BLACKWELL, Justice.
David Edenfield was tried by jury, convicted of murder and several other serious crimes — all in connection with the brutal sexual assault and death of six-year-old Christopher Barrios — and sentenced to death for the murder. Following the denial of his motion for new trial, Edenfield appeals, raising several claims of error. We, however, see no reversible error, and for that reason, we affirm.
1. We turn first to the contention that the evidence cannot sustain the convictions. Viewed in the light most favorable to the verdict, the evidence shows that Christopher lived with his father and stepmother in a Glynn County mobile home park, and his grandmother lived nearby, also in the mobile home park. Edenfield lived with his wife, Peggy, and his adult son, George,
On the afternoon of March 8, 2007, around 2:45 p.m., Christopher returned home from school, and he went to see his grandmother. He stayed with his grandmother for about 30 minutes, and then he went back to his own home to get some toys, including a "lightsaber." Around 3:30 p.m., a neighbor saw Christopher on his front porch, playing with toys. Later, around 6:00 p.m., the same neighbor saw Christopher again, playing with toys in a yard down the road. About fifteen minutes after that, another neighbor saw Christopher skipping toward his home, smiling and carrying a toy sword. Around the same time, his stepmother discovered that Christopher was no longer with his grandmother, and she began to search for him, eventually calling for his father to leave work early and join the search. When the search failed to turn up any sign of Christopher, his father called upon law enforcement officers.
That evening, around 9:00 p.m., a police investigator saw a "lightsaber" in the yard of the Edenfield home, and he observed the occupants of that home furtively peeking out the windows.
On March 15, Department of Natural Resources officers found some plastic trash bags in a wooded area in Glynn County. Christopher's body was inside the bags. According to the medical examiner, Christopher had been anally raped and strangled. In addition, Christopher had been bitten on his back, and chemical analysis revealed saliva on his back, buttocks, and penis. Moreover, seminal fluid was discovered in the plastic bags in which Christopher was found.
Law enforcement officers interviewed Edenfield several times, but he gave his most significant and inculpatory statement on March 16, three days after he was arrested for helping to dispose of the body. In that statement, Edenfield admitted that he helped to hold Christopher down as George penetrated the child with his penis, both orally and anally. Edenfield also admitted that he rubbed his own penis against Christopher and that he ejaculated on the child, although he denied personally committing any other sexual assaults upon Christopher. During these sexual assaults, Edenfield said, Peggy watched and masturbated, and Christopher fought to escape, begged them to stop, and threatened to tell his family. Following the sexual assaults, George began to strangle Christopher. At some point, Edenfield admitted,
Pointing to conflicts in the evidence, Edenfield argues that it is insufficient to sustain his convictions. Although the evidence may be inconsistent in some respects, "we must view the evidence in the light most favorable to the verdict and leave questions of credibility and the resolution of conflicts in the evidence to the jury." Bradley v. State, 292 Ga. 607, 609(1)(a), 740 S.E.2d 100 (2013). So viewed, we have no difficulty concluding that the evidence was sufficient to authorize a rational jury to find beyond a reasonable doubt that Edenfield was guilty of the crimes of which he was convicted. See Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also UAP IV(B)(2) (providing that, in all death penalty cases, this Court will determine whether the verdicts are supported by the evidence). Accordingly, the evidence sustains the convictions.
2. We turn next to the contention that the trial court erred when it denied a pretrial motion to suppress several statements that Edenfield gave to investigators, including not only his statement of March 16, 2007, but also statements that he gave before he was arrested. Edenfield claims that his statements were involuntary because they were induced by "hope of benefit," and he cites former OCGA § 24-3-50, which provided that, "[t]o make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury." But see former OCGA § 24-3-51 ("The fact that a confession has been made under a spiritual exhortation, a promise of secrecy, or a promise of collateral benefit shall not exclude it.").
