James Allyson Lee, 22, was sentenced to death in June by a Charlton County Superior Court jury. On Nov. 17, 1996, he shot his 43-year-old stepmother, Sharon Varnadore Chancey, to death.

Although Mr. Lee pleaded with the jury to spare him because he wasn't the same man who committed murder, when first questioned by police, Mr. Lee said killing was so easy it would be easy to do again.

" 'The standard for determining the admissibility of confessions is the preponderance of evidence. To determine whether the state has proven that a confession was made voluntarily, the trial court must consider the totality of the circumstances. Unless clearly erroneous, a trial court's findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal.' " [Cit.] Gober v. State, 264 Ga. 226, 228 (2) (b) (443 SE2d 616) (1994).

Lee was 19 years old, in police custody only a short time, not under the influence of drugs or alcohol, not subjected to any physical or psychological coercion, and he was informed of and waived his Miranda rights on several occasions. After Lee admitted to killing his father's girl friend and stealing the truck, a police officer asked him if he would make another statement on audiotape. Lee agreed, but when the recording began Lee asked the officer, "What should I do? Should I talk?" The officer replied, "That's up to you, man. All you're going to do is help yourself out." Contrary to Lee's assertion, the officer's comment was not a "hope of benefit" that would render Lee's statement involuntary under OCGA 24-3-50. See Gilliam v. State, 268 Ga. 690, 692 (3) (492 SE2d 185) (1997) (encouraging a suspect to tell the truth is not a "hope of benefit" under OCGA 24-3-50); Gober, supra at 228 (2) (b); Caffo v. State, 247 Ga. 751, 756-757 (3) (279 SE2d 678) (1981) (telling a suspect he would "feel better" if he confessed is not a hope of benefit" under OCGA 24-3-50). Considering the totality of the circumstances, we conclude that the trial court correctly found that Lee's incriminating statements on May 26-27, 1994, were voluntary and admissible. Gilliam, supra at 692-693 (3); Gober, supra.

3. Lee's contentions that the State failed to prove the identity of the victim or that Charlton County was the proper venue for the murder conviction are without merit. Viewed in the light most favorable to the prosecution, the evidence was clearly sufficient to support a jury finding beyond a reasonable doubt that Sharon Chancey was the murder victim, and that Ms. Chancey was still alive in Charlton County when she was fatally shot two more times. Jackson v. Virginia, supra.

4. After the State rested its case in the guilt-innocence phase, the trial court directed a verdict of acquittal on the charge of kidnapping with bodily injury because the evidence showed that the inception of the kidnapping was in Pierce County. Potts v. State, 261 Ga. 716, 720 (2) (410 SE2d 89) (1991) (venue for kidnapping with bodily injury lies within the county where the victim is seized); Krist v. State, 227 Ga. 85, 91 (4) (179 SE2d 56) (1970). The trial court, however, refused to direct a verdict of acquittal on the charge of felony murder even though the felony murder indictment specifies that kidnapping with bodily injury is the underlying felony. Lee asserts that this denial was error.

A person commits the offense of felony murder "when, in the commission of a felony, he causes the death of another human being irrespective of malice." OCGA 16-5-1 (c). "A murder may be committed in the commission of a felony, 'although it does not take place until after the felony itself has been technically completed, if the homicide is committed within the res gestae of the felony.' " Diamond v. State, 267 Ga. 249, 250 (2) (477 SE2d 562) (1996). We conclude that Lee's murder of Ms. Chancey was within the res gestae of the kidnapping with bodily injury, since Ms. Chancey was under the continuous control of the defendant until she was killed. To hold otherwise would lead to the absurdity that a defendant who commits kidnapping with bodily injury in one county, and abducts the victim to a second county where he kills her without malice aforethought, could not be charged with felony murder in either county. See OCGA 17-2-2 (c) (venue for homicide lies in county where cause of death is inflicted); Potts, supra. The trial court did not err in denying Lee's motion for a directed verdict of acquittal of felony murder. In addition, Lee can show no harm resulting from the denial of this motion. "[S]ince the jury returned a verdict specifying that it found the defendant guilty of 'malice murder,' any issue of felony murder is moot." Holiday v. State, 258 Ga. 393, 398 (12) (369 SE2d 241) (1988).

5. The evidence was sufficient to support Lee's conviction for armed robbery, despite Lee's contention that he did not take the victim's rings until after she was dead. Jackson v. Virginia, supra. It is well-settled that a defendant commits a robbery if he kills the victim first and then takes the victim's property. Francis v. State, 266 Ga. 69, 70-71 (1) (463 SE2d 859) (1995); Crowe v. State, 265 Ga. 582, 594 (21) (458 SE2d 799) (1995); Prince v. State, 257 Ga. 84, 85-86 (1) (355 SE2d 424) (1987). Moreover, as pointed out in Division 3, the evidence was sufficient to authorize the jury to find that Ms. Chancey was alive when the robbery took place.

