Lead Opinion
Appellant was convicted of one count of malice murder, three counts of armed robbery, and five counts of kidnapping. Having found aggravating circumstances, the jury sentenced him to death for the murder. He received consecutive life sentences for the armed robberies and consecutive 20-year sentences for the kidnappings. Appellant appeals from the judgments of convictions and sentences entered by the trial court on the jury’s verdicts.
The Nuttles testified that the two men were African-American and that one of the men was taller with longer curly hair and carried no weapon, while the other, who displayed the gold-plated revolver, wore a baseball cap and had a gold front tooth. Laura Nuttle testified that, when she heard voices outside the motel room, the man with the revolver left, but the taller man remained in the room. The Nuttles also testified that, when they subsequently heard two shots fired, the man in their room left. Laura Nuttle identified Young as the man who stayed in their room until the shots were fired. Neither of the Nuttles was able to make a positive identification of appellant as Young’s accomplice. However, jewelry recovered from appellant’s home was determined to belong to Laura Nuttle and appellant’s fingerprints were found on a credit card taken from Randall Nuttle.
Regina Thomas, the fiancee of the murder victim, Liston Chunn, testified that, on July 16, 1990, she and Chunn were staying with her children in the same Best Western Motel. That evening, she noticed two African-American men standing in the doorway of the room next to hers. One of the men came over and forced his way into her room with a gold-plated revolver. Her two children were sent to the bathroom. The man told Thomas and Chunn to lie on the floor, but Chunn did not do so. Thomas testified that the gunman shot Chunn after Chunn failed to follow the gunman’s order to remove his hand from the pocket of his pants. After the fatal shot was fired, Thomas heard a second person tell the gunman to get out of the room, Thomas further testified that Chunn had a soft drink cup which spilled when the shots were fired. She stated that Chunn “may have thrown” the cup, but that she “was never able to realize the sequence, whether he threw it at the shooter or if he dropped it when he was shot.” While Thomas was not able to identify the gunman, her son picked appellant out of a lineup.
Young told the police appellant had confided that he shot Chunn and had done so because Chunn “was reaching for something.” Appellant, who had been paroled from a life sentence for murder only eight months previously, admitted participating in the armed robberies, but denied being the triggerman.
In addition to this evidence of the crimes committed on July 16, 1990, the State also offered evidence to show that, several days prior thereto, two African-American men had forced their way into Linda Pfeifer’s La Quinta Inn room in College Park. One man held a gold-plated gun to her head and demanded money. The robbery was thwarted when her husband and children returned to the room. Her husband had been shot as the men fled, but he was able to see them drive away in a tan Volvo. Appellant was identified from a photo array as one of the robbers.
During the same period of time, a similar robbery involving two African-American men and a gold-plated revolver took place at the Days Inn in Clayton County. Appellant was placed at the scene of this crime by a Days Inn employee who identified him as someone who had been seeking information about a guest at the time of the robbery.
Approximately two weeks prior to July 16, 1990, Billy McNutt was robbed at a Days Inn in DeKalb County by two African-American men, one of whom threatened him with a “yellow” gun. A watch taken from McNutt was later recovered from appellant.
From this evidence, a rational trier of fact could have found appellant guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia,
2. Appellant made a motion for funds to hire an expert on jury composition. This expert was to determine whether African-Americans were underrepresented on the grand and traverse juries. The denial of this motion is enumerated as error.
The record shows that there was only a 3.4 percent racial disparity as to the grand jury and a zero percent racial disparity as to the traverse jury. Such disparities would be sufficient to withstand any
3. Appellant urges that inquiry into the issue of his parole eligibility was erroneously restricted on voir dire.
The record shows that, on voir dire, appellant was allowed great latitude to pose questions regarding parole, even though such questioning generally is not permitted. Davis v. State,
4. In an interracial capital crime, it is permissible to inform the prospective jurors of the victim’s race in order to question them about racial bias. Legare v. State,
5. Appellant urges that the trial court erred in refusing to strike certain potential jurors for cause based upon their alleged racial bias.
A criminal defendant certainly has a right to explore issues of racial bias during voir dire, thereby enabling him to use his peremptory strikes to remove suspected biased members of the panel. Legare v. State, supra at 303 (1). See also Georgia v. McCollum,
6. Appellant urges that the trial court erred in refusing to strike certain potential jurors for cause based upon their alleged bias in favor of the death penalty.
