Demarcus Ali Sears

Case overview

Demarcus Ali Sears was 25 years old when he was sentenced to death in September 1993 in Cobb County. A jury convicted Sears of armed robbery and kidnapping with bodily injury of Gloria Ann Wilbur. The jury found aggravating circumstances related to the kidnapping with bodily injury being committed while Sears was engaged in the capital felonies of armed robbery, rape, and murder, and that the kidnapping with bodily injury was outrageously vile, wantonly vile, horrible, and inhuman, involving torture to the victim before death, depravity of mind of the defendant, and aggravated battery to the victim before death. Sears was sentenced to death for the kidnapping with bodily injury.

The case included proceedings affirming Sears’ convictions while remanding for further proceedings on jury misconduct during the sentencing phase. A subsequent appeal affirmed the death sentence after addressing remaining enumerations of error and concluding there was no error.

Timeline

• Oct. 7, 1990 — Demarcus Sears and Phillip Williams kidnapped Gloria Ann Wilbur, 59, and then robbed, raped, stabbed, and beat her with brass knuckles over a four-hour period.
• Oct. 8, 1990 — The crimes were noted as occurring on October 7, 1990 and October 8, 1990.
• Apr. 11, 1991 — A grand jury indicted Sears.
• Apr. 23, 1991 — The state filed its notice of intent to seek the death penalty.
• May 1991 — Phillip Williams was sentenced to two life sentences.
• Dec. 12, 1991 — A pretrial hearing occurred in which Sears repeatedly referred to the house as “my house.”
• Sep. 13, 1993 — Jury selection began.
• Sep. 20, 1993 — The trial began.
• Sep. 22, 1993 — The jury returned its verdict in the guilt-innocence phase.
• Sep. 25, 1993 — The jury returned its verdict in the penalty phase of death.
• Sep. 27, 1993 — Sears was sentenced to death.
• Feb. 26, 1993 — An interim appeal was decided.
• Oct. 14, 1993 — Sears filed a motion for new trial.
• Jul. 18, 1996 — The trial court denied the motion.
• Jun. 20, 1996 — Sears amended the motion for new trial.
• Aug. 19, 1996 — Sears filed his notice of appeal.
• Oct. 23, 1996 — The case was originally docketed in this court.
• Nov. 8, 1996 — The case was remanded to the trial court for completion of the record.
• Feb. 24, 1997 — The case was re-docketed.
• Jul. 8, 1997 — Oral argument was held.
• Dec. 3, 1997 — The case was decided.
• Dec. 19, 1997 — Reconsideration was denied.
• Mar. 15, 1999 — The case on subsequent review was decided.
• Apr. 2, 1999 — Reconsideration was denied.

People

Defendant

• Demarcus Ali Sears, 25; convicted of armed robbery and kidnapping with bodily injury of Gloria Ann Wilbur; sentenced to death for kidnapping with bodily injury.

Co-defendant

• Phillip Williams; Sears’ accomplice; pleaded guilty in exchange for two life sentences and testified for the state at Sears’ trial.

Victim

• Gloria Ann Wilbur, 59.

Key additional named persons in proceedings

• Judge Staley, presiding judge in the trial court for the conviction and sentencing.
• Fletcher, Presiding Justice, in the appellate decision affirming guilt and remanding for further sentencing-phase proceedings on jury misconduct.
• Carley, Justice, concurring in part and dissenting in part.
• Thomas J. Charron, District Attorney.
• Debra H. Bernes, Assistant District Attorney.
• Nancy H. Jordan, Assistant District Attorney.
• Jack E. Mallard, Assistant District Attorney.
• Thurbert E. Baker, Attorney General.
• Susan V. Boleyn, Senior Assistant Attorney General.
• Paige R. Whitaker, Assistant Attorneys General.
• Wesley S. Horney, Assistant Attorneys General.
• Carlton C. Carter, J. Michael Treadaway, Ray Gary, Jr., Tanya Greene, for appellant.
• Adrian McCravy, GBI Special Agent.
• Willie Burge, a Waffle House witness.
• Demarcus Sears’ attorney (unnamed in text as an individual, but referenced).
• Angel Fisher, juror.
• Kenneth Makant, juror.
• Detective Laurie Bello, witness in penalty phase.
• Major Jim Burns, Cobb County jailor.

