A jury convicted Demarcus Ali Sears of the armed robbery and kidnapping with bodily injury of Gloria Ann Wilbur. 1 The jury found as aggravating circumstances that the kidnapping with bodily injury was committed while Sears was engaged in the capital felonies of armed robbery, rape, and murder, and that the kidnapping with bodily injury was outrageously vile, wantonly vile, horrible, and inhuman, in that it involved torture to the victim before death, depravity of mind of the defendant, and aggravated battery to the victim before death.

Sears was sentenced to death for the kidnapping with bodily injury. We affirm the jury's verdict of guilt, but because the trial court improperly restricted Sears from contacting jurors to investigate his claim of jury misconduct, we remand to allow Sears to develop a record on that issue.

The evidence showed that on the afternoon of October 7, 1990, Demarcus Sears and Phillip Williams were walking through Atlanta because their car had broken down. Wanting to return home to Ohio, where they lived, they walked to a Waffle House in Smyrna and tried to borrow money from several patrons in the restaurant.

They told the patrons that their car had broken down and they needed money to go to Cincinnati. Sears carried a black briefcase that contained brass knuckles, knives and a set of old handcuffs that was missing a key. He opened the briefcase in the restaurant and tried to sell some of the items to a customer.

After receiving directions and a couple of dollars for bus fare, Sears and Williams walked to a nearby Kroger food store. A police officer observed them loitering near the Kroger parking lot and briefly spoke with them before he left in response to a radio call. Subsequently, they decided to steal a car so they could drive back to Cincinnati.

They spotted the victim, Gloria Wilbur, when she parked her 1985 Buick and entered the Kroger. Around 8:00 p.m., Ms. Wilbur returned to her car and placed her groceries in the trunk. Sears approached her, struck her with the brass knuckles and forced her into the car. Williams then got behind the wheel and they drove north on I-75. Sears told Ms. Wilbur to keep quiet, pulled her into the back seat, and handcuffed her with her hands behind her back. When they stopped for gas and hamburgers, Sears wedged Ms. Wilbur down between the seats and covered her with book bags to prevent discovery. While they were driving through Tennessee, he raped her.

They crossed the border into Kentucky around 1:00 a.m. and stopped the car. Despite her pleas to remain in the car, Sears took the victim into the bushes along I-75 and stabbed her to death. Ms. Wilbur's body was found, still handcuffed, almost a week later. Her abandoned Buick was discovered in a Cincinnati suburb. Bloodstains in the car matched the victim and pubic hair taken from the back seat matched Sears.

Based on an identification by witnesses at the Waffle House and a tip from an Ohio informant, the police questioned Williams and Sears. Both men gave statements. Sears admitted that he had taken the Buick and kidnapped, raped and killed the victim. His statement matched Williams' statement, except that Sears claimed that it was Williams who had struck Ms. Wilbur with the brass knuckles and Williams claimed that it was Sears.

Both men stated that only Sears had raped and stabbed her. Sears also consented to a search of his mother's house, where he lived, and was escorted by police to this residence. He took the police to his room and showed them the black briefcase and brass knuckles. Williams pled guilty in exchange for two life sentences and testified for the state at Sears' trial.

1. After reviewing the evidence in the light most favorable to the jury's determination of guilt, we conclude that a rational trier of fact could have found Sears guilty of the crimes charged beyond a reasonable doubt.

Pre-trial issues

2. Sears challenges the trial court's ruling that required him to reveal the identity of his expert witnesses and their written reports as a violation of this court's decision in Rower v. State. In Rower, we held that the state may discover any written reports of experts that the defendant intends to introduce at trial. The defendant is not required to have the opinions of his experts reduced to writing nor is he required to produce any report that he will not offer at trial.

The record fails to support Sears' assertion that the trial court required his experts to provide written reports and release them to the state. Sears initially sought public funds to hire a psychiatrist, microanalyst, and forensic odontologist and filed a motion in limine to bar the state from calling his expert witnesses at trial. Before the trial court could rule on the motions, and without presenting any argument at the ex parte hearing, Sears withdrew his motion for funds for a psychiatrist to assist in the guilt-innocence phase of the trial. The trial court later approved the hiring of a microanalyst and forensic odontologist to review the materials used by the state's expert to establish the identity of the victim. In approving their employment, the trial court ordered Sears to reveal their identity to the state. At no time did the trial court order the defendant's experts to produce written reports and give them to the state. Given that Sears withdrew his request for a psychiatrist before any court ruling, did not consult a microanalyst, and eliminated the need for the odontologist's testimony by stipulating at trial to the victim's identity, he has failed to show any chilling effect or other harm from the ruling that he must give the name of his experts to the state.

It is undisputed, however, that Sears had access to the state's file in this case and that Williams' Ohio juvenile records were not a part of that file. "Brady does not impose an affirmative obligation on the prosecution to seek out information for the defense, even if such information is more accessible to the prosecution than to the defense." Therefore, the state is not required to provide to the defense the confidential out-of-state juvenile records of a state witness, when those records are not a part of the state's file.

Even assuming that the state had a duty to obtain Williams' juvenile records, Sears failed to show that he was denied beneficial information that was so important that its absence prevented him from receiving a fair trial and materially prejudiced his case.

Sears' attorney discussed Williams' juvenile record in detail in his opening statement and cross-examined Williams about his former drug dealing and his plea of guilty to the crimes against Ms. Wilbur in exchange for two life sentences. A state witness also testified that Williams was being held at a juvenile detention center in Ohio at the time he was brought in for questioning on the crimes in Georgia. We find no error in the trial court's denial of the motion to compel the state to obtain Williams' juvenile records from Ohio.