A statement given by an accused to law enforcement is admissible against him only if the statement was voluntary, and in Georgia, that means that the statement must not have been induced by "hope of benefit," among other things. See former OCGA § 24-3-50. As we have explained before, a "hope of benefit" arises from "promises related to reduced criminal punishment — a shorter sentence, lesser charges, or no charges at all." Brown v. State, 290 Ga. 865, 868-869(2)(b), 725 S.E.2d 320 (2012). See also White v. State, 266 Ga. 134, 135(3), 465 S.E.2d 277 (1996) ("The promise of a benefit that will render a confession involuntary under [former] OCGA § 24-3-50 must relate to the charge or sentence facing the suspect."). "A promise not relating to charges or sentences, including a promise regarding release after questioning, has been held to constitute only a collateral benefit ... and even if it induces a confession, it does not require the automatic exclusion of that evidence." Brown, 290 Ga. at 869(2)(b), 725 S.E.2d 320 (citations and punctuation omitted). When a
The assurance that, if only Edenfield told the truth, he could go home and care for his elderly mother, was offered in a March 13 interview, before Edenfield was arrested. When its context is considered, it becomes clear that Edenfield could not reasonably have understood this assurance as a promise that he would not be charged with crimes against Christopher even if he admitted his own participation in such crimes. See, e.g., Brown, 290 Ga. at 870(2)(c), 725 S.E.2d 320 ("Appellant could not have reasonably understood the investigators' statements to mean that he would never be charged or arrested for his crimes." (citation and punctuation omitted)); Duke v. State, 268 Ga. 425, 426(2), 489 S.E.2d 811 (1997) ("Duke certainly could not reasonably have believed that, if he implicated himself in his statement, officers who were charged with enforcing the law would ignore his criminal conduct and would not charge him with any crime whatsoever."). At the time, the investigators indicated to Edenfield that they then had no present intention of charging Edenfield with anything unless he obstructed their investigation by lying, inasmuch as they believed George was responsible for killing Christopher, and they also believed it likely that Edenfield knew of what George had done. Cf. Foster v. State, 283 Ga. 484, 487(2), 660 S.E.2d 521 (2008) (statement by investigators that suspect "could be a witness or a defendant" did not, in context, amount to an implied promise of lighter punishment, but was only an exhortation to tell the truth). Viewed in this context, the assurance amounted only to an "admonish[ment] to tell the truth, or else face arrest for felony hindering of the investigation [into what George had done]," and no "hope of benefit" springs from such an admonishment. Mangrum v. State, 285 Ga. 676, 678(2), 681 S.E.2d 130 (2009). See also Duke, 268 Ga. at 426(2), 489 S.E.2d 811 ("By informing Duke that he could be a witness against Barger or, if he withheld evidence, risk becoming a defendant himself, the officers clearly did not imply that Duke would not be charged if he was himself involved in the murder."); Parker v. State, 256 Ga. 543, 547(1)(d), 350 S.E.2d 570 (1986) ("Parker was to receive the promised benefit only if he successfully denied the crime, not if he admitted it.").
About the suggestion that Edenfield might help George get mental health treatment by giving a truthful account of what George had done, that suggestion did not relate in any way to any charges against Edenfield himself, and it, therefore, is not one from which a "hope of benefit" might have arisen. See White, 266 Ga. at 135(3), 465 S.E.2d 277. And as to the prospect of the investigators helping Edenfield with his landlord, that was a subject raised by Edenfield himself. Moreover, the context of the latter assurance makes clear that the response of the investigators did not relate to any criminal charges against Edenfield. See id. The trial court did not err when it denied the motion to suppress the statements.
4. Edenfield also argues that the trial court erred when it denied his request for leave to file an application for interim review in this Court. The denial of such a request cannot be appealed. See OCGA § 17-10-35.2 ("An order obviating interim appellate review shall not be appealable."). And in any event, Edenfield can show no harm from the denial of leave to seek interim review because he is free in this appeal to raise any issues that he might properly have raised in an application for interim review. OCGA § 17-10-35.1(h).
5. We next consider whether the trial court erred when it rejected a challenge to the composition of the list from which the prospective jurors were drawn. In support of this challenge, Edenfield argued that Hispanic persons were underrepresented on the list. Edenfield failed, however, to demonstrate any actual underrepresentation of persons eligible to serve. For that reason, his challenge properly was rejected. See Ramirez v. State, 276 Ga. 158, 162(2), 575 S.E.2d 462 (2003) (holding that, within each of the various legal grounds for challenging the composition of a jury pool, a defendant bears the burden of showing actual underrepresentation). See also Ellington v. State, 292 Ga. 109, 117-118(4), 735 S.E.2d 736 (2012) (holding that "forced balancing" of jury pools to match the most recent decennial Census is not unconstitutional, but also noting that practice of "forced balancing" has been superseded by statute, effective as of July 1, 2012); Smith v. State, 275 Ga. 715, 721-723(4), 571 S.E.2d 740 (2002) (holding that a trial court should consider the number of persons of a given group who are legally eligible to serve as jurors).