Witnesses and jurors

• Ms. Wilbur’s husband, identified in context as an attorney who was the first witness for the state in voir dire-related strike explanations.
• Juror panel included African-American members and alternate jurors.
• A Vietnamese native juror who spoke Chinese at home and had difficulty understanding and speaking English.
• Juror described as a psychiatrist.
• Juror who was breast-feeding her ten-month-old.
• Juror whose mistrust for attorneys was raised during voir dire.

The offence

Sears and Phillip Williams kidnapped Gloria Ann Wilbur, 59. The conduct occurred over a four-hour period and included robbery, rape, stabbing, and beating with brass knuckles.

Sears and Williams were walking through Atlanta because their car had broken down and they wanted to return home to Ohio, where they lived. They walked to a Waffle House in Smyrna and tried to borrow money from several patrons. They told the patrons their car had broken down and that they needed money to go to Cincinnati. Sears carried a black briefcase that contained brass knuckles, knives, and a set of old handcuffs that was missing a key. He opened the briefcase in the restaurant and tried to sell some of the items to a customer. After receiving directions and a couple of dollars for bus fare, Sears and Williams walked to a nearby Kroger food store.

A police officer observed them loitering near the Kroger parking lot and briefly spoke with them before leaving in response to a radio call. They subsequently decided to steal a car so they could drive back to Cincinnati. Sears and Williams spotted the victim, Gloria Wilbur, when she parked her 1985 Buick and entered the Kroger. Around 8:00 p.m., Ms. Wilbur returned to her car and placed her groceries in the trunk. Sears approached her, struck her with the brass knuckles, and forced her into the car. Williams got behind the wheel and they drove north on I-75.

Sears told Ms. Wilbur to keep quiet, pulled her into the back seat, and handcuffed her with her hands behind her back. When they stopped for gas and hamburgers, Sears wedged Ms. Wilbur down between the seats and covered her with book bags to prevent discovery. While driving through Tennessee, Sears raped her. They crossed into Kentucky around 1:00 a.m. and stopped the car. Despite her pleas to remain in the car, Sears took the victim into the bushes along I-75 and stabbed her to death. Ms. Wilbur’s body was found still handcuffed almost a week later. Her abandoned Buick was discovered in a Cincinnati suburb.

Investigation

The evidence included identification by witnesses at the Waffle House and a tip from an Ohio informant, leading police to question Williams and Sears. Both men gave statements.

Sears admitted that he had taken the Buick and kidnapped, raped, and killed the victim. His statement matched Williams’ statement except that Sears claimed it was Williams who had struck Ms. Wilbur with the brass knuckles and Williams claimed it was Sears. Both men stated that only Sears had raped and stabbed her.

Arrest and search

Sears consented to a search of his mother’s house, where he lived. He was escorted by police to the residence. Sears took the police to his room and showed them the black briefcase and brass knuckles.

Evidence

Bloodstains in the car matched the victim, and pubic hair taken from the back seat matched Sears.

A police officer’s observation occurred when Sears and Williams were loitering near the Kroger parking lot, and the officer briefly spoke with them before responding to a radio call.

Two photographs of the victim’s body were admitted during the guilt-innocence phase. The photographs included one showing the victim’s handcuffed body from the back as it was found alongside the highway and one close-up of the handcuffs and jewelry on the victim’s hands. The appellate discussion addressed decomposition but stated that the photographs did not depict decomposition to the face and chest area.

Trial

Charges and verdict

A jury convicted Sears of:

• armed robbery
• kidnapping with bodily injury of Gloria Ann Wilbur

The jury was also charged in sentencing-phase deliberations with respect to aggravating circumstances and mitigating evidence.

Juror selection and challenges

Sears maintained the trial court erred in failing to excuse for cause three potential jurors based on various biases. The appellate decision concluded that the trial court did not abuse its discretion in deciding each juror was capable of impartial service and would consider mitigating evidence and instructions.