4. The police obtained Sears' consent to search his mother's house and executed a warrantless search that uncovered several incriminating items, including brass knuckles and a black briefcase. "A valid consent obviates the need for a search warrant." Sears alleges, however, that his consent was not freely and voluntarily given due to coercion, promises, and his drug-induced state. In order to determine whether the consent was voluntary, courts examine the totality of the circumstances surrounding the consent. Demarcus Sears was eighteen years old, had an eleventh grade education, had been held by the police for less than two hours, was not subject to any physical or psychological duress, was advised of his constitutional rights and read and signed a form authorizing the search. We conclude that his consent to search was voluntary.

Sears also claims that he could not have given a valid consent to search his mother's house because he lacked the authority to consent to such a search. Sears informed the police before consenting that he was not the owner of the house and no longer lived there. The "consent to search" form executed by Sears has the words "property owner" crossed out under the signature block but also contains the words "and where I live with my mother" handwritten next to the description of the place to be searched. Although Sears maintains that he had objected to giving consent because he no longer lived at his mother's house, at a pretrial hearing on December 12, 1991, Sears repeatedly referred to the house as "my house" and there was further conflicting testimony about whether he still lived there. The evidence was sufficient to support the trial court's finding that Sears had given valid consent to a search of his mother's house. Even assuming that Sears no longer lived there and had no expectation of privacy in his mother's house, the authority to consent argument would be moot because Sears would lack standing to assert a Fourth Amendment violation.

5. This court, on interim appeal, has already considered the admissibility of Sears' statement to the police and ruled adversely to Sears.

Jury Selection

6. Sears maintains that the trial court erred in failing to excuse for cause three potential jurors based on various biases that affected their ability to judge the case fairly. A review of the voir dire of each prospective juror shows that the trial court did not abuse its discretion in deciding that each juror was capable of impartial service and would consider both mitigating evidence and the trial court's instructions in determining the appropriate sentence.

7. The trial court also did not err in excusing for cause a prospective juror who was a Vietnamese native, spoke Chinese at home, and exhibited difficulty in understanding and speaking English.

8. The state used four of the six peremptory strikes that it exercised against African-American members of the jury panel and exercised its only strike during the selection of alternate jurors against an African-American. Sears contends that the state exercised three of its peremptory strikes in a racially discriminatory manner in violation of Batson v. Kentucky.

The state explained that it struck one juror because he expressed a mistrust for attorneys and the first witness for the state, the victim's husband, was an attorney; struck another juror because she was breast-feeding her ten-month-old and sequestration would create a hardship for both mother and child; and struck a third juror who was a psychiatrist because he had six acute patients who needed constant attention and he had counseled prisoners in the past. In each instance, the trial court found that the state had offered a race-neutral reason for the strike and allowed the strike to stand. Because these findings are not clearly erroneous and Sears has failed to prove that the state acted with discriminatory intent in exercising its peremptory challenges, we conclude that there was no Batson violation.

9. Although Sears argues on appeal that the state violated J. E. B. v. Alabama by using five of its seven peremptory strikes to exclude men from the jury, Sears did not raise this objection at trial. Therefore, we decline to consider whether the state exercised its peremptory strikes with an intent to discriminate on the basis of gender.

10. Since the state had authority to seek the death penalty, it was proper to qualify the jurors concerning the death penalty.

Guilt-Innocence Phase

11. Sears contends that the kidnapping with bodily injury was completed when he allegedly struck the victim with brass knuckles and forced her into the car in the Kroger parking lot. He claims therefore that evidence of the rape, which occurred in Tennessee and for which Sears was not charged, should have been ruled inadmissible because it was an independent crime that was highly prejudicial and not probative of the kidnapping. We disagree. The rape was not an independent crime because it was part of a continuous criminal enterprise that began with the robbery and kidnapping in Georgia and proceeded inexorably to the murder in Kentucky. 

The rape evidence was also relevant to the robbery and kidnapping because it corroborated the statements of Sears and his accomplice and linked Sears to the crimes by explaining why pubic hairs from Sears were found in the back seat of the Buick. The trial court did not err in admitting evidence of the rape.

12. Sears claims that GBI Special Agent Adrian McCravy testified about a matter of which he had no personal knowledge and this testimony amounted to impermissible character evidence. Specifically, Sears contends that Agent McCravy, after stating that Williams had been located in a juvenile detention facility, testified that Sears had been brought to the police station in the same car as Williams. This testimony, according to Sears, improperly implied that he had also been held in a juvenile facility. Sears maintains that Agent McCravy was not present when the two men were brought in for questioning and could not testify whether they were brought in together. We find no error because Sears' contentions are not supported by the record. The record reveals that Agent McCravy testified that he could not be sure if Sears and Williams were brought to the station in the same car because he did not assist in the transportation. In addition, other state witnesses clarified that Sears was not being held in the juvenile detention facility with Williams.

13. The trial court did not err by admitting several hearsay statements. Sears filed a motion in limine seeking to prevent the state from asking witness Willie Burge, who was at the Waffle House, about an opinion proffered to him by a woman that he should not go with the two men because they would kill him. The trial court granted the motion and the record reveals that the state did not elicit this opinion from Burge. Sears' arguments about other alleged hearsay statements are waived because he did not object to the statements at trial.

14. The admission of two photographs of the victim's body was not so prejudicial as to amount to error. Sears claims that the photographs were not probative because the defense had stipulated to the identity of the victim and the body had been altered by the elements. We disagree. Although there had been some decomposition, the two photographs did not depict the decomposition to the face and chest area. Rather, they showed the victim's handcuffed body from the back, as it was found alongside the highway. Photographs of a body altered by the combined forces of the murderer and the elements, before autopsy, are generally admissible. The two photographs, one picture of the entire body taken from behind and one close-up of the handcuffs and jewelry on the victim's hands, were relevant and not duplicative.

15. Sears claims that the prosecutor made a number of improper statements during the closing arguments in the guilt-innocence phase. Sears, however, failed to object to any portion of the state's arguments. "When no timely objection is interposed, the test for reversible error is not simply whether or not the argument is objectionable, or even if it might have contributed to the verdict; the test is whether the improper argument in reasonable probability changed the result of the trial." Even assuming that the arguments were objectionable, we find no error sufficient to overcome Sears' procedural default.

