William Lamar Todd, 40, was
sentenced to death in May 1989 in Harris County. On July 12, 1988, a co-worker
found the body of Randy Churchwell, 33, at his home. Mr. Churchwell had
been hit at least 12 times with a hammer.
Mr. Todd later told police
that he and his girlfriend stole Mr. Churchwell's wallet and car and
headed to Texas where they were arrested two weeks later.
only prior conviction was for simple possession of marijuana in Florida.
(261 Ga. 766)
(410 SE2d 725)
Murder, etc. Harris Superior Court. Before Judge McCombs.
William Lamar Todd was convicted by a jury in
Harris County of murder and armed robbery. He was sentenced to death
for the murder. 1
1. After the victim failed to appear for work on
July 12, 1988, the police were called to his home. The victim lay on
the kitchen floor. He had been bludgeoned to death. A blood-soaked
towel and bedspread found near the body indicated someone had
attempted, unsuccessfully, to clean the blood from all over the
kitchen. The victim's car and many items from his home were missing.
Two weeks later, Todd and his female companion,
still in possession of the victim's car, were arrested in Texas.
Todd gave several statements to the police. Todd at first denied
knowing the victim. Then he admitted knowing him, but denied killing
him. In a third statement, Todd admitted killing the victim after a
struggle. After it was pointed out to him that there were no signs
of a struggle, Todd gave a fourth statement.
He told police that he and his female companion
intended to wait until the victim (with whom Todd was living) was
asleep, tie him up and take his car. Todd's companion however, was
tired of waiting in her hiding place (an old bus) and told Todd to
hurry or she would leave. Todd got a hammer, entered the victim's
kitchen and hit him in the head until he "laid down," and Todd "seen
all that stuff coming out of his head." (The autopsist testified
that the victim had been hit in the head at least 12 times.)
Todd and his companion then took various of the
victim's possessions from his house, took his car and drove off.
After selling some of the stolen items in
Georgia, the two drove to Birmingham, Alabama. They sold more of the
victim's possessions there, and discussed trading the victim's car
for cocaine. Todd got into an argument with one of the men with whom
they were staying, hit him on the head with a hammer, shot him, and
took his wallet. Todd and his companion drove to Galveston, sold
some more of the victim's possessions, got into more arguments, and
finally were arrested.
The evidence supports the conviction for murder
and armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781,
61 LE2d 560) (1979).
2. In his first two enumerations of error, Todd
complains of the prosecutor's closing arguments at the guilt and
sentencing phases of the trial.
(a) At trial, Todd objected to only one of the
three portions of the prosecutor's guilt-phase closing argument
about which he now complains. The time to object to improper closing
argument is when the impropriety occurs at trial, when the trial
judge may take remedial action to cure any possible error. See, e.g.,
UAP (A) (2) (d). When no timely objection is interposed, the test
for reversible error is not simply whether or not the argument is
objectionable, or even if it might have contributed to the verdict;
the test is whether the improper argument in reasonable probability
changed the result of the trial. Ford v. State,
255 Ga. 81, 90 (335
SE2d 567) (1985). As to the two portions of the state's guilt-phase
argument not objected to at trial, we find no harm sufficient to
overcome the defendant's procedural default, even assuming that the
two arguments were, as the defendant contends, objectionable.
In the third instance, in response to the
defendant's closing argument about the criminal backgrounds of many
of the state's witnesses, the prosecutor pointed out that the state
had to take its witnesses as it found them and that this was a
"dope-related homicide." The defendant objected that the prosecutor
misstated the evidence. A prosecutor, however, has the right to
argue reasonable inferences from the evidence, and the
characterization of this homicide as being "dope-related" was
eminently reasonable. See Conner v. State,
251 Ga. 113 (6) (303 SE2d 266) (1983). The denial of Todd's
motion for mistrial was not error.
(b) Todd objected to only one of the three
portions of the prosecutor's sentencing-phase arguments about which
he now complains. As to the portions of the sentencing-phase
argument not objected to, pretermitting any question of their
propriety we do not find sufficient prejudice to overcome the
procedural default. 2
The defendant did object when the prosecutor
analogized the defendant's testimony about his refusal to shoot the
man who may have killed the defendant's sister to a scene in a well-known
movie in which a murder suspect refused to kill a fly that had
landed on his face so that his accusers might think he was "so
harmless he wouldn't even hurt a fly." We do not agree with the
defendant that this argument impermissibly introduced "facts" not in
evidence. See Conner v. State, supra at 123. Parables of the kind at
issue here generally are permissible, and the mere reference to a
movie title added nothing of any great significance to the point of
the prosecutor's argument. The trial court did not err by denying
the defendant's motion for mistrial.
