Willie James Pye,
29, was sentenced to death in Spalding County in July 1996. He was
convicted of the November 1993 rape, sodomy and shooting death of a 21-year-old
woman in a supposed drug deal gone bad. His co-defendant was sentenced
to life in prison. Mr. Pye still claims he's innocent and a motion for a
new trial is pending.
(269 Ga. 779)
(505 SE2d 4)
Murder. Spalding Superior Court. Before Judge Whalen.
A jury found Willie James Pye guilty of malice
murder, kidnapping with bodily injury, rape, armed robbery, and
burglary. For the murder, the jury recommended a death sentence,
finding as four separate statutory aggravating circumstances that
Pye had committed that crime while engaged in the commission of the
offenses of kidnapping with bodily injury, rape, armed robbery, and
burglary. OCGA 17-10-30 (b) (2). Pye's
motion for new trial was denied and he appeals.
1. Pye contends that the State violated Batson v.
Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986) by using
four peremptory strikes against black prospective jurors. The record
shows that the State gave reasons for these four peremptory strikes,
rendering the necessity of a preliminary showing of prima facie
discrimination moot. Hernandez v. New York, 500 U. S. 352, 359 (111
SC 1859, 114 LE2d 395) (1991); Lewis v. State,
262 Ga. 679, 680 (2) (424
SE2d 626) (1993). After a hearing, the trial court ruled that
Pye did not meet his burden of showing that the State had acted with
discriminatory intent. This ruling will be affirmed unless it is
clearly erroneous. Turner v. State, 267 Ga.
149, 151 (2) (476 SE2d 252)
In one instance, the State exercised a peremptory
strike because inquiries in the community led the prosecutor to
believe that the prospective juror was argumentative and might
prevent the return of a unanimous verdict. The State "may rely on
information and advice provided by others so long as this input is
not predicated upon the race of the prospective juror." Barnes v.
State, 269 Ga. 345, 350 (6) (496
SE2d 674) (1998). See also Lewis v. State, supra at 681 (2).
The trial court did not err by accepting the State's reason for the
strike of this juror, because there was no discriminatory intent
inherent in the State's explanation and it was not so implausible as
to render the explanation pretextual. See Purkett v. Elem, 514 U. S.
765 (115 SC 1769, 131 LE2d 834) (1995); Jackson v. State,
265 Ga. 897, 898 (2) (463
SE2d 699) (1995).
The prosecutor struck another prospective juror
who testified that she was conscientiously opposed to the death
penalty and believed that life without parole was a greater
deterrent than a death sentence. The prosecutor also stated that his
assistant had known this juror for years and believed that she would
be unable to vote for imposition of the death penalty. These were
valid race-neutral reasons sufficient to justify a peremptory strike.
See Tharpe v. State, 262 Ga. 110, 112
(6) (416 SE2d 78) (1992); Barnes v.
State, supra. Pye complains that the State did not strike white
prospective jurors who testified that they believed that life
without parole was a greater deterrent than death. The record
reveals, however, that these white jurors did not state, as this
prospective juror did, that they were also conscientiously opposed
to the death penalty.
The prosecutor struck a third prospective juror
because she testified that she was conscientiously opposed to the
death penalty, even though she later said that she could vote for a
death sentence. As previously stated, this is a valid race-neutral
reason sufficient to justify a peremptory strike. Tharpe v. State,
supra. The prosecutor further stated that this prospective juror's
son was a public defender in Atlanta. This reason is also sufficient
to justify a peremptory' strike, because the explanation was neither
inherently discriminatory nor implausibly pretextual. See Purkett v.
Elem, supra; Jackson v. State, supra.
The State struck the fourth prospective juror
because he seemed confused by the voir dire questions and repeatedly
contradicted him-self about his opinion on the deterrent value of a
death sentence, his impartiality, and whether he was conscientiously
opposed to the death penalty. This explanation is supported by the
voir dire transcript and is a valid race-neutral reason. See Purkett
v. Elem, supra; Jackson v. State, supra.
