Adolf
Hitler, but immediately reconsidered and stated that he could never
vote for the death penalty in any fact situation that he could think
of. Although Presnell correctly argues that a prospective juror is
not disqualified for merely leaning for or against the death
penalty, Mize v. State, 269 Ga. 646 (6)
(d) (501 SE2d 219) (1998), the trial
court was authorized to find from the totality of prospective juror
Kidwell's responses that he would be substantially impaired in the
performance of his duties as a juror because he could not vote for a
death sentence. See Greene, supra at 48-50. The trial court did not
abuse its discretion by excusing him. Id. at 50.
(b) Prospective juror Morton initially stated
that she would be uncomfortable voting for death and was "probably"
substantially impaired in her ability to vote for a death sentence.
She then responded to a question about whether she could follow the
judge's instructions by stating that she did not think she could put
her beliefs aside in a death penalty situation and she said, "I
don't know that I could follow [the instructions] exclusively." She
said she would not always vote for life, but she would vote for life
more often; she also said she had a higher standard of what
constitutes an aggravating circumstance. She thought her views might
impair her ability to give the State a fair trial. She then stated
that she could be convinced to vote for a death sentence for a
serial murderer, but she then reconsidered and stated that she was
not sure she could vote for the death penalty even in that kind of a
case. She said, "That may be so," when asked if she could never vote
for the death penalty even though she may support it philosophically.
She said she was substantially impaired and added, "but I tend to be
fairly wishy-washy. Somebody could come along and switch me back the
other way." In response to the trial court's question about whether
she could follow the law given to her by the judge, she replied that
she would have a hard time following the law laid out for her and
that "when someone's life is at stake, [she would not] be able to
exclude [her] own set of parameters." The trial court granted the
State's motion to excuse prospective juror Morton for cause after
finding that she was substantially impaired in her ability to
perform her juror duties because she had stated that she would
follow her own criteria instead of the law as she was instructed.
Based on the totality of prospective juror Morton's responses, the
trial court was authorized to excuse her for cause for this reason.
See Greene, supra, 268 Ga. at 52; Crowe v. State,
265 Ga. 582 (10) (458 SE2d 799) (1995).
(c) Prospective juror Vakilzadeh stated that he
could not decide the case because the case was 23 years old and he "wasn't
here at the beginning of the process." He said he had no knowledge
of the evidence at the first trial and therefore could not agree
with the prior verdict of guilty even though Presnell entered the
trial already found guilty. Despite being told by the prosecutor
that he would be presented with substantial evidence from 15 to 20
witnesses about the crimes for which Presnell had been convicted,
prospective juror Vakilzadeh insisted, "I cannot judge because I do
not have evidence from everything from A to Z." He repeatedly and
unequivocally stated that he could not sit as a juror because he had
not heard the evidence from the original trial. He said that, if he
was selected as a juror, heard the case, and was sent to the jury
room to deliberate, he would refuse to deliberate and would request
more information. The trial court was authorized to excuse him for
cause. See generally Rucker v. State, 270 Ga.
431 (2) (510 SE2d 816) (1999) (decision to excuse a potential
juror for cause lies within sound discretion of trial court);
Garland v. State, 263 Ga. 495 (1) (435 SE2d
4. Presnell complains that the trial court erred
by refusing to excuse for cause ten prospective jurors, Fowler,
Feusting, Stanek, Croft, Kropacek, Cole, Payne, Sharp, Adair, and
Gaines, due to their alleged inability to consider a life sentence.
See Nance v. State, 272 Ga. 217 (6) (526 SE2d
560) (2000); Greene, supra, 268 Ga. at 48. The record shows
that prospective juror Fowler could vote to impose a life sentence
and that she could set aside her past life experience when
deliberating Presnell's sentence. See Pace v. State,
271 Ga. 829 (7), (8) (524
SE2d 490) (1999); Cromartie v. State,
270 Ga. 780 (9) (b) (514 SE2d 205)
(1999). Although they leaned in favor of returning a death sentence,
prospective jurors Feusting, Stanek, Croft, Kropacek, Cole, Payne
and Sharp also indicated that they could vote for a life sentence.