3. Todd contends in his 3rd, 5th, and 17th
enumerations of error that the trial court erred by denying three
motions for mistrial during the state's cross-examination of him at
the sentencing phase of the trial.
The first motion was made when the victim's
mother left the courtroom sobbing after Todd graphically described
hitting the victim in the head and watching the blood "squirt[ ]
out." Todd contends that her reaction was the result of improper
cross-examination by the district attorney. We do not agree that the
state's cross-examination was improper; in view of the defendant's
conflicting statements and trial testimony about the facts of the
crime, and his denial even at the sentencing phase that he was
guilty of murder, the state was entitled to examine the defendant
about just what the defendant contended was the truth about the
The victim's mother immediately left the
courtroom, and the trial court instructed the jury to disregard the
incident. The court did not abuse its discretion by denying the
motion for mistrial. Messer v. State, 247 Ga.
316 (6) (276 SE2d 15) (1981).
The second motion for mistrial followed this
portion of the state's cross-examination:
A. . . . I realize this is your first capital
case as a D.A.; but I am not a murder[er] and I don't just go around
hitting and killing people.
Q. Are you keeping score of my capital cases?
A. I remember when you were elected. I think I
was still in . . . jail here when you took the position as D.A. . .
Q. I believe I've been around and have been here
with a lot more folks like you --
A. As D.A.? Like me? Like me?
Q. No, I'll withdraw that. I've not run across
one like you.
The defense objected "to the comparisons" and
moved for a mistrial. The court did not explicitly rule on either
the objection or the motion, directing instead that the parties
simply "get on with it."
The prosecutor should not have compared the
defendant to others in his experience. Nevertheless, the subject of
the prosecutor's expertise was brought up by the defendant. We do
not think the jury was impressed either way by this colloquy, and
find any error harmless. The implicit denial of a mistrial was not
an abuse of discretion. Sabel v. State, 250
Ga. 640 (5) (300 SE2d 663) (1983).
The third motion for mistrial came after a brief
redirect examination in which the defendant claimed never to have
been convicted of anything other than a traffic violation before
being convicted of murder and armed robbery in this case. Asked on
re-cross about a narcotics charge in Florida, the defendant admitted
having been arrested for possession of marijuana and paying a "misdemeanor
State, 260 Ga. 591 (6)
(398 SE2d 168) (1990). It follows that when a defendant
contradicts his own testimony on re-direct by his admission on
re-cross that he has a prior drug conviction, his testimony is not
excludable merely because the state does not choose to bolster its
impeachment with a certified copy of that conviction.
The state did not prove merely that the defendant
had been charged with a crime. See Jefferson v. State,
256 Ga. 821, 827 (8 b) (353
SE2d 468) (1987). The trial court did not err by overruling
the objection and denying Todd's motion for mistrial.
4. Relying on Booth v. Maryland, 482 U. S. 496
(107 SC 2529, 96 LE2d 440) (1987), the defendant contends that
improper "victim-impact" evidence and argument were presented to the
jury. Booth v. Maryland, however, has been overruled. Payne v.
Tennessee, 501 U. S. ---- (111 SC 2597, 115 LE2d 720) (1991). Under
Payne, just as the defendant may introduce evidence about his
individual personality and argue that evidence to the jury, so may a
prosecutor similarly address the "human cost of the crime of which
the defendant stands convicted." Id. 111 SC at 2609. There is no
merit to this enumeration of error.
5. There was no improper curtailment of the death-qualification
voir dire. Cargill v. State, 255 Ga. 616 (4)
(340 SE2d 891) (1986). The trial court's rulings on the death-qualifications
of the prospective jurors were "within the deference due the trial
judge's determination." Jefferson v. State,
256 Ga. 821, 824 (2) (353 SE2d 468)
The defendant contends that prospective jurors
Duck and Feronne should have been excused because they had discussed
the case and because Duck did not answer truthfully questions about
her discussion of the case. The defendant did not challenge Feronne,
and the trial court did not err by failing to excuse this juror sua
sponte. Spencer v. State, 260 Ga. 640 (1)
(398 SE2d 179) (1990). Duck was challenged based on the
alleged inconsistency of her answers with Feronne's. Duck testified
that two weeks earlier,
probably one day at lunch . . . when I first got
my summons that I was on the jury . . . [I said] it was going to
conflict with something we had at work and he heard me say it and he
said, "Oh, I'm on that one too," and that was it. . . . I don't
remember anything else.