16. (a) During the guilt-innocence phase, the trial court denied Sears' request to give an instruction on simple kidnapping as a lesser included offense. The evidence was undisputed that the victim was kidnapped, hit with brass knuckles and stabbed. The issue for the jury was whether Sears participated in the crime, not whether the bodily injury occurred. Therefore, the refusal to charge on simple kidnapping was proper since there was no evidence raising the lesser offense.

(b) The trial court did not err in refusing to charge that kidnapping is a continuing offense as the requested charge was not adapted to the evidence; in refusing to charge that an element of kidnapping with bodily injury is that the bodily injury caused the victim's death because that is an incorrect statement of the law; in charging on conspiracy because the evidence supported such a charge; or in refusing to charge that the evidence regarding the rape was admitted solely as an essential element of the crimes charged because evidence of the rape was admissible as discussed in Division 11, infra.

Sentencing Phase

17. Following trial and sentencing, Sears' post-conviction counsel sought and obtained funds in an ex parte hearing for an investigator to interview jurors. When the state learned of this, it requested a hearing at which it objected to a private investigator interviewing jurors. The court then directed that there be no contact until Sears made a proffer of what he hoped to learn by such interviews. Although initially restricting only defense counsel, the court later expanded its order to ban contact by the state.

The state argues that banning contact was proper because a juror is incompetent to impeach the verdict. While this is the general rule in this state, it is subject to exceptions and does yield to a defendant's constitutional guarantees. It is well-established that jurors are competent to testify about improper influences that intrude upon their deliberations. The possibility that information learned from jurors may not require a new trial should not preclude appellate counsel from exploring appropriate avenues of challenge.

Although the trial court's order left open the possibility of later jury contact, the order conditioned that possibility on counsel disclosing what such contact would uncover. This placed an impossible burden on counsel. Finally, we note that at the time the court banned all contact with jurors, there had been no suggestion that defense counsel or anyone on behalf of Sears had harassed any juror.

Considering all these circumstances, we conclude that the trial court erred in prohibiting counsel from contacting jurors and, therefore, we reverse that order and remand. On remand, Sears is entitled to a reinstatement of the trial court's order granting funds for an investigator and is entitled to have that investigator and his counsel contact jurors to investigate the claim of jury misconduct. Anyone seeking to speak with a juror must clearly inform that juror that he or she has the right to choose to answer questions and the right to decline the request. Following a reasonable time for investigation, Sears may present to the trial court evidence supporting his claim of jury misconduct.

18. Because we are remanding for further proceedings related to the sentencing phase, we need not decide at this time Sears' remaining enumerations of error related to the sentencing phase.

19. The death sentence is remanded for further proceedings consistent with Division 17 of this opinion, and for the entry of appropriate findings and conclusions of law on the issue of jury misconduct. After the conclusion of the proceedings on remand, the case shall be returned to this court for review of the proceedings on remand, for resolution of the remaining enumerations relating to the sentencing phase, and for sentence review, unless the result of the proceedings on remand obviates the need for further appellate review.

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

I concur in the judgment affirming the conviction of Sears. As to the sentencing phase, however, I cannot agree that the trial court erred in prohibiting counsel from contacting jurors. In my opinion, therefore, a remand is not necessary and both the judgment of conviction and the death sentence entered by the trial court should be affirmed.

As the majority points out, the general rule in this state is that jurors are incompetent to impeach their own verdict. OCGA 17-9-41; Oliver v. State, 265 Ga. 653, 654 (3) (461 SE2d 222) (1995). This rule applies in death penalty cases. Spencer v. State, 260 Ga. 640, 643 (3) (398 SE2d 179) (1990); Hall v. State, 259 Ga. 412, 414 (3) (383 SE2d 128) (1989). This court has recognized constitutional limitations to the rule only in rare circumstances, where members of the jury intentionally gather extrajudicial and prejudicial evidence and communicate such information to the other jurors, or where non-jurors have interfered with the jury's deliberations. Spencer v. State, supra at 643 (3); Watkins v. State, 237 Ga. 678, 685 (229 SE2d 465) (1976). "The rule is deeply rooted in Georgia law and promotes important public policy considerations." Oliver v. State, supra at 654 (3).

The rule discourages post-verdict harassment of jurors, enhances verdict finality and certainty, encourages free and open discussion among jurors during deliberations, and insulates jury value judgments from judicial review.

Spencer v. State, supra at 643 (3).

Similarly, prohibiting post-verdict interviews protects the jury from post-verdict misconduct and the courts from time-consuming and futile proceedings, and reduces the "chances and temptations" for tampering with the jury. Haeberle v. Texas Intl. Airlines, 739 F2d 1019, 1021 (5th Cir. 1984); Wilkerson v. Amco Corp., 703 F2d 184, 185 (5th Cir. 1983). Thus, I do not believe that this Court should disturb a trial court's decision to prohibit juror interviews "for the purpose of obtaining evidence of improprieties in the deliberations unless specific evidence of misconduct was shown by testimony or affidavit." Haeberle v. Texas Intl. Airlines, supra. See also United States v. Riley, 544 F2d 237, 242 (5th Cir. 1976).

Courts simply will not denigrate jury trials by afterwards ransacking the jurors in search of some ground, not previously supported by evidence, for a new trial.

United States v. Riley, supra at 242. The majority expresses concern that appellate counsel not be precluded "from exploring appropriate avenues of challenge." In my opinion, however, the majority is requiring the trial court to permit appellate counsel to launch "a 'fishing expedition' in the hope of impeaching the verdict." Big John, B. V. v. Indian Head Grain Co., 718 F2d 143, 150 (5th Cir. 1983). Therefore, I respectfully dissent to the majority's implicit vacation of the death sentence and the remand of the case for further proceedings in the trial court.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Jack E. Mallard, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Paige R. Whitaker, Wesley S. Horney, Assistant Attorneys General, for appellee.

