O.C.G.A. § 17-10-30: Moreover, the…

It cannot be said that the verdict form was erroneous simply because the form set forth the (b) (7) factors in the form of a checklist. Sears v. State, 270 Ga. 834, 514 S.E.2d 426 (1999). Evidence presented at the guilt phase of the trial is properly considered by the jury in establishing the existence of statutory aggravating circumstances. Welch v. State, 254 Ga. 603, 331 S.E.2d 573 (1985). Once statutory aggravating circumstance found, all evidence considered. — Once the jury ﬁnds at least one statutory aggravating circumstance beyond a reasonable doubt, the jury may consider all the evidence that has been presented in both phases of the case. Ross v. State, 254 Ga. 22, 326 S.E.2d 194, cert. denied, 472 U.S. 1022, 105 S. Ct. 3490, 87 L. Ed. 2d 623 (1985). Finding of any statutory aggravating circumstance makes the defendant eligible for a sentence of death, and the jury must, considering all the evidence, determine whether to impose such a sentence or to impose a life sentence instead. Moore v. Kemp, 809 F.2d 702 (11th Cir.), cert. denied, 481 U.S. 1054, 107 S. Ct. 2192, 95 L. Ed. 2d 847 (1987), aff ’d, 972 F.2d 319 (11th Cir. 1992). Autopsy photographs admissible. — Autopsy photographs of the victim’s body were admissible to show aggravated battery in conjunction with the aggravating circumstances in O.C.G.A. § 17-10-30(b)(2) and (b)(7). Waldrip v. State, 267 Ga. 739, 482 S.E.2d 299, cert. denied, 522 U.S. 917, 118 S. Ct. 305, 139 L. Ed. 2d 235 (1997). State not limited to proof of particular aggravating circumstance relied upon. — In a capital felony presentence trial, the state is not limited to the introduction of evidence to support the particular statutory aggravating circumstances the state is relying upon. Fair v. State, 245 Ga. 868, 268 S.E.2d 316, cert. denied, 449 U.S. 986, 101 S. Ct. 407, 66 L. Ed. 2d 250 (1980). State is not limited to presenting evidence of statutory aggravating circumstances. Hightower v. State, 259 Ga. 770, 386 S.E.2d 509 (1989), cert. denied, 498 U.S. 882, 111 S. Ct. 230, 112 L. Ed. 2d 184 (1990). Failure of one aggravating circumstance does not invalidate others. — When two or more statutory aggravating circumstances are found by the jury, the failure of one circumstance does not so taint the proceedings as to invalidate the other aggravating circumstance found and the sentence of death based thereon. Gates v. State, 244 Ga. 587, 261 S.E.2d 349 (1979), cert. denied, 445 U.S. 938, 100 S. Ct. 1332, 63 L. Ed. 2d 772 (1980); Brooks v. State, 246 Ga. 262, 271 S.E.2d 172 (1980); Stevens v. State, 247 Ga. 698, 278 S.E.2d 398 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3551, 77 L. Ed. 2d 1398 (1982); Cervi v. State, 248 Ga. 325, 282 S.E.2d 629 (1981), cert. denied, 456 U.S. 938, 102 S. Ct. 1995, 72 L. Ed. 2d 457 (1982); Mathis v. State, 249 Ga. 454, 291 S.E.2d 489 (1982), cert. denied, 463 U.S. 1214, 103 S. Ct. 3552, 77 L. Ed. 2d 1399 (1983). If several aggravating factors are considered in arriving at a sentencing determination and one of those factors is improper, the improper factor is likely to be harmless error in instances when no mitigating factors are shown. Davis v. Zant, 721 F.2d 1478 (11th Cir. 1983), modiﬁed, 752 F.2d 1515 (11th Cir.), cert. denied, 471 U.S. 1143, 105 S. Ct. 2689, 86 L. Ed. 2d 707 (1985). The O.C.G.A. § 17-10-30(b)(10) statutory aggravating circumstance found as to each of two murder victims was not supported by the evidence based on the state’s argument that killing a witness to a crime was a means of avoiding, interfering with, or preventing lawful arrest, and that once a defendant obtained the victims’ ATM cards and PINs, the defendant murdered the victims because the defendant knew that the defendant would be apprehended if the victims were left alive. However, the invalidation of this statutory aggravating circumstance did not affect the death sentences imposed. Humphreys v. State, 287 Ga. 63, 694 S.E.2d 316, cert. denied, 131 S. Ct. 599, 178 L. Ed. 2d 438 (2010), overruled in part by Willis v. State, 304 Ga. 686, 820 S.E.2d 640 (2018). Failure of only aggravating factor. — Only one aggravating factor was presented to and considered by the jury which imposed the death sentence in the defendant’s ﬁrst trial for murder. Since the ground failed, on appeal, for constitutional insufficiency of the evidence, the state could not, should the state choose to try the defendant again, seek to reimpose the death penalty. Godfrey v. Francis, 613 F. Supp. 747 (N.D. Ga. 1985), aff ’d, 836 F.2d 1557 (11th Cir.), cert. dismissed, 487 U.S. 1264, 109 S. Ct. 27, 101 L. Ed. 2d 977 (1988). Failure to ﬁnd aggravating circumstance does not constitute acquittal. — If multiple aggravating circumstances are submitted to the jury, a ﬁnding by the jury of less than all of the aggravating circumstances does not constitute an acquittal of the aggravating circumstances not listed by the jury. Spraggins v. State, 17-10-30 255 Ga. 195, 336 S.E.2d 227 (1985), cert. denied, 476 U.S. 1120, 106 S. Ct. 1982, 90 L. Ed. 2d 664 (1986). Limitation on habeas corpus relief. — As long as one valid statutory aggravating circumstance exists in a death penalty case, a federal habeas court should not grant relief unless the evidence or factor in question was constitutionally inappropriate. Collins v. Francis, 728 F.2d 1322 (11th Cir.), cert. denied, 469 U.S. 963, 105 S. Ct. 361, 83 L. Ed. 2d 297 (1984). Proper instructions. — Giving of instructions on murder committed during an armed robbery, O.C.G.A. § 17-10-30(b)(2), and murder committed for pecuniary gain, § 17-10-30(b)(4), was proper because the aggravating circumstances referred to were separate and distinct. Simpkins v. State, 268 Ga. 219, 486 S.E.2d 833 (1997); Jenkins v. State, 269 Ga. 282, 498 S.E.2d 502, cert. denied, 525 U.S. 968, 119 S. Ct. 416, 142 L. Ed. 2d 338 (1998). Trial court properly discharged the court’s duty at sentencing of providing the jury with a list of the statutory aggravating circumstances authorized by the evidence. Clark v. State, 275 Ga. 220, 563 S.E.2d 865 (2002). Petitioner death row inmate failed to establish that no fairminded jurist could conclude that the inmate was not prejudiced by the inmate’s trial lawyers’ failure at the sentencing phase to present additional evidence of the petitioner’s limited intelligence and the inmate’s troubled, abusive childhood because, in addition to four statutory aggravating circumstances — (1) the inmate murdered a deputy sheriff, O.C.G.A. § 17-10-30(b)(8); (2) the inmate murdered the deputy sheriff while trying to avoid arrest, O.C.G.A. § 17-10-30(b)(10); (3) the inmate murdered the deputy sheriff while committing armed robbery, O.C.G.A. § 17-10-30(b)(2); and (4) the inmate murdered the deputy sheriff after the inmate had already been convicted of a capital felony, O.C.G.A. § 17-10-30(b)(1) — the jury heard evidence about the inmate’s long history of violence against others. Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230 (11th Cir. 2012). Aggravating Circumstances (Cont’d) 1. In General (Cont’d) Instruction as to invalid circumstance. — Death sentence was not impaired because the judge instructed the jury with regard to an invalid statutory aggravating circumstance, a ‘‘substantial history of serious assaultive criminal convictions,’’ for the underlying evidence was nevertheless fully admissible at the sentencing phase under O.C.G.A. § 17-10-2(a), the instructions did not place particular emphasis on the role of statutory aggravating circumstances in the jury’s ultimate decision, and any possible impact could not fairly be regarded as a constitutional defect in the sentencing process, as nothing in the United States Constitution prohibits a trial judge from instructing a jury that it would be appropriate to take account of a defendant’s prior criminal record in making a jury’s sentencing determination, even though the defendant’s prior history of noncapital convictions could not by itself provide sufficient justiﬁcation for imposing the death sentence. Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983). Rule that a general verdict must be set aside if the jury was instructed that the jury could rely on any of two or more independent grounds, and one of those grounds is insufficient, because the verdict may have rested exclusively on the insufficient ground, does not require that a death sentence be vacated, when the jury did not merely return a general verdict stating that the jury had found at least one aggravating circumstance, but expressly found aggravating circumstances that were valid and legally sufficient to support the death penalty. Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983). Erroneous instruction not reversible error. — Although the court erroneously stated to the jury that kidnapping is a capital felony, when kidnapping with bodily injury is a capital felony but kidnapping is not, the erroneous instruction did not amount to reversible error. Ward v. State, 262 Ga. 293, 417 S.E.2d 130 (1992), cert. denied, 506 U.S. 1084, 113 S. Ct. 1061, 122 L. Ed. 2d 366 (1993). Because O.C.G.A. § 17-10-30(b)(2) sets forth only one statutory aggravating circumstance, the trial court erred by using a verdict that suggested otherwise; however, the error was harmless because the death penalty would still have been authorized if the several overlapping ﬁndings had been merged, and the jury was not instructed to weigh the number of statutory aggravating circumstances but, instead, was properly charged that the jury could impose a sentence less than death for any or no reason. Stinski v. State, 286 Ga. 839, 691 S.E.2d 854, cert. denied, 562 U.S. 1011, 131 S. Ct. 522, 178 L. Ed. 2d 385 (2010). Introduction of evidence relating to nonstatutory grounds. — Trial judge did not err by permitting the state to introduce court records of prior convictions for burglary and assault since the jury based the death sentence on other proper, speciﬁed statutory aggravating circumstances. Green v. Zant, 738 F.2d 1529 (11th Cir.), cert. denied, 469 U.S. 1098, 105 S. Ct. 607, 83 L. Ed. 2d 716 (1984). Five aggravators supported death sentence for malice murder. — Death sentence based on O.C.G.A. § 17-10-30(b)(2), (b)(4), (b)(7), and O.C.G.A. § 17-10-35(c)(1), (c)(3) aggravators for malice murder was supported by sufficient evidence, was not the result of ineffective counsel or an improperly selected jury, and was not disproportionate to other depraved, wantonly vile, and tortuous murders. Defendant’s counsel’s withholding of alleged mitigating evidence (by presenting the evidence to the trial court under seal) so that the state could not use that evidence against the defendant in the event of a new trial could not be used to assess whether counsel was ineffective for withholding the evidence. Franks v. State, 278 Ga. 246, 599 S.E.2d 134 (2004), cert. denied, 543 U.S. 1058, 125 S. Ct. 870, 160 L. Ed. 2d 784 (2005). Consideration of nonstatutory with statutory aggravating circumstance not error. — Because a judge found the statutory aggravating circumstance of armed robbery, then considered the nonstatutory aggravating circumstance of the murder being committed in the victim’s home, coming to the conclusion that the statutory aggravating circumstance and the location of the murder and robbery so aggravated the crime as to outweigh all mitigating circumstances involved in the case, such an evaluation comported with the constitutional requirement of an individualized sentencing decision, and thus the judge did not commit constitutional error in imposing the death sentence. Moore v. Balkcom, 716 F.2d 1511 (11th Cir.), supplemented by, 722 F.2d 629 (11th Cir. 1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1456, 79 L. Ed. 2d 773 (1984). Evidence is not inadmissible in aggravation simply because the evidence does not pertain to a speciﬁc statutory aggravating circumstance. Although the death penalty cannot be imposed unless the jury ﬁnds at least one of the statutory aggravating circumstances enumerated in O.C.G.A. § 17-10-30(b), the state is not limited to proof only of the