*1 439 penalty.37 Judgment All the concur. reversed. Justices 15, 1996.
Decided March Rosenthal, Crowe, Crowe, appel- Lane & Robert L. M. Seth for lant. Thomas, III, Jr., As- Attorney,
Glenn District John B. Johnson Bowers, General, Attorney, Attorney Su- sistant District Michael J. General, Attorney Wesley S. Boleyn, san V. Senior Assistant General, Homey, Attorney appellee. Assistant THE S95P1366. GREENE v. STATE.
(469 SE2d Justice.
Carley, Daniel Greene of the murder of a customer was convicted robbery of armed and of convenience store and he was also convicted aggra As an committing aggravated against an assault the store clerk. circumstance, vating jury found that the murder had been com robbery armed and Greene was sen during mitted the course of the (b) robbery, armed he tenced to death. OCGA 17-10-30 For the § assault, and, 20-year sen aggravated life for the received a sentence 1 appeals entered the trial court. judgments tence. Greene from the Rulings Pre-Trial in denying 1. discretion The trial court did not abuse its Greene’s. assistance, failed to investigative motion for funds for since Greene necessary his defense or that his trial investigator show that an investigative as- was rendered unfair because he was denied funds for (13) (386 717, State, sistance. See Isaacs v. 259 Ga. SE2d 644) (1986). (1989); Rogers State, 139, Likewise, showing a threshold that his Greene also failed to make 766) (1993). 11, See Moore v. 14,1991. 27, September on October The crimes occurred on 1991. Greene was indicted 15, 1992, penalty. Voir dire June the state filed its notice of intent to seek the death On 5,1992. 30, 1992, began On on and the trial of the case on December commenced November 7, 1992, charged. jury finding guilty of the crimes December returned its verdict 1992, 8, sentencing phase the trial court sen returned its verdict on December 22, 9, for new trial on March 1993. tenced Greene on December 1992. Greene filed a motion 24, 4,May The trial court denied the motion on March He amended the motion on 1994. May appeal April on filed his notice of on 1995. The case was docketed 1995. Greene orally argued September phase Compare of trial. be an issue either
mental health would
(2) (e), (f)
Instead,
Bright v.
(410 (1991); denying It that the trial court did not err follows request for funds for a mental health evaluation. Jury Selection 2. in excusing pro- trial court erred five contends that the spective jurors upon opposition for cause based their to the death
Wainwright Witt, v. U. S. 412 SC 83 LE2d authority death-penalty qualifica- controlling is the as to prospective jurors holding unmistakably tion of and its is clear and unambiguous. proper determining prospec- for standard when a juror may tive for of his her be excluded cause because or views on capital punishment juror’s “prevent substantially
is whether the
views would
or
impair
performance
juror
of his duties as a
accordance
that, in
with his instructions and his oath.” We note
addition
Illinois,
v.
Witherspoon[
dispensing
with
Contrary transcript to Greene’s of voir dire does merely prospective jurors disqualified were not show that for penalty “leaning” “qualms” expressing or to- about the death for disqualified jurors prospective Rather, were ward life sentence. only conscientious trial court undertook an exhaustive and after the penalty would whether their views on effort prevent determine impair performance substantially of their duties ac- It is not determinative cordance that, their instructions and oaths. with prospective jurors point during dire, of the at voir each some may given which, isolation, would answers considered indi- have opposition to not “auto- cate his or her was necessary disqualification Likewise, is matic.” each clarity.” prospective jurors appear of the The proper with “unmistakable inquiry finding that is whether the trial court’s relevant death-penalty disqualification met as to each standard for “fairly supported” prospective is record “consid- (IV). Wainwright supra Witt, review, ered as an at 433 On a whole.” appellate findings those of court should not substitute its for Wainwright (IV). supra Witt, The conclusion trial court. that juror disqualified prospective is that is based bias one upon credibility peculiarly findings which within of demeanor and are province findings given the trial such are to deference court’s be (III). Wainwright by appellate supra Applying Witt, at 428 courts. *3 ambiguity controlling authority that, here, this it clear whatever is court, dire, trial aided it in the record of the voir “the as exist undoubtedly by prospective jurors’] [the de- its assessment of [s], meanor resolve in favor of the State.” Wain- was entitled to (IV). wright supra Witt, v. at excusing pro- court erred in Greene’s contention that trial spective jurors upon a of is based fundamental misconstruction Witherspoon Witherspoon supra. Illinois, v. create new death-penalty ground prospective juror challenging case, in a a disqualification ground merely long-recognized but addressed the Wainwright death-penalty Witt, v. for bias in the of a case. context (II). supra at 423 nothing juror [T]here is under talismatic exclusion about sentencing Witherspoon capital merely because it involves juries. Witherspoon grounded Eighth in the Amend- is not prohibition punishment, against unusual ment’s but for cruel and quest elsewhere, Here, is the Sixth Amendment. conscientiously apply find the will the law and who “impartial” jury of, we do is consists facts. That what an simply being think, for a a is tried because defendant legal presumption capital crime, a that he entitled to likely quite jurors to who will standard that allows be seated be biased in his favor.
