A jury found Michael William Ledford guilty of the murder of Jennifer Ewing and related offenses. After finding multiple statutory aggravating circumstances, the jury recommended a death sentence for the murder. See OCGA § 17-10-30(b). The trial court entered judgments of conviction on the guilty verdicts and sentenced Ledford to death for murder and to various consecutive terms of imprisonment for the remaining crimes. Ledford appeals after the denial of a motion for new trial.
1. The evidence presented at trial showed that, on July 25, 2006, Michael Ledford pretended to go to work but, instead, bought beer and drank it near the Silver Comet Trail, a recreational trail used for biking, running, and other activities. Ledford knocked Jennifer Ewing from her bicycle as she rode by his location. He dragged her a distance off the trail to a location shielded from view by vegetation. He stripped off all of her clothing from the waist down, and he pulled her shirt up part way, exposing her breasts. She suffered bruises throughout her body in the struggle. When Ledford forced his penis into her mouth, she bit his penis and severely wounded it. Enraged by her resistance, Ledford unleashed a shocking attack during which he stomped on her face and nose, her larynx, and her ribs. Ms. Ewing gradually succumbed to asphyxiation caused by her wounds and the resulting bleeding into her lungs.
Upon our review of the record, we conclude that the evidence presented at trial was sufficient to authorize a rational trier of fact to find Ledford guilty beyond a reasonable doubt on all charges. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). However, we recognize that the victim's death was caused by the same actions which established the commission of the three aggravated batteries. Thus, we will determine whether the aggravated batteries should merge either into each other or into the malice murder.
We will first address the question of whether the aggravated batteries must be merged into each other. "Georgia law prohibits multiple convictions if `(o)ne crime is included in the other.' OCGA § 16-1-7(a)(1)." Goss v. State, 289 Ga.App. 734, 738(3), 658 S.E.2d 168 (2008). Under the express terms of that statute, however, "[t]he rule prohibiting more than one conviction if one crime is included in the other does not apply unless `the same conduct' of the accused establishes the commission of multiple crimes." Waits v. State, 282 Ga. 1, 4(2), 644 S.E.2d 127 (2007). In this case, the first count of aggravated battery required the State to prove that Ledford seriously disfigured the victim's head and face, the second count required
We next address whether any of the aggravated battery counts must be merged into the murder count. The evidence showed that each of the three aggravated batteries contributed to the death of the victim by asphyxiation and, thus, the "same conduct" established the commission of both malice murder and the aggravated battery counts. However, merger of any aggravated battery count into the murder count
Linson v. State, 287 Ga. 881, 885(4), 700 S.E.2d 394 (2010). Both malice murder and aggravated battery require a malicious intent. See OCGA §§ 16-5-1(a), 16-5-24(a).
Linson v. State, supra. "Aggravated battery. . . requires proof that the victim was deprived of a member of his body . . ., or that such member was rendered useless or seriously disfigured. OCGA § 16-5-24(a); [cit.]" Waits v. State, supra. This required injury is the only element of aggravated battery which is arguably not also part of the required proof for malice murder. Determination of that question would depend upon whether the proof of death required for murder is viewed as necessarily including proof that a bodily member was rendered useless and the victim deprived thereof. However, even if aggravated battery does require proof of an injury which malice murder does not, merger of the two crimes may still be required by Georgia's statutory definition of included offenses. Drinkard explained as follows:
Drinkard v. Walker, supra at 216, fn. 32, 636 S.E.2d 530. For this explanation and other portions of Drinkard, this Court relied heavily on Justice Marshall's dissenting opinion in Haynes v. State, 249 Ga. 119, 121-130, 288 S.Ed.2d 185 (1982). As further explained in that opinion, by providing that a crime is included if "[i]t differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest . . . suffices to establish its commission," OCGA § 16-1-6(2) "recognizes that a crime such as battery, which prohibits the intentional infliction of bodily injury, is included in a crime such as murder, which prohibits the intentional infliction of more serious bodily injury, i.e., death," despite the distinction between these two injury elements. Haynes v. State, supra at 129(3)(b)(2), 288 S.E.2d 185 (Marshall, J., dissenting). Similarly, it is clear that the only difference between aggravated battery and murder is that the former requires a less serious injury to the person of the victim, as the injury to a bodily member specified in the aggravated battery statute is obviously less serious than death. Therefore, pretermitting whether these two offenses meet the "required evidence" test, convictions for both offenses established by the same conduct are prohibited by OCGA § 16-1-6(2). Accordingly, the convictions and sentences entered on the aggravated battery counts must be vacated.