enumerated statutory aggravating circumstances. Hicks v. State, 256 Ga. 715, 352 S.E.2d 762, cert. denied, 482 U.S. 931, 107 S. Ct. 3220, 96 L. Ed. 2d 706 (1987). If the O.C.G.A. § 17-10-30(b)(4) statutory aggravating circumstance was the only statutory aggravating circumstance contended for by the state, but the state offered, as additional evidence in aggravation, proof that the defendant had a prior record of conviction for assault with intent to murder and for burglary, and the defendant contended the jury improperly considered the two noncapital felony convictions as statutory aggravating circumstances, thereby giving undue emphasis to this prior record in making the jury’s determination as to sentence, in view of the court’s speciﬁc instructions that the defendant’s prior record did not constitute statutory aggravating circumstances, and the jury’s subsequent return of a verdict showing that the jury understood these supplemental instructions, the mere fact that some of the aggravating circumstances were improperly designated ‘‘statutory’’ in the jury’s initial verdict clearly had an inconsequential impact on the jury’s decision regarding the death penalty. Quick v. State, 256 Ga. 780, 353 S.E.2d 497 (1987). Reasonable doubt is essential test in ﬁnding of existence of aggravating circumstance. Burger v. State, 245 Ga. 458, 265 S.E.2d 796, cert. denied, 446 U.S. 988, 100 S. Ct. 2975, 64 L. Ed. 2d 847 (1980). Reasonable doubt test ensures administration of death penalty is constitutional. — Requirement that the jury ﬁnd the existence of at least one statutory aggravating circumstance beyond a reasonable doubt before imposing the death penalty is sufficient to ensure that the death penalty is administered in a constitutional manner. Finney v. State, 242 Ga. 582, 250 S.E.2d 388 (1978), cert. denied, 441 U.S. 916, 99 S. Ct. 2017, 60 L. Ed. 2d 388 (1979). Charge as to aggravating circumstances generally. — Judge does not err in furnishing the jury multiple copies of the judge’s instruction pursuant to the statutory requirement that the instructions be given in charge and in writing to the jury for the jury’s deliberation. Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2642, 53 L. Ed. 2d 251 (1977). This section demanded no more than a written list of the statutory aggravating circumstances which the trial court had orally charged. Mulligan v. State, 245 Ga. 266, 264 S.E.2d 204, cert. denied, 449 U.S. 986, 101 S. Ct. 407, 66 L. Ed. 2d 250 (1980). Judge must charge aggravating circumstances supported by evidence. — Under this section, the judge was required to charge the jury in a capital punishment case on any of the statutory aggravating circumstances which are supported by the evidence. Williams v. State, 237 Ga. 399, 228 S.E.2d 806 (1976). If the indictment fails to allege aggravating circumstances upon which the state would rely in seeking the death penalty, the state may nevertheless impose the death penalty if the state has notiﬁed the defendant of the state’s intention to seek such penalty. Blankenship v. State, 247 Ga. 590, 277 S.E.2d 505 (1981), cert. denied, 488 U.S. 871, 109 S. Ct. 183, 102 L. Ed. 2d 152 (1988), overruled on other grounds, Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993) and, overruled on other grounds, McClellan v. State, 274 Aggravating Circumstances (Cont’d) 1. In General (Cont’d) Ga. 819, 561 S.E.2d 82 (2002). Sufficient evidence of aggravating circumstance. — Evidence supported the court’s charges on, and the jury’s ﬁndings of, the following aggravating circumstances: that the defendant committed murder while engaged in the commission of other capital felonies, rape and kidnapping with bodily injury; and that the murder was wantonly vile and horrible in that the murder involved torture and depravity of mind. Wellons v. State, 266 Ga. 77, 463 S.E.2d 868 (1995). Trial court did not err by denying a defendant’s motion to quash an indictment based on Apprendi v. New Jersey, 530 U. S. 466 (2000), and Ring v. Arizona, 536 U. S. 584 (2002), because the face of the indictment did not contain the statutory aggravators for the death penalty; the state was not required to list the statutory aggravators in the indictment. Thomason v. State, 281 Ga. 429, 637 S.E.2d 639 (2006). Evidence supported ﬁndings of aggravated circumstances. — See Young v. State, 251 Ga. 153, 303 S.E.2d 431 (1983), cert. denied, 464 U.S. 1057, 104 S. Ct. 740, 79 L. Ed. 2d 198 (1984); Holiday v. State, 258 Ga. 393, 369 S.E.2d 241 (1988); Pruitt v. State, 258 Ga. 583, 373 S.E.2d 192 (1988), cert. denied, 493 U.S. 1093, 110 S. Ct. 1170, 107 L. Ed. 2d 1072 (1990). Evidence was sufficient to ﬁnd O.C.G.A. § 17-10-30(b)(2), (4), and (7) murder aggravators of commission while engaged in aggravated battery on the victim for the purpose of receiving monetary value, murder involving depravity and an aggravated battery to the victim since the victim, who was defendant’s close friend, was beaten to death with a hammer and choked, followed by the defendant taking the victim’s car, phone, and money. McPherson v. State, 274 Ga. 444, 553 S.E.2d 569 (2001), cert. denied, 537 U.S. 870, 123 S. Ct. 277, 154 L. Ed. 2d 118 (2002). Because the jury’s recommendation of death for the defendant’s murder conviction was sufficiently based on other valid statutory aggravating factors, the fact that the jury returned a disjunctive ﬁnding of torture, depravity of mind, or an aggravated battery to the victim, whereas this ﬁnding should have been returned in the conjunctive to ensure unanimity concerning the necessary elements of the circumstances under O.C.G.A. § 17-10-30(b)(7), no reversal was required. Rivera v. State, 282 Ga. 355, 647 S.E.2d 70 (2007). Evidence was sufficient to authorize a rational trier of fact to ﬁnd beyond a reasonable doubt that the defendant’s motive in murdering the victims was to avoid the defendant’s own unlawful arrest as the evidence showed that the defendant failed to report to the defendant’s probation officer, left the area after the murder, and had no intention of complying with the terms of probation. Hulett v. State, 296 Ga. 49, 766 S.E.2d 1 (2014), cert. denied, 135 S. Ct. 2358, 192 L. Ed. 2d 153 (U.S. 2015). When a jury recommends a death sentence, the jury must designate in writing the aggravating circumstance or circumstances which the jury has found beyond a reasonable doubt. This written ﬁnding should recite all the essential, pertinent elements of the statutory aggravating circumstances found by the jury. At a minimum, the jury’s intent must be shown with sufficient clarity that the Supreme Court can rationally review the jury’s ﬁnding. Romine v. State, 251 Ga. 208, 305 S.E.2d 93 (1983), cert. denied, 481 U.S. 1024, 107 S. Ct. 1912, 95 L. Ed. 2d 517 (1987). Verdict which completely omits an essential element of a statutory aggravating circumstance does not suffice as a ﬁnding of that statutory aggravating circumstance. Black v. State, 261 Ga. 791, 410 S.E.2d 740 (1991), cert. denied, 506 U.S. 839, 113 S. Ct. 118, 121 L. Ed. 2d 74 (1992). Defendant’s death sentence could not stand since the jury’s verdict omitted an essential element of the O.C.G.A. § 17-10-30(b)(7) aggravating circumstance. However, since the evidence was sufficient to support a proper § 17-10-30(b)(7) ﬁnding, the state could seek anew the death penalty. Black v. State, 261 Ga. 791, 410 S.E.2d 740 (1991), cert. denied, 506 U.S. 839, 113 S. Ct. 118, 121 L. Ed. 2d 74 (1992). Failure to submit aggravating circumstances which are raised by evidence is not an implied directed verdict of acquittal on these aggravating circumstances. Godfrey v. State, 248 Ga. 616, 284 S.E.2d 422 (1981), cert. denied, 456 U.S. 919, 102 S. Ct. 1778, 72 L. Ed. 2d 180 (1982). Renotiﬁcation on aggravating circumstance code language. — Trial court did not err by refusing a defendant’s request to dismiss the statutory aggravating circumstance of committing murder for the purpose of receiving money since the facts supported a possibility that the accomplice was the person who committed the murder for that purpose; however, the remedy was to merely have the state re-notify the defendant regarding the statutory aggravating circumstance using the language of the code, not dismissal of the statutory aggravating circumstance. Wagner v. State, 282 Ga. 149, 646 S.E.2d 676 (2007). Poll of the jury may clarify the jury’s written ﬁnding of aggravating circumstances. Romine v. State, 251 Ga. 208, 305 S.E.2d 93 (1983), cert. denied, 481 U.S. 1024, 107 S. Ct. 1912, 95 L. Ed. 2d 517 (1987). In double murder case in which two death sentences were imposed on the defendant, the fact that each murder was a statutory circumstance supporting the death penalty for the other did not require reversal since several additional aggravating circumstances sounding in torture were present. Blanks v. State, 254 Ga. 420, 330 S.E.2d 575 (1985), cert. denied, 475 U.S. 1090, 106 S. Ct. 1479, 89 L. Ed. 2d 733 (1986). Erroneous sentencing charge on aggravated battery. — When the trial court instructed the jury that the offense of aggravated battery is committed when the defendant causes the speciﬁed injuries ‘‘maliciously, that is to say, with intent . . . ,’’ this instruction was erroneous. A person acts ‘‘maliciously’’ when the person acts intentionally and without justiﬁcation or serious provocation. What the court should have said was: ‘‘Maliciously, that is to say, intentionally and without justiﬁcation or serious provocation. . . . ’’. The instruction given, by its incompleteness, removed from the prosecution the burden of proving every element of the crime of aggravated battery beyond a reasonable doubt. Wade v. State, 258 Ga. 324, 368 S.E.2d 482 (1988), cert. denied, 502 U.S. 1060, 112 S. Ct. 941, 117 L. Ed. 2d 111 (1992). Failure to ﬁnd aggravating circumstance. — Superior court improperly denied the defendant’s motion to vacate the void sentences of life without the possibility of parole because the plea court did not specify an aggravating circumstance at the time of sentencing. Cordova v. State, 297 Ga. 26, 771 S.E.2d 884 (2015). Resentencing. — On resentencing after the defendant’s death penalty was overturned on technical grounds, the state may offer proof of statutory aggravating circumstances submitted to the ﬁrst jury but not listed by that jury in support of the death sentence. Zant v. Redd, 249 Ga. 211, 290 S.E.2d 36 (1982), cert. denied, 463 U.S. 1213, 103 S. Ct. 3552, 77 L. Ed. 2d 1398 (1983). Federal district court’s initial judgment holding that there was insufficient evidence to support a death sentence, i.e., insufficient evidence to prove the alleged statutory aggravating factors beyond a reasonable doubt, as required by O.C.G.A. § 17-10-30(c), which decision was left undisturbed by the federal appellate court, which reversed the district court’s denial of the writ of habeas corpus with respect to the guilt phase of the trial, barred the state under the double jeopardy clause from attempting to impose the death penalty on the defendant in the defendant’s retrial. Young v. Kemp, 760 F.2d 1097 (11th Cir. 1985), cert. denied, 476 U.S. 1123, 106 S. Ct. 1991, 90 L. Ed. 2d 672 (1986). 