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

Regarding jury strikes, the state used four of the six peremptory strikes against African-American members of the jury panel and exercised its only strike during alternate juror selection against an African-American.

Sears contended the state violated Batson v. Kentucky by using three peremptory strikes in a racially discriminatory manner. The state provided reasons:

• striking one juror because he expressed a mistrust for attorneys and because the first witness for the state (the victim’s husband) was an attorney;
• striking another juror because she was breast-feeding her ten-month-old and sequestration would create a hardship;
• striking a third juror who was a psychiatrist because he had six acute patients needing constant attention and he had counseled prisoners in the past.

The trial court found the state offered race-neutral reasons for each strike, and the appellate decision concluded there was no Batson violation.

Sears argued J. E. B. v. Alabama regarding gender discrimination in peremptory strikes, but the appellate decision declined to consider it because Sears did not raise the objection at trial.

Jurors were qualified concerning the death penalty because the state had authority to seek the death penalty.

Pretrial issues

Disclosure of expert identities

Sears challenged a trial court ruling requiring him to reveal the identity of expert witnesses and their written reports. The appellate decision discussed that state discovery of written expert reports that a defendant intends to introduce at trial is governed by the decision in Rower v. State and found no showing that the trial court ordered Sears’ experts to produce written reports and give them to the state.

Sears initially sought public funds to hire a psychiatrist, microanalyst, and forensic odontologist and filed a motion in limine to bar the state from calling his expert witnesses. Before the trial court could rule on those motions, and without presenting argument at an ex parte hearing, Sears withdrew his motion for funds for a psychiatrist to assist in the guilt-innocence phase. The trial court later approved employment of a microanalyst and a forensic odontologist to review materials used by the state’s expert to establish the identity of the victim. In approving their employment, the trial court ordered Sears to reveal their identity to the state. The appellate decision found Sears failed to show harm, noting that Sears had access to the state’s file and that Williams’ Ohio juvenile records were not part of that file.

The appellate decision addressed that Brady did not impose an affirmative obligation on the prosecution to seek out information for the defense when it was not part of the state’s file. It concluded Sears failed to show denial of beneficial information so important that its absence prevented a fair trial and materially prejudiced his case.

It also noted that Sears’ attorney discussed Williams’ juvenile record in opening and cross-examined Williams about former drug dealing and his plea of guilty in exchange for two life sentences. A state witness testified Williams was held at a juvenile detention center in Ohio when brought in for questioning on the Georgia crimes. The appellate decision concluded no error in denying the motion to compel the state to obtain Williams’ juvenile records from Ohio.

Consent to search

The police obtained consent from Sears to search his mother’s house and executed a warrantless search uncovering incriminating items, including brass knuckles and a black briefcase.

Sears alleged his consent was not freely and voluntarily given due to coercion, promises, and his drug-induced state. The appellate decision evaluated voluntariness by examining totality of circumstances, including that Sears was eighteen years old, had an eleventh grade education, had been held by police for less than two hours, was not subject to physical or psychological duress, and was advised of constitutional rights and read and signed a form authorizing the search. The appellate decision concluded consent was voluntary.

Sears also argued he lacked authority to consent because he was not the owner and did not live there. Sears informed police before consenting that he was not the owner and no longer lived there. The appellate discussion covered that the consent form crossed out “property owner” and included handwritten wording “and where I live with my mother” next to the place description. At a pretrial hearing on December 12, 1991, Sears repeatedly referred to the house as “my house,” and conflicting testimony existed about whether he still lived there. The appellate decision concluded the evidence was sufficient to support the trial court’s finding that Sears gave valid consent. It also stated that even if Sears no longer lived there and lacked an expectation of privacy, the authority-to-consent argument would be moot because Sears would lack standing to assert a Fourth Amendment violation.