In none of the four instances was the trial
court's Batson ruling clearly erroneous. Accordingly, this
enumeration of error is without merit.
2. Pye complains that the trial court failed to
ask prospective jurors on voir dire whether they would consider
mitigating circumstances or would automatically impose a death
sentence if Pye was convicted of murder. Because Pye did not request
the trial court to ask these questions, he cannot now complain.
Durham v. State, 239 Ga. 697, 699 (2)
(238 SE2d 334) (1977); Eberheart v.
State, 232 Ga. 247, 251 (3) (206
SE2d 12) (1974), vacated in part on other grounds, Coker v.
State, 433 U. S. 584 (97 SC 2861, 53 LE2d 982) (1977). Moreover, Pye
could have asked the questions himself and, in fact, did so in some
instances. Therefore, any error was harmless. Robinson v. State,
238 Ga. 291, 292 (2) (232
SE2d 561) (1977).
3. Pye urges that the trial court conducted an
inadequate investigation into the possible misconduct of alternate
juror Alvin Yarbrough. The record shows that, after the jury was
seated, two jurors informed the trial court that, on the first day
of voir dire, Yarbrough had commented that he was the victim's
cousin. The trial court then questioned Yarbrough, who responded
that, when he heard the victim's name announced, he said that he was
the victim's cousin only because they had the same last name.
Yarbrough stated that he was not related to the victim and did not
know her. The trial court allowed Yarbrough to remain an alternate
juror, and informed the two concerned jurors that it had ascertained
that Yarbrough was not related to the victim. Pye did not object to
the investigation conducted by the trial court or request further
investigation. Bowens v. State, 217 Ga. App.
283 (457 SE2d 238) (1995). Moreover, any error was harmless
because Yarbrough was not needed to replace any regular jurors and,
therefore, did not participate in deliberations or influence the
verdict. State v. Newsome, 259 Ga. 187,
188 (2) (378 SE2d 125) (1989).
The Guilt-Innocence Phase of Trial
4. The evidence presented at trial authorized the
jury to find the following:
Pye had been in a sporadic romantic relationship
with the victim, Alicia Lynn Yarbrough, but, at the time of her
murder, Ms. Yarbrough was living with another man, Charles Puckett.
Pye and two companions, Chester Adams and Anthony
Freeman, planned to rob Puckett because Pye had heard that Puckett
had just collected money from the settlement of a lawsuit. Pye was
also angry because Puckett had signed the birth certificate of a
child whom Pye claimed as his own.
The three men drove to Griffin in Adams' car and,
in a street transaction, Pye bought a large, distinctive .22 pistol.
They then went to a party where a witness observed Pye in possession
of the large .22. Just before midnight, the three left the party and
drove toward Puckett's house. As they were leaving, a witness heard
Pye say, "it's time, let's do it." All of the men put on the ski
masks which Pye had brought with him, and Pye and Adams also put on
They approached Puckett's house on foot and
observed that only Ms. Yarbrough and her baby were home. Pye tried
to open a window and Ms. Yarbrough saw him and screamed. Pye ran
around to the front door, kicked it in, and held Ms. Yarbrough at
gunpoint. After determining that there was no money in the house,
they took a ring and a necklace from Ms. Yarbrough and abducted her,
leaving the infant in the house.
The men drove to a nearby motel where Pye rented
a room using an alias. In the motel room, the three men took turns
raping Ms. Yarbrough at gunpoint. Pye was angry with Ms. Yarbrough
and said, "You let Puckett sign my baby's birth certificate."
After attempting to eliminate their fingerprints
from the motel room, the three men and Ms. Yarbrough left in Adams'
car. Pye whispered in Adams' ear and Adams turned off onto a dirt
road. Pye then ordered Ms. Yarbrough out of the car, made her lie
face down, and shot her three times, killing her. As they were
driving away, Pye tossed the gloves, masks, and the large .22 from
The police later recovered these items and found
the victim's body only a few hours after she was killed. A hair
found on one of the masks was consistent with the victim's hair, and
a ballistics expert determined that there was a 90 percent
probability that a bullet found in the victim's body had been fired
by the .22. Semen was found in the victim's body and DNA taken from
the semen matched Pye's DNA. When Pye talked to the police later
that day, he stated that he had not seen the victim in at least two
weeks. However, Freeman confessed and later testified for the State.