6. We turn now to the contention that the trial court erred when it selected the jury from Jeff Davis County. Edenfield moved before trial to select a jury from somewhere other than Glynn County, and the trial court granted that motion, noting the heinous nature of the crimes, the public search for the victim, the extensive local media coverage of the crimes, and the prejudicial nature of that coverage. The trial court, however, chose Jeff Davis County as the venue from which a jury would be selected, a choice to which Edenfield objected, both before trial and during jury selection. We see no error in the overruling of these objections.
We have held that a trial court must "order a change of venue for death penalty trials in those cases in which a defendant can
In the course of voir dire, 156 prospective jurors from Jeff Davis County were examined, both in panels and individually. The examination of the panels included inquiry into whether the prospective jurors had been exposed before trial to any information about the case. Of the 156 prospective jurors, only 18 were excused for reasons clearly related to views that they had developed from pretrial information about the case, whether as a result of media coverage or word of mouth.
7. Edenfield also claims that the trial court erred when it refused to strike a prospective juror who said in voir dire that he "couldn't consider the possibility of parole" for someone convicted of the murder if the murder involved the "sexual abuse [of] a child." If that were all the prospective juror had said, perhaps Edenfield might be right. After all, we have held in prior cases that a defendant is entitled to a full panel of qualified jurors against which to exercise his peremptory strikes, Rice v. State, 292 Ga. 191, 194-195(3), 733 S.E.2d 755 (2012), and we have held that a juror unable or unwilling to give fair consideration to all of the legal sentencing options is not qualified.
The prospective juror in this case, however, said a great deal more in his voir dire, and based on all that he said, the trial judge found that he was qualified. That finding deserves the respect of appellate judges sitting at a time, and in a place, far removed from trial. Appellate judges, after all, have only a cold record from which to size up a prospective juror, and they are in no position to assess whether a prospective juror spoke with assurance or uncertainty, enthusiasm or hesitation, candor or guile. On the other hand, "[a] trial judge is uniquely positioned to evaluate whether a prospective juror can render an impartial verdict, considering that the trial judge ... can observe a prospective juror in person and take account of her demeanor and countenance, not just the words that she speaks." Harrison v. State, 309 Ga.App. 454, 454(1), 711 S.E.2d 35 (2011). See also Ellington, 292 Ga. at 127(7)(b), 735 S.E.2d 736 (with respect to voir dire and qualification of prospective jurors, "appellate courts should give substantial deference to the decisions made by trial judges, who oversee voir dire on a regular basis, are more familiar with the details and nuances of their cases, and can observe the parties' and the prospective jurors' demeanor").
For these reasons, whether a prospective juror is qualified to serve is a question committed to the discretion of the
Near the beginning of his voir dire, the trial court told this prospective juror that the trial would involve two phases and that, "should this trial proceed to a sentencing phase[,] jurors are prohibited from deciding... what sentence would be appropriate until after they've heard and considered all the evidence in that sentencing phase." The trial court then explained:
At that point, the trial court inquired whether the prospective juror could consider "both life imprisonment [and] the death penalty without being predisposed either way," and the juror said that he could.
The trial court next inquired whether the prospective juror could consider both life imprisonment without the possibility of parole and life imprisonment with the possibility of parole, and the following exchange occurred:
The trial court subsequently asked whether the prospective juror "could realistically consider and vote to impose a sentence of life which carries the possibility of parole if the circumstances warranted," and he responded, "Yes." Finally, the trial court inquired whether the prospective juror was "conscientiously opposed to a sentence of life with the possibility of parole for someone who has been convicted of murder," and he replied that he "could consider that [sentencing] option for murder, yes."
