Leonard M. Drane was convicted of malice murder, felony murder and aggravated battery in connection with the death of Renee Blackmon. The jury recommended the death penalty for malice murder, finding that the murder had been committed during the course of an aggravated battery, OCGA 17-10-30 (b) (2), and that it was wantonly vile, horrible or inhuman in that it involved depravity of mind and an aggravated battery to the victim, OCGA 17-10-30 (b) (7). The trial court imposed the death sentence. 1

Drane raises a number of enumerations of error, including the exclusion, in the guilt-innocence phase of the trial, of his co-indictee's alleged confession. We remand to the trial court for a hearing to determine: (1) whether the prosecutor's peremptory strikes were gender-neutral and (2) whether there are exceptional facts and circumstances in this case so that the exclusion of the alleged confession deprived Drane of due process. We affirm the trial court regarding Drane's remaining enumerations of error.

Drane and his co-indictee, David Robert Willis, were roommates. On the evening of the murder, they went to a liquor store in Willis's truck. Outside the store, they met Renee Blackmon, who asked them for crack cocaine and then agreed to ride in the truck and drink with the two men. Willis drove the truck to a spot near a lake, where he had sex with the victim in the truck while Drane stood in front of the truck.

Willis and the victim then walked together to the back of the truck, where Willis shot the victim in the head. The bullet blew off part of the victim's skull and detached her brain. Thereafter, the victim's throat was slashed at least six times. There is contradictory evidence whether Drane or Willis slashed her throat and whether she was still breathing at the time.

After the murder, Drane assisted Willis in concealing the evidence and in disposing of the body. Drane continued to live with Willis for a few weeks until the two were arrested.

1. Construing the evidence in the light most favorable to the verdict, a rational trier of fact could have found Drane guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The parties agree that this case must be remanded to the trial court for a hearing to determine whether the prosecutor's reasons for using peremptory challenges to strike female jurors were gender-neutral. Of the 39 prospective jurors on the panel, 22 were women. The state used all its peremptory challenges to strike female jurors. Prior to the jury being sworn, Drane raised a challenge under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), contending that the prosecutor's strikes were gender-biased. The state responded that Batson did not apply to gender, and the trial court denied Drane's challenge. J. E. B. v. Alabama, ---- U. S. ---- (114 SC 1419, 128 LE2d 89) (1994), in which the U. S. Supreme Court held that the equal protection clause of the United States Constitution prohibits discrimination in jury selection on the basis of gender, had not been decided at the time of Drane's trial in September 1992. Because

Drane raised his objection at trial, J. E. B. v. Alabama requires a hearing in accordance with Batson, to permit the state to explain its use of the peremptory challenges and to allow the trial court to make findings under Batson v. Kentucky. See Smith v. State, 263 Ga. 224, 227 (430 SE2d 579) (1993). If the trial court determines that the prosecutor's use of peremptory strikes was not gender-biased, then Drane shall be entitled to file a renewed appeal on this issue.

3. We also remand this case to the trial court because it is unclear from our review of the record whether, in excluding from the guilt-innocence phase 2 testimony of the alleged confession by Willis, Drane's co-indictee, the trial court adequately considered the elements of reliability and necessity which would require admission of that evidence under Chambers v. Mississippi, 410 U. S. 284, 302 (93 SC 1038, 35 LE2d 297) (1973) (failure to admit evidence of another's confession, offered during guilt-innocence phase of trial, constituted a violation of due process). See also Green v. Georgia, 442 U. S. 95 (99 SC 2150, 60 LE2d 738) (1979) (failure to admit co-indictee's confession offered at punishment phase of trial violated due process because testimony was highly relevant to a critical issue in punishment phase and substantial reasons existed to assume its reliability). While this type of evidence is generally inadmissible, see Guess v. State, 262 Ga. 487, 488 (422 SE2d 178) (1992), it may, nevertheless, be admitted in exceptional circumstances under Chambers and Green when it is both reliable and necessary. Accordingly, on remand, Drane must demonstrate, and the trial court is directed to fully consider, following the analysis in Chambers and Green, the reliability and necessity of this evidence at the guilt-innocence phase. 3

