Frederick R. Whatley, 23, was
sentenced to die in Spalding County this year for the Nov. 3, 1993?, robbery and beating death of a McDonald's restaurant employee.
victim, Mark Fugate, was a key witness against his own father, Wallace
Marvin Fugate III, who killed his mother and is now on death row in
(270 Ga. 296)
(509 SE2d 45)
Murder. Spalding Superior Court. Before Judge Miller.
A jury convicted Frederick Ramone Whatley of
malice murder, aggravated assault (two counts), armed robbery, motor
vehicle hijacking, and possession of a firearm during the commission
of a crime. The jury recommended death sentences for the murder and
armed robbery after finding the following statutory aggravating
circumstances: the offense of murder was committed while the
defendant was engaged in the commission of an armed robbery, OCGA
17-10-30 (b) (2); the offense of armed
robbery was committed while the defendant was engaged in the
commission of a murder, id.; and the offense of murder was committed
by a person who has escaped from a place of lawful confinement, id.
at (b) (9). The trial court sentenced Whatley to death for malice
murder and, after recognizing that a death sentence cannot be
imposed for armed robbery (Jarrell v. State,
234 Ga. 410, 424-425 (11) (216 SE2d
258) (1975) (death sentence for armed robbery is excessive
and disproportionate)), to life imprisonment for armed robbery.
Whatley received terms of years for his other convictions. He
appeals, and we affirm. 1
1. The evidence showed that Whatley entered Roy's
Bait Shop in Griffin at about 8:45 p.m. on January 26, 1995. Whatley
brandished a .32 caliber silver revolver and forced employee Tommy
Bunn to lie face-down on the floor behind the counter. Whatley
pressed the gun against Bunn's head and instructed the owner of the
store, Ed Allen, to hand over the money in the cash register. Allen
put money in a paper sack and placed the sack on the counter.
Whatley moved to the front of the counter,
retrieved the paper sack, and fired two shots. One shot struck Allen
in the chest and pierced his left lung. Expert testimony established
that this shot was fired from a distance of 18 inches. The second
shot was fired at Bunn's head (Bunn was still lying prone behind the
counter), but the bullet deflected off the counter top and missed.
Whatley then exited the store.
Outside the store, Whatley encountered Ray
Coursey, who was getting out of his car near the store's doorway.
Whatley held his gun to Coursey's head, forced him back into the
driver's seat of the car, and told him, "take me . . . where I want
to go." Whatley got in the back seat. Although mortally wounded,
Allen obtained a hidden .44 caliber handgun, rushed to the front of
the store, and fired several shots at Whatley, who returned fire.
After the exchange of gunfire, Allen collapsed
and died from internal bleeding caused by the previously-inflicted
gunshot wound. Whatley exited Coursey's car, dropped the paper sack
after it tore open, and fled on foot. Coursey observed that Whatley
Coursey and Bunn told the officers who arrived on
the scene that the assailant had used a silver revolver. One of the
officers had taken a report the previous day from Franklin White,
who said that his silver revolver was missing and he suspected that
his cousin, Whatley, had taken it.
The officers went to the house where Whatley was
staying with a relative, and found him during a consent search.
Whatley had a bullet wound in his leg that was still bleeding.
Franklin White's .32 caliber silver revolver, determined by a
firearms expert to be the murder weapon, was found under Whatley's
The police also found a bloody pair of thermal
underwear with a bullet hole in the leg, a bloody towel, and bloody
boxer shorts in a trash can behind the house. Fibers on a .44
caliber bullet removed from Coursey's car were consistent with
fibers from the thermal underwear, and DNA taken from blood on the
fibers matched Whatley. A palm print on the paper sack dropped next
to Coursey's car also matched Whatley. In the penalty phase, the
state introduced evidence that Whatley was an escapee from a
Washington D.C. halfway house, where he had been serving time for
The evidence was sufficient to enable a rational
trier of fact to find proof beyond a reasonable doubt of Whatley's
guilt of malice murder, aggravated assault (two counts), armed
robbery, motor vehicle hijacking, and possession of a firearm during
the commission of a crime. 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 the statutory aggravating circumstances
beyond a reasonable doubt. Id.; OCGA 17-10-35
2. Whatley claims that the trial court erred by
failing to excuse for cause three prospective jurors due to bias.
The record shows that Whatley did not move to strike two of these
prospective jurors for cause, and the trial court did not err by
failing to excuse them sua sponte. Spencer v. State,
260 Ga. 640, 641 (1) (a) (398
SE2d 179) (1990). The third prospective juror admitted that
he had "a little" racial prejudice (Whatley is African-American).