2. Prior Convictions Evidence of prior record or other criminal acts. — During the presentence hearing, the state, subject to notice limitations, is allowed to place the defendant’s character in issue through the defendant’s prior record or other criminal acts. Fair v. State, 245 Ga. 868, 268 S.E.2d 316, cert. Aggravating Circumstances (Cont’d) 2. Prior Convictions (Cont’d) denied, 449 U.S. 986, 101 S. Ct. 407, 66 L. Ed. 2d 250 (1980). Evidence supported a jury’s determination that there were statutory aggravating circumstances to support the death penalty for a defendant’s murder of a fellow inmate in that the murder was committed by a person in a place of lawful conﬁnement and the murder was committed by a person with a prior record of conviction for a capital felony as: (1) the defendant and the deceased inmate were conﬁned in a county detention center; (2) the defendant had been convicted of an armed robbery and two other murders; (3) the defendant had struck a defense attorney repeatedly during a jailhouse interview; (4) the defendant had slashed a prison guard’s face and throat with a razor blade; and (5) in one day, the defendant had murdered one prison inmate, repeatedly stabbed another with an improvised weapon, and planned to kill a third inmate. Williams v. State, 281 Ga. 87, 635 S.E.2d 146 (2006), cert. denied, 553 U.S. 1004, 128 S. Ct. 2046, 170 L. Ed. 2d 793 (2008). Aggravating circumstance may be established by proof of out-of-state convictions that clearly are comparable to Georgia capital felony offenses. Moon v. State, 258 Ga. 748, 375 S.E.2d 442 (1988), cert. denied, 499 U.S. 982, 111 S. Ct. 1638, 113 L. Ed. 2d 733 (1991), rev’d on other grounds sub nom. Zant v. Moon, 264 Ga. 93, 440 S.E.2d 657 (1994). Eleven-year-old murder conviction properly considered. — 1976 murder conviction was not too old to use in aggravation at a trial in 1987. The age of a conviction is a matter which the defense may argue in mitigation, but the age of the conviction is no ground for the exclusion of the evidence. Kinsman v. State, 259 Ga. 89, 376 S.E.2d 845, cert. denied, 493 U.S. 874, 110 S. Ct. 210, 107 L. Ed. 2d 163 (1989). Prior capital felony not charged at guilt-innocence phase. — When a defendant in a capital case is not charged during the guilt-innocence phase with the capital felony designated as an aggravating circumstance, the trial court would be required to charge the deﬁnition of that capital felony as part of the court’s instruction to the jury during the sentencing phase of the trial, unless such charge has been waived. Burger v. State, 245 Ga. 458, 265 S.E.2d 796, cert. denied, 446 U.S. 988, 100 S. Ct. 2975, 64 L. Ed. 2d 847 (1980). Even if statutory aggravating circumstance is found, death penalty need not be imposed. Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2642, 53 L. Ed. 2d 251 (1977). History of serious assaultive convictions is unconstitutional as an aggravating circumstance. — Portion of paragraph (b)(1) of this section which allowed for the death penalty if a murder was committed by a person who had a substantial history of serious assaultive criminal convictions (deleted in 1981 codiﬁcation) was unconstitutional and, thereby, unenforceable. Arnold v. State, 236 Ga. 534, 224 S.E.2d 386 (1976); Hill v. State, 237 Ga. 794, 229 S.E.2d 737 (1976). Prior noncapital felonies are admissible but not as statutory aggravating circumstances to authorize the imposition of the death penalty. Hughes v. State, 239 Ga. 393, 236 S.E.2d 829 (1977); Davis v. State, 241 Ga. 376, 247 S.E.2d 45, cert. denied, 439 U.S. 947, 99 S. Ct. 341, 58 L. Ed. 2d 338 (1978). Jury should consider record as of time of sentencing, not moment of crime. — In deciding if a defendant has a prior record of conviction for a capital felony, the jury should consider the defendant’s record as of the time of sentencing rather than at the moment of the crime. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978). Supreme Court of Georgia has interpreted O.C.G.A. § 17-10-30(b)(1) as referring to the defendant’s record at the time of sentencing. Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983). At issue for sentencing purposes is the status of the defendant at the time of sentencing, not the defendant’s status at the moment the defendant committed the crimes for which the defendant was tried. State v. Terry, 257 Ga. 473, 360 S.E.2d 588 (1987). Proving prior crime without conviction. — Prior crime may be proven in aggravation despite the lack of a conviction so long as there has not been a previous acquittal. Jefferson v. State, 256 Ga. 821, 353 S.E.2d 468, cert. denied, 484 U.S. 872, 108 S. Ct. 203, 98 L. Ed. 2d 154 (1987), 511 U.S. 1046, 114 S. Ct. 1577, 128 L. Ed. 2d 220 (1994). One murder as aggravating factor for other murder in joint trial. — When the defendant has been tried for two murders jointly, it is not improper to use the conviction for the murder of one victim as the sole statutory aggravating circumstance supporting the sentence for the murder of the other. Childs v. State, 257 Ga. 243, 357 S.E.2d 48 (1987), cert. denied, 484 U.S. 970, 108 S. Ct. 467, 98 L. Ed. 2d 406 (1988). Non-statutory aggravating evidence. — Conviction introduced as non-statutory aggravating evidence does not differ from a conviction introduced to form the basis of a statutory aggravating circumstance on the basis that a statutory aggravating circumstance must be found before the jury can impose a death sentence. Evidence introduced by the state in the penalty phase, whether it is offered to prove a statutory aggravating circumstance or whether it is non-statutory aggravating evidence, is intended to inﬂuence the trier of fact to impose a death sentence. Tharpe v. Head, 272 Ga. 596, 533 S.E.2d 368 (2000). 3. Crime Committed While Engaged in Commission of Other Crimes This section did not require conviction of crime forming basis of aggravating circumstance in order to allow a jury to ﬁnd such an aggravating circumstance for sentencing purposes. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterﬁeld v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002). It is not required that a defendant be convicted of the crime introduced as an aggravating circumstance. Fair v. State, 245 Ga. 868, 268 S.E.2d 316, cert. denied, 449 U.S. 986, 101 S. Ct. 407, 66 L. Ed. 2d 250 (1980). No requirement that crime be completed or that offender be charged with it. — The ‘‘while . . . engaged in the commission of ’’ requirement of paragraph (b)(2) of this section did not require that the subject felony shall have been completed or that the offender shall have been charged with or convicted of the felony. Amadeo v. State, 243 Ga. 627, 255 S.E.2d 718, cert. denied, 444 U.S. 974, 100 S. Ct. 469, 62 L. Ed. 2d 389 (1979); Roberts v. State, 252 Ga. 227, 314 S.E.2d 83, cert. denied, 469 U.S. 873, 105 S. Ct. 228, 83 L. Ed. 2d 157 (1984). Defendant’s argument that the death penalty was not appropriate punishment in the defendant’s case because the defendant did not complete the armed robbery was rejected. The fact that the robbery was not completed does not diminish the defendant’s culpability in the murder and the appropriateness of the death sentence in the defendant’s case. Brockman v. State, 292 Ga. 707, 739 S.E.2d 332 (2013). Use of crimes as aggravating circumstances for one another not permitted. — If armed robberies are held to be aggravating circumstances authorizing death penalties as to murders, the murders cannot then be used in aggravation of the armed robberies. Gregg v. State, 233 Ga. 117, 210 S.E.2d 659 (1974), aff ’d, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976). Although under the test provided for comparison by Ga. L. 1973, p. 159, § 4 (see O.C.G.A. § 17-10-35), two sentences of death for murder and rape are not excessive or disproportionate to the penalties imposed in similar cases, the actual imposition of the two death sentences on the basis of mutually aggravating circumstances cannot be upheld since if the rape offense serves as the aggravating circumstances authorizing the death penalties as to the murder, the murder cannot then be used in aggravation of the rape. Gibson v. State, 236 Ga. 874, 226 S.E.2d 63, cert. denied, 429 U.S. 986, 97 S. Ct. 507, 50 L. Ed. 2d 598 (1976). Aggravating Circumstances (Cont’d) 3. Crime Committed While Engaged in Commission of Other Crimes (Cont’d) If one crime, such as robbery, is used as the statutory aggravating circumstances to support imposition of the death penalty for another crime, such as murder, then the murder cannot then be used as the statutory aggravating circumstances to support imposition of the death penalty for the armed robbery. Johnson v. State, 242 Ga. 649, 250 S.E.2d 394 (1978). When the murders of three children occurred while the defendant was engaged in the commission of another capital felony, the murder of an adult, the imposition of the death penalty for each of the murders of the three children could be supported by the aggravating circumstance that each was committed during the murder of the adult; but the doctrine of ‘‘mutually supporting aggravating circumstances’’ precluded reciprocal use of the murders of the three children as aggravating circumstances to support the imposition of the death penalty for the murder of the adult. Burden v. State, 250 Ga. 313, 297 S.E.2d 242 (1982), cert. denied, 460 U.S. 1103, 103 S. Ct. 1803, 76 L. Ed. 2d 367 (1983). Doctrine of ‘‘mutually supporting aggravating circumstances’’ precludes simultaneous use of the murder of one victim to support the death penalty for murder of a second victim and use of the murder of the latter victim to support the death penalty for the murder of the ﬁrst victim. Wilson v. State, 250 Ga. 630, 300 S.E.2d 640, cert. denied, 464 U.S. 865, 104 S. Ct. 199, 78 L. Ed. 2d 174 (1983). Death sentence upheld when each is supported by other circumstances. — Imposition of two death sentences on the basis of mutually aggravating circumstances cannot be upheld. However, if the death sentences are legally and factually supported by additional aggravating circumstances, no violation is present. Potts v. State, 241 Ga. 67, 243 S.E.2d 510 (1978), cert. denied, 475 U.S. 1068, 106 S. Ct. 1386, 89 L. Ed. 2d 610 (1986), 493 U.S. 876, 110 S. Ct. 214, 107 L. Ed. 2d 166 (1989). Doctrine of ‘‘mutually supporting aggravating circumstances’’ precludes imposition of two death sentences if the sole statutory aggravating circumstance is that the defendant has committed a double murder. Nonetheless, if each murder conviction is supported by an independent statutory aggravating circumstance (e.g., armed robbery), the jury may impose the death penalty for each murder. In such cases, the fact that the jury has designated each murder as a statutory aggravating circumstance supporting the death penalty for the other does not require the reversal of either death sentence. Putman v. State, 251 Ga. 605, 308 S.E.2d 145 (1983), cert. denied, 466 U.S. 954, 104 S. Ct. 2161, 80 L. Ed. 2d 546 (1984). Doctrine of ‘‘mutually supporting aggravating circumstances’’ precludes imposition of two death sentences when the sole statutory aggravating circumstance is that the defendant has committed a double murder. However, the jury may impose a death sentence for each murder in a multiple-murder case if each murder is supported by an independent statutory aggravating circumstance. Isaacs v. State, 259 Ga. 717, 386 S.E.2d 316 (1989), cert. denied, 497 U.S. 1031, 110 S. Ct. 3297, 111 L. Ed. 2d 805 (1990). Defendant’s sentence of death was not imposed under the inﬂuence of passion, prejudice, or any other arbitrary factor because two statutory aggravating circumstances were found; namely, the murder was committed while engaged in the capital felony of kidnapping with bodily injury and while engaged in the offense of burglary, and an insufficiency of the evidence to support one or more statutory aggravating circumstances found by the jury did not require reversal if supported by at least one. Spears v. State, 296 Ga. 598, 769 S.E.2d 337 (2015), overruled on other grounds by Willis v. State, 304 Ga. 686, 820 S.E.2d 640 (2018). If death to victim does not result, death penalty must be set aside. Thomas v. State, 145 Ga. App. 69, 243 S.E.2d 250 (1978). O.C.G.A. § 17-10-30(b)(2) is applicable to multiple murders. Romine v. State, 251 Ga. 208, 305 S.E.2d 93 (1983), cert. denied, 481 U.S. 1024, 107 S. Ct. 1912, 95 L. Ed. 2d 517 (1987). Murder of one victim could be used as the aggravating circumstance supporting imposition of the death penalty for murder of another victim in the same crime. Cargill v. State, 255 Ga. 616, 340 S.E.2d 891 (1986), cert. denied, 479 U.S. 1101, 107 S. Ct. 1328, 94 L. Ed. 2d 180 (1987); overruled on other grounds, Manzano v. State, 282 Ga. 557, 651 S.E.2d 661 (2007). Even though the doctrine of ‘‘mutually supporting circumstances’’ precludes simultaneous use of the murder of one victim to support the death penalty for murder of the second victim and use of the murder of the second to support the death penalty