4. Drane contends the trial court erred in charging the law of conspiracy, claiming there was no evidence to support it. A person commits conspiracy "when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy." OCGA 16-4-8. The essence of conspiracy under OCGA 16-4-8 is an agreement, and that agreement (unlike its meaning in contract law) may be a mere tacit understanding. Kurtz, Criminal Offenses and Defenses in Georgia (3rd ed.) at 91-92 (1991). Here, there was evidence that Drane and Willis lived together and picked up the victim together, that both men concealed the evidence and disposed of the body, and that Drane was living with Willis three weeks after the crime when Drane was arrested. There was also evidence that Drane bragged about having had sexual intercourse with the victim and that Drane said he had cut the victim's throat. This evidence, though slight, is sufficient to support an inference that Drane and Willis had a tacit understanding to murder the victim. See Jones v. State, 242 Ga. 893 (252 SE2d 394) (1979). See also OCGA 16-2-6 (the factfinder may find criminal intention "upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted."). 4

5. There was no error in the admission of testimony regarding statements Drane made to an examiner prior to commencement of an unstipulated polygraph examination. Before making the statements, Drane had been read his Miranda warning and had signed a waiver of rights form. The trial court ordered that there could be no comment referring to the polygraph examination, and Drane does not complain of any. In Stack v. State, 234 Ga. 19, 25 (214 SE2d 514) (1975), overruled on other grounds in State v. Chambers, 240 Ga. 76 (239 SE2d 324) (1977), we noted that admissions which are otherwise competent and admissible are not to be excluded simply because the admissions were made after the taking of a lie detector test. 5 The same rule applies to admissions made before commencement of the test. Williams v. State, 144 Ga. App. 130, 135 (240 SE2d 890) (1977).

6. The trial court did not err in denying Drane's request to charge that one who is guilty only of concealing evidence after a crime is not a party to the crime. The court's other charges conveyed to the jury that, unless it found Drane either to have inflicted the mortal wound or to have participated in the felonious design, it should find Drane not guilty.

7. Drane argues the trial court erred in failing to grant his motion for directed verdict on the issue of the death penalty because there is no evidence supporting any aggravating circumstance under OCGA 17-10-30. The jury found as aggravating circumstances that the offense of murder was committed during commission of an aggravated battery, OCGA 17-10-30 (b) (2), and that the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved depravity or an aggravated battery to the victim, OCGA 17-10-30 (b) (7). Drane argues that there is no evidence to support the contention that the cutting of the victim's throat, the aggravating battery, occurred during life.

Post-mortem mutilation of a body may show depravity of mind. Conklin v. State, 254 Ga. 558, 565 (331 SE2d 532), cert. denied, 474 U. S. 1038 (106 SC 606, 88 LE2d 584) (1985); Hance v. State, 245 Ga. 856, 862 (268 SE2d 339) (1980), cert. denied, 449 U. S. 1067 (101 SC 796, 66 LE2d 611) (1980). We find no merit to Drane's contention that the court erred in failing to define "malice" for the jury. Therefore, the evidence supported a finding of depravity as an aggravating circumstance under OCGA 17-10-30 (b) (7).

Furthermore, although the state concedes that the medical examiner's testimony was inconclusive as to whether the victim was alive when her throat was cut, and although it was clear from the medical examiner's testimony that the victim could not have survived the gunshot wound more than momentarily, Drane's own statements indicated that the victim was gasping when her throat was cut. While it is unclear whether the gasping was an indication of life, it does constitute some evidence of an aggravated battery sufficient to support a finding of aggravating circumstances under OCGA 17-10-30 (b) (2) and (b) (7).

Since the evidence supports the statutory aggravating circumstances found by the jury, OCGA 17-10-30 (b) (2) and (b) (7), if a retrial becomes necessary, the state may again seek a death sentence. Moore v. State, 263 Ga. 11, 14 (9) (427 SE2d 766) (1993).

8. There is no merit to the contention that the trial court's sentencing phase instructions, reviewed in context, ordered the jury to find the statutory aggravating circumstances beyond a reasonable doubt, removing the state's burden of proof.

9. The trial court did not err in failing to merge the conviction for aggravated battery with the conviction for malice murder. The victim's throat was slashed at least six times. A rational trier of fact could have found Drane guilty of aggravated battery independent of the act causing the victim's death. See Montes v. State, 262 Ga. 473 (421 SE2d 710) (1992).