Wainwright Witt, (II). supra contrary at 423 Because a holding upon interpretation would be based an unauthorized “talismatic” Witherspoon misapplication and a of the controlling authority of Wainwright, finding prospective the trial court’s jurors were disqualified must be affirmed. urges
3. Greene disqualify prospec- it was error to fail to a juror upon purported tive based her pen- bias favor of the death by Wainwright alty. this enumeration likewise is controlled and the trial court was authorized to find that the “final distillation” prospective juror’s thoughts qualification. demonstrated her Taylor (5) (404 255) (1991). 261 Ga. Contrary contentions, to Greene’s the record reflects that trial court was even-handed its efforts to obtain a whose mem- bers would not be biased against imposition either for or
5. In the
peremptory strikes,
State’s exercise
its
Greene estab-
prima
lished a
facie
against
case of discrimination
six African-Ameri-
Batson v. Kentucky,
prospective jurors.
can
See
443 care, for child arrangements small were able to make with children service, and problems had which would interfere with none health penalty were regarding with some hesitation those ways. proffered The State’s reason for favorable to the State other showing striking prima a is to rebut a facie potential juror sufficient neutral, long racially of racial discrimination so is related to 325, case, reasonably Ga. specific. clear and Gamble 792) (5) (357 (1987). explanations this The State’s met test similarly prospec- no accepted the fact that State situated white any African Americans. See juror tive undercuts motive exclude (3). supra Osborne v. at 216-217 by
Although respond Greene did to the reasons articulated prosecutor, him urges failing he the trial court erred to afford a opportunity proffered more to rebut those reasons. How- extensive tendered, ever, explanation once a race-neutral has been the trial purposeful then racial discrimination has court must decide whether Elem, proven. supra Purkett v. at 1770-1771. The been proffered explanations this case the State’s burden of ar- satisfied ticulating nondiscriminatory inquiry reason the strikes and the a for properly thus was framed court’s determination. Purkett for trial Elem, supra at 1771. ruling Greene further contends that the trial court erred peremptory exercising State its for a need articulate reasons only juror de against prospective strike who was Asian Indian prima step first a facie case establishing scent. prospective juror be purposeful discrimination to establish that the Batson, to a 476 U. S. at longs cognizable group. racial or ethnic See (111 94; Ohio, Powers v. 499 U. S. SC 113 LE2d (1991). attempt are a did not even to show that Asian Indians authority aggregating he or cognizable group and cites no for racial prima a facie groups. It follows that Greene failed to establish ethnic Batson. See against case of racial discrimination Asian Indians under (1st denied, Bucci, 1988), United States v. 839 F2d Cir. cert. S. 488 U. initially a that he would Although prospective juror indicated defendant, police he a officer over later stated that
tend believe by judge police credibility would the same criteria as he officer’s denying witness. It follows that trial court did not err po- challenge prospective juror alleged to this bias favor 873) (1981). lice. See Foster Johnson v. See also Greene’s voir dire improperly
7. The trial did not restrict court prospective jurors limiting to rehabilitate two either efforts repeatedly opposition to the death expressed unwavering who Spencer v. by disallowing legal nature. See questions of a technical *5 (1) (d) (398 179) (1990); Baxter Ga.
The Guilt-Innocence Trial Phase presented 8. find The evidence at trial authorized the to the following facts: September evening
On the Greene made series of a Swifty, trips gasoline to the Suwanee a convenience store and station Reynolds, Taylor County, Georgia. During visit, in grabbed his final Greene Virginia clerk, throat, Wise,
the a store held knife to her and give money register. obtaining her to him told the the from the cash After money, $142.55, Greene hold the Wise’s continued to knife to pulled room, He the fin- throat. gers her to back then cut her across three through Upon hearing lung and stabbed her liver. and ring store, automatic doorbell Bernard Walker entered the placed against telling wall, Wise the bathroom her that if left the she public he kill room would have to the her. Greene reentered the area of waiting store and encountered Walker at the make counter to a purchase. heart, knife, He stabbed Walker in the threw left down the away. attempting get help, the store and drove After fell Walker parking in dead lot. evening, Later that Greene went to the home of Willie elderly Montgomery, couple County
Donice an in rural for Macon whom Greene had worked as a farm laborer about two months. through Montgomerys’ wielding burst Greene and and Greene kitchen door a knife keys. gave keys, Montgomery asked for their car Mr. Greene proceeded multiple to stab each victim times in head. leaving Montgomerys’ home, After car drove their County, Georgia. Robins, a convenience Once store Warner Houston there, cashier, Roberts, he a butcher held knife to the Bonnie give money register. and forced her to him the from the cash He then bent attempted walked toward her her in to stab chest. She down, and Greene drove knife into back of her shoulder. Montgomerys’ acquain- Greene then drove the to the car home of an apprehended. Robins, tance Warner where he separately Greene was tried and convicted of the Macon and County appeal Houston concerned crimes. The trial from which this is taken
only Tay- Greene’s indictment for the crimes committed County. lor explaining trial,
Before crimes, Greene confessed to the videotaped money he interview that had committed them to obtain trial, crack for ber cocaine. At that he remem- Greene testified could not only committing confessing, the crimes or that he recall could experiencing Swifty a severe headache inside the Suwanee hav- after by acquaintance. He him earlier an cigarette given smoked a ing might have induced that his criminal behavior been theorized mind-altering powerful, laced with a cigarette, which must have been drug. evidence is sufficient to enable rational trier fact charged beyond reasonable doubt. guilty
find Greene of the crimes Virginia, Jackson U. S. 307 deciding, reference Assuming, without popularity the murder victim’s the com- opening statement
munity, closing argument and his comment *6 im- help sympathy family for were could not but have the victim’s not, in object those all proper, Greene failed to and comments State, probability, change the result of trial. See Todd reasonable (a). (2) supra at 767 began crying
10. and was es- When the murder victim’s mother courtroom, for The trial corted from the Greene moved a mistrial. motion, When, in give court denied the but did curative instructions. incident, argument, prosecutor made reference to this closing his immediately again the trial instructed the objected Greene and court Thereafter, jurors put out of their minds. Greene the incident and we any failed to move for a mistrial or additional instructions prosecutor’s no that comments probability find reasonable (2) (a). State, Todd v. changed supra of at 767 the result the trial. support his 11. The not Greene’s contention that record does to his deci- right against self-incrimination was violated references testify. sion not to Likewise,
12. contention support the record does not Greene’s testify improper references made to failure to there were county. his earlier trial in another in admitting evidence urges
13. Greene the trial court erred of the crimes that he committed Macon and Houston counties early morning September evening September of and of 28, 1991, following of crimes for immediately his commission present those crimes were he was on trial in the case. which spree as and as evidence of Greene’s admissible elements of one crime Todd of mind of his arrest. See bent the circumstances (9) (340 State, Davis v. (7); supra at 255 Ga. Ingram v. (1986); to convict contends that was exhorted further in Macon and Hous- punishment him as for the crimes he committed context, however, conveyed In remarks ton counties. only evidence those crimes to the should consider theory tendency proper as to rebut the defense purposes, for such its accidentally Greene was run- merely into as that Greene ran Walker ning Swifty knife in out of the Suwanee with a his hand.
