*1 Decided November Reconsideration denied December Kicklighter, appel- Webb, Skaar, Webb & Robert F. Kris for K. lants. Rogers, appellees. Moore, Basham,
Moore & John H. Ellen L. for
S89A0241.FLEMING v. ZANT. Presiding Justice. Clarke, granted appeal petition We from the denial of a for habeas corpus impact in order to consider amendment validity Fleming’s § OCGA 17-7-131 on the of Son death sentence.1 follow, For reasons that we conclude that the new statute reflects against mentally a societal consensus execution retarded de- Executing fendants. retarded defendant would therefore punishment prohibited by constitute cruel and unusual Constitution. We remand this case for a determination whether Fleming presented jury sufficient evidence warrant a trial on the issue of mental retardation. Fleming In Son two other defendants convicted were
murdering police Fleming officer. death. In was sentenced to alleged newly below, action he discovered evidence demonstrates that he is This that in retarded.2 evidence indicated Fleming gunshot applied Security suffered wounds and for dis- Social ability totally benefits. He was declared awarded bene- disabled and Security fits. Documents from his Social file indicate that the basis disability gunshot wounds, for determination was not but organically retarded, rather the evidence that he was brain damaged psychotic. his Because he was unable to handle financial payee affairs, his wife was made the his continued to for benefits. He receive until benefits he was incarcerated murder. legislature passed
In § 1988 the an amendment to OCGA 17-7- 1 Fleming attempts petition. to raise other limit our review several issues in this We impact newly validity Fleming’s an examination of amended statute previously death sentence because this is the issue been decided and could that has not reasonably corpus. Fleming’s previous petitions have been raised in See OCGA for habeas 9-14-51; Zant, 32), Smith v. S. 807 § cert. denied 464 U. retarded, etc., declaring The documents not discovered were attorneys recently. They Security his until been in labeled as follows: had his Social file part patient’s communication should be made file. Under circum- report given patient. stances should the be read statute, capital in a trial must de- jury
131. Under the amended or innocence of the defendant guilt cide at the time of the trial OCGA 17- but retarded.” “guilty whether the § .defendant (c) (3). mentally guilty If is found to be 7-131 the defendant tarded, imposed and the court shall “the death shall not be 17-7-131 imprisonment for life.” OCGA sentence *2 in “in the trial of case (j). The amendment is to be effective July or after sought which the death is which commences on Fleming, Son apply On its face the statute does not 1988.” Id. years ago. who was tried more than ten that, spite language the statute Fleming
1. contends pro- of due giving prospective application, guarantees it given retroactive equal protection require cess and that the statute those cases that have argues effect. He that the distinction between it dis- arbitrary capricious: that have not is been tried and those Fleming equally and other criminates without rational basis between process of due culpable mentally retarded defendants violation ' equal protection. disagree. We could never en- According Fleming’s argument, legislature provi- repeal prior sentencing act a statute that would ameliorate The Constitu- given sion unless the new law were retroactive effect. Sorondo, tion United States v. requirement. contains no such See (11th 1988). F2d 945 Cir. criminal statute does not discrimi- Where a class, grounds suspect equal protection nate on racial against process due concerns are satisfied the statute bears a “reasonable proper purpose” arbitrary relation to a and is “neither nor legislative (11th discriminatory.” United States v. Holmes. F2d York, (quoting Cir. v. New 291 U. S. SC Nebbia 940) (1934)). 78 LE improperly
The amendment to OCGA dis- 17-7-131 does § cases among distinguishes criminate classes It between of defendants. that is have been tried and those that have not. This classification arbitrary neither to choose discriminatory. legislature nor had And, certainly some effective could although legislature date. date, or the selected another date of the offense effective such as the sentencing, responsibility date of our is not to determine whether alternatives, rather to de- possible selected the best of Holmes, supra, cide legislative whether the decision is a rational one. at 1178. We a reasonable conclude that it is. The classification bears finality of crim- relationship to a for the legitimate legislative concern Thus, equal protection inal Fleming’s convictions. that we conclude process and due claims are without merit.