10. The trial court did not err in admitting photographs depicting the victim's decomposed body. Photographs relevant to the location of the body and the nature and location of wounds are admissible where alterations to the body are due to the combined forces of the murderer and the elements. Leggett v. State, 256 Ga. 274, 275 (347 SE2d 580) (1986). The court likewise did not err in admitting post-autopsy photographs in which the victim's skull had been reconstructed. Reconstruction was necessary in order to demonstrate to the jury where the bullet had entered and exited. There was no alteration to the wounds. The photographs were relevant to testimony regarding the murder weapon and to show the cause and manner of the victim's death. See Brown v. State, 250 Ga. 862, 867 (302 SE2d 347) (1983). The photographs were not unduly duplicative.

11. The trial court did not err in admitting a photograph of the victim while in life. The photograph was tendered for the purpose of identifying the victim as the person who got into the truck with Drane and Willis the night of the murder.

12. The trial court likewise did not err in admitting photographs of the appellant taken in police custody. Drane's appearance had changed from the time of the crime to the time of trial, making it difficult for witnesses to identify him in the courtroom. See O'Toole v. State, 258 Ga. 614, 616 (373 SE2d 12) (1988).

13. We find no merit to Drane's contention that the trial court erred in refusing to allow the defense to question a potential juror during voir dire about her understanding of the meaning of a life sentence.

HUNSTEIN, Justice, dissenting.

While I concur with the majority that a remand is the proper remedy for consideration of Drane's challenge to the use of peremptory strikes pursuant to J. E. B. v. Alabama, ---- U. S. ---- (114 SC 1419, 128 LE2d 89) (1994), I respectfully dissent to the majority's holding that a remand is also required for the trial court to further analyze whether testimony by Guthrie regarding the cellblock statement of Drane's co-indictee, Willis, should be excluded from the guilt-innocence phase of this case.

The trial court excluded evidence that during the time Willis was confined in prison Willis informed Guthrie at some unspecified period of time after the crime occurred that he shot the victim and slit her throat. The record reveals that the trial court excluded this testimony on hearsay grounds, not by some "mechanistic" application of the evidentiary rule, as condemned in Chambers v. Mississippi, 410 U. S. 284 (93 SC 1038, 35 LE2d 297) (1973) and Green v. Georgia, 442 U. S. 95 (99 SC 2150, 60 LE2d 738) (1979), but rather on the basis that the evidence proffered by appellant fell woefully short of the reliability demonstrated by the statements in issue in Chambers and Green.

In Chambers and Green the United States Supreme Court recognized that under the Constitution, evidence that is highly relevant to a critical issue in either the guilt-innocence phase or the penalty phase but which is generally inadmissible under an evidentiary rule must not automatically be excluded if tendered in a capital case. Rather, the Supreme Court in these cases adopted a balancing approach to the admission of such evidence, in which the value of the tendered evidence "must be weighed against the harm resulting from the violation of the evidentiary rule. [Cit.]" 6 Collier v. State, 244 Ga. 553, 567 (9) (261 SE2d 364) (1979), overruled on other grounds, Thompson v. State, 263 Ga. 23 (2) (426 SE2d 895) (1993).

In Chambers, the testimony was deemed trustworthy because the three spontaneous confessions were made to close friends shortly following the murder, each confession was corroborated by other evidence in the case, the alleged perpetrator had been observed with the murder weapon, and the declarant was present in the courtroom and available for cross-examination. Similarly in Green in introducing mitigating evidence it was shown that the statement was made spontaneously to a "close friend," there was ample evidence corroborating the confession and the statement was against interest. Furthermore, in Green the confession had previously been used by the state in its prosecution of the declarant.

Both Chambers and Green involve circumstances providing considerable assurances of the reliability of the evidence. No further evidence is required here to support the conclusion drawn by the trial court because Drane cannot establish a similarly compelling case. Willis' statement was made to a mere cellmate, not a close acquaIntance. It was not shown to be close in time to the murder and it contained a factual inaccuracy. Moreover, the statement cannot be said to be unquestioningly against interest in that Guthrie acknowledged that inmates often exaggerate their crimes as a form of protection from other inmates. Finally, although it is not determinative of the issue, the record reflects that Willis was not present in the courtroom and available for cross-examination had it been necessary to question him about the veracity of the statement. 7

Contrary to the majority's conclusion, the trial court fully considered the proffer of Guthrie's testimony before excluding it and no further findings are either needed or required to support the trial court's ruling. 8 Furthermore, that the proffered testimony would have had no bearing on the outcome of the guilt-innocence phase of the trial is amply demonstrated by the fact that Guthrie's testimony, presented at the sentencing phase of the trial, had no mitigating effect on the jury's verdict. Accordingly, I would affirm the trial court's exclusion of this testimony from the guilt-innocence phase of the case.