While there may have been some initial equivocation in the answers of the contested potential jurors, the record nevertheless supports the trial court’s ultimate determination that, based upon the answers to subsequent questions, each was capable of serving as an impartial juror and would weigh evidence in mitigation and seriously
7. Appellant urges that the trial court erred in refusing to strike certain prospective jurors for cause based upon their alleged bias against the return of a verdict of “guilty but mentally retarded.”
Again, there may have been some initial equivocation in the answers of the contested potential jurors. However, the record supports the trial court’s ultimate determination that, based upon the answers to subsequent questions, each was capable of serving as an impartial juror. A trial court’s determination of a potential juror’s ability to serve is not limited to the juror’s opinion of his own impartiality. Lively v. State,
8. During voir dire, a prospective juror stated that his wife had been a desk clerk at the motel at the time of the crimes and had since become a manager. Appellant urges that the trial court erred in refusing to strike this prospective juror for cause, on the ground that he was “so near of kin to the . . . victim as to disqualify him by law from serving on the jury.” See OCGA § 15-12-163 (b) (4).
While kinship to the victim may automatically disqualify prospective jurors in a criminal case pursuant to OCGA § 15-12-163 (b) (4), mere employment by [one not the] actual victim ... is not a per se disqualification. . . .”
(Emphasis in original.) Willingham v. State,
9. Several enumerations of error relate to the trial court’s striking of certain potential jurors for cause based upon their expression of opposition to imposing the death penalty.
The record shows that the trial court was authorized to find that these potential jurors’ views would prevent them from considering a death sentence and thus impair them from performing their duties as jurors. Wainwright v. Witt, supra at 424; Hill v. State,
10. Three potential jurors on the initial panel of forty-two were African-Americans. The State sought to strike all three for cause on
On this evidence, the trial court granted the State’s motion to excuse Barbara James for cause, concluding that it was necessary to do so out of an abundance of caution. The trial court’s decision to strike Barbara James for cause will not be overturned absent a “manifest abuse of discretion.” Taylor v. State,
11. The State and appellant agreed that one of the three prospective jurors who had been stricken because of appellant’s jury tampering would be replaced with the only other African-American member of the venire, Morey Ellison. However, the State ultimately used one of the six peremptory strikes that it exercised to remove Ellison from the jury. After Ellison was peremptorily stricken, appellant made an unsuccessful Batson motion.
On appeal, appellant urges the trial court erred in denying his Batson motion because the reasons the State gave for striking Ellison were pretextual and applied equally to white prospective jurors whom the State did not strike. According to the State, however, its reasons for striking Ellison had been racially-neutral: his strong opposition to the death penalty and his inability to state whether he could put aside preconceived notions about the death penalty; his prior criminal charge of driving under the influence of which he was acquitted; and, the fact that he had a mentally retarded brother who died at the age of 21. Moreover, Ellison was the only prospective juror who had all of these characteristics. Smith v. State,
12. The jurors were sequestered at a motel located only a short distance from the motel in which the crimes took place. Appellant concedes that the State instituted protective measures to ensure that the jurors had minimal exposure to the crime scene itself. He urges, however, that the jurors nevertheless must have compared their hous
The motel in which the jurors were sequestered was the only motel in Douglas County other than the one in which the crimes took place. Sequestration of the jury was required by OCGA § 15-12-142. Since no alternative housing options were available and neither impropriety nor prejudice has been demonstrated, appellant has failed to show reversible error based upon the site where the jurors were sequestered.
13. On appeal, appellant has not substantiated his claim that the impartiality of his trial was impaired because the bailiffs were permitted to wear their customary uniforms rather than civilian clothing. Bennett v. State,
14. Appellant urges that the trial court erred in failing to provide to him, pursuant to his Brady motion, a police sketch of the crime scene depicting the location of the cup which the murder victim “may have thrown” at the gunman.
According to appellant, the police sketch would have supported a finding that the murder victim had been making a threatening gesture prior to being shot. However, appellant has failed to demonstrate how the police sketch differed from photographs of the crime scene depicting the location of the paper cup or how his lack of access to the sketch deprived him of a fair trial. Dennis v. State,
15. At the guilt-innocence phase, the State offered into evidence an “Identikit” sketch of a man wearing sunglasses who resembled appellant. In the trial court, appellant’s only objection to the admission of this evidence was that the detective who identified the sketch was unauthorized to do so because he had no knowledge of “Identikits.” However, the detective identified the sketch as one which had been made at his request by another detective who was certified to do so. A witness who saw the writing being made may testify to its genuineness. Martin v. State,
16. At the guilt-innocence phase, the trial court permitted the State to offer evidence of appellant’s attempts to tamper with the jury selection process. Appellant urges that it was error to admit this evidence for the jury’s consideration.