At that point, the trial judge and the lawyers discussed the prospective juror sidebar. In the course of that discussion, defense counsel pointed to the earlier testimony of the prospective juror that he could not consider the possibility of parole if "sexual abuse [of] a child" was involved, and the judge offered his understanding of that testimony: "I took that to mean that[,] if he was, that probably could be an issue if he was convicted of some type [of] heinous crime against a child and, and of the murder conviction. I don't know what the evidence ... is going to be." The sidebar discussion concluded, and the trial court permitted each of the lawyers to examine the prospective juror.
The prosecuting attorney explained that the jury would have to find a statutory aggravating circumstance "before you can even consider life without parole or the death penalty," and he asked the prospective juror whether a juror ought to "listen to all the evidence presented there before you make up your mind about what punishment is appropriate." The prospective juror agreed that a juror should do so. The following exchange then occurred:
Later, the prosecuting attorney asked the prospective juror whether, "if you listen to all the evidence ... the good and the bad[,] and you found from all of that that the appropriate [sentence] was life with the possibility of parole," he could vote to fix the punishment as life imprisonment with the possibility of parole. The prospective juror said that, "[y]es," he could do so. The prosecuting attorney concluded by inquiring whether the prospective juror would base his consideration of the appropriate sentence on "the facts that you find in both parts of this case, the [guilt] part and then the sentencing phase," and the prospective juror said that he would.
Defense counsel then had an opportunity to voir dire the prospective juror, but he asked only one question about the extent to which the prospective juror would consider all of the sentencing options:
After the voir dire concluded, defense counsel moved the trial court to strike the prospective juror for cause "[o]n the ground of the answer that he gave that he would not entertain life with parole in the case of a conviction on molestation." The trial court denied the motion, finding "[o]n the totality of his responses during voir dire ... he is fairly qualified."
(a) Under Georgia law, a prospective juror enters voir dire with a presumption of impartiality, and if he is to be struck for cause, the party seeking to have him struck for cause bears the burden of proving that he is unqualified to serve. Hollis v. State, 269 Ga.App. 159, 159(1), 603 S.E.2d 516 (2004). See also Kim v. Walls, 275 Ga. 177, 179, 563 S.E.2d 847 (2002) (noting "the fundamental principle that `the law presumes that potential jurors are impartial,' and that the burden of proving partiality still rests with the party seeking to have the juror disqualified" (citations omitted)). Here, when the prospective juror said that he could not consider the possibility of parole if the defendant were convicted not only of murder, but also of sexually abusing a child, it was some evidence, no doubt, that the prospective juror might not be perfectly impartial as to each of the legal sentencing options. But as recounted above, there was other, substantial testimony during voir dire that pointed another way, namely testimony that the prospective juror agreed to hear all of the evidence — in both phases of the trial, both aggravating
As we have explained before, a prospective juror is not unqualified simply because he is inclined to give substantial weight to a specific fact or circumstance — such as the sexual abuse of a child — in his consideration of an appropriate sentence. See Ellington, 292 Ga. at 136(7)(e), 735 S.E.2d 736 ("[T]he issue is not whether the prospective juror will consider a critical fact to be very important or worthy of great weight."). Nor is there a problem with a juror who, after listening to all of the evidence and the charge of the court, concludes that a single fact, and only that fact, matters — for instance, that a child was sexually abused — and thereafter assigns no weight at all to the other facts and circumstances of the case. See id. ("There is nothing wrong, for example, with jurors who consider carefully, and even assign dispositive weight to, [a particular fact] — so long as that judgment is rendered fairly, at the end of the case, after the juror has heard not only that fact (assuming it is proved) but all the other evidence and after the juror has considered that evidence in light of the court's legal instructions."). Rather, the problem lies with a prospective juror who already has made up his mind about the appropriate sentence — either conditionally upon proof of some critical fact or absolutely — before the evidence is in, and who simply will not listen to the full range of evidence or heed the charge of the court. See id. So, when a prospective juror has indicated at first a leaning toward or against a particular sentencing option, he nevertheless "may be rehabilitated by additional questions that reveal that [he] will not make up [his] mind[] until [he] hear[s] all the evidence and the law," id. (citation omitted), and that is the case even when the initial indication from the prospective juror seems absolute and unequivocal. See, e.g., Ledford, 289 Ga. at 79(7)(h), 709 S.E.2d 239 (no abuse of discretion in qualification of prospective juror who "initially indicated that she would not consider a sentence of life with the possibility of parole," but after the trial process and law were explained, later said that "she would consider all of the evidence and all three possible sentences"); Lance v. State, 275 Ga. 11, 16(7)(b), 560 S.E.2d 663 (2002) (no abuse of discretion in qualification of prospective juror who said unequivocally that, "if you're found guilty of murder[,] you should get the death penalty," but who later said that he would "listen to `additional evidence' after a murder conviction and follow the law as given by the trial court"); Bishop v. State, 268 Ga. 286, 290(6), 486 S.E.2d 887 (1997) (no abuse of discretion in qualification of prospective juror who said at first that "he would always vote for the death penalty," but who later said that "he could listen with an open mind to all of the evidence" and that "he could vote for any of the three sentencing options, even where there was an aggravating circumstance").