2. Ledford contends that the trial court erred by refusing to order a change of venue based on pre-trial publicity. In order to be entitled to a change of venue, Ledford was required to "show that the trial setting was inherently prejudicial as a result of pretrial publicity or show actual bias on the part of the individual jurors." Gissendaner v. State, 272 Ga. 704, 706-707(2), 532 S.E.2d 677 (2000). Our review of the record reveals that much of the pre-trial publicity in Ledford's case was long before the trial and that much of the publicity provided little detail about the case and was accurate. Gissendaner v. State, supra at 706(2), 532 S.E.2d 677. Although our own review of the record reveals that 22 of the 120 jurors questioned on the subject were excused for cause based at least in significant part on exposure to information about the case pre-trial, we note that most jurors had heard nothing of particular import to our analysis regarding venue and that the trial court exercised an "exacting standard" in evaluating jurors' qualifications for service. Gissendaner v. State, supra at 707(2), 532 S.E.2d 677. In light of these considerations, we find that the trial court did not abuse its discretion in denying the motion for a change of venue. Gissendaner v. State, supra at 706(2), 532 S.E.2d 677.
3. Ledford argues that the trial court erred by denying his motion challenging the constitutionality of Georgia's death penalty laws on various grounds. For the reasons set forth below, we find no error.
(a) Ledford argues that Georgia's death penalty laws are applied in a discriminatory manner. However, he has utterly failed to show that any such discrimination has occurred in his case. McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987); Jenkins v. State, 269 Ga. 282, 285(2), 498 S.E.2d 502 (1998).
(c) Georgia's statutory aggravating circumstances do not fail to adequately narrow the class of cases eligible for the death penalty, and they do not otherwise promote the arbitrary and capricious infliction of the death penalty. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Arrington v. State, 286 Ga. 335, 336-337(4), 687 S.E.2d 438 (2009).
(d) This Court does not conduct its statutorily-mandated proportionality review in an unconstitutional manner. See Arrington v. State, supra at 337(4), 687 S.E.2d 438; Gissendaner v. State, supra at 716(16), 532 S.E.2d 677.
4. Ledford argues that Georgia's method of execution by lethal injection is unconstitutional. In support of this claim, Ledford relies on evidence from another death penalty case in which this Court rejected a similar claim. See Nance v. State, 280 Ga. 125, 127(4), 623 S.E.2d 470 (2005). As we have done repeatedly, we hold that this evidence fails to show that Georgia's method of lethal injection is unconstitutional. See Stinski v. State, 286 Ga. 839, 844(17), 691 S.E.2d 854 (2010); O'Kelley v. State, 284 Ga. 758, 769-770(4), 670 S.E.2d 388 (2008) (citing Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008)).
5. In conducting its initial voir dire of the first three prospective jurors, the trial court, relying on the pattern jury instructions, described the malice involved in the crime of malice murder as being "the unlawful intention to kill without justification, excuse, or mitigation." Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (4th ed.), § 2.10.10. Ledford objected to the trial court's reference to an absence of "mitigation" in this context, arguing that it had the potential to mislead jurors into believing in the sentencing phase that, by finding Ledford guilty of malice murder, they had already excluded the possibility of there being any mitigation relevant to sentencing. The trial court proposed modifying its statement about malice murder and "mitigation," and it proceeded, without any specific objection to its doing so as proposed, with the voir dire of two additional jurors. After the voir dire of these two jurors, Ledford objected again, and the trial court agreed simply to omit any future reference to "mitigation" in its definition of malice murder. Ledford then moved the trial court to excuse all of the jurors already found qualified. In light of the detailed voir dire conducted by the trial court itself, the great latitude granted to the parties to conduct their own voir dire of the jurors in question, and the trial court's charges to the jury in the sentencing phase, we find that those jurors would not have been confused about the role of mitigating circumstances in the sentencing phase. Accordingly, we hold that the trial court did not err by refusing to excuse the jurors in question. The trial court, in its discretion, might have considered allowing additional voir dire if Ledford had requested it, but Ledford made no such request. See Arrington v. State, supra at 338(7), 687 S.E.2d 438 ("The scope of voir dire is generally a matter for the trial court's discretion."). We find no error.
6. Ledford argues that the trial court improperly excluded a number of prospective jurors based on their views on the death penalty.
Nance v. State, 272 Ga. 217, 222(6), 526 S.E.2d 560 (2000). Applying this standard below, we find no error.
(a) Although Juror Debellevue initially stated that she could consider a death sentence under certain circumstances, she gradually moved from that position, explaining that she had been "nervous" when she gave her earlier responses. As questioning by the parties continued, the juror settled on the position that she did not believe that she could impose a death sentence even under the most extreme hypothetical circumstances that she had previously volunteered as examples. Finally, the juror stated clearly that she could not impose a death sentence under any circumstances whatsoever. The trial court did not abuse its discretion in finding that the juror's responses, taken as a whole, indicated that she was unqualified.
(b) Jurors Davis and Barnes stated repeatedly and clearly that they were conscientiously opposed to the death penalty and could not consider it as a sentencing option. The trial court did not abuse its discretion in finding them unqualified.
(c) Although Juror Grayson initially indicated merely that she did not know if she could impose a death sentence and that she would have to struggle with whether she could do so, she eventually settled clearly and firmly on the position that she would not consider imposing a death sentence under any circumstances. The trial court did not abuse its discretion in finding her unqualified.
(d) Juror Berg stated clearly that she would not consider either a death sentence or a sentence of life with the possibility of parole. The trial court did not err in finding her unqualified.