14. State indicated that various of its had witnesses testified County regarding alleged in the or Houston trials Macon By spree. doing engage improper so, crime the State did bol- stering object, Furthermore, those witnesses. Greene failed probability there is no reasonable that the outcome of the trial was (2) (a). changed. supra See Todd v. at 767 attempted question deputy
15. When Greene sheriff toas investigated any crime, whether the victim’s cousin ever had been objection. the trial court sustained the State’s relevance There was no evidentiary ruling, identity perpe- error in this since Greene’s as the trator was contested. Montgomery, examination,
16. On direct Ms. of in one the Macon County coming victims, testified that when Greene was the door say, home, her here; she her heard husband “Don’t come in don’t part gestae. come in here.” The statement was admissible of the res See Jarrett During Montgomerys’ anything pros- son, direct examination of the Montgomery, you asked, ecutor know, “Mr. is there rea- you why go son know Daniel Greene would want to in there do your negative. that to mom and dad?” The witness answered in the Assuming, deciding, question improper, without has failed to show harm. allowing question 18. The trial court did not err the State to prior
two statements, witnesses about their inconsistent since re- *7 quirements § of State, OCGA 24-9-83 were met. See Meschino v. 259 (2) (385 281) (1989). 611, Ga. follows, therefore, SE2d It that the prosecutor’s closing argu- references to the inconsistent statements in improper. failing ment not were The trial court did not err in to in- impeachment, struct on since Greene admitted that such an instruc- unnecessary. (5) (252 tion State, was See Jones 242 Ga. 394) (1979). SE2d prosecutor’s closing argument 19. Greene contends that the was improper respects. in several (a) Contrary prosecutor contention, to Greene’s the im- did not properly credibility eyewitness, merely vouch for the of an but de- credibility against impeachment. fended the witness’ (b) prosecutor’s The characterization of Greene as “mean” was improper, legitimate not evidence. but was a inference to be from- drawn (c) improper prosecutor jurors It was for the to ask the rhetori- cally they jurors situation, what would have done Wise’s “as the thereby place place were gard ‘invited to themselves in the victim’s in re- (Cit.)’ Burgess to [Cit.]” the crime itself. 264 Ga. 680) (1994). Burgess, SE2d was as the case overwhelming given of Greene’s evidence the error was harmless guilt.
(d) proof prosecutor improperly of not shift the burden The did remarking testify by to to or comment on Greene’s failure to Greene nothing victim that heard that showed the de the served to die nor had
any improper of It is to evidence self-defense. not present on the failure of the defense to evidence rebut comment guilt. evidence of See Thornton State’s (4) (a) (1994). Likewise, the comment on improper. See Christen Greene’s demeanor the courtroom was (7) (b) son v. (e) prosecutor improperly alluded to contention extrajudicial knowledge context, a witness lacks merit. of Read merely presented logical from comment was trial. deduction evidence (f) prosecutor expertise his a basis for re- The invoke guilt imposition turning penalty. verdict as Greene’s or the death (11) (b) (331 Conklin v. See supra Conklin, Moreover, at 573 as was case (b), unlikely considering presented, the evidence that was “it is that prosecutorial experience expertise played role or a discernible jury’s brutality [Greene’s] crime[s].” evaluation the vileness
(g) Contrary prosecutor contention, neither mis- to Greene’s jury proof definition of stated the burden of nor misled the aforethought.” “malice
(h) sentencing phase prosecutor The to the made two references and, reference, after the trial court admonished the trial each punishment appropriate topic for was that not an guilt-innocence phase. conclude the court’s were We admonitions jurors. in the minds of the sufficient to address confusion Sentencing Phase Trial mental 20. There was no issue as to Greene’s illness retarda- and, behalf, tion own he conceded his when Greene testified sanity Accordingly, not error and lack of retardation. pursue topic argue and to mental impediment imposition of illness an or retardation was not erroneously urges give allowed that a witness was *8 (19) (b) opinion sentencing. State, Childs v. 257 Ga. an objection However, no at trial. More- SE2d there was statutory aggravating jury’s finding ovér, clearly circumstance was gruesome supported record, crimes Greene’s were unprovoked, mitigation was Under and his evidence weak. these
circumstances, probability that, we do not find a reasonable but for expression opinion, witness’ of his would have returned a State, life sentence. See Ford v. (8) (i) (335 567) SE2d (1985).
22. urges the direct examination of his witnesses mitigation erroneously However, curtailed. the trial court was au- questions speculation thorized disallow which called for or a wit- religious philosophical ness’ attitudes about State, Childs v. (19) (b). supra at 256 (a),
23. Relying upon that, OCGA 17-8-76 urges on nu- § occasions, prosecutor merous possibility made a reference to the parole and that the trial court failed to declare a mistrial. occasion, On one made a comment which could reasonably be referring construed as possibility of Greene’s es- cape parole. rather than In response to his to Greene’s motion for a mistrial, the trial court gave nevertheless curative instructions and we Finney State, v. (5) (320 find no error. See 147) (1984). This was only motion upon for mistrial based OCGA 17-8-76 and on no other occasion did the § mention “parole.” the word Even assuming other refer- ences violated the (a), tenor of OCGA 17-8-76 Greene’s failure to § make a (b) motion for a mistrial under OCGA 17-8-76 resulted in a § statutory waiver of his Finney State, v. right thereunder. supra at 348 (5). that, Greene contends in the cross-examination of his wit-
nesses in mitigation, the State was erroneously allowed to use evi- dence of his other criminal activities violation of OCGA 17-10-2. § However, only was there a object, failure to OCGA 17-10-2 was § applicable and there was no error. Christenson v. supra at (8) (a).