The evidence was sufficient to enable a rational
trier of fact to find proof of Pye's guilt of malice murder,
kidnapping with bodily injury, armed robbery, rape, and burglary
beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC
2781, 61 LE2d 560) (1979). The evidence was also sufficient to
authorize the jury to find that Pye's commission of kidnapping with
bodily injury, armed robbery, rape, and burglary were aggravating
circumstances which supported his death sentence for the murder.
5. Freeman's inculpatory testimony was
corroborated by other evidence that Pye was seen with the murder
weapon shortly before the victim was killed, that Pye lied to the
police when first questioned about the victim's death, and that Pye
had previously threatened the victim's life. This evidence was
sufficient to corroborate the testimony of an accomplice as required
by OCGA 24-4-8. Castell v. State,
250 Ga. 776, 780 (1) (c) (301
SE2d 234) (1983).
6. The deputy who first discovered the victim's
body testified that she recognized the victim. Pye asked the deputy
how she knew the victim, but the State objected that Pye was
attempting to introduce the victim's irrelevant cocaine use. The
trial court twice ruled that Pye could not introduce evidence of the
victim's cocaine habit until he had shown it to be relevant. When
the trial court made these rulings, there had been no evidence that
the victim's use of drugs played any part in her death.
Later, however, Pye testified that he rented the
motel room to sell drugs, that Adams and Freeman showed up with the
victim, and that the victim willingly traded sex for crack cocaine
and left with Adams and Freeman. Pye contends that the trial court
erroneously refused to allow him to corroborate his subsequent
testimony by presenting evidence of the victim's cocaine habit and
of her willingness to trade sex for cocaine.
The trial court did not preclude all inquiry by
Pye concerning the victim's cocaine habit. Compare Hines v. State,
249 Ga. 257, 260 (2) (290
SE2d 911) (1982). It merely limited cross-examination into
that topic until Pye had shown its relevance. See Cofield v. State,
247 Ga. 98, 111 (6) (274
SE2d 530) (1981); Crawford v. State,
154 Ga. App. 362, 363 (2) (268 SE2d
414) (1980). Indeed, the trial court specifically told Pye
that he could pursue the subject of the victim's cocaine habit and
willingness to trade sex for cocaine if there was evidence that
cocaine was in her system when she died, or if Pye testified about
an exchange of sex for drugs. After Pye's testimony, however, he
made no further attempt to develop any evidence in this regard.
Since the trial court did not deprive Pye of the opportunity to
establish his version of the events, we find no error. Goodwin v.
State, 208 Ga. App. 707 (1) (431 SE2d 473)
(1993); Harris v. State, 196 Ga. App.
304, 306 (3) (396 SE2d 288)
7. Pye also contends that the trial court erred
by admitting evidence of two prior incidents in which he threatened
the victim. The trial court ruled that the two incidents were
admissible to show motive. Pye argues that these incidents involving
threats against the victim were irrelevant and prejudicial, since
the State's theory at trial involved Pye's anger with Puckett for
signing a birth certificate and Pye's attempt to rob Puckett.
[E]vidence of the defendant's prior acts toward
the victim, be it a prior assault, a quarrel, or a threat, is
admissible when the defendant is accused of a criminal act against
the victim, as the prior acts are evidence of the relationship
between the victim and the defendant and may show the defendant's
motive, intent, and bent of mind in committing the act against the
victim which results in the charges for which the defendant is being
Wall v. State, 269 Ga. 506,
509 (7) (500 SE2d 904) (1998). There
is no longer any requirement for the State to provide pretrial
notice to the defendant of its intent to proffer such evidence of
prior difficulties between the defendant and the victim or for the
trial court to make the analysis formerly required by Maxwell v.