(e) Juror Wade stated repeatedly and clearly that she would not consider a death sentence under any circumstances. The trial court did not err in finding her unqualified.
(f) As to Jurors Lecca, Ricker, and Jackson, Ledford's only contention is that it is always improper to disqualify jurors simply because they would never be able to actually vote to impose a death sentence. This Court has rejected this view repeatedly. See Arrington v. State, supra at 336(2), 687 S.E.2d 438; Riley v. State, 278 Ga. 677, 685(6)(B), 604 S.E.2d 488 (2004).
7. Ledford argues that the trial court erred by finding a number of jurors qualified to serve over his objection based on their death penalty views or their views regarding the sentence of life with the possibility of parole. We have set forth the relevant standards for claims regarding death penalty views as follows:
Lance v. State, 275 Ga. 11, 15-16(8), 560 S.E.2d 663 (2002). We have also held that a
(a) Juror Greeson's voir dire responses, viewed as a whole, clearly indicated a willingness to consider mitigating evidence and to consider all three sentencing options. The trial court did not abuse its discretion in finding this juror qualified.
(b) After Ledford objected to a question to Juror Marino about whether he could "look [Ledford] in the eye" and sentence him to death, the trial court sustained the objection on the ground that the juror would never be required to look the defendant in the eye while the jury rendered its sentence. The trial court then asked a proper question regarding whether the juror, under appropriate circumstances, could ever sentence "any person" to death. We find nothing disqualifying about this juror's death penalty views. Furthermore, Ledford's claim regarding the juror's death penalty views, to the extent that he has attempted to raise one, was waived by his failure to raise any relevant objection at trial. See Braley v. State, 276 Ga. 47, 51(11), 572 S.E.2d 583 (2011).
(c) Ledford argues that Juror Sherrill should have been excused because he would refuse to consider a sentence of life with the possibility of parole. Juror Sherrill, at first, gave conflicting responses regarding his willingness to consider life with the possibility of parole. However, in light of his later, clear responses indicating that he would consider that sentence and in light of his explanation that his responses had changed based on his fuller understanding of the trial process, the trial court did not abuse its discretion in finding him qualified.
(d) Juror Ridarick's responses indicated that he leaned somewhat in favor of sentences other than life with the possibility of parole but that he would consider imposing life with the possibility of parole in light of the evidence presented at trial. The trial court did not abuse its discretion in finding him qualified.
(e) Despite Juror Childers' response to an improper hypothetical question regarding what sentence she would impose "if the crime was really bad," her remaining responses clearly indicated that she was willing to consider all of the evidence at trial and all three sentencing options. The trial court did not abuse its discretion in finding her qualified.
(f) Juror Cash initially stated repeatedly that she could consider all three sentencing options. Although she later seemed to indicate at one point that she would not consider a sentence less than death, she then clarified by indicating that, although she had a leaning in favor of the death penalty, she would consider all of the evidence and all three sentencing options. The trial court did not abuse its discretion in finding that the juror's responses, taken as a whole, indicated that she was qualified. See Pace v. State, 271 Ga. 829, 834(7), 524 S.Ed.2d 490 (1999) (noting that "[a] prospective juror is not subject to excusal for cause for merely leaning for or against a death sentence").
(g) Although Juror Slate indicated that she generally was in favor of the death penalty for religious reasons, she also indicated repeatedly that her religious views would not prevent her from considering all of the evidence and all three sentencing options. The trial court did not abuse its discretion in finding her qualified.
(h) Juror Fennelly initially indicated that she would not consider a sentence of life with the possibility of parole. However, after receiving an explanation about the trial process and the law and after further contemplating her position, she explained that she would consider all of the evidence and all three possible sentences. The trial court did not abuse its discretion in finding her qualified.
(i) Juror Dunbar stated that it was "highly improbable" that he would find sufficient mitigating circumstances to warrant a sentence of life with the possibility of parole. He also acknowledged, in responding to a question invoking technical legal terminology that might have been unfamiliar to him, that he might be substantially impaired in his ability to select such a sentence. Nevertheless, the juror's responses indicating that he
(j) Although Juror Fitzpatrick initially gave responses indicating that he would not consider life with the possibility of parole as a sentencing option, he later clarified that he would consider all of the evidence and would consider life with the possibility of parole under certain circumstances. The trial court did not abuse its discretion in finding the juror qualified.
(k) Ledford argues that Jurors McClung and Halualani should have been excused based on their death penalty views. Although not noted by either of the parties, our own review of the record reveals that these two jurors were eventually excused for other reasons. Accordingly, we find no possibility of reversible error. See Butts v. State, 273 Ga. 760, 763(4), 546 S.E.2d 472 (2001) ("Because it appears that [the appellant's] suggestion that the juror was ultimately found qualified to serve is false, we find no error.").
8. Ledford complains that a number of jurors should have been disqualified from service on grounds unrelated to their willingness to consider all three sentencing options. We find no error.