25. Greene contends that an out-of-court statement attributed to him was hearsay inadmissible and that Taylor the Sheriff of County was erroneously testify allowed to to that statement. an out-of-court statement is hearsay considered only if it is offered to prove the truth of what Bundrage contained therein. (2) (462 (1995). Here, the out-of-court state- ment was not prove offered to spoke that Greene the truth when he said prepared that he was to behave unless and until he received the death penalty. To contrary, the out-of-court statement was of- explain fered to the pre-sentencing conduct of Greene and the Sheriff and, if their pre-sentencing conduct inquiry, was a relevant the state- ment would be original admissible as evidence excep- and not as an Bundrage tion to hearsay rule. (2); Teague supra at 814 Ga. 534 Greene called the Sheriff as his own during witness the sentenc- *9 ing phase and, examination, to show that Greene undertook on direct prisoner to who amenable incarceration. he been a model was had the the conduct of Greene and direct examination rendered This by topic inquiry of State on cross-examination. Sheriff a If the relevant previous could, the allowed to show that Greene’s it State should be merely pen- prisoner” ploy to the a evade death “model conduct was securing alty previous to conduct show that the Sheriff’s pris- person that afforded a “model Greene’s oner.” See was consistent with (236 (1977). (1) State, Blake v. Ga. SE2d accomplished to Greene both The out-of-court statement attributed purposes. explained pre-sentencing the It conduct toward Greene’s explained pre-sentencing Sheriff and it Greene, conduct toward the Sheriff’s showing the the the of neither consistent with that conduct was prisoner” examination of “model status which Greene’s direct Sheriff had inquiry it was who rendered the intimated. Since Greene himself pre-sentencing a
into of and the Sheriff the conduct himself topic, sought object to he State thereafter relevant cannot explain original that with evidence. Under OCGA conduct admissible right opposite party, 24-9-64, State, § a thor- the as the had the to ough sifting of whom Greene had cross-examination the witnesses called an effort to avoid the death point in-
At some had been after Greene’s out-of-court statement questioned hearsay objection, prosecutor troduced over Greene’s the security general regard with that had been Sheriff to measures question object in the that taken courtroom. Greene did not to prosecutor posed thereto. to the Sheriff to the Sheriff’s answer only hearsay objection by a ob- ever raised Greene was jection testimony regarding to Sheriff’s the out-of-court statement hearsay objection attributed to Greene. enough would be broad That question related, not to to extend to a and answer which were any In statement, in-court out-of-court but to the Sheriff’s actions. extraordinary-but-unspeci- passing event, mere reference security topic of fied measures was not inadmissible. Since the prisoner” “model status as had been introduced object showing general himself, he made cannot that the State a security during measures were not those which would utilized trial employed during prisoner.” be a trial of “model prose- closing sentencing phase, During argument teachings. Although cutor made references certain Biblical urges objection court, made no the trial he these references appeal death that those mandate reversal of his sentence. references religion is not state that
It and has never been the law this part death-penalty may play sentencing phase As trial. no in the 770) (1993) clearly holds Hill v. Ga. imposition Georgia, improper prosecutor urge for the penalty upon based the defendant’s urge beliefs or to teachings particular religion imposition mandate the of that sen- “ tence, but ‘may nevertheless principles allude to such relating of divine law to transactions appropriate of men as be (Cit.) Conner the case.’ 122-123 (1983).” supra Hill at 46 See also Crowe v. (18) (d) (458 is clear that Eighth neither the
[I]t Amendment nor OCGA (c) (1) ([cit.]) 17-10-35 forbids a death § based part response on an emotional factors evidence which implicate penological valid justifications imposition for the penalty. Perforce, argument by *10 “dramatically appeals” which legitimate such emotional response is not “constitutionally intolerable.” State, (5). Conner v. supra at points nothing prosecutor’s argument which
urged imposition of the death upon sentence based religious urged belief or the teachings particular religion mandated imposition Rather, against sentence him. argument challenged by Greene consists entirely of principles references to divine law related to the penological justifications for pen- the death alty, including concept whether, of retribution and considering enormity crime, of his mercy. should be just extended It is type this argument that was found to be authorized in Hill and Crowe.
Moreover, even assuming prosecutor’s argument was im- permissible, it does not follow that Greene’s death sentence must be reversed. On the issue of prosecutor’s whether the argument in this case, to which there was no objection, warrants a reversal of the death sentence, Crowe and Hill and, cannot distinguished be as controlling authority, those cases mandate a finding that “there is no reasonable probability that this argument, if improper, even changed the result of the trial. State, (18) Crowe v. supra (d). at 593 [Cit.]”
27. Greene enumerates as error various other alleged instances of improper argument by prosecutor in the sentencing phase.
(a) Contrary to contention, prosecutor limited his argument to reasonable inferences from the evidence and to matters within common knowledge. Hall (2) See 128) (1989).
(b) When the mentioned the weeping victim’s mother who had been escorted from the courtroom during guilt-innocence phase, Greene objection made no and we find no reasonable probability that this reference imposition resulted in the of (i). (8) supra Ford v. sentence. improper.