State, 262 Ga. 73 (2) (414 SE2d 470) (1992).
Wall v. State, supra at 507 (2). That Pye previously threatened the
victim with a handgun and threatened to kill her if she began a
relationship with another man was probative evidence of their
relationship and of Pye's motive and bent of mind. The State's
theory of revenge and attempted robbery against Puckett explains
Pye's assault on the Puckett house, but does not foreclose the
admission of additional evidence to explain Pye's subsequent
violence against the victim.
8. Pye urges that the State impermissibly
introduced evidence of a polygraph test to bolster Puckett's
testimony. On direct examination, Puckett volunteered that the
police gave him a lie detector test. The State did not seek to
elaborate, and Pye did not object. The State's subsequent passing
reference to the fact that Puckett had testified that he was given a
polygraph test again prompted no objection from Pye. Thus, Pye
waived his right to enumerate error on appeal by failing to object
to any mention of the lie detector test at trial. Fargason v. State,
266 Ga. 463, 464 (2) (467
SE2d 551) (1996).
9. Pye contends that the State twice
impermissibly placed his character into evidence. In one instance,
Puckett testified on cross-examination that Pye was in jail when
Puckett's baby was conceived. Defense counsel did not object, move
to strike the testimony, or request curative instructions. Therefore,
we will not consider this instance of alleged impermissible
placement of Pye's character into evidence.
The second instance occurred after Pye testified
that he was a drug dealer and that he had rented the motel room in
order to sell drugs the night the victim was killed. When the State
asserted that Pye thereby placed his character into evidence, the
trial court erroneously permitted the State to reopen its case and
introduce Pye's prior convictions for burglary and entering an
automobile. Jones v. State, 257 Ga. 753,
760 (2) (363 SE2d 529) (1988). However,
the trial court later recognized its error and, at length,
instructed the jury to disregard Pye's prior convictions. Pye did
not object to these curative instructions, request additional
instructions, or move for a mistrial thereafter. Thus, this issue
has not been preserved for appellate review.
10. Pye further contends that the State
improperly bolstered Freeman's trial testimony when a police witness
testified about Freeman's prior statement. However, the defense had
already used the very same statement to cross-examine Freeman and to
attack his veracity. Therefore, the State was at liberty to bring
out the remainder of Freeman's statement. Legare v. State,
243 Ga. 744, 757 (20) (257
SE2d 247) (1979); Lowe v. State, 97
Ga. 792, 794 (3) (25 SE 676)
(1896). See also Woodard v. State, 269 Ga.
317, 320 (2) (496 SE2d 896)
11. Pye claims that the State used information
never introduced into evidence to obtain his conviction, and that he
was therefore unable to confront all the evidence against him. The
State's fiber expert testified about fibers from Pye's clothes that
were consistent with fibers found on other articles of clothing. The
State did not introduce all of the articles of clothing into
evidence at trial, but all of the clothing was available to Pye for
cross-examination and inspection. At the conclusion of the fiber
expert's testimony, the State asked the trial court if the expert
could take the clothing back with him to the lab because the State
needed it for Adams' upcoming murder trial. The trial court agreed
after Pye's counsel stated that he had no objection to the expert
taking the clothing with him. Therefore, Pye waived any objection to
the absence of a formal introduction into evidence of all of the
actual clothing. See Spencer v. State, 260 Ga.
640, 646 (8) (398 SE2d 179)
(1990); Wilkie v. State, 153 Ga. App. 609,
611 (4) (266 SE2d 289) (1980); Clayton
v. State, 149 Ga. App. 374, 375 (1) (254
SE2d 495) (1979); Savannah Elec. Co. v. Lowe,
27 Ga. App. 350, 352 (5) (a) (108
SE 313) (1921).