This juror also stated that his prejudice would not prevent him from
giving Whatley a fair trial, and that he could put aside Whatley's
race in making his decisions in the case. " 'Before a juror can be
disqualified for cause, it must be shown that an opinion held by the
potential juror is so fixed and definite that the juror will be
unable to set the opinion aside and decide the case based upon the
evidence or the court's charge upon the evidence.' " Rower v. State,
219 Ga. App. 865, 868 (1) (466
SE2d 897) (1995), quoting Johnson v. State,
262 Ga. 652, 653 (2) (424
SE2d 271) (1993). The juror's responses showed that he was
able to decide the case based upon the evidence, regardless of his
admitted racial prejudice. Therefore, the trial court did not abuse
its discretion by refusing to strike this juror for cause. See Rower,
supra at 866-869 (1).
3. Whatley claims that three prospective jurors
should have been excused for cause because they favored a death
sentence. Whatley did not object to the qualification of two of
these prospective jurors, and the trial court did not err by failing
to excuse them sua sponte. Spencer, 260 Ga. at 641 (1). The third
prospective juror stated that her brother had been killed in a
convenience store by a robber, and that she believed that the death
penalty should be given for a "wilful killing." However, she also
explained that the murderer of her brother had been given a life
sentence, which was fair because the murder had taken place during a
robbery so it had not been "wilful."
She further stated that she
would listen to the evidence and consider mitigation evidence.
Viewing her responses as a whole and giving deference to the trial
court's decision, we conclude that the trial court did not err by
finding that this juror's views would not substantially impair her
duties as a juror in accordance with her instructions and oath.
Wainwright v. Witt, 469 U. S. 412, 424 (II) (105 SC 844, 83 LE2d
841) (1985); Greene v. State, 268 Ga. 47,
48-50 (485 SE2d 741) (1997).
4. A prospective juror stated that she would vote
with the other jurors if her views were in the minority. Whatley
objected that this juror was too willing to surrender her beliefs to
the majority. The trial court stated that the juror may not have
understood the question, and elicited from the juror that she would
not surrender to a majority if she believed that whatley was not
guilty. The juror also stated that she would not surrender to a
death-sentence majority if she believed that life without parole was
the appropriate sentence. The trial court did not abuse its
discretion in finding that this prospective juror was qualified.
McClain v. State, 220 Ga. App. 474,
477 (6) (469 SE2d 756) (1996) (trial
court's decision on a prospective juror's qualification not
disturbed on appeal absent a manifest abuse of discretion).
5. Whatley complains that the state improperly
asked prospective jurors on voir dire whether Whatley's relatively
young age (28) would prevent them from returning a death sentence.
Whatley did not object to this question, so this argument is waived
on appeal. Earnest v. State, 262 Ga. 494,
495 (1) (422 SE2d 188) (1992).
6. Whatley argues that the state used scientific
evidence that was inherently unreliable. However, the record shows
that all of the state's experts who testified were properly
qualified as expert witnesses by the trial court, and Whatley 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, supra at 526 (1).
comparison, fiber comparison, fingerprint comparison, and ballistics
evidence introduced in this case is not novel, and has been widely
accepted in Georgia courts. In addition, Whatley did not object that
any of the scientific evidence was unreliable, or that any testing
procedure was improper. These issues are therefore waived on appeal.
Harper, supra at 533 (10). The trial court did not make the DNA
findings required by Caldwell v. State, 260
Ga. 278, 286-287 (1) (b) (393 SE2d 436)
(1990), but Whatley did not object to the admission of the DNA
evidence at trial and therefore cannot raise this error on appeal.
Smith v. State, 265 Ga. 570, 571-572
(3) (459 SE2d 420) (1995).
7. Whatley complains that a photograph of the
murder weapon was erroneously admitted into evidence. However, the
actual murder weapon was admitted into evidence without objection,
and the introduction of evidence that is cumulative of other
evidence presented at trial does not constitute reversible error.
See Beene v. State, 202 Ga. App. 857,
858 (2) (415 SE2d 545) (1992); Moon v.
State, 199 Ga. App. 94, 97 (2) (404
SE2d 273) (1991).
8. The trial court did not err by allowing the
state to introduce a photograph of the victim in life through the
testimony of Tommy Bunn. "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). Further, a family member did not make the
identification since Bunn is not related to the victim. See id.
10. Whatley claims that the trial court's charge
in the guilt-innocence phase contained many errors.
