(270 Ga. 688)
(512 SE2d 896)
FLETCHER, Presiding Justice.
Murder. Fulton Superior Court. Before Judge Jenrette.
A jury convicted Norris Speed of malice murder in
the shooting death of Atlanta Police Officer Niles Johantgen, and
Speed was sentenced to death. 1 The
jury found as aggravating circumstances that the murder was
committed against a peace officer while engaged in the performance
of his official duties and that the murder was committed for the
purpose of avoiding, interfering with, or preventing a lawful arrest
of the defendant or another. Speed challenges the trial court's
in-camera conversation with a prospective juror, its evidentiary
ruling limiting the defense psychologist's testimony, and its
failure to give charge number 21.
We conclude that Speed waived his right to be
present during the in-camera questioning of the prospective juror
and did not object when the juror was excused for cause, the record
shows that the defense psychologist testified about the basis for
his opinion including the persons he interviewed and Speed's family
history, and the trial court was not required to give charge number
21 on when police may make a warrantless arrest.
Because none of the issues raised constitute
reversible error, we affirm.
SUFFICIENCY OF THE EVIDENCE
The evidence shows that Norris Speed was a drug
dealer who sold drugs in the Thomasville Heights area of Atlanta.
Officer Johantgen was a uniformed patrol officer whose regular beat
included the Thomasville Heights apartments.
On December 13, 1991, an Atlanta police
undercover officer arrested Jose Griffin, who worked for Speed,
after he had fled into Speed's grandmother's apartment. The police
confiscated $2,880 and 100 grams of cocaine during this arrest. The
police also noticed some marijuana on a table in the apartment, and
they returned with an arrest warrant for Speed's grandmother.
Although Officer Johantgen was not involved in
the undercover operation, he accompanied the other officers when
they served the warrant. Speed told his drug ring boss that he
believed the raid resulting in the loss of the drugs and money was "influenced
by" Officer Johantgen. He told another witness that he planned to
kill "the Russian" (Officer Johantgen's nickname).
On December 21, 1991, Officer Johantgen pulled
into the parking lot of the Thomasville Heights apartments, got out
of his car, and approached several men. He detained one of the men
and began to frisk him. Speed walked up behind Officer Johantgen and
shot him point-blank in the back of the head with a nine-millimeter
pistol, killing him instantly. Speed fired four more times at the
officer while he was on the ground, but all of these shots missed
and shattered on the pavement.
Speed then fled the scene in a car. At trial, one
witness testified that he saw Speed, who was well-known in the area,
walk up behind the officer and fire the fatal shot into his head.
Five more witnesses testified that they heard the first shot, looked
up, and saw Speed shooting at the officer on the ground.
After Speed fled, he met with his drug-ring boss
and told him that he had shot the Russian because Officer Johantgen
had threatened to "catch him dirty" and because the officer was
harassing people and searching them unnecessarily. Speed's
girlfriend heard him tell his drug boss that he shot the Russian.
Both Speed's drug boss and his girlfriend testified at trial. Speed
was arrested two days after the crime and he confessed that he shot
1. After reviewing the evidence in the light most
favorable to the jury's determination of guilt, we conclude that a
rational trier of fact could have found Speed guilty of malice
murder beyond a reasonable doubt. The evidence was also sufficient
to enable the jury to find the existence of the statutory
aggravating circumstances beyond a reasonable doubt.
2. Speed complains that the trial court
questioned a prospective juror on voir dire in camera without Speed
or his Counsel present. The prospective juror claimed that he could
not be impartial because he had overheard a conversation about the
case at his workplace, but the juror refused to divulge what he had
heard. Speed initially objected to the trial court questioning the
juror in camera without the parties but later agreed to the
procedure, saying "I'm not happy . . . but I would prefer that
procedure over not talking to him at all." Speed made no further
objection after the in-camera questioning was completed, and the
juror was excused for cause due to his inability to be impartial.
A defendant and his counsel have a constitutional
right to be present at every stage of the defendant's trial,
including voir dire. This right, however, may be waived by the
defendant personally, or by his counsel if done in the defendant's
presence. The record shows that Speed waived his right to be present
during the in-camera questioning of the prospective juror, and he
made no objection when the prospective juror was excused for cause.
Therefore, this issue is waived on appeal.
