*1 (3) This Hаthcock, 74, Hathcock had because the trial court reversed the trial court in Hathcock court construed sexual (b) prohibit on of § modification evidence 19-6-19 OCGA proof an benefit the former without of economic intercourse party. spouse in Hath- with the We held her cohabitation third regard cir- to financial was authorized without cock that modification cumstances OCGA relationship. resulting We also held live-in lover from the presented apply here, to the situation 19-6-19 would spouse, proof to the former is an economic benefit there of where without fication relationship. proof this, In like where modi- a сase a sexual solely sought proof benefit to the on economic is based resulting spouse’s spouse, cohabitation, I former from that former alimony alimony modifying require court, the husband’s before would the trial part obligation, which all or the extent to consider unnecessary by the economic benefit the former is virtue of award relationship. spouse derived, derives, from the meretricious or has may modify, alimony terminate, ob- Thereafter, ligation, the trial court Accordingly, I re- would reverse and fairness dictates.6 for mand such a consideration. that Justice Weltner and Justice
I am authorized state special join in this cоncurrence. Fletcher 15, 1991
Decided March denied March 1991. Reconsideration appellant. Made, J. James for appellee. Noell, Jr., S.
John THE STATE. S90P1386. CHRISTENSON v. Justice. Hunt, by Lynn defendant, Christenson, Scott was convicted robbery County L. Oli in Harris of the murder and armed of Albert appeal. III. This is his ver He was sentenced to death for the murder. July ity may which A motion for new trial was not Garlinger Garlinger, result, not terminate 7 near Termination relationship New crime occurred Lonoke, Jersey is alimony Arkansas. The trial possible existed. A2d 799 but law July 6, only filed, may only provide to be and the (N.J. 1989. Christenson was applying Georgia began 1975), applied case was docketed in this court оn if modification March on remand relationship law these 19, 1990, arrested the trial court. As and concluded has ended the trial facts. Under late in the period of time July evening March major during I read court 1990. 24. spent July most of the afternoon of 1989 work- ing gym place employment. out next door to the victim’s After gym, carrying gym bag workout, he waited front of the inside handguns. parents of which were two His drove him asked if negative. afterward, a ride. He needed answered Soon building victim exited the next door and went to his four wheel drive *2 Toyota utility vehicle, which a several-thousand-dollar, contained competition-quality system big enough completely stereo to almost luggage acquainted fill the area vehicle. Christenson was with approached victim, the and him to ask ride for a to a friend’s house. parents Christenson’s observed him enter the victim’s truck and ride off. Christenson directed the victim to a remote area Harris
County, gun bag. According and Christenson, withdrew a from his to' struggle gun stop, passenger ensued, a door fell gained for the the truck came to a
open, ground. and the two men fell out to the gun control of the and shot the victim five times. Then he body passenger truck, stuffed off victim’s into the side of the drove yards, highway body, left and covered with sticks and brush. He drove the victim’s truck to Arkansas where was arrеsted day stealing gasoline. the next money He called home to ask his father for post police, his bond. His father contacted the local who called Arkansas and informed them the truck was stolen and its missing. interrogated owner The defendant was in Arkansas and ad- although stealing stolen, mitted victim’s truck was he denied it. After the body stealing recovered, was the defendant admitted shooting truck and its owner. supports Virginia, The evidence the conviction. Jackson v.