2. the amended Fleming argues passage next 17-10-35 disproportionate renders his death sentence under OCGA § (c) (3). Court for He this argues again that no case will come before imposed per- direct review a death sentence on a says disproportionate He son. that his is sentence therefore imposed against Georgia. similar defendants similar cases (c) (3) require
OCGA 17-10-35 does not this Court to undertake proportionality dea novo review whenever new information about the is discovered or whenever a new enactment changes landscape. penological We do not reach the issue of pro- whether there portionality proper, be some circumstances under which a second clearly appropriate. review would be It would not be proportionality Fleming’s however, to undertake a review of judicial case at time. This is true because there has been no de- Fleming mentally not, termination that is If he is is retarded. there proportionality retarded, reason to conduct a second If he review. holding any proportional- 3, below, our Div. is sufficient to correct ity problem. argues guarantee next that his sentence violates
against punishment Eighth cruel and unusual found in the Amend- I, I, ment to the U. S. Constitution and in Art. Sec. Par. XVII Constitution of 1983. pro categorically
Both the and the federal constitutions inflicting punishments. punishment cruel and A hibit and unusual goals unusual cruel *3 “ ‘(1) accepted if it no makes measurable contribution to punishment nothing purposeless
of
is
and hence
more than the
imposition
(2)
pain
suffering;
grossly
and needless
of
and
is
out of
”
proportion
severity
Wyatt
v. State,
the
of the
259 Ga.
crime.’
(378
Georgia,
(1989)(quoting
208, 209
Coker
U.
SE2d
v.
433
S.
(97
982) (1977)).
2861,
Further,
584
SC
53 LE2d
the constitutional
society’s
punishments
cruel,
standard reflects
of
and
view what
prohibits
“disgraced
ages, . .
those that
the
former
.
civilizations of
mak[ing]
Smart,
Dutton v.
one shudder with horror to read them.”
(148
396)(1966);
Georgia people Georgia, Constitution is the standard of represent national standard. Federal constitutional standards protection minimum, maximum, must afford not the that this state 692) (1951). Duncan, its citizens. Harris v. although might agree, Thus, under the the rest of the nation Constitution, retarded consti- the execution of the punishment. tutes cruel and unusual holding pro- Constitution does not mean that the merely persons per that it
hibits execution of retarded prohibits se. We hold punishment. that the soci- cruel and unusual Our conclusion *4 persons Georgia opposes etal does consensus execution of retarded altering may change not mean comes within the what that such consensus not thus punishment. meaning unusual of cruel and how retarded the Georgians favor the death establish a societal consensus. We Because favor opinion polls may produce capital punishment, person for the is. See retarded, Penry, note, 66% however, 109 SC at 2955. and 16% widely oppose that a varying feel that Georgia poll results, penalty their answer we found do not for the that while 75% of would rely retarded, on depend polls 17% Having apply Georgia decided, so we must now constitu- above, tional standard to the case at hand. As noted there has been judicial Fleming mentally determination that retarded. We must by procedure therefore decide what that determination be made. When a defendant who was tried before the effective date of the (j) alleges petition corpus § OCGA she is 17-7-131 a for habeas that he or corpus retarded, the habeas court must first deter- petitioner presented mine whether the sufficient credible evi- expert diagnosis dence, which must include at least one of mental re- genuine petitioner’s regarding tardation, to create a issue hearing court, discretion, retardation.4 The in its hold a depositions, issue, or make affidavits, the determination based on examining corpus documents, If, evidence, etc. after the habeas genuine granted issue, court finds that there is a a writ shall be purpose conducting the limited a trial on the issue of retardation only. original This trial shall be held the court in trial evidentiary was conducted. Petitioner shall be entitled to a full hear- ing by on the issue of retardation. The determination shall be made jury using the definition of retardation enunciated statute. See (a) (3). petitioner prov- § OCGA 17-7-131 will bear the burden of ing by preponderance jury retardation of the evidence. The shall by opinion testimony expert not be bound witnesses or test may weigh bearing results, but and consider all evidence on the issue jury petitioner of mental retardation. If the returns a verdict that the petitioner’s retarded, sentence shall be vacated and he imprisonment. shall be sentenced to life summary,
In we conclude that the execution of guarantee against offenders violates the cruel punishment. judgment and unusual We reverse the of the court below respects judgment to the extent that it held otherwise. In all other below is affirmed. Judgment part, part reversed and remanded. All affirmed except concur, Marshall, J., Smith, J., Justices C. who dis-
sent as to Divisions 3 and 4 and the reversal and remand. dissenting. Justice, Smith, legislature
I First, dissent for several reasons. I believe that prospective only. intended for Second, OCGA I 17-7-131 to be do among people Georgia not believe that there is a consensus all should under all circumstances defendants Moreover, be excused from the death I do not believe that the to be used intended for the Constitution procedure apply is remedial in nature and will to defendants tried after the effective date of the statute.