3. The trial court did not err by excusing for
cause four prospective jurors due to their inability to consider a
death sentence. The trial court also did not err by qualifying seven
prospective jurors who Speed claims would automatically vote for a
4. No prospective jurors were erroneously
qualified to serve due to their exposure to pretrial publicity; the
seven jurors about whom Speed specifically complains did not have
opinions so fixed and definite that they could not set them aside
and render a decision based solely on the evidence presented in
court. The trial court also did not err by denying Speed's motion
for a change of venue.
5. Prospective jurors Foley, Miller, Lindsey, and
Pittman were not erroneously qualified to serve for any reason
stated by Speed.
6. The trial court did not err by denying Speed's
Batson v. Kentucky motion. The reasons given by the state for the
exercise of its peremptory strikes were race-neutral and sufficient.
7. During voir dire, a prospective juror stated
that she believed that the justice system was biased against African-Americans
and that she has "an awareness" that the death penalty is sought
more for black defendants who kill white victims (Speed is African-American
and the victim was white). When the prosecutor asked her how
strongly she held this belief, Speed's counsel objected to this line
of questioning saying, in front of the juror, "It's a fact. [The
assistant district attorney] knows that his office seeks the death
penalty more often against black defendants." The trial court told
Speed's counsel that it was not the proper time to testify. Later,
the state moved to excuse this prospective juror for cause based on
defense counsel's comment, and the trial court excused her. We find
no error. "The single purpose for voir dire is the ascertainment of
the impartiality of jurors, their ability to treat the cause on the
merits with objectivity and freedom from bias and prior inclination.
The control of the pursuit of such determination is within the sound
legal discretion of the trial court, and only in the event of
manifest abuse will it be upset upon review." We conclude that the
trial court did not abuse its discretion in excusing this
prospective juror for cause due to bias resulting from defense
8. It was not improper for the state to introduce
evidence of Speed's drug dealing and to refer to Speed as a drug
dealer. Speed's drug dealing was relevant to his motive for the
murder, and relevant evidence does not become inadmissible simply
because it incidentally places a defendant's character into
10. Speed's arrest was lawful and his confession
11. It is not error to allow the jury to have a
written transcript of tape-recorded evidence when a proper
foundation has been made. Although Speed complains that he was not
provided before trial with the transcript of the audiotape of the
police radio traffic at the time of Officer Johantgen's death, he
did not object to the use of the transcript at trial or argue that
any portion of the transcript differed from the audiotape. The jury
was also instructed that the transcript was not evidence. Therefore,
this contention is without merit.
12. The trial court did not err by denying
Speed's motion for mistrial because there was insufficient evidence
that the state had violated the trial court's gag order.
13. Speed did not object when the victim's widow
identified the victim in a photograph taken when he was alive, but
did object that the photograph was irrelevant and inflammatory when
it was later admitted into evidence. Under these circumstances, we
find no error.
14. The trial court did not abuse its discretion
in admitting preautopsy photographs of the deceased victim. The
admission of crime scene photographs was also not error.
15. The trial court did not abuse its discretion
by allowing the state to use a mannequin dressed in the victim's
jacket as a demonstrative tool during the questioning of the medical
examiner. The medical examiner used the mannequin to illustrate for
the jury how bullet-fragment damage to the victim's body and jacket
was consistent with the crime scene evidence.
16. Speed was not harmed by the admission of
Officer Johantgen's death certificate.
17. The trial court did not abuse its discretion
in qualifying the medical examiner as an expert witness in injury
causation and interpretation. It was also not error to qualify the
state firearms expert as an expert in crime scene reconstruction.
18. The trial court did not abuse its discretion
in allowing certain questions to be asked on the redirect
examination of witness Johnny Roberts.
19. The trial court did not improperly restrict
the cross-examination of witness James Sims.
20. The trial court did not err in ruling that
the state could impeach state witness Patrick Norman with a prior
inconsistent statement and allowing the prior statement to be
admitted into evidence.
21. The state did not improperly question state
witness Christine Bibbs about a prior inconsistent statement that
she made to police.
22. During the direct examination of Dwayne
Gatlin, the state elicited that he had previously been convicted of
forgery and mail theft. On cross-examination, Speed began to
question Gatlin about the facts and circumstances behind these
convictions, but the trial court sustained a state objection that
the proper method of impeachment was through certified copies of the
convictions. Although a party generally must prove a prior
conviction by introducing a certified copy of the conviction, this
requirement may be waived. In this case, the prosecutor waived the
best evidence objection by eliciting on direct examination the
witness's testimony about his prior convictions, and the trial court
erred in sustaining the state's objection. This error was harmless,
however, because the witness admitted his convictions and offered no
favorable explanation for them and there was overwhelming evidence
of the defendant's guilt.