(a) The trial court charged the jury that Whatley
was innocent until proven guilty. Whatley asserts that the trial
court should have said "unless" instead of "until." This contention
is without merit. Nash v. State, 225 Ga. App.
10, 11 (3) (482 SE2d 520)
(1997); Mitchell v. State, 223 Ga. App. 319
(1) (477 SE2d 612) (1996).
(b) The trial court instructed the jury that if
there is a conflict in the evidence, or a conflict between witnesses,
"it is your duty to settle that conflict if you can without
believing that any witness made a false statement or committed
perjury. If you cannot do this, then it becomes your duty to believe
that witness or those witnesses you think best entitled to belief."
Whatley complains that this instruction told the jurors to presume
that state witnesses were telling the truth. Although this Court has
recommended that such a presumption-of-truthfulness charge not be
used (Noggle v. State, 256 Ga. 383,
385-386 (4) (349 SE2d 175) (1986)), we
have also held that the use of such a charge is not unconstitutional
and does not constitute reversible error. Noggle, supra at 386;
Baxter v. Kemp, 260 Ga. 184, 186 (5) (391
SE2d 754) (1990); see also Mitchell, 223 Ga. App. at 319 (2).
(c) Viewed as a whole, the trial court's charge
on reasonable doubt was proper.
(d) Whatley complains about the trial court's
charge on circumstantial evidence. The trial court, however, gave
the exact charge on circumstantial evidence requested by Whatley.
Even if the charge was incorrect, such invited error is not grounds
for reversal. Barnes v. State, 269 Ga. 345,
356 (19) (496 SE2d 674) (1998).
(e) Whatley did not request several charges that
he claims the trial court should have given to the jury. Absent a
request, the failure to give these charges is not error. See, e.g.,
Mauldin v. State, 167 Ga. App. 789,
790-791 (4) (307 SE2d 689) (1983) (in
the absence of a timely request, it is not error to fail to charge
the jury that the defendant's failure to testify creates no
presumption against him).
11. Whatley complains that the trial court erred
by allowing the state in the sentencing phase to introduce evidence
of two incidents as non-statutory aggravating circumstances, without
pretrial notice. The first incident involved Whatley asking the
police to return to him the money that he had stolen during the
armed robbery. The second incident involved Whatley telling a jailer
that he hoped that the transfer process from jail to prison did not
take long because he was worried about missing the Super Bowl. All
aspects of a defendant's crime, character, and attitude, including
evidence of his lack of remorse, is admissible in the sentencing
phase. See McMichen v. State, 265 Ga. 598,
607 (12) (458 SE2d 833) (1995).
Further, although Whatley did not receive notice of these incidents
until trial, the record shows that Whatley did not object to this
evidence or to a lack of notice so this argument is waived on
appeal. Earnest, 262 Ga. at 495 (1). The trial court is also not
required to instruct the jury on a burden of proof for non-statutory
aggravating circumstances. McClain v. State,
267 Ga. 378, 387 (8) (477 SE2d 814)
12. The trial court did not err by sustaining a
state hearsay objection in the sentencing phase to the testimony of
Whatley's cousin, Lorraine Goodman. Ms. Goodman began to testify on
direct examination about what Whatley had told her concerning his
relationship with his mother when he lived in Washington D.C. The
state objected that this was hearsay, and the trial court sustained
the objection. We find no error. The hearsay rule is not suspended
in the sentencing phase, and Whatley made no proffer to enable us to
determine if this potential mitigation testimony outweighed the harm
from a violation of the hearsay rule. Davis v. State,
263 Ga. 5, 9 (14) (426
SE2d 844) (1993); Cobb v. State, 244
Ga. 344, 359 (28) (260 SE2d 60)
(1979). In addition, the trial court's ruling was not harmful
because Whatley testified extensively about his relationship with
14. Whatley complains that the jury was permitted
to see him in shackles. 2 See
Elledge v. Dugger, 823 F2d 1439, 1450-1451 (11th Cir. 1987) (sight
of shackled defendant in sentencing phase prejudicial to defendant),
modified 833 F2d 250. The record shows that Whatley wore leg
shackles during the trial, but these shackles were not visible to
the jury when he was seated at the defense table. The trial court
ensured that the jury was not present when Whatley was moved in or
out of the courtroom. However, in the penalty phase, Whatley was
called to testify. The record shows that it was the prosecutor, in a
bench conference, who voiced concerns over the jury seeing the
defendant walk to the stand wearing leg shackles. The defense
counsel replied to the prosecutor's comment, "[w]ell, he's convicted
now," and the trial court permitted Whatley to take the stand with
the jury present. " '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.]" Dennard v. State,
263 Ga. 453, 456 (6) (435
SE2d 26) (1993). This contention is without merit.