I am authorized to state that Justice Carley and Justice Thompson join in this dissent.

1  The crimes occurred on June 13, 1990. Drane was indicted on November 19, 1990. On July 9, 1991, the state filed its notice of intent to seek the death penalty. Drane's trial began on September 14, 1992, and on September 25, 1992, the jury returned its verdict finding Drane guilty of the crimes charged. The jury returned its recommendation of the death sentence, and the trial court imposed that sentence, as well as 20 years imprisonment for aggra-

2  This evidence was admitted, without objection, at the sentencing phase. However, we note that the Chambers-Green exception to the general rule against admission of this evidence is not limited to the punishment phase. See Chambers, 410 U. S. at 302.

3  While Chambers and Green offer examples of trustworthiness, the trial court's consideration is not limited to them. In this case, the extent of the state's own reliance on Guthrie's testimony, if shown, may relate to the first prong, just as Drane's explanation, if any, for not calling Willis to the stand may relate to the second. See Higgs v. State, 256 Ga. 606, 608 (3, 4) (351 SE2d 448) (1987).

4  Although we find no error in the trial court's charge on conspiracy, we note that the state did not in fact seek to prove Drane's guilt as a conspirator, but, rather, proceeded against Drane as a party to the crime of murder with Willis. A brief analysis of the nature of the parties to a crime statute, OCGA 16-2-20, as it relates to conspiracy, OCGA 16-4-8, demonstrates that even had the trial court erred in charging conspiracy in this case, that error is harmless.The evidence was certainly sufficient, and Drane does not argue to the contrary, to support a charge on parties to a crime, in particular OCGA 16-2-20 (b) (1) (directly committing the crime) and 16-2-20 (b) (3) (aiding or abetting in the commission of the crime). While the language of OCGA 16-2-20 appears all inclusive of theories of criminal liability, it has been noted that conspiracy, which predates OCGA 16-2-20, is a separate theory on which the state may proceed. Kurtz, supra at 427-428; Scott v. State, 229 Ga. 541, 543-544 (1) (192 SE2d 367) (1972). The main reason for the state to proceed against the defendant under a conspiracy, over a party to crime, theory is that by using a conspiracy theory, the state may take advantage of the conspiracy exception to the hearsay rule, OCGA 24-3-5 (allowing statements of conspirators in the course of the conspiracy to be used against any one of the conspirators). Here, the state did not attempt to use Willis's statements as a co-conspirator against Drane under the conspiracy hearsay exception. Accordingly, even had there been error in the trial court's charge on conspiracy, that error, in this case, would be harmless.We find no merit to Drane's contention that the trial court erred in refusing to give his charge on conspiracy as a lesser included offense. Any error in this regard would be harmless as it is undisputed that the crime of murder was actually committed so that conspiracy would, in any case, be merged with murder. See Crosby v. State, 232 Ga. 599, 600 (3) (207 SE2d 515) (1974). Nor do we find merit to Drane's contention that the trial court overemphasized conspiracy to the jury in its recharge. The trial court's recharge was proper, and there is no indication that the recharge could have left an erroneous impression on the jury.

5  To the extent that Johnson v. State, 208 Ga. App. 87, 88 (429 SE2d 690) (1993), cert.

6  This balancing test must be applied consistent with this Court's policy against placing unnecessary restrictions on mitigating evidence offered during the sentencing phase. Romine v. State, 251 Ga. 208, 217 (305 SE2d 93) (1983).

7  I disagree that the State's use of Guthrie's statement against Willis in Willis' trial can serve as an indicia of reliability in Drane's trial. Drane was tried over a year before Willis was convicted in October 1993. Research has revealed no authority, and the majority has cited none, wherein post-trial developments justify disturbing a trial court's evidentiary ruling under circumstances like those present here. Trial courts do not have the advantage of this Court's hindsight when issuing evidentiary rulings.

8  This is especially apparent inasmuch as the record reflects that Willis had been tried and convicted at the time the trial court ruled on Drane's motion for new trial.

A jury convicted Leonard M. Drane of malice murder, felony murder, and aggravated battery, and imposed a death sentence for the malice murder.