The evidence related to whether, as the State claimed, appellant has sufficient mental capacity to engage in an attempt to manipulate the judicial system or whether, as appellant claimed, he has “significantly subaverage general intellectual functioning resulting in or associated with impairments in adaptive behavior.” OCGA § 17-7-131 (a)
17. The trial court admitted into evidence during the guilt-innocence phase certain crime scene and pre-autopsy photographs of the murder victim, as well as a bloody shirt worn by him. The trial court also admitted into evidence during the sentencing phase a photograph of the murder victim whom appellant had been convicted of murdering in 1978.
The photographs admitted in the guilt-innocence phase were relevant to the issues and were properly admitted. Burgan v. State,
18. Appellant enumerates as error the admission of evidence of his commission of a similar armed robbery in 1977.
A prior similar transaction generally cannot be proved solely by introduction of a certified copy of the conviction. Stephens v. State,
19. While testifying to the facts of the 1977 armed robbery, appellant’s accomplice in that crime made reference to appellant’s commission of a sexual assault upon the female victim. Appellant unsuccessfully objected to this testimony on the ground that the State was attempting to introduce evidence of an unrelated prior transaction of which he had not been given notice.
The record shows that appellant had sufficient notice that the entire scope of events involved in the 1977 armed robbery would be presented as a similar transaction so as to satisfy the requirements of Williams v. State, supra. The State did not offer evidence of the sexual assault upon the female victim of the 1977 armed robbery as a separate and distinct prior crime, but as part of the events involved in the prior similar armed robbery. There was no reversible error in the
20. During closing arguments in the guilt-innocence phase, the prosecutor stated that
you ask yourself if you are nine months pregnant and a black man comes in the room, puts a gold gun to your head and says lay down, I’m going to tie you up. . . .
We disapprove of this argument, as the jurors were thereby “invited to place themselves in the victim’s place in regard to the crime itself. [Cit.]” Horne v. State,
21. Several other enumerations of error relate to the prosecutor’s statements during his closing argument at the guilt-innocence phase.
Appellant characterizes certain of the prosecutor’s statements as impermissible victim impact evidence. There is considerable doubt whether statements made during the closing argument of the guilt-innocence phase may ever constitute victim impact evidence within the meaning of Sermons v. State,
Likewise, appellant did not object to the prosecutor’s reference to the evidence that appellant previously had been in the penitentiary and there is no reasonable probability that this statement by the prosecutor changed the result of trial. Todd v. State, supra.
22. During closing arguments in the guilt-innocence phase, defense counsel suggested that the State had misrepresented and, perhaps manufactured, evidence. In his responsive closing argument, the prosecutor countered that this argument was “ludicrous” and that the jury should examine the “credibility of the lawyer.” Given the context of this exchange, the prosecutor’s remarks cannot be characterized as an attempt to impute guilt to appellant by impugning the character of his counsel. Fugitt v. State,
Later in his closing argument, the prosecutor stated that appellant’s actions “involved some conning of some lawyers, some conning of some lawyers in this courtroom. ...” Defense counsel made a motion for mistrial and the jury was sent to the jury room. When the jury returned, the trial court denied the motion for mistrial and in
The prosecutor’s remarks in this exchange likewise cannot be regarded as an attempt to impugn the integrity of defense counsel, but, rather, as a comment on appellant’s ability to manipulate the judicial system. There was no error in denying the motion for mistrial.
23. The trial court’s charge at the guilt-innocence phase accurately stated the statutory requirement that mental retardation must be found beyond a reasonable doubt in order for the jury to return a verdict of “guilty but mentally retarded.” OCGA § 17-7-131 (c) (3).
24. At the guilt-innocence phase, the trial court charged that a verdict of “guilty but mentally retarded” would result in appellant being “sentenced to prison for life as to the murder charge.” Subsequent to appellant’s trial, we did hold that such a charge should not be given. State v. Patillo,
25. Appellant requested an instruction regarding the credibility of a witness who testifies under a grant of immunity. The trial court correctly refused to give this instruction, since there was no evidence before the jury that any witness had testified under a grant of immunity.