U. S. 61 LE2d 2. Christenson’s first four enumerations of error raise issues con- cerning psychological his mental condition and his evaluation. The proceedings facts and circumstances of triаl relevant to is- these (a) legal below, sues are set forth subdivision and his contentions (e). through are addressed in subdivisions (a) years The defendant was 18 old time at the of the crime. He nearly years, had been constant trouble with the law several committing burglaries numerous and thefts. After his first adult con- — degree forgery, burglary, stealing viction in 1988 for first and two (one truck) Toyota motor vehicles of which was a Bradley private hospital, Center, was referred to the mental health (All days for evaluation and treatment. but 90 was of his sentence parties given briefs, argued After orally appeal extensions of time to file their on November probated.) being person “bright-normal diagnosed intelli- as He emotionally
gence” constricted, self-absorbed and narcissis- who was manipulative had It was tic, who abused alcohol. and and seductive discharge improved,” and that “it “condition at that his noted is doubtful any impulse essen- [Christenson] control internalized maintaining staying abstinence alcohol out trouble tial to discharge.” after having any diagnosed mental serious dis-
Christenson was order. seeking “psychi- trial, the defendant filed motions to this Prior independent psychiatric seeking assis- funds for
atric” evaluation granted evaluation and reserved a the motion for tance. court request pending ruling for funds the results of court-or- dered evaluation. Hospi- Georgia Regional evaluated at the West
Christenson was psychologist defendant, and administered a A interviewed the tal. neurological (Minnesota Multiphasic screening test, Per- an MMPI Inventory) sonality IQan The defendant scored lower on the test. Bradley by the Center. IQ than he earlier when evaluated test had drug usage psychologist The the attributed *3 surroundings environment; he was inattention to resultant range, “getting in IQHis was still the normal how- information.” neurological screening any signs test not reveal of neu- ever. The rological damage, did MMPI nor the interview revealed
and neither the any suffering signs from a serious mental dis- that the defendant order. presented upon it, denied the the evidence to the court
Based independent psychiatric for assistance. defendant’s motions for funds testify psychologist trial. did not at error, In second enumeration of contends his hearing appellant’s conducting “no into com- the trial court erred petency.” petence plea
However,
his
incom-
of mental
the defendant withdrew
See
is true that the trial
to stand trial.
OCGA 17-7-130. It
might
appropriate
required
hearing
court
in an
be
to conduct a
competence
even where
to determine the defendant’s
to stand trial
hearing,
for a
this is not such a case.
the defense has not moved
but
Nothing
any question
before the trial court raised
defend-
competence
(8g)
State,
trial.
Ford v.
Ga. 81
ant’s
to stand
See
(335
567) (1985).
(2)
Compare Holloway
State,
v.
SE2d
(c) enumerations, In first third contends the Christenson by refusing provide psychiatric independent court erred assistance guilt'and sentencing phases the defense the trial. to both the relation judge [W]hen a defendant demonstrates to thе trial that his sanity significant at time of the offense is to be a factor trial, must, minimum, at the State at a assure the defendant psychiatrist competent ap- access to propriate who will conduct an prepara- evaluation, examination assist presentation tion, and of the defense. 53) (1985). Oklahoma, 1087,
Ake v.
470 U.
S.
84 LE2d
presented
no evidence which
court
could rea
sonably
question
sanity
signifi
have inferred that the
would
abe
guilt phase
Eddy
State,
cant factor at the
v.
trial.
The examination” court’s order attorneys Georgia sent to West notice that he would be ant’s ability among things, Hospital Regional of, other his for evaluation being wrong distinguish right at the of the crime. Before time evaluated, any questions anything he could was advised that refuse answer problem, condition,” “case, his mental that or “brought court,” that he
he be out could said could attorney. any stop with his “at time” consultation the examination stating rights. signed a form understood these The defendant This is case which an evaluation conducted without not a rights and without an advisement of defend- notice to counsel complaint that evaluation was conducted ant. a by psychiatrist apparently premised psychologist than a is rather assumption psychiatrist his communications a would have that privileged psychologist his a while communications to not. been However, generally privilege concerning is a communica-
while there patient, psychiatrist § 24-9-21, OCGA tions between see there is psy- privilege a communications between a licensed also chologist psychiatrist case, In either See 43-39-16. where the client. OCGA appointed by psychologist or court to conduct a psychiatrist psy- preliminary chologist defendant, the examination of the privilege apply. court, is a for the and the does not witness App. Bonner, Thus, Wilson by psychologist mere fact the defendant was evaluated did “privilege” “abridge” not, contends, as the defendant for confi- dential communications.
