*1 phase may probability sentencing well in the have that the result Ford v. different.3 See been Consequently, argument, I find the allowance would consider the argument error, death and vacate the sen- to be constitutional sentencing hearing. a new with direction to conduct tence remand respectfully considerations, from the ma- I must dissent Given those jority’s this case. affirmance of sentence —
Decided November denied Reconsideration December 1991. appellant. Roberts, L. David Douglas for Attorney, Berry, Pullen, Edward F. Peter B.
C. District Attorneys, Attorney Bowers, J. Hoffman, Assistant District Michael Boleyn, Attorney General, General, Susan V. Senior Assistant Rob- Attorney, appellee. McCullers, ert D. for Staff S91P0865. HALL THE STATE. Presiding Justice. Smith, appellant, Hall, Barrow Dennis convicted ten-year-old
County Adrian, of the murder of son of two counts of his public discharging children, and of a firearm near a street. appeals. We affirm. He was sentenced to death for the murder. He During marriage, his Hall’s alcohol abuse and abusive behavior his three towards wife and children resulted numerous occasions police which the Hall were called to restore order to the household. family temperature once locked his out of the house when the outside police freezing. occasion, was below On his wife told Hаll another pistol. had struck her in He also once threatened to the head with shoot his wife fired a into On none of these occa- shot the air. press charges. sions, however, she did January early Sunday, began drinking 7, 1990, On Hall in the morning throughout day. and drank As Hall watched television played toy afternoon, that tractor. his son Adrian with remote-controlled toy interfering stop, Hall told Adrian to because reception. playing his television ately, When Adrian immedi- did not cease boy precipi- Hall went to the and struck him in the This head. improper argument this case that addition, trial counsel was not makes am struck appellate ineffective, rеview of that powerful but irony argument trial counsel’s failure would be inherent unnecessary. holding object argument concerning necessity between Hall and tated for the his the car. his wife severity responded punishment. by searching of Hall’s Hall shotgun. daughter shotgun His older took the outside and hid init pistol got
Meanwhile, Adrian and took outside. shotgun unsuccessfully wife found take away saying, loaded it while his tried approached Adrian, it from him. He who 10 to stood 15 feet *2 me, “Don’t shoot don’t shoot me.” Hall him in shot the daughters neighbors wife, as his two chest and his next door looked home, Hall on. went but returned a minutes to few later Adrian’s body. Hall kissed his son and him him. deceased told he loved When neighbor suggested you’ve that, his killed learn it “a little late too for done responded, happens,” bragged,
him,” Hall “Shit “I couldn’t nothing beating guess belt, him him with I so learned him something this time.”
A test administered later afternoon showed that Hall had percent. grams blood alcohol level of .32 afternoon, however, steady All who observed Hall that overly intoxicated, he testified that was not only slightly speech. feet, on his and had slurred post-arrest police, In a statement to he claimed shot his son Later, in self-defense. he claimed it was an accident. supports The evidence the conviction murder. Jackson Vir
ginia,
After to the оf his challenges, prosecutor’s the trial court that it with the stated was concerned peremptory jurors
final strike. The were struck ei- other they acquainted ther because family, were the and his well closely persons related had been in trouble with who expressed impose law, the or had sentence. a reluctance to a death Foster v. See The final Ga. 736 juror prosecutor black struck the mother. knew defendant’s prosecutor prosecuted Moreover, Nevertheless, her had cousin. prosecutor explained had-planned the for a white rap” he his last strike save
prospective juror who a “bаd had been arrested on once feelings” system. judicial However, and had “bad toward morning juror selection, entered the the last black immediately family and sat behind courtroom with the defendant’s prosecutor stated that when he learned defendant’s mother. The this, peremptory against strike he decided to exercise his last juror.