692 excuse retarded criminal defendants from the death penalty regardless retardation, blameworthiness, of the of their in past, present, involvement crimes or future.1 granted Fleming’s application, par
When we
Son
we directed the
(Ga.
1988,
impact
ties to address “The
of the 1988 amendment
Laws
p.
seq.)
1003 et
to O.C.G.A.
validity
Fleming’s
17-7-131 on the
§
below,
sentence of death.”
I agree
For the reasons
with the habeas
court
prospective application only
that OCGA 17-7-131 has
and has
§
application
no direct
Fleming’s
Mr.
death sentence for the murder
Ray City
State,
Fleming
Police
E.
v.
Chief James
Giddens. See
(240
37)
(1977),
Ga. 142
v.
EXISTING LAWS The legislature presumed knowledge to act with of the laws and the holdings of the appellate pertinent courts of this State. The laws and holdings future; are as prescribe only follows: “Laws for the they cannot . . . retrospective operation.” have a OCGA 1-3-5. § rule,
It is a general statutes, interpretation they are to be interpreted, they so any shall not affect case that was existence before their passage, unless or, expressly, by necessary implication, mention that case. Munro, v. (1859).] Ga. [Bond Kingsbery Ryan, SE knowledge With above, the legislature specifically applicability limited the statute to “the trial of penalty sought case which the death July commences on or after (j). 1988. . . .” OCGA 17-7-131 § legislative The intent was expressly stated. The statute was intended apply only to those cases tried July after 1988.
The articulates the will of it people when enacts laws. judiciary interprets Attempts by laws articulated. judiciary to articulate the will of the people attempts usurp legislative power. As majority, stated enactments “legislative constitute the clearest objective contempo- and most evidence of how rary society particular views punishment.” The “clearest and most objective evidence” people’s express will is the limitation statute. The apply statute does not to cases which the accused was important only It is to note that the death those who is reserved for kill engage other humans and who also in acts that the of this state find the most repugnant. Except hijacking jury in cases of aircraft must find at least one treason the aggravating circumstance. See OCGA 17-10-30. July prior guilty to death and sentenced found legislative is a rational one decision found that expresses discriminatory. arbitrary decision That nor neither that is legitimate people’s people. expresses concern It will of the policies; prerogative finality. social to determine It is not this Court’s questions policy power rests to determine the branch, usurps Today’s holding judicial branch. not the Assembly. legislative power, De- of the General it also ties the hands opinion spite majority’s that this its in Division of insistence Court’s *6 legislature
responsibility se- whether the is not to determine possible alternatives, decide rather to but the best of lected whether the one[,] is a rational decision legislature alter- not selected the best has that the it has determined only to be what it determines the selected Not has native. the best must be a alternative, alternative” it has held that the “best “constitutional alternative.” THE THE WILL OF ARE NOT
SENATE RESOLUTIONS PEOPLE people. express the the will of 388 does not Senate Resolution provide passed session to each
Hundreds of Senate resolutions are example, specific people, groups, For and entities. commendations to passed in number to S. closest some of the Senate resolutions high following: a school commended at the R. wrestling S. R. 385 included passing expressed regret citizen; a team; S. R. 387 distinguished long service to S. R. 389 commended a citizen passing sympathy expressed of a citizen. state; at the S. R. 390 cap- only political. types Often resolutions are These tions are read of Senate they many vote, times to the Senate for a only passed votes. vote, the Senate there is a without a vote. When express citi- not the will of Senate resolutions do they express or Senators State; of the Senator zens of this will who introduced them. statutory people’s expression highest is a The and best majority’s to deter- Resolution nullify reliance on Senate enactment. attempt overrule and only is an mine the will of the expressed legislative those cases intent to limit the statute July 1, 1988. tried after CITIZENS THE DO NOT SPEAK FOR
SURVEYS speak opinion polls Surveys public citizens for the do not responses Survey power. only State; They change quickly in one direction fleet waves of emotion. often as place political arena, Polls have a other.2 particular prove nothing respondents more than the mood of the at moment in time.
