Lead Opinion
Thе appellant, Kenneth Bright, was convicted of the murder of his two grandparents and of possession of a controlled substance. The jury sentenced Bright to death for the murders, and the trial court
1. The evidence would have authorized a rational trier of fact to conclude that Bright stabbed his grandmother twenty-one times,, with the fatal wound being a stab wound directly into the heart sac, and that Bright stabbed his grandfather twelve times, with the most severe and probably fatal wound being a stab wound that fractured the tenth and eleventh ribs causing the ribs to tear the spleen. The evidence was sufficient to satisfy Jackson v. Virginia,
2. In his first enumeration of error, Bright contends that the trial court erred by failing to provide him independent expert assistance at state expense for purposes of preparing his defenses at the guilt and punishment phases of the trial. We find no error as to the guilt phase of the trial, but find that Bright made the required threshold showing to obtain assistance at the punishment phase. We therefore reverse Bright’s death sentence.
(a) Before trial the defense filed a motion requesting funds from the trial court to obtain expert assistance to evaluate Bright’s mental health at the timе of the offense, to assist the defense in preparing for trial, and to assist in investigating and presenting evidence in mitigation at the penalty phase.
Bright attached records showing that in February 1989 he had been a patient at the Columbus Department of Mental Health and Substance Abuse. These records show that Bright sought treatment as a result of his depression, use of crack cocaine, and suicidal thoughts stemming from depression about past actions; that Bright had completed high school and had an average ability to read and write; that although Bright was depressed about past actions, expressed suicidal plans, and had poor impulse control, he had no perceptual disturbances (i.e., no “hallucinations,” no “illusions,” and no “depersonalization and derealization of ideas”); that he had appropriate continuity of thought and no language impairment; that his be
In support of his motion for funds, Bright also submitted the medical records of the Muscogee County Jail following his booking for the murder of his grandparents. The report indicates that Bright was biting his fingers until they bled; that he was coming off crack cocaine; and that he might need referral to a local psychiatric institute.
Bright further attached to his motion a copy of a study published in the American Journal of Psychiatry that concluded that, of 15 death row inmates chosen for evaluation because of their impending execution dates and not because of evidence of “neuropsychopathol-ogy,” all 15 had histories of severe head injuries and suffered from some forms of neurological and psychological dysfunctions that could have been significant for purposes of mitigation at their trials. By way of affidavit, Bright stated he had been hit in the head with a brick when he was eleven years old and still has a lump and a loss of hair from that injury; that he ran into a car when he was eight years old and injured his forehead and has a scar from that injury; and that he was hit by a baseball bat on his left eyebrow when he was twelve years old and has a scar from that injury as well. Bright contended that the study appearing in the American Journal of Psychiatry, coupled with the evidence of his head injuries, meant that he might have undiagnosed, unrecognized neurological problems.
Bright also attached copies of two statements he had made to police after the crimes. In both of those statements, Bright stated that he went to his grandparents’ house to borrow $20 to buy some crack cocaine. His grandmother would not give him the money because she could tell he had been using drugs and drinking alcohol. Bright got nervous because his grandmother said she was going to call his mother and tell her of Bright’s drug and alcohol use and that he was driving her car. Bright contended that when his grandmother started to call his mother, he lost control because of his intoxication and started stabbing his grandparents. In his first statement, Bright
Finally, Bright stated in an affidavit that his mother killed his father when he wаs six years old; that he was his father’s favorite child; that Bright then went to live with his grandmother until his mother was cleared of charges; and that throughout his life his mother accused him of being just like his father. Bright alleged that he struggled with this accusation and dealt with it by taking drugs in junior high school. Bright further stated that he had no animosity toward his grandparents and had no understanding of how he could have killed them.
Bright contended in his motion that his only defense on the merits of the case was his mental condition at the time of the killings and that he would ask for a verdict of not guilty by reason of insanity or of guilty but mentally ill. Bright further contended that the foregoing factors demonstrated that at the death penalty phase of the trial he needed to present evidence as to his mental condition, mental history, drug abuse, his social history, and his neurological history as mitigating factors.
In his motion, Bright named a neurologist who, according to Bright, was available to give Bright a neurological examination to investigate whether there was physical damage to Bright’s brain and that his fee was $120 for a preliminary examination, $500 for a CT scan, and $200 for an EEG test. Bright also named a toxicologist who would be available to testify regarding the effect of crack cocainе on Bright’s central nervous system and his mental condition and who would charge $400 to review records and $150 per hour to testify, with the testimony, including travel time, to take approximately six hours. Bright also listed the name of a clinical psychologist who, Bright stated, would conduct a full examination of Bright’s mental condition for $640 and testify for $150 per hour, with the testimony to last about two hours. Finally, Bright stated that, without experts in the areas of neurology, psychology, and toxicology, he would not be able to present a defense at the guilt or punishment phases of the trial.