(a) The trial court did not abuse its discretion by refusing to excuse Juror Belanger based solely on the fact that he and his wife had twice ridden bicycles on the Silver Comet Trail, particularly because the juror indicated that his past contact with the trail would not affect his deliberations. See Gissendaner v. State, supra at 707(3)(a), 532 S.E.2d 677 ("A prospective juror need not be `totally ignorant of the facts and issues involved' in a criminal proceeding in order to be qualified to serve." (quoting Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961)); DeYoung v. State, 268 Ga. 780, 784(4), 493 S.E.2d 157 (1997)) (noting the trial court's discretion in determining whether a juror should be disqualified based on pre-trial exposure to information about the case).
(b) Ledford argues that the trial court erred in refusing to excuse Juror Marino based on the fact that the juror had done one internet search that had led him to an article revealing nothing prejudicial to Ledford and based on the fact that the juror's wife had learned about a murder on the Silver Comet Trail and was no longer willing to use the trail. The trial court did not abuse its discretion by finding this juror qualified. Gissendaner v. State, supra.
(c) Ledford argues that the trial court erred by refusing to excuse Juror Toler based on the fact that the juror had seen some reports indicating that a murder had occurred and on the fact that the juror recalled hoping at that time that the person guilty of such a "heinous crime" would be brought to justice. In light of Juror Toler's remaining voir dire responses indicating that he had not formed an opinion regarding Ledford's guilt or the appropriate sentence for the perpetrator of the murder, we find that the trial court did not abuse its discretion by finding this juror qualified. Gissendaner v. State, supra.
(d) We reject Ledford's argument that Juror Williams was unqualified to serve as a juror simply because she, as a veterinarian, had euthanized animals and believed that the process was "humane." Jurors in Georgia death penalty trials are never instructed to consider the method of execution in their deliberations. See Smith v. State, 270 Ga. 240, 250-251(16), 510 S.E.2d 1 (1998) (noting that the nature of Georgia's method of execution is irrelevant in the sentencing phase), overruled on other grounds, O'Kelley v. State, supra at 768(3), 670 S.E.2d 388. Furthermore, to the extent that there was any possibility that Juror Williams, or any other jurors for that matter, might express the view during deliberations that Georgia's method of execution is humane, we see no potential for prejudice to Ledford in light of our own prior holdings expressing that same view. Accordingly, we conclude that the trial court did not abuse its discretion by finding this juror qualified. Gissendaner v. State,
9. Ledford argues that the trial court erred by limiting the voir dire of a number of jurors. For the reasons set forth below, we find no abuse of the trial court's discretion in limiting the scope of voir dire. See Arrington v. State, supra at 338(7), 687 S.E.2d 438 ("The scope of voir dire is generally a matter for the trial court's discretion.").
(a) The trial court did not err by refusing to allow Ledford to question Juror Bailey regarding what weight she might give in her sentencing deliberations to several specific hypothetical factors. See Lucas v. State, supra at 646(9), 555 S.E.2d 440; King v. State, supra at 267(18)(e), 539 S.E.2d 783. The trial court also did not err by refusing to allow Ledford to ask Juror Bailey the largely irrelevant question of whether she would want a juror like herself to serve as a juror but, instead, itself asking the juror the more relevant question of whether she believed she could be fair and could consider all three sentencing options.
(b) After the State objected to a vague, hypothetical question to Juror Hurtado about whether "someone [who] has done something wrong" is entitled to mercy, the trial court asked a related, proper question about whether the juror would consider all of the mitigating evidence. We find no abuse of discretion by the trial court. Furthermore, this claim is waived, because Ledford did not object to the trial court's resolution of the matter. Braley v. State, supra at 52(18), 572 S.E.2d 583.
(c) Ledford complains that the trial court improperly sustained an objection to his question to Juror Toler regarding what opinion about sentencing the juror might have had when he first learned some limited information about the crimes. Our review of the record reveals that, regardless of the merit to Ledford's initial objection, the trial court ultimately resolved the matter appropriately by determining through its own questions that the juror had not formed any such opinion. Furthermore, Ledford has waived this claim by failing to object to the trial court's resolution of the matter. Braley v. State, supra.
(d) Ledford made no objection to the trial court's briefly interrupting his voir dire of Juror Ingram after Ledford asked a question that could have been construed as seeking a prejudgment of the case by the juror. Ledford then interrupted the trial court and immediately continued his voir dire of the juror without any restrictions. We find that Ledford has waived his claim regarding any alleged limitation of this portion of his voir dire of the juror. Braley v. State, supra.
In another portion of Ledford's voir dire of Juror Ingram, the State objected to a question by Ledford about whether the juror would consider life with the possibility of parole in a case involving "no excuse [and] no justification." In response to the State's objection on the basis that the question called for a prejudgment of the case, the trial court attempted to resolve the matter by asking its own question about the juror's willingness to consider all three sentences. Ledford pursued the matter by stating that he still wished to have the juror answer his initial question. However, after the trial court indicated properly that it would not allow any questions regarding what the juror would do in a hypothetical "extreme case" and asked several more of its own questions to the juror, Ledford raised no further objection and continued by reminding the juror of the definition of murder and questioning the juror extensively about whether she would consider a sentence of life with the possibility of parole upon a conviction for murder. Under these circumstances, we find that Ledford has waived his right to claim that the trial court improperly limited his voir dire. Braley v. State, supra.
