The evidence presented is sufficient to authorize the verdict under the current legal standard, and there is no merit in these enumerations of error. Jackson v. Virginia, 443 U.S. 307 ( 99 S.C. 2781, 61 L.Ed.2d 560) (1979), and Tucker v. State, 244 Ga. 721 (1) ( 261 S.E.2d 635) (1979). 3.
It is not required that specific mitigating circumstances be singled out by the court in giving its instructions to the jury. Tucker v. State, 244 Ga. 721 ( 261 S.E.2d 635) (1979); Collier v. State, 244 Ga. 553 ( 261 S.E.2d 364) (1979) and cites. Nor is there a right to have written instructions sent to the jury as to mitigating circumstances.
Cuzzort also has been misinterpreted to eliminate the need for any inquiry into whether a prior consistent statement was offered solely for the purpose of bolstering a witness's credibility in the eyes of a jury, Lumpkin, supra, contrary to established precedent. See Tucker v. State, 244 Ga. 721, 727 ( 261 S.E.2d 635) (1979). As explained, these cases not only misinterpret Cuzzort and improperly expand its scope, they also contradict this Court's long-standing rule against bolstering a witness's testimony.
In this case, each prospective juror not removed for prejudice expressly indicated that he or she could lay aside any opinion he or she had formed and render a sentence based solely upon the evidence. Tucker v. State, 244 Ga. 721 ( 261 S.E.2d 635) (1979); Collier v. State, 244 Ga. 553 ( 261 S.E.2d 364) (1979); Irvin v. Dowd, supra; Dick v. State, supra; Messer v. State, 247 Ga. 316 ( 276 S.E.2d 15) (1981). The record in this case shows that 67 prospective jurors were examined. Of this number, 6 jurors were excused for prejudice or a fixed opinion as to guilt or innocence. Nineteen persons had opinions of guilt but expressly stated that they could lay aside any opinion and render a verdict solely based upon the evidence.
The appellant introduced no evidence at the guilt or innocence phase of the trial and, from a review of the trial transcript the evidence amply supported the verdict and authorized a reasonable trier of fact to so find beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 ( 99 S.C. 2781, 61 L.Ed.2d 560) (1979), and Tucker v. State, 244 Ga. 721 (1) ( 261 S.E.2d 635) (1979). There is no merit in these enumerations of error.
We note, however, that while each prospective juror had heard something about the case, each prospective juror not struck for prejudice expressly indicated that he or she could lay aside any opinion that he or she had formed and render a sentence based upon the evidence. Irvin v. Dowd, 366 U.S. 717 ( 81 S.C. 1639, 6 L.Ed.2d 751) (1960); Collier v. State, 244 Ga. 553 ( 261 S.E.2d 364) (1979); Tucker v. State, 244 Ga. 721 ( 261 S.E.2d 635) (1979). We note further that only seventeen of the sixty-four veniremen were excused for cause, and that only four of the seventeen were excused for prejudice.
6. Appellant contends in his sixth enumeration of error that the trial judge did not consider the appellant's intoxication as a mitigating factor in imposing sentence. While it is undisputed that the appellant was drinking intoxicating beverages on the day in question, there was no evidence presented which in any manner showed that the appellant was so intoxicated as to not be able to form the requisite criminal intent nor understand the nature of his actions. Tucker v. State, 244 Ga. 721 ( 261 S.E.2d 635) (1979). Plaintiff argues that the trial judge did not include intoxication to the extent of impairment of intent and ability to comprehend the criminality of his actions as a mitigating circumstance on the judge's report.
On automatic appeal, the Georgia Supreme Court upheld both the convictions and the death sentence. Tucker v. State, 244 Ga. 721, 261 S.E.2d 635 (1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 250 (1980). In August 1980, Tucker filed an application for state habeas corpus relief.
Contrary to appellant's position, juries have given the death penalty in cases in which the defendant had no prior criminal record. Tucker v. State, 244 Ga. 721, 261 S.E.2d 635, supra; Bowen v. State, 241 Ga. 492, 246 S.E.2d 322 (1978); House v. State, 232 Ga. 140, 205 S.E.2d 217 (1974). "We find that the following similar cases listed in the appendix support the affirmance of the death penalty.
A death sentence was imposed for the murder conviction. On direct appeal, all convictions and sentences were affirmed. Tucker v. State, 244 Ga. 721 ( 261 S.E.2d 635) (1979). In 1980, the appellant filed a petition for a writ of habeas corpus in the Butts Superior Court. This petition was denied by the superior court.