(b) Pursuant to Brooks v. State,
Bright refused to cooperate with the court expert and never obtained expert assistance to assist him at trial.
(c) Bright contends that he made the required showing for funds to obtain expert assistance under Ake v. Oklahoma,
We turn now to a discussion of the requirements of Ake and Roseboro. In Ake, the Supreme Court held that when a defendant
will be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.
Ake,
In Roseboro, we held that
[a] motion on behalf of an indigent criminal defendant for funds with which to obtain the services of a scientific expert should disclose to the trial court, with a reasonable degree of precision, why certain evidence is critical, what type of scientific testimony is needed, what that expert proposes to do regarding the evidence, and the anticipated costs for services. Lacking this information, a trial court will find it difficult to assess the need for assistance.
Roseboro,
Roseboro dealt with a request for funds for non-psychiatric expert assistance. However, this Court, as well as the federal cases on which this Court relied for our holding in Roseboro, has noted that the requirements of Roseboro are a corollary of the due process principles of Ake. Tatum v. State,
(d) Before evaluating the merits of Bright’s mоtion for expert assistance under the foregoing standards, we address the state’s contention that Bright’s failure to cooperate with the court psychiatrist
First, we note that § 17-7-130.1 deals only with an insanity defense and thus does not apply to Bright’s motion for expert assistance for sentencing.
In addition, even if it did apply to sentencing, there is no authority for denying a defendant’s motion for funds pursuant to Ake solely on the ground he did not cooperate with a court expert appointed under § 17-7-130.1. First, § 17-7-130.1 is simply inapplicable to an Ake motion for funds. Ake concerns whether a defendant is entitled to expert assistance at public expense to assist him in preparing his defense. To obtain that assistance, the defendant has the burden to make a preliminary showing that his sanity will be a significant issue at trial. On the other hand, § 17-7-130.1 is designed to give the state a fair opportunity at trial to counteract the defendant’s expert testimony. See Motes v. State,
Moreover, as Ake squarely places the burden on the defendant to make a preliminary showing that his sanity will be a significant factor at trial, the defendant has the concomitant right tо meet that preliminary burden in any manner he chooses. The defendant may do so by presenting his own evidence that he believes meets his preliminary burden under Ake. On the other hand, the defendant may, if he chooses, submit to an examination by a court expert. If a defendant chooses to have his motion stand or fall on his own evidence, the trial court does not have the authority to deny his Ake motion solely on the ground that he did not submit to a court expert and without an evaluation of whether the defendant’s own evidence met his preliminary burden. If, however, the trial court finds a defendant’s evidence does not meet his preliminary burden, there is nothing to preclude the trial court from preliminarily denying the defendant’s Ake motion, but informing the defendant that the court will further consider the Ake motion if the defendant cooperates with a court expert and that expert’s report indicates the defendant’s sanity will be a significant issue at trial.
Further, as Ake and Brooks v. State,
This conclusion is also supported by our decision in Motes v. State,
As the foregoing discussion illustrates, it is clear that a defendant has the right to have his Ake motion decided in secret based on the evidence he presents in support of it. The question is when must a defendant who has filed an Ake motion for funds and who has filed a notice of intent to raise the defense of insanity be evaluated by a court expert under § 17-7-130.1. Motes does not purport to answer this question; it simply provides that a defendant who desires to introduce expert testimony must cooperate with a state’s expert. We must therefore devise a solution that honors the competing interests of Ake and § 17-7-130.1. In recognition of a defendant’s rights under
For the foregoing reasons, Bright is not procedurally barred from contending that the evidence he offered in support of his motion was sufficient to meet the requirements of Ake and Roseboro. In this regard, if Bright had obtained independent expert assistance and still refused to cooperate with the state’s expert, the remedy would have been for the trial court to deny Bright the right to present expert testimony at his trial. Motes,
(e) We turn now to the issue whether Bright met his preliminary burden of demonstrating his need for a psychiatrist, a neurologist, and a toxicologist at the guilt and punishment phases of his trial.
