Greene v. State

Carley, Justice.

Daniel Greene was convicted of the murder of a customer in a convenience store and he was also convicted of armed robbery and of committing an aggravated assault against the store clerk. As an aggravating circumstance, the jury found that the murder had been committed during the course of the armed robbery and Greene was sentenced to death. OCGA § 17-10-30 (b) (2). For the armed robbery, he received a life sentence and, for the aggravated assault, a 20-year sentence. Greene appeals from the judgments entered by the trial court. 1

Pre-Trial Rulings

1. The trial court did not abuse its discretion in denying Greene’s. motion for funds for investigative assistance, since Greene failed to show that an investigator was necessary to his defense or that his trial was rendered unfair because he was denied funds for investigative assistance. See Isaacs v. State, 259 Ga. 717, 725 (13) (386 SE2d 316) (1989); Rogers v. State, 256 Ga. 139, 145 (8) (344 SE2d 644) (1986).

Likewise, Greene also failed to make a threshold showing that his *440mental health would be an issue in either phase of trial. Compare Bright v. State, 265 Ga. 265 (2) (e), (f) (455 SE2d 37) (1995). Instead, his attorneys merely made conclusory statements that they needed assistance to determine whether Greene’s mental health would be a significant issue, and they offered no evidence or testimony to support those conclusory statements. See Todd v. State, 261 Ga. 766, 772 (11) (410 SE2d 725) (1991); Roseboro v. State, 258 Ga. 39, 41 (3) (d) (365 SE2d 115) (1988). It follows that the trial court did not err in denying Greene’s request for funds for a mental health evaluation.

Jury Selection

2. Greene contends that the trial court erred in excusing five prospective jurors for cause based upon their opposition to the death penalty.

Wainwright v. Witt, 469 U. S. 412 (105 SC 844, 83 LE2d 841) (1985) is the controlling authority as to the death-penalty qualification of prospective jurors and its holding is unmistakably clear and unambiguous. The proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment

is whether the juror’s views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” We note that, in addition to dispensing with Witherspoon[ v. Illinois, 391 U. S. 510 (88 SC 1770, 20 LE2d 776) (1968),] reference to “automatic” decisionmaking, this standard likewise does not require that a juror’s bias be proved with “unmistakable clarity.” This is because determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism. What common sense should have realized experience has proved: many veniremen simply cannot be asked enough questions to reach the point where their bias has been made “unmistakably clear”; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law. . . . [T]his is why deference must be paid to the trial judge who sees and hears the juror.

Wainwright v. Witt, supra at 424-426 (II).

Contrary to Greene’s contentions, the transcript of voir dire does *441not show that any of the prospective jurors were disqualified merely for expressing “qualms” about the death penalty or for “leaning” toward a life sentence. Rather, the prospective jurors were disqualified only after the trial court undertook an exhaustive and conscientious effort to determine whether their views on the death penalty would prevent or substantially impair the performance of their duties in accordance with their instructions and oaths. It is not determinative that, at some point during voir dire, each of the prospective jurors may have given answers which, if considered in isolation, would indicate that his or her opposition to the death penalty was not “automatic.” Likewise, it is not necessary that the disqualification of each of the prospective jurors may not appear with “unmistakable clarity.” The relevant inquiry is whether the trial court’s finding that the proper standard for death-penalty disqualification was met as to each of the prospective jurors is “fairly supported” by the record “considered as a whole.” Wainwright v. Witt, supra at 433 (IV). On review, an appellate court should not substitute its findings for those of the trial court. Wainwright v. Witt, supra at 434 (IV). The conclusion that a prospective juror is disqualified for bias is one that is based upon findings of demeanor and credibility which are peculiarly within the trial court’s province and such findings are to be given deference by appellate courts. Wainwright v. Witt, supra at 428 (III). Applying this controlling authority here, it is clear that, whatever ambiguity may exist in the record of the voir dire, “the trial court, aided as it undoubtedly was by its assessment of [the prospective jurors’] demeanor [s], was entitled to resolve it in favor of the State.” Wainwright v. Witt, supra at 434 (IV).

Greene’s contention that the trial court erred in excusing the prospective jurors is based upon a fundamental misconstruction of Witherspoon v. Illinois, supra. Witherspoon did not create any new ground for challenging a prospective juror in a death-penalty case, but merely addressed the long-recognized ground of disqualification for bias in the context of a death-penalty case. Wainwright v. Witt, supra at 423 (II).

