Opinion
45784.
DECIDED DECEMBER 1, 1988. RECONSIDERATION DENIED DECEMBER 14, 1988.
Murder, etc. Wayne Superior Court. Before Judge Killian.
Ashman Zipperer, Alex L. Zipperer III, for appellant.
Glenn Thomas, Jr., District Attorney, John B. Johnson III, Stephen D. Kelley, Assistant District Attorneys, Michael J. Bowers, Attorney General, Leonora Grant, for appellee.
Larry Lee was convicted by a jury in Wayne County on three counts of murder and one count each of armed robbery, burglary, and possession of a firearm during the commission of a felony. He was sentenced to death for each of the three murders. We have summarized below the evidentiary materials on which the jury could have relied in reaching its verdicts.
The crime was committed on April 26, 1986. Lee was indicted November 5, 1986, and the case was tried November 16 through 24, 1987. A motion for new trial was heard March 28, 1988. The motion was denied, and a notice of appeal was filed on April 13, 1988. The case was docketed in this court on May 3, 1988. Oral arguments were heard on June 28, 1988.
Clifford and Nina Jones operated the Reedy Creek Restaurant in Wayne County. They lived across the road from their restaurant. They usually kept in their home over the weekend more than $1,000 in cash from their business.
Early on Saturday morning, April 26, 1988, the Jones' daughter, Christy, left for a school-related activity on Jekyll Island. Fifteen minutes later, Larry Lee, his brother Bruce Lee, and Sherry Lee (then Bruce Lee's fiancee) drove up to the Jones home. Bruce and Larry Lee entered the Jones home armed with handguns. When Clifford Jones resisted their intrusion, Bruce Lee killed him. Jones was stabbed, beaten, and shot six times. His wife, Nina Jones, and their son, Jerold, were forced into a bedroom. Larry Lee beat the son with his pistol, stabbed him in the back, and shot him. He shot Nina Jones three times.
Sherry Lee entered the house while the two men were preparing to move the body of Clifford Jones. Bruce Lee ordered her to leave. Soon, Bruce and Larry Lee returned to the car and drove away. A neighbor saw a car leaving the area at high speed, and later identified it as Sherry Lee's car. The Lees stole guns, money, and other items from the Jones home.
Bruce Lee died two months later, during the commission of another burglary. Larry Lee surrendered to authorities in Arizona.
1. The evidence, viewed in the light most favorable to the state, supports the conviction beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 ( 99 S.C. 2781, 61 L.Ed.2d 560) (1979).
2. Lee contends the trial court should have excused for cause 21 prospective jurors because they either knew the victims or had some knowledge of the case from the pre-trial publicity. However, all of these prospective jurors testified they could be fair and impartial and could decide the case based on the evidence presented in court. The trial court did not err by refusing to excuse these prospective jurors. Chancey v. State, 256 Ga. 415, 425 (3) (B) (a) ( 349 S.E.2d 717) (1986).
3. Nor did the court err by denying a change of venue. Lee v. State, 258 Ga. 82 (9) ( 365 S.E.2d 99) (1988).
4. The trial court did not err by excusing for cause a prospective juror who, although not opposed to the death penalty, testified that he would have trouble imposing it, and that his feelings would interfere substantially with his ability to follow the instructions of the court. Alderman v. State, 254 Ga. 206 (4) ( 327 S.E.2d 168) (1985).
5. The parties are entitled on voir dire to ascertain whether prospective jurors have formed an opinion as to the guilt or innocence of the accused. OCGA § 15-12-133. However, they are not entitled to ask jurors to prejudge the case. Evans v. State, 222 Ga. 392 (12) ( 150 S.E.2d 240) (1966). There was no error in the voir dire of prospective juror Rogers.
6. On cross-examination, the defendant asked a GBI agent:
During those first couple of months while you were working on the case, the community, in your opinion, had a very strong desire to see the killers of the Jones family apprehended?
The state's objection to the question was sustained on grounds of relevance. The answer to this question was, at best, marginally relevant, and the trial court did not abuse its discretion by sustaining the state's objection. Hicks v. State, 256 Ga. 715 (13) ( 352 S.E.2d 762) (1987).
7. The trial court did not err in instructing the jury not to consider whether Lee would be given consecutive or concurrent life sentences, or when he would be eligible for parole if he were given a life sentence. Quick v. State, 256 Ga. 780 ( 353 S.E.2d 497) (1987).
Sentence Review
8. The jury found as statutory aggravating circumstances that all three murders were committed while Lee was engaged in the commission of armed robbery and burglary, and that the murders of Nina and Jerold Jones were committed while Lee was engaged in the commission of the murder of Clifford Jones. OCGA § 17-10-30 (b) (2). The evidence supports these findings. OCGA § 17-10-35 (c) (2). Compare Beck v. State, 255 Ga. 483 (5) ( 340 S.E.2d 9) (1986).
9. The sentence of death was not imposed under the influence of passion, prejudice or other arbitrary factor and is neither excessive nor disproportionate to sentences imposed in similar cases, considering both the crime and the defendant. OCGA § 17-10-35 (c) (1) and (c) (3).
Judgment affirmed. All the Justices concur.
APPENDIX.
Frazier v. State, 257 Ga. 690 ( 362 S.E.2d 351) (1987); Ford v. State, 257 Ga. 461 ( 360 S.E.2d 258) (1987); Romine v. State, 256 Ga. 521 ( 350 S.E.2d 446) (1986); Cargill v. State, 255 Ga. 616 ( 340 S.E.2d 891) (1986); Ingram v. State, 253 Ga. 622 ( 323 S.E.2d 801) (1984); Finney v. State, 253 Ga. 346 ( 320 S.E.2d 147) (1984); Spivey v. State, 253 Ga. 187 ( 319 S.E.2d 420) (1984); Roberts v. State, 252 Ga. 227 ( 314 S.E.2d 83) (1984); Putman v. State, 251 Ga. 605 ( 308 S.E.2d 145) (1983); Mincey v. State, 251 Ga. 255 ( 304 S.E.2d 882) (1983); Wilson v. State, 250 Ga. 630 ( 300 S.E.2d 640) (1983); Rivers v. State, 250 Ga. 288 ( 298 S.E.2d 10) (1982); Jones v. State, 249 Ga. 605 ( 293 S.E.2d 708) (1982); Berryhill v. State, 249 Ga. 442 ( 291 S.E.2d 685) (1982); Solomon v. State, 247 Ga. 27 ( 277 S.E.2d 1) (1981); Dick v. State, 246 Ga. 697 ( 273 S.E.2d 124) (1980); Jones v. State, 243 Ga. 820 ( 256 S.E.2d 907) (1979); Amadeo v. State, 243 Ga. 627 ( 255 S.E.2d 718) (1979); Corn v. State, 240 Ga. 130 ( 240 S.E.2d 694) (1977); Peek v. State, 239 Ga. 422 ( 238 S.E.2d 12) (1977); Birt v. State, 236 Ga. 815 ( 225 S.E.2d 248) (1976); Pulliam v. State, 236 Ga. 460 ( 224 S.E.2d 8) (1976); Dobbs v. State, 236 Ga. 427 ( 224 S.E.2d 3) (1976); Goodwin v. State, 236 Ga. 339 ( 223 S.E.2d 703) (1976); Mitchell v. State, 234 Ga. 160 ( 214 S.E.2d 900) (1975); Moore v. State, 233 Ga. 861 ( 213 S.E.2d 829) (1975); Gregg v. State, 233 Ga. 117 ( 210 S.E.2d 659) (1974).