I knew I had jury duty but I thought it was for
local criminal cases or whatever and a conversation came up that it
had to do with a murder case . . . that took place last year and the
person fled and they apprehended the suspect in Texas, I believe,
something like that, and that's about all, really. Nothing about who
did what or which, you know.
Although the testimony of the two prospective
jurors is somewhat inconsistent, under either version, the
discussion of the case was minimal. The testimony does not support
the defendant's contention that Duck perjured herself or that she
should have been excused for cause.
The defendant contends that prospective juror
Duncan should have been excused for cause because she read the paper
after having been instructed not to. She testified that she saw the
headline and that it was "hard not to glance at it," and that
although she did not read the article "because we're not supposed to
go into all that, but I guess I'm human, I just skimmed it." She
also testified, "I don't think you can believe what you read in the
newspaper." The trial court did not err by denying the defendant's
motion to excuse this juror for cause.
Nor did the court err by denying the defendant's
motion to excuse for cause a driver's license examiner employed by
the Department of Public Safety. This juror was not a full-time
police officer that, under Hutcheson v. State,
246 Ga. 13 (268 SE2d 643) (1980), must
be excused for cause automatically upon request, no matter what the
officer's voir dire answers show. The automatic excusal rule not
applying to this prospective juror, the trial court did not err by
concluding from his answers that he could be a fair and impartial
6. Although the 24-page transcript of the
defendant's pretrial statement originally furnished the defendant
contained some inaccuracies (which were corrected in a supplemental
transcript furnished the defendant during the trial) it was
sufficiently complete to satisfy the requirements of OCGA
17-7-210. Myers v. State,
196 Ga. App. 104 (2) (395 SE2d 372) (1990).
7. The defendant moved to exclude evidence of
"similar crimes" committed by the defendant in Birmingham. The state
responded that the events in Birmingham were part of a continuous
criminal enterprise beginning before the victim's death when the
defendant went to Birmingham to negotiate a drug deal that involved
trading an automobile for cocaine, continued when the defendant
returned to Georgia, killed the victim and with his companion stole
the victim's car and other possessions, further continued back to
Birmingham where they attempted drug deals that did not go through
and then, out of money, committed another robbery by use of the same
weapon (a hammer) used in Harris County, Georgia, and fled to Texas
using the Birmingham victim's money and the Harris County victim's
We agree with the state that the crimes
complained of here were not independent crimes. Davis v. State,
255 Ga. 598, 606 (340
SE2d 869) (1986). See also Ingram v. State,
253 Ga. 622 (6) (323 SE2d 801) (1984);
Putman v. State, 251 Ga. 605 (2) (308 SE2d
8. There was no error in the admission of
allegedly gruesome photographs, or in the admission of the hammer
the defendant used in the Birmingham assault. Hicks v. State,
256 Ga. 715 (13) (352 SE2d 762) (1987).
9. The court did not err by allowing the state to
offer in evidence a piece of the victim's skull which the state
contended was relevant to prove "the size and character of the
weapon used," where the murder weapon was not recovered. Hicks v.
State, supra; Green v. State, 242 Ga. 261
(8 b) (249 SE2d 1) (1978). See also
Hance v. State, 254 Ga. 575 (4) (332 SE2d
10. The defendant was not, as he contends,
entitled to jury instructions on the lesser offenses of voluntary
manslaughter and theft by taking. Hopper v. Evans, 456 U. S. 605
(102 SC 2049, 72 LE2d 367) (1982); Keeble v. United States, 412 U.
S. 205 (93 SC 1993, 36 LE2d 844) (1973).
11. Because the defendant failed to make a
preliminary showing that his mental condition would be a significant
factor at trial, the trial court did not err by failing to provide
independent psychiatric assistance to the defendant. Childs v. State,
257 Ga. 243 (5) (357 SE2d 48) (1987).
12. There was no error in the court's
instructions concerning the b (2) statutory aggravating circumstance.
OCGA 17-10-30 (b) (2). For purposes of
this statutory circumstance, armed robbery is a capital felony. Peek
v. State, 239 Ga. 422, 432 (III) (238
SE2d 12) (1977).