[T]here is nothing talismatic about juror exclusion under Witherspoon merely because it involves capital sentencing juries. Witherspoon is not grounded in the Eighth Amendment’s prohibition against cruel and unusual punishment, but in the Sixth Amendment. Here, as elsewhere, the quest is for jurors who will conscientiously apply the law and find the facts. That is what an “impartial” jury consists of, and we do not think, simply because a defendant is being tried for a capital crime, that he is entitled to a legal presumption or standard that allows jurors to be seated who quite likely will *442be biased in his favor.

Wainwright v. Witt, supra at 423 (II). Because a contrary holding would be based upon an unauthorized “talismatic” interpretation of Witherspoon and a misapplication of the controlling authority of Wainwright, the trial court’s finding that the prospective jurors were disqualified must be affirmed.

3. Greene urges that it was error to fail to disqualify a prospective juror based upon her purported bias in favor of the death penalty. However, this enumeration likewise is controlled by Wainwright and the trial court was authorized to find that the “final distillation” of the prospective juror’s thoughts demonstrated her qualification. Taylor v. State, 261 Ga. 287, 292 (5) (404 SE2d 255) (1991).

4. Contrary to Greene’s contentions, the record reflects that the trial court was even-handed in its efforts to obtain a jury whose members would not be biased either for or against the imposition of the death penalty.

5. In the State’s exercise of its peremptory strikes, Greene established a prima facie case of discrimination against six African-American prospective jurors. See Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986); Osborne v. State, 263 Ga. 214, 215 (3) (430 SE2d 576) (1993); Davis v. State, 263 Ga. 5, 7 (10) (426 SE2d 844) (1993). Therefore, the trial court properly required the prosecutor to articulate the reasons for each of these peremptory strikes. Greene contends that the trial court erred in accepting the prosecutor’s articulated reasons, urging that those reasons were neither supported by the record nor applied to white prospective jurors.

Contrary to Greene’s contention, a thorough review of the voir dire of each of the six prospective jurors reveals a valid racially-neutral basis for the employment of a peremptory strike. Batson does not demand that the explanation proffered by a prosecutor be “persuasive, or even plausible.” Purkett v. Elem,_U. S. _ (115 SC 1769, 131 LE2d 834) (1995). “[A] ‘legitimate reason’ is not a reason that makes sense, but a reason that does not deny equal protection.” Purkett v. Elem, supra at 1771. The prosecutor correctly noted that the first prospective juror expressed sympathy for cocaine users who engage in uncharacteristic criminal activity, the second failed to disclose a criminal conviction, the third failed to report for jury duty the first day and reported a kidney problem which would interfere with her service, the fourth was a single mother with no family in town to assist with child care, the fifth expressed reservations about the death penalty, and the sixth was a single mother with doubtful child care arrangements who expressed hesitation about the death penalty. The white prospective jurors to whom Greene points for comparison did not in fact give comparable answers on voir dire. For example, those *443with small children were able to make arrangements for child care, none had health problems which would interfere with service, and those with some hesitation regarding the death penalty were favorable to the State in other ways. The State’s proffered reason for striking a potential juror is sufficient to rebut a prima facie showing of racial discrimination so long as it is racially neutral, related to the case, clear and reasonably specific. Gamble v. State, 257 Ga. 325, 327 (5) (357 SE2d 792) (1987). The State’s explanations met this test and the fact that the State accepted no similarly situated white prospective juror undercuts any motive to exclude African Americans. See Osborne v. State, supra at 216-217 (3).

Although Greene did respond to the reasons articulated by the prosecutor, he urges that the trial court erred in failing to afford him a more extensive opportunity to rebut those proffered reasons. However, once a race-neutral explanation has been tendered, the trial court must then decide whether purposeful racial discrimination has been proven. Purkett v. Elem, supra at 1770-1771. The prosecutor’s proffered explanations in this case satisfied the State’s burden of articulating a nondiscriminatory reason for the strikes and the inquiry thus was properly framed for the trial court’s determination. Purkett v. Elem, supra at 1771.

