*1 tion of the . . . .’ 64. accused Id. at [Cit.]”
A present psychiatric criminal defendant can no more testi- mony submitting by without to an examination a state-se- psychiatrist may testify lected than he at trial without sub- mitting to a cross-examination.
(Footnote omitted.) (5) Francis, Godfrey Id. Accord appellant’s arguments We find no merit in Lynd the rationale should be limited to health testi- mental mony guilt-innocence phase Contrary ap- adduced of trials. pellant’s position, unduly trial ruling court’s does not restrict in mitigation, given evidence the defense can offer that the sole cause for the appellant’s restriction is own refusal to submit to a court-or- dered examination prosecution essential to enable the to rebut testimony, appellant mental health pre- should later choose to concerning private sent evidence Godfrey, supra his examination. See at 656
Judgment All the Justices concur. affirmed.
Decided June Henderson, Walker, Peel, Henderson & C. David Hal T. Norby, appellant. Charlotta for
Dupont Cheney, Attorney, K. District Michael J. Attor- General, ney Westmoreland, Boleyn, Mary Susan V. Beth As- Senior General, Attorneys sistant appellee.
S95A0185. THE FLEMING v. STATE. 638)
Hunstein, Justice. felonies, appeal procedure Pursuant to the unified 17-10-35.1, OCGA granted application appeal we for interim § filed Maurice Fleming, charged who has been with the armed rob- bery and malice murder of a Riceboro man.1 error, appellant his sole enumeration of contends the trial S._(114 Carolina,_U. court erred under Simmons v. South (1994) by ruling closing argument that in the co-defendant, granted application appeal by Fleming’s The for interim Clevon Jamel Jenkins, subject opinion is the of this Court’s in Jenkins trial, may phase of his sentencing appellant from sentencing to death will deter others from not counter the State’s with evidence appellant experts that is ineffective ruling find no error in the court’s affirm. We previously We have determined that the State assert and *2 penalty a defense rebut the effectiveness of the as closing sentencing phase capital of trials. 475) (1985).2 State, 149, v. SE2d We Walker 254 Ga. 159-160 noted making determination, this must be mindful we of the
[i]n
differences
sentencing hearings
proceedings
between
and
to
guilt
determining sentence,
determine
innocence.
In
issues,
performs
considers different kinds of
and
dis-
duties,
tinctly
different
than it
determining guilt.
does
Therefore,
argument entirely
on
appropriate
limitations
to
guilt phase
applied mechanistically
of a
cannot be
to
sentencing phase.
158.
Id. at
This
held that
the jury properly
Court
could be
invited
part
consider
deterrent effect of the
of the
weigh
possible
function to
consequences
of its verdict and to
speaks
render
verdict which
on
community.
behalf of the
158-
Id. at
“
regard,
‘open
159.
this
stressed
right
we
the defendant’s
to an
”
far-ranging argument’
Gregg Georgia,
under
v.
153
2909,
49
and the fact that on the
of sen-
issue
always
“the
tence
defendant
has the
closing argument.
[Cit.]”
in the
final
Walker, supra
approval
Our
of deterrence
sentencing phase
of death
major-
cases is consistent with the
ity
federal
See,
of
and state
considering
e.g.,
courts
this issue.
Brooks
(11th
v. Kemp,
1383,
1985),
762 F2d
1407
Cir.
vacated and remanded
grounds,
3325,
on other
732) (1986).3
478
S. 1016
U.
Stein,
generally
Closing
See
Argument,
71.50.
§
As to the trial
appellant
court’s refusal to allow
ex-
introduce
pert
testimony
subject
on the
the nondeterrent
effect of
2
(5) (303
Conner v.
also
See
Under well-established issue to the opportunity tion and the defense have the precluded from intro- prosection and the defense are jury; both the circumstances we find no ducing evidence on the issue. Under these “ ‘on the appellant receive the death possibility that could explain.’ opportunity deny information which he had no basis of (II).6 Simmons supra, SC at 2192 [Cit.]” Walker, ruling. error in the trial court’s Accordingly, we find no Stevens, supra; supra. concur, Hunt, J.,C. Judgment except All the Justices affirmed. Benham, J.,P. Fletcher and judgment only,
who concurs in the Sears, JJ., who dissent. *3 Justice, concurring. Chief
Hunt,
on the
agree
argument
I
I
judgment
concur
the
because
permissi-
is
effect of the death
general
issue of the
deterrent
v.
rationale of Walker
long
argument
ble
as that
is confined
the
(14) (327
475) (1985)
I
be-
do not
otherwise. Walker we said:
opinion
lieve the
holds
nor ret-
general
of neither
deterrence
considerations
[While]
pen-
imposition of the death
ribution will demand the
may
alty.
say
prosecutor
urge
not
. . .
is not to
that a
[T]hat
vigorously that a death sentence is
appropriate punishment
(18) (314
Franklin v.