THE THE THE LIMITATION EXPRESSES CONSENSUS OF
PEOPLE express (j), Faced with the 17-7-131 limitation OCGA (and majority vey) looked to Senate Resolution 388 footnote to a sur- against to find that there is execution of the men- “a consensus tally Georgia. really consensus, retarded” If there is a then the Assembly sought General would have to amend the constitution protect mentally very least, all At the it criminal defendants. expressly apply would have stated was intended defendants, those tried after July July 1, 1988.The decision to limit the statute to those tried after expresses people. people’s 1, 1988 the consensus of the will has by majority’s been nullified and overruled reliance on Senate Res- survey. olution 388 and the
THE FIRST BE LEGISLATIVE ENACTMENT SHOULD NOT USED AAS SPRINGBOARD TO EXCUSE ALL MENTALLY
RETARDED CRIMINAL DEFENDANTS response Our statute was amended an emotional to the execu- mildly tion of a retarded defendant.3 is new area of law. We *7 just beginning retardation; to understand mental we should not legislature. tie the hands of the Without a clear mandate from the people, majority jumped very legislative the over the first enact- mentally ment in this area and all declared that past, present, defendants, future, are relieved from the death Georgia under the Constitution. According taken after the defendants have been majority from the death penalty? tion asked was: penalty?” aggravated assault, defendant allegedly mildly retardation, blameworthiness, [2] [3] The Five of this Court has ruled that See note offered to the timing years (296 penalty by public “Should all retarded after SE2d amicus, “newly 4, infra. Would it make a successful becomes aware of the amicus’ assertion that being 576) (1982). burglary, poll criminal defendant. Would the the discovered” evidence of his “mild retardation.” the convicted and sentenced to death for can create survey Georgia or Bowden v. invoking involvement was made after the retarded Constitution? Would it mentally differences the statute and have been State, criminal difference retarded criminal defendants are excused [239] the in the attitudes of defendants, Ga. crimes, survey produce if highly the [821] make a difference respondents be excused from the death (238 publicized murder, three regardless SE2d spared those who different mentally Bowden v. 905) (1977), execution of an armed knew that of the if the the results if retarded ultimate respond. robbery, degree ques the the
695 opinion Assembly majority prevents The the General from amending interpretation placed upon by the statute. “integral part [,]” of this Court is an of the statute Gulf (48 200) 133, Moser, C. & S. F. R. LE Co. v. 275 U. S. 136 SC 72 (1927), interpretation “puts majority’s and the the words the stat- definitely by legislature.” as ute it had been Win- amended (68 840) (1948). York, v. LE ters New See also Jones v. 333 U. S. SC (1979), Swett, Ga. cit- ing approval App. 545, Walker, with v. Walker Ga. 46) (1970), citing approval Moser, C. & R. Co. with S. F. Gulf supra. supra, holding, majority’s York, v. New and Winters Because of the “Executing the statute has now been amended to state: punish- [constitutes] retarded defendant cruel and unusual prohibited by Georgia p. Majority ment Constitution.” pen- The statute relieves criminal defendant from alty “medically accepted” if he fits within the definition mental adopted per retardation not be the the death the statute. Mental se retardation should determining relieving factor criminal from “medically accepted” time, Over definition might proven or be unworkable as it relieves all undesirable those who fit within the definition. of retardation is not requirement relevant, and there is no that the defendant be unable to appreciate quality wrongfulness the nature and of his conduct. majority interpretation, Prior to the could have (to provide example, protection, only amended the statute for protection, those retarded criminal defendants who need protection every mentally rather than blanket retarded crinlinal defendant) body; today however, with a vote of the after statutory there can be no valid amendment. of the statute’s Because required. eminence, a constitutional amendment representa- Georgia If a their inform Assembly tives the General do Con- not want stitution ants be used to relieve all criminal defend- only penalty, Assembly do one of General can things, long First, two both which involve time