The dissenting opinion accepts that the prospective juror in this case was not beyond rehabilitation, but it concludes that he was not actually rehabilitated, apparently because the rehabilitation questions that were put to him, and the answers that he gave to those questions, did not explicitly reference his earlier statement that he could not consider parole if a child was murdered and sexually abused. That approach, however, ignores important context and deprives the trial court of the full benefit of the deference that, according to our precedents, we owe. It is true that, when the prospective juror here
(b) Even if it were necessary for the rehabilitation testimony to relate back more specifically to the earlier statement that the prospective juror could not consider parole if sexual abuse of a child were involved, we are satisfied that the trial court in this case might reasonably have concluded that it did. In light of the timing and sequence of the various questions put to the prospective juror in the course of his voir dire,
Given this ambiguity, if the trial court had seen fit to excuse the prospective juror for cause, that would have been a reasonable exercise of its discretion. But that does not mean that it was unreasonable for the trial court to do otherwise. The very notion of discretion implies that reasonable people sometimes will reasonably disagree about what is to be done, and in such a case, that call belongs to the one to whose discretion the question is committed by law. This is such a case, and the discretion here belongs to the trial court. See, e.g., Leonard, 292 Ga. at 217(3), 735 S.E.2d 767; Ledford, 289 Ga. at 76(6), 709 S.E.2d 239; Raheem, 275 Ga. at 91(6)(b), 560 S.E.2d 680. For these reasons, the trial court did not err when it found the prospective juror at issue to be qualified.
8. We turn now to the claim that the State used its peremptory strikes unconstitutionally to strike five prospective jurors on the basis of their race. See generally Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). When the trial
Thomas v. State, 274 Ga. 156, 161(5), 549 S.E.2d 359 (2001). The trial court concluded that Edenfield had made out a prima facie case of discrimination, insofar as he showed that the prosecuting attorneys used five of their eight peremptory strikes to exclude black jurors. The trial court then directed the prosecuting attorneys to explain the reasons for these strikes, which the prosecuting attorneys did. The trial court accepted that the reasons for the strikes were race-neutral, and moving to the third and final stage of the three-stage analysis, the trial court concluded that Edenfield had failed to prove discriminatory intent.
On appeal, Edenfield contends that the trial court erred at the third stage, insofar as the explanations for the strikes offered by the prosecuting attorneys are contradicted by the record, Edenfield says, and in any event, are unpersuasive. As we assess this contention, we consider whether the record shows that the reasons given for the strikes amount to mere pretext. See Toomer v. State, 292 Ga. 49, 55(2)(b), 734 S.E.2d 333 (2012). We must, however, afford "great deference" to the findings of the trial court on the ultimate question of discriminatory intent, and we will disturb such findings only if they are "clearly erroneous." Id. at 57-58(2)(d), 734 S.E.2d 333.