(c) general deterrence was not Argument regarding (1995). 541, 542 Fleming (d) impeachment of Greene’s the bias and Argument regarding improper. was not mother as a character witness on the (e) for the comment improper was not It See as to certain of Greene’s contentions. produce failure to witnesses (b) (440 Isaac (f) videotape of Greene’s statement The have been for some time confession had been evidence accurate, been and the reference to but the confession had admitted could misled the of time had been evidence not have length returning a sentence. jury into death give as error the trial court’s refusal
28. Greene enumerates requested charges. our review of the record several of his improper covered requests shows that Greene’s were either were given by fair that was the trial court. charge the full and charges certain which were give 29. The trial court’s failure requested never was not error. imposed We do not that Greene’s death sentence was find arbitrary factor. passion,
under influence or other prejudice, (c) sentence is not excessive or See OCGA 17-10-35 § cases, imposed considering in similar disproportionate penalties Ap- in the cases listed both the crime and the defendant. The similar in this case. pendix support imposition of the death sentence concur, Hunstein, Judgments except All the Justices affirmed. J., except all divisions Division judgment who concurs in the and in *11 Benham, J., Sears, 26; Fletcher, J., specially; P. who concurs C. J., part part. concur and dissent who in in
Appendix.
(455
61) (1995);
Mobley
State,
v.
v.
Greene’s evidence that he was a prisoner during model made relevant his conduct his incarceration Therefore, prior to trial. the state’s evidence that Greene made vio- prisoner lent threats purporting while to be model was admissible. attempt prisoner Greene’s to show that he had been a model custody not, however, Taylor County while of the Sheriff of Clayton make County relevant the fact that the Sheriff of undertook extraordinary security during objection measures trial. Had an been raised, the trial court should have sustained because that evidence was not relevant. evidence,
The admission of this even if over objection, was not so highly prejudicial require signs extraordinary reversal. Visible security prison and conditions such as clothing shackles and are con- highly sidered prejudicial they because are “constant reminder^] the accused’s condition.”2 The challenged passing evidence here was a unspecified reference to In security measures. any absence of de- embellishment, tails or unlikely this brief statement was to influence as would the constant sight of shackles. Justice, Chief concurring part dissenting part. Benham, I convictions, concur the affirmance of I but must re- spectfully dissent to the affirmance of the death sentence on several First, grounds. the trial in excusing court erred pro- for cause several spective jurors who they said that could vote for the death but qualms Second, would have about it. improperly testimony elicited phase that, the sentencing hearsay sug- based on gesting might become violent at sentencing, extreme and un- precedented measures were taken to Finally, secure the courtroom. improperly urged religious execution on grounds. Each requires of these errors reversal of the sentence princi- under settled ples of law.
1. Greene contends that the trial court committed reversible error in excusing prospective five jurors ground for cause on the they opposed the death In opinion, Division majority of its dismisses this unsupported contention as factually both legally. majority opinion Yet the provide any fails to summary of the voir dire and fails to cite of our cases interpreting the standard articulated Wainwright Witt, U. S. fact, In the record shows that although prospective expressed qualms about penalty, four unambigu- of them ously indicated on voir dire that impose could vote to a death *12 Williams, (96 501, 1691,
2 Estellev.
425 U. S.
504
SC
48 LE2d
Therefore,
indistinguish-
is
this case
appropriate case.
sentence
an
710)
(1) (413
(1992), and
Jarrell v.
juror’s views on with performance juror as a accordance impair the of duties [her] ” Witt, Wainwright v. at 469 U. S. and oath.’ instructions [her] [her] Texas, v. LE2d quoting Adams 448 U. SC S. (1980). 581) merely voir dire that she If venire member indicates on a sentence, qualms difficulty has about imposing have a death would sentence, she not be penalty leaning is a life death or toward (re v. See Jarrell at 880 disqualified that 261 Ga. basis. for cause said versing juror death sentence who was excused where had justifiable crimes but that she capital punishment is for bad it, probably lean could vote for and would qualms, not sure she (24) (386 sentence); Isaacs Ga. 717 toward life Alderman v. 316) (1989); Witherspoon
(1985). Wainwright Witt does not alter the holding of that jury
a sentence of death cannot be out that carried by excluding imposed venire- or recommended it was chosen objections simply general men for cause because voiced or penalty expressed religious to the conscientious scruples its against infliction. Illinois,
Witherspoon
391 U. S.
Alderman,
(4).
ve
To eliminate from the
See
persons voicing
scruples
all
is to distort
the “conscience
nire
such
See Wither
express.
community”
which the
is assembled
spoon,
Examining in detail voir dire of each turn, of them plainly apparent it that exclusion at least four Wainwright v. Witt was clear error under the standard articulated Jarrell v. applied in State: that would be prospective jurors The first of the four indicated sentence, impose life that harder for her to than a death, put helped would to know she someone she hate unequivo- she she said leaned toward a life sentence. penalty under cally repeatedly she could vote for the death appropriate that her about the circumstances. She stated hesitation *13 penalty not her Asked if death would affect decision conviction. son, like if the victim her she would want herself serve were explained not, she she the said that she would but that as victim’s revenge. mother, she would want
Although prospective jurors initially the stated second that conscientiously opposed clearly penalty, she was the death then she it. stated that under some circumstances she would vote for She ex- pressed penalty,” primarily “some serious concerns about death price pay religious commenting nature, on the she would have to for partaking something taking that resulted of another’s life. by prosecutor say that, if it When then asked would be fair to religious penalty, just feeling against reasons, or other she had a the death “Okay, feeling against penalty.” said, I