Felker v.
in the that in so remind case at or he not jury general deterrent function of the of the retributive its verdict.
(Emphasis original). in the prosecu- say, Simmons,
I read that with that a consistent also may argue sentencing body purposes tor to the both the sen- tencing appropriate punishment particu- scheme and the level of in a may general specific, deterrence, lar case. He or she refer to as a punishment. may goal valid He or she that notice of the public verdict of will serve to inform of the serious consequences of the crime of murder and well serve aas deter- prosecu- rent to commission of that crime. But as far that is as a prosecutor may go. goal If tor insists that the of deterrence has in established; fact been achieved or that it is known if well or well jurisdictions contends that have enforced the jurisdictions death do have lower crime rates than those response not, believe, fairness, then I is lim- the defendant’s not argument contrary, ited to include if evidence to the such is available. agree Under these I circumstances would with the dissent that any interpretation reasonable of Simmons would authorize this result. say position argument permit- I must also dissent’s that no prosecutors
ted is the safer rule and would well advised confine appropriateness particular punishment their remarks to the aof for a particular offender. dissenting. Justice, Fletcher, agree impose I with Justice Sears that if the state asks the fundamental due process requires that the defendant be able to rebut contrary go further, however, I evidence. would and exclude both public policy grounds. and evidence on required satisfy While the admission of evidence is process, prolong dramatically it will also the trial and increase the employ competing experts.7 cost as both the state and defense Addi *4 tionally, recognize legislatures juries I that rather than are best equipped sociological to consider the deterrent value of penalty.8 satisfy process the death To meet these concerns and 7 state country The it contends “could also search around the and find its own experts testify imposing that would in come and the death sentence has enormous value deterring general.” future ... crime 8 Gregg Georgia, 428 U. S. 186 49 LE2d the United Supreme emphasized legislatures States Court that deterrence is an issue for rather than juries: courts and
545 requirements simply preclude arguing we should the state from quagmire deters and thus avoid the created experts. evi by battling sociological Prohibiting and individual dence will also allow the to remain focused on the t.9 circumstances of the crime and the defendan Furthermore, suggest capital while there are studies that crime,10 punishment general to date does not serve as a statistics, data, conclusively supporting no or other evidence there are refuting general the value of the death as a Thus, argument or evidence about the deterrent effect of the merely manipulate juror by taking advantage a would punish- preconceived notions of the nature and of effect capital punishment complex of crime is a factual issue value of as deterrent [t]he properly legislatures, the resolution of which can evaluate the rests results of statistical studies in terms of their own local conditions and with a flexibil- ity approach that is not available to the courts. 9 Gregg, Georgia’s penalty procedures they (upholding because at 206 particularized particularized “focus the attention on the of the crime and nature defendant”); characteristics of the individual 266), Connor v. 118 denied, cert. U. S. Cole, Comparison D. & A These studies include: Baldus James W. L. of the Work of Punishment, Capital Thorsten Sellin & Isaac Ehrlich on the 85 Yale L.J. Deterrent Effect of (1975); (1974); Sellin, Punishment, Capital W. Executions in T. America (1961); Cochran, Seth, An 25 Fed. Probation 3 Chamblin & Deterrence or Brutalization? Impact Punishment, (1994); Capital Criminology Assessment of Oklahoma’s Return to Espy, Capital Show, W. Delinq. & Punishment and Deterrence: What the Statistics Cannot 26 Crime (1980); Sellin, (ALI 1959); Pierce, Penalty T. The W. Bowers & G. The Death Punishment, Capital Illusion of Deterrence in Isaac Ehrlich’s Research on 85 Yale L.J. 187 (1975); Bailey, Disaggregation Penalty W. in Deterrence and Death The Case of Research: (3d (1983); Bedau, Chicago, Penalty Murder 74 J. Crim. L. 827 H. The Death in America 1982); Sellin, (1980); Penalty Bailey, Capital T. ed. ment: Teeters, The of Death W. Murder and Punish Evidence, (1975); Orthopsychiatry Am. E. & N. Some Further J. H. Barnes (1951); Criminology Fienberg, New Horizons on Brier & Recent Econometric Modeling Support Hypothesis?, of Crime and Punishment: Deterrence 4 Evaluation (1980); Klein, Forst, Filatov, Capital Rev. 147 Assessment of the & Punishment: An The Deterrent Effect of Estimates, Incapacitation: Estimating in Deterrence and the Effects of (A. Blumstein, Cohen, Nagin & D. Criminal Sanctions on Crime Rates J. eds. Passell View, Taylor, Capital & The Effect of Am. Rev. 445 Deterrent Punishment: Another Econ. (1977); Bailey, Analysis A Multivariate Cross-Sectional of the Deterrent Effect of the Death (1980); Penalty, Bailey, Imprisonment Penalty & 69 Soc. Soc. Research 193 v. the Death Murder, (1977); Orsagh, & Deterrent to 1 Law Hum. Behav. 239 Black & New Evidence on Homicide, (1978); Forst, Efficacy Q. The Sanctions as Deterrent to 58 Soc. Sci. 1960’s, Capital Analysis Deterrent Effect of Rev. 743 Punishment: A Cross-State of the 61 Minn. L. (1977); Kleck, Capital Punishment, Ownership, Homicide, Am. J. Gun Soc. (1979);Passell, Test, Penalty: A L. The Deterrent Effect of the Death Statistical 28 Stan. (1975);Bailey, Penalty: An Rev. 61 Analysis, Omega The Deterrent Effect of the Death Extended Time-Series (1979-80); Pierce, Bowers & Deterrence or Brutalization: What is Executions?, (1980); Delinq. King, Effect of & 26 Crime The Brutalization Effect: Execu (1978); Publicity B. tion the Incidence of Homicide South 57 Soc. Forces 683 Forst, Archer, Evidence, Capital Conflicting Punishment and J. Crim. Law 927 Deterrence: Brittel, Penalty: Gartner & Homicide Death A Test of a De and the Cross-National Hypothesis, terrence 74 J. Crim. Law 991 *5 Moreover, inconclusive, ment. because the evidence is its use could juror impose based, best, lead a penalty to vague at deterrence, and, worst, unsubstantiated notions of on false notions arbitrary thereof. This court should not sentencing sanction such de- cisions.
In summary, persuaded I am practice that the fairest is to ex- any clude argument or evidence on the deterrent value of the death penalty, as two of our sister states have done.11
I am authorized to state that joins Justice Sears in this dissent. Justice, dissenting. Sears,
Fleming contends that the trial court in ruling erred the prosecutor may argue, evidence, supporting without sentencing Fleming to death will deter others from but that Fleming not counter argument expert with testimony pen- that the death alty is ineffective I agree as a deterrent. Fleming pro- that due requires cess permitted that he present to evidence to rebut the and, state’s argument, therefore, I dissent. year
Last
Carolina,12
Simmons v. South
the United States Su
preme Court held that
a state
urge
jury
impose
not
the
to
the
death penalty by arguing that the
presents
defendant
danger
a future
without also informing
ineligible
defendant
parole. The basis for the
ruling
process
Court’s
was that due
does not
allow execution of a defendant “on the basis of information which he
had no opportunity
deny
explain.”13
to
light
Simmons,
al
lowing prosecutors
to
penalty
crime,14
that the death
deters
at the
refusing
same time
allow defendant
expert
introduce
evidence
contrary15
to the
process
also violates the due
guarantee.
Prohibiting a defendant
from introducing
relating
evidence
to the de-
Zuniga,
898,
(N.C.),
denied,
(108
See State v.
357 SE2d
cert.
Not did the trial court err in the defendant allow present prosecutor’s argument, evidence to rebut the but the court present ar- should not have allowed the unsubstantiated gument about the deterrent of the death the first effect place. Supreme The United States Court has held that while retribu- purpose tion is a ex- legitimate of the death pressed by society’s outrage, capital punishment moral the value of statistical, studies, depends empirical a deterrent on results Gregg Georgia, can be evaluated. Allowing mere the state empirical support in the face of no statistics or other flies Gregg’s unequivocal pronouncement the deterrent effect of the penalty depends evidence. such
I am and Jus- Presiding authorized to state that Justice Benham join tice Fletcher this dissent.
Decided June Smith, Schiavone, Jackson, Jackson & Terry Ray G. C. ap- for pellant.
Dupont Durden, K. Cheney, Attorney, District J. Thomas Assis- General, Attorney, Attorney tant District Susan Michael J. Beth, Westmoreland, Boleyn, Mary Attorneys V. Senior Assistant General, appellee.
Cathy Alterman, Lotito, M. A. Nicholas amici curiae. Ga., (defendant Compare supra could not describe the evidence). closing argument mechanics of electrocution because the facts were not