(a) defendant, juror actually one noting that no observed family, prosecutor’s explana- talking the defendant’s contends the However, as insufficient his final strike. we have tion was “ explanation ‘need not rise to the level explained, prosecutor’s ” Gamble v. challenge for cause.’ justifying exerсise of Batson, 792) (1987) supra). A (quoting impartiality that suspicion prospective juror’s about a falls reasonable justify well the exercise justifying might short of an excusal for cause prospective juror This is such a case. That the peremptory of a strike. family next entered the courtroom with the defendant’s and sat coincidence, mere but there was at least some might them have been prose- not. We cannot condemn the reasonable likelihood of this gamble significance cutor’s reluctance to on the occurrence. explanation prosecutor that if the Pointing to the trial court’s strikes, could “articulate nonracial reasons for the he’s entitled to ex- them, indepen- the trial court failed ercise” the defendant contends dently prosecutor’s explanations peremptory for his to evaluate the *3 strikes. course, may stamp” simply give
Of the trial court “rubber approval explanations, “all no matter how whimsical or nonracial fanciful.” Gamble explanations supra at 327. The must be sufficiently persuasive prima facie case. But we do not to rebut parsimoniously extemporaneous read the trial court’s remarks so does the defendant. The record as a whole demonstrates the trial Batson. understanding court’s of its role under Gamble, supra: (c) As wе noted in
A charged duty determining court with the whether the of prosecutor prima may has a facie case be less troub- rebutted by relatively explanation striking led one black weak for juror persuasive remaining explanations when all the are prosecutor’s proffered justifications than where several of the questionable. Similarly, may are prima a weak facie case be readily rebutted more strong than a one. [Id. 327.] to the Gamble case, In contrast where the defendant was black and white, the victim was here both victim were the defendant and the Moreover, unlike the Gamble case where several blaсk. explanations suspect, sufficiency were here the trial court was concerned about only proffered explanations. of case one trial court successfully prosecutor authorized to re- conclude had prima butted the facie case. pre-trial error, contends, no
3. There was as the defendant in the prospective jurors college of excusal four who were students enrolled county. judge specifically in schools outside the The trial authorized (a). good these excusáis “other cause” under OCGA 15-12-1 (Their Ibid.) service was deferred to a later term. Hendrick (2) (354 433) (1987). 257 Ga. improper death-qualificatiоn 4. There was no restriction of the “permissible juror voir It is not the kind dire. ask to describe juror’s opinion, that, case would warrant death sentence.” (6) (365 (Emphasis original.) Blankenship 265) (1988). 5. The defendant next court contends trial should have granted prospective juror his motion to excuse for cause a who admit- having opinion guilt. juror, ted about the defendant’s how- opinion, ever, testified that he could set aside accord defend- presumption ant his of innocence and decide the case on the evidence presented qualified. juror at trial. The trial court found that the finding clearly Spivey This is not SE2d erroneous. 420) (1984); 196-197 Waters v. family
6. Previous difficultiеs between the defendant and his properly admitted show the defendant’s bent of mind towards the Wright victim. SE (a) complains error,
In7. his 6th and 7th enumerations of testimony by possible the admission of two social workers about surviving effects the defendant’s two children who witnessed the by father, murder their brother their that the contends evidence is not sufficient to his conviction on two counts of cruelty to children.
(a) undisputed The evidence is that the defendant’s two surviv- ing present being children were and witnessed their brother mur- presently however, children, dered their father. The two do having overt the event. exhibit manifestations been traumatized according testimony, they great fact, to defense showed affection *4 (in appeared for their father when he funeral the cus- at the victim’s officers). tody of law enforcement The first social worker testified that she is a caseworker with the County Department Family Barrow of & In her Children’s Services. years service, 16 of she has worked with hundred victims of several including siblings trauma, and abuse be- children who have witnessed ing seriously many injured killed. or She testified that such children repress experiences signs such and show no outward of immediate years emerges trauma, but it that often later.