Guilt-innocence phase rulings and evidentiary issues

Admissibility of rape evidence

Sears contended kidnapping with bodily injury was completed when he struck the victim with brass knuckles and forced her into the car in the Kroger parking lot, so rape evidence occurring in Tennessee should have been ruled inadmissible as an independent crime. The appellate decision disagreed, explaining rape was not an independent crime because it was part of a continuous criminal enterprise beginning with the robbery and kidnapping in Georgia and proceeding to the murder in Kentucky. It found the rape evidence relevant to the robbery and kidnapping by corroborating Sears’ and his accomplice’s statements and linking Sears to the crimes by explaining why pubic hairs from Sears were found in the Buick’s back seat. The trial court did not err in admitting evidence of the rape.

Testimony of GBI Special Agent Adrian McCravy

Sears contended Agent McCravy testified about matters without personal knowledge and that it amounted to impermissible character evidence. Sears argued that after stating Williams had been located in a juvenile detention facility, Agent McCravy testified Sears had been brought to the police station in the same car as Williams, improperly implying Sears was also held in a juvenile facility. Sears maintained Agent McCravy was not present when the men were brought in and could not testify whether they were brought in together. The appellate decision concluded there was no error because Sears’ contentions were not supported by the record. It stated Agent McCravy testified he could not be sure if Sears and Williams were brought to the station in the same car because he did not assist in transportation. It also stated other witnesses clarified Sears was not being held in the juvenile detention facility with Williams.

Hearsay statements

Sears filed a motion in limine seeking to prevent the state from asking witness Willie Burge about an opinion proffered by a woman that Burge should not go with Sears and Williams because they would kill him. The appellate decision stated the trial court granted the motion and the record revealed the state did not elicit the opinion. Sears’ arguments about other alleged hearsay statements were waived because he did not object at trial.

Photographs

Sears argued admission of two photographs of the victim’s body was prejudicial error because the defense stipulated to the identity of the victim and the body had been altered by elements. The appellate decision concluded there was no error. It addressed that while decomposition occurred, the photographs did not depict decomposition to the face and chest areas. It stated they showed the handcuffed body from the back as found alongside the highway and a close-up of the handcuffs and jewelry. It concluded they were relevant and not duplicative and that photographs of bodies altered by the combined forces of the murderer and the elements before autopsy were generally admissible.

Closing arguments

Sears asserted the prosecutor made improper statements during closing arguments in the guilt-innocence phase. The appellate decision stated Sears failed to object to any portion and applied the standard that reversible error required a reasonable probability the improper argument changed the result of the trial, concluding there was no such error sufficient to overcome procedural default.

Jury instructions requested

During the guilt-innocence phase, the trial court denied Sears’ request to give an instruction on simple kidnapping as a lesser included offense. The appellate decision stated the evidence was undisputed that the victim was kidnapped, hit with brass knuckles, and stabbed; therefore, the evidence did not raise a lesser offense. It concluded refusal to charge on simple kidnapping was proper because there was no evidence raising the lesser offense.

The appellate decision also stated the trial court did not err in refusing to charge that kidnapping was a continuing offense (because it was not adapted to the evidence), refusing to charge that an element of kidnapping with bodily injury was that the bodily injury caused the victim’s death (as incorrect), refused a requested charge on conspiracy because the evidence supported such a charge, and refused to charge that evidence regarding rape was admitted solely as an essential element because rape evidence was admissible as discussed in the rape-admissibility division.

Sentencing

Aggravating circumstances and sentence

Sears was sentenced to death for kidnapping with bodily injury. The jury found aggravating circumstances:

• kidnapping with bodily injury was committed while Sears was engaged in the capital felonies of armed robbery, rape, and murder (OCGA 17-10-30 (b) (2));
• kidnapping with bodily injury was outrageously vile, wantonly vile, horrible, and inhuman in that it involved torture, depravity of mind, and aggravated battery to the victim (OCGA 17-10-30 (b) (7)).

The appellate decision addressed notice issues:

• The state filed a notice of intent to seek the death penalty listing three OCGA 17-10-30 (b) (2) aggravating circumstances and “any others which may be supported by the evidence upon the trial.”
• Sears objected to the catch-all phrase and sought to compel the state to reveal all statutory aggravating circumstances before trial. The trial court denied the motion, but the state promised to notify the trial court of additional statutory aggravating circumstances if any became known.
• While the jury deliberated in the guilt phase, the state notified Sears it would seek the (b) (7) aggravating circumstance.
• The appellate decision held it was not incumbent upon the state to notify the defendant prior to trial of every statutory aggravating circumstance it might seek to prove.