13. In his final enumeration of error, the
defendant contends he was denied effective assistance of counsel at
trial. The two attorneys who represented the defendant at trial were
relieved of their appointments after trial, and a new attorney was
appointed to represent the defendant on his motion for new trial and
on appeal. The issue of trial counsel's effectiveness was raised at
the hearing on the motion for new trial and, after hearing evidence,
the trial court found against the defendant's claim of
ineffectiveness. The record supports the trial court's conclusion
that the defendant failed to overcome the "strong presumption" that
trial counsel performed effectively. Ferrell v. State,
261 Ga. 115 (3) (401 SE2d 741) (1991).
An issue of post-conviction counsel's
effectiveness has been raised by way of an amicus curiae brief. In
this brief, it is urged that postconviction counsel failed
effectively to present an issue of trial counsel's effectiveness.
Moreover, it is contended that when the defendant questioned the
performance of his post-conviction counsel, another attorney should
have been appointed to present this "ineffectiveness" claim.
Pretermitting any issue of the proper scope of an
amicus brief, see Fulton County v. Bartenfeld,
257 Ga. 766, 771 (5) (363
SE2d 555) (1988), we decline the invitation to remand this
case to the trial court for further hearing on the issue of the
effectiveness of post-conviction counsel. The trial court gave the
defendant an opportunity to voice his complaints about his post-conviction
counsel and the trial court, after hearing from the defendant and
hearing from his counsel about the latter's qualifications,
experience, and preparation in this case, found that counsel was
competent and was representing the defendant well. Compare Davis v.
State, 255 Ga. 598 (14) (340 SE2d 869) (1986).
The trial court's investigation was sufficient. A criminal defendant
is not entitled to the appointment of another attorney as a matter
of right whenever he expresses his dissatisfaction with his present
attorney. Blankenship v. State, 258 Ga. 43
(10) (365 SE2d 265) (1988).
14. By way of a supplemental brief, the defendant
contends the trial judge should have recused herself from the
hearing on the motion for new trial. He contends that an assistant
district attorney during the defendant's trial was employed as a
judicial law clerk during the pendency of his motion for new trial.
Relying on Pope v. State, 256 Ga. 195 (26)
(345 SE2d 831) (1986), the defendant contends the
circumstances gave rise to an appearance of partiality sufficient to
warrant the recusal of the trial judge, and moves for a remand and a
hearing on this issue.
However, the defendant does not contend that the
law clerk was involved with his case while she was an assistant
district attorney, or that she worked on this case as a judicial law
clerk (she was law clerk to all the judges in the circuit, not just
to the trial judge in this case). Hence, the defendant's motion
provides no grounds for recusing the trial judge and no basis for a
remand. Pope v. State, supra at 214. Cf. Potts v. State,
259 Ga. 96 (27) (376 SE2d 851) (1989).
15. The jury found that the offense of murder was
outrageously or wantonly vile, horrible and inhuman in that it
involved depravity of mind and aggravated battery. OCGA
17-10-30 (b) (7). The evidence
supports this finding. OCGA 17-10-35
(c) (2). Compare Taylor v. State, 261 Ga. 287
(13) (404 SE2d 255) (1991). We do not find that the death
sentence was imposed as the result of passion, prejudice, or other
arbitrary factor. OCGA 17-10-35 (c)
(1). The sentence of death is neither excessive nor disproportionate
to the penalties imposed in similar cases, considering both the
crime and the defendant. OCGA 17-10-35
(c) (3). The similar cases listed in the Appendix support the
imposition of a death sentence in this case.
BENHAM, Justice, dissenting.
Because I am convinced that the argument of the
prosecuting attorney was so flagrantly improper as to demand a new
trial for appellant, I must dissent.
1. During the sentencing phase argument, in an
apparent effort to extinguish any doubts the jury might have about
appellant's mental capacity, the district attorney told the jury
we know he's been examined by a psychologist [and
that] [w]e have no evidence of that [mental instability]. So you
would have to assume that there is no mental pathology that led to
this . . . attack.
Even though he knew that appellant had not been
psychologically examined, the prosecuting attorney, through this
argument, deliberately misled the jury into believing that such an
examination had taken place and had resulted in a conclusion that
appellant was mentally stable. The remark was impermissible not only
because it stated facts not in evidence, but because it was a
deliberate misstatement of fact. Considering the magnitude of the
consequences, it is more important in the sentencing phase of a
death penalty case than in any other criminal proceeding that
prosecuting attorneys be held to their duty to seek justice, to
temper their advocacy on behalf of the State with a determination
that the truth be served. Misstating the facts and misleading the
jury is a violation of that duty and must not be condoned.
2. In the course of his argument in support of
the death penalty, the prosecuting attorney made several references
to religion, Christianity, and the teachings of the Christian Bible.