Secondly, language evaluation, in view of the of the order for we agreе of the of the cannot defendant’s discussion facts scope purposes psychologist with the exceeded the of the evalu thereby rights. infringing ation, Fifth on his Sixth Amendment and/or Smith, Estelle v. LE2d See U. S. psychologist if it have been testified would difficult impossible to evaluate defendant’s mental condition at time discussing any event, of the crime the crime. In without facts of testimony there was no harm the state offer at trial because did not psychologist. statements made to the defendant Compare Hicks (e) Finally, agree guilty we do not the state of miscon- preliminary providing by psychologist duct evaluation deter- mine as a was matter whether the threshold defendant’s mental condition likely
sufficiently providing to be an issue court- to warrant independent psychiatric funded to the See assistance defendant. (2c) (373 184) (1988) (“A Kemp, Hance v. 657-658 showing first make must a ‘threshold to the trial court’ of *5 independent evaluation, [cit.], his need for and a court-ordered need.”) may evaluation well establish such a guidelines crossed, When the has been threshold “the Ake of by providing would not be satisfied the defense with to an ex- access by expert psychiatrist.” amination a mental health other than a Lind- sey 444, However, 448-449 may preliminary psychiatrist the evaluation be conducted or competent expert.” other “some son’s evaluation was not mental health Id. at 449. Christen-
inadequate, and he was not misled to his detriment. police Georgia police After the Arkansas learned that driving missing,
Christenson was was a stolen truck and the owner was he interrogated knowing about the theft. Christenson admitted stealing stolen, himself, truck was but denied the truck and did not shooting investigator mention other the owner. An GBI with the and three Georgia law officers drove to Arkansas to talk to the defendant Georgia. Shortly they return him to and the truck to before be- gan journey body Arkansas, their the victim’s was discovered. interrogated by agent, agent When the defendant was the GBI rights Arizona, advised the dеfendant of his under Miranda v. 694) (1966), S.U. SC 16 LE2d and told the defendant talk him he wanted to about the theft of the He tell truck. did not body the victim’s had been found. agreed gave previous talk, a statement consistent with his point, (the agent At statements. this told Christenson that he agent) knew the owner of the truck was dead. The defendant then gave taking statement, in another which he now admitted truck shooting its owner.
Christenson contends it was error to admit this and later state-
scope
ments because the defendant
was “deceived” about “the
of
interrogation.”
agent
He contends that
tell
because
GBI
did not
body
the defendant at the outset that the victim’s
had been found
investigation
сharges
possible
and that the
involved
of murder
ad-
rights
theft,
dition to
knowing, intelligent
defendant’s waiver of Miranda
was not
voluntary.
Supreme
A similar
S.
situation was addressed
the U.
Court
Spring,
Colorado
“affirmative a suspect’s privilege.” Colorado v. waiver of Fifth Amendment supra Spring, 576, n. 8. at supports the trial court’s conclusion that the de- evidence voluntary State, v. admissible. Rose
fendant’s statements
(2) (292
678) (1982).
The district in his Suppose any why say folks, he didn’t trust of those then things, why say sophisticated those then those words. He’s enough enough you message trip and subtle to send to enough A D E to that, to B to C to F. If to he’s subtle to do why enough say, talking isn’t he I’m not subtle to you. Why enough say, isn’t he subtle I didn’t do it! Suppose, suppose, they’re suppose right you and can’t people. arrested, trust these he was After called his daddy. Daddy, you. let tell me hear We don’t that. gets gоt He back to this . . area where he’s an uncle. . you police , ... Uncle let me tell what those did to me. heard that? No. you you Now, I want to tell the truth. Have Absolutely, positively not. Congdon State, (6) 402) (1990) See v. the author of SE2d which opinion
this dissented.. timely objected argument, this and contends
The defendant
improperly
prosecutor
failure
about the defendant’s
commented
the
to
right
infringed
testify,
incrimi-
Amendment
not to
on his Fifth
App.