The evidence adduced at trial showed that Drane and co-indictee David Willis picked up Renee Blackmon on June 13, 1990, and drove her to a secluded road. Ms. Blackmon's body was found in a lake on July 1, 1990. She had been shot point-blank in the head with a shotgun and her throat had been cut at least six times. She was tied to a brake drum with a rope.

Alter his arrest, Drane claimed that Willis had sex with the victim and shot her with a shotgun, and then cut her throat because she was still breathing. Drane said he did not know Willis was going to kill the victim and he did not participate in her killing. However, he admitted helping Willis dispose of the body, hide the gun, wash Willis's truck, and burn their clothes; and that he continued to live with Willis for three weeks until their arrest. He claimed he did so because he was afraid of Willis.

At trial, a witness testified that Drane told her prior to his arrest that he and Willis "picked this [black] girl up at the Huddle House in Elberton, Georgia, and that it would be the last ride she'd ever take." 1

He further said he "[had sex with] her so bad that she'd never have any more babies" and that he and Willis threw her in the lake. He said the only mistake he made was to put one block on her instead of two (the body had just been discovered). Another witness testified that Drane told him he cut the victim's throat because she was still alive after Willis shot her.

On the night of the murder, after Willis and Drane had disposed of the victim's body, they went to a bar and met some women. They went with the women to a trailer, where they drank beer and made comments about hating blacks. One of the women noticed that the men, who were not wearing shirts, had scratches on their chests. In the penalty phase, one of the women testified that Drane forced her to orally sodomize him at knife point that same night.

In Drane v. State, 265 Ga. 255 (455 SE2d 27) (1995), we held that the evidence was sufficient to support Drane's convictions and the finding of the existence of the statutory aggravating circumstances, id. at (1) and (7), but we remanded the case to the trial court to determine: (1) whether the prosecutor's peremptory strikes were gender-neutral and (2) whether there were exceptional facts and circumstances so that the exclusion of Willis's alleged confession to a cellmate deprived Drane of due process. Id. at 256. Because the results of the proceedings on remand call for further appellate review, we now address these issues and other remaining enumerations of error.

1. At Drane's 1992 trial, the state used nine out of nine peremptory strikes to remove female prospective jurors from the jury. The jury was selected from 39 prospective jurors, 22 of which were women. 2 Eight females were members of the jury which convicted Drane and sentenced him to death. Pursuant to Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), defendant made a motion based on the state's alleged gender bias in the use of its peremptory strikes. The state responded that Batson did not apply to gender. The trial court denied the motion. While Drane's appeal was pending, the United States Supreme Court decided J.E.B. v. Alabama, 511 U. S. 127 (114 SC 1419, 128 LE2d 89) (1994), which held that the equal protection clause of the United States Constitution prohibits discrimination in jury selection on the basis of gender. Drane, 265 Ga. at 256 (2). Accordingly, we remanded this issue to the trial court for a hearing regarding the state's explanation of its peremptory strikes, and for a finding from the trial court as to whether the state's strikes were gender-neutral. Id.

"Once a party challenging the exercise of a peremptory strike makes a prima facie showing of gender-based discrimination, the party exercising the strike must give an explanation for the strike that is gender-neutral, reasonably specific, and related to the case." Tedder v. State, 265 Ga. 900 (2) (463 SE2d 697) (1995). 3"It is then for the trial court to determine, after considering the totality of the circumstances, whether the opponent of the strike has shown that the proponent of the strike was motivated by discriminatory intent in the exercise of the peremptory challenge." Turner v. State, 267 Ga. 149 (2) (476 SE2d 252) (1996). "A trial court's findings on whether the opponent of the strike has met his burden of persuasion is entitled to great deference and will be affirmed unless clearly erroneous." Barnes v. State, 269 Ga. 345 (6) (496 SE2d 674) (1998); Turner, supra.

On remand, the trial court found that the state had not discriminated on the basis of gender in its peremptory challenges after hearing the prosecutor's reasons for his strikes. Five prospective jurors were struck because they expressed reservations about imposing a death sentence and two prospective jurors had relatives who had been convicted of crimes and incarcerated. These are valid gender-neutral reasons which are adequate to justify a peremptory strike. See Barnes, supra; Davis v. State, 263 Ga. 5 (10) (426 SE2d 844) (1993); Tharpe v. State, 262 Ga. 110 (6) (416 SE2d 78) (1992).