she have a the death agreed predisposition long-held. She her also that was She reiterated prosecutor questioning although on continued that she had problems penalty, open-minded enough with the death she would be leaning to consider all the evidence and that she not was toward ei- although general case, ther sentence advance this she leans “just lay toward life. if When the court asked her she could aside religious say definitely [her] beliefs,” she she said that could not that prosecutor Thereafter, she be would able to do so. if asked her she “just casually juror views, answered, could don’t think cast aside” her and the “I you just casually happen going can cast aside what’s repeated questioning, someone’s life.” On she said she that would bring jury her views to the room. she stated her that reser- keep considering vations would not her from the evidence and the court, sides, instructions of the that she would to both listen and that impose penalty she vote would if the evidence warranted responses clearly disqualify juror it. These do not from service. Wainwright require prospective juror casually v. Witt does that a religious door, cast off her views at the room nor that she lack imposing penalty. serious concern about the death prospective jurors, The third of when asked whether she was conscientiously opposed penalty, said, “Well, to the death I’ve never my you ... heart like that So, felt should take one life for another. you know, it’s kind of hard for to me answer.” When court asked opposed conscientiously capital punishment her if she was so penalty any she she said circumstances, would vote for the death under upon hearing totally if all evidence she was con- penalty appropriate, vinced that the death she would vote for it. impose penalty, Later, when asked whether she could ever saying, just answer, she contradicted her earlier “I don’t know. It’d be guess my hard for me to do I it. answer have would to be no.” How- explained having answering ever, she that she was time a hard with- that, having She said the case. evidence about benefit of out leaning information, toward she not have of her lack of because clearly responded to a series time. She then sentence at that either impose questions by indicating could vote to that she the court’s having misgivings express some- to send about She did death one to the electric her Also, asked when the chair. penalty that, case, said she a death her that the case was bothered having one, reservations. did have some she never been involved her, then asked truly, really con- So, as the death insofar penal- impartial your the two cerned, is not between mind automatically just you be- ties, favor a life sentence would way you feel? cause of the automatically, say mean, I I “Well, answered, I She wouldn’t *14 penalty.” pros- go The the death life sentence than rather for a
would juror her out to talk he would be able whether ecutor then asked responded penalty, personal that it and she the death her views on juror just seemed that the him. The state notes than would take more to take offense at penalty, questions ex- but she the death about plained Again, questioning were on trial. feel as she made her disqualify clearly juror’s whole, answers, do not as a taken impartiality require complete be- does not her from service. The law disqualify sentencing options from abstract, it nor does tween any misgivings Fur- electrocution. about citizens with service all only penalty impose requires jurors thermore, the law they by evidence, so the facts to do when have been convinced arguments of counsel. never prospective jurors she was not conscien- said The fourth of the being penalty.
tiously opposed Then, on first asked to the death chair, said, “I electric she for death whether she could vote reiterating times, she said that view several After don’t think so.” probably circumstances, for the death could vote she that under some questions, Ultimately, response she said that the court’s prosecutor leaning be- sentence. When toward either she was not explained apparent questioning, gan conflict her an- she questions first, saying but swers, she had not understood that entirely depend penalty on the evi- would her decision about the probably vote for life would She said she and circumstances. dence imprisonment probably do so she would that her belief that Finally, prosecutor her. after not dissuade could one from which the opposed to the death that she is her to concede the penalty, asked cast it, she could not and that could never vote that she juror said, aside, her beliefs say depends I are.
I on what the circumstances still it all my weigh in think about it. first it mind and would have to But say, yes right just I off or no. couldn’t prodding, said, After more she you you
Well, know, I would have to hear what I’ve told surrounding things everything, evidence is and and the say yes up just right I what. couldn’t off led no. to it or what’s questioning by clearly defense, In stated that she could vote she penalty. Despite strong repeated coaxing down the for the death path disqualification, prospective juror clearly demonstrated qualified that she was to serve.
Clearly prospective jurors majority not, indi- these as the merely point give cates, which, if at some in voir dire answers consid- opposition isolation, that their to the death ered would indicate penalty ambigu- Nor is the record of voir dire “automatic.” contrary, prospective jurors unambigu- ous. On the ously stated each impose she after consider- could vote ing majority’s all of the evidence and instructions. The deference to imagined findings regarding the trial court’s demeanor and credibil- ity, seriously ability facts, under these undermines this Court’s ever Wainwright such, to review excusal for cause As under Witt. departure precedent. e.g., See, Jarrell, is a dramatic from 261 Ga. at attorneys, pe- Prosecutors, like defense have available to them remptory strikes. this case could and did use a peremptory jurors perceived number of ward a life sentence. strikes to remove to lean to- practice removing the trial court’s *15 any prospective juror imposing for cause with serious concerns about penalty plainly Witherspoon, the death was unconstitutional. See quest jury capable imposing U. S. at “In its for a the death penalty, produced jury uncommonly willing the State to condemn a man to die.” Id. at 520-521. cause,
Because the voir dire of four
who
were excused
fairly support
finding
whole,
viewed as a
fails to
the trial court’s
disqualified,
was
cannot
Davis v.
stand. See
Georgia,
339) (1976);Pope
429 U. S.
(7)
(e) (345
831) (1986).
(d),
Therefore,
admitted
an out-of-court statement
by
hearsay
inmate,
made
Greene to another
because it was not
explain
Greene,
as the con-
as well
the conduct
was admissible
security
employing
trial.
measures at
certain
duct of the sheriff
The
security
testimony regarding
majority
holds that
further
testimony
admissible to rebut the witness’
measures themselves was
contrary,
prison.
of tes-
On the
admission
that Greene had behaved
timony
security
alleged
mea-
and the
as to both Greene’s
statements
highly improper
prejudicial
well have
and so
sures was
phase
sentencing
of trial.
the outcome of the
determined
County.
objection,
Clayton
the court
This case was tried
Over
Taylor County
testify
permitted
on cross-examina-
Sheriff Giles of
Clayton County that an inmate
tion that he had told the sheriff of
had
allegedly
reported
made to the
to Giles a statement that Greene
allegedly
Specifically,
in-
told the
inmate.
mate that Greene would behave
trial
Giles testified that
during
would be no trouble
there
phase
up
sentencing
announced its
ver-
to the moment
whereupon,
sentence,
dict,
if
received a death
the sheriffs
courtroom,
be the
to kill Greene in the
and “that would
would have
eliciting
testimony,
Giles
it.” After
asked
end of
whether,
information,
taken to
as a result of the
there were measures
previously
had
secure Greene
our
the courtroom “that we haven’t
part
affirmative,
no fur-
in the
of the world.” Giles answered
regarding
had been
ther evidence was offered
taken.
