1. To begin, I take issue with the majority's finding in Division 3 that the confessions as to the unrelated crimes were irrelevant. It is, of course, the established rule in this state that trial courts have a wide latitude in determining whether evidence is relevant, and therefore admissible. "`"The Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value," Agnor's Georgia Evidence, ยง 10-2, p. 165; quoted in Sprouse v. State, 242 Ga. 831, 833 ( 252 S.E.2d 173) (1979), and evidence is relevant if it renders the desired inference more probable than it would be without the evidence. Patterson v. State, 233 Ga. 724, 725 ( 213 S.E.2d 612) (1975).' Baker v. State, 246 Ga. 317 (3) ( 271 S.E.2d 360) (1980).
Immediately following the verdict of the jury the trial court without any further hearing sentenced the defendant to serve a term of 20 years based upon the jury conviction and "based upon previous convictions . . . and previous conduct of [defendant] in Court." The district attorney cites the controlling cases of Sprouse v. State, 242 Ga. 831 ( 252 S.E.2d 173); Bailey v. State, 138 Ga. App. 807 ( 227 S.E.2d 516); and Howard v. State, 161 Ga. App. 743, 746-747 (6) ( 289 S.E.2d 815), seeking to have this court reconsider Howard v. State, supra, which was based upon Sprouse v. State, supra, holding that the trial court erred in failing to hold a pre-sentence hearing in conformity with former Code Ann. ยง 27-2503, supra, which could not be waived; contending that here both sides waived any further pre-sentence hearing, and as stated in McNeese v. State, 236 Ga. 26, 30 ( 222 S.E.2d 318), the defendant could not ignore what he thinks to be an injustice, take his chances on a favorable verdict and complain later. The latter case is inapposite here in that defendant was already convicted by the jury, and the law requires the court conduct a formal pre-sentence hearing at least to the point of offering both sides the opportunity to present evidence in accordance with the statute.
In Roberts, an out-of-court declarant's statement was held admissible because it met strict standards of reliability and trustworthiness because it had been subject to cross-examination at a preliminary hearing. The respondent contends that Busby's testimony was admissible under an exception to the hearsay rule as a statement of a co-conspirator made in the defendant's presence, citing Sprouse v. State, 242 Ga. 831, 252 S.E.2d 173 (1979); Birt v. State, 236 Ga. 815, 225 S.E.2d 248 (Ga. 1976), cert. denied, 429 U.S. 1029, 97 S.Ct. 654, 50 L.Ed.2d 632 (1976). The Georgia Supreme Court so held in Buttrum, 249 Ga. at 654-55, 293 S.E.2d 334.
Jefferson, 205 Ga. App. at 687. 242 Ga. 831, 834 (5) ( 252 S.E.2d 173) (1979).Jefferson, 205 Ga. App. at 687.
Since the State was entitled to establish the basis for Rodriguez's current condition, an objection to testimony of the State's initial decision to seek the death penalty would have proven futile. See Sprouse v. State, 242 Ga. 831, 833 (3) ( 252 S.E.2d 173) (1979) ("`Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value.' [Cits.]")
The mere fact that they might have inflamed or prejudiced the jury did not render them inadmissible. Harris v. State, 260 Ga. 860, 864 (5) ( 401 S.E.2d 263) (1991); Sprouse v. State, 242 Ga. 831, 833 (3) ( 252 S.E.2d 173) (1979). 8. Appellant Kidwell asserts that the trial court committed prejudicial error in instructing the jury after the evidence of other crimes was admitted that Robert Dogenbaugh and William Shields were not being tried with the other defendants because Dogenbaugh was a "prisoner" in another jurisdiction and Shields was a "fugitive."
We intimate no opinion about whether the alleged malady would satisfy our legal tests of insanity, OCGA ยงยง 16-3-2, 16-3-3, but, even assuming it would have met one of those tests, we find no error. "`The Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value,' Agnor's Georgia Evidence, ยง 10-2, p. 165; quoted in Sprouse v. State, 242 Ga. 831, 833 ( 252 S.E.2d 173) (1979), and evidence is relevant if it renders the desired inference more probable than it would be without the evidence. Patterson v. State, 233 Ga. 724, 725 ( 213 S.E.2d 612) (1975).
The state offered this evidence to raise the inference that if Droke still had rings, coins and money similar to those which he claimed were lost in a burglary, that he might also have the rifle. The box, its content, and the circumstances under which they were discovered, were admissible as relevant to the issue of whether or not Droke still had the rifle at the time of the homicide, Sprouse v. State, 242 Ga. 831, 833 (3) ( 252 S.E.2d 173) (1979), and for the impeachment of Droke's burglary report. 6. Droke's contention that the coat his wife was wearing at the time of the homicide should not have been introduced into evidence because the state's evidence did not indicate an unbroken chain of custody from the hands of one officer to another is without merit.
We have set aside death penalties where the trial court failed to properly charge the jury at the sentencing phase, whether or not such failure was objected to at trial or raised on appeal. See, e.g., Rivers v. State, 250 Ga. 303, 310-311 (8(a), 9) ( 298 S.E.2d 1) (1982); Hawes v. State, 240 Ga. 327 (9) ( 240 S.E.2d 833) (1977); Fleming v. State, 240 Ga. 142 (7) ( 240 S.E.2d 37) (1977). We have reversed death penalties when the defendant was erroneously denied the opportunity to present mitigating evidence, Sprouse v. State, 250 Ga. 174 ( 296 S.E.2d 584) (1982); Cobb v. State, 244 Ga. 344 (28) ( 260 S.E.2d 60) (1979); Sprouse v. State, 242 Ga. 831 (5) ( 252 S.E.2d 173) (1979); or where the Witherspoon voir dire was not recorded, Owens v. State, 233 Ga. 869 (2) ( 214 S.E.2d 173) (1975). We have considered alleged Witherspoon errors on their merits whether or not objections were made at trial.
He was sentenced to death for murder and kidnapping with bodily injury and to ten years for each of the aggravated assaults. We affirmed appellant's convictions but remanded the case to the trial court for a new trial on the sentences to be imposed for murder and kidnapping with bodily injury. Sprouse v. State, 242 Ga. 831 ( 252 S.E.2d 173) (1979). On remand, the state did not seek the death penalty for kidnapping with bodily injury. A sentencing trial was conducted, before a jury, as to the murder, and the death penalty was again imposed.