26. Appellant contends that the trial court erred in failing to give a requested instruction on voluntary manslaughter.
A trial court must give a written request to charge on a lesser included offense if there is any evidence to support it. State v. Alvarado,
27. Appellant urges that it was error to fail to give a charge on self-defense.
Evidence that the murder victim refused to remove his hand from his pants pocket upon request and possibly threw a paper cup at appellant is not evidence of a confrontation between the two men sufficient to support a charge on justification. OCGA § 16-3-21. Compare
28. The trial court’s charge adequately explained the concept of reasonable doubt to the jury. Considering the charge in its entirety, the trial court’s use of the language “moral and reasonable certainty” in defining the State’s burden of proof did not constitute reversible error. See Baldwin v. State,
29. As a young child, appellant was placed in the custody of the Fulton County Department of Family and Children Services (DFCS). Prior to trial, defense counsel subpoenaed all of appellant’s DFCS records so as to determine whether there was evidence in mitigation of the sentence to be imposed. However, the trial court conducted an in camera inspection of the entire DFCS file pursuant to OCGA § 49-5-41 (a) (2) and provided only a portion of the records to appellant. The remainder of the records were sealed for review by this court. Appellant urges that it was error to fail to provide him direct access to the entirety of the DFCS file.
The trial court properly conducted an in camera inspection of the file rather than providing it, in its entirety, directly to appellant. OCGA § 49-5-41 (a) (2). See also Stripling v. State,
30. The trial court did err in permitting the jury to consider the five counts of kidnapping as aggravating circumstances. Crawford v. State,
31. Relying on Johnson v. Mississippi,
The holding in Johnson relates to the imposition of a death sentence which was predicated in part upon a prior conviction subsequently determined by a court of competent jurisdiction to be constitutionally invalid. Appellant’s two prior convictions are currently valid and are not the subject of collateral attack. Absent a determination by a court of competent jurisdiction that these convictions are invalid, the trial court did not err in permitting the jury to consider them as statutory aggravating circumstances. See Moon v. State,
32. Appellant contends that the prosecutor was erroneously permitted to suggest to the jury during closing arguments in the sentencing phase that any lingering doubt as to guilt should not be considered a mitigating circumstance.
The record shows that the prosecutor merely pointed out that defense counsel would probably ask the jury to consider residual or lingering doubt when deciding who actually shot the victim, but that he was asking the jury to stand by its verdict in the guilt-innocence phase finding that it was appellant who had shot the victim. A defendant certainly may argue the issue of residual doubt to the jury. Cook v. State, supra; Moon v. State, supra at 759 (33). However, it is not improper for the State to ask the jury to rely upon the findings implicit in its verdict of guilt in determining the sentence to be imposed. The prosecutor’s argument cannot be characterized as asking the jury either to disregard or to minimize mitigating circumstances.
33. Citing Simmons v. South Carolina, 512 U. S._ (114 SC 2187, 129 LE2d 133) (1994), appellant urges that, at the sentencing phase, the trial court erred in failing to charge on parole eligibility. However, that case only stands for the relatively narrow proposition that, where the State makes an issue of the defendant’s future dangerousness during the sentencing phase of a capital trial and state law prohibits the defendant’s release on parole, the jury must be informed that the defendant is ineligible for parole. Simmons v. South Carolina, 114 SC, supra at 2198. Since OCGA § 17-10-31.1 (d) is not applicable here, state law would not prohibit appellant’s release on parole.
In a State in which parole is available, how the jury’s knowl*789 edge of parole availability will affect the decision whether or not to impose the death penalty is speculative, and we shall not lightly second-guess a decision whether or not to inform a jury of information regarding parole. States reasonably may conclude that truthful information regarding the availability of commutation, pardon, and the like, should be kept from the jury in order to provide “greater protection in [the States’] criminal justice system than the Federal Constitution requires.” [Cit.]
Simmons v. South Carolina, 114 SC, supra at 2196.
Thus, the trial court was not required to give the instruction regarding parole requested by appellant and the failure to give that instruction was not error.
34. A trial court is not required to charge, even on request, that the State must prove “extrinsic crimes admitted in general aggravation . . . beyond a reasonable doubt.” Ward v. State,
“In considering this evidence [of extrinsic crimes], the jury does not attempt to decide whether particular elements have been proved, but instead makes a unique, individualized judgment regarding the punishment that a particular person deserves. . . .”
Ross v. State,
35. The trial court did not err in refusing to give appellant’s request to charge the jury that its failure to agree unanimously on a verdict would result in a life sentence. Fugate v. State,
36. Appellant urges that the trial court erred by refusing to instruct at the sentencing phase that the jury could not return a death sentence if it found by a preponderance of the evidence that he was mentally retarded.