The witness and thera- second is licensed clinical social worker 782 expect
pist. denial frоm a She that would unconscious testified she sibling, young murder with no outward child the of a who witnessed symptoms the child older. until was testimony argues irrelevant because de- the was experienced possible not the future and what children
scribed on trauma because the the date the murder was otherwise inadmissible and testimony experts, speculation. their was witnesses were experi- expert training education, An is witness one who peculiar concerning knowledge has some matter of science or ence skill to qualifications expert testimony of an which his relates. The Taylor v. the sound discretion of the trial court. are addressed to State, mony a) (404 255) (1991). (13 Expert 287, 290 testi- expert the is one which is where the conclusion of admissible jurors ordinarily and where would not be able draw for themselves necessary jury. testimony helpful be Jones such would assist 850) (2) (1974). 762, 232 Ga. 764-765 “maliciously charged causing] . . . The was cruel defendant (three pain” daughters his and seven and excessive mental two (b). years expert respectively). old, See OCGA 16-5-70 testi- mony by conclusively was not the state establish offered pain, two children had cruel and excessive mental but to suffered they anticipated that, counter the exhib- defense contention because they experienced trauma, The ited no overt cruel and excessive mental had not manifestations properly pain. expert testimony admitted the trial court. jury beyond doubt entitled conclude reasonable daughters defendant’s two suffered “cruel and excessive they pain”
mental
brother.
when
their
watched their father murder
(b).
Moreover,
16-5-70
entitled to
OCGA
con-
maliciously
pain by wantonly
clude that the defendant
caused this
wilfully shooting
strong
plain
his
“with an
son
awareness
may
Rigenstrup
likelihood
197
that such harm
result.”
25) (1990).
App.
supports
176, 180
The evidence
jury’s
the two
verdict on
counts of
to children. Jackson Vir-
560) (1979).
ginia,
783 argues compelled The 10. the state should have been the to disclose not fusing criminal records of its witnesses. The state claims it is any by of The aware such convictions. trial court not err did re- compel apparently the disclosure of that which does ex- (11). Compare supra State, ist. Isaacs v. at 723-724 (7) aggravating § 11. The b circumstance authorizes the death penаlty “outrageously wantonly vile, where offense is of murder or depravity horrible, torture, mind, or inhuman that it involved of or (b) (7). aggravated battery.” § OCGA 17-10-30 This circumstance parts. “outrageously wantonly First, has two the murder must be or vile, horrible or inhuman.” These are words common understand- ing essentially having meaning help the same and are intended to dis- tinguish non-capital murders from those in which a death sentence may appropriate. 339) State, be Hance 245 Ga. (1980). Second, the offense of murder must involve either de- (or pravity aggravated battery mind, anor to the victim a combina- elements). tion of these three Id. Accord West 67) (1984). (Appendix) jury
The returned this verdict: jury follоwing statutory aggravating We the stances to exist find the circum-
beyond wantonly vile, a reasonable doubt: depravity mind, horrible, inhuman in it involved tor- ture. finding
The § defendant contends is this verdict not a valid b (7) disagree. Although circumstance. We does verdict’s word order exactly, track statute the verdict includes all the essential ele- (7) necessary findings § ments of the sustain a b circumstance and all the (7) finding. supra. jury’s § b West v. is The intent requisite clarity. Page shown with the The defendant further contends the is not evidence sufficient jury’s finding. Again, disagree. evidence, b we light jury’s verdict, in the viewed most con- favorable to the shows a tinuing pattern culminating defendant, of abuse of the victim toy. plаying in the death of the victim he because ten-year-old boy defendant chased down and shot his begged son sig- Afterwards, him not to shoot him. first he dismissed the by claiming, happens,” sought justify nificance of his act “shit then discipline, the act first as a lesson in act and than as an of self-de- jury fense. The was authorized to conclude mur- that the defendant’s ten-year-old outrageously wantonly vile, der of his son was horrible depravity inhuman, and that involved mental torture supra; mind. Hance v. Rivers cruelty two counts of conviction on 12. the defendant’s Since (b), evidence, post, see Division supported children OCGA aggravation. to consider these offenses authorized jury 17-10-2. by the court to furnished The written instructions Mulligan sufficient.
(1980). attempt trial to the state’s object
14. The defendant did
witness,
in his 16th enumeration
issue raised
impeach a
and the
State,
Spencer v.
15. Neither did the unfairness, raised the defend- the issues fundamental ment. Absent Id.; UAP, IV preserved for review. are not § ant’s 17th enumeration (A) (3). by denying no abuse of discretion The trial court committed of a deadlocked grounds mistrial on the motion for a
the defendant’s Ro- only three