Permitting those arguments amounted to constitutional error.
On the way to reaching the conclusion that it was
constitutional error to permit the jury to take a Christian Bible
with it into the jury room, the U. S. District Court for the
Northern District of Georgia made the following observations:
It is well settled that religion may not play a
role in the sentencing process. [Cits.] . . . The jury which
sentenced [appellant] had a duty to apply the law of the State of
Georgia as given by the trial judge, not its own interpretation of
the law or its own interpretation of precepts of the Bible, in
determining whether [appellant] should live or die. . . . To the
average juror, Webster's Dictionary may be no more than a reference
book, . . . but the Bible is an authoritative religious document and
is different not just in degree, although this difference is
pronounced, but in kind. . . . As the United States Supreme Court
stated in Godfrey v. Georgia, 446 U. S. 420, 428, [(100 SC 1759, 64
LE2d 398) (1980)]: "If a State wishes to authorize capital
punishment, it has a constitutional responsibility to tailor and
apply its law in a manner that avoids the arbitrary and capricious
infliction of the death penalty. It must channel the sentencer's
discretion by 'clear and objective standards' that provide 'specific
and detailed' guidance, 'and that make rationally reviewable the
process for imposing a sentence of death.' " As the Supreme Court
further stated: "A capital sentencing scheme must, in short, provide
a 'meaningful basis for distinguishing the few cases in which the
penalty is imposed from the many in which it is not.' "[Cit.]
Georgia's death penalty statute lays out specific guidelines for
separating "the many" from "the few." [Cit.] The Bible, however, in
some places explicitly rejects the drawing of distinctions in murder
cases: 'Whoso sheddeth man's blood, by man shall his blood be shed:
for in the image of God made he man." [Cits.] Whereas the Bible
commands that "thine eye shall not pity; but life shall go for life,
eye for eye, tooth for tooth, hand for hand, foot for foot," [cit.]
it is the law in this Circuit that arguments which disparage mercy
as a valid sentencing consideration "strike at the most important
component of a capital jury's discretion favoring capital defendants."
[Cits.] Especially where, as here, such arguments come from a source
which "would likely carry weight with laymen and influence their
decision," [cit.] the effect may be highly prejudicial to the
defendant, and the confidence in the reliability of the jury's
decision which must guide imposition of the death penalty may be
undermined. [Jones v. Kemp, 706 FSupp. 1534, 1559 (N.D. Ga. 1989).]
A review of the prosecuting attorney's argument,
in light of the preceding principles, reveals several instances of
prejudicially improper argument. The prosecutor urged that the State
is entitled to "Old Testament Retribution." Quoting from the New
Testament, "Blessed are the merciful for they shall obtain mercy,"
the prosecutor disparaged mercy as a sentencing consideration in
this case. One of the Biblical passages about which the court in
Jones v. Kemp, supra, expressed concern was used here in just the
manner that court feared it would be: the prosecuting attorney
quoted the Bible as saying, "He who sheddeth the blood of man, by
man shall his blood be shed," in support of the death penalty. In a
blatant attempt to appeal to Christian sensibilities, the prosecutor
told the jury that he had heard many arguments to the effect that "Christians
are a bunch of wimps that will not enforce the laws of the Bible
because Jesus came to forgive us of our sins." That one argument not
only appealed to religious affiliations which have no proper place
in jury deliberations, but also urged the jury to apply a law other
than that of Georgia as given to the jury by the trial court. Early
in the argument, the prosecuting attorney even sought to drive a
wedge of religion between appellant and his counsel, identifying
first himself and then one of the defense attorneys as a Baptist,
thereby aligning that member of the defense team with the
The State's injection of religion into the
considerations for the jury in determining sentence was wholly
improper and amounts to seeking to have the death penalty imposed
not in accordance with the guidelines established by statute, but
with passion and prejudice. The appeal to religious principles is
directly opposed to the requirement the United States Supreme Court
articulated in Godfrey, supra, and violates the "constitutional
responsibility to . . . apply [the] law in a manner that avoids the
arbitrary and capricious infliction of the death penalty." Id. In
vacating the sentence of a televangelist convicted of fraud offenses,
the Fourth Circuit Court of Appeals held that it is a deprivation of
due process for the trial judge impermissibly to take his own
religious characteristics into account in sentencing. United States
v. Bakker, 925 F2d 728 (4th Cir. 1991). In the same way, it was a
denial of appellant's right to due process for the jury deciding
whether he should be executed to be told to make that decision on
the basis of religious, not legal, principles.
