Judgment affirmed. All the Justices concur, except Benham, C. J., Fletcher, P. J., and Sears, J., who concur specially.

A jury found Ronald Lupez Freeman guilty of felony murder while in the commission of an armed robbery. Although the State had sought the death penalty, the jury recommended life imprisonment. After the trial court entered a judgment of conviction and a life sentence, Freeman filed a motion for new trial. The trial court denied the motion for new trial and Freeman appeals. [1]

1. Construing the evidence most strongly against Freeman shows the following: The victim was a Cobb County convenience store owner who was shot in the head and died shortly after being transported to the hospital. Two additional bullets were found in the walls of the store and several thousand dollars in cash and money orders were missing. Approximately one month after the murder, a friend of Freeman's reported to the police that Freeman had admitted shooting the victim. When the police arrested Freeman, he was armed with a revolver. A State firearms expert testified that one of the bullets found in the wall of the store was fired from Freeman's revolver and that it was "probable" that the bullet recovered from the victim's body also was fired from that weapon. Freeman was involved in other recent armed robberies of Cobb County convenience and fast food stores wherein store personnel were killed. See Freeman v. State, 268 Ga. 181 (486 SE2d 161) (1997); Freeman v. State, 266 Ga. 343 (467 SE2d 515) (1996). Freeman's accomplice in one of those recent similar crimes testified that Freeman had admitted killing the victim and stealing the cash and money orders. This evidence was sufficient to authorize a rational trier of fact to find proof beyond a reasonable doubt of Freeman's guilt of felony murder while in the commission of an armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Freeman enumerates as error the denial of his motion for a change of venue based upon pre-trial publicity. Such a change of venue is appropriate when "a defendant can make a substantive showing of the likelihood of prejudice by reason of extensive publicity." Jones v. State, 261 Ga. 665, 666 (2) (b) (409 SE2d 642) (1991). Although the extent and timing of the pre-trial publicity are factors in determining whether there has been such a showing, the decisive factor is the effect of the publicity on the ability of prospective jurors to be objective. See Thornton v. State, 264 Ga. 563, 574 (17) (449 SE2d 98) (1994).

Ninety-six prospective jurors underwent extensive voir dire. Although forty-one were excused for cause, only nine of them were excused because of the opinions they had formed as the result of exposure to pre-trial publicity. Thus, the percentage of prospective jurors excused for cause due to pre-trial publicity is half that found problematical in Jones, supra. Moreover, every qualified prospective juror who had been exposed to pre-trial publicity stated that he or she could set that exposure aside and reach a verdict based solely on the evidence presented. Under these circumstances, we conclude that the voir dire does not reflect a "substantive showing" of the likelihood of prejudice by reason of extensive pre-trial publicity. Compare Jones v. State, supra.

3. Freeman urges that the trial court erred when it ordered him to provide the State with the names, addresses and written reports of all of his experts. Although the trial court's ruling in this regard was correct at the time it was made, we subsequently held in Rower v. State, 264 Ga. 323, 324 (5) (443 SE2d 839) (1994) that the State is entitled to only the written reports of experts which the defense intends to introduce at trial. Accordingly, the trial court's order was erroneously overbroad. See Childress v. State, 266 Ga. 425, 432 (3) (467 SE2d 865) (1996); Johnson v. State, 265 Ga. 833 (463 SE2d 123) (1995).

The error, however, must be harmful to be reversible. Mobley v. State, 265 Ga. 292, 294 (4) (455 SE2d 61) (1995). Freeman urges that, because the trial court erroneously ordered him to furnish an unfavorable report of his ballistics expert to the State, he was harmed by being required to call that expert as a witness at trial. The record shows, however, that the State relied entirely upon the testimony of its own ballistics expert to connect Freeman's revolver with the bullets. Although Freeman was certainly not compelled to do so, he thereafter elected to call his ballistics expert in an apparent attempt to counteract the testimony of the State's expert and, if Freeman failed in this attempt, it was not the result of the trial court's erroneous discovery order. Compare Childress v. State, supra. Since Freeman has shown no harm, the error does not warrant a new trial.

4. Freeman urges that the trial court's charge was erroneous because it failed to specify the appropriate standard of proof applicable to the similar crimes evidence. Freeman requested that the trial court give a charge that the State had the burden of proving his similar offenses "beyond a reasonable doubt." It was not error to refuse to give this request, since the similar offenses were not an element of any offense for which Freeman was being tried. Wallace v. State, 246 Ga. 738, 742 (5) (273 SE2d 143) (1980).

There is a wide split of authority as to the proper standard of proof for similar crimes, with jurisdictions traditionally opting between three different standards. Although a few jurisdictions do appear to apply the "beyond a reasonable doubt" standard, the prevailing view is that the "clear and convincing evidence" standard applies, but support for that standard is eroding and a significant minority of jurisdictions now applies the "preponderance of the evidence" standard. Imwinkelried, Uncharged Misconduct Evidence, 2:08. In Williams v. State, 245 Ga. 458, 459 (1) (236 Ga. 373, 374 (2) (223 SE2d 811) (1976). See also McCoy v. State, 262 Ga. 699, 701 (3) (a) (425 SE2d 646) (1993); Hill v. State, 211 Ga. 384, 385 (5) (86 SE2d 212) (1955); Lewis v. State, 260 Ga. 789 (400 SE2d 329) (1991); Williams v. State, 213 Ga. App. 450 (1) (444 SE2d 862) (1994). The evidence being sufficient to meet the "beyond a reasonable doubt" standard, it was perforce sufficient to meet the lower "clear and convincing" standard. It is highly probable, therefore, that the error in failing to charge on the standard of proof did not contribute to the judgment of conviction and is, therefore, harmless. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).

Accordingly, although I lament the choice of standard of proof adopted by the majority in this case, and believe the trial court's failure to charge on any standard to be error, I conclude that no reversible error has occurred. For that reason, I concur in the judgment of affirmance.

I am authorized to state that Presiding Justice Fletcher and Justice Sears join in this special concurrence.

Antoinette D. Johnson, for appellant.

1997

Notes:

1. The murder occurred on January 20, 1992 and the grand jury indicted Freeman on December 4, 1992. The jury returned the guilty verdict on June 11, 1993 and the trial court entered its judgment of conviction and life sentence on June 12, 1993. Freeman filed his motion for new trial on July 1, 1993 and the trial court denied that motion on August 16, 1996. Freeman filed his notice of appeal on August 26, 1996 and the case was docketed in this Court on December 6, 1996. The case was submitted for decision on briefs.