With respect to the guilt phase, we conclude that Bright did not make an adequate showing. At the guilt phase of the trial, Bright could possibly have used expert assistance to establish an insanity defense or a voluntary intoxication defense. To establish an insanity defense, Bright would have had to show that he did not have the ability to distinguish between right and wrong at the time of the alleged crimes. To establish a voluntary intoxication defense, Bright would have had to show that the intoxication had “resulted in the alteration of brain function so as to negate intent. Even then, the brain function alteration must be more than temporary.” Horton v. State,
Although Bright offered evidence of a serious history of drug abuse, of depression stemming from guilt over past actions, of drug abuse on the night of the crimes, and of a troubled family history, this evidence does not demonstrate by itself an inability to distinguish between right and wrong or a permanent brain function alteration. Moreover, when considered with the evidence that Bright is of average intelligence, has a good memory, suffers from no hallucinations or illusions, has good continuity of thought, and was aware of his substance abuse and expressed his desire for help, we cannot conclude that the foregoing evidence adequately demonstrated that Bright’s mental condition, that is, his inability to distinguish right from wrong or his inability to form the intent necessary for the crime
In addition, the evidence of head injuries that Bright suffered as a child, coupled with the study published in the American Journal of Psychiatry, does not demonstrate that any neurological impairment of Bright would be a significant issue at the guilt phase of the trial. To conclude that neurological impairment would be a significant issue would amount to sheer speculation in light of the evidence at the ex parte hearing of Bright’s cognitive abilities.
For these reasons, we conclude that the trial court did not err by denying Bright’s request for a psychiatrist, neurologist, or toxicologist to assist at the guilt phase of the triаl.
We reach a different conclusion with regard to the punishment phase. At the outset, we note that the determination whether expert assistance is required at the penalty phase requires consideration of a different set of factors than the determination whether expert assistance is necessary at the guilt phase.
Regarding the evidence that is admissible in mitigation at the sentencing phase of a death penalty case, this Court has held as follows:
In this state, juries are not required to balance aggravating circumstances against mitigating circumstances. Rather, the death sentence may be considered only if the state establishes beyond a reasonable doubt at least one of the statutory aggravating circumstances set forth in OCGA § 17-10-30, and if such a circumstance is established, the jury nonetheless “may withhold the death penalty for any reason, or without any reason.” Smith v. Francis,253 Ga. 782 , 787 (325 SE2d 362 ) (1985).
Ford v. State,
This court. . . has consistently refused to place unnecessary restrictions on the evidence that can be offered in mitigation at the sentencing phase of a death penalty case. See, e.g., Brooks v. State,244 Ga. 574 , 584 (261 SE2d 379 ) (1979); Cobb v. State,244 Ga. 344 (28) (260 SE2d 60 ) (1979); Spivey v. State,241 Ga. 477 , 479 (246 SE2d 288 ) (1979); Brown v. State,235 Ga. 644 (3) (220 SE2d 922 ) (1975). See also Lock-ett v. Ohio,438 U. S. 586 , 604 (98 SC 2954, 57 LE2d 973) (1978), which held that “the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor, any aspect of a defendant’s character or record*275 and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” (Emphasis in original, footnotes omitted.) In Cofield v. State,247 Ga. 98 (7) (274 SE2d 530 ) (1981), we held that, whether or not Lockett v. Ohio, supra, required it, in Georgia, a mother’s testimony that she loved her son and did not wish to see him executed was admissible in mitigation in a death penalty case.
Romine v. State,
In a similar vein, the United States Supreme Court has stated that
[w]hile the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment, [cit.], requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.
Woodson v. North Carolina,
Thus, it has been held that even if a defendant can distinguish between right and wrong, evidence of a diminished capacity to fully appreciate the “cruelty and gravity of his acts,” Starr,
Here, we need not decide whether evidence of isolated drug or
Moreover, we conclude that an expert would have been of assistance to Bright in preparing evidence in mitigation. It has been stated that “[i]f [a] witness has special knowledge in any area so that his opinion could aid the jury, he should be qualified as an expert,” Rum-sey, Agnor’s Ga. Evid. (3rd ed.), § 9-5, and that the proper “subjects of expert testimony are too numerous to mention,” id. In this case, the issue is whether the experts Bright sought could have aided Bright by assisting lay jurors in making an educated determination of Bright’s capacity to control and understand his actions at the time he committed the crimes. We conclude that the toxicologist and the psychiatrist could have provided valuable assistance to Bright. A toxicologist could have scientifically evaluated the effects of a history of cocaine abuse, as well as the severe abuse of drugs and alcohol on the night of the murders, on Bright’s mental condition. Similarly, a psychiatrist could have evaluated, in terms beyond the ability of the average juror, Bright’s ability to control and fully appreciate his actions in the context of the events that arose on the night of the murders, given his severe intoxication, his history of substance abuse, his troubled youth, and his emotional instability. We reach a different conclusion, however, with regard to Bright’s request for a neurologist, finding that Bright has not demonstrated how a neurologist would have been of assistanсe with regard to the foregoing issues.