Greene further contends that the trial court erred in ruling that the State need not articulate its reasons for exercising a peremptory strike against the only prospective juror who was of Asian Indian descent. However, the first step in establishing a prima facie case of purposeful discrimination is to establish that the prospective juror belongs to a cognizable racial or ethnic group. See Batson, 476 U. S. at 94; Powers v. Ohio, 499 U. S. 400, 402 (111 SC 1364, 113 LE2d 411) (1991). Greene did not even attempt to show that Asian Indians are a cognizable group and he cites no authority for aggregating racial or ethnic groups. It follows that Greene failed to establish a prima facie case of racial discrimination against Asian Indians under Batson. See United States v. Bucci, 839 F2d 825, 833 (1st Cir. 1988), cert. denied, 488 U. S. 844 (109 SC 117, 102 LE2d 91) (1988).

6. Although a prospective juror initially indicated that he would tend to believe a police officer over a defendant, he later stated that he would judge a police officer’s credibility by the same criteria as any witness. It follows that the trial court did not err in denying Greene’s challenge to this prospective juror for alleged bias in favor of the police. See Foster v. State, 248 Ga. 409, 410 (3) (283 SE2d 873) (1981). See also Johnson v. State, 262 Ga. 652 (2) (424 SE2d 271) (1993).

7. The trial court did not improperly restrict Greene’s voir dire either by limiting his efforts to rehabilitate two prospective jurors who repeatedly expressed unwavering opposition to the death penalty or by disallowing questions of a technical legal nature. See Spencer v. *444State, 260 Ga. 640, 641 (1) (d) (398 SE2d 179) (1990); Baxter v. State, 254 Ga. 538, 543 (7) (331 SE2d 561) (1985).

The Guilt-Innocence Phase of Trial

8. The evidence presented at trial authorized the jury to find the following facts:

On the evening of September 27, 1991, Greene made a series of trips to the Suwanee Swifty, a convenience store and gasoline station in Reynolds, Taylor County, Georgia. During his final visit, Greene grabbed the store clerk, Virginia Wise, held a knife to her throat, and told her to give him the money from the cash register. After obtaining the money, $142.55, Greene continued to hold the knife to Wise’s throat. He pulled her to the back room, then cut her across three fingers and stabbed her through the lung and liver. Upon hearing the automatic doorbell ring as Bernard Walker entered the store, Greene placed Wise against the bathroom wall, telling her that if she left the room he would have to kill her. Greene reentered the public area of the store and encountered Walker waiting at the counter to make a purchase. He stabbed Walker in the heart, threw down the knife, left the store and drove away. After attempting to get help, Walker fell dead in the parking lot.

Later that evening, Greene went to the home of Willie and Donice Montgomery, an elderly couple in rural Macon County for whom Greene had worked as a farm laborer for about two months. Greene burst through the Montgomerys’ kitchen door wielding a knife and asked for their car keys. Mr. Montgomery gave Greene the keys, and Greene proceeded to stab each victim multiple times in the head.

After leaving the Montgomerys’ home, Greene drove their car to a convenience store in Warner Robins, Houston County, Georgia. Once there, he held a butcher knife to the cashier, Bonnie Roberts, and forced her to give him the money from the cash register. He then walked toward her and attempted to stab her in the chest. She bent down, and Greene drove the knife into the back of her shoulder. Greene then drove the Montgomerys’ car to the home of an acquaintance in Warner Robins, where he was apprehended.

Greene was tried separately and convicted of the Macon and Houston County crimes. The trial from which this appeal is taken concerned only Greene’s indictment for the crimes committed in Taylor County.

Before trial, Greene confessed to the crimes, explaining in a videotaped interview that he had committed them to obtain money for crack cocaine. At trial, Greene testified that he could not remember committing the crimes or confessing, and that he could only recall experiencing a severe headache inside the Suwanee Swifty after hav*445ing smoked a cigarette given to him earlier by an acquaintance. He theorized that his criminal behavior might have been induced by the cigarette, which must have been laced with a powerful, mind-altering drug.

The evidence is sufficient to enable any rational trier of fact to find Greene guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

9. Assuming, without deciding, that the prosecutor’s reference in his opening statement to the murder victim’s popularity in the community, and his comment to the jurors in closing argument that they could not help but have sympathy for the victim’s family were improper, Greene failed to object and those comments did not, in all reasonable probability, change the result of trial. See Todd v. State, supra at 767 (2) (a).