commitments. Assembly propose General can an amendment Consti- attempt exempting tution; second, it can enact a new statute (for example, certain retarded criminal defendants prevents appreciate being those whose the whose retardation them from able quality wrongfulness conduct, nature or the or those their *8 in because of involvement the crime was limited or coerced retardation) penalty. their statute will from the new be The challenged by who is the first defendant retarded criminal “[legislative longer penalty. no from acts relieved Because judiciary [our] void, violation of shall Constitution ... and the Geor- I, II, them[,]” Par. V of the Constitution so declare gia Art. Sec. newly enacted this Court will have to declare provision Geor- void; it will conflict with the cruel and unusual gia void, has been declared Constitution. Once the statute opinion, today’s majority relying Court, look to the void of this statute, opinion polls public resolution, and declare that a senate changed. the consensus has very found a consensus without a should not have today, message message legislature. The clear
clear and there are far less drastic is not provided ade- methods which could have quate protection re- others who to Mr. tarded.
THE OF THE HOLDING BREADTH Today’s protection holding to those extend protection. majority opinion who neither presumes need nor deserve regardless defendant, degree retardation, ever act of blame- could with worthiness associated with the death Georgia,
In a criminal he has: [Significantly subaverage general functioning intellectual sulting impairments adaptive or associated with behav- during developmental period. ior which manifested (3).] [OCGA § 17-7-131
According to Ellis and Luckasson: phenomenon functioning measured,
General intellectual is by intelligence quan- defined, is, therefore, and thus tests. It intelligence quotient (IQ) tifiable as an score. The AAMD’s upper boundary definition sets the retardation at mental approximately IQan level of which is two standard devia- tions from [Cit.] the mean score of 100. For an individual to mentally retarded, be classified as in intellectual the deficit functioning accompanied by adap- impairments must be “significant tive behavior in an indi- defined limitations meeting vidual’s tion, responsibility effectiveness the standards of matura- learning, personal independence, social and/or expected age that are from his her level and group, and, cultural as determined clinical assessment usually adaptive is a standardized scales.” Thus behavior synonymous maladaptive art, term of with be- which is not adaptive havior. The definition inclusion of behavior impairment, requires of mental retardation that intellectual *9 intelligence practical impact test, an measured on some [Cit.] the individual’s life. Mentally
Ellis, J., R., Luckasson, and Retarded Criminal Defend- ants, 53 Geo. L. our and Wash. Rev. Given majority’s holding, any the criminal of score mentally all that is to needed relieve following: from IQ is the an test expert testify
70 or lower and an defendant is requirement retarded. There is no that the prevented appreci- tarded criminal defendant’s retardation him from ating quality wrongfulness and of nature or the his conduct. any military experience life, i.e., There is no value attached to or to training, jobs independent living, family ability held, other read reared, background, ability write,
or held, educational licenses to drive a obey ability obey generally. road, car and rules laws MENTALLY RETARDED INDIVIDUALS IN THEIR VARY
ABILITIES Mentally people group; vary homogenous they retarded are not a considerably vary, mildly experiences in their Their abilities. also successfully society. retarded individuals are often able to function person A who is retarded can be where a continuum independent dependent. “Mentally people are indi Any attempt group viduals. to describe them as a risks false stere otyping greatest Mentally and therefore demands the of Re caution.” supra, According tarded Defendants, Criminal 53 Geo. Wash. at 427. Diagnostic and Statistical Manual Mental Disorders of (DSM-III-R) p. Third Edition-Revised at 32: degrees severity, reflecting There are four impairment: Mild, Moderate, Severe, intellectual distinguishing guides IQ Profound. levels to be used as degrees severity four are:
Degree Severity IQ approx. Mild 50-55 to Moderate 35-40 to 50-55 Severe 35-40 20-25 to Profound 20 or 25 Below 317.00 Mild Mental Retardation equivalent roughly