6. Lee requested a charge in the guilt-innocence phase that a corpse is not a person. See Lawson v. State, 68 Ga. App. 830 (24 SE2d 326) (1943), overruled by McKee v. State, 73 Ga. App. 815 (38 SE2d 184) (1946). Lee wanted this instruction in order to support his contention that, if Ms. Chancey was dead when her rings were removed, there was no taking from a person, and therefore no armed robbery. Since this charge is not an accurate statement of the law, the trial court correctly declined to give it. Francis, supra at 70-71 (1); Crowe, supra at 594 (21).

The Sentencing Phase of Trial

7. While awaiting trial, Lee escaped from jail on July 25, 1995. He stole a Lincoln Town Car and drove to Florida, picking up a hitchhiker on the way. At about 5:00 a.m. on July 26, Boynton Beach Police Officer Jerry Rodriguez, a 17-year police veteran, was on routine patrol when he observed the Lincoln exiting a gravel road that led to a marina and business center. No businesses were open at that time of day in the area from which Lee was emerging and there were no residences in the vicinity. Because the vehicle was coming out of an area "where no one should be" and because he believed there had been previous burglaries in the area, Officer Rodriguez pulled behind Lee's vehicle and attempted to make an investigatory stop. However, when Officer Rodriguez turned on his emergency lights, the Lincoln "jumped and accelerated." After a pursuit of about 800 yards, the Lincoln came to a stop and Lee and the hitchhiker bailed out and fled on foot. Officer Rodriguez pursued Lee, who eventually fell to the ground. The officer approached Lee and asked, "Where is the other guy?" Lee responded, "I don't know who he is, but I'll tell you who I am; I'm wanted for murder in Georgia, my name is James Lee." Lee was arrested and subsequently gave a statement that was used by the State as non-statutory aggravating evidence in the sentencing phase. Lee asserts that the statement should have been suppressed as the fruit of an illegal investigatory stop, because Officer Rodriguez, based upon the totality of the circumstances, did not have a particularized and objective basis for suspecting that Lee was engaged in criminal activity. United States v. Cortez, 449 U. S. 411, 417-418 (II) (A) (101 SC 690, 66 LE2d 621) (1981); Terry v. Ohio, 392 U. S. 1, 21 (III) (88 SC 1868, 20 LE2d 889) (1968); Vansant v. State, 264 Ga. 319, 320 (2) (443 SE2d 474) (1994).

The evidence regarding this incident is uncontroverted and there is no question regarding the credibility of the witnesses. Therefore, "the trial court's application of the law to undisputed facts is subject to de novo appellate review." Vansant, supra at 320 (1). We conclude that the trial court properly denied Lee's motion to suppress. Officer Rodriguez is an experienced police officer. At 5:00 a.m., he observed a vehicle exiting a business area where no residences were located, at a time when no businesses were open and where he believed there had been previous burglaries. In response to the officer's emergency lights, the vehicle's occupants attempted to flee. "Flight in connection with other circumstances may be sufficient probable cause to uphold a warrantless arrest or search ([cit.]); certainly these circumstances gave rise to an articulable suspicion that a criminal act may have been occurring so as to authorize a brief investigatory stop." State v. Smalls, 203 Ga. App. 283, 286 (2) (416 SE2d 531) (1992). See also United States v. Briggman, 931 F2d 705, 708-709 (11th Cir. 1991) (investigatory stop proper when experienced police officer observed suspect parked in a parking lot in a high crime area at 4:00 a.m., when all the nearby commercial establishments were closed, and the suspect drove away from the officer in an evasive manner). Taken together, these facts are sufficient to establish at least an articulable suspicion that Lee was engaged in criminal behavior and that Officer Rodriguez was therefore justified in conducting an investigatory stop. See Cortez, supra; Terry, supra; Vansant, supra at 320 (2). The trial court did not err in allowing the admission of Lee's subsequent statement.

Richard E. Currie, District Attorney, Thurbert E. Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Christopher L. Phillips, Assistant Attorney General, for appellee.

Notes

1  The crimes occurred on May 26, 1994, and the Charlton County grand jury indicted Lee on September 2, 1994, for malice murder, felony murder, kidnapping with bodily injury, armed robbery, theft by taking, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. The State filed its notice of intent to seek the death penalty on November 2, 1994.

The trial was held May 28-June 6, 1997. At trial, the trial court directed verdicts of acquittal for kidnapping with bodily injury and theft by taking, and the State nol prossed the charge of possession of a firearm by a convicted felon. Lee was convicted of the remaining counts and, in addition to the death sentence for malice murder, the trial court imposed a life sentence for armed robbery and a consecutive five-year sentence for possession of a firearm during the commission of a felony. The felony murder conviction was vacated by operation of law, Malcolm v. State, 263 Ga. 369 (4) (434 SE2d 479) (1993). Lee filed a motion for new trial on July 3, 1997, amended on February 19, 1998, which was denied on April 15, 1998. Lee filed his notice of appeal on May 14, 1998, and the case was orally argued on September 15, 1998.