Therefore, based on the totality of their responses, the trial court
was authorized to find that they were qualified to serve on the jury.
See Mize, supra, 269 Ga. at 652 (6) (d). Prospective juror Adair
stated that she believed a death sentence was the only appropriate
punishment for the death of a child, but she also stated several
times that she could vote for a life sentence. She later said that
she would keep an "open mind" about the sentence for someone who had
caused the death of a child. The trial court did not abuse its
discretion by finding that she was qualified. See Pace, supra at
833-834 (7). Lastly, prospective juror Gaines stated that she could
vote for a life sentence only if it was life without parole. After
it was explained to her that a death sentence and a life sentence
would be her two sentencing options, without reference to parole,
Gaines said that she could set aside her reservations about parole
and consider both possible sentences as instructed by the trial
court. While the questioning of this prospective juror engendered
much confusion and equivocation, we cannot conclude the trial court
abused its discretion by finding that she was qualified to serve.
See Pace, supra; Greene, supra at 48-50.
5. Because life without parole was not a
sentencing option for Presnell, the trial court did not err by
refusing to allow him to question prospective jurors about their
opinions regarding parole. Burgess v. State,
264 Ga. 777 (3) (450 SE2d 680) (1994); Davis v. State,
263 Ga. 5 (7) (426 SE2d 844) (1993).
Compare Zellmer v. State, 272 Ga. 735 (1)
(534 SE2d 802) (2000) (setting forth standard applicable in
cases where juries are required to consider parole eligibility
pursuant to OCGA 17-10-31.1).
6. "The scope of voir dire is largely left to the
trial court's discretion, and the voir dire in this case was broad
enough to ascertain the fairness and impartiality of the prospective
jurors." (Footnote omitted.) Barnes v. State,
269 Ga. 345, 351-352 (10) (496 SE2d
674) (1998). We find no error with the jury selection.
7. The trial court did not err by denying
Presnell's motion in limine regarding the State's use of the OCGA
17-10-30 (b) (7) aggravating
circumstance on the basis that it is unconstitutionally vague.
Taylor v. State, 261 Ga. 287 (13) (a)
(404 SE2d 255) (1991); Hance, supra,
245 Ga. at 860 (3).
8. Presnell contends the trial court erred by
denying his motion to suppress the gun and books of child
pornography found in his bedroom. Presnell lived with his mother in
an apartment. Two days after his arrest and confession, the police
went to the apartment to look for the gun Presnell said he had
possessed and that the older girl had noticed in his Duster when he
dropped her off. Although they did not have a search warrant, police
witnesses testified that Presnell's mother consented to a search of
Presnell's bedroom and that she showed them the handgun, which she
apparently owned but to which Presnell had access, in Presnell's
headboard/bookcase. It was at that time that the police also noticed
and seized the child pornography books. There was no evidence that
Presnell's bedroom was locked or that he paid rent.
At trial, Presnell's mother corroborated the
police testimony by admitting that she consented to a search of the
bedroom. Although Presnell argues that his mother did not have
authority to consent to a search of his bedroom, the evidence was
sufficient to authorize the trial court to find that his mother had
common control and authority over his bedroom and that she could
therefore consent to a search of that area. See United States v.
Matlock, 415 U. S. 164, 171 (II) (94 SC 988, 39 LE2d 242) (1974);
Smith v. State, 264 Ga. 87 (2) (441 SE2d 241)
(1994); State v. West, 237 Ga. App.
185 (514 SE2d 257) (1999). The trial court did not err by
admitting the gun and the child pornography books into evidence.
9. There is no evidence to support Presnell's
assertion that the magistrate who issued the search warrant for his
Duster in 1976 was not neutral and detached because he had a
pecuniary interest in issuing the warrant. See Connally v. Georgia,
429 U. S. 245 (97 SC 546, 50 LE2d 444) (1977). The record shows that
the search warrant was facially valid and supported by probable
cause. See DeYoung v. State, 268 Ga. 780 (7)
(493 SE2d 157) (1997). Therefore, the evidence seized from
his car was properly admitted.