10. When the murder victim’s mother began crying and was escorted from the courtroom, Greene moved for a mistrial. The trial court denied the motion, but did give curative instructions. When, in his closing argument, the prosecutor made reference to this incident, Greene immediately objected and the trial court again instructed the jurors to put the incident out of their minds. Thereafter, Greene failed to move for a mistrial or any additional instructions and we find no reasonable probability that the prosecutor’s comments changed the result of the trial. Todd v. State, supra at 767 (2) (a).

11. The record does not support Greene’s contention that his right against self-incrimination was violated by references to his decision not to testify.

12. Likewise, the record does not support Greene’s contention that there were improper references made to his failure to testify at his earlier trial in another county.

13. Greene urges that the trial court erred in admitting evidence of the crimes that he committed in Macon and Houston counties on the evening of September 27, 1991, and early morning of September 28, 1991, immediately following his commission of the crimes for which he was on trial in the present case. However, those crimes were admissible as elements of one crime spree and as evidence of Greene’s bent of mind and of the circumstances of his arrest. See Todd v. State, supra at 771 (7); Davis v. State, 255 Ga. 598, 605 (9) (340 SE2d 869) (1986); Ingram v. State, 253 Ga. 622, 632 (6) (323 SE2d 801) (1984).

Greene further contends that the jury was exhorted to convict him as punishment for the crimes he committed in Macon and Houston counties. In context, however, the prosecutor’s remarks conveyed to the jurors that they should only consider evidence of those crimes for proper purposes, such as its tendency to rebut the defense theory that Greene merely ran into Walker accidentally as Greene was run*446ning out of the Suwanee Swifty with a knife in his hand.

14. The State indicated that various of its witnesses had testified in the Macon or Houston County trials regarding Greene’s alleged crime spree. By doing so, the State did not engage in improper bolstering of those witnesses. Furthermore, Greene failed to object, and there is no reasonable probability that the outcome of the trial was changed. See Todd v. State, supra at 767 (2) (a).

15. When Greene attempted to question the deputy sheriff as to whether the victim’s cousin had ever been investigated for any crime, the trial court sustained the State’s relevance objection. There was no error in this evidentiary ruling, since Greene’s identity as the perpetrator was not contested.

16. On direct examination, Ms. Montgomery, one of the Macon County victims, testified that when Greene was coming in the door of her home, she heard her husband say, “Don’t come in here; don’t come in here.” The statement was admissible as part of the res gestae. See Jarrett v. State, 265 Ga. 28, 29 (2) (453 SE2d 461) (1995).

17. During direct examination of the Montgomerys’ son, the prosecutor asked, “Mr. Montgomery, is there anything you know, any reason you know why Daniel Greene would want to go in there and do that to your mom and dad?” The witness answered in the negative. Assuming, without deciding, that the question was improper, Greene has failed to show harm.

18. The trial court did not err in allowing the State to question two witnesses about their prior inconsistent statements, since the requirements of OCGA § 24-9-83 were met. See Meschino v. State, 259 Ga. 611, 613 (2) (385 SE2d 281) (1989). It follows, therefore, that the prosecutor’s references to the inconsistent statements in closing argument were not improper. The trial court did not err in failing to instruct on impeachment, since Greene admitted that such an instruction was unnecessary. See Jones v. State, 242 Ga. 893, 895 (5) (252 SE2d 394) (1979).

19. Greene contends that the prosecutor’s closing argument was improper in several respects.

(a) Contrary to Greene’s contention, the prosecutor did not improperly vouch for the credibility of an eyewitness, but merely defended the witness’ credibility against impeachment.

(b) The prosecutor’s characterization of Greene as “mean” was not improper, but was a legitimate inference to be drawn from- the evidence.

(c) It was improper for the prosecutor to ask the jurors rhetorically what they would have done in Wise’s situation, “as the jurors were thereby ‘invited to place themselves in the victim’s place in regard to the crime itself. (Cit.)’ [Cit.]” Burgess v. State, 264 Ga. 777, 785 (20) (450 SE2d 680) (1994). However, as was the case in Burgess, *447the error was harmless given the overwhelming evidence of Greene’s guilt.