Finally, although at sentencing Bright did rely on his own testimony from the guilt-innocence phase of the trial regarding his intoxicated condition on the evening of the murders, and although he possibly could have offered other non-expert evidence regarding his history of drug abuse, his intoxication on the evening of the crimes, his emotional troubles, and his troubled youth, Bright’s testimony, as would have any other non-expert evidence he could have offered, only in-
For the foregoing reasons, we hold that the trial court erred by failing either to grant Bright funds to hire the experts he had contacted or to appoint equivalent experts of the court’s own choosing.
(f) As evidence of diminished capacity would have provided perhaps Bright’s sole defense at sentencing and as the experts in question could have assisted Bright in that defense, we conclude that the trial court committed harmful error in failing to appoint a psychiatrist and toxicologist or to grant Bright funds to hire ones of his own choosing. See Starr,
3. In his second enumeration of error, Bright contends the trial court’s charge on voluntary intoxication impermissibly relieved the statе of the burden of proof on the element of intent.
The trial court’s charge on voluntary intoxication was as follows:
Our law provides that voluntary intoxication shall not be an excuse for any criminal act. It provides further that if a person’s mind, when unexcited by intoxicants, is capable of distinguishing between right and wrong and reason and acting rationally, and he voluntarily deprives himself of reason by consuming intoxicants and while under the influence of such intoxicants, he commits a criminal act, he is criminally responsible for such act to the same extent as if he were sober. Whether or not the defendant was voluntarily intoxicated at or during the time alleged in this indictment is a matter solely for you, the jury, to determine.
Relying on State v. Erwin,
We find nothing in the instruction from which a juror could conclude that a defendant is criminally responsible for his conduct simply as a result of his voluntary intoxication. Instead, this instruction, coupled with the standard instruction on the state’s burden of рroving the defendant acted with the requisite intent, informs a jury that if the state has proven intent, the defendant cannot be excused from his conduct based upon his voluntary intoxication. See Erwin, 848
For this reason, we find no merit to this enumeration of error.
4. We find no merit to Bright’s fourth enumeration of error, in which he contends that the fact that he did not have a preliminary hearing requires that we reverse his conviction. State v. Middlebrooks,
5. In his fifth, sixth, and seventh enumerations of error, Bright contends that the court erred in denying his motions to suppress evidence. We address each of these in turn.
(a) On the evening of the murders, after the victims were discovered, one of the victims’ neighbors told police that she had seen a car matching the description of Bright’s mother’s car at the scene of the murders, and that she had seen there a man whom she believed to be the victims’ grandson or nephew. Bright’s mother confirmed the description of her car and told police that Bright had taken the car without permission. Bright’s brother told police that Bright could have hurt his grandparents. Based on this information, the investigating officers issued a lookout for Bright’s mother’s car, asking that Bright be stopped for questioning.
Lаter, an officer identified the car and called for backup. After backup arrived, the officer stopped the car, and Bright got out. The officer asked Bright for identification. Bright reached under the seat of the car, whereupon the officer drew his gun. The officer asked Bright to raise his hands, and upon seeing that Bright was not holding a weapon, the officer put his gun away. The officer then frisked Bright. Meanwhile, another officer discovered on the window ledge outside the door of the car an object which the officer recognized to be a crack pipe containing residue of crack cocaine. The second officer placed Bright under arrest for possession of a controlled substance.