15. Whatley claims that the state's closing
argument in the penalty phase was improper. Whatley did not object
to any portion of the state's argument so he can only prevail if the
state's improper argument in reasonable probability changed the
sentencing verdict. Hicks v. State, 256 Ga.
715, 730 (23) (352 SE2d 762)
(a) Whatley asserts that the state made several
statements about the commission of the crimes that are unsupported
by the facts in the record. The record reveals that these statements
were proper inferences. See Morgan v. State,
267 Ga. 203 (1) (476 SE2d 747) (1996) (counsel on closing
argument may draw from the evidence any reasonable and legitimate
(b) Whatley complains that the prosecutor
improperly compared him, without any evidence to support the
comparison, to other murderers who had an easy time in prison. For
example, the prosecutor argued:
Remember Richard Speck, the man who around 1968
killed six nurses in Chicago? That man -- some of you may have seen
it. They had him on video. He made a video while he was in jail, it
was undercover. They found it after he died of natural causes, cause
he didn't get the death penalty. They thought he deserved another
chance. And on that film . . . he said, if people knew how much fun
I was having, they would turn me loose.
"Analogizing a defendant or a defendant's case to
[a] well-known defendant or case is permissible during argument if
the analogy is supported by facts in evidence." Carr v. State,
267 Ga. 547, 555 (7) (a) (480
SE2d 583) (1997). In this case, there was no evidentiary
basis for this analogy because no evidence was introduced about
whether Whatley enjoyed prison. Compare Mize v. State,
269 Ga. 646, 653-654 (8) (501
SE2d 219) (1998) (Charles Manson analogy appropriate to
argument that Mize was criminally responsible for murder based on
his instructions to kill and his control over the shooter). There
was also no evidence introduced about the obscure fact that Richard
Speck enjoyed prison, or to support the state's other analogies.
Therefore, the state's injection of extraneous, prejudicial
information into its argument was improper. See Bell v. State,
263 Ga. 776, 777-778 (439
SE2d 480) (1994). We find, however, that these analogies were
not so prejudicial as to overcome Whatley's procedural default.
(c) Because Whatley had been convicted of a
malice murder committed while he was an escapee from a detention
facility, it was a reasonable inference, and therefore a proper
argument, that Whatley could harm or kill a prison guard during an
escape attempt. See Pye v. State, 269 Ga. 779,
788 (19) (505 SE2d 4) (1998).
(d) Whatley cannot show sufficient prejudice to
overcome his procedural default with regard to other arguments he
asserts were improper. Hicks, supra.
16. After closing arguments in the penalty phase
but before the trial court's charge, the jury foreman asked the
trial court, "Could [life without parole] get commuted at a later
date, parole, discharge due to crowded conditions, etcetera?" The
trial court conferred with counsel for both parties. Defense counsel
told the trial court that the court's charge answers the question.
The trial court agreed and instructed the jury, "I cannot
specifically answer that question because I don't know and nobody
else knows what is going to occur in the future. Let me invite your
attention to my charge of law." Whatley did not object to this
response, but he now complains that the trial court failed to
properly answer the jury's question about parole eligibility. It is
well settled that a party cannot ignore an error at trial, take his
chance on a favorable verdict, and later complain about the error on
appeal. Dennard, 263 Ga. at 456 (6). A party also cannot complain
about an alleged injustice that it invited. See Barnes, 269 Ga. at
356 (19). We find no error.
17. One of the statutory aggravating
circumstances found by the jury is invalid. The state sought the
death penalty for armed robbery and the jury found that "[t]he
offense of . . . armed robbery . . . was committed while the [defendant]
was engaged in the commission of another capital felony," to-wit:
murder. OCGA 17-10-30 (b) (2). A death
sentence cannot be imposed for armed robbery so this statutory
aggravating circumstance must be vacated. See Jarrell, 234 Ga. at
424-425 (11). However, reversal of the death sentence is not
required because the death sentence is based on other valid
statutory aggravating circumstances. Jenkins v. State,
269 Ga. 282, 294 (23) (a) (498
SE2d 502) (1998); Wilson v. State, 250
Ga. 630, 638 (9) (300 SE2d 640)
18. The death sentence in this case was not
imposed under the influence of passion, prejudice, or other
arbitrary factor. OCGA 17-10-35 (c)
(1). The death sentence is also not excessive or disproportionate to
the penalty imposed in similar cases, considering both the crime and
the defendant. OCGA 17-10-35 (c) (3).