It is the public policy of this state that the execution of mentally retarded defendants constitutes cruel and unusual punishment. Fleming v. Zant,
In two habeas corpus cases, this court has held that mental retardation is to be proved by a preponderance of the evidence and not beyond a reasonable doubt. See Zant v. Foster,
essentially the same opportunity to litigate the issue of [their] mental retardation as [they] would have had if the case[s] were tried today, with the benefit of the OCGA § 17-7-131 (j) death-penalty exclusion.
Zant v. Foster, supra at 451 (4). However, in order for that “same opportunity” to attach, mental retardation would have to be proved beyond a reasonable doubt. The public policy evidenced by the death-penalty preclusion of OCGA § 17-7-131 (j) is that it constitutes cruel and unusual punishment to execute only those defendants who have met the burden of proving their mental retardation beyond a reasonable doubt at the - guilt-innocence phase in accordance with OCGA § 17-7-131 (c) (3). In some future case, this court may have occasion to reconsider the validity of these holdings in Zant v. Foster and Fleming v. Zant. However, this case presents no such occasion. Those habeas corpus cases are distinguishable. Unlike the defendants in those cases, appellant was tried under the statutory procedure established by our legislature to effectuate the public policy against the execution of mentally retarded defendants, appellant’s counsel did
At the sentencing phase, appellant certainly was entitled to produce evidence in mitigation of the imposition of the death sentence, including a reintroduction of the evidence of his purported mental retardation. However, appellant was not entitled to have the jury charged that it could not impose a death sentence if it found by a preponderance of the evidence that he was mentally retarded. The issue of whether appellant’s purported mental retardation, standing alone, would preclude, as a matter of law, the imposition of a death sentence had already been determined by the jury’s rejection of a “guilty but mentally retarded” verdict in the guilt-innocence phase. At the sentencing phase, the issue of appellant’s purported mental retardation was no longer conclusive as to his sentence, but was merely one of the mitigating factors which the jury would be authorized to consider in determining appellant’s sentence. The only requirement on the part of the trial court was to charge in accordance with OCGA § 17-10-30. Under that statute,
[i]t is not required that specific mitigating circumstances be singled out by the court in giving its instructions to the jury. [Cits.] ... All the mitigating circumstances which the accused has introduced and wishes to be considered may be argued to the jury, and a nonspecific charge, free of examples, allows the jury to consider anything it finds proper.
Collier v. State,
Accordingly, appellant erroneously contends that his death sentence must be reversed because, at the sentencing phase, he was entitled to have the jury charged that it could not impose a death sentence if it found by a preponderance of the evidence that he was mentally retarded. The giving of such a charge is entirely inconsistent with the General Assembly’s establishment of a specific procedure for determining whether a defendant who claims to be mentally retarded should be sentenced automatically to life imprisonment, rather than be subject to the possibility that the jury would impose the death penalty at the sentencing phase. In this case, the trial court properly
37. The evidence supports the jury’s findings of the following aggravating circumstances: the murder was committed by a person with a prior record of conviction of murder, OCGA § 17-10-30 (b) (1); the murder was committed by a person with a prior record of conviction for armed robbery, OCGA § 17-10-30 (b) (1); the murder was committed while appellant was engaged in the commission of armed robberies against three separate victims, OCGA § 17-10-30 (b) (2); the murder was committed while appellant was in the commission of a burglary, OCGA § 17-10-30 (b) (2); and, the murder was committed by appellant for the purpose of receiving money or other things of monetary value, OCGA § 17-10-30 (b) (4).
38. We do not find that appellant’s death sentence was imposed under the influence of passion, prejudice or other arbitrary factor. OCGA § 17-10-35 (c) (1). The death sentence is not excessive or disproportionate to penalties imposed in similar cases, considering both the crime and the defendant. The similar cases listed in the Appendix support the imposition of the death sentence in this case.
Judgments affirmed.
Appendix.
Osborne v. State,
Notes
The crimes occurred on July 16, 1990. Appellant was indicted during the April 1990
Concurrence Opinion
concurring.
Respectfully, I concur in judgment only as to the conclusion reached by the majority in Division 33, relating to the issue in Simmons v. South Carolina, 512 U. S._(114 SC 2187, 129 LE2d 133) (1994). I do not agree that Simmons should be construed so narrowly that it applies only where state law prohibits parole with respect to a life sentence — that is, where a life sentence precludes release. I agree with the interpretation given Simmons by the New Mexico Supreme
Concurrence Opinion
concurring in part and dissenting in part.