After Bright was arrested, the police obtained various physical items from Bright’s body and car, including blood-stained money and clothing. The police also obtained statements from Bright following his arrest. Bright contends that the statements and physical evidence should have been suppressed as the fruits of an illegal seizure. Specifi
The court did not err in denying the motion to suppress. The initial stop and brief detention of Bright was not tantamount to an arrest. A stop pursuant to a lookout requires, not probable cause, but only specific and articulable facts which, together with rational inferences drawn therefrom, reasonably warrant the intrusion. McGhee v. State,
(b) Bright next contends that the сourt erred in denying his motion to suppress several of his custodial statements on the ground that his first inculpatory statement, taken 16 hours after his arrest, was involuntary, and his subsequent statements were the fruits of the original involuntary statement. Bright states that he was incapable of giving a voluntary statement, or of waiving his Miranda rights, because he had been awake for 34 hours; he was subjected to unceasing interrogation from the time of his arrest; the police had made misleading and coercive statements to him, including threatening him with the possibility of a death sentence; he had not consulted family, friends or an attorney; he was under considerable stress and distraught; and he was suffering from the effects of cocaine and alcohol withdrawal. Bright also complains that, during the interrogation, he was traumatized by being taken to the scene of the murders, where he and the officers sat in an unmarked car at a distance from the scene for one and one-half to two hours, waiting for the media to leave. Bright argues that although mental instability is not in itself suffi-
The state bears the burden of demonstrating the voluntariness of a confession by a preponderance of the evidence. Lego v. Twomey,
(c) The court likewise did not err in denying the motion to suppress two statements made by Bright outside the presence of counsel after an attorney had been appointed to represent him. The evidence presented to the trial court supported the conclusion that on both occasions Bright initiated the contacts, was advised of his rights and made a valid waiver of his rights. As this Court stated in Roper v. State,
6. Contrary to Bright’s contention in his ninth enumeration of error, the court did not err in denying the defense the opportunity to
7. The court did not abuse its discretion in denying Bright’s motion to sever the cocaine charge from the murder charges. Two or more offеnses may be joined in one charge when the offenses are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan and where it would be almost impossible to present to a jury evidence of one of the crimes without permitting evidence of the other. Stewart v. State,
For these reasons, we find no merit to Bright’s eighth enumeration of error.
8. In his tenth enumeration of error, Bright contends that the trial court erred by failing to grant his motion to excuse prospective juror Thompson for cause on the ground that Thompson admitted having formed an opinion regarding Bright’s guilt. We find no error.
*282 “ ‘When a prospective juror has formed an oрinion based on hearsay (as opposed to being based on his having seen the crime committed or having heard the testimony under oath), to disqualify such individual as a juror on the ground that he has formed an opinion on the guilt or innocence of a defendant, the opinion must be so fixed and definite that it would not be changed by the evidence or charge of the court upon the trial of the case.’ [Cits.]” Waters v. State,248 Ga. 355 , 362 (283 S.E.2d 238 ) (1981).
Childs v. State,
As the prospective juror “testified that he could set aside his opinion, accord the defendant his presumption of innocence, and decide the case on the evidence presented at trial,” Hall,
Bright also contends that four other jurors should have been excused for cause because they had formed opinions regarding Bright’s guilt or made other statements indicating that they could not fairly and impartially judge Bright’s case. We conclude that the record does not support these assertions of bias, and that, in any event, Bright is procedurally barred from raising this issue because he did not object to the qualification of these jurors, see Blankenship v. State,
9. We find no merit to the contention, contained in Bright’s eleventh enumeration of error, that the trial court improperly restricted Bright’s voir dire of several jurors concerning their ability to view gruesome photographs and his voir dire of one juror regarding her ability to be impartial. See Spencer v. State,
10. After the state and the defense had finished with the third juror in the jury selection process, the defense made an objection pursuant to Batson v. Kentucky,
11. Contrary to Bright’s assertion in his fifteenth enumeration of error, we cannot conclude that the alleged leading and conclusory questions asked by the prosecutor during voir dire impaired the selection of an impartial jury. See Thornton v. State,
12. Bright filed a challenge to the jury pool on the ground that young persons age 18 to 30 were underrepresented. In his sixteenth enumeration of error, Bright contends that the trial court erred by denying this challenge. We find no еrror, as the record shows that Bright failed to prove both that young persons are a cognizable group in Muscogee County at the present time and that they have been consistently underrepresented. Potts v. State,
13. In Bright’s seventeenth enumeration of error, he contends that the evidence is insufficient to support his conviction of possession of cocaine. When Bright was arrested he was in possession of a pipe used to smoke crack cocaine. The state offered evidence that showed that, although no useable cocaine was in the pipe, the residue in the pipe was cocaine. The state also offered evidence that Bright had smoked cocaine on the evening in question. Bright contends that as there was no evidence of a useable amount of cocaine, he may not be convicted of the possession thereof. The law in this state is to the contrary. Partain v. State,
14. As Bright failed to object to the trial court’s admission of certain physical evidence on the ground that the state failed to establish a chain of custody, Bright is procedurally barred from raising that issue now. See Earnest v. State,
15. In his nineteenth enumeration of error, Bright contends that the state impermissibly placed his character into evidence on three occasions. The first concerns the testimony of the state’s fingerprint expert that he compared a fingerprint taken from the crime scene
16. We find that the trial court did not abuse its discretion in admitting into evidence allegedly cumulative, gruesome photographs of the deceased victims. Osborne v. State,
17. Contrary to Bright’s twenty-first enumeration of error, we conclude that Bright was not denied a fair trial by appearing at trial in allegedly wrinkled civilian clothing. Compare Estelle v. Williams,
18. In his twenty-second enumeration, Bright contends that he was denied the right to a fair and impartial judge. The trial judge’s law clerk had been an assistant district attorney at the time of the murders through the pendency of this case, was employed by the court less than two months before trial, and had accepted an offer to return to the district attorney’s office while the motion for new trial was still pending. Bright contends that these facts give rise to an appearance of impropriety, and that therefore, the trial judge should have been disqualified from presiding over the trial or, at the very least, from presiding over the motion for a new trial.