10. Presnell claims that the trial court erred by
having the jurors place their left hands on the Bible while being
sworn in as jurors. However, Presnell did not object and thus has
waived this argument on appeal. See Pye v. State,
269 Ga. 779, 787 (14) (505
SE2d 4) (1998) (failure to object at trial precludes a
finding of reversible error on appeal). Furthermore, there was no
reference to divine law or the contents of the Bible during the
trial. Compare Carruthers v. State, 272 Ga.
306 (2) (528 SE2d 217) (2000); Jones v. Kemp, 706 FSupp. 1534
(IV) (A) (N.D. Ga. 1989).
11. The State was entitled to allege and prove
the OCGA 17-10-30 (b) (7) aggravating
circumstance at the 1999 trial, even if it was not alleged at the
1976 trial. See Zant v. Redd, 249 Ga. 211 (2)
(290 SE2d 36) (1982).
12. Presnell contends the trial court committed
reversible error by allowing the State to use at trial a book,
entitled Radiant Identities by author Jock Sturges which contained
photographs of nude children, that the State claimed Presnell had
ordered in 1996 from his prison cell. Pretermitting the issue
whether the admission of the book was error because of the State's
failure to authenticate it, we find that no reversible error
occurred because the State established by independent evidence the
facts sought to be proved by the book itself. The State's evidence
properly established that Presnell was upset about the rejection of
a book entitled Radiant Identities and, as a consequence, sent a
letter to the warden requesting the prison rules and guidelines
governing the receipt of materials containing pictures of nude
children. Although Presnell claims that the admission of the book
was highly inflammatory, the defense did not dispute that Presnell
continued to be a pedophile and that Radiant Identities was the type
of book to which a pedophile would be attracted.
13. (a) Presnell asserts that the trial court
erroneously allowed the State to introduce improper evidence
regarding his 1976 Florida conviction for contributing to the
delinquency of a minor and his numerous Georgia arrests and
convictions for motor vehicle thefts in the early 1970s. However,
the record shows that the documentary evidence of these convictions
and indictments was not presented to the jury but only placed in the
record so the State could demonstrate it had a good faith basis for
asking Presnell's mitigation witnesses on cross-examination about
their knowledge of Presnell's criminal history. See Medlock v. State,
264 Ga. 697 (449 SE2d 596) (1994);
Christenson v. State, 261 Ga. 80 (8)
(c) (402 SE2d 41) (1991). These
documents were sufficient to establish that the State had a good
faith basis for its cross-examination questions about Presnell's
arrests convictions, and other bad acts. See Medlock, supra at
(b) We find meritless Presnell's argument that
the indictment arising out of his crimes against Lori Ann Smith and
the surviving victim should have been redacted to remove the rape
charge because he was convicted of only statutory rape. The 1976
jury convicted Presnell of rape without specifying whether it was
forcible rape or statutory rape, and this Court affirmed that
conviction "with direction that the defendant be sentenced by the
trial court for the crime of statutory rape." Presnell, supra, 243
Ga. at 133. Furthermore, because the jury heard abundant evidence
that Presnell raped the older girl and his guilt or innocence on
this charge was not in issue, Presnell can show no harm from the
introduction of the indictment reflecting the rape charge.
14. The crime scene and pre-autopsy photographs
of the murder victim were properly admitted. See Taylor v. State,
271 Ga. 629 (2) (523 SE2d 322) (1999);
Bright v. State, 265 Ga. 265 (16) (455 SE2d
15. Presnell asserts error in the State's
introduction of his prison records at trial without first having
them declassified as confidential and privileged state secrets in
accordance with OCGA 42-5-36. However,
the prosecutor stated that he had subpoenaed the records from the
Department of Corrections in compliance with OCGA
42-5-36 (c), which allows for the
release of these files upon subpoena. In addition, the record
contains a sworn certificate authenticating the prison records,
signed by the assistant director of legal services for the
Department of Corrections and stating that OCGA
42-5-36 had been complied with. See
OCGA 42-5-36 (d). We conclude that the
release of the prison records for use at Presnell's trial was not
16. Presnell contends the trial court erred by
allowing the State to present impermissible victim-impact evidence
from several witnesses. However, three of the witnesses about whom
he complains, the surviving victim, her mother, and the doctor who
treated the surviving victim's vaginal injuries, were not victim-impact
witnesses. They testified solely as fact witnesses about the crimes,
the search for the missing girls, and the injuries to the older girl.