(d) The prosecutor did not improperly shift the burden of proof to Greene or comment on Greene’s failure to testify by remarking to the jurors that they had heard nothing that showed the victim deserved to die nor any evidence of self-defense. It is not improper to comment on the failure of the defense to present evidence to rebut the State’s evidence of guilt. See Thornton v. State, 264 Ga. 563, 567 (4) (a) (449 SE2d 98) (1994). Likewise, the prosecutor’s comment on Greene’s demeanor in the courtroom was not improper. See Christenson v. State, 261 Ga. 80, 88 (7) (b) (402 SE2d 41) (1991).

(e) Greene’s contention that the prosecutor improperly alluded to extrajudicial knowledge of a witness lacks merit. Read in context, the comment was merely a logical deduction from evidence presented at trial.

(f) The prosecutor did not invoke his expertise as a basis for returning a verdict as to Greene’s guilt or the imposition of the death penalty. See Conklin v. State, 254 Ga. 558, 573 (11) (b) (331 SE2d 532) (1985). Moreover, as was the case in Conklin, supra at 573 (11) (b), considering the evidence that was presented, “it is unlikely that prosecutorial experience or expertise played a discernible role in the jury’s evaluation of the vileness and brutality of [Greene’s] crime[s].”

(g) Contrary to Greene’s contention, the prosecutor neither misstated the burden of proof nor misled the jury on the definition of “malice aforethought.”

(h) The prosecutor made two references to the sentencing phase of the trial and, after each reference, the trial court admonished the prosecutor that punishment was not an appropriate topic for the guilt-innocence phase. We conclude that the court’s admonitions were sufficient to address any confusion in the minds of the jurors.

The Sentencing Phase of Trial

20. There was no issue as to Greene’s mental illness or retardation and, when Greene testified in his own behalf, he conceded his sanity and lack of retardation. Accordingly, it was not error for the prosecutor to pursue that topic and to argue to the jury that mental illness or retardation was not an impediment to imposition of the death penalty.

21. Greene urges that a witness was erroneously allowed to give an opinion as to sentencing. Childs v. State, 257 Ga. 243, 256 (19) (b) (357 SE2d 48) (1987). However, there was no objection at trial. Moreovér, the jury’s finding of a statutory aggravating circumstance was clearly supported by the record, Greene’s crimes were gruesome and unprovoked, and his evidence in mitigation was weak. Under these *448circumstances, we do not find a reasonable probability that, but for the witness’ expression of his opinion, the jury would have returned a life sentence. See Ford v. State, 255 Ga. 81, 94 (8) (i) (335 SE2d 567) (1985).

22. Greene urges that the direct examination of his witnesses in mitigation was erroneously curtailed. However, the trial court was authorized to disallow questions which called for speculation or a witness’ religious or philosophical attitudes about the death penalty. Childs v. State, supra at 256 (19) (b).

23. Relying upon OCGA § 17-8-76 (a), Greene urges that, on numerous occasions, the prosecutor made a reference to the possibility of parole and that the trial court failed to declare a mistrial.

On one occasion, the prosecutor made a comment which could reasonably be construed as referring to the possibility of Greene’s escape rather than to his parole. In response to Greene’s motion for a mistrial, the trial court nevertheless gave curative instructions and we find no error. See Finney v. State, 253 Ga. 346, 348 (5) (320 SE2d 147) (1984). This was Greene’s only motion for mistrial based upon OCGA § 17-8-76 and on no other occasion did the prosecutor mention the word “parole.” Even assuming that the prosecutor’s other references violated the tenor of OCGA § 17-8-76 (a), Greene’s failure to make a motion for a mistrial under OCGA § 17-8-76 (b) resulted in a waiver of his statutory right thereunder. Finney v. State, supra at 348 (5).

24. Greene contends that, in the cross-examination of his witnesses in mitigation, the State was erroneously allowed to use evidence of his other criminal activities in violation of OCGA § 17-10-2. However, not only was there a failure to object, OCGA § 17-10-2 was not applicable and there was no error. Christenson v. State, supra at 90 (8) (a).