23. The trial court did not abuse its discretion
in allowing certain questions to be asked on the redirect
examination of witness Steve Burton.
24. Pretermitting the issue of admissibility,
Speed was not harmed by the introduction of an incriminating
statement that he made to his girlfriend while in jail because it
was cumulative of the overwhelming evidence of his guilt.
25. The trial court did not abuse its discretion
in limiting Speed's cross-examination of state witness Jeff Goodwin.
26. During the trial, a bailiff informed the
trial court that a juror had complained that Juror Washington
claimed that he knew the victim and would vote the opposite of the
other jurors. The trial court questioned Juror Washington, who
denied saying that he knew the victim or would vote the opposite of
the other jurors. The trial court then individually questioned the
other jurors. Six jurors stated that Juror Washington had either
claimed that he knew the victim or would vote the opposite of the
others. One juror stated that Juror Washington had said, "we all
know what we have to do," and another juror stated that Juror
Washington had been singing, "I know who's guilty." However, the
jurors other than Juror Washington denied discussing the outcome of
the case, and all stated that they would be fair and impartial.
Therefore, the trial court did not abuse its discretion in denying
Speed's motion for mistrial. The trial court also did not err by
excusing Juror Washington and replacing him with an alternate juror.
27. An assistant district attorney did not
violate Caldwell v. Mississippi by introducing one of her colleagues
during the opening statement in the guilt-innocence phase as an "appellate
lawyer in our office."
28. Speed was not harmed by the prosecutor's
introduction of the district attorney, who was seated at the
prosecution table, during the closing argument in the guilt-innocence
29. The state's closing argument in the guilt-innocence
phase was not improper.
30. Contrary to Speed's contention, the trial
court allowed Speed's psychologist to testify about the basis for
his opinion, and it only prevented Speed's expert from repeating
verbatim his conversations with Speed's family members and friends.
To show the basis for his opinion, the defense psychologist was
permitted to list the people he had interviewed about Speed's
background and to recite Speed's family history, including anecdotal
incidents from Speed's childhood. Thus, Speed's argument that the
state psychologist attacked the defense psychologist for lacking a
basis for his opinion, which Speed was allegedly unable to
introduce, is without merit. In fact, the record shows that the
state psychologist, who testified in rebuttal, commended the defense
psychologist on the thoroughness of his background investigation.
The state expert simply stated that he had not heard any testimony
from the defense psychologist, or read anything in his report, that
would support a diagnosis of dependent personality disorder. We find
31. Speed was not harmed by the failure of the
state psychologist, who did not examine the defendant, to reduce his
findings to writing and serve them on the defense before trial. The
record shows that the state psychologist was not contacted until the
trial had begun, and defense counsel was able to interview the state
psychologist before any psychological testimony was introduced by
32. OCGA 17-10-1.2
on victim-impact evidence is not unconstitutional, and it is not an
ex post facto law violation to apply this statute to a crime that
was committed before the statute was enacted. The only victim-impact
witness was Officer Johantgen's widow and her brief testimony was
not improper. Speed's trial occurred two months after OCGA
17-10-1.2 was enacted, and the
pretrial procedure and jury charge now used with victim-impact
evidence had not been formulated by this Court. Speed did not
request a jury charge on victim-impact evidence. We conclude that
Speed was not harmed by the lack of a pretrial hearing or a jury
charge on victim-impact evidence.
33. Speed complains that the state committed
prosecutorial misconduct by asking an improper question to witness
Major Taylor. The trial court, however, sustained Speed's objection
to the question and Speed did not request further action by the
trial court. After an objection to an improper question is sustained,
there is no reversible error absent a request from the complaining
party for additional corrective action.
34. Speed asked mitigation witness Reverend Butts
if he had observed the police treatment of other young black males
in the Thomasville Heights area. The state objected on relevancy
grounds, and the trial court sustained the objection. We find no
error. While the permissible scope of mitigation evidence is wide,
mitigation evidence must relate to the defendant's character or
background or circumstances of the offense on trial. The witness
testified that he had never observed any police interaction with
Speed, and evidence of how others may have been treated by the
police is irrelevant.
35. The state's cross-examination of Reverend
Butts was not improper.