12. Pye contends that the trial court erred in
admitting into evidence a photograph of the victim taken while she
was alive. "The general rule is that it is not error to admit a
photograph of the victim while in life." Ledford v. State,
264 Ga. 60, 66 (14) (439
SE2d 917) (1994). Pye did not object when the victim's
boyfriend identified the photograph. Under these circumstances, we
find no error. Garcia v. State, 267 Ga. 257
(2) (477 SE2d 112) (1996).
13. Pye urges that the State used scientific
evidence that was inherently unreliable. Specifically, he complains
that the use of DNA, hair comparison, fiber comparison, and plaster
tire track comparison evidence led to a conviction by mathematical
All of the experts who testified were properly
qualified as expert witnesses by the trial court and Pye had no
objection to any witness' qualification. Harper v. State,
249 Ga. 519, 533 (10) (292
SE2d 389) (1982). Furthermore, "[o]nce a procedure has been
recognized in a substantial number of courts, a trial judge may
judicially notice, without receiving evidence, that the procedure
has been established with verifiable certainty, or that it rests
upon the laws of nature." Harper v. State, supra at 526 (1). See
also Lattarulo v. State, 261 Ga. 124,
126 (3) (401 SE2d 516) (1991). The
scientific evidence introduced in this case was not novel, and has
been widely accepted in Georgia courts. With regard to the DNA
evidence, the trial court made the determination required by
Caldwell v. State, 260 Ga. 278,
286-287 (1) (b) (393 SE2d 436) (1990)
that the general scientific principles and techniques involved in
DNA testing were valid and capable of producing reliable results,
and that the DNA tester had performed the testing procedures in an
acceptable manner. Johnson v. State, 264 Ga.
456, 458 (5) (448 SE2d 177)
(1994). Pye did not object at trial that any of the scientific
evidence was unreliable, or that any testing procedures were
improper. Therefore, he may not raise these issues for the first
time on appeal. Harper v. State, supra at 533 (10).
14. Pye contends that the State improperly
commented upon his right to remain silent and his right to counsel
in violation of Doyle v. Ohio, 426 U. S. 610 (96 SC 2240, 49 LE2d
91) (1976). Doyle holds that, after a defendant has received Miranda
warnings, the State's use of his silence to impeach him violates due
process. Lee v. State, 262 Ga. 593,
594 (2) (423 SE2d 249) (1992). However,
where, as here, a defendant is not silent but makes a statement, the
State can impeach his trial testimony with inconsistencies or
omissions in his pre-trial statement. McMichen v. State,
265 Ga. 598, 606 (11) (a) (458
SE2d 833) (1995); Lee v. State, supra. The trial court
correctly permitted the State to cross-examine Pye about the
dramatic difference between his trial testimony and his pre-trial
During Pye's cross-examination, he volunteered
that his own lawyer was responsible for the failure to correct his
pre-trial statement and to reveal some exculpatory information until
trial. Jackson v. State, 231 Ga. 664,
665 (2) (203 SE2d 535) (1974). Defense
counsel did not object to the State's cross-examination and, on
redirect, further questioned Pye about his reasons for not giving
police the information before trial. " ' "A party cannot during the
trial ignore what he thinks to be an injustice, take his chance on a
favorable verdict, and complain later." (Cit.)' [Cit.]" Warbington
v. State, 267 Ga. 462, 463 (2) (479
SE2d 733) (1997). Accordingly, even if the State had made an
improper comment on Pye's right to counsel, the failure to raise an
objection would preclude a finding of reversible error. Warbington
v. State, supra.
15. Pye also contends that the State's closing
argument during the guilt-innocence phase was improper. However, Pye
did not object to any portion of the closing argument.
When no timely objection is interposed, the test
for reversible error is not simply whether or not the argument is
objectionable, or even if it might have contributed to the verdict;
the test is whether the improper argument in reasonable probability
changed the result of the trial. [Cit.]
Todd v. State, 261 Ga. 766,
767 (2) (a) (410 SE2d 725) (1991). We
find no error sufficient to overcome Pye's procedural default.