In a hearing on this issue before a separate judge, the uncontradicted evidence showed that the law clerk never worked on Bright’s case as an assistant district attorney or as a law clerk. Therefore, this issue is controlled by Todd v. State,
19. Bright contends that the prosecution’s closing arguments in both phases of trial were inflammatory, misleading and prejudicial. Because we reverse the sentence on other grounds, issues relating to the sentencing phase argument are moot. Therefore, we address only those issues relating to the prosecution’s argument in the guilt-innocence phase of trial.
(a) In closing argument in the guilt-innocence phase, the prosecutor made the following statements:
[I]t’s easy to tell that this is an important case. It’s a case that we get few of down here, and it’s one of the most horrible cases we’ve ever had down here in this courtroom; . . . This case is the most horrible situation that I submit we’ve had down here in my time.
Bright failed to raise any objections at trial to this portion of the closing argument. Therefore, the test for reversible error is whether the argument, even if improper, in reasonable probability changed the result of trial. Thornton v. State,
(b) The record does not support Bright’s contention that the prosecutor attempted to inflame the jurors’ emotions by calling attention to photographs of the victims’ bodies. The state’s use of the photographs as evidence of the number and location of wounds was proper. Isaac v. State,
(c) Bright contends that the state improperly attempted to shift the burden of proof by repeatedly referring in the guilt-innocence phase argument to the failure of the defense to offer evidence of innocence. However, the state may properly draw inferences in argument from the nonproduction of witnesses. Isaac,
Bright further contends that the prosecutor misstated the law by arguing that “it’s impossible to stab somebody without having the intent to do it. . . . [T]he mere fact that he did it shows he had the intent.” The defense did not object to this portion of the argument at trial, and we find no reasonable probability that the comment changed the outcome of the trial.
20. The court did not err in admitting, at the sentencing phase of trial, evidence of Bright’s prior convictions. It is true that “once the
21. Bright complains that the court erred in denying certain requests to charge the jury in the sentencing phase. The primary basis of Bright’s claim of error is that certain charges which were given in the guilt-innocence phase, but which would not apply in the sentencing phase, may have left the jury with misimpressions regarding the law to be applied in the sentencing phase. Bright sought to correct any misimpressions with the offered charges. Because we reverse the sentence, and a new jury will sit for retrial of the sentencing phase, these issues are moot.
22. As the evidence supports the jury’s finding of statutory aggravating circumstances, OCGA § 17-10-30 (b) (2) and (b) (7),
Convictions affirmed; death sentence reversed.
Notes
The crimes occurred on Octobеr 30, 1989. Bright was indicted February 5, 1990. Bright was tried on July 9-12, 1990. The jury found Bright guilty on July 12 and that same day recommended that he receive the death penalty. Bright filed a motion for new trial on August 9, 1990. The court reporter certified the trial transcript on September 4, 1990. Bright amended his motion for new trial on October 17, 1990. On August 12, 1991, Bright filed a motion seeking to disqualify the judge who tried the case from presiding over the motion for new trial hearings. On September 18,1991, a new judge was appointed to hear the motion to disqualify. On December 10,1991, Bright amended his motion for new trial again. On August 27, 1992, the trial judge appointed to hear the motion to disqualify denied that motion. The original trial judge then held a hearing on the motion for new trial on August 27, and October 21,1993. The trial court denied the motion for new trial on May 6,1994, and Bright filed his notice of appeal on June 6, 1994. The case was orally argued on November 7, 1994.