Another prospective juror stated that she believed reasonable doubt meant no doubt and that vulgar language from witnesses would bother her. Since these reasons are also gender-neutral and no discriminatory intent is inherent in the state's explanation of the strike, we do not conclude that the trial court's acceptance of these reasons was clearly erroneous. See Barnes, supra. The state claims that the final prospective juror it struck was "not clear as to what reasonable doubt really was" and was "timid and quiet" during jury selection.

The trial court did not err by accepting the state's first reason because the record provides support for it and there is no discriminatory intent inherent in the explanation. Id. Support for the state's second reason is not readily apparent in the record, but considering the totality of the circumstances, including the final composition of the jury and the existence of other valid gender-neutral reasons for this strike and other strikes by the state, we cannot conclude that the trial court's acceptance of this reason was clearly erroneous. Id. We find no error with the trial court's J.E.B. ruling.

2. During the guilt-innocence phase of the trial, Drane tried to introduce evidence that his co-indictee, Willis, confessed his role in the murder to cellmate Marcus Guthrie. The state objected on hearsay grounds. During a proffer outside the presence of the jury, Guthrie testified that Willis told him he shot Ms. Blackmon and cut her throat. 4 Willis was unavailable to testify because his murder trial was pending. The trial court ruled the testimony inadmissible in the guilt-innocence phase because it was hearsay and unreliable, but Guthrie was permitted to testify about the alleged confession in the penalty phase. On appeal, we remanded the case to the trial court because it was unclear from the record whether the trial court adequately considered the elements of reliability and necessity which would require admission of this evidence in the guilt-innocence phase under Chambers v. Mississippi, 410 U. S. 284 (93 SC 1038, 35 LE2d 297) (1973) (failure to admit evidence of another's confession, offered in the guilt-innocence phase of trial, may constitute a violation of due process under certain circumstances). Drane, 265 Ga. at 257 (3). See also Turner, 267 Ga. at 153-154 (3). On remand, the trial court ruled that Guthrie's testimony, while "necessary" to the defense, was properly excluded in the guilt-innocence phase because Willis's statement to Guthrie "does not show persuasive assurances of trustworthiness nor was the statement made under circumstances providing considerable assurance of its reliability." We agree with the trial court.

Evidence of a co-indictee's alleged confession is generally inadmissible hearsay. Drane, supra; Guess v. State, 262 Ga. 487 (2) (422 SE2d 178) (1992). However, another person's confession to a third party may be admitted in the guilt-innocence phase under exceptional circumstances that show a considerable guaranty of the hearsay declarant's trustworthiness. Chambers, supra at 300-302; Drane, supra. The trial court must determine whether the value and reliability of the tendered hearsay evidence outweigh the harm resulting from a violation of the evidentiary rule. See Chambers, supra at 302; Turner, 267 Ga. at 154-155 (3).

In Chambers, the hearsay testimony was deemed trustworthy and admissible because the declarant (alleged to be the perpetrator by Chambers) made three spontaneous confessions to close friends shortly after the murder, the confessions were against the declarant's interest, each confession was corroborated by other evidence (including eyewitness testimony to the shooting, a sworn confession by the declarant that was admitted at trial, and evidence that the alleged perpetrator had been seen with the murder weapon), and the declarant was present in the courtroom and available for cross-examination. In a later case, the United States Supreme Court held that the same balancing test must be employed in the sentencing phase for this type of evidence and listed an additional consideration of whether the declarant's alleged confession had been used by the state against the declarant at his trial. Green v. Georgia, 442 U. S. 95 (99 SC 2150, 60 LE2d 738) (1979).

On remand, the trial court applied the Chambers/ Green analysis to Guthrie's proposed guilt-innocence phase testimony and found the following: (1) Willis was not a close friend of Guthrie, but a mere cellmate. When asked if he was Willis's friend, Guthrie replied, "Well, we talked occasionally, you know." (2) Guthrie admitted that inmates frequently exaggerate their crimes to appear tougher to their fellow inmates, which indicates that Willis had a motive to fabricate his statement at the time it was made. (3) Willis told Guthrie that the victim was a "white girl" when she was African-American. (4) Although there were some consistencies between Guthrie's testimony and the facts of the crimes, there was no independent evidence corroborating Willis's alleged claim that he did all of the shooting and slashing. (5) The state used Willis's alleged confession to Guthrie as evidence to convict Willis in a trial a year after Drane's trial. (6)