A jury convicted Demarcus Ali Sears of kidnapping with bodily injury and armed robbery, and imposed a sentence of death. The evidence adduced at trial showed that Sears and Phillip Williams kidnapped the victim, Gloria Wilbur, as she left a supermarket in Cobb County, Georgia; that Sears assaulted Ms. Wilbur with brass knuckles, put her in her car and drove north; that Sears raped Ms. Wilbur in Tennessee; and that he killed her in Kentucky by stabbing her with a knife.

In Sears v. State, 268 Ga. 759 (493 SE2d 180) (1997), we affirmed Sears' convictions, but remanded the case to the trial court to allow Sears an opportunity to conduct an investigation and present evidence on his claim of jury coercion and misconduct in the sentencing phase. Because the result of the proceedings on remand calls for further appellate review, we now address the remaining enumerations of error. See id. (18).

Each of the remaining enumerations attacks the validity of the jury's verdict and the death sentence entered in this case. Finding no error, we affirm the imposition of the death sentence.

1. After deliberating for approximately six hours in the sentencing phase, the jury sent the trial court a note announcing that it was deadlocked eleven to one in favor of the death penalty, and asking how it should complete the verdict form. Over Sears' objection, the trial court responded to the note as follows:

You all have been deliberating on this case for six hours. I would like you all to consider continuing your deliberations and see what you can do with the case. I'm not putting any pressure on you to [do] anything one way or another. Whatever your decision is, that's [your] decision. But I feel like you need to deliberate on the case longer.

The jury resumed its deliberations and continued deliberating for another three hours. At that point, the jury sent a second note which read:

[W]e have reviewed the case from start to finish and we are still deadlocked eleven to one in favor of the death penalty. All twelve jurors agree that there is a hopeless deadlock with no hope of resolution. Deliberations have ceased. What do we do now? All minds are closed.

Sears urged the trial court to accept the jury's "verdict" and impose a life sentence. The court declined to do so. Instead, it charged the jury, in part, as follows:

I believe it's appropriate to give you some further instructions at this time. You've been deliberating a while, and I deem it proper to advise you further in regards to the desirability of agreement, if possible. This case has been exhaustively and carefully tried by both sides. It has been submitted to you for a decision and verdict, if possible. While the verdict must be the conclusion of each juror, and not a mere acquiescence of the jurors in order to reach agreement, it is still necessary for all of the jurors to examine the issues and questions submitted to them with candor and fairness and with proper regard and deference to the opinion of each other. A proper regard for the judgments of others will greatly aid us in forming our own judgments. Each juror should listen to the arguments of other jurors. If the members of the jury differ in their views of the evidence, or the mitigating or aggravating circumstances, such differences of opinion should cause them all to scrutinize the evidence more closely and to re-examine the grounds of their opinion. It's your duty to decide the issues that have been submitted to you, if you can conscientiously do so. Do not hesitate to change an opinion if you become convinced it's wrong. However, you should never surrender honest convictions or opinions in order to be congenial or reach a verdict solely because of the opinions of other jurors.

The jury was then excused for the evening. It reconvened the following morning and resumed its sentencing phase deliberations. After an hour and a half, the trial court informed counsel that one of the jurors had been sitting in the jury room with a Sony Walkman on her head; and that she had been asked to give it to the bailiffs "so she could participate in the deliberations." The court also told counsel that the foreman had asked the bailiffs to remove all magazines and reading material from the jury room. In addition, the court stated that it had received two notes from the jury: one from the foreman and another from juror Angel Fisher. The note from the foreman, which contained blanks instead of personal pronouns to "protect the gender of the juror" in question, read:

In the jury selection process, each juror was read the charges in this case. Murder was not one of the charges. The reason that the juror who has steadfastly maintained [] position from the outset of deliberations has given for [] decision is that [] cannot vote on the death penalty because the Defendant was not convicted of murder. Can you provide the jury with a transcript of the questions and answers as to their position on the death penalty? We need to know what questions were asked and how the jurors responded. We would also like for you to provide to the jury a definition of perjury and the penalty for the commission of perjury.

The note from Fisher read:

I am concerned about the actions of the foreman of this jury. This letter is in reference to the foreman's most recent letter to you. [The foreman] wrote this letter prior to our jury deliberations today. He informed us that he was submitting the letter to you whether we wanted him to or not. I don't think this type of behavior is appropriate for a foreman. I will not sit on a jury where I am singled out. I am not being treated fairly in this deliberating process. I am also being singled out by the foreman, also he is overstepping his boundaries as a foreman of a jury. To my understanding, a foreman should be a leader, not a dictator. Please explain the duties and responsibilities of a jury foreman. Should he be able [to] question a juror's response to the Court during jury selection?

The trial court brought the jury in and said it had received notes from the foreman and Fisher. It summarized the contents of the notes, and stated that the jury should recall the previous instructions as to the imposition of the death penalty, aggravating circumstances, and mitigating evidence. It then informed the jury that it would not read the voir dire transcript and it would not define perjury. The court went on to clarify the role of a foreman by stating that, although the foreman is responsible for leading the deliberations, "in matters of voting, all jurors stand the same." Finally, the court added:

A juror is responsible to deliberate in the jury deliberations. A juror is supposed to listen to his or her fellow jurors. A juror is supposed to vote their ideas and positions. A juror is supposed to participate. It is inappropriate for any juror to do anything other than fully participate in jury deliberations.

The jury was sent back to deliberate further. Then, after two and a half hours of additional deliberations, the jury announced that it had reached a verdict. The jury entered the courtroom and returned its verdict, finding the alleged statutory aggravating circumstances beyond a reasonable doubt, and sentencing Sears to death. The jury was polled and each juror stated that the verdict was his or her verdict and that it was freely and voluntarily rendered.