25. Greene contends that an out-of-court statement attributed to him was inadmissible hearsay and that the Sheriff of Taylor County was erroneously allowed to testify to that statement. However, an out-of-court statement is considered hearsay only if it is offered to prove the truth of what is contained therein. Bundrage v. State, 265 Ga. 813, 814 (2) (462 SE2d 719) (1995). Here, the out-of-court statement was not offered to prove that Greene spoke the truth when he said that he was prepared to behave unless and until he received the death penalty. To the contrary, the out-of-court statement was offered to explain the pre-sentencing conduct of Greene and the Sheriff and, if their pre-sentencing conduct was a relevant inquiry, the statement would be admissible as original evidence and not as an exception to the hearsay rule. Bundrage v. State, supra at 814 (2); Teague v. State, 252 Ga. 534 (1) (314 SE2d 910) (1984).

Greene called the Sheriff as his own witness during the sentenc*449ing phase and, on direct examination, Greene undertook to show that he had been a model prisoner who was amenable to incarceration. This direct examination rendered the conduct of Greene and the Sheriff a relevant topic of inquiry by the State on cross-examination. If it could, the State should be allowed to show that Greene’s previous “model prisoner” conduct was merely a ploy to evade the death penalty and to show that the Sheriff’s previous conduct in securing Greene’s person was not consistent with that afforded a “model prisoner.” See Blake v. State, 239 Ga. 292, 295 (1) (236 SE2d 637) (1977). The out-of-court statement attributed to Greene accomplished both purposes. It explained Greene’s pre-sentencing conduct toward the Sheriff and it explained the Sheriff’s pre-sentencing conduct toward Greene, showing that the conduct of neither was consistent with the “model prisoner” status which Greene’s direct examination of the Sheriff had intimated. Since it was Greene himself who rendered the inquiry into the pre-sentencing conduct of himself and the Sheriff a relevant topic, he cannot object that the State thereafter sought to explain that conduct with admissible original evidence. Under OCGA § 24-9-64, the State, as the opposite party, had the right to a thorough and sifting cross-examination of the witnesses whom Greene had called in an effort to avoid the death penalty.

At some point after Greene’s out-of-court statement had been introduced over Greene’s hearsay objection, the prosecutor questioned the Sheriff with general regard to the security measures that had been taken in the courtroom. Greene did not object to the question that the prosecutor posed to the Sheriff or to the Sheriff’s answer thereto. The only objection that was ever raised by Greene was a hearsay objection to the Sheriff’s testimony regarding the out-of-court statement attributed to Greene. That hearsay objection would not be broad enough to extend to a question and answer which were related, not to any out-of-court statement, but to the Sheriff’s in-court actions. In any event, the mere passing reference to extraordinary-but-unspecified security measures was not inadmissible. Since the topic of Greene’s status as “model prisoner” had been introduced by Greene himself, he cannot object that the State made a general showing that security measures utilized during his trial were not those which would be employed during the trial of a “model prisoner.”

26. During closing argument in the sentencing phase, the prosecutor made references to certain Biblical teachings. Although Greene made no objection to these references in the trial court, he urges on appeal that those references mandate a reversal of his death sentence.

It is not and has never been the law of this state that religion may play no part in the sentencing phase of a death-penalty trial. As Hill v. State, 263 Ga. 37, 46 (19) (427 SE2d 770) (1993) clearly holds in Georgia, it is improper for the prosecutor to urge imposition of the *450death penalty based upon the defendant’s beliefs or to urge that the teachings of a particular religion mandate the imposition of that sentence, but the prosecutor nevertheless “ ‘may allude to such principles of divine law relating to transactions of men as may be appropriate to the case.’ (Cit.) Conner v. State, 251 Ga. 113, 122-123 (303 SE2d 266) (1983).” Hill v. State, supra at 46 (19). See also Crowe v. State, 265 Ga. 582, 593 (18) (d) (458 SE2d 799) (1995).

[I]t is clear that neither the Eighth Amendment nor OCGA § 17-10-35 (c) (1) ([cit.]) forbids a death penalty based in part on an emotional response to factors in evidence which implicate valid penological justifications for the imposition of the death penalty. Perforce, argument by the prosecutor which “dramatically appeals” to such legitimate emotional response is not “constitutionally intolerable.”

Conner v. State, supra at 122 (5).

Greene points to nothing in the prosecutor’s argument which urged the imposition of the death sentence based upon his religious belief or urged that the teachings of a particular religion mandated the imposition of that sentence against him. Rather, the argument challenged by Greene consists entirely of references to principles of divine law related to the penological justifications for the death penalty, including the concept of retribution and whether, considering the enormity of his crime, Greene should be extended mercy. It is just this type of argument that was found to be authorized in Hill and Crowe.