In this regard, Bright’s motion specifically provided that:
Defendant further shows that in the mitigation phase of this death penalty trial he has the right to present evidence as to his mental condition, his mental history, his social history, his neurological condition, the fact that he was under the influence of drugs at the time of the occurrence, and any and all other mitigating factors which go to his ability to form intent, to realize the nature and consequences of his actions, his ability to control himself, and his ability to deal with reality.
Section 17-7-130.1 provides as follows:
At the trial of a criminal case in which the defendant intends to interpose the defense of insanity, evidence may be introduced to prove the defendant’s sanity or insanity at the time at which he is alleged to have committed the offense charged in the indictment or information. When notice of an insanity defense is filed, the court shall appoint at least one psychiatrist or licensed psychologist to examine the defendant and to testify at the trial. This testimony shall follow the presentation of the evidence for the prosecution and for the defense, including testimony of any medical experts employed by the state or by the defense. The medical witnesses appointed by the court may be cross-examined by both the prosecution and the defense, and each side may introduce evidence in rebuttal to the testimony of such a medical witness.
See Motes v. State,
For the reasons given in the following cases, we note that a trial court may not appoint as a defense expert under Ake v. Oklahoma,
Although we held in Lindsey v. State,
A number of the foregoing factors, including severe substance abuse at the time of the crimes, were not present in Christenson,
We note that Bright did not request a legally accurate instruction on the defense of voluntary intoxication, see Horton,
Bright also contends that the court erred in denying the defense notice, until the Friday before trial was to begin on Monday, of the prior convictions the state used in aggravation in the sentencing phase. Because we reverse the sentence on other grounds, this issue is moot.
We note that, if the state retries Bright for the death penalty on remand, it needs to ensure that the jury’s findings regarding whether it is returning a death sentence for the murder of the grandfather or the grandmother or both is clear; that the jury does not improperly rely on mutually supporting aggravating circumstances, see Stripling v. State,
Concurrence Opinion
concurring in part and dissenting in part.
The majority affirms Bright’s convictions, but concludes that his death sentences must be reversed because the trial court refused to grant the motion seeking funds for psychiatric assistance pursuant to Ake v. Oklahoma,
Under Ake, supra at 83, funds for expert psychiatric assistance are available only to a defendant who has made a preliminary show
Thus, Bright’s subsequent refusal to cooperate with the psychiatrist appointed pursuant to OCGA § 17-7-130.1 frustrated the trial court’s effort to make the preliminary determination whether the Ake motion should be granted and was, in effect, a voluntary waiver of that motion. Had the court-appointed psychiatrist been allowed to examine Bright, the trial court presumably would have used the psychiatric report in making the determination whether sanity was likely to be a significant factor in Bright’s defense. If, after considering the psychiatric report and all the other evidence, the trial court concluded that Bright’s sanity was likely to be a significant factor, it then would have been required to appoint, or provide Bright with funds for, an expert who would work for and report to the defense alone. If, however, the trial court concluded that sanity was not likely to be a significant factor, Bright’s motion would then have been denied and that ruling would be subject to review by this court. Brown v. State,
Citing no authority whatsoever, the majority nevertheless concludes that a defendant who seeks funds for expert assistance under Ake need not submit to an examination of a court-appointed expert until he has had an opportunity to decide whether to present expert testimony at trial. As the majority implicitly acknowledges, however, this conclusion is not required by any existing authority. Indeed, the majority’s conclusion is in direct conflict with a prior decision of this court. In State v. Grant, supra at 126 (2), the trial court denied a motion seeking funds for expert assistance in the guilt-innocence and
Moreover, even assuming that Bright’s refusal to cooperate with the court-appointed psychiatrist was not a voluntary waiver of his Ake motion, the holding in Ake only requires that the State
provide a defendant with “psychiatric assistance in presenting mitigating evidence at his sentencing proceeding, where the [S]tate presents psychiatric evidence against the defendant” Bowden v. Kemp, 767 F2d 761, 763 (11th Cir. 1985).
(Emphasis supplied.) Christenson v. State,
Ake only guarantees a defendant the right to a psychiatrist at the sentencing phase to oppose the government’s psychiatric testimony. ... In Bowden [v. Kemp, 767 F2d 761 (11th Cir. 1985)], the court stated that “unlike the sentencing situation in Ake, Bowden’s prosecutor had no neеd to present psychiatric evidence to show an aggravating factor, and he presented none. The dangers and inequities which concerned the Court in Ake consequently did not exist.” [Cit.] Nor do those dangers and inequities exist in this appeal. The [S]tate presented no psychiatric experts at the sentencing phase. ... As such, appellant was not constitutionally entitled to a state-funded psychiatrist under Ake.