Sears contends the trial court coerced the jury to render a verdict of death. Whether a verdict was reached as the result of coercion depends upon the totality of the circumstances. See Jenkins v. United States, 380 U. S. 445, 446 (85 SC 1059, 13 LE2d 957) (1965). An examination of the totality of the circumstances leads us to conclude that the verdict was not coerced by the trial court.

The jurors deliberated for more than fourteen hours over a period of three days before reaching their verdict. Each of the jurors stood by that verdict, announcing, upon being polled, that they rendered it freely and voluntarily in the jury room, and that it was still their verdict. See Rouse v. State, 265 Ga. 32, 34 (3) (453 SE2d 30) (1995). Although the trial court gave a modified Allen charge (see Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896); Romine v. State, 256 Ga. 521 (350 SE2d 446) (1986)), it cannot be said that that charge was coercive. The court made it clear that, although the jurors should consider the opinions of other jurors, they must never surrender their honest opinions for the sake of expediency. See Romine, supra; cf. Riggins v. State, 226 Ga. 381, 384 (174 SE2d 908) (1970) (trial court remarked that some jurors "were being a little unreasonable, stubborn").

The trial court's other instructions, urging the jury to reach a consensus, and to participate in the deliberations, were not coercive either. They did not put pressure on the jurors "one way or the other," see Romine, supra at 525; they did not exhort "the minority to reexamine its views in deference to the majority, or to suggest that the majority's position is correct." United States v. Norton, 867 F2d 1354, 1366 (11th Cir. 1989). Nor did they urge the jurors "to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors. [Cit.]" Harris v. State, 263 Ga. 526, 528 (435 SE2d 669) (1993).

Although the jury twice stated that it was at an eleven to one "deadlock," the trial court was not bound by those pronouncements. Todd v. State, 243 Ga. 539, 542 (255 SE2d 5) (1979) (court is not required to accept jury's feeling that it is "hopelessly deadlocked"). On the contrary, the trial court, in the exercise of a sound discretion, was required to make its own determination as to whether further deliberations were in order. Romine, supra at 524.

The jury first indicated it was deadlocked after only six hours of deliberation. And it announced it was deadlocked again, after just another three hours. We cannot say that the trial court abused its discretion in requiring the jury to deliberate further, see United States v. Kramer, 73 F3d 1067 (11th Cir. 1996) (jury not deadlocked after deliberating seven days); Holt v. State, 192 Ga. App. 708, 709 (385 SE2d 787) (1989) (jury not deadlocked after four days, "more time than it had taken to try the case"), especially since, after the second announcement of a "deadlock," the jury deliberated more than five hours before reaching a verdict. See Allen v. State, 260 Ga. 147, 148 (390 SE2d 848) (1990) (fact that Allen charge was not coercive can be inferred from length of time jury continues to deliberate); United States v. Norton, supra (lapse of four hours following Allen charge suggests absence of coercion). Moreover, it cannot be said that the verdict was coerced simply because the trial court gave a modified Allen charge after the jury revealed its numerical division (11-1 in favor of the death penalty). See id.; Sanders v. United States, 415 F2d 621, 631-632 (5th Cir. 1969) (court should not be precluded from giving Allen charge because jury volunteered nature and extent of its division).

Sears contends the testimony of juror Fisher, adduced upon remand, demonstrates that the actions of the trial court had a coercive effect upon her verdict. In this regard, Sears points out that Fisher testified she was afraid of being prosecuted for perjury, and she believed the trial court wanted her to change her vote because it singled her out by name and urged the jury to continue deliberating when it knew the nature of the jury's numerical division. We cannot accept this contention.

Fisher, a school teacher, had a bachelor's degree in criminal justice and had attended graduate school. She was the lone holdout for a life sentence -- until she changed her mind. Although she testified that she felt bullied by the threat of perjury, she knew that she had not lied under oath. She felt intense pressure from the other jurors. ("I remember being yelled at basically because I was -- they were angry at me. They wanted me to change my mind. So they were insulting my character and things like that.") Ultimately, she gave in to that pressure. ("I changed my mind because they had -- I mean I was ostracized. And I was just -- I was basically made to change my mind by the other jury members.") Viewing Fisher's testimony as a whole, it is clear that she voted for the death penalty because she felt pressured to do so only as a result of the "normal dynamic of jury deliberations." United States v. Cuthel, 903 F2d 1381, 1383 (11th Cir. 1990).

2. Sears contends he is entitled to a new trial because juror Kenneth Makant failed to disclose certain information on his juror questionnaire; and he injected that information into the jury's deliberations. More specifically, Sears asserts that the juror questionnaire asked whether any member of a juror's family had been the victim of a violent crime; that Makant responded to that question negatively; that, in so doing, Makant lied because his daughter had been the victim of a rape; and that, during the jury's deliberations, Makant disclosed the fact that his daughter had been raped.

The question at issue, No. 28, reads as follows:

Have you or any member of your family or any close friend ever been the victim of a violent crime?

What was the crime:

Was anyone arrested in connection with the crime:

At the hearing on remand, juror Makant testified that he answered the question truthfully. In this regard, he averred that he looked at the question as a whole and thought "that it meant it in the context had there been any conviction or, you know, court proceeding on it." Continuing his testimony, Makant stated that he answered the question in the negative because, although his daughter had been raped by her brother-in-law when she was 13 years old, the crime was not reported and no one was arrested or convicted. He added that at the time he completed the juror questionnaire, he did not know what offenses he would be asked to try. Finally, Makant averred that the rape of his daughter did not prevent him from being a fair and impartial juror.