Moreover, even assuming that the prosecutor’s argument was impermissible, it does not follow that Greene’s death sentence must be reversed. On the issue of whether the prosecutor’s argument in this case, to which there was no objection, warrants a reversal of the death sentence, Crowe and Hill cannot be distinguished and, as controlling authority, those cases mandate a finding that “there is no reasonable probability that this argument, even if improper, changed the result of the trial. [Cit.]” Crowe v. State, supra at 593 (18) (d).

27. Greene enumerates as error various other instances of alleged improper argument by the prosecutor in the sentencing phase.

(a) Contrary to Greene’s contention, the prosecutor limited his argument to reasonable inferences from the evidence and to matters within common knowledge. See Hall v. State, 259 Ga. 412, 414 (2) (383 SE2d 128) (1989).

(b) When the prosecutor mentioned the victim’s weeping mother who had been escorted from the courtroom during the guilt-innocence phase, Greene made no objection and we find no reasonable probability that this reference resulted in the imposition of the death *451sentence. Ford v. State, supra at 94 (8) (i).

(c) Argument regarding general deterrence was not improper. Fleming v. State, 265 Ga. 541, 542 (458 SE2d 638) (1995).

(d) Argument regarding the bias and impeachment of Greene’s mother as a character witness was not improper.

(e) It was not improper for the prosecutor to comment on the failure to produce witnesses as to certain of Greene’s contentions. See Isaac v. State, 263 Ga. 872, 874 (4) (b) (440 SE2d 175) (1994).

(f) The prosecutor’s statement that the videotape of Greene’s confession had been in evidence for some time may not have been accurate, but the confession had been admitted and the reference to the length of time it had been in evidence could not have misled the jury into returning a death sentence.

28. Greene enumerates as error the trial court’s refusal to give several of his requested charges. However, our review of the record shows that Greene’s requests were either improper or were covered by the full and fair charge that was given by the trial court.

29. The trial court’s failure to give certain charges which were never requested was not error.

30. We do not find that Greene’s death sentence was imposed under the influence of passion, prejudice, or other arbitrary factor. See OCGA § 17-10-35 (c) (1). The death sentence is not excessive or disproportionate to penalties imposed in similar cases, considering both the crime and the defendant. The similar cases listed in the Appendix support the imposition of the death sentence in this case.

Judgments affirmed.

All the Justices concur, except Hunstein, J., who concurs in the judgment and in all divisions except Division 26; Fletcher, P. J., who concurs specially; Benham, C. J., and Sears, J., who concur in part and dissent in part.

Appendix.

Mobley v. State, 265 Ga. 292 (455 SE2d 61) (1995); Ledford v. State, 264 Ga. 60 (439 SE2d 917) (1994); Meders v. State, 261 Ga. 806 (411 SE2d 491) (1992); Gibson v. State, 261 Ga. 313 (404 SE2d 781) (1991); Lee v. State, 258 Ga. 762 (374 SE2d 199) (1988); Moon v. State, 258 Ga. 748 (375 SE2d 442) (1988); Frazier v. State, 257 Ga. 690 (362 SE2d 351) (1987); Spivey v. State, 253 Ga. 187 (319 SE2d 420) (1984); Mincey v. State, 251 Ga. 255 (304 SE2d 882) (1983); Wilson v. State, 250 Ga. 630 (300 SE2d 640) (1983); Jones v. State, 249 Ga. 605 (293 SE2d 708) (1982); Solomon v. State, 247 Ga. 27 (277 SE2d 1) (1981); Dick v. State, 246 Ga. 697 (273 SE2d 124) (1980).

The crimes occurred on September 27, 1991. Greene was indicted on October 14,1991. On June 15, 1992, the state filed its notice of intent to seek the death penalty. Voir dire commenced on November 30, 1992, and the trial of the case began on December 5,1992. On December 7, 1992, the jury returned its verdict finding Greene guilty of the crimes charged. The jury returned its sentencing phase verdict on December 8, 1992, and the trial court sentenced Greene on December 9, 1992. Greene filed a motion for new trial on March 22, 1993. He amended the motion on May 4, 1994. The trial court denied the motion on March 24, 1995. Greene filed his notice of appeal on April 25, 1995. The case was docketed on May 22, 1995, and orally argued on September 18, 1995.