State,
Marlow
himself. See
nate
(1982),
Ranger
315, 319
we
In
(quoting
Rochan,
adopted
F2d
United States v.
test
this
1977)):
(5th Cir.
prosecutor,
improper
we
comment
reverse for
To
things:
prosecutor’s
“the
manifest
must find one of two
upon
tes-
failure to
was to comment
accused’s
intention
tify”
that the
the remark was “of such a character
necessarily
naturally
jury
take it to be a comment
would
omitted.)
(Citations
testify.”
the failure of the accused to
argument’s
natural
“manifest intention” and
necessary impact
jury
reference to
must be determined
the context which it was made.
clearly
response
prosecutor’s argument in
was a
pre-trial
argument
statements.
the defendant’s
There was no manifest intention to comment
upon Christenson’s fail
“naturally
necessarily”
testify,
have
ure to
nor would
comment.
defendant did
exercise his
taken it
right
be such
Since the
interrogation,
prosecu
during his
to remаin silent
custodial
pre-trial
Bertolotti v.
Hill v.
tor was entitled to comment on his
Dugger,
omissions.
(11th
Compare
F2d
1523-1524
Cir.
(4) State,
trial sat there that we When right shed a tear. where he is now and never moved. Never misty eyed got during Never the course *8 [for defendant]: Your MR. BUNN Your Honor. Honor.
THE COURT: a Just moment. object commenting
MR. BUNN: I to his on the fact move has testified this case and we a mistrial at time.
89 Honor, MR. I PULLEN: Your don’t see how ra- tional individual can take what I said as a comment on his testify. commenting failure to I was on the fact that he has fish-eyed during sat over there this whole trial. right, explanation proceed.
THE All COURT: with thаt Totally repentance. Totally MR. PULLEN: without put family through without remorse and sat there and they’ve go through. the ordeal that had to . . . Supreme
The U. S. Court has held that a criminal defendant may penalty compelled testify sentencing phase not be at the of a death supra Smith,
trial. Estelle v.
at 462-463.We will assume that
testify
just
inap
on
comment
the defendant’s failure to
would be
as
propriate
penalty phase
respect
guilt phase
at the
as it
inis
to the
penalty
Contrary
contentions,
death
trial.
to the defendant’s
it is
prosecutor
not “manifest” that the
intended to
comment Christen-
testify
sentencing phase,
jury
son’s failure to
at the
nor would the
“naturally
necessarily” interpreted
have
it as such a comment.
remaining
The
comments referred to the defendant’s courtroom
demeanor. Comments based on courtroom
of a
observation
defend-
infringe
ant’s demeanor do not
on the
Fifth
defendant’s
Amendment
rights.
phase,
supra
Smith,
Cf. Estelle v.
at 463-464. At the
policy
allowing jury
“[s]ound
reasons exist for
to consider the
Schuler,
courtroom
F2d
of a
demeanor
defendant.” United States v.
(9th
1987) (Hall,
dissenting).6
pointed
978,
J.,
Cir.
we As
out
316) (1989),
717,
in Isaacs v.
259 “the
permissible
inquiry
or lack
remorse
thereof is a
area
during sentencing.”
prosecutor
in this case was entitled to com-
apparent
pres-
during
ment about the defendant’s
lаck of remorse
entation of evidence
the death of the victim.
(c)
We
do
find that the
limited references to the
family
proscription
victim-impact
victim’s
violated
evidence.
Maryland,
440)
See Booth v.
2529,
90
”
eye
State,
v.
254 Ga.
159
Walker
tooth for
tooth.’
and a
(6) (303
(1985);
(327
475)
(14)
State,
v.