(a) Regarding the first prospective juror at issue, the prosecuting attorneys explained that this juror had a relative in prison and previously had negative experiences with law enforcement. Edenfield argues that these explanations should be discounted because it is not clear whether the relative in prison was the brother of the juror, as the trial court found, or some other relation, but we conclude that any lack of clarity on this point is inconsequential. Edenfield also argues that these explanations should be discounted because the juror previously had served as a corrections officer for minimum-security federal prisoners, but we cannot conclude that this fact renders the explanations of the prosecuting attorneys mere pretext. In addition, Edenfield asserts that the motives of the prosecuting attorneys were cast in doubt by their failure to strike a white juror whose brother had been tried for murder. That white juror, however, indicated that his brother had been prosecuted by another prosecutor, that the prosecution had been in the 1970s, and that it would not affect her consideration of this case in any way. Finally, Edenfield argues that the secondary reasons offered by the prosecuting attorneys for this strike — reasons that concerned the strength of the juror's views on the death penalty and her willingness to consider a sentence of life with the possibility of parole — were not compelling ones. We conclude, however, that the latter argument is unavailing in light of the clear indication by the prosecuting attorneys that their primary reasons for striking this juror were her relative in prison and her prior bad experiences with law enforcement officers. On balance, we find no clear error in the finding of the trial court that the prosecuting attorneys had no discriminatory intent with respect to striking this juror. See id.
(b) Regarding the second prospective juror at issue, the prosecuting attorneys explained that the juror initially expressed opposition to the death penalty, expressed a preference for life without parole, was unable to answer some of the questions on voir dire, appeared extremely nervous, talked to herself, and seemed unable to understand questions asked of her. Edenfield urges us to discount any explanation related to a stated preference for life without parole as a sentencing option, arguing that the juror said that she preferred that option only as against life with the possibility of parole. Our review of the record, however, confirms the assertion of the prosecuting attorneys that the juror indicated a preference for life without
(c) Regarding the third prospective juror at issue, the prosecuting attorneys explained that the residential address given by the juror was a home owned by a relative and was verified by the Sheriff and the Chief of Police to be a crack house, that one of her family members was serving a life sentence, that one of the prosecuting attorneys had prosecuted persons related to the juror through her estranged husband, that she was visibly upset during her voir dire, and that the prosecuting attorney hoped to reach more favorable jurors farther down the jury list by striking her. As with another juror discussed above, we note that this juror was not similarly situated with a white juror whose brother had been tried for murder, but who indicated that her brother was prosecuted by another prosecuting attorney, that the prosecution had occurred in the 1970s, and that it would not affect her consideration of Edenfield's case in any way. We further note that the juror at issue here suffered from a number of difficulties that might reasonably have been deemed objectionable by the prosecuting attorneys. Accordingly, we conclude that the trial court did not clearly err when it found that the prosecuting attorneys had no discriminatory intent when they struck this juror. See id.
(d) Regarding the fourth prospective juror at issue, the prosecuting attorneys explained that the juror had failed to appear voluntarily for jury service and had to be retrieved from his workplace by the Sheriff, that the juror's "whole family ... ha[d] mental issues," and that the juror was only 19 and single. Edenfield argues that the reasons related to age and marital status were mere pretext, noting that the prosecuting attorneys accepted a white juror who was single and childless. The prosecuting attorneys explained, however, that they chose not to strike that other juror because they believed that the defense would strike her inasmuch as she purportedly was a victim of incest, and Edenfield previously had been convicted of incest against his daughter. We also note the finding of the trial court that the failure of this juror to appear voluntarily was dispositive of the question of race discrimination. On balance, we conclude that the trial court did not clearly err when it found no racial discrimination in the strike of this juror. See id.
(e) As to the fifth and final prospective juror at issue, the prosecuting attorneys explained that the sister of the juror had already been selected to serve and that they did not wish to have sisters serving together on the jury. The prosecuting attorneys also explained that the juror felt uncomfortable with the death penalty and that her husband, like Edenfield, had retired from the National Guard. We see no clear error in the finding that the prosecuting attorneys did not act with discriminatory intent when they struck this juror. See id.
9. Edenfield argues the trial court erred when it admitted certain statements that he gave to law enforcement officers because those statements were given after he was arrested, after counsel had been appointed, and in custodial interviews initiated by law enforcement and outside the presence of counsel. Even assuming the factual predicates of this argument, it must fail because Edenfield does not show that he ever asserted his right to counsel during any custodial interview, and because the record instead clearly shows that he waived his right to have counsel present at the custodial interviews, after being advised of his rights. See Montejo v. Louisiana, 556 U.S. 778, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009) (overruling Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986)). Furthermore, it does not appear that Edenfield preserved this issue for appellate review, insofar as our review of the record reveals that it was raised for the first time in his motion for a new trial. See Martin v. State, 281 Ga. 778, 779-780(2), 642 S.E.2d 837 (2007).
