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Black v. State3/12/2001
evidence to determine if the statements were exculpatory or that there existed sufficient corroborating circumstances to indicate trustworthiness as required by § 2804 (B)(3). As such, the trial court reserved ruling on the admissibility of these statements until more evidence was presented.
Ultimately, the trial court admitted Robbie Seale's statement, but found the statements of Jimmy and Jesse Black were not sufficiently corroborated for admission. Appellant maintains that even though Jimmy testified at trial he was prejudiced by the exclusion of Jimmy and Jesse's statements because: 1) it forced counsel to change her strategy; 2) the prosecutor was able to suggest that Jimmy and Appellant colluded on the story Jimmy told the jury; and 3) Appellant was precluded from presenting a full picture of what happened that night and to provide the jury with corroboration of his statements that he did not intend to kill anyone.
Assuming, arguendo, the trial court erred in excluding these statements, Appellant's right to present his defense was not impeded. As stated above, the record shows defense counsel knew at least two weeks before trial there could be problems with admitting the co-defendants' statements. Despite potential problems, the defense resolutely pursued its heat of passion manslaughter defense relying on the same facts. Moreover, co-defendant Jimmy Black's voluntary testimony, given against the advice of counsel, was almost identical to his statement. Though he added it looked like the victims were moving around inside the Blazer reaching for something, which allowed the prosecutor to remark that the testimony sounded familiar and to ask Jimmy if he and Appellant had talked about his story prior to trial or his arrest, Jimmy denied any collusion. Because Jimmy testified voluntarily and failed to mention anything about the victims reaching for anything in his statement, the State was free to ask questions to test his veracity and it is difficult to see how Appellant was prejudiced by the exclusion of his statement since he testified in substantially the same manner at trial. Further, the exclusion of Jesse's statement did not prevent Appellant from presenting his defense. Jesse's statement only corroborated the sequence of events and that he and Jimmy had no intent to kill. Given the evidence presented, Appellant cannot show he was prejudiced by the exclusion of Jimmy's and Jesse's statements. Accordingly, we find this proposition is without merit.
SECOND STAGE ISSUES
In his sixth proposition of error, Appellant claims it is unconstitutional to impose the death penalty upon a defendant who commits a homicide while in a heat of passion. We agree and believe that is why heat of passion manslaughter is not punishable by death. However, we disagree with Appellant that the facts of this case proved heat of passion manslaughter. As discussed in Proposition I, supra, the evidence was sufficient for a rational jury to conclude Appellant killed Pogue with malice aforethought making his act first degree murder and constitutionally punishable by death.
In his thirteenth proposition of error, Appellant claims the evidence was insufficient to sustain the jury's finding that he knowingly created a great risk of death to more than one person and that this aggravating circumstance is vague and overbroad as applied to him. He maintains the evidence was insufficient because Lewis was never at a great risk of death and Appellant never intended to kill anyone.
"When the sufficiency of the evidence of an aggravating circumstance is challenged on appeal, this Court reviews the evidence in the light most favorable to the State to determine if any r
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