In order for a defendant to secure a new trial because a juror did not give a correct response to a question posed on voir dire (or, as here, a juror questionnaire), the defendant must show that the juror failed to answer the question truthfully and that a correct response would have been a valid basis for a challenge for cause. Royal v. State, 266 Ga. 165, 166 (2) (465 SE2d 662) (1996); Gardiner v. State, 264 Ga. 329, 333 (3) (444 SE2d 300) (1994); Isaacs v. State, 259 Ga. 717, 740 (44) (e) (386 SE2d 316) (1989). The evidence does not show that Makant lied when he answered question No. 28. Instead, it shows that he answered the question truthfully, as he understood it. See Dyer v. Calderon, 151 F3d 970 (9th Cir. 1998) (jurors must answer truthfully but "we must be tolerant, as jurors may forget incidents long buried in their minds, misunderstand a question or bend the truth a bit to avoid embarrassment"). Even if it could be said that Makant lied, a correct response to the question would not have provided a valid basis for a challenge for cause. Isaacs, supra at 741; see Grogan v. State, 230 Ga. App. 876, 878 (497 SE2d 589) (1998) (correct response would have only allowed for exercise of peremptory strike, not a challenge for cause).

3. Sears asserts he was denied a fair trial because of two instances of alleged juror misconduct in the jury room: (a) Makant's injection of his daughter's rape and (b) the foreman's statement that juror Fisher should be prosecuted for perjury.

(a) The fact that juror Makant injected his daughter's rape into the jury's deliberations is of no import. Makant testified that he only raised the issue because he believed the holdout juror was not taking the deliberations seriously. Besides, the circumstances of the rape of Makant's daughter differed markedly from the kidnapping, rape and murder in this case. It cannot be said that Makant's behavior in the jury room rose to the level of juror misconduct. See Hilburn v. Hilburn, 163 Ga. 23, 24 (135 SE 427) (1926) (jurors must bring their life experiences to the jury room). See also Oliver v. State, 265 Ga. 653, 654 (3) (461 SE2d 222) (1995) (jurors' limited discussion of news story about murder of state's witness did not provide basis for new trial).

(b) As the deliberations became more heated, the foreman stated that juror Fisher must have been lying when she responded to voir dire questions concerning her willingness to impose the death penalty, and that she should be prosecuted for perjury. These statements do not amount to juror misconduct. Compare People v. Redd, 561 NYS2d 439, 440 (AD 1 Dept. 1990) (threats and belligerent exchanges in the course of deliberations often accompany the heightened atmosphere in the jury room and are insufficient to upset the verdict) with People v. Lavender, 502 NYS2d 439 (AD 1 Dept. 1986) (new trial warranted where court takes no action after it is apprised that juror was trying to physically attack co-juror).

4. Sears challenges the authority of the state to impose the death penalty for kidnapping with bodily injury on the grounds that (1) the kidnapping with bodily injury offense was completed when he first abducted the victim and hit her with brass knuckles, and (2) he was not convicted of murder.

The offense of kidnapping with bodily injury is a capital felony. OCGA 16-5-40 (b). It requires an unlawful abduction and the infliction of some bodily injury. Pryor v. State, 238 Ga. 698, 701 (234 SE2d 918) (1977). We have previously held that a defendant may receive a death sentence for kidnapping with bodily injury when the victim is killed. Stanley v. State, 240 Ga. 341, 350 (241 SE2d 173) (1977). See also Tharpe v. State, 262 Ga. 110, 115 (416 SE2d 78) (1992) (kidnapping with bodily injury is a capital felony that may be considered as an aggravating circumstance supporting a death sentence for murder). Thus, we concluded in Potts v. State, 261 Ga. 716 (410 SE2d 89) (1991), that a jury could impose a death sentence when the offense of kidnapping with bodily injury was committed while the defendant was engaged in the commission of the capital felonies of murder and armed robbery. Id. at 726.

In this case, Sears was indicted for kidnapping Ms. Wilbur and inflicting bodily injury upon her by striking her with brass knuckles, and stabbing her to death with a knife. There is no basis for Sears' contention that the stabbing could not constitute part of the bodily injury in the kidnapping charge. As a matter of law, bodily injury does not have to be inflicted at the same moment as the initial abduction. Potts, 261 Ga. at 720 (victim seized in one county and bodily injury inflicted in another). See also Pryor, 238 Ga. at 701-702; cf. Diamond v. State, 267 Ga. 249, 250 (477 SE2d 562) (1996) (holding that defendant was still in the commission of a burglary, despite its technical completion, when she caused the death of three persons during a police chase that began at the scene of the burglary).

The jury found beyond a reasonable doubt that the offense of kidnapping with bodily injury was committed while Sears was engaged in the commission of armed robbery, rape, and murder. As in Potts, the murder was sufficiently a part of the same criminal transaction as the kidnapping, despite occurring in a different state, to be considered a statutory aggravating circumstance in support of the death penalty. See Heath v. Jones, 941 F2d 1126 (11th Cir. 1991) (defendant could be convicted of murder during a kidnapping and sentenced to death in Alabama, despite the fact that the murder occurred in Georgia). See also Sallie v. State, 216 Ga. App. 502, 503 (455 SE2d 315) (1995) (crossing county line with two kidnapping victims merely continued the asportation and detention required for defendant's conviction of kidnapping with bodily injury).

5. Sears objects to the testimony of two witnesses, Detective Laurie Bello and Major Jim Burns. The former witness testified that Sears lacks remorse. The latter, a Cobb County jailor, testified that he became familiar with Sears in the three years that Sears had been in jail and that Sears' reputation in the jail was bad -- in fact, in his seventeen years of experience, Major Burns could not remember an inmate who had caused more trouble. The prosecutor asked each of these witnesses if they would believe anything Sears said under oath and they both replied, "No."

During the penalty phase, "[a]ny lawful evidence which tends to show the motive of the defendant, his lack of remorse, his general moral character, and his predisposition to commit other crimes is admissible in aggravation, subject to the notice provisions of [OCGA 17-10-2]." Fair v. State, 245 Ga. 868, 873 (268 SE2d 316) (1980). This aggravating evidence may also include a defendant's conduct after incarceration. See id. Since the record reflects that the state provided Sears with pretrial notice of intent to produce this evidence in aggravation, we conclude that the evidence was admissible.