As such, their testimony was relevant and admissible. The State did
present four victim-impact witnesses 2
whose proposed victim-impact testimony had been reviewed before
trial and whose testimony at trial while reading their prepared
statements did not exceed the acceptable boundaries for this kind of
testimony. See Pickren v. State, 269 Ga. 453
(1) (500 SE2d 566) (1998); Turner v. State,
268 Ga. 213 (2) (486 SE2d 839) (1997).
We find no error.
17. As mitigation evidence, Presnell presented
the testimony of his aunt, who was only seven years older than
Presnell and who had grown up with him. She testified about the
poverty and rootlessness experienced by Presnell's family and their
difficult childhood. On cross-examination, the State was properly
permitted to question her about her lack of a criminal history as
well as the lack of a criminal history among members of her family
who had experienced similar conditions as Presnell. See Pye, supra,
269 Ga. at 788 (17). See generally OCGA
18. As the jury was returning to their hotel the
night before closing arguments, a man walking past them in the hotel
lobby said "Fry him" to some of the jurors. The bailiff accompanying
the jurors, Major Palmer, immediately detained the man and
questioned him. Major Palmer determined, inter alia, that the man
was visiting Atlanta from Nevada, that he was completely unfamiliar
with Presnell's case, and that he did not know the jury was involved
with a death penalty case. The man had simply seen their juror
badges and thought it would be humorous to make such a remark. The
next day, Major Palmer presented his report to the court and the
trial judge questioned each juror individually and determined that
none of the jurors would be affected by this remark during their
deliberations. Presnell did not object to this procedure or move for
a mistrial. We commend Major Palmer for the conscientious manner in
which he executed his duties and find no error with the trial
court's handling of this situation. See Pruitt v. State,
270 Ga. 745 (22) (514 SE2d 639) (1999).
See also Byrd v. State, 262 Ga. 426 (1) (420
SE2d 748) (1992). 19. Although Presnell contends the
prosecutor's closing argument was improper, he failed to object to
any part of the argument. Thus, he can obtain appellate relief only
if he can show that the allegedly improper argument in reasonable
probability changed the result of his trial. Whatley v. State,
270 Ga. 296 (15) (509 SE2d 45) (1998).
Based upon our review of the argument, we find no error that
overcomes this procedural default. It was not improper for the
prosecutor to argue Presnell's future dangerousness, Jones v. State,
273 Ga. 231 (4) (539 SE2d 154) (2000),
and this argument was too indirect to constitute a reference to
parole, which was never mentioned. On several occasions, the
prosecutor also asked the jury to consider what was going through
Lori Ann's mind when she was abducted, when she was made to undress,
when she watched her friend being raped, and when she was being
chased and drowned. The prosecutor was careful to cast this argument
in terms of the mental pain and torture that would be experienced by
an eight-year-old child in these circumstances, and he specifically
tied her mental state to Presnell's depravity of mind. Psychological
abuse inflicted on a victim before death is relevant to a
consideration of a defendant's depravity of mind. See Hance, supra,
245 Ga. at 860 (3). We therefore conclude that this argument was not
a "golden rule" argument that invited the jury to place themselves
in the victim's position. See McClain v. State,
267 Ga. 378 (3) (a) (477
SE2d 814) (1996). The prosecutor's analogy of how a plastic
cup will split if you try to push a can through it was a relevant
illustration of the injuries sustained by the older girl during the
rape. See generally Conner v. State, 251 Ga.