11. In closing argument at the conclusion of the sentencing phase, a prosecuting attorney argued that the jurors should select a sentence that would allow them to say, "I defended Christopher Barrios when he couldn't defend himself from that animal right there, raping and murdering him," referring to Edenfield. When Edenfield moved for a mistrial, the prosecuting attorney withdrew his remark and apologized to the jury for having made it. The trial court then informed the jury that the remark was "inappropriate" and directed the jury to "disregard it entirely." Edenfield renewed his motion for a mistrial, and the trial court again denied it. We have held that characterizing a defendant in closing arguments as an "animal" is "unnecessary and undesirable," but we also have held that allowing such a remark is not always reversible error. See Ellington, 292 Ga. at 144(10)(d), 735 S.E.2d 736 (citation and punctuation omitted). In this case, we conclude that the trial court, having already employed appropriate curative measures to address the improper reference to Edenfield as an "animal," did not abuse its discretion when it concluded that a mistrial was not required. See Pace v. State, 271 Ga. 829, 841(27), 524 S.E.2d 490 (1999).
12. Upon our review of the entire record, including the improper remark discussed above in Division 11, 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 id. ("We also evaluate the possible prejudicial effect of these remarks ... as part of our review to ensure that the death sentences were not improperly rendered due to the influence of passion, prejudice, and other arbitrary factors."). See also OCGA § 17-10-35(c)(1).
13. The jury found beyond a reasonable doubt that the murder in this case was committed during the commission of an aggravated battery in that the anus of the victim was seriously disfigured, and that the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture and depravity of mind. See OCGA § 17-10-30(b)(2) and (7). Although it is a closer question whether the evidence was sufficient to sustain the finding of aggravated battery, there was more than enough evidence to sustain the finding beyond a reasonable doubt that the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture and depravity of mind. See OCGA § 17-10-35(c)(2) (requiring a review of the statutory aggravating circumstances found by the jury); UAP IV(B)(2) (providing that, in all death penalty cases, this Court will determine whether the verdicts are supported by the evidence). See also Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Jackson, 443 U.S. at 319(III)(B), 99 S.Ct. 2781. Even if the finding of aggravated battery were set aside for an insufficiency of the evidence, the death sentence in this case still would be valid because it is supported by another statutory aggravating circumstance that the evidence fully supports. See Heidler v. State, 273 Ga. 54, 66(22), 537 S.E.2d 44 (2000). See also Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983).
14. Considering both the murder in this case, and Edenfield as a defendant, we conclude that the death sentence imposed was not disproportionate punishment within the meaning of Georgia law. See OCGA § 17-10-35(c)(3); Gissendaner, 272 Ga. at
Judgment affirmed.
All the Justices concur, except MELTON, J., who concurs in judgment only as to Division 7(b), and THOMPSON, P.J. and BENHAM, J., who concur in part and dissent in part.
THOMPSON, Presiding Justice, concurring in part and dissenting in part.
As is addressed by the majority in Division 7 of its opinion, Edenfield argues that the trial court erred by qualifying a prospective juror who expressed an unwillingness to consider life with the possibility of parole as a sentencing option in a case involving child molestation. Although this issue was not raised in Edenfield's original brief filed in this Court, it is properly before this Court pursuant to Henry v. State, 278 Ga. 617, 620(1), 604 S.E.2d 826 (2004).
The relevant portion of the juror's voir dire began as follows:
In this exchange, the pivotal portion is where the juror stated that he "certainly" would not "ever" consider a sentence that allowed for the possibility of parole in a case involving child molestation. The State correctly notes that, in this quoted exchange and elsewhere during voir dire, the juror repeatedly confirmed that he would consider all three sentencing options in light of the "facts and circumstances" proven at trial. However, this is the only portion of the juror's voir dire in which he explained what sentencing options he might be willing to consider where the "facts and circumstances" included child molestation.