Kordenbrock v. Scroggy, 919 F2d 1091, 1120 (6th Cir. 1990). See also Gore v. Dugger, 763 FSupp. 1110, 1120-1121 (M.D. Fla. 1989); Pruett v. Commonwealth,
*289 [T]his is not a case in which the defendant might be entitled to psychiatric assistance at the sentencing phase even where the [S]tate does not present psychiatric testimony. [Cit.]
Christenson v. State, supra at 83 (2) (c). Contrary to the majority’s holding, Bright presented no ex parte evidence from which the trial court could reasonably have inferred that the question of his sanity would be a significant mitigating factor at the sentencing phase of the trial. Bright’s ex parte evidence did “not show that [he] suffers from any serious mental disorder.” (Emphasis supplied.) Christenson v. State, supra at 83 (2) (c). To the extent that Bright’s ex parte evidence might have been mitigating, he was deprived of no constitutional right by virtue of the fact that he was not afforded public funds so as to present that evidence through the testimony of a psychiatrist.
Accordingly, I believe that Division 2 of the majority opinion misapplies Grant, supra, and Christenson, supra, and that the holding therein is, therefore, in conflict with existing Georgia law. By departing from that existing Georgia law, the effect of today’s holding is to insure that criminal defendants who assert the defense of insanity will have little, if any, motivation to cooperate with court-appointed psychiatrists in the preliminary determination of whether sanity will be a significant factor at trial. Accordingly, I must respectfully dissent to the reversal of Bright’s sentences.
Dissenting Opinion
dissenting.
The record in this case reveals that appellant filed both a notice of intent to assert insanity as a defense, see OCGA § 17-7-130.1; USCR 31.4, and a motion for funds for experts in neurology, toxicology, and psychiatry, pursuant to Ake v. Oklahoma,
The Fourteenth Amendment’s due process guarantee of fundamental fairness requires that an indigent defendant be given “meaningful access to justice,” e.g., access to a competent expert necessary to an effective defense. Ake v. Oklahoma, 470 U. S., supra at 77; Mc-Neal v. State,
Applying these principles, I can concur completely in the majority’s conclusion that appellant was not entitled to funds for any of the three experts for use in the guilt-innocence phase or for the neurologist as to the penalty phase. I must respectfully dissent to the majority’s holding that the denial of funds for the psychiatrist and toxicologist for use in the penalty phase was reversible error.
As to the psychiatric expert, I would affirm the trial court’s ruling because this case is indistinguishable from Christenson, supra. In both cases, the defendants presented evidence that they had undergone psychologicаl evaluation in the year prior to the crimes which indicated they suffered from no serious mental disorders. Although there are variations between the cases,
As to the toxicological expert, there is no question that appellant’s usage of crack cocaine was a pivotal factor in his defense. In
Appellant made no showing why it was necessary that a toxicologist present evidence of the effect of cocaine on appellant’s mentation or how much help this type of defense expert could have given. See Little v. Armontrout, 835 F2d 1240, 1243 (8th Cir. 1987); see also Bowden v. Kemp, 767 F2d 761, 765 (11th Cir. 1985). While a toxicologist’s assistance in this regard would undоubtedly have been beneficial, in light of the presentation to the trial court of this pre-existing information and resources available to the defense, I do not agree that the denial of funds for a toxicologist deprived appellant of his ability to present an effective defense and rendered the trial fundamentally unfair. Hence, I find no abuse of the trial court’s discretion in denying the motion for funds for a toxicological expert.
I am authorized to state that Justice Thompson joins in this dissent.
Appellant was diagnosed as depressed with suicidal thoughts whereas Christenson was diagnosed as manipulative and narcissistic; appellant abused cocaine while Christenson abused alcohol; appellant presented only his pre-crime evaluation whereas the trial court in Christenson had both a pre-crime and a post-crime evaluation before it. As to the cocaine abuse, I would note that “the fact of [appellant’s] addiction alone is not enough to make his sanity a ‘significant factor’ at trial and thereby to satisfy the Ake threshold.” Volanty v. Lynaugh, 874 F2d 243, 247 (5th Cir. 1989). As to the post-crime evaluation in Christenson I would note that the only significant item shown therein was that Christenson had sustained a decrease in his IQ level, which was attributed to drug usage.
Although this dissent is premised solely on the evidence presented by appellant in support of his motion for funds, I find that even if the entire record is considered, see Volanty, supra at 247, n. 7, the outcome here is not changed.