The appellate decision also addressed the structure of OCGA 17-10-30 (b) (7) as written in the disjunctive requiring the jury to find at least one phrase of the first clause existed due to the existence of at least one phrase of the second clause, as well as addressing how the verdict form reflected the statutory language.

Evidence in aggravation

During the penalty phase, the appellate decision described evidence admitted in aggravation about Sears’ lack of remorse and jail reputation:

• Detective Laurie Bello testified that Sears lacked remorse.
• Major Jim Burns, a Cobb County jailor, testified that he became familiar with Sears in the three years Sears had been in jail, and that Sears’ reputation in the jail was bad; Burns stated that in his seventeen years of experience, Burns could not remember an inmate who had caused more trouble.
• The prosecutor asked each witness if they would believe anything Sears said under oath; both replied, “No.”

The appellate decision stated that any lawful evidence tending to show motive, lack of remorse, general moral character, and predisposition to commit other crimes was admissible in aggravation subject to notice provisions, and that conduct after incarceration could be considered. It concluded evidence was admissible because the state provided pretrial notice of intent to produce it in aggravation.

Jury coercion and deliberations (sentencing phase)

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

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

The jury resumed deliberations and continued for another three hours. The jury then sent a second note:

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

Sears urged the trial court to accept the jury’s “verdict” and impose a life sentence. The court declined. Instead it charged the jury, in part, as follows:

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

After the jury was excused for the evening and reconvened the following morning, the trial court informed counsel that one juror had been sitting in the jury room with a Sony Walkman on her head, and that she had been asked to give it to the bailiffs “so she could participate in the deliberations.” The court also stated the foreman asked bailiffs to remove all magazines and reading material from the jury room. The court said it had received two notes from the jury: one from the foreman and another from juror Angel Fisher.

The note from the foreman read:

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

The note from Fisher read:

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

The trial court brought the jury in and stated that it would not read the voir dire transcript and would not define perjury. The court clarified the role of the foreman by stating that while the foreman was responsible for leading deliberations, “in matters of voting, all jurors stand the same.” The court further added:

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

The jury was then sent back to deliberate further, and after two and a half hours of additional deliberations the jury reached a verdict and returned to the courtroom, sentencing Sears to death. The jury was polled, and each juror stated the verdict was his or her verdict and freely and voluntarily rendered.

Sears contended the trial court coerced the jury to render a verdict of death. The appellate decision concluded the verdict was not coerced by the trial court after examining the totality of the circumstances, including that the jurors deliberated for more than fourteen hours over a period of three days and each juror stood by the verdict when polled. The appellate decision also addressed the trial court giving a modified Allen charge and concluded it was not coercive.

On remand-related testimony, Sears contended juror Fisher’s testimony demonstrated coercive effect. The appellate decision stated it did not accept that contention and summarized Fisher’s testimony as she changed her vote after feeling bullied and ostracized by other jurors and after the threat of perjury, and concluded Fisher voted for death because of the “normal dynamic of jury deliberations.”

Juror misconduct claims raised on remand-related proceedings

Sears challenged the authority of the trial court prohibiting counsel from contacting jurors to investigate alleged jury misconduct.

In the earlier appeal, the appellate decision stated:

• After reviewing circumstances related to jury coercion and the sentencing phase, it concluded the trial court improperly restricted Sears from contacting jurors to investigate his claim of jury misconduct.
• It remanded to allow Sears to develop a record on jury misconduct.
• It concluded Sears was entitled to reinstatement of the trial court’s order granting funds for an investigator, and that the investigator and his counsel should contact jurors to investigate the claim of jury misconduct.
• Anyone seeking to speak with a juror had to clearly inform the juror that he or she had the right to choose to answer questions and the right to decline.

The appellate decision later stated it did not decide the remaining enumerations of error related to the sentencing phase because it was remanding for further proceedings related to sentencing.

In a concurrence and partial dissent, Carley stated the dissenting view that the trial court had not erred in prohibiting counsel from contacting jurors and that remand was not necessary.