the measures which
alleged
majority
testimony regarding
holds that the
hearsay
origi-
inmate was admissible not as
but as
statements
nal evidence to
County
Clayton
explain
the conduct of the sheriff of
taking security precautions.
although
state-
out-of-court
explain
the conduct or motive
ments are sometimes admissible
law enforcement
the issues on trial. Morris
officer,
matters relevant to
the conduct must involve
vanced or trial state explain If the evidence because it was offered to Greene’s conduct. prove purpose, offered to was offered for that it had to have been *16 hearsay. asserted, it was therefore of the matter truth were admissible alleged statements Finally, if Greene’s even the state prison, himself testimony Greene behaved rebut inmate through statements alleged at best introduce could allegedly sheriff, him Greene had told what who, to the according inmate as a wit- attempted to call the even the state never said. Yet inmate’s impeach the Therefore, opportunity to had no ness. credibility. required unprecedented dangerousness
Testimony that Greene’s any theory, it was under only inadmissible security measures was security any extreme widely recognized that prejudicial. It is highly inherently shackling, such as jury, is visible to a measure which by an essen implemented justified unless may not be prejudicial and opportunity to contest an giving after the defendant tial state interest Flynn, 475 U. S. See Holbrook which is its basis. the information 525) (1986); Elledge Dugger, 1340, 89 LE2d SC 568-569 (11th 1987), denied, 485 U. S. Cir. cert. 823 F2d 1450-1452 715). case, had been fitted with In this clothing deliberately concealed under which was “stun” belt attempted to had not unfairly Greene. The state prejudicing avoid security mea required the use of that an essential state interest show show certainly made no jury, visible to the and it sures that would be security mea to be informed of concealed ing needed employ need to extreme alleged of the Informing jurors sures. merely permitting them to prejudicial measures was far more than been, jurors might have assumed would have as the view shackles shackling was routine. violence
Testimony allegedly that Greene threatened courtroom, security measures had been em unprecedented and that him, be reasonably have made the difference ployed to control could jurors heard the for Greene. Before the tween a life or death sentence heinous but testimony, they likely that Greene’s crimes were believed spree Greene was addicted to part were of an isolated when testimony, likely viewed improper crack After the cocaine. violent, consistently fundamentally with or without Greene as drugs, and as a threat even to themselves.3 hearsay testimony regard-
Because the evidence consisted trial, so all of which was ing wholly matters irrelevant to the issues the outcome inherently prejudicial might that it well have determined Greene’s death sentencing phase, its admission mandates that Therefore, respectfully I dissent. must sentence be overturned. prosecutor’s improper impact image magnified references to of this prison possibility life in and would be a next that Greene would be released sentenced to someone, neighbor perhaps juror. in Division infra. door This is discussed issue Hill v. concludes, majority citing
3. In Division 770) (1993), Ga. 37 that because the imposition upon of the death Greene’s reli- urge based gious specifically urge teachings par- beliefs and did not religion imposition penalty, prosecu- ticular mandate *17 However, religious arguments improper. tor’s were not Bible, implicitly jury passages in- urge that certain of the terpreted faith, Baptist imposition pen- mandate of the death First, alty plain in this case. he informed the that he was “a old country Baptist.” argued He then as follows: get
Let’s down to what this trial and what the laws are eye eye. all about and this is An A retribution. for an tooth Right things a tooth. there the Bible with all those nice I’m lawyers going that sure that the over there . . . are to be talking about. But no act that Bible took those words out of it. this,
And one more thing. Remember that was a limiting, is, limiting liberal rule the old testament. That you eye I you had an taken out could not take out two. limiting, just. It was not to be harsh be but be How do put punishment we it now? Let fit crime.
Later, prosecutor argued: you
As
mercy
phrase
hear that word
there is one
from the
you
Sermon on the Mount
that I
to hear
want
at
same
you.
time. I’m
going
not
to be able to come back and talk to
you
lawyers yell mercy
But at the same time
hear those
hear
they
mercy.
you
blessed are the merciful for
shall obtain
And
being
you
drank
his whole and entire
and see if
can find
[sic]
grain mercy
anybody.
extended to
Thus,
under Hill. See 263
prosecutor’s
arguments
improper
were
(19). Furthermore,
Hill
merely provides
examples
Ga. at 46
two
prohibited religious argument, not an exhaustive list. Neither it nor
Crowe v.
(18) (d) (458
799) (1995),
It is
this
improprieties
religion.
references
improper
probability
a reasonable
there is
magnitude
of such
case were
sentencing phase. See
outcome of
altered the
have
567) (1985).
(i) (335
prosecu
Ford v.
Therefore, impropriety of the because vacated, respectfully I dissent. of death must be the sentence briefly Greene’s conten- dismisses majority 4. In Division parole, on the references to improper made tion that a mistrial. by failing to move for rights Greene waived his ground that *18 I miscon- believe the I this enumeration because address the er- likely impact to the referring parole contributed duct to testimony determining the out- admission of the sheriffs roneous phase of trial. sentencing of the come (a), attorney argue shall to 17-8-76 no
Pursuant to OCGA § convicted, defendant, if not be presence jury of the that a the due to imposed by jury the court or required suffer full to so, counsel attorney opposing If does pardon, parole clemency. an or mistrial, mandatory it is the trial may request which case (b). proscribes all refer- The statute grant court the motion. See id. at Davis parole. ence to reversed because the argues that his sentence must be Greene court frequent parole, to and the trial
prosecutor made references to a mistrial. failed declare Greene, prosecutor asked
During the cross-examination Georgia’s if electric chair. Greene testified go he wanted to to if to prosecutor then asked Greene he wanted that he did not. The penitentiary. Greene re- spend Georgia life in the the rest his re- “Yes, sir, appreciate prosecutor I that.” The sponded, ... would please disbelief, saying, gosh, You’re saying, with “You want to? acted that, free breath?” Greene me I ever to breathe a let do don’t want answered as follows:
Well, know, know you than death. You prison life is better have, opportu- you might have an saying? what I’m You will nity get you you’ve might out, to not. But that’s the chance got to take.