36. The trial court did not abuse its discretion
in limiting Speed's cross-examination of the victim's police
37. A jailer who had observed Speed every day for
at least eight months testified as a mitigation witness and stated
that Speed was a quiet, compassionate inmate. On cross-examination,
the prosecutor, apparently anticipating the testimony of the defense
psychologist that Speed had a dependent personality disorder, asked
the jailer if Speed had a dependent or independent personality.
Speed objected that the jailer was not qualified to answer the
question, but the trial court overruled the objection. The jailer
answered that Speed had a strong, independent personality based on
his demeanor and character and that he did not seem to depend on any
jailer or inmate. The jailer also testified over objection that he
was surprised that the defense psychologist had diagnosed Speed with
a dependent personality disorder because Speed "hasn't exuded any of
those qualities." Although the jailer was not an expert, "after
narrating the facts and circumstances upon which his testimony is
based, a nonexpert witness may express his opinion as to the state
of mind or mental condition of another." We find no error.
38. Besides the jailer, Speed presented his
teacher at the jail, who also testified that Speed was a quiet,
nonviolent inmate who did not cause problems. The state presented
four rebuttal witnesses, all jailers, who testified about several
disruptive incidents, including a fight, that Speed had been
involved in awaiting trial. Speed complains that the state did not
provide notice of these witnesses under OCGA
17-10-2 (a), but Speed's cross-examination of the rebuttal
witnesses shows that his lawyer was aware of these witnesses and the
incidents about which they testified. Since the four witnesses were
presented as rebuttal witnesses, and Speed had some notice of their
testimony, we find no error.
39. The state's sentencing phase closing argument
was not improper.
40. The trial court did not err by sending a
written copy of the alleged statutory aggravating circumstances out
with the jury during its deliberations, as required by OCGA
41. The sentencing phase verdict form was not
error. The trial court properly declined to use Speed's requested
verdict form because it included the option of deadlock.
42. During the charge conference, the trial court
agreed to give Speed's penalty phase request to charge number 21,
which listed the circumstances under which the police can make a
warrantless arrest. Speed contended that the (b) (10) aggravating
circumstance did not apply because Officer Johantgen was not making
a lawful arrest. Instead, Speed argued that the officer was acting
outside the scope of his official duties when he detained and
frisked one of the men in the parking lot.
After closing arguments in the penalty phase, the
trial judge had to leave town due to a family member's serious
illness. The following day, a substitute judge gave the court's
charge to the jury and presided over the deliberations. After the
charge was completed, the substitute judge pointed out to the
parties that he had not given Speed's request to charge number 21
because the original trial judge had left word that he had not meant
to give that charge. Speed announced that he reserved all objections
to the charge for the motion for new trial.
On appeal, Speed complains that the failure of
the trial court to give the agreed charge was reversible error
because he made his argument anticipating that the charge would be
given and the failure to do so impaired his closing argument. We
disagree. First, the trial court was not required to give Speed's
request to charge number 21. The charge as given on the statutory
aggravating circumstances tracked the language of the recommended
charge in the pattern jury instructions, and we have never required
a trial court to go beyond the pattern charge. Second, if Speed was
misled about the charge during his closing argument, it was
incumbent upon him to request to reargue. His failure to do so
waives this issue on appeal. We further conclude that Speed can show
no harm resulting from the substitution of the trial judges.
43. The trial court's guilt-innocence phase jury
charge was not improper. Speed claims that the trial court erred by
refusing to give several of his requested charges, but they were
either already covered by the charge or not supported by the
evidence. The trial court correctly denied Speed's requested "two
44. The trial court's penalty phase charge on the
two statutory aggravating circumstances was not improper.
45. The trial court's sentencing phase jury
charge was not improper. Speed's requests to charge that the trial
court denied were either already covered by the charge or were
inaccurate statements of the law. The trial court is not required in
its charge to identify or enumerate mitigating circumstances for the
jury, nor is the trial court required to charge the jury on the
consequences of a deadlock.
46. The trial court did not err in failing to
charge the jury in the sentencing phase on a burden of proof for
non-statutory aggravating circumstances.
47. The indictment was valid.
48. OCGA 16-5-1,
the murder statute, and 17-10-30,
which authorizes a death sentence for murder, are not
49. Because Speed failed to prove purposeful
racial discrimination in the state's intent to seek the death
penalty in his case, the trial court did not err by denying his
motion to preclude the state from seeking the death penalty.