Since Willis had not been tried at the time of Drane's trial, he was unavailable to testify on the advice of counsel. The trial court ruled that the alleged confession was properly excluded due to its lack of reliability and, after review of the record, we conclude that this ruling was not error. See Chambers, supra; Green, supra at 97. In addition, we note that the jury apparently did not attach much credibility to Willis's alleged confession to Guthrie because it was admitted in the penalty phase and they nonetheless chose to sentence Drane to death. 5

3. Drane also claims that Willis's alleged confession to Guthrie was admissible under the OCGA 24-3-5 co-conspirator exception to the hearsay rule, but acknowledges in his brief that he did not raise this issue during the trial or on his initial direct appeal because "it was Appellant's contention that a conspiracy had not been proved at trial." Since this objection was not made at trial (in fact, the objection was deliberately avoided), it is waived on appeal. Earnest v. State, 262 Ga. 494 (1) (422 SE2d 188) (1992).

4. Before an audiotape of one of Drane's statements was played for the jury, Drane requested an in-chambers conference with the judge and prosecutor regarding a redaction made to the audiotape at Drane's request. Drane and his counsel attended, but the conference was not recorded by the court reporter. When the judge and other attendees returned to the courtroom, Drane's counsel placed an objection regarding the redaction on the record, and the trial court overruled it. After this case was remanded, Drane now claims that the trial transcript omits several other objections he made at the conference which were not ruled on by the trial court. See OCGA 5-6-41 (a); 17-8-5 (a); Unified Appeal Procedure Rule IV (A) (4).

However, Drane's counsel testified at a hearing that he remembered no additional objections being made at the conference and that he ensured every objection he made was preserved on the record. Since Drane's objection at the in-chambers conference was preserved for appeal and there is no evidence to support Drane's contention that other objections were not recorded, we find no error. See Smith v. State, 251 Ga. 229 (2) (304 SE2d 716) (1983).

After review of the record, we also conclude that even if the alleged objections to the edited audiotape were made, they are without merit. The trial court redacted the portion of Drane's statement referring to a fight he had with African-American inmates while previously incarcerated. Other comments he made about African-Americans in his statement were relevant to show a possible motive for his actions. See Mize v. State, 269 Ga. 646 (3) (501 SE2d 219) (1998); Boutwell v. State, 256 Ga. 63 (2) (344 SE2d 222) (1986).

5. The trial court's curative instructions adequately prevented error from arising due to a spectator's emotional outburst during the state's guilt-innocence phase closing argument. See Lowe v. State, 267 Ga. 410 (3) (478 SE2d 762) (1996); Byrd v. State, 262 Ga. 426 (1) (420 SE2d 748) (1992).

6. While asking the jury whether they wished to hear the court's guilt-innocence phase charge before they recessed for the day, the trial court said:

[I]t is now twenty-five minutes 'til five. I have the law to charge you which is quite lengthy that you'll be governed by in your deliberations. At that time, you will proceed to the jury room to reach a decision if you can based on what you've heard and the law charged and then we'd go into the second phase of this case. . . .

After the jury retired to make its scheduling decision, Drane objected that the trial court's comments implied that there would be a conviction. The trial court issued curative instructions to the jury when they returned to the courtroom, telling them the court did not intend to imply any verdict and if the defendant was acquitted there would be no second phase of the trial. Drane did not object to these instructions, request further instructions, or move for a mistrial. Therefore, this issue has not been preserved for appellate review. Pye v. State, 269 Ga. 779 (9) (505 SE2d 4) (1998); Weems v. State, 268 Ga. 515 (2) (491 SE2d 325) (1997).

