specially concurring.
I agree that the conviction must stand and that the sentence should be modified to life.
As I read the record, a jury could have found that the victim’s death was preceded by serious physical abuse. Testimony reconstructing the murder scene showed that the victim was shot, lost control of her vehicle, ran into a tree, attempted to escape her assailant, and was shot four more times inside the car. At least one time, she was shielding herself from gunfire. Any conflicting testimony presented a question of fact for the jury and their determination should not be disturbed. I cannot agree that being shot, chased down, and shot again does not constitute serious physical abuse preceding death. The evidence adequately supports the aggravating circumstance of heinous, atrocious, or cruel.
However, I must concur in results, since the prosecutor did engage in improper closing argument during the second stage by injecting his personal opinion as to the propriety of the death sentence. Specifically, he stated:
“Ladies and gentlemen of the Jury, it’s not an easy decision that Mr. Whitting-ton and I must ask when we seek the death penalty. We have to search our conscience before we can ever ask you. This case, in my opinion, calls for the death penalty, because of the very nature of the way it was. Ralph Brown did not shoot her seven times. He pumped seven bullets into her body intentionally. For that, I think he should receive the ultimate punishment.”
This statement, coupled with other remarks noted in the majority opinion, created sufficient prejudice that the sentence of death must be set aside.
At the time of the conviction in this case, a remand for resentencing was not possible under the law. Therefore, the death penalty must be set aside and the sentence modified to life imprisonment.