Mild Mental what used Retardation category to be referred to as the of “educable.” educational group largest segment with constitutes those People Mental 85%. level of Re- disorder—about with this develop typically skills and communication social tardation 0-5), impair- years preschool (ages during have minimal distinguish- area, are not and often in the sensorimotor ment age. By later their late until a from normal children able up approximately acquire can academic skills teens years, they usually during sixth-grade level; adult their adequate minimum social vocational skills achieve self-support, guidance and assistance when need present time, At the or economic stress. under unusual social virtually can Retardation live with Mild Mental super- successfully community, independently inor (unless apartments group associ- there is an homes vised impossible). makes this ated disorder that pop- *10 Mildly individuals, 85% of the retarded about community. successfully in Id. Those who are ulation, mildly can live penalty under not be excused from death retarded should all circumstances. THE ULTIMATE
EXPERT WITNESSES WILL DETERMINE ISSUE psychol- specialized training psychiatry or Professionals with ogy to is will have determine whether the defendant according accepted” person “medically A definition. tarded to the IQ with an test score of 70 or is classified as retarded. below experts upon testify, according Id. will our be called to and to rules of evidence: Expert opinion testimony on issues to be decided
jury, issue, even the ultimate is admissible where the conclu- ordinarily expert jurors of the sion is one would not beyond themselves; i.e., able to draw the conclusion is layman. average [Cits.] [Smith ken 247 Ga. 678) (1981).] 612, 619 laymanf,]” beyond average Because the “conclusion is the ken of the experts Id. shown issue. Once it is that determine ultimate expert the has criminal or IQ defendant’s test score is 70 below mentally retarded, that the accused has testified the defendant is prima made to facie State refute case and burden shifts to the nothing However, it. IQ there it is that the is to Once established refute. expert one with an test score is 70 below and testifies that or nothing IQ of the State is below retarded there juncture, counsel, can make motion do. The defendant’s can at for a The fact that directed retardation. verdict as defendant’s expert might testify wish, cases, the the defendant’s mental could and some to also prevent being him from
retardation did appreciate quality wrongfulness able the nature and or the of his expert conduct is irrelevant and will not be allowed. Once the states inquiry retarded, that the ends.
THERE ARE FAR LESS DRASTIC METHODS AVAILABLE upon protect
The Fleming. could call less extreme methods presented “newly Mr. Mr. discovered” evidence capacity, of his retardation which an issue to his raises mental his ability proceedings against him, to understand the nature of the ability provide his to v. assistance his counsel to aid in his defense. Curry Zant, See need not declare retarded criminal defendants freed from protect Fleming. death order to Mr. DO ALL GEORGIANS MENTALLY WANT RETARDED CRIMINAL THE DEFENDANTS RELIEVED FROM DEATH PENALTY WITHOUT REGARD ANY TO OTHER FACTORS?
Today may tried, there be a criminal been defendant who has may convicted, and sentenced to death for a heinous crime. He fit “medically accepted” within the definition of mental retardation al- though may may society he and, fact, functioned have been integrated society into an such extent that no one considers him unable to act with the of blameworthiness associated with the may prevented His mental retardation not have him being appreciate quality wrongful- able nature and may ness his conduct. This criminal defendant have worked for a living supported may license, himself, have a driver’s under- obey family, may road, stand and the rules have a know *11 obey right wrong, the difference and between and understand generally, planned law and have and carried out a heinous crime penalty. that warrants the death That criminal defendant not re- penalty “newly ceive the death if he can evidence find discovered” degree retardation, he is that His blame- retarded. of mental significance; worthiness, or involvement in the be of no he crimes will upon solely will be'relieved from the based the ex- ultimate pert’s testimony that the defendant is retarded.