7. 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). This Court has previously found that Drane's death sentence is not disproportionate to the life sentence Willis received for the same murder. Drane, 265 Ga. at 260 (14). 6 See also Waldrip v. State, 267 Ga. 739 (25) (482 SE2d 299) (1997) ("That different juries hearing different evidence might arrive at different punishment [for co-defendants] does not establish a claim of disproportionality."); Carr v. State, 267 Ga. 547 (11) (480 SE2d 583) (1997) (defendant's death sentence not disproportionate to co-defendant's life sentence despite claim that co-defendant was the "prime mover" in the murder); Lee v. State, 258 Ga. 82 (10) (365 SE2d 99) (1988) (defendant's death sentence not disproportionate to co-defendant's life sentence despite defendant's claim he was a "mere abettor" to the murder); Beck v. State, 255 Ga. 483 (6) (340 SE2d 9) (1986) (defendant's death sentence not disproportionate to co-defendant's life sentence when evidence inconclusive as to which defendant was the actual killer); Allen v. State, 253 Ga. 390 (8) (321 SE2d 710) (1984) (death sentence not disproportionate to co-defendant's life sentence); McClesky v. State, 245 Ga. 108, 115 (263 SE2d 146) (1980) ("There is not a simplistic rule that a co-defendant may not be sentenced to death when another co-defendant receives a lesser sentence."). Compare Hall v. State, 241 Ga. 252 (8) (244 SE2d 833) (1978). The state presented evidence that Drane cut the victim's throat while she was still breathing, helped dump her body and destroy evidence, and made disparaging remarks about the victim after her murder. There was also penalty phase evidence that Drane sexually assaulted another woman on the same night as the murder. See id. The death sentence is also not disproportionate to the penalty imposed in similar cases, considering both the crime 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 they involve aggravated batteries under the (b) (2) and (b) (7) aggravating circumstances.

SEARS, Justice, concurring in part and dissenting in part.

I concur in the majority's affirmance of appellant's adjudication of guilt. However, for the reasons explained in my partial concurrence and partial dissent in Wilson v. State, 7I would stay ruling on the constitutionality of appellant's sentence of death by electrocution until receiving guidance from the United States Supreme Court on that issue. 8

APPENDIX.

Johnson v. State, 271 Ga. 375 (519 SE2d 221) (1999); Lee v. State, 270 Ga. 798 (514 SE2d 1) (1999); Perkins v. State, 269 Ga. 791 (505 SE2d 16) (1998); Mize v. State, 269 Ga. 646 (501 SE2d 219) (1998); Waldrip v. State, 267 Ga. 739 (482 SE2d 299) (1997); Carr v. State, 267 Ga. 547 (480 SE2d 583) (1997); Crowe v. State, 265 Ga. 582 (458 SE2d 799) (1995); Todd v. State, 261 Ga. 766 (410 SE2d 725) (1991); Taylor v. State, 261 Ga. 287 (404 SE2d 255) (1991); Wade v. State, 261 Ga. 105 (401 SE2d 701) (1991); Newland v. State, 258 Ga. 172 (366 SE2d 689) (1988); Jefferson v. State, 256 Ga. 821 (353 SE2d 468) (1987); Hicks v. State, 256 Ga. 715 (352 SE2d 762) (1987); Conner v. State, 251 Ga. 113 (303 SE2d 266) (1983); Krier v. State, 249 Ga. 80 (287 SE2d 531) (1982).

Daniel J. Craig, District Attorney, Thurbert E. Baker, Attorney General, Allison B. Goldberg, Assistant Attorney General, for appellee.

1  The victim was African-American and Willis and Drane are white. There was evidence of a racial motive for the murder.

2  There was a full array of 42 prospective jurors, but the state did not use one of its peremptory strikes and Drane did not use two of his.

3  The trial court made no finding as to prima facie discrimination, but this preliminary finding is moot once the proponent gives reasons for its strikes and the trial court makes its findings. Hernandez v. New York, 500 U. S. 352, 359 (111 SC 1859, 114 LE2d 395) (1991); Barnes v. State, 269 Ga. 345 (6) (496 SE2d 674) (1998).

4  Guthrie also testified in the penalty phase that Willis said he would have killed Drane if he wouldn't go through with what he wanted to do," but Guthrie admitted that Willis never said he made Drane do anything.

5  The record on remand contains a transcript of Guthrie's testimony at Willis's trial. Although not specifically referred to by the trial court in its order, we note that this testimony further shows that Guthrie was Willis's cellmate in jail for only a week and that Guthrie did not approach law enforcement with Willis's alleged confession to him until months later when Guthrie was incarcerated with fellow inmate Leonard Drane. Guthrie admitted that he had had "numerous conversations" with Drane and that in certain circumstances he would lie to help a friend.

6  The state sought a death sentence for Willis but the jury returned a sentence of life imprisonment.

7  271 Ga. 811, 824 (525 SE2d 339) (1999).

8  In all capital cases, this Court is obligated to undertake a sua sponte review of the death sentence to determine, among other things, whether the penalty is excessive. OCGA 17-10-35. "This penalty question is one of cruel and unusual punishment, and is for the court to decide" in all cases. Blake v. State, 239 Ga. 292, 297 (236 SE2d 637) (1977).