(e) Juror Berg stated that she opposed the death penalty because it foreclosed the possibility that a defendant could change in the future. The trial court disallowed a question by Ledford to Juror Berg regarding whether her views on the death penalty might change if she could be assured that there would be a sufficient gap in time between sentencing and the execution of any death sentence. We find that the trial court
10. Ledford argues that the trial court erred by denying his claim that the State had used its peremptory strikes in a racially discriminatory manner by using one of its strikes against the only African-American juror on the list of jurors from which the panel of 12 jurors was selected. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). After the trial court found that Ledford had made a prima facie showing of discrimination, the State presented racially neutral reasons for its strike. We find the State's racially neutral reasons to be satisfactory. Ledford attempted to show in the trial court that the State's racially neutral reasons were pretextual, but we find that the State provided a satisfactory response indicating otherwise. In light of Ledford's failure to explain on appeal specifically why a different conclusion is warranted, the trial court's finding that Ledford failed to carry his burden of proof was not clearly erroneous. See Brannan v. State, 275 Ga. 70, 75(5), 561 S.E.2d 414 (2002).
11. Ledford also argues that the State engaged in gender-based discrimination in its use of peremptory strikes. See J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). The record shows that, during the selection of the panel of 12 jurors, the State used 75 percent of the peremptory strikes it exercised to strike women. The trial court found that Ledford failed to make a prima facie showing of discrimination and, therefore, did not require the State to offer gender-neutral reasons for its strikes. In light of Ledford's failure to present any "additional facts which may give rise to an inference of discriminatory purpose," we hold that the trial court did not err in concluding that Ledford had failed to carry his burden of establishing a prima facie case of discrimination. Whitaker v. State, 269 Ga. 462, 464(3), 499 S.E.2d 888 (1998) (addressing the State's use of 66 percent of its peremptory strikes to strike women).
12. Ledford argues that the trial court erred by admitting evidence of two similar transactions. See Williams v. State, 261 Ga. 640, 641-642(2), 409 S.E.2d 649 (1991). For the reasons set forth below, we find no error.
(a) The first similar transaction involved the rape of a woman in Paulding County in 1991, for which Ledford was convicted and served ten years in prison. The trial court charged the jury that the evidence was being admitted as possible evidence of "intent, lustful disposition, bent of mind, and course of conduct. . . ." The trial court did not err by finding that the rape was sufficiently similar to form probative evidence on these matters regarding Ledford's pending charges of aggravated sodomy and aggravated assault committed with the intent to rape. See Hinton v. State, 280 Ga. 811, 817-818(6), 631 S.E.2d 365 (2006). The lapse in time between this rape and the murder does not erode the relevance of the rape in the guilt/innocence phase of this case, especially because that lapse is explained by Ledford's ten-year incarceration for the rape. Hinton v. State, supra. See also Pareja v. State, 286 Ga. 117, 120-121, 686 S.E.2d 232 (2009). Finally, the trial court did not abuse its discretion by not excluding the evidence on the ground that its probative value was outweighed by improper prejudice. See Hall v. State, 287 Ga. 755, 757(2), 699 S.E.2d 321 (2010) ("[A]ny prejudice from the age of these prior incidents was outweighed by the probative value of the evidence under the particular facts of this case and the purpose for which the similar transactions were offered.").
(b) The second similar transaction involved Ledford's attempt to subdue a woman riding her bicycle on the Silver Comet Trail in 2005. The trial court charged the jury that the evidence was being admitted as possible evidence of "the modus operandi, common plan and scheme in the crimes charged in this case now on trial." There is no merit to Ledford's argument that the evidence used to prove the actual occurrence of this similar transaction was inadequate. See Gardner v. State, 273 Ga. 809, 810-811(2), 546 S.E.2d 490 (2001) ("The state is
13. We reject Ledford's claim that the trial court erred in several ways regarding the jury's viewing the crime scene. The only objection Ledford raised at trial regarding the scene view was based on the fact that the vegetation at the scene had changed since the murder. However, we find that the trial court did not abuse its discretion by allowing the scene view over this objection, because the scene view might have aided the jurors in their understanding of the evidence despite the changes and because the jurors were able to see the original condition of the scene in the photographs that were in evidence. See Gissendaner v. State, supra at 711-712(8), 532 S.E.2d 677 (noting the trial court's discretion in considering a request to have the jury view the crime scene). Ledford's remaining complaints about the manner in which the scene view was conducted are waived, because they were not raised at trial. See Earnest v. State, 262 Ga. 494, 495(1), 422 S.E.2d 188 (1992).