We have recently emphasized in Ellington v. State, 292 Ga. 109, 735 S.E.2d 736 (2012) that, to be qualified to serve, a juror must be willing to consider all three sentencing options, even upon proof of a specified "critical fact" that is likely to be involved in the case. See Ellington, 292 Ga. at 121-139(7), 735 S.E.2d 736 (addressing voir dire in a case involving the "critical fact" that two of the murders involved were of two young children). Although our holding in Ellington specifically concerned only the proper scope of voir dire questions, our reasoning clearly indicated that a juror who would not consider all three sentencing options if confronted with such a "critical fact" would be unqualified to serve. For example, we stated:
(Emphasis supplied.) Id. at 136(7)(e), 735 S.E.2d 736. See also Tollette v. State, 280 Ga. 100,
The juror never once gave a response that retreated from his initial, firm position regarding the possibility of parole for cases involving child molestation, and the trial court was operating under the mistaken belief that such a position was not disqualifying because the particular "fact" of child molestation had not yet been proven through the evidence.
If the juror had been questioned more closely on the matter, including with questions providing him with an explanation of the role of mitigating circumstances, he might or might not have given a further response indicating more flexibility in cases involving child molestation than the juror first expressed. However, no subsequent questioning led the juror to make any further statements modifying or withdrawing his initial statement. The closest that any question came to seeking such clarification appears in the following exchange, which interestingly was led by defense counsel:
Although this question added the matters of mitigating evidence and the possibility that Edenfield might be convicted of some of the non-murder charges, which included some charges of child molestation but also some charges unrelated to child molestation, it did not specifically address whether the juror would consider allowing the possibility of parole under the "critical fact" of child molestation. Given the nature of the question, the juror simply repeated the generic and unenlightening statement, which was initially suggested to him by the trial court, that he would consider all three sentencing options in light of the "facts" proven at trial. However, this generic statement did nothing to modify or withdraw the juror's initial response on the matter indicating that the juror would never consider allowing the possibility of parole if one of those "facts" included child molestation. See Nance v. State, 272 Ga. 217, 222-224(6), 526 S.E.2d 560 (2000) (addressing a juror who stated that she "could listen to the law and the facts and choose the appropriate sentence" but who made clear that she would then always select death as the appropriate sentence).
In light of the foregoing, I conclude that the trial court abused its discretion in finding the juror in question to be qualified to serve. See id. at 223-224(6), 526 S.E.2d 560 (addressing a similar claim under an abuse of discretion standard). We have held that a defendant is entitled to a full panel of qualified jurors from which the jury is to be selected through peremptory strikes and that, therefore, the erroneous qualification of one juror who appears on that panel requires reversal. See Lance v. State, 275 Ga. 11, 15(8), 560 S.E.2d 663 (2002). Accordingly, I believe that we should reverse Edenfield's death sentence, and I therefore respectfully dissent from the majority's decision to affirm that death sentence. However, reversing Edenfield's death sentence on that basis would not require us to reverse Edenfield's convictions, "because [the juror at issue] was not disqualified on the question of guilt or innocence," and I therefore concur with the majority's decision to affirm Edenfield's convictions. See Nance, 272 Ga. at 224(6), 526 S.E.2d 560.
I am authorized to state that Justice BENHAM joins this dissent.
Ledford v. State, 289 Ga. 70, 709 S.E.2d 239 (2011); Loyd v. State, 288 Ga. 481, 705 S.E.2d 616 (2011); Stinski v. State, 286 Ga. 839, 691 S.E.2d 854 (2010); O'Kelley v. State, 284 Ga. 758, 670 S.E.2d 388 (2008); Rivera v. State, 282 Ga. 355, 647 S.E.2d 70 (2007); Lewis v. State, 279 Ga. 756, 620 S.E.2d 778 (2005); Riley v. State, 278 Ga. 677, 604 S.E.2d 488 (2004); Presnell v. State, 274 Ga. 246, 551 S.E.2d 723 (2001); Drane v. State, 271 Ga. 849, 523 S.E.2d 301 (1999); Pace v. State, 271 Ga. 829, 524 S.E.2d 490 (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); Wellons v. State, 266 Ga. 77, 463 S.E.2d 868 (1995); Raulerson v. State, 268 Ga. 623, 491 S.E.2d 791 (1997); Crawford v. State, 257 Ga. 681, 362 S.E.2d 201 (1987).