SE2d complains (e) foregoing, to the In addition objected prosecutor’s closing argument portions to at trial. timely objection, State, v. error. Walker we find no reversible Absent supra at 158. provided pre-trial 17-10-2, § state no- to OCGA
8. Pursuant prior aggravation in conviction as evidence tice that it would offer burglary degree forgery, thefts of motor vehicles. The and two first for state offered ing during the at its case-in-chief sentenc- no other evidence phase However, in its cross-examination of de- trial. qúestions mitigation witnesses, asked the state numerous fendant’s about other according by ostensibly totaling, defendant, offenses committed reported calculation, 23 felonies. That felony aggravation, in is, offenses offered and the aside the four just convicted, been the state asked numerous two for questions had which prior felony alleged this de- 17 crimes committed juvenile. apparently, fendant, most, he was still a As while prove majority great offenses, no introduced to of these evidence was Nevertheless, relied on commission the defendant. the state their the defendant’s — prior alleged most of which extensive record had evidentiary argument urging impose in no basis its death sentence.7
(a)
provisions
argues
§
of OCGA
The defendant
the notice
17-10-
introducing evi-
2
“Since the state was not
were violated. However:
cross-examining
aggravation,
but
the witness to determine
dence
testimony,
applica-
the basis of the witness’
OCGA 17-10-2
(6) (366
361) (1988);
App. State,
v.
Ga.
SE2d
ble.” Clark
186
110
900) Clark,
State
SE2d
affirmed in
v.
given § 17-10-2, notice under the district at- OCGA torney questions required asked in to demonstrate that his interposed objection argument. no to this line of good supported faith, and based on reliable information that can be supra. Clark, Ga., State v. admissible evidence. See also Nas- (4) State, sar v. The defendant attorney’s questions objected to the district to the defendant’s charac- although and, ter witnesses about offenses non-noticed questions sources, claimed his were based on “reliable” he did not prove copies them, оffer to either with “certified of [records] or with testify concerning supra, witnesses to these acts.” Clark v. App. 110. The defendant’s death sentence is remanded to the *10 attorney trial court for a of determination whether the district can support quired. questions his to the defendant’s character witnesses re- as phase sentencing in
9. The state also offered evidence at the custodial statement the made defendant after his arrest for the (one Toyota aggravation by theft of a truck of the crimes offered in case-in-chief). the state in its The defendant asked for a Jackson hearing voluntary Denno to determine whether thе statement was and admissible and whether the defendant had been informed of and rights. his had waived Miranda The state contended no such determi necessary pled guilty nation was because the defendant had to the thereby any objection theft of the truck and had waived inter the rogation. agreed. By plea disagree. guilty, The trial court We his of undoubtedly the defendant viction. See LaFave waived such issue his con (a) Israel, Procedure, Criminal ch. 20.6 Plea) (Vol. (Rights II, Waived or Forfeited West But we do not find that he “waived the use of an inadmissible statement at the death-penalty] phase [this trial.” Hatcher v. having The defendant ob jected requested having hearing to its admission in on evidence and admissibility, provided its court cf. the trial should have one. See also supra (Supreme rejected argument Smith, Estelle v. Court state’s pre-trial that defendant’s non-warned statement was admissible at phase penalty only punishment, because used fix not establish guilt). plea guilty ordinarily
A into renders harmless the admission regarding charged evidence of facts in- the crime crimes which are guilty plea. say However, cluded into we cannot the admission beyond scope guilty plea evidence of facts harmless. The of the merely plea; guilty defendant’s statement was not cumulative to interrogator the dеfendant stated to his killed to that he would have (It necessary. necessary steal the truck if it had been was not it.) keys Accordingly, case because the were left death sentence hearing is remanded to the trial court for mine whether the statement was whether the defendant had been a Jackson-Denno deter- voluntary and admissible his Mi- informed of had waived rights. randa finding supports jury’s that the offense of The evidence