14. In preparing the jury for its visit to the crime scene, the trial judge stated, "I'll ask the Sheriff to go because in the woods there are all kinds of critters, snakes and dogs and cats and whatever that might be out there." Ledford contends that this statement constituted an impermissible comment on the evidence by the trial court in violation of OCGA § 17-8-57. Specifically, Ledford argues that the statement expressed the opinion that the victim's body likely had suffered damage from animals and insects prior to or after her death.
The State notes that Ledford made no objection to the trial court's statement, and the State relies on the proposition that "the issue of whether OCGA § 17-8-57 was violated is not reached unless an objection or motion for mistrial is made on that ground." Whitner v. State, 276 Ga. 742, 744-745(3), 584 S.E.2d 247 (2003). However, we have explicitly disapproved similar language in other opinions. Patel v. State, 282 Ga. 412, 413, fn. 2, 651 S.E.2d 55 (2007) (disapproving inconsistent language in other cases). Even where a defendant has failed to object or move for a mistrial in response to an alleged comment on the evidence by the trial court in violation of OCGA § 17-8-57, this Court nevertheless will examine the claim for plain error. Patel v. State, supra. See also State v. Gardner, 286 Ga. 633, 634, 690 S.E.2d 164 (2010); Paul v. State, 272 Ga. 845, 848-849(3), 537 S.E.2d 58 (2000) (applying the plain error standard). Furthermore, we note that "a violation of OCGA § 17-8-57 will always constitute `plain error'. . . ." (Emphasis in original.) State v. Gardner, supra at 634, 690 S.E.2d 164. Therefore, even where a defendant has failed to object or move for a mistrial, "[o]n appeal, the issue is simply whether there was such a violation." State v. Gardner, supra. To the extent that Whitner or any other cases suggest otherwise, they are disapproved. In addition to Whitner, such cases arguably include Walker v. State, 282 Ga. 774, 777(4), 653 S.E.2d 439 (2007), Pittman v. State, 273 Ga. 849, 851, fn. 2, 546 S.E.2d 277 (2001), and Paul v. State, supra at 849(3), 537 S.E.2d 58.
Although Ledford's claim that the trial court's comments violated OCGA § 17-8-57 is reviewable as possible plain error, the claim must fail because the trial court's statement was not improper. In the hearing held outside the presence of the jury, the trial judge noted that he had been confronted by a menacing dog when he visited the crime scene, and defense counsel noted that he had encountered a snake during his visit to the scene. Particularly under these circumstances, we find that the trial court's statement to the jury about animals and insects at the crime scene was not an improper comment on the evidence but, instead, was a proper exercise of the trial court's duty to manage the trial proceedings and to ensure the well-being of the jury. See Walker v. State, supra at 777(4), 653 S.E.2d 439 (noting that comments made in rendering rulings generally are not impermissible comments on
15. Ledford claims that the prosecutor argued improperly by stating in a raised voice that the victim was "kicked," "stomped," and "hit." The content of this argument was not improper, because it was based on a reasonable inference from the evidence. See Payne v. State, 273 Ga. 317, 318(4), 540 S.E.2d 191 (2001) ("In closing argument, counsel may draw any reasonable and legitimate inference from the evidence."). As to the volume at which the argument was made, we find nothing in the record to indicate that the trial court abused its discretion by finding no impropriety. See Morgan v. State, 267 Ga. 203-204(1), 476 S.E.2d 747 (1996) (noting that counsel are afforded wide latitude in their mode of speech in closing arguments and that trial courts have discretion in limiting closing arguments).
16. The trial court did not abuse its discretion in rejecting Ledford's claim that the prosecutor argued improperly by stating that the victim had intentionally left evidence for the jury to consider by wounding Ledford. Morgan v. State, supra.
17. Ledford contends that the prosecutor violated the proscription against "golden rule" arguments by urging the jury to think about the unpleasant way in which the victim had died. This argument was made as part of the prosecutor's argument that Ledford had acted with malice. "A `golden rule' argument is one that, regardless of the nomenclature used, asks the jurors to place themselves in a victim's position." Braithwaite v. State, 275 Ga. 884, 885(2)(b), 572 S.E.2d 612 (2002). We hold that this argument was not improper.
18. Ledford claims that the trial court erred by refusing to charge the jury on voluntary manslaughter. See OCGA § 16-5-2(a) (providing that voluntary manslaughter occurs when one "causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person"). There was not even slight evidence to suggest that the victim was killed for any reason other than the victim's having bitten Ledford's penis in self-defense as he attempted to commit aggravated sodomy against her, facts which cannot form the basis for a charge on voluntary manslaughter. See Beck v. State, 272 Ga. 863, 865(3), 535 S.E.2d 756 (2000) (noting that "when a victim is attacked by a defendant and the victim attempts to defend himself or end the altercation, the victim's actions in doing so cannot provide the serious provocation necessary to justify a charge on voluntary manslaughter").
19. Our review of the record reveals that, in the trial court's words, the jury had dated its guilt/innocence verdict in "multiple places." In response to Ledford's contention that the verdict was thereby rendered ambiguous, the trial court filed the first verdict form with the clerk, and provided the jury with a new verdict form to complete. Even assuming that there was any actual defect in the manner in which the first verdict form was dated, we find no error in the trial court's instructing the jury to complete a new verdict form to remove any minor "scrivener's error" involved. Jones v. State, 273 Ga. 231, 235(7), 539 S.E.2d 154 (2000).