113 (6) (303 SE2d 266) (1983) (the range of discussion and
choice of illustrations during closing argument are very wide). It
was also not improper for the prosecutor to argue that Presnell
showed no mercy to the victims in this case and did not display any
remorse while committing the crimes or during his confession. See
Crowe, supra, 265
Ga. at 592 (18) (c); Ledford v. State,
264 Ga. 60 (18) (b) (439
SE2d 917) (1994). Presnell's arguments regarding the
prosecutor's reference to the Radiant Identities book, the
indictment, crime photographs, and the malice murder charge are
controlled adversely to him by our rulings in Divisions 12, 13 (b),
and 14, supra and Division 21, infra. Accordingly, we find no error
with the prosecutor's closing argument.
20. There was no error with the jury charge. The
trial court was not required to instruct the jury on residual doubt
or any other specific mitigating circumstance as long as it charged
on mitigating evidence in general. See Carruthers, supra, 272 Ga. at
317 (18); Terrell v. State, 271 Ga. 783 (11)
(523 SE2d 294) (1999). The trial court also did not err by
refusing to charge on electrocution as Georgia's method of execution,
see Hill v. State, 263 Ga. 37 (20) (427 SE2d
770) (1993); on life without parole when this was not a
possible sentence for Presnell, McMichen v. State,
265 Ga. 598 (21) (458 SE2d 833) (1995);
and that the jury did not have to find mitigating circumstances
before it could consider them. See Terrell, supra. The trial court
properly instructed the jury that it could return a life sentence
regardless of the existence or non-existence of any mitigating
circumstances. Id. 3
21. The trial court did not err by correctly
charging the jury on the elements of malice murder because Presnell
had already been convicted of malice murder and murder was an
element of the statutory aggravating circumstances. The jury charge
on the OCGA 17-10-30 (b) (7)
aggravating circumstance was not improper. See Holiday v. State,
258 Ga. 393 (19) (b) (369
SE2d 241) (1988); West v. State,
252 Ga. 156, 161-162 (313 SE2d 67)
22. Presnell's death sentence was not imposed
under the influence of passion, prejudice, or any other arbitrary
factor. OCGA 17-10-35 (c) (1). As we
held in 1978, Presnell, supra, 241 Ga. at 64, the death sentence in
this case is not excessive or disproportionate to the penalty
imposed in similar cases, considering both the crimes and the
defendant. OCGA 17-10-35 (c) (3). The
similar cases listed in the Appendix support the imposition of the
death penalty in this case in that they all involve a murder during
a kidnapping with bodily injury or the OCGA
17-10-30 (b) (7) aggravating circumstance.
Patrick H. Head, District Attorney, Maria B.
Golick, Dana J. Norman, Russell J. Parker, Jack E. Mallard,
Assistant District Attorneys, Thurbert E. Baker, Attorney General,
Susan V. Boleyn, Senior Assistant Attorney General, Beth A. Burton,
Assistant Attorney General, for appellee.
1 Voir dire in the re-sentencing
trial commenced February 22, 1999 and the jury, selected March 8, fixed
its sentence at death on March 16, 1999. Presnell's motion for a new
trial, filed April 1, 1999 and amended June 20, 1999, was denied by the
trial court on November 3, 2000. Presnell filed a notice of appeal on
November 30, 2000, and the case was docketed to this Court on January 9,
2001. It was orally argued on April 16, 2001.
2 Those witnesses were the
victim's mother, father, sister and cousin. Since the State did not
introduce at trial the victim-impact statement prepared by the surviving
victim, we find meritless Presnell's assertion that the trial court
committed reversible error by approving its use.
3 Appended to Presnell's
enumeration regarding the refused jury charges is his one-sentence
contention that OCGA 17-10-16, which
provides that a jury may consider a sentence of life without parole upon
agreement by the State, is unconstitutional. This argument is controlled
adversely to Presnell by Freeman v. State, 264 Ga.
27 (2) (a) (440 SE2d 181) (1994).
Virgil Delano Presnell Jr.