10. during offense armed commission was committed murder (c) (2). (b) (2); agree robbery. 17-10-35 We do §§-17-10-30 OCGA aggravated the case is defendant’s contention with enough a death sentence. to warrant (2) aggravating § b circum- instructions on 11. court’s werе not erroneous. stance above, as to the conviction is affirmed For stated reasons guilt, court, is remanded the trial but the death sentence
issue of opinion, pursuant for a determination of whether to Division of the attorney’s questions to the defendant’s character wit- the district supported admissible evi- are based on reliable information nesses they not, are court shall If the determines trial trial court dence. sentencing hearing. is also new The death sentence remanded hold a pursuant findings proceedings hearing, appropriate a Jackson-Denno to Division for law. After the conclusion of the of fact аnd conclusions of remand, court for shall be returned proceedings review, remand and for the sentence un- review less ap- proceedings need for further the result of such obviates the pellate review. Judgment part, part. remanded in All Justices affirmed except Benham, J.,
concur, who to Divisions 7 and 8 dissents (c), *11 death and would reverse the sentence. dissenting part. Justice,
Benham, However, I I in the affirmance of conviction. dissent to concur (c) and to and would hold that Christenson’s Division death Division sentence must reversed. be (b), majority prosecutor
In1. Division 7 concludes that the merely when commented on the defendant’s courtroom demeanor “nobody jury [said] it I’m told thе sorry” that was so “unusual” even right [had] and to that the “defendant sat there “remember” majority interprets be and never moved.” The this to a comment on improper reversing But the defendant’s “demeanor.” the test for for testify comment on the comment the defendant’s failure to is how majority might favorably but, state, be construed as the most (a), prosecutor’s notes in Division 7 whether “manifest intention” testify to comment on whether the was the defendant’s failure to or “naturally jury necessarily” would take be a comment. it to such prosecutor’s Even if it not the “manifest intention” to comment testify, improper argument on the defendant’s failure to if the “naturally jury necessarily” interpret would it as comment. such jury naturally necessarily I a believe that would have inter- preted observation that it so “unusual” nobody sorry” kind of case that said “I’m and his exhortation to the jury right to remember that Christenson had “sat there and never testify.8 moved” as a comment on the defendant’s failure to (c), majority 2. In Division 8 holds the trial court erred allowing prosecutor question defense character witnesses about allegedly crimes numerous committed this defendant without re- quiring prosecutor prove questions good were asked in agree majority I faith and based reliable information. with the agree error, the state’s cross-examination was but I cannot that a re- reliability a mand for the error. belated demonstration is sufficient to cure A remand would address fundamental flaw in this only prejudicial trial: Not was considerable information having evidentiary presented jury, closing but, no basis to this in his argument, to this alluded information as if it was evi- jury urged impose part, based, dence and a death sentence alleged prior on this extensive record. required
This court is to determine whether the death sentence imposed passion, prejudice, “was under the influence other (c) (1). arbitrary exposed factor.” OCGA 17-10-35 Where the been has prejudicial highly impose non-evidence аnd is asked to only non-evidence, death sentence based on that I can conclude that imposed arbitrary the death . sentence was “under the influence of . . may factor[s],” and therefore not stand. conviction, sentence,
I would affirm the reverse the and remand sentencing phase. for retrial of Decided March denied
Reconsideration March Fulbright Messner, Bunn, Jaworski, James A. A. & Richard Stephen Robinson, McNabb, McGovern, Frederick G. M. Michael appellant.
Douglas Attorney, Bagley, Pullen, Jr., C. District Charles E. As- Attorney, Attorney Bowers, General, sistant District Michael J. Leo- appellee. Grant, nora
comment about F2d 978 *12 8 Moreover, (9th Cir. the demeanor of a I note that at least one court has held that non-testifying defendant. it is United improper States for a Schuler,