20. There is no merit to Ledford's claim that victim impact testimony is categorically unconstitutional. See Braley v. State, supra at 54(33), 572 S.E.2d 583. Ledford has withdrawn his claim that a certain video recording constituted improper victim impact evidence, conceding that the recording was not actually played for the jury at trial. The trial court did not err in admitting photographs of the victim in life. See Lucas v. State, supra at 648(14), 555 S.E.2d 440.
22. Ledford contends that the prosecutor's closing argument in the sentencing phase was improper for a number of reasons. For the reasons set forth below, we find no error.
(a) Contrary to Ledford's contention, the prosecutor's argument that Ledford might present a future danger to others was based on specific evidence supporting that argument, including evidence that Ledford had sexually harassed a pregnant jail guard and had made sexual remarks to a 14-year-old girl over the telephone from the jail. Compare Henry v. State, 278 Ga. 617, 619(1), 604 S.E.2d 826 (2004) ("An argument that a death sentence is necessary to prevent future dangerous behavior by the defendant in prison must be based on evidence suggesting that the defendant will be dangerous in prison.").
(b) The prosecutor's argument that Ledford had shown a lack of empathy by stating a desire to make money from his crimes was based on a recorded telephone call Ledford had made from the jail. This argument was not improper, because it was a based on a reasonable inference from the evidence. See Payne v. State, supra at 318(4), 540 S.E.2d 191.
(c) There is no merit to Ledford's contention that it was improper for the prosecutor to argue that, based on his actions, Ledford had shown that "he believes in the death penalty." See Crowe v. State, 265 Ga. 582, 592(18)(c), 458 S.E.2d 799 (1995).
(d) Ledford contends that the following argument by the prosecutor was improper: "You haven't heard any evidence of his taking responsibility. . . ." The argument, in context, specifically referred to matters actually in evidence and made no reference to Ledford's decision not to testify. We conclude that the argument was not improper. See Hammond v. State, 264 Ga. 879, 886(8)(b), 452 S.E.2d 745 (1995) ("We do not read the prosecutor's remark concerning Hammond's lack of remorse as a comment on Hammond's failure to testify during the sentencing phase.").
23. Upon our review of the record, including the portion of the State's closing argument in the guilt/innocence phase to which Ledford has drawn our attention, we conclude that the sentence of death in this case was not imposed under the influence of passion, prejudice, or any other arbitrary factor. See OCGA § 17-10-35(c)(1).
24. This Court is required by statute to review the sufficiency of the evidence supporting each of the statutory aggravating circumstances in death penalty cases. OCGA § 17-10-35(c)(2).
The jury found that the murder was committed while Ledford was engaged in the commission of aggravated battery. See OCGA § 17-10-30(b)(2). The jury further found that the murder was outrageously vile, horrible, or inhuman in that it involved torture, depravity of mind, and aggravated battery to the victim. See OCGA § 17-10-30(b)(7). In response to Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), this Court set forth certain criteria which the evidence at trial must satisfy for the (b)(7) aggravating circumstance to be constitutionally applicable, including the following:
Hance v. State, 245 Ga. 856, 861-862(3), 268 S.Ed.2d 339 (1980). See also West v. State, 252 Ga. 156, 161-162, 313 S.E.2d 67 (1984)(Appendix)(providing the pattern jury charge on torture to be given upon the defendant's request); Krier v. State, 249 Ga. 80, 88-89(7), 287 S.E.2d 531 (1982); Patrick v. State, 247 Ga. 168, 169, 274 S.E.2d 570 (1981). With respect to an aggravated battery "alleged to have been committed upon the person who is also the murder victim, the same limitations . . . apply to the § (b)(2) circumstance as to the § (b)(7) circumstance." Davis v. State, 255 Ga. 588, 594(3)(c), 340 S.Ed.2d 862 (1986).