The cases listed in the Appendix support the imposition of the death
penalty in this case as they involve a deliberate murder during the
commission of an armed robbery, or a murder committed by an escapee.
THOMPSON, Justice, concurring specially.
I fully concur with all that is said by the
majority, except for its reasoning in Division 9.
Because Whatley failed to object to any portion
of the State's closing argument in the guilt-innocence phase, I
conclude that he has waived his right to assert error on appeal as
to that phase of the trial. See Miller v. State,
267 Ga. 92 (2) (475 SE2d 610) (1996) (failure
to timely object to improper closing argument precludes review of
the argument on appeal). But, with regard to possible error in the
state's closing argument that may affect the death sentence, a
different standard applies: when no timely objection is interposed,
the test for reversible error is if " 'there was a reasonable
probability that the improper arguments changed the jury's exercise
of discretion in choosing between life imprisonment or death.' "
Hicks v. State, 256 Ga. 715, 730 (23)
(352 SE2d 762) (1987), quoting Ford v.
State, 255 Ga. 81, 94 (8) (I) (2) (335
SE2d 567) (1985). The "reasonable probability" standard is
used by this Court to evaluate improper closing argument that was
not objected to at trial because we have a duty under OCGA
17-10-35 (c) (1) to ensure that a
sentence of death is not imposed under the influence of passion,
prejudice, or any other arbitrary factor. See Hicks, supra; Spivey
v. State, 253 Ga. 187, 191 (4) (319
SE2d 420) (1984). Therefore, I find that the "reasonable
probability" standard only applies to the effect an uncontested
improper argument may have had on a resulting death sentence. See id.
Thus, I must conclude that our previous death penalty cases which
used the incorrect standard in the guilt-innocence phase were
decided incorrectly to the extent that they utilized the "reasonable
probability" standard, instead of waiver, to evaluate uncontested
closing argument as it affects a defendant's convictions. See, e.g.,
Mize v. State, 269 Ga. 646, 653 (8) (501
SE2d 219) (1998); Barnes v. State, 269
Ga. 345, 356 (23) (496 SE2d 674)
(1998); Sears v. State, 268 Ga. 759,
765 (15) (493 SE2d 180) (1997); Bishop
v. State, 268 Ga. 286, 294 (14) (486
SE2d 887) (1997); Carr v. State, 267
Ga. 547, 555 (7) (480 SE2d 583)
(1997); Bright v. State, 265 Ga. 265,
285 (19) (455 SE2d 37) (1995); Hittson
v. State, 264 Ga. 682, 689 (13) (449
SE2d 586) (1994); Todd v. State, 261
Ga. 766, 767 (2) (a) (410 SE2d 725)
Applying the "reasonable probability" standard in
this case to the effect that the state's guilt-innocence phase
closing argument may have had on Whatley's death sentence, I would
find no error sufficient to overcome Whatley's procedural default.
I am authorized to state that Justice Hunstein
and Justice Carley join in this special concurrence.
William T. McBroom III, District Attorney, Daniel
A. Hiatt, Richard A. Vandiver, Assistant District Attorneys,
Thurbert E. Baker, Attorney General, Christopher L. Phillips,
Assistant Attorney General, for appellee.
crimes were committed on January 26, 1995. On June 4, 1996, the
grand jury indicted Whatley for malice murder, felony murder,
aggravated assault (two counts), armed robbery, motor vehicle
hijacking, possession of a firearm during the commission of a
crime, and possession of a firearm by a convicted felon. The
state filed a notice of intent to seek the death penalty on July
3, 1996. The state nolle prossed the charge of possession of a
firearm by a convicted felon. Whatley's trial took place from
January 6-16, 1997, and the jury acquitted him of felony murder
and convicted him of all remaining counts. On January 16, 1997,
the jury recommended death sentences for the murder and armed
robbery, and the trial court sentenced Whatley to death for
murder, life imprisonment for armed robbery, twenty years for
each aggravated assault, twenty years for motor vehicle
hijacking, and five years for possession of a firearm during the
commission of a crime, all sentences to be served consecutively.
Whatley filed a motion for new trial on February 3, 1997,
amended on April 23, 1998, which the trial court denied on April
23, 1998. The case was docketed on May 11, 1998, and Whatley
filed his notice of appeal the following day. Oral argument took
place on July 20, 1998.
2 Whatley does
not complain that he was placed in shackles, only that the jury was
permitted to see him that way.
Johnny B. Mostiler, for appellant.
DECIDED DECEMBER 4, 1998.
Frederick Ramone Whatley