for murder of the ﬁrst, it is appropriate to select one of the two as the basis for affirming a death sentence. McMichen v. State, 265 Ga. 598, 458 S.E.2d 833 (1995). O.C.G.A. § 17-10-30(b)(2) does not require that the underlying felony be one other than murder. Godfrey v. Francis, 613 F. Supp. 747 (N.D. Ga. 1985), aff ’d sub nom. 836 F.2d 1557 (11th Cir. 1988), cert. dismissed sub nom. Zant v. Godfrey, 487 U.S. 1264, 109 S. Ct. 27, 101 L. Ed. 2d 977 (1988). O.C.G.A. § 17-10-30(b)(2) does not require simultaneity of action with regard to multiple offenses if there is one continuous course of criminal conduct in a relatively short period of time. Romine v. State, 251 Ga. 208, 305 S.E.2d 93 (1983), cert. denied, 481 U.S. 1024, 107 S. Ct. 1912, 95 L. Ed. 2d 517 (1987). O.C.G.A. § 17-10-30(b)(2) aggravating circumstance does not require simultaneity of action between the murder and the other capital felony or aggravated battery; § 17-10-30(b)(2) does not require that the murder victim and the kidnapping with bodily injury victim be the same person. Sallie v. State, 276 Ga. 506, 578 S.E.2d 444, cert. denied, 540 U.S. 902, 124 S. Ct. 251, 157 L. Ed. 2d 185 (2003). Intent to commit other crime may arise before or after murder. — Jury may ﬁnd the defendant guilty of armed robbery and ﬁnd that the armed robbery is a statutory aggravating circumstance supporting the death penalty for the victim’s murder regardless of whether the defendant’s intent to take the victim’s property arose before or after the murder. Romine v. State, 251 Ga. 208, 305 S.E.2d 93 (1983), cert. denied, 481 U.S. 1024, 107 S. Ct. 1912, 95 L. Ed. 2d 517 (1987). Evidence was sufficient for application of the aggravating circumstance that murders were committed while the defendant was engaged in the commission of kidnapping, even if the kidnapping was an afterthought to the shootings. Raulerson v. State, 268 Ga. 623, 491 S.E.2d 791 (1997), cert. denied, 523 U.S. 1127, 118 S. Ct. 1815, 140 L. Ed. 2d 953 (1998). Noncontemporaneous offenses. — If there was no indication in the jury’s verdict that the offense of armed robbery was committed contemporaneously with the murder, as the statute requires, and if the jury was not polled as to the aggravating circumstances, the jury’s O.C.G.A. § 17-10-30(b)(2) ﬁnding was insufficient. Jarrell v. State, 261 Ga. 880, 413 S.E.2d 710 (1992). Use of capital felony as both aggravating circumstance and basis for felony murder conviction. — When the defendant argued that it was unconstitutional to allow the defendant’s armed robbery to serve both as a basis for a conviction of felony murder and as a statutory aggravating circumstance, for in these circumstances the ﬁnding of a statutory aggravating circumstance failed to serve the narrowing function described in Zant v. Stephen, 462 U.S. 862, 103 S. Ct. 2733, 77 L.Ed.2d 235 (1983); the fact that the prerequisites of a possible death sentence could be satisﬁed by proof offered at the guilt-innocence phase of the trial was no bar to the imposition of a death sentence, nor an indication that a statutorily-deﬁned aggravating circumstance was not helping to distinguish cases in which the death penalty was imposed from the many cases in which the death penalty was not. Jefferson v. State, 256 Ga. 821, 353 S.E.2d 468, cert. denied, 484 U.S. 872, 108 S. Ct. 203, 98 L. Ed. 2d 154 (1987), 511 U.S. 1046, 114 S. Ct. 1577, 128 L. Ed. 2d 220 (1994). Supporting capital felony not speciﬁed by jury. — If the jury did not specify the supporting capital felony, but the only one charged was armed robbery, absent any objection to the form of the verdict, the jury’s ﬁnding was sufficiently clear to Aggravating Circumstances (Cont’d) 3. Crime Committed While Engaged in Commission of Other Crimes (Cont’d) allow the appellate court to rationally review the verdict. Jefferson v. State, 256 Ga. 821, 353 S.E.2d 468, cert. denied, 484 U.S. 872, 108 S. Ct. 203, 98 L. Ed. 2d 154 (1987), 511 U.S. 1046, 114 S. Ct. 1577, 128 L. Ed. 2d 220 (1994). Murder committed by wife during rape by husband. — Jury was properly instructed that the jury could ﬁnd the O.C.G.A. § 17-10-30(b)(2) circumstance with the underlying predicate crime of aiding and abetting rape as the jury could properly ﬁnd that the defendant, a female, committed murder during the commission of a rape by her husband. Buttrum v. Black, 721 F. Supp. 1268 (N.D. Ga. 1989), aff ’d, 908 F.2d 695 (11th Cir. 1990). Murder committed during burglary. — Since the appellant was discovered while still at the scene of the burglary and since the appellant ﬁred at two people in the appellant’s attempt to get away, killing one, the court concluded that the murder occurred during the commission of the burglary and that the evidence supported the jury’s ﬁnding of a statutory aggravating circumstance under O.C.G.A. § 17-10-30(b)(2). Horton v. State, 249 Ga. 871, 295 S.E.2d 281 (1982), cert. denied, 459 U.S. 1188, 103 S. Ct. 837, 74 L. Ed. 2d 1030 (1983). Imposition of the death penalty for a murder occurring during the commission of a burglary is not rendered constitutionally inﬁrm by reason of the fact that the murder is the burglary conviction’s predicate offense. Cash v. State, 258 Ga. 460, 368 S.E.2d 756 (1988). Jury was authorized to conclude that the defendant burst through the door of the defendant’s mother-in-law’s home ‘‘without authority’’ and with the intent to commit the felony of murder, and thus that the defendant committed the offense of burglary, which could properly count in aggravation for imposition of the death penalty. Brantley v. State, 262 Ga. 786, 427 S.E.2d 758 (1993). Evidence was sufficient to prove that defendant lacked authority to enter the victims’ house and that the defendant intended to commit the speciﬁed felonies once inside under O.C.G.A. § 16-7-1(a), and the defendant’s argument that the defendant had authority to enter due to the defendant’s marriage to one of the victims was not supported by the law; the trial court did not err by refusing to grant the defendant’s motion to dismiss the statutory aggravating circumstance based on the defendant’s commission of a burglary under O.C.G.A. § 17-10-30(b)(2). Sallie v. State, 276 Ga. 506, 578 S.E.2d 444, cert. denied, 540 U.S. 902, 124 S. Ct. 251, 157 L. Ed. 2d 185 (2003). Considering the two murders committed by the defendant, the Supreme Court of Georgia determined that the sentences of death were not excessive or disproportionate to the penalty imposed in similar cases as the defendant murdered a parent and a young child for the purpose of robbing a home; the defendant made the child turn the power back on so that the defendant could see the parent since the parent was still indicating signs of life and the defendant wanted to see to complete the murder; the defendant boasted of raping the child before cutting the child’s throat; and, knowing that the child was still alive, the defendant set the house on ﬁre, leaving the pair to burn. O’Kelley v. State, 284 Ga. 758, 670 S.E.2d 388 (2008). Evidence sufficient to show murder committed along with other crimes. — Evidence supported the jury’s O.C.G.A. § 17-10-30(b)(2) ﬁndings that the murder of the defendant’s spouse was committed while the defendant was engaged in the commission of the offenses of rape, kidnapping with bodily injury, and burglary. Childs v. State, 257 Ga. 243, 357 S.E.2d 48, cert. denied, 484 U.S. 970, 108 S. Ct. 467, 98 L. Ed. 2d 406 (1987). Evidence was sufficient to prove that a murder was committed while the defendant was engaged in the kidnapping and bodily injury of the victim, an aggravating circumstance under O.C.G.A. § 17-10-30(b)(2); the evidence established that the victim was taken from the victim’s home and held at gunpoint by the defendant, that the defendant refused to allow the victim to leave, and that instead the defendant drove the victim to a home where the defendant shot the victim. Dalton v. State, 282 Ga. 300, 647 S.E.2d 580 (2007). There were sufficient aggravating circumstances to support the defendant’s sentencing to life imprisonment without the possibility of parole based on the evidence establishing that the defendant and a codefendant shot and killed a convenience store clerk while the pair were robbing the store. McDougal v. State, 284 Ga. 427, 667 S.E.2d 592 (2008). Evidence sufficient to ﬁnd aggravating circumstance of paragraph (b)(4). — Evidence that the defendant sold the victim’s ring, stripped the victim’s car and attempted to sell various parts of the car, and took the victim’s pistol after murdering the victim was sufficient to support a ﬁnding of the aggravating circumstance in O.C.G.A. § 17-10-30(b)(4). Baxter v. State, 254 Ga. 538, 331 S.E.2d 561, cert. denied, 474 U.S. 935, 106 S. Ct. 269, 88 L. Ed. 2d 275 (1985). Presence of circumstances of paragraphs (b)(2) and (b)(7). — State is not precluded from urging the presence of both O.C.G.A. § 17-10-30(b)(2) and (b)(7) simply because rape is a fact supporting both circumstances. Parks v. State, 254 Ga. 403, 330 S.E.2d 686 (1985). When an aggravated battery is alleged to have been committed upon the person who is also the murder victim, the same limitations should apply to O.C.G.A. § 17-10-30(b)(2) circumstance as to O.C.G.A. § 17-10-30(b)(7) circumstance. That is, insofar as aggravated battery is concerned, only facts occurring prior to death may be considered; i.e., only facts showing aggravated battery, which are separate from the act causing instantaneous death, will support a ﬁnding of aggravated battery. Davis v. State, 255 Ga. 588, 340 S.E.2d 862, cert. denied, 479 U.S. 871, 107 S. Ct. 243, 93 L. Ed. 2d 168 (1986). Evidence supported a defendant’s conviction for aggravated battery as there was evidence supporting an inference that the victim’s ﬁrst wound was non-fatal as the victim managed to ﬂee a short distance into a neighbor’s yard before succumbing to the gunﬁre; the trial court was not required to grant the defendant’s motion for a directed verdict on the aggravated battery charge and the trial court did not err by allowing the jury to consider the crime of aggravated battery as an aggravating circumstance of the murder. Thomason v. State, 281 Ga. 429, 637 S.E.2d 639 (2006). Death penalty for kidnapping with bodily injury is not unconstitutional if the victim is killed. Potts v. State, 241 Ga. 67, 243 S.E.2d 510 (1978), cert. denied, 475 U.S. 1068, 106 S. Ct. 1386, 89 L. Ed. 2d 610 (1986), 493 U.S. 876, 110 S. Ct. 214, 107 L. Ed. 2d 166 (1989). Although the state obtained an order of nolle prosequi regarding a kidnapping with bodily injury charge before trial, the offense was sufficiently part of the same criminal transaction to permit the jury to ﬁnd the statutory aggravating circumstance that the murder was committed while the defendant was engaged in the commission of kidnapping with bodily injury. Walker v. State, 281 Ga. 157, 635 S.E.2d 740 (2006), cert. denied, 552 U.S. 833, 128 S. Ct. 60, 169 L. Ed. 2d 50 (2007). Kidnapping with bodily injury is a capital felony for purposes of aggravating circumstances. — If the victim of the kidnapping is killed, kidnapping with bodily injury is a capital felony for purposes of the statutory aggravating circumstances. Wilson v. State, 246 Ga. 62, 268 S.E.2d 895 (1980), cert. denied, 449 U.S. 1103, 101 S. Ct. 901, 66 L. Ed. 2d 830 (1981). Death penalty for rape is not unconstitutional if the victim is killed. Moore v. State, 240 Ga. 807, 243 S.E.2d 1, cert. denied, 439 U.S. 903, 99 S. Ct. 268, 58 L. Ed. 2d 249 (1978), overruled on other grounds, Sabel v. State, 248 Ga. 10, 282 S.E.2d 61 (1981). Marital murderers. — This section did not forbid imposition of the death penalty upon marital murderers. It merely requires that statutory aggravating circumstances exist. Dix v. State, 238 Ga. 209, 232 S.E.2d 47 (1977), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980). Death penalty for armed robbery alone is excessive. — Under the test provided by former Code 1933, § 27-2537 (see O.C.G.A. § 17-10-35), a death senAggravating Circumstances (Cont’d) 3. Crime Committed While Engaged in Commission of Other Crimes (Cont’d) tence imposed for armed robbery must be considered to be excessive or disproportionate to the penalties imposed in similar cases. Gregg v. State, 233 Ga. 117, 210 S.E.2d 659 (1974), aff ’d, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976). Death sentence for armed robbery must be considered to be excessive or disproportionate to the penalties imposed in similar cases. Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975), cert. denied, 428 U.S. 910, 96 S. Ct. 3223, 49 L. Ed. 2d 1218 (1976). Death has rarely been imposed for armed robbery offense. — Even if there is no indication that the death sentence was imposed for an armed robbery offense under the inﬂuence of passion, prejudice, or any other arbitrary factor, since it has rarely been imposed for that offense, it must be considered to be excessive or disproportionate to the penalties imposed in similar cases. Floyd v. State, 233 Ga. 280, 210 S.E.2d 810 (1974), cert. denied, 431 U.S. 949, 97 S. Ct. 2667, 53 L. Ed. 2d 266 (1977). Armed robbery is viable aggravating circumstance. — ‘‘Capital felony’’ was used in this section in a generic sense to include those felonies which were capital crimes in this state at the time this section was enacted. Thus, armed robbery remains a viable aggravating circumstance. Bowden v. State, 239 Ga. 821, 238 S.E.2d 905 (1977), cert. denied, 435 U.S. 937, 98 S. Ct. 1513, 55 L. Ed. 2d 533 (1978). Armed robbery is still a capital felony for purposes of aggravating circumstances under this section, even though the death penalty cannot be imposed for armed robbery. Davis v. State, 241 Ga. 376, 247 S.E.2d 45, cert. denied, 439 U.S. 947, 99 S. Ct. 341, 58 L. Ed. 2d 338 (1978); Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterﬁeld v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002). Even though the death penalty may no longer be imposed for armed robbery alone, armed robbery is still a capital felony under the aggravating circumstance provisions of this section. Jones v. State, 243 Ga. 820, 256 S.E.2d 907, cert. denied, 444 U.S. 957, 100 S. Ct. 437, 62 L. Ed. 2d 329 (1979). Armed robbery was still considered a capital offense under paragraph (b)(2) of this section. Simmons v. State, 149 Ga. App. 830, 256 S.E.2d 79 (1979). Charge on statutory aggravating circumstances was proper, when even if the defendant decided to take the victim’s money only after having twice shot the victim in the head, the jury was authorized to ﬁnd that the offense of murder was committed while the defendant was engaged in the commission of the offense of armed robbery. Davis v. State, 255 Ga. 588, 340 S.E.2d 862, cert. denied, 479 U.S. 871, 107 S. Ct. 243, 93 L. Ed. 2d 168 (1986). Defendant’s death sentence was not disproportionate since the defendant’s two victims were deliberately killed during the commission of an armed robbery and were shot in the back of the head. Arevalo v. State, 275 Ga. 392, 567 S.E.2d 303 (2002), cert. denied, 538 U.S. 962, 123 S. Ct. 1749, 155 L. Ed. 2d 515 (2003). Kidnapping with bodily injury is viable aggravating circumstance. — Crime, such as kidnapping with bodily injury, on which the death penalty cannot be imposed is nevertheless another capital felony for purposes of aggravating circumstances under this section. Cook v. State, 242 Ga. 657, 251 S.E.2d 230 (1978). Although the death penalty may not be imposed for the offense of kidnapping with bodily injury unless the victim is killed, kidnapping with bodily injury is a capital felony that may be considered by the jury as a O.C.G.A. § 17-10-30(b)(2) statutory aggravating circumstance supporting a death sentence for the offense of murder. Tharpe v. State, 262 Ga. 110, 416 S.E.2d 78, cert. denied, 506 U.S. 942, 113 S. Ct. 383, 121 L. Ed. 2d 292 (1992). Even though the trial court directed a verdict of acquittal of kidnapping with bodily injury because the kidnapping occurred in a different county, the jury was authorized to ﬁnd the statutory aggravating circumstance that the murder was committed while the defendant was engaged in the commission of kidnapping with bodily injury; the offense of kidnapping with bodily injury was sufficiently part of the same criminal transaction to be considered as and found to be a O.C.G.A. § 17-10-30(b)(2) aggravating circumstance of the murder. Lee v. State, 270 Ga. 798, 514 S.E.2d 1, cert. denied, 528 U.S. 1006, 120 S. Ct. 503, 145 L. Ed. 2d 388 (1999). Trial court properly denied the defendant’s motion to dismiss the two statutory aggravating circumstances under O.C.G.A. § 17-10-30(b)(2) that involved the defendant’s commission of the murder while engaged in the commission of the kidnappings with bodily injury of two victims even though the defendant alleged that the kidnappings with bodily injury occurred after the murder, and that the ‘‘bodily injury’’ elements, the rapes, occurred several hours after the murder. Sallie v. State, 276 Ga. 506, 578 S.E.2d 444, cert. denied, 540 U.S. 902, 124 S. Ct. 251, 157 L. Ed. 2d 185 (2003). Trial court did not err in sentencing the defendant to death for murder because the evidence was sufficient to support the trial court’s ﬁnding of the existence of a statutory aggravating circumstance based on kidnapping with bodily injury beyond a reasonable doubt under O.C.G.A. § 17-10-30(b)(2) since the stab wound to the victim’s thigh and the victim’s strangulation constituted bodily injuries sufficient to complete this statutory aggravating circumstance; the defendant pled guilty to the offense of kidnapping with bodily injury, and the evidence presented at the sentencing trial correlated with the deﬁnition of kidnapping. Loyd v. State, 288 Ga. 481, 705 S.E.2d 616, cert. dismissed, 565 U.S. 971, 132 S. Ct. 474, 181 L. Ed. 2d 309 (U.S. 2011). Death resulting from kidnapping. — Evidence was sufficient for conviction for murder committed during kidnapping, O.C.G.A. § 17-10-30(b)(2), as the evidence showed that the defendant had stalked children, possessed a gun and child pornography, had taken two children and taped their mouths shut, and led police to a body, even though the second kidnapping victim in the same incident was not killed. Presnell v. State, 274 Ga. 246, 551 S.E.2d 723 (2001), cert. denied, 535 U.S. 1059, 122 S. Ct. 1921, 152 L. Ed. 2d 829 (2002). Kidnapping alone is not a statutory aggravating circumstance. Crawford v. State, 256 Ga. 57, 344 S.E.2d 215, cert. denied, 479 U.S. 989, 107 S. Ct. 583, 93 L. Ed. 2d 585 (1986). ‘‘Simple’’ kidnapping not a statutory aggravating circumstance. — Since kidnapping when no bodily injury occurs was not a capital crime at the time O.C.G.A. § 17-10-30 was enacted, such an offense cannot serve as a statutory aggravating circumstance. Crawford v. State, 254 Ga. 435, 330 S.E.2d 567 (1985), cert. denied, 489 U.S. 1040, 109 S. Ct. 1098, 103 L. Ed. 2d 239 (1989). Evidence was sufficient to support ﬁnding that murder occurred while defendant was committing rape when the victim was found with her sweater open, her slip pulled up and her pantyhose and panties pulled down, evidence established that there could have been manipulation of the victim’s sexual organs, bruises were present on her thigh and there was a tear in the vaginal wall and hemorrhaging around the urethra. Spraggins v. State, 255 Ga. 195, 336 S.E.2d 227 (1985), cert. denied, 476 U.S. 1120, 106 S. Ct. 1982, 90 L. Ed. 2d 664 (1986). Evidence sufficient to establish aggravated battery. — When the state contended at trial that the offense of murder was committed while the offender was engaged in the commission of the offense of aggravated battery, the evidence showed that the victim was struck twice in the head with a heavy stick and then strangled to death with a ligature, one blow to the head left a severe bruise on the victim’s left cheek and ear, and the other blow lacerated the victim’s scalp and fractured the victim’s skull, the evidence was sufficient to establish the commission of an aggravated battery, and to establish that the aggravated battery preceded the killing and was a separate and distinct act Aggravating Circumstances (Cont’d) 3. Crime Committed While Engaged in Commission of Other Crimes (Cont’d) from the act causing death. Wade v. State, 258 Ga. 324, 368 S.E.2d 482 (1988), cert. denied, 502 U.S. 1060, 112 S. Ct. 941, 117 L. Ed. 2d 111 (1992); Wade v. State, 261 Ga. 105, 401 S.E.2d 701 (1991). Evidence was sufficient to support a ﬁnding of aggravated battery as the defendant invited the victim to the defendant’s apartment, attacked the victim without provocation, chased the victim through the apartment, and continued inﬂicting wounds until the victim died. Perkins v. State, 269 Ga. 791, 505 S.E.2d 16 (1998), cert. denied, 526 U.S. 1118, 119 S. Ct. 1768, 143 L. Ed. 2d 798 (1999). Testimony of a state psychiatrist who examined the defendant is not irrelevant to the statutory aggravating circumstance of murder committed while the offender was engaged in the commission of another capital felony because the psychiatrist testiﬁes in rebuttal to a defense witness who has previously testiﬁed as to the defendant’s mental condition. Godfrey v. Francis, 251 Ga. 652, 308 S.E.2d 806 (1983), cert. denied, 466 U.S. 945, 104 S. Ct. 1930, 80 L. Ed. 2d 475 (1984), cert. dismissed, 487 U.S. 1264, 109 S. Ct. 27, 101 L. Ed. 2d 977 (1988). Evidence supported death penalty for defendant found guilty of being the actual perpetrator of the murder of two unarmed, elderly men during the armed robbery of a convenience store. Wilson v. State, 250 Ga. 630, 300 S.E.2d 640, cert. denied, 464 U.S. 865, 104 S. Ct. 199, 78 L. Ed. 2d 174 (1983). Murder committed during armed robbery. — Evidence supported ﬁndings that murder was committed while the defendant was engaged in commission of armed robbery and burglary. Beck v. State, 255 Ga. 483, 340 S.E.2d 9, cert. denied, 479 U.S. 871, 107 S. Ct. 242, 93 L. Ed. 2d 167 (1986), 495 U.S. 940, 110 S. Ct. 2194, 109 L. Ed. 2d 521 (1990). Petitioner, a death row inmate, in a federal habeas petition argued the death sentence was unconstitutionally imposed because there was insufficient evidence to 17-10-30 establish that the murder occurred during the commission of an armed robbery under O.C.G.A. § 16-8-41 for purposes of O.C.G.A. § 17-10-30(b)(2), but this argument was rejected because while the victim’s wallet was never found, the wallet was missing, the petitioner had not yet cashed the petitioner’s paycheck but nevertheless was in possession of a large sum of cash the night the murder occurred, the petitioner was in possession of an ATM card later determined to belong to the victim, and the petitioner attempted to use the ATM card to withdraw money while wearing a straw hat and sunglasses. Jefferson v. Terry, 490 F. Supp. 2d 1261 (N.D. Ga. 2007), aff ’d in part and rev’d in part, 570 F.3d 1283 (11th Cir. Ga. 2009). Sufficient aggravating circumstances. — Evidence was sufficient under O.C.G.A. § 17-10-35(c)(2) to ﬁnd the statutory aggravating circumstances in order to impose the death sentence on the defendant after ﬁnding that the defendant committed, inter alia, malice murder and the jury found that the offense was committed by a person with a prior record of conviction for a capital felony and that the murder was committed while the defendant was engaged in the commission of another capital felony, pursuant to O.C.G.A. § 17-10-30(b)(1), (3), because the defendant stole a car, robbed a bank at gunpoint, shot a driver while trying to escape, and eventually surrendered. Nance v. State, 280 Ga. 125, 623 S.E.2d 470 (2005). 