6. The jury found as aggravating circumstances that the kidnapping with bodily injury was committed while Sears was engaged in the capital felonies of armed robbery, rape and murder, OCGA 17-10-30 (b) (2), and that the kidnapping with bodily injury was outrageously vile, wantonly vile, horrible and inhumane, in that it involved torture, depravity of mind, and aggravated battery to the victim. OCGA 17-10-30 (b) (7). Sears contends the jury's aggravating circumstance findings were improper because (a) the state failed to give notice of its intent to seek the (b) (7) circumstance before trial; and (b) the verdict form was arranged as a checklist. We disagree.

(a) The state filed a notice of intent to seek the death penalty listing three OCGA 17-10-30 (b) (2) aggravating circumstances and "any others which may be supported by the evidence upon the trial of said case." In a pretrial motion, Sears objected to the catch-all phrase at the end of the state's notice of intent and sought to compel the state to reveal all of the statutory aggravating circumstances upon which it would rely. The trial court denied the motion, but the state promised that it would notify the trial court of any additional statutory aggravating circumstances "if any became known." Subsequently, while the jury was deliberating in the guilt phase, the state notified Sears that it would seek the (b) (7) aggravating circumstance. The trial court did not err in permitting the jury to consider that aggravating circumstance. It is not incumbent upon the state to notify a defendant prior to trial of every statutory aggravating circumstance that it might seek to prove. Roberts v. State, 252 Ga. 227, 240 (314 SE2d 83) (1984); Bowden v. Zant, 244 Ga. 260, 263-264 (260 SE2d 465) (1979).

(b) OCGA 17-10-30 (b) (7) reads as follows: "The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." The statute is worded in the disjunctive, requiring the jury to find that "at least one phrase of the first clause of the statute exists due to the existence of at least one phrase of the second clause of the statute." Fair v. State, supra at 872 (3).

The record reveals that the trial court properly instructed the jury on the relationship of the clauses. Moreover, the verdict form accurately reflects the language of the statute; and the jury marked the form in such a way as to indicate that it found the existence of all of the (b) (7) factors beyond a reasonable doubt. It cannot be said that the verdict form was erroneous simply because it set forth the (b) (7) factors in the form of a checklist.

7. Sears challenges several jury instructions in the sentencing phase.

Stanley v. State, 240 Ga. at 350. Further, we note that the jury made a specific finding beyond a reasonable doubt that Sears committed the offense of kidnapping with bodily injury while engaged in the commission of murder.

(b) The trial court charged the jury on the statutory definition of murder, but did not define "malice aforethought." We agree that the trial court should have defined malice, which is an essential element of murder. See Wade v. State, 258 Ga. 324, 330-331 (368 SE2d 482) (1988). However, Sears did not request such a charge and the evidence was overwhelming that the killing took place intentionally and without justification or serious provocation. See OCGA 16-5-1 (b). Therefore, the failure to define malice does not require reversal.

(c) In its charge, the trial court repeatedly linked the (b) (7) factors with murder instead of kidnapping with bodily injury. On several occasions the court immediately corrected itself; on others, however, it did not. Sears asserts the trial court's charge was erroneous and misled the jury because it was left with the impression that it was to examine the (b) (7) factors with the murder in mind. We disagree. The trial court's references to murder, instead of kidnapping with bodily injury, were a mere slip of the tongue. Viewing the charge as a whole, it cannot be said that the trial court's verbal inaccuracies misled or confused the jury. Conner v. State, 251 Ga. 113, 117 (4) (303 SE2d 266) (1983). Moreover, the verdict form made it abundantly clear that the (b) (7) factors were to be applied only with regard to kidnapping with bodily injury.

(d) Jarrell v. State, 261 Ga. 880, 882-883 (413 SE2d 710) (1992), does not require a trial court to charge that the (b) (2) separate offense must have been committed at the same time as the capital offense. Therefore, the trial court did not err in charging that the jury could find the existence of a (b) (2) circumstance if the offense of kidnapping with bodily injury was committed while the offender was engaged in the commission of another capital felony.

(e) Sears asserts the trial court's charges on mitigation and aggravation require reversal because they did not adequately address the issue of "unanimity." We disagree.

(i) Although the trial court failed to charge the jury that a finding of mitigating circumstances need not be unanimous, it did charge that "it is not required and it is not necessary that you find any extenuating or mitigating . . . circumstances" in order to return a life sentence. Viewed as a whole, the charge did not impose a unanimity requirement for mitigating circumstances. See Ledford v. State, 264 Ga. 60, 69 (439 SE2d 917) (1994).

(ii) The trial court did not specifically instruct the jury that its findings with regard to aggravating circumstances must be unanimous. However, it did instruct that the verdict as to penalty must be unanimous. Therefore, reversal is not required on this ground. See Davis v. State, 263 Ga. 5, 9 (15) (426 SE2d 844) (1993).

(f) In explaining rape as the second alleged aggravating circumstance, the trial court charged "[c]arnal knowledge and rape occurs when there is any penetration of the female sex organ by the male sex organ." This statement does not require reversal because the trial court also correctly charged that an element of rape is that it occur "forcibly and against [the victim's] will"; and because consent was not a defense raised in the case.

(g) The trial court correctly instructed the jury on venue for kidnapping with bodily injury by charging that "[t]here's no requirement that the bodily injury be inflicted in the venue where the person was seized." See Krist v. State, 227 Ga. 85, 91 (179 SE2d 56) (1970).

8. "The test on review for allegedly improper arguments by the state to which the defense did not object at trial is 'whether the improper argument in reasonable probability changed the result of the trial.' Todd v. State, 261 Ga. 766 (2) (410 SE2d 725) (1991)." Ledford v. State, supra at 68. We find no such reasonable probability with respect to the prosecutor's closing argument in this case.