While I concur in the majority’s affirmance of appellant’s conviction, I respectfully dissent to the majority’s affirmance of appellant’s death sentence.
1. Appellant contended at trial and on appeal that the trial court erred when it refused to instruct the jury at the sentencing phase that the jury could not recommend imposition of a death sentence if it found by a preponderance of the evidence that appellant was mentally retarded. Appellant’s proposed instruction was in accord with our decisions in Fleming v. Zant,
The majority now sets forth that OCGA § 17-7-131 (c) (3) and (j) provide the legislative framework for implementation of Georgia’s public policy that execution of mentally retarded persons violates the prohibition against cruel and unusual punishment. However, that legislative framework was in place at the time of the Fleming decision in 1989 (see Ga. L. 1988, p. 1003, § 1), and this court recognized its existence. Fleming v. Zant, supra at 687-688. Aware of the legislatively-established “beyond a reasonable doubt” standard of proof, this court concluded it was cruel and unusual punishment to execute anyone who had established by a preponderance of the evidence that he was mentally retarded. See id. at Division 4. In reaching that conclusion, this court either implicitly held the legislatively-enacted beyond a reasonable doubt standard was unconstitutional, or envisioned a two-step procedure to ensure that Georgia did not execute a mentally retarded person. Because I am reluctant to endorse the concept of implicit holdings of unconstitutionality, I take the position that the Fleming court’s setting of “preponderance of the evidence” as the constitutional standard was an effort to establish a two-tiered jury determination concerning a defendant’s claim of mental retardation.
OCGA § 17-7-131 (c) (3) states:
The defendant may be found “guilty but mentally retarded” if the [factfinder] finds beyond a reasonable doubt that the defendant is guilty of the crime charged and is mentally retarded. If the [factfinder] should make such finding, it shall so specify in its verdict.
The trial court’s charge during the guilt/innocence phase accurately reflected the statutory requirement that mental retardation beyond a reasonable doubt must be found before a jury can return a verdict of guilty but mentally retarded and thereby effectuate the statutory preclusion of the death penalty found in OCGA § 17-7-131 (j).
However, at the sentencing phase, we must be cognizant of the constitutional preclusion of the death penalty. In Fleming v. Zant, supra, we held that “the execution of mentally retarded offenders violates the Georgia constitutional guarantee against cruel and unusual punishment.” See also Zant v. Foster, supra. During the sentencing
Appellant, who unsuccessfully raised the issue of mental retardation during the guilt/innocence phase of trial, was entitled to present evidence of mental retardation as a mitigating circumstance during the sentencing phase, and was entitled to an instruction informing the jury that a sentence of death could not be recommended if it had been established by a preponderance of the evidence that appellant was mentally retarded. Such an instruction would have been in line with our determination that the constitutional prohibition against cruel and unusual punishment requires that the defendant be sentenced to life imprisonment should it be determined by a preponderance of the evidence that he is mentally retarded. Fleming v. Zant, supra at Division 4.
2. I also disagree with the majority’s conclusion that the trial court’s failure to give appellant “potentially mitigating” evidence from his DFACS file was “harmless at most.” While the court, as a whole, would agree that the interest for keeping DFACS records confidential does not outweigh a capital defendant’s need for access to potentially mitigating evidence (Pope v. State,
The trial court’s failure to give trial counsel “potentially mitigating” material from the confidential DFACS records amounted to the trial court’s improper exclusion of that mitigating evidence from the sentencing jury. The majority forgives the improper exclusion of the mitigating evidence because the defendant had knowledge of the childhood experiences since he had lived through them, because appellant did not state how he would have used the undisclosed confidential information had it been disclosed to him, and because appellant’s experts had access to the DFACS file. If personal experience obviates the need for disclosure of confidential material, we can disband the trial court’s in camera review of confidential files since death penalty defendants generally seek their own records in search of mitigating circumstances. Second, a death penalty defendant is under no duty to explain how he would use mitigating evidence — since he is entitled to present any evidence of mitigating circumstances to the jury, it is not necessary that he disclose how he would use material to which he is entitled. Finally, the “expert” who needs access to evidence in mitigation is the death penalty defendant’s lawyer. Whatever access testifying experts had to the confidential files, it is not the equivalent of an attorney reviewing mitigating evidence and planning how best to present such evidence to the jury.
In sum, I am of the opinion that appellant is entitled to a new sentencing trial. As a result, I part ways with the majority which concludes that the sentencing phase of appellant’s trial is free of reversible error.