3. In Caldwell v. Mississippi, 472 U. S. 320 (105
SC 2633, 86 LE2d 231) (1985), the United States Supreme Court held
that a prosecutor's argument that the jury should not view itself as
deciding whether the defendant would die, since there was automatic
review by the State Supreme Court,
rendered the capital sentencing proceeding
inconsistent with the Eighth Amendment's heightened "need for
reliability in the determination that death is the appropriate
punishment in a specific case." [Cit.] Id. at 323.
In the present case, the prosecuting attorney, in
the process of telling the jury that it was "free to do under the
law, and even outside the law in some instances, whatever it want[ed]
to," made a reference to the possibility of a future pardon for
appellant. Although the argument here was not the direct argument
made in Caldwell that the jury was not the last word on the subject
of the death penalty, it was nonetheless a reference to the fact
that appellant would have an opportunity to seek clemency from
others, notwithstanding this jury's decision that he should die. The
prosecutor here attempted to do indirectly what this court declared
in Fleming v. State, 240 Ga. 142 (240 SE2d
37) (1977), could not be done directly. Noting that "this
type of remark has an unusual potential for corrupting the death
sentencing process," this court held
that it was reversible error for the prosecutor
to mention to the jury in his arguments during the death penalty
phase, that any sentence of death would be reviewed. . . . The
prosecutor should refrain from argument which would divert the jury
from its duty to decide the case on the evidence by making
predictions of the consequences of the jury's verdict. . . . The
jury is given the heavy burden of making the decision of whether the
defendant will live or die. Comments about appellate safeguards on
the death penalty suggest to the jury that they can pass the
responsibility for the death sentence on to this court. [Id. at
In a proceeding as weighty as a death penalty
sentencing hearing, we must be alert to prevent subversion of the
clear guidelines by indirect tactics. The prosecuting attorney's
remarks introduced to the jury's consciousness the notion that they
could sentence him to death without being personally responsible --
someone else would look at the sentence and consider whether
appellant should die for his crime. That responsibility, heavy as it
is, must remain where the law has placed it, on the shoulders and
consciences of the jurors.
4. During argument to the jury, defense counsel
did not object to the three instances of improper argument I have
discussed above. In Division 2 of the majority opinion, the majority
finds no harm sufficient to overcome the defendant's procedural
default. I cannot agree. As noted above, the jury in this case was
subjected to emotional, religiously-charged arguments and was urged
to return a death sentence on the basis of misstatements of fact.
Given the magnitude of those improprieties, I am convinced that
there exists a reasonable probability that the result in the
sentencing phase may well have been different.
3 See Ford v. State,
255 Ga. 81 (335 SE2d 567) (1985).
Consequently, I would consider the argument, find
the allowance of the argument to be constitutional error, and vacate
the death sentence and remand with direction to conduct a new
sentencing hearing. Given those considerations, I must respectfully
dissent from the majority's affirmance of the sentence in this case.
Douglas C. Pullen, District Attorney, Edward F.
Berry, Peter B. Hoffman, Assistant District Attorneys, Michael J.
Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney
General, Robert D. McCullers, Staff Attorney, for appellee.
1 The defendant was arrested on
July 27, 1988, in Galveston, Texas. The trial began on May 1, 1989, and
concluded on May 6, 1989. A motion for new trial was filed and denied
after hearing on February 20, 1991. The case was docketed in this court
March 25, 1991, and the case was argued orally on June 5, 1991.
2 We observe, however, that while
it would be improper to urge the imposition of a death sentence on the
basis of a defendant's religious beliefs, when the defendant offers
mitigation evidence of his post-arrest church attendance and activities,
the prosecutor is entitled to raise questions in his argument about the
genuineness of the defendant's "jail-house" religious conversion. Such
an argument addresses itself to the sincerity of the defendant's
rehabilitation, which is a legitimate consideration on the issue of
sentence.In addition, we point out that, contrary to Justice Benham's
dissent, the prosecutor's argument that "We know he's been examined by a
psychologist" was factually supported by the defendant's own testimony,
and was neither a misstatement of the evidence nor a statement of facts
not in evidence.
3 In addition, I am struck by the
powerful irony that would be inherent in holding in this case that trial
counsel was not ineffective, but that trial counsel's failure to object
to improper argument makes appellate review of that argument unnecessary.
David L. Roberts, for appellant.
DECIDED NOVEMBER 27, 1991 -- RECONSIDERATION DENIED DECEMBER 18,
William Lamar Todd