4. Outrageously or Wantonly Vile, Horrible, or Inhuman Circumstances Paragraph (b)(7) constitutional. — Structure of the Georgia death penalty is constitutional including the statutory aggravating circumstance established by O.C.G.A. § 17-10-30(b)(7). Mathis v. Zant, 744 F. Supp. 272 (N.D. Ga. 1990), vacated in part on other grounds, 975 F.2d 1493 (11th Cir. 1992). Defendant abandoned the defendant’s claim raised solely in an enumeration of error that the phrases ‘‘outrageously or wantonly vile, horrible or inhuman’’ and ‘‘depravity of mind’’ in O.C.G.A. § 17-10-30(b)(7) were facially unconstitutional because the defendant completely failed to support that claim with any argument or citation of authority in the defendant’s brief; further, the claim was without merit as the United States Supreme Court and the Georgia Supreme Court rejected a facial challenge to the constitutionality of the statutory aggravating circumstance set forth in § 17-10-30(b)(7). Walker v. State, 281 Ga. 157, 635 S.E.2d 740 (2006), cert. denied, 552 U.S. 833, 128 S. Ct. 60, 169 L. Ed. 2d 50 (2007). Aggravating circumstance described in O.C.G.A. § 17-10-30(b)(7) is not per se unconstitutional. Morgan v. Zant, 582 F. Supp. 1026 (S.D. Ga.), aff ’d in part, rev’d in part on other grounds, 743 F.2d 775 (11th Cir. 1984), overruled on other grounds, 784 F.2d 1479 (11th Cir.), cert. denied, 478 U.S. 939, 107 S. Ct. 421, 93 L. Ed. 2d 371 (1986), 486 U.S. 1009, 108 S. Ct. 1739, 100 L. Ed. 2d 202 (1988). Paragraph (b)(7) of this section was not unconstitutionally vague. Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2642, 53 L. Ed. 2d 251 (1977); Crowe v. State, 265 Ga. 582, 458 S.E.2d 799 (1995), cert. denied, 516 U.S. 1148, 116 S. Ct. 1021, 134 L. Ed. 2d 100 (1996). Paragraph (b)(7) of O.C.G.A. § 17-10-30 was not inherently overbroad or vague and the court acted properly in reading this provision to the jury and instructing the jury that the jury ‘‘may consider that one aggravated factor if it is supported by the evidence.’’ Cape v. Francis, 741 F.2d 1287 (11th Cir. 1984), cert. denied, 474 U.S. 911, 106 S. Ct. 281, 88 L. Ed. 2d 245 (1985). O.C.G.A. § 17-10-30(b)(7) circumstance was not unconstitutionally vague or overbroad as applied to a defendant who viciously attacked the defendant’s spouse with a knife, cutting the spouse ﬁve times in the spouse’s face, once on the spouse’s hand, another six times in the spouse’s chest and back, and slashing the spouse’s throat at least seven times so deeply as to nearly decapitate the spouse. Taylor v. State, 261 Ga. 287, 404 S.E.2d 255, cert. denied, 502 U.S. 947, 112 S. Ct. 393, 116 L. Ed. 2d 343 (1991). O.C.G.A. § 17-10-30(b)(7) has two parts. First, the murder must be ‘‘outrageously or wantonly vile, horrible or inhuman.’’ Second, the offense of murder must involve either torture, depravity of mind, or an aggravated battery to the victim (or a combination of these three elements). Black v. State, 261 Ga. 791, 410 S.E.2d 740 (1991), cert. denied, 506 U.S. 839, 113 S. Ct. 118, 121 L. Ed. 2d 74 (1992). Failure to ﬁnd that murder was outrageously or wantonly vile, horrible, or inhuman. — Because the jury did not make a ﬁnding that the murder committed by the defendant was outrageously or wantonly vile, horrible, or inhuman, in compliance with the ﬁrst component of the aggravating circumstance set forth in O.C.G.A. § 17-10-30(b)(7), the statutory aggravating circumstance imposed required vacating that factor; however, the defendant’s death sentence was unaffected because the death sentence was supported by the jury’s ﬁnding of three other statutory aggravating circumstances. Perkinson v. State, 279 Ga. 232, 610 S.E.2d 533, cert. denied, 546 U.S. 896, 126 S. Ct. 229, 163 L. Ed. 2d 214 (2005). Deﬁning ‘‘outrageously or wantonly vile, horrible or inhuman.’’ — Words ‘‘outrageous or wantonly vile, horrible or inhuman’’ are subject to common understanding and need no clariﬁcation. Conklin v. State, 254 Ga. 558, 331 S.E.2d 532, cert. denied, 474 U.S. 1038, 106 S. Ct. 606, 88 L. Ed. 2d 584 (1985). All terms in O.C.G.A. § 17-10-30(b)(7) are words of ordinary signiﬁcance which require no explication with the exception of ‘‘aggravated battery’’ which is a crime deﬁned by statute. Gilreath v. State, 247 Ga. 814, 279 S.E.2d 650 (1981), cert. denied, 456 U.S. 984, 102 S. Ct. 2258, 72 L. Ed. 2d 862 (1982). Deﬁning ‘‘aggravated battery.’’ — Trial judge need not deﬁne any O.C.G.A. § 17-10-30(b)(7) term other than the phrase ‘‘aggravated battery.’’ Morgan v. Zant, 582 F. Supp. 1026 (S.D. Ga.), aff ’d in part, rev’d in part on other grounds, 743 F.2d 775 (11th Cir. 1984), overruled on other grounds, 784 F.2d 1479 (11th Cir.), cert. denied, 478 U.S. 939, 107 S. Ct. 421, 93 L. Ed. 2d 371 (1986), 486 U.S. 1009, 108 S. Ct. 1739, 100 L. Ed. 2d 202 (1988). Deﬁning ‘‘depravity of mind.’’ — Absent a request, depravity of mind need not Aggravating Circumstances (Cont’d) 4. Outrageously or Wantonly Vile, Horrible, or Inhuman Circumstances (Cont’d) be deﬁned in the court’s charge to the jury; however, if the court undertakes to do so the court should do so correctly. West v. State, 252 Ga. 156, 313 S.E.2d 67 (1984). ‘‘Depravity of mind’’ is not catchall for cases when no other statutory aggravating circumstance is raised by the evidence. Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2642, 53 L. Ed. 2d 251 (1977); Johnson v. State, 242 Ga. 649, 250 S.E.2d 394 (1978). ‘‘Depravity of mind’’ will not be permitted to become a catchall. Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 611 (1980). Beating of victim before or after death would support depravity of mind. — In defendant’s capital murder trial, counsel was not ineffective for failing to call a forensic pathologist to counter the state’s pathologist’s testimony that the victim was alive from a gunshot wound when the victim was severely beaten, which supported two aggravating circumstances for the death penalty under O.C.G.A. § 17-10-30(b)(2), and (b)(7), because even if the victim was dead when beaten, that evidence would have supported a ﬁnding of depravity of mind. Terrell v. GDCP Warden, 744 F.3d 1255 (11th Cir. 2014). Death penalty is restricted to those cases that lie at the core of statutory aggravating circumstances. Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2642, 53 L. Ed. 2d 251 (1977). Upon sentence review, affirmance will be restricted to those cases which lie at the very core of this section. Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 611 (1980). Test for presence of this aggravating circumstance. — Aggravating circumstance of paragraph (b)(7) of this section involved both the effect on the victim, viz., torture, or an aggravated battery; and the offender, viz., depravity of mind. As to both parties the test is that the acts were outrageously or wantonly vile, horrible, or inhuman. Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2642, 53 L. Ed. 2d 251 (1977). It is not required that a trier of fact ﬁnd the existence of each disjunctive phrase of the statute, only 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, 245 Ga. 868, 268 S.E.2d 316, cert. denied, 449 U.S. 986, 101 S. Ct. 407, 66 L. Ed. 2d 250 (1980). Disjunctive phrases means only one element needs to exist. — In determining whether the evidence supports the jury’s or judge’s ﬁnding of a statutory aggravating circumstance, the evidence must be sufficient to satisfy the ﬁrst major component of the statutory aggravating circumstance and at least one subpart of the second component. Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 611 (1980); Ledford v. State, 264 Ga. 60, 439 S.E.2d 917 (1994), cert. denied, 513 U.S. 1085, 115 S. Ct. 740, 130 L. Ed. 2d 641 (1995). Finding that a murder involved torture, depravity of mind, an aggravated battery, or some combination of those three involved only one aggravating circumstance. Carruthers v. State, 272 Ga. 306, 528 S.E.2d 217, cert. denied, 531 U.S. 934, 121 S. Ct. 321, 148 L. Ed. 2d 258 (2000), overruled on other grounds, Vergara v. State, 283 Ga. 175, 657 S.E.2d 863 (2008). Trial court erred by merely reading the language of O.C.G.A. § 17-10-30(b)(7) to the jury without explaining the meaning of ‘‘aggravated battery’’, when a reasonable juror, if properly instructed, could very well have concluded that there was no aggravated battery in the case. Jones v. Kemp, 706 F. Supp. 1534 (N.D. Ga. 1989). Improper instructions were harmless error. — Improper instruction telling the jury that the jury could ﬁnd the O.C.G.A. § 17-10-30(b)(7) circumstance merely on a ﬁnding of ‘‘deﬁciency in moral sense and rectitude’’ rather than a ﬁnding of ‘‘utterly corrupt, perverted or immoral’’ did not require reversal, when the instructions on the other aggravating circumstances were proper, and the defendant did not show that the evidence was insufﬁcient to ﬁnd those circumstances. Buttrum v. Black, 721 F. Supp. 1268 (N.D. Ga. 1989), aff ’d, 908 F.2d 695 (11th Cir. 1990). Trial court’s failure to instruct jury on element of armed robbery permitted the jury to exercise an impermissible ‘‘open-ended discretion’’, as a reasonable juror could have believed that although the defendant intended to take property from a store, the defendant did not intend to take property from the person of the murder victim. Jones v. Kemp, 706 F. Supp. 1534 (N.D. Ga. 1989). Verdict lacking paragraph (b)(7) ﬁndings was insufficient. — Since a jury’s O.C.G.A. § 17-10-30(b)(7) verdict cannot be sustained if the verdict completely omits an essential element of the statutory aggravating circumstance, a jury’s verdict, failing to ﬁnd that the murder was ‘‘outrageously or wantonly vile, horrible, or inhuman,’’ was insufficient, even though the jury did ﬁnd depravity of mind and torture. Jarrell v. State, 261 Ga. 880, 413 S.E.2d 710 (1992). Speciﬁc ﬁnding as to facts not required. — There is no requirement that the jury make a speciﬁc ﬁnding as to how the facts support O.C.G.A. § 17-10-30(b)(7). Rather, it is only required that the form of the verdict set forth the applicable statutory language. Jones v. Kemp, 706 F. Supp. 1534 (N.D. Ga. 1989). Execution-style murder of unarmed and already wounded innocent man provided an adequate factual basis for a jury’s ﬁnding an aggravating circumstance under O.C.G.A. § 17-10-30(b)(7). Jones v. Kemp, 706 F. Supp. 1534 (N.D. Ga. 1989). Execution-style murder of security guard, an off-duty police officer investigating a disturbance, was an outrageously or wantonly vile, horrible, and inhuman murder. Davis v. State, 263 Ga. 5, 426 S.E.2d 844, cert. denied, 510 U.S. 950, 114 S. Ct. 396, 126 L. Ed. 2d 344 (1993). Lack of standards. — Imposition of the death penalty pursuant to this section does not constitute cruel and unusual punishment even though neither the court nor the jury is given standards to determine whether the offense for which the death penalty is being given is outrageously or wantonly vile, horrible, or inhuman in that the offense involved torture, depravity of mind, or an aggravated battery to the victim. Johnson v. State, 242 Ga. 649, 250 S.E.2d 394 (1978). In determining whether the evidence shows depravity of mind, the age, and the physical characteristics of the victim may be considered. Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 611 (1980); Rivers v. State, 250 Ga. 303, 298 S.E.2d 1 (1982). Depravity of mind may be shown by facts occurring only prior to death. — When only facts occurring prior to death are relied upon to support a ﬁnding of torture or aggravated battery, the fact that the victim was tortured or was the victim of an aggravated battery will also support a ﬁnding of depravity of mind of the defendant. That is, a defendant who tortures the victim or subjects the victim to an aggravated battery before killing the victim can be found to have a depraved mind. Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 611 (1980). Depravity of mind may be shown by acts committed on body after death. — Defendant who mutilates or seriously disﬁgures the victim’s body after death, or who commits a sex act upon the victim’s body after death may be found to have a depraved mind, and such acts would be sufficient to show depravity of mind of the defendant within the meaning of this section. Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 611 (1980). Provision satisﬁed even if relative timing of death and aggravating acts indeterminate. — If it cannot be determined whether the victim was subjected to an aggravated battery or torture before death, or to mutilation or disﬁgurement after death, because the exact time of death or the precise act causing death Aggravating Circumstances (Cont’d) 4. Outrageously or Wantonly Vile, Horrible, or Inhuman Circumstances (Cont’d) cannot be ascertained, the penalty of death nevertheless may be sustained on the basis of aggravated battery, serious physical abuse before death, or depravity of mind demonstrated after death. Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 611 (1980). Even though the testimony was inconclusive as to whether the victim, who was shot, was alive when the victim’s throat was cut, there was sufficient evidence to support a ﬁnding of aggravating circumstances under O.C.G.A. § 17-10-30(b)(2) and (b)(7). Drane v. State, 265 Ga. 255, 455 S.E.2d 27 (1995). In order to constitute aggravated battery, bodily harm must occur before death. Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 611 (1980). What constitutes torture. — Torture occurs when the victim is subjected to serious physical abuse before death. Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 611 (1980); Collins v. State, 246 Ga. 261, 271 S.E.2d 352 (1980), cert. denied, 449 U.S. 1103, 101 S. Ct. 990, 66 L. Ed. 2d 829 (1981); Cervi v. State, 248 Ga. 325, 282 S.E.2d 629 (1981), cert. denied, 456 U.S. 938, 102 S. Ct. 1995, 72 L. Ed. 2d 457 (1982); Cunningham v. State, 248 Ga. 558, 284 S.E.2d 390 (1981), cert. denied, 455 U.S. 1038, 102 S. Ct. 1741, 72 L. Ed. 2d 155 (1982); Mathis v. State, 249 Ga. 454, 291 S.E.2d 489 (1982); Jones v. State, 249 Ga. 605, 293 S.E.2d 708 (1982). Torture also occurs when the victim is subjected to an aggravated battery. Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 611 (1980); Cunningham v. State, 248 Ga. 558, 284 S.E.2d 390 (1981), cert. denied, 455 U.S. 1038, 102 S. Ct. 1741, 72 L. Ed. 2d 155 (1982). Torture occurs when the victim is subjected to serious physical abuse before death as when the victim dies from a slow but steady loss of blood a full two hours after being shot in the neck and abandoned by the defendant. Brooks v. State, 246 Ga. 262, 271 S.E.2d 172 (1980), cert. denied, 451 U.S. 921, 101 S. Ct. 2000, 68 L. Ed. 2d 312 (1981). Because the victim, whose hands had been bound with wire, was raped and then shot at point blank range, the evidence supported the ﬁnding of depravity of mind on the part of the defendant and that the murder involved torture to the victim and was outrageously and wantonly vile. Johnson v. Zant, 249 Ga. 812, 295 S.E.2d 63 (1982), cert. denied, 459 U.S. 1228, 103 S. Ct. 1236, 75 L. Ed. 2d 469 (1983). Defendant who tortures a victim before killing the victim can be found to have a depraved mind. Collins v. State, 246 Ga. 261, 271 S.E.2d 352 (1980), cert. denied 449 U.S. 1103, 101 S. Ct. 900, 66 L. Ed. 2d 829 (1981); Jones v. State, 249 Ga. 605, 293 S.E.2d 708 (1982), cert. denied, 502 U.S. 832, 112 S. Ct. 107, 116 L. Ed. 2d 77 (1991). Evidence for O.C.G.A. § 17-10-30(b)(7) depraved mind murder was sufficient as the defendant was shown to have stalked elementary school children; planned the defendant’s crimes; abducted the eight-year-old victim as the victim was walking home from school; taped the victim’s mouth shut; threatened to kill the victim; took the victim to a remote area; made the victim strip naked; forced the victim to watch as the defendant raped and forced other sex acts on the victim’s friend; chased the victim as the victim tried to escape; and held the victim’s head underwater where the victim struggled for several minutes before dying. Presnell v. State, 274 Ga. 246, 551 S.E.2d 723 (2001), cert. denied, 535 U.S. 1059, 122 S. Ct. 1921, 152 L. Ed. 2d 829 (2002). Death penalty was properly imposed under O.C.G.A. § 17-10-30(b)(2), (7) after the defendant: (1) used the defendant’s parent’s relationship with a sick, elderly victim to gain access to the victim’s house and belongings, steal the victim’s checkbook, and forge the victim’s checks; (2) plotted the victim’s murder when the victim threatened to report the crime; (3) ambushed the victim in the victim’s driveway, shot and wounded the victim, chased the victim, knocked the victim down, and shot the victim three more times while standing over the victim; (4) dragged the victim into the bushes, beat, and robbed the victim; and (5) had been convicted of prior crimes involving a calculated, planned murder and an armed robbery, an aggravated battery to the victim before death, or depravity of mind. Terrell v. State, 276 Ga. 34, 572 S.E.2d 595 (2002), cert. denied, 540 U.S. 835, 124 S. Ct. 88, 157 L. Ed. 2d 64 (2003). Although the defendant could not be convicted of both malice murder and three counts of aggravated battery when the same actions by the defendant served as the basis for both the murder and the battery offenses, the jury was nevertheless authorized to ﬁnd the statutory aggravating circumstances set forth in O.C.G.A. § 17-10-30(b)(2) and the aggravated battery portion of the (b)(7) circumstance because the victim’s death was not instantaneous; likewise, the jury’s ﬁnding of torture was supported by the evidence that the victim’s death was not instantaneous but was preceded by serious sexual abuse, as well as the serious physical abuse that constituted the aggravated batteries. Furthermore, the shocking and vicious nature of the victim’s murder by stomping and kicking authorized the jury to ﬁnd that the murder was outrageously or wantonly vile, horrible, or inhuman; thus, the evidence was sufficient to support the jury’s ﬁndings beyond a reasonable doubt of both the paragraph (b)(2) and (b)(7) statutory aggravating circumstances. Ledford v. State, 289 Ga. 70, 709 S.E.2d 239, cert. denied, 565 U.S. 1017, 132 S. Ct. 556, 181 L. Ed. 2d 401 (2011), overruled on other grounds by Willis v. State, 394 Ga. 686, 820 S.E.2d 640 (2018). Physical abuse includes psychological abuse resulting in mental anguish to the victim in anticipation of physical harm. Brooks v. State, 246 Ga. 262, 271 S.E.2d 172 (1980), cert. denied, 451 U.S. 921, 101 S. Ct. 2000, 68 L. Ed. 2d 312 (1981); Brown v. Francis, 254 Ga. 83, 326 S.E.2d 735, cert. denied, 474 U.S. 865, 106 S. Ct. 186, 88 L. Ed. 2d 155 (1985). Evidence of psychological abuse by the defendant to the victim before death if it is shown to have resulted in severe mental anguish to the victim in anticipation of physical harm may amount to serious physical abuse, that is, torture of the victim, and also will support a ﬁnding of depravity of mind of the defendant. Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 611 (1980); Rivers v. State, 250 Ga. 303, 298 S.E.2d 1 (1982). Even when death instantaneous. — While the death of a victim who dies instantaneously with little or no forewarning does not involve torture or aggravated battery, evidence of psychological abuse by the defendant to the victim prior to death, if it is shown to have resulted in severe mental anguish to the victim in anticipation of physical harm, may amount to serious physical abuse, that is, torture of the victim, and will support a ﬁnding of depravity of mind of the defendant. Dampier v. State, 245 Ga. 882, 268 S.E.2d 349, cert. denied, 449 U.S. 938, 101 S. Ct. 337, 66 L. Ed. 2d 161 (1980). Inﬂiction of mental distress on someone other than victim. — Evidence that the defendant, having shot and killed his estranged wife and her boyfriend, walked his ﬁve-year-old child through her mother’s blood and left her screaming in a truck overlooking the murder scene while he drank beer at a neighbor’s house, was sufficient to support the ﬁnding of depravity of mind. McMichen v. State, 265 Ga. 598, 458 S.E.2d 833 (1995). Physical abuse includes sexual abuse for purposes of proving torture under this section. Brooks v. State, 246 Ga. 262, 271 S.E.2d 172 (1980), cert. denied, 451 U.S. 921, 101 S. Ct. 2000, 68 L. Ed. 2d 312 (1981). Serious sexual abuse may be found to constitute serious physical abuse. Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 611 (1980); Collins v. State, 246 Ga. 261, 271 S.E.2d 352 (1980), cert. denied, 449 U.S. 1103, 101 S. Ct. 900, 66 L. Ed. 2d 829 (1981), 449 U.S. 1103, 101 S. Ct. 990, 66 L. Ed. 2d 829 (1981); Rivers v. State, 250 Ga. 303, 298 S.E.2d 1 (1982). Depravity of mind. — When only facts occurring prior to death are relied upon, the fact that the victim was tortured will support a ﬁnding of depravity of Aggravating Circumstances (Cont’d) 4. Outrageously or Wantonly Vile, Horrible, or Inhuman Circumstances (Cont’d) mind. Brooks v. State, 246 Ga. 262, 271 S.E.2d 172 (1980), cert. denied, 451 U.S. 921, 101 S. Ct. 2000, 68 L. Ed. 2d 312 (1981). Evidence amply supported the statutory aggravating circumstance of torture and depravity of mind as the victim, an elderly woman weighing less than 100 pounds, was raped so forcefully that she received potentially fatal injuries to her vaginal tract, was brutally beaten on the head so hard that she suffered a potentially fatal brain hemorrhage, and kicked in the chest hard enough to break her sternum and several ribs and to cause potentially fatal internal bleeding, and was then strangled to death. Allen v. State, 253 Ga. 390, 321 S.E.2d 710 (1984), cert. denied, 470 U.S. 1059, 105 S. Ct. 1774, 84 L. Ed. 2d 834 (1985). Defendant convicted of two capital felonies can receive death penalty for both under this section. Johnson v. State, 242 Ga. 649, 250 S.E.2d 394 (1978). After raping, robbing, and binding victim, defendant put a bullet through victim’s head, the sentence of death imposed is not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Gates v. State, 244 Ga. 587, 261 S.E.2d 349 (1979), cert. denied, 445 U.S. 938, 100 S. Ct. 1332, 63 L. Ed. 2d 772 (1980). Execution-style murder of unarmed and wounded armed robbery victim was an outrageously or wantonly vile, horrible, and inhuman murder. Jones v. State, 249 Ga. 605, 293 S.E.2d 708 (1982), cert. denied, 502 U.S. 832, 112 S. Ct. 107, 116 L. Ed. 2d 77 (1991). Finding of strangulation alone is not enough. — Finding of strangulation alone does not, as a matter of law, establish torture of the victim or depravity of mind on the part of the defendant so as to constitute an aggravating circumstance under O.C.G.A. § 17-10-30(b)(7). Baxter v. State, 254 Ga. 538, 331 S.E.2d 561, cert. denied, 474 U.S. 935, 106 S. Ct. 269, 88 L. Ed. 2d 275 (1985), reh’g. denied, 498 U.S. 1041, 111 S. Ct. 714, 112 L. Ed. 2d 703 (1991). Post-mortem mutilation of the victim’s body may show depravity of mind sufficient to support a ﬁnding that the ‘‘offense of murder’’ was ‘‘outrageously or wantonly vile, horrible or inhuman.’’ Conklin v. State, 254 Ga. 558, 331 S.E.2d 532, cert. denied, 474 U.S. 1038, 106 S. Ct. 606, 88 L. Ed. 2d 584 (1985). Verdict of ‘‘torture, depravity of mind, or aggravated battery’’ was not insufficiently deﬁnitive as, under the circumstances, each of the three components of the ﬁnding described essentially the same conduct. Alderman v. State, 254 Ga. 206, 327 S.E.2d 168, cert. denied, 474 U.S. 911, 106 S. Ct. 282, 88 L. Ed. 2d 245 (1985), rehrg. denied, 498 U.S. 1041, 111 S. Ct. 714, 112 L. Ed. 2d 703 (1991). Death sentence not unconstitutional if defendant murdered rape victim. — O.C.G.A. § 17-10-30(b)(7) was not applied to the defendant, who raped his victim before murdering her, in violation of his Eighth Amendment rights. Johnson v. Kemp, 759 F.2d 1503 (11th Cir. 1985). Aggravating circumstance found beyond a reasonable doubt. — See Conklin v. State, 254 Ga. 558, 331 S.E.2d 532, cert. denied, 474 U.S. 1038, 106 S. Ct. 606, 88 L. Ed. 2d 584 (1985); Perkins v. State, 269 Ga. 791, 505 S.E.2d 16 (1998), cert. denied, 526 U.S. 1118, 119 S. Ct. 1768, 143 L. Ed. 2d 798 (1999). Evidence showed that the defendant severely beat the victim in the face with a heavy stick, and then killed the victim by crushing the victim’s skull with a log after the victim had fallen to the ground, thus, the evidence supported the jury’s ﬁnding that the offense of murder was outrageously or wantonly vile, horrible, or inhuman in that it involved an aggravated battery to the victim. Jefferson v. State, 256 Ga. 821, 353 S.E.2d 468, cert. denied, 484 U.S. 872, 108 S. Ct. 203, 98 L. Ed. 2d 154 (1987), 511 U.S. 1046, 114 S. Ct. 1577, 128 L. Ed. 2d 220 (1994). Evidence supported the jury’s O.C.G.A. § 17-10-30(b)(7) ﬁnding. Childs v. State, 257 Ga. 243, 357 S.E.2d 48, cert. denied, 484 U.S. 970, 108 S. Ct. 467, 98 L. Ed. 2d 406 (1987). Application of O.C.G.A. § 17-10-30(b)(7) aggravating circumstance held not unconstitutional in view of Georgia Supreme Court’s analysis in review of death sentence. Davis v. Kemp, 829 F.2d 1522 (11th Cir. 1987), cert. denied, 485 U.S. 929, 108 S. Ct. 1099, 99 L. Ed. 2d 262 (1988). There was sufficient evidence to support a ﬁnding of the statutory aggravating circumstances in O.C.G.A. § 17-10-30(b)(7), namely that the offense was outrageously or wantonly vile, horrible, or inhumane in that it involved torture, depravity of mind, or an aggravated battery to the victim. Alderman v. Zant, 22 F.3d 1541 (11th Cir.), cert. denied, 513 U.S. 1061, 115 S. Ct. 673, 130 L. Ed. 2d 606 (1994). Defendant committed an aggravated battery against the victim by inﬂicting a non-fatal gunshot wound to the victim’s arm and shoulder, leading the victim into a back bedroom as the victim’s sister approached the house, holding the victim alive as the victim’s sister asked where the victim was and then murdered the victim, fatally shooting the victim four more times, and ﬁnally obtaining another weapon from the codefendant’s automobile and shooting the victim again; those facts authorized the jury’s ﬁnding of the O.C.G.A. § 17-10-30(b)(7) statutory aggravating circumstance regarding the victim’s murder and the imposition of the death penalty under Georgia law and under the Constitution of the United States. Lucas v. State, 274 Ga. 640, 555 S.E.2d 440 (2001), cert. denied, 537 U.S. 840, 123 S. Ct. 163, 154 L. Ed. 2d 62 (2002). Defendant’s life without parole sentences for two murders were supported by the existence of the aggravating circumstance set out in O.C.G.A. § 17-10-30(b)(7) because: (1) the defendant murdered one victim for the speciﬁc purpose of causing emotional distress to the defendant’s former wife; (2) the defendant shot a stranger, shot into the home of two other strangers, and murdered another stranger; and (3) the defendant left notes at all the scenes for the purpose of establishing the illusion of an unknown killer working in the area so that when the defendant achieved the ultimate goal of shooting the former wife, suspicion would be diverted from the defendant. Lewis v. State, 279 Ga. 464, 614 S.E.2d 779 (2005). Evidence supported the jury’s ﬁnding of an aggravated battery for purposes of the death penalty under O.C.G.A. § 17-10-30(b)(7) after ﬁnding petitioner inmate guilty of felony murder because the evidence showed that the petitioner severely beat the victim in the face with a heavy stick, and then ﬁnished the victim off by crushing the victim’s skull with a log after the victim fell to the ground. Jefferson v. Terry, 490 F. Supp. 2d 1261 (N.D. Ga. 2007), aff ’d in part and rev’d in part, 570 F.3d 1283 (11th Cir. Ga. 2009). Kidnapping of a murder victim’s ten-year-old child along with the victim, the fact that the child witnessed the victim plead for the victim’s life, and the fact that the child witnessed the murder, was sufficient to enable the jury to ﬁnd beyond a reasonable doubt that the murder was outrageously or wantonly vile, horrible, or inhuman. Dalton v. State, 282 Ga. 300, 647 S.E.2d 580 (2007). Evidence adduced at trial was sufficient to authorize a rational trier of fact to ﬁnd beyond a reasonable doubt the existence of statutory aggravating circumstances because the jury found the existence of the following statutory aggravating circumstances beyond a reasonable doubt; the murder was committed while the defendant was engaged in the commission of the capital felony of armed robbery, and the murder was outrageously or wantonly vile, horrible, or inhuman in that the murder involved depravity of mind: (1) the defendant initially attacked the victim, who was disabled, in the conﬁned area of a bathroom, where the defendant struck the victim multiple times shortly after the victim emerged from the shower; (2) the defendant continued the attack on the victim even as the victim fell to the ﬂoor; (3) the evidence showed that the defendant struck the victim in the head with a hammer and a metal stool at least 12 to 14 times; and (4) the defendant acted for the purpose of obtaining money the victim had just received from cashing the victim’s disability check. Arrington v. State, 286 Ga. 335, 687 S.E.2d 438 (2009), cert. denied, 131 S. Ct. 112, 178 L. Ed. 2d 69 (U.S. 2010). denied, 562 U.S. 1011, 131 S. Ct. 522, 178 L. Ed. 2d 385 (2010). Aggravating Circumstances (Cont’d) 4. Outrageously or Wantonly Vile, Horrible, or Inhuman Circumstances (Cont’d) Trial court did not err in sentencing the defendant to death for murder because the evidence supported the trial court’s ﬁnding beyond a reasonable doubt that the murder was outrageously or wantonly vile, horrible, or inhuman in that the murder involved torture to the victim and the depravity of mind of the defendant; the defendant pled guilty to the offenses of cruelty to children, aggravated sodomy, and enticing a child for indecent purposes, and the state presented evidence that the defendant took the three-year-old victim from the defendant’s home to an abandoned trailer late at night for the purpose of having sex with the defendant. Loyd v. State, 288 Ga. 481, 705 S.E.2d 616, cert. dismissed, 565 U.S. 971, 132 S. Ct. 474, 181 L. Ed. 2d 309 (U.S. 2011). Death sentence proportional to other cases involving aggravating factor. — Death sentence imposed on the defendant was not the result of passion, prejudice, or any other arbitrary factor in violation of O.C.G.A. § 17-10-35(c)(1), nor was the death sentence excessive or disproportionate under § 17-10-35(c)(3); considering the evidence that the defendant choked and stabbed four female victims to death, that the defendant attempted to kill four other female victims, and that the murder in the instant case involved the O.C.G.A. § 17-10-30(b)(7) aggravating factor relating to the fact that the murder was vile and involved a kidnapping, the sentence was proportional to similar cases and was not the result of any arbitrary factor. Lewis v. State, 279 Ga. 756, 620 S.E.2d 778 (2005), cert. denied, 547 U.S. 1116, 126 S. Ct. 1917, 164 L. Ed. 2d 671 (2006). Instruction proper. — Because the O.C.G.A. § 17-10-30(b)(7) statutory aggravating circumstance was not used as an unlawful ‘‘catchall’’ justiﬁcation for the death penalty, the trial court properly gave an instruction regarding that statutory aggravating circumstance recommended by the supreme court. Stinski v. State, 286 Ga. 839, 691 S.E.2d 854, cert. 5. Murder of Peace Officer, Corrections Employee, or Fireman for Purpose of Avoiding, Arrest or Custody =cd. Knowledge that victim was peace officer or other official. — O.C.G.A. § 17-10-30(b)(8) statutory aggravating circumstance does not require knowledge on the part of the defendant that the victim was a peace officer or other designated official engaged in the performance of official duties. Fair v. State, 284 Ga. 165, 664 S.E.2d 227 (2008). Murders to prevent arrest and against peace officer in performing duties not necessarily identical. — Murder committed for the purpose of preventing a lawful arrest and murder committed against a peace officer while engaged in the performance of the officer’s official duties were not necessarily identical, and therefore did not fall within the inclusion provisions of former Code 1933, §§ 26-505 and 26-506 (see O.C.G.A. §§ 16-1-6 and 16-1-7), as these sections did not apply to aggravating circumstances but to crimes. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterﬁeld v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); City of Atlanta v. First Nat’l Bank, 246 Ga. 424, 271 S.E.2d 821 (1980). Death penalty warranted for murder of peace officer by person in custody. — Death penalty was warranted after the jury found the following statutory aggravating circumstances to exist beyond a reasonable doubt: (1) the offense of murder was committed against a peace officer while engaged in the performance of the officer’s official duties; and (2) the offense of murder was committed by a person in the lawful custody of a peace officer. Wallace v. State, 248 Ga. 255, 282 S.E.2d 325 (1981), cert. denied, 455 U.S. 927, 102 S. Ct. 1291, 71 L. Ed. 2d 471 (1982). Murder of off-duty police officer. — Death penalty was warranted under O.C.G.A. § 17-10-30 since the defendant shot execution-style an off-duty police ofﬁcer in the official performance of the officer’s duties as a security guard. Davis v. State, 263 Ga. 5, 426 S.E.2d 844, cert. denied, 510 U.S. 950, 114 S. Ct. 396, 126 L. Ed. 2d 344 (1993). Evidence sufficient. — Imposition of the death sentence and the jury’s ﬁnding of the aggravators that the offense was committed against a police officer in the performance of the officer’s official duties and that the offense was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest were supported by evidence that the defendant shot and killed a police officer during an investigatory stop to prevent the officer from discovering that the defendant was a convicted felon in possession of a weapon, as well as by the defendant’s admissions that the defendant shot the officer in the face and again in the back of the head when the defendant heard the officer moan. Henry v. State, 269 Ga. 851, 507 S.E.2d 419 (1998), cert. denied, 526 U.S. 1118, 119 S. Ct. 1768, 143 L. Ed. 2d 798 (1999). Defendant’s death sentence was upheld since the committed crimes of malice murder and aggravated battery on a peace officer were committed while the defendant was engaged in the commission of an aggravated battery and the murder was committed against a peace officer while the officer was engaged in the performance of official duties. Lawler v. State, 276 Ga. 229, 576 S.E.2d 841, cert. denied, 540 U.S. 934, 124 S. Ct. 356, 157 L. Ed. 2d 243 (2003). 6. Causing or Directing Another to Commit Murder or Committing Murder as Agent or Employee O.C.G.A. § 17-10-30(b)(6) is not unconstitutionally vague. Castell v. State, 250 Ga. 776, 301 S.E.2d 234 (1983). Agency relationship required. — If the defendant was not hired by another person, i.e., was not that person’s agent, the death penalty cannot be upheld based on O.C.G.A. § 17-10-30(b)(6). Whittington v. State, 252 Ga. 168, 313 S.E.2d 73 (1984). Terms ‘‘agent’’ and ‘‘employee,’’ as used in O.C.G.A. § 17-10-30(b)(6), should be given their common, everyday meanings; an ‘‘employee’’ is one who is hired by another and an ‘‘agent’’ is one who acts for another. Castell v. State, 250 Ga. 776, 301 S.E.2d 234 (1983). Murder for hire. — Legislature intended that O.C.G.A. § 17-10-30(b)(6) be applicable to murders for hire and that the statute be applicable to both the hirer and the one hired. Castell v. State, 250 Ga. 776, 301 S.E.2d 234 (1983). Defendant who caused or directed a follower or lackey to commit murder was subject to the application of O.C.G.A. § 17-10-30(b)(6), even if the murder was not for hire. Mize v. State, 269 Ga. 646, 501 S.E.2d 219 (1998), cert. denied, 525 U.S. 1078, 119 S. Ct. 817, 142 L. Ed. 2d 676 (1999). 7. Great Risk of Death to More than One Person Deﬁning terms for jury instruction. — Deﬁning the terms ‘‘knowingly’’ and ‘‘great risk’’ in an instruction on the O.C.G.A. § 17-10-30(b)(3) circumstance was not required. Philpot v. State, 268 Ga. 168, 486 S.E.2d 158 (1997), cert. denied, 522 U.S. 1054, 118 S. Ct. 706, 139 L. Ed. 2d 648 (1998). Circumstance held inapplicable. — O.C.G.A. § 17-10-30(b)(3) aggravating circumstance was not meant to apply to a case where the defendant used a shotgun to shoot the victim, who was lying face down on the ground, in the head. Harrison v. State, 257 Ga. 528, 361 S.E.2d 149 (1987), cert. denied, 485 U.S. 982, 108 S. Ct. 1281, 99 L. Ed. 2d 492 (1988). Sufficient evidence. — Evidence that the defendant ﬁred several shots into a crowded night club was sufficient to show that the defendant knowingly created a great risk of death to more than one person in a public place. Philpot v. State, 268 Ga. 168, 486 S.E.2d 158 (1997), cert. denied, 522 U.S. 1054, 118 S. Ct. 706, 139 L. Ed. 2d 648 (1998).