CONCLUSION I do all not believe that in this State that there a consensus degree regardless defendants, of their of capital retardation, blameworthiness, crimes and involvement agree penalty. with should be excused from I the death do not majority people Georgia [have decided] that execu- “the of that
700 contribution measurable makes no offenders mentally retarded tion of does per se retardation Mental punishment.” of acceptable goals of degree acting with the capable of being prevent person I do not is associated with blameworthiness men- all to relieve Constitution Georgia use the that we should agree all penalty under from the death defendants tally retarded criminal circumstances. “executing 388 as follows: quotes Senate Resolution justice in the criminal confidence destroys public
a retarded offender
de
criminal
excusing
system.” I believe that
of
regardless
punishment,
ultimate
fendants from the
crimes, de
in the
blameworthiness,
retardation,
and involvement
.4
rea
For this
justice system
confidence
the criminal
stroys public
of
who were convicted
retarded defendants
The amicus states: “[T]hree
provisions
already successfully
statute.
. . .”
of the 1988
. . .
invoked the
murders
three cited are:
1)
armed
Holloway,
murder and
to death for malice
convicted and sentenced
Jerome
794) (1987).
entry
(361
“Holloway gained
Holloway
State,
robbery.
Ga.
SE2d
v.
cup
needing
friend,
Berry,
pretext
to borrow a
the home of his mother’s
Corabelle
lamp
sugar,
proceeded
and to take
a stick and a kerosene
to beat her to death with
dollars,
buy
equipment.”
stereo
which he used to
from her residence several hundred
2)
for
George
Dungee,
of murder
to death on six counts
Elder
convicted and sentenced
family
family
Alday
were killed
Five members of the
the deaths of the
they
Donalsonville.
by
Alday
raped
. . .
“Mary
the men.
two or more of
returned to their home.
was then
blindfolded,
where
six miles to a wooded area
bound and
in her car about
She was then taken
sodomy,
men,
raped
oral
when she refused to commit
she was
two of the
was beaten
removed from
Her watch was then
She was then killed with two shots.
her breasts mutilated.
911) (1976).
(226
State,
body.”
evidence
Ga.
SE2d
“[T]he
her nude
Coleman v.
personally
participated
death
[Dungee]
he
caused the
in all the crimes and that
showed that
746) (1976).
(227
State,
Mary Alday.” Dungee
v.
I am authorized state that Chief Justice Marshall this dissent. Decided December 1989. denied
Reconsideration December E, Hastings, Janofsky Shapiro, Paul, & Walker, Kenneth Mark Gary Kushlefsky, appellant. Olive, Alexion, A. Benna for Attorney Mary Bowers, General, Michael J. Beth Westmore- Attorney appellee. land, Senior General, Assistant for Bondurant, Elmore, Mixon Bondurant, & J. Emmet amicus cu- riae. SYSTEMS,
S89A0297.HARRIS v. ENTERTAINMENT INC. SYSTEMS, S89A0298. WEBB ENTERTAINMENT INC. 140) Justice. Gregory, appeal injunction Superior arises from an entered County restraining Court Fulton §§ the enforcement of 3-3- OCGA prohibit 40 to 3-3-46. These code sections were enacted “so as to cer- premises beverages nude tain and sexual conduct where alcoholic dispensed consumption premises....” are sold or Ga. Laws Club) p. (The Appellee Systems, Entertainment Inc. Gold operates night independent club that hires female contractors during clothing. dance routines their remove some or all of brought constitutionality challenging The Gold Club suit Enjoining Act under Constitution of 1983. the en- superior forcement of fringed Act the court that the Act in- determined upon protected speech infringement was not the that this proper police power. result exercise of We affirm. appeal 1. Two issues we in- address are whether Act upon
fringes protected speech empow- and, so, whether the State regulate speech ered under the S. or U. Constitutions in this fashion. a) greater expression It is well established that the realm example, constitutionally protected. than that which is For under States,
Roth v. United 354 U. S. SC LE2d (1957) progeny, expression regulate and its which is ob- the state expression scene. The courts have also even if certain established that upon based test 70 or below. an score of IQ