9. As we held on interim appellate review, the trial court did not err in denying Sears' pretrial motion for a psychiatric evaluation between the guilt and sentencing phases of the trial. Sears v. State, 262 Ga. 805, 807 (5) (426 SE2d 553) (1993).

10. We do not find that Sears' death sentence was imposed under the influence of passion, prejudice, or other arbitrary factor. OCGA 17-10-35 (c) (1).

11. Electrocution does not constitute cruel and unusual punishment in violation of the Eighth Amendment. DeYoung v. State, 268 Ga. 780, 786 (6) (493 SE2d 157) (1997).

12. The imposition of a death sentence in this case would not be excessive or disproportionate to penalties imposed in similar cases, considering both the crime and the defendant. OCGA 17-10-35 (c) (3). The similar cases listed in the Appendix would support the imposition of the death sentence in this case.

APPENDIX.

FLETCHER, Presiding Justice, dissenting.

Because the trial court's instructions to the jury during its deliberations in the sentencing phase were improperly coercive, I dissent.

It is a fundamental precept that a jury's verdict should be reached freely, without coercion or undue pressure; the jury must be "free from any seeming or real, coercion on the part of the court." This Court and the United States Supreme Court have recognized that the concern for an uncoerced verdict is especially important in a capital sentencing trial, in which the state is seeking the ultimate punishment. In reviewing a claim of jury coercion, an appellate court must examine the totality of the circumstances in order to determine if a trial court's statements were coercive.

On the second day of deliberations and after six hours of deliberations in the sentencing phase, the jury sent the judge a note that announced that it was at an 11 to 1 deadlock in favor of death and asked how to fill out the verdict form. The trial court read the note in open court and told the jury to continue its deliberations. After a lunch break and another, three hours of deliberating, the jury sent a second note reiterating a "hopeless deadlock with no hope of resolution" and stating that "all minds are closed." The trial court responded by giving an "Allen" charge substantially similar to the one approved in Romine v. State and dismissed the jury for the evening.

The following morning at 9:00 a.m. the jury began its third day of deliberations in the sentencing phase. At 10:25 the trial court informed counsel that it had received a note from the foreman and one from juror Fisher. The note from the foreman sought a transcript of the voir dire and a definition of perjury and its penalties, even though perjury was not remotely relevant to the issues in the sentencing phase. The note from juror Fisher revealed that she felt that she was being singled out and specifically sought assistance from the trial judge in dealing with the foreman's threat to review Fisher's voir dire responses for perjury. In responding to these notes, the trial court identified Fisher by name. Despite the plea from Fisher alerting the trial court to the threats made against her, the trial court made only an ambiguous statement that it would not read the voir dire or define perjury.

These final two notes revealed a serious personal conflict within the jury room, which the evidence on remand confirmed. The foreman's note strongly suggests a threat of a perjury prosecution against the holdout juror based on her responses during voir dire. Fisher's note reveals that she was aware of the foreman's concerns regarding her voir dire answers and was seeking some assistance from the court. The other jurors were also made aware of the perjury threat and against whom it was made when the trial court revealed the contents of the notes in open court before the whole panel and identified the holdout juror by name.

The most troubling aspect of this case is that the trial court ignored the specter of a perjury prosecution while forcing continued deliberations. The trial court has a duty to respond to jury questions and provide guidance when jurors' threats to one another come to its attention. Here the trial court did nothing to inform the jury that it should not concern itself with perjury or other extraneous issues or that a juror's response to voir dire questions was irrelevant to the current deliberations regarding a sentence. The statements the trial court did make provided little guidance to the jury. The explanation of a foreman's duties was open-ended and did nothing to dispel the threat of a perjury prosecution against juror Fisher. The trial court's response could not have prevented Fisher "from abandon[ing] an honest conviction for reasons other than those based upon the trial or the arguments of other jurors." Fisher's testimony on remand confirms that Fisher changed her vote not because of the arguments of the other jurors related to the evidence and the applicable law but because of the perjury threat and personal insults.

Additionally, even though the final two notes were the third declaration of a deadlock by the jury, the trial court returned the jury to its deliberations without making an inquiry as to whether the jury had made any progress since its first declaration of an 11-1 split for death. The record reveals that the trial court also failed to consider whether the jurors believed that further deliberations would be of assistance, whether the jury was so exhausted that the minority might be induced to vote for a verdict that they did not truly support, or the length and complexity of the trial.

Instead the trial court required further deliberations without any instruction that each juror listen to and consider the views of the others and that a juror should not surrender honest convictions in order to be congenial or to reach a verdict solely because of the opinions of the other jurors. The failure to include these cautionary statements weighs in favor of a finding of coercion.

Another relevant circumstance is that the jury revealed the nature of its division and the trial court reiterated the precise division in its comments to the jury. In Brasfield v. United States, the United States Supreme Court held that it was reversible error for a trial court to ask a jury the nature of its split. A rationale for this rule is that the jury's knowledge of the judge's awareness of the exact division will color the jury's understanding of any of the judge's instructions. This danger is present even when the jury volunteers its division, as in this case. Fisher's testimony on remand is illustrative of this problem. She testified that because the judge kept sending them back for more deliberations when the judge knew the vote was 11-1 for death, she (Fisher) believed the judge wanted her to vote for death.

Another circumstance to consider is that after the court responded to the final two notes, the jury reached its verdict in less than four hours, which included a lunch break. This time period of approximately three hours is not long enough to dispel any concerns regarding coercion, especially in view of the fact that the jury's deliberations for the previous 10 1/2 hours over three days had produced no signs of progress.

Considering the totality of these circumstances, I conclude that the trial court's failure to address directly the threat against the holdout juror coupled with its insistence that the jury continue deliberating without meaningful guidance resulted in a coercive effect and I would reverse and remand for a retrial of the sentencing phase.

I am authorized to state that Chief Justice Benham and Justice Sears join in this dissent.

Benjamin F. Smith, District Attorney, Jack E. Mallard, Debra H. Bernes, Nancy L. Jordan, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, for appellee.