Having purportedly opening coaxed Greene into the door to testi- mony regarding possibility prosecutor release, then asked deputy “got go- out,” Greene if he had told the that when he he was ing buy pickup prosecutor Then, to himself a Nissan truck. asked “by get whether, [he] want[ed] one means or . . . another to dope.” prosecu- Later, out where there are more knives and more any you try asked, tor to save “You would reach for straw that could find to your you get get pickup life so could out and that Nissan you?” attorneys object truck, wouldn’t did not challenged questions. closing argument, prosecutor jurors
In asked whether given slightest any- Greene had them “the indication that this trial is thing more himto than some kind of him hindrance between pickup informing Later, Nissan knives and truck.” after that there are
drugs prison, put in position asked the young themselves man who has made a mistake gone prison, putting together, is his life and is introduced to argue: Greene as his new roommate. He then went on to way, long going Put in him another so as breath is he’s living somebody. you living to be next door him next door to Do want you? you your What would do he came to personal door with a butcher knife in his basis and then understand a little bit more about what he hands? Put on a does. again, object.
Once the defense failed to Although specifically “pa- never used the word arguments questions clearly role,” his were intended to refer to possibility “might required the full suffer defendant not be
penalty imposed by
purpose
§
the court.” See
17-8-76.The
OCGA
prohibiting
prevent prosecutors
of the statute
such
from
remarks
*19
urging
jury
give
compensate for,
to
a more severe sentence to
or
possible pardon, parole
clemency.
avert,
See Gilreath v.
other
650) (1981).
jury
State,
not be
that
814,
247 Ga.
835
SE2d
“The
should
encouraged
to recommend the death
because it fears
parole
may grant parole
given
officials
the defendant is
a life
prose-
State,
case,
sentence.”
cutor
v.
In
Davis
clearly urge to death intended to to sentence Greene parole. unpersuaded lest I he be released on am that Greene’s conces- genuinely cross-examination, sion on like be in- that he would not prefer carcerated for the remainder of his life and would to be freed 462 pro- prosecutor’s opened juncture, otherwise door to the at some prosecutor’s juxtaposi- persuaded that the I Nor am conduct. hibited argument prison with an roommates of discussion
tion of a implica- juror someday might obscured door to a live next someday if to die. not sentenced be released Greene would tion that spirit in law maneuver- letter of the violated the The ing sentencing phase improper of in the considerations introduce impact parole compounded improper references trial. The my conviction and reinforce misconduct other be reversed. sentence should the death respectfully foregoing I reasons, I am authorized dissent.
For the
joins in this dissent.
Sears
that Justice
to state
part.
dissenting
concurring
part
in
Justice,
in
Sears,
partial
join fully
and dissent.
concurrence
I
in the Chief Justice’s
special
separately
two serious con
attention to
in order to call
I write
cerns raised
majority’s
sentence.
of Greene’s death
affirmance
entirely upon
majority
2,
the standard
First, in
relies
Division
dismissing
argument
Wainwright
v.
Witt4
enunciated
by dismissing
pro
five
error
committed reversible
that the trial court
opposition
varying degrees
they expressed
spective jurors
because
considering
penalty,
treatment of
this Court’s
the death
without
Wainwright
Wainwright.
interpreting
standard estab
Our cases
disqualified merely
prospective juror
for stat
not be
lish that a
ing
difficulty imposing
they
the death
dire that
would have
on voir
penalty,
they
misgivings
penalty,
or that
about the death
have
5
sentence. The record of voir
would
to lean toward a life
tend
opinion,
explained
length
case,
Chief Justice’s
in this
at
dire
Wainwright,
interpreting
each
our case law
makes
clear that under
qualified
prospective jurors
serve,
and that the trial
five
of the
court
ruling
otherwise.
committed reversible error
majority opinion
Second, in
sanctions the State’s
Division 26 the
teachings
arguing
imposition
religious
for the
use of certain
urge
penalty, contrary
Georgia,
improper
law. In
it is
to our
imposition
particular religion
teachings
command the
sentencing
penalty.6
charged
Rather,
must be
with
the death
penalty,
cases,
with the laws of
all
accordance
4
(105
841) (1985).
844,
Decided March 28, denied Reconsideration March 1996. Kirby II, Norby, Bright,
William L. Charlotta Stephen B. Her- Wells, L. bert appellant. for
Douglas Pullen, Attorney, Conger, C. District J. L. Gray Lori Canfield, General, Attorneys, Bowers, Attorney Assistant District Michael J. V. Boleyn, Attorney General,
Susan Senior Assistant for appellee.
S95A1509. FARGASON v. THE STATE.
Fletcher, Presiding Justice. Fargason Teresa Gail was convicted of the murder her malice six-year-old Taylor, daughter, Fargason who was smothered to death.1 that contends she entitled to a new trial because her former hus- examinations, band testified she polygraph pros- failed three testimony closing ecutor referred argument, and trial coun- object testimony sel did not or argument. Because the witness polygraph response questioning mentioned the examinations to the made, attorney of the defendant’s no no objection and was we find reversible error and affirm.
1. Fargason testified at trial first her daughter she noticed missing store, was up grocery she walked the deli counter aat Kemp, 1534, (N.D. 1989). See Jones v. FSupp. 8 Id. 9 Berger States, 78, 629, v. United 295 U. S. 79 LE 9, 1991, Fargason January 23,1993. The crime on occurred June A indicted on guilty 17, imprisonment September found her trial court sentenced her life on Fargason September hearing 1993. motion filed a trial on on new was held September 28,1994, 10,1995. May Fargason 27 and and the court trial denied the motion on appeal May 30, filed a notice of on 1995. The case Court on was docketed this June orally argued September