50. Speed's equal protection claim regarding the
race and gender of the Fulton County grand jury foreperson is
without merit. The record shows that the Fulton County grand jury
elects its foreperson without input or assistance from the state.
51. The trial court did not err in its rulings on
Speed's discovery motions.
52. The trial court did not err by granting the
state's motion in limine, which prevented Speed from referring to "unrelated
homicides" without first showing that these homicides were relevant
to Speed's case.
53. Speed complains that Brady v. Maryland was
violated because the trial court permitted the state to withhold
favorable evidence during discovery. More than a year after Officer
Johantgen's murder, several Atlanta area police officers, including
two officers who worked in the same zone as Officer Johantgen, were
arrested for committing crimes such as burglary and armed robbery.
Speed sought the personnel and investigative files of these officers,
speculating that Officer Johantgen may have been involved in the
crime ring and therefore may not have been acting in the performance
of his official duties when he was murdered. Speed, however, fails
to show that there was any link between the information sought and
the circumstances of Officer Johantgen's murder or that the state
withheld any exculpatory or favorable evidence. We therefore
conclude that this enumeration is without merit.
54. The trial court did not err by denying
Speed's motion for recusal of the trial judge due mainly to the
judge's previous employment as an Atlanta police officer,
investigator for the district attorney's office, and assistant
district attorney. The trial court correctly determined, pursuant to
Uniform Superior Court Rule 25, that a reasonable person would not
conclude, assuming the truth of all alleged facts, that the judge
harbored a bias stemming from an extrajudicial source, which is of
such a nature and intensity that it would impede the exercise of
55. Shortly after the conclusion of Speed's trial,
the trial judge's law clerk learned of a vacancy in the criminal
division of the Attorney General's office. The law clerk applied for
the position and submitted several criminal law writing samples,
including memoranda drafted to assist the trial judge during Speed's
trial. The trial judge was not aware that his law clerk had applied
for this position. When the assistant attorney general responsible
for hiring realized that some of the writing samples involved an on-going
capital case in which the Attorney General would represent the state
on appeal, she informed the parties and the trial judge of what had
occurred, returned the writing samples, and insulated the rest of
the criminal division from exposure to them. The law clerk withdrew
his application with the Attorney General's office, and the trial
judge ended the law clerk's assistance with Speed's case. Speed
subsequently filed a motion to recuse the trial judge from further
participation in the post-trial proceedings and moved for a mistrial
on this ground.
An independent judge presided over a hearing on
this issue. He determined, after reading the writing samples and
hearing testimony from the trial judge and the law clerk, that the
memoranda contain "little or no original comment from the law clerk"
and consist mostly of down-loaded verbatim material from the Michie
Company's "Georgia Law on Disk," available to any legal researcher.
He concluded that the state gained no advantage from the disclosure
of the memoranda and that no reasonable person would find an
appearance of impropriety warranting the recusal of the trial judge.
Upon review of the record, we agree.
56. Speed's death sentence was not imposed as the
result of impermissible passion, prejudice, or other arbitrary
factor. The death sentence is also not excessive or disproportionate
to the penalty imposed in similar cases, considering both the crime
and the defendant. The similar cases listed in the appendix support
the imposition of the death penalty in this case, in that all
involve the deliberate killing of a police officer in the
performance of his official duties, and thus show the willingness of
juries to impose the death penalty under these circumstances.
Paul L. Howard, District Attorney, Bettieanne C.
Hart, Peggy A. Katz, David E. Langford, Assistant District Attorneys,
Thurbert E. Baker, Attorney General, Susan V. Boleyn, Senior
Assistant Attorney General, Paige Reese Whitaker, Assistant Attorney
General, for appellee.
1 The crime
occurred on December 21, 1991. The grand jury indicted Speed for
malice murder on January 28, 1992, and the state filed a notice of
intent to seek the death penalty on February 10, 1992. The trial
took place from September 7 to October 1, 1993. The jury convicted
Speed of malice murder on September 27, 1993, and recommended a
death sentence on October 1, 1993. Speed filed a motion for new
trial on October 11, 1993, which was amended on October 25, 1993,
and further amended on March 20, 1995, and May 25, 1995. The trial
court denied the motion for new trial on March 24, 1998. Speed filed
his notice of appeal on April 20, 1998, and this case was docketed
on May 20, 1998. The case was orally argued on September 14, 1998.
Michael Mears, James C. Bonner, Jr., for
DECIDED MARCH 1, 1999 -- RECONSIDERATION DENIED
MARCH 19, 1999.