As we noted above in our review of the sufficiency of the evidence to support the verdicts rendered by the jury in the guilt/innocence phase, although the evidence showed that the acts constituting the three aggravated batteries were the same as the acts constituting the murder, the separate aggravated battery verdicts are supported by the evidence that the victim's death was not instantaneous. For the same reason, the jury was authorized to find the statutory aggravating circumstance set forth in OCGA § 17-10-30(b)(2) and the aggravated battery portion of the (b)(7) circumstance. See Hall v. Terrell, 285 Ga. 448, 452-453(II)(C), 679 S.E.2d 17 (2009); Perkins v. State, 269 Ga. 791, 796(6), 505 S.E.2d 16 (1998); Hance v. State, supra. Likewise, the jury's finding of torture was supported by the evidence that the victim's death was not instantaneous, but was preceded by serious sexual abuse, as well as the serious physical abuse which constituted the aggravated batteries. See Loyd v. State, 288 Ga. 481, 489(4)(b), 705 S.E.2d 616 (2011); Hall v. Terrell, supra; Jones v. State, 279 Ga. 854, 860(7)(b), 622 S.E.2d 1 (2005); Hance v. State, supra. The authorized findings of aggravated battery and torture also support a finding of depravity of mind. See Loyd v. State, supra; Perkins v. State, supra; Hance v. State, supra at 862(3), 268 S.E.2d 339. Furthermore, the shocking and vicious nature of the victim's murder by stomping and kicking authorized the jury to find that the murder was outrageously or wantonly vile, horrible, or inhuman. Accordingly, we find that the evidence was sufficient to support the jury's findings beyond a reasonable doubt of both the (b)(2) and (b)(7) statutory aggravating circumstances. See Taylor v. State, 261 Ga. 287, 297(13)(c), 404 S.E.2d 255 (1991); Patillo v. State, 258 Ga. 255, 262-263(6), 368 S.E.2d 493 (1988); Jefferson v. State, 256 Ga. 821, 828(9), 353 S.E.2d 468 (1987); Baxter v. State, 254 Ga. 538,
The jury also found two additional statutory aggravating circumstances involving Ledford's prior conviction for rape and his having committed the murder during the commission of a kidnapping with bodily injury. See OCGA § 17-10-30(b)(1, 2). The evidence presented at Ledford's trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt the existence of these statutory aggravating circumstances. Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Jackson v. Virginia, supra; OCGA § 17-10-35(c)(2).
25. Considering both the crime and the defendant in this case, we find that the death sentence is not disproportionate punishment within the meaning of Georgia law. See OCGA § 17-10-35(c)(3); Gissendaner v. State, supra at 716-717(19)(a), 532 S.E.2d 677 (noting that this Court's statutorily-mandated proportionality review concerns whether a particular death sentence "is excessive per se" or is "substantially out of line" for the type of crime and defendant involved). This finding obviously takes into consideration the shocking details of the murder in this case. This finding also takes into consideration Ledford's long history of criminal acts against numerous women, including a rape, several apparent attempted rapes, and sexually-deviant behavior directed at women and his own 14-year-old relative. The cases cited in the Appendix support our finding in that each involves a jury's willingness to impose a death sentence where the defendant has a prior conviction for a capital felony, where the defendant committed murder during both a sexual assault and a kidnapping, or where the murder involved aggravated battery, torture, or depravity of mind. See OCGA § 17-10-35(e).
Judgments affirmed in part and vacated in part.
All the Justices concur.
Loyd v. State, 288 Ga. 481, 705 S.E.2d 616 (2011); Tate v. State, 287 Ga. 364, 695 S.E.2d 591 (2010); Rivera v. State, 282 Ga. 355, 647 S.E.2d 70 (2007); Williams v. State, 281 Ga. 87, 635 S.E.2d 146 (2006); Nance v. State, 280 Ga. 125, 623 S.E.2d 470 (2005); Lewis v. State, 279 Ga. 756, 620 S.E.2d 778 (2005); Riley v. State, 278 Ga. 677, 604 S.E.2d 488 (2004); Franks v. State, 278 Ga. 246, 599 S.E.2d 134 (2004); Sealey v. State, 277 Ga. 617, 593 S.E.2d 335 (2004); Sallie v. State, 276 Ga. 506, 578 S.E.2d 444 (2003); Braley v. State, 276 Ga. 47, 572 S.E.2d 583 (2002); Terrell v. State, 276 Ga. 34, 572 S.E.2d 595 (2002); Arevalo v. State, 275 Ga. 392, 567 S.E.2d 303 (2002); Lance v. State, 275 Ga. 11, 560 S.E.2d 663 (2002); Presnell v. State, 274 Ga. 246, 551 S.E.2d 723 (2001); Colwell v. State, 273 Ga. 634, 544 S.E.2d 120 (2001); Jones v. State, 273 Ga. 231, 539 S.E.2d 154 (2000); Heidler v. State, 273 Ga. 54, 537 S.E.2d 44 (2000); Drane v. State, 271 Ga. 849, 523 S.E.2d 301 (1999); Pace v. State, 271 Ga. 829, 524 S.E.2d 490 (1999); Johnson v. State, 271 Ga. 375, 519 S.E.2d 221 (1999); Lee v. State, 270 Ga. 798, 514 S.E.2d 1 (1999); Pruitt v. State, 270 Ga. 745, 514 S.E.2d 639 (1999); Pye v. State, 269 Ga. 779, 505 S.E.2d 4 (1998); Mize v. State, 269 Ga. 646, 501 S.E.2d 219 (1998); Raulerson v. State, 268 Ga. 623, 491 S.E.2d 791 (1997); Waldrip v. State, 267 Ga. 739, 482 S.E.2d 299 (1997); Jones v. State, 267 Ga. 592, 481 S.E.2d 821 (1997); Carr v. State, 267 Ga. 547, 480 S.E.2d 583 (1997); Davis v. State, 263 Ga. 5, 426 S.E.2d 844 (1993); Tharpe v. State, 262 Ga. 110, 416 S.E.2d 78 (1992).