In the later appellate review after remand, Sears contended he was entitled to a new trial because juror Kenneth Makant failed to disclose certain information on his juror questionnaire and injected it into jury deliberations. The appellate discussion included:

• The juror questionnaire asked whether any member of a juror’s family or close friend had been the victim of a violent crime, and Makant responded negatively.
• Sears alleged Makant lied because his daughter had been the victim of a rape when she was 13, but the crime was not reported and no one was arrested or convicted.
• At the hearing on remand, Makant testified he answered truthfully, explaining he interpreted the question as referring to any conviction or court proceeding and that he did not know what offenses he would be asked to try when he completed the questionnaire.
• The appellate decision concluded evidence did not show Makant lied when he answered question No. 28, and even if it could be said that Makant lied, a correct response would not have provided a valid basis for a challenge for cause.

The later appellate review also addressed two instances of alleged juror misconduct in the jury room:

• Makant’s injection of his daughter’s rape into deliberations, which the appellate decision held was of no import and concluded did not rise to the level of juror misconduct under the circumstances.
• The foreman’s statement that juror Fisher must be lying when she responded to voir dire questions concerning her willingness to impose the death penalty and that she should be prosecuted for perjury, which the appellate decision held did not amount to juror misconduct.

Appeals and outcomes

First appellate decision (affirmed convictions; remanded for sentencing-phase record development)

The appellate court affirmed the jury’s verdict of guilt but remanded because the trial court improperly restricted Sears from contacting jurors to investigate jury misconduct. It concluded:

• A rational trier of fact could have found Sears guilty beyond a reasonable doubt.
• It found no error in the challenged guilt-innocence phase rulings and jury selection issues, including admissibility of rape evidence, Agent McCravy’s testimony, hearsay, photographs, and closing arguments in light of procedural default.
• It concluded remand was required only as to sentencing-phase jury misconduct contact restrictions, and it stated Sears was entitled to contact jurors through an investigator with instructions about juror rights to decline.

The appellate decision’s outcome stated the death sentence was remanded for further proceedings consistent with its sentencing-phase division and for entry of appropriate findings and conclusions of law on jury misconduct.

Later appellate decision (affirmed death sentence; found no coercion or error)

After remand proceedings, the later appellate decision addressed remaining enumerations of error and affirmed:

• the imposition of the death sentence.
• It held the verdict was not coerced by the trial court under the totality of circumstances.
• It found no juror misconduct requiring a new trial and no error in sentencing-related issues described in its numbered enumerations.

The later appellate decision also addressed Sears’ challenge to the authority to impose the death penalty for kidnapping with bodily injury, including Sears’ argument that the offense was completed upon abduction and striking her with brass knuckles, and his claim that he was not convicted of murder. It concluded kidnapping with bodily injury was a capital felony and could support a death sentence when the victim is killed, and that a defendant may receive a death sentence for kidnapping with bodily injury when the victim is killed. It also concluded bodily injury could be inflicted as part of the kidnapping without needing to occur at the same moment as the initial abduction. It referenced prior case law including Stanley v. State, Tharpe v. State, and Potts v. State, and concluded the jury’s finding that kidnapping with bodily injury was committed while Sears was engaged in armed robbery, rape, and murder supported the statutory aggravating circumstance.

The later appellate decision also addressed additional sentencing-phase instruction challenges, including:

• failure to define “malice aforethought” (finding no reversal because Sears did not request such a charge and evidence showed intentional killing);
• clarifications that references to murder rather than kidnapping with bodily injury were treated as slips of the tongue and the charge as a whole did not mislead;
• issues on unanimity of mitigation and aggravation findings (and the fact that penalty verdict unanimity was instructed);
• venue instruction for kidnapping with bodily injury.

Outcome

Sears’ convictions for armed robbery and kidnapping with bodily injury were affirmed. The death sentence was remanded in the first appellate decision for further proceedings on sentencing-phase jury misconduct contact, and later appellate review affirmed the death sentence, concluding no reversible error after reviewing the coercion claims and other enumerated sentencing-phase issues.