The Sentencing Phase of Trial
17. Pye contends that the State improperly cross-examined
his sister about their other brothers' convictions. On direct
examination, Pye's sister testified that her brothers were often
accused of doing things that they did not do. This testimony opened
the door to questions about their other brothers' crimes, and the
State was entitled to a thorough and sifting cross-examination on
this issue. OCGA 24-9-64; Parker v.
State, 256 Ga. 543, 549 (7) (350
SE2d 570) (1986); Felker v. State, 252
Ga. 351, 382 (18) (314 SE2d 621)
18. Pye further contends that the State's
attorney "testified" by asking two improper, prejudicial questions
on cross-examination. When the witness did not answer the first
question, the prosecutor withdrew it. Thereafter, the trial court
sustained Pye's objection and Pye requested no further action. After
an objection to an improper question or argument is sustained, there
is no reversible error absent a request from the complaining party
for further corrective action. Phillips v. State,
230 Ga. 444 (1) (197 SE2d 720) (1973);
Garner v. State, 199 Ga. App. 468, 469
(2) (a) (405 SE2d 299) (1991). As to
the second question, Pye did not object and, thus, we will not
consider it on appeal. Mundy v. State, 259 Ga.
634, 635 (4) (385 SE2d 666)
19. Pye also contends that the prosecutor made
improper closing arguments. Counsel for the State commented on
future dangerousness by arguing that Pye would kill a prison guard
in order to escape. The issue of a defendant's future dangerousness
is relevant in the sentencing phase. McClain v. State,
267 Ga. 378, 383 (3) (a) (477
SE2d 814) (1996). The State is allowed considerable latitude
in imagery and illustration in making its argument. Philmore v.
State, 263 Ga. 67, 69 (3) (428
SE2d 329) (1993). That Pye could harm a prison guard is a
reasonable inference, considering that he had been convicted of
several violent crimes, including murder.
The prosecutor also argued that Pye was sorry
that he did not kill Freeman so that Freeman could not "put the
finger on him," and that, if Pye's lawyer had been present on the
night of the murder and had tried to talk Pye out of killing the
victim, "the only difference that it would have made is that there
would have been two bodies instead of one," defense counsel's and
the victim's. The thrust of this argument was that Pye showed no
mercy during the murder, but was intent on killing the victim, and
that he showed no remorse, but was sorry only that he had left an
eyewitness alive. It is not improper to argue a defendant's lack of
remorse or his failure to show the victim mercy. See Carr v. State,
267 Ga. 547, 559 (8) (d) (480
SE2d 583) (1997); Crowe v. State, 265
Ga. 582, 592 (18) (c) (458 SE2d 799)
(1995). Although the State used violent imagery, it did not exceed
its considerable latitude in illustrating its argument. See Philmore
v. State, supra. Moreover, Pye made no objection to any part of the
State's argument, and there is no reasonable probability that the
argument, even if improper, changed the result of the sentencing
phase. Todd v. State, supra at 767 (2) (a).
20. Pye complains of the trial court's
instructions regarding the jury's consideration of aggravating and
mitigating circumstances. After reviewing the charge in the
sentencing phase, we conclude that it was proper. See Ledford, supra
at 69 (20); Fugate v. State, 263 Ga. 260,
262 (5) (431 SE2d 104) (1993).
21. The death sentence in this case was not
imposed under the influence of passion, prejudice, or any other
arbitrary factor. OCGA 17-10-35 (c)
(1). Also, the death sentence is not disproportionate to the penalty
imposed in similar cases, considering both the crimes and the
defendant. OCGA 17-10-35 (c) (3). The
similar cases listed in the Appendix support the imposition of the
death penalty in this case, as all involve a deliberate killing
during the commission of kidnapping with bodily injury, rape, armed
robbery, or burglary.
Judgments affirmed. All the Justices concur,
except Fletcher, P. J., who concurs specially.
FLETCHER, Presiding Justice, concurring specially.
Because the prosecutor's closing arguments in the
sentencing phase included statements about Pye's future
dangerousness that were not based on evidence in the record, I
cannot agree with Division 19 of the majority opinion.
While a defendant's future dangerousness may be
the subject of proper argument in the sentencing phase, this
argument is only proper so long as it is "based on evidence adduced
at trial." The requirement that a prosecutor's argument in the
sentencing phase of a death penalty trial be based upon facts of
record is long-standing.
In Conner v. State, this Court held that the
prosecutor's statement that Conner was the first defendant against
whom he had sought the death penalty was improper because it was not
based on facts in evidence. Similarly, this Court stated in Horton
v. State that, even though it was common knowledge that the death
penalty had seldom been imposed in recent years, the prosecutor
should not have referred to this fact since it was not in evidence.
The prosecutor's argument that Pye would kill a
prison guard was not a reasonable inference from any evidence in the
record. Although the state claims in its brief that such statements
are supported by the record, the state has failed to provide a
single citation to the record. That Pye had been convicted in this
case of the murder, rape, and kidnapping of his former girlfriend
does not make the murder of a prison guard "probable future behavior."
Although the murder was heinous, its facts are not suggestive of
Pye's behavior in prison. This case is unlike Spencer v. State, in
which this Court upheld the prosecutor's argument that the death
penalty was appropriate because Spencer was an escape risk. In that
case, the facts showed that Spencer had committed the murder for
which he was on trial in an attempt to escape from law-enforcement
The majority's ruling will have dramatic impact
not just on arguments, but also on evidence in the sentencing phase.
In Skipper v. South Carolina,
7 the United States
Supreme Court unanimously agreed that where the prosecution relies
on the defendant's future dangerousness to argue for the imposition
of the death penalty, elemental due process requires that the
defendant be offered an opportunity to introduce evidence on this
point. Therefore, if the state is permitted to speculate wildly in
closing argument about the defendant's threat to prison guards, the
defendant is constitutionally entitled to reopen the evidence to
rebut this argument. Thus, sentencing trials will now routinely
include witnesses to testify about the defendant's current behavior
in prison, expert witnesses to testify about the defendant's
probable behavior in prison, and corrections personnel to testify
about security in prisons holding inmates serving sentences of life
or life without parole. Thus, this opinion will further the
expenditure of time, resources, and testimony on issues not related
directly to the particular defendant, the crime committed, or the
appropriate punishment for that crime.
I further disagree with the conclusion that the
statements that Pye wished he had killed Freeman and would have
killed his own lawyer are reasonable inferences from the record. The
state has pointed to no evidence in the record of any threats Pye
made against Freeman or Pye's lawyer. Additionally, the majority's
reliance on Philmore v. State to justify such latitude in the
argument is unpersuasive because that case was not a death penalty
Although the speculative arguments made by the
prosecutor in this case are objectionable and should not be
permitted, the defendant raised his objections only on appeal.
Therefore, reversible error may be found only if there is a
reasonable probability that the improper argument changed the result
in the sentencing phase. I concur in the majority's conclusion that
Pye has not satisfied this high standard.
William T. McBroom III, District Attorney, Daniel
A. Hiatt, Assistant District Attorney, Thurbert E. Baker, Attorney
General, Susan V. Boleyn, Senior Assistant Attorney General, Wesley
S. Horney, Beth Attaway, Assistant Attorneys General, for appellee.
1 The crimes occurred on November
16, 1993 and the grand jury indicted Pye on February 7, 1994. On April
19, 1994, the State filed its notice of intent to seek the death
penalty. The trial was held May 28-June 7, 1996. In addition to the
death sentence for the murder, the trial court imposed three additional
life sentences plus twenty years, all sentences to be served
consecutively. Pye filed a motion for new trial on July 3, 1996, which
was denied on August 22, 1997. Pye filed his notice of appeal on
September 16, 1997, and the case was orally argued on April 13, 1998.
Johnny B. Mostiler, for appellant.
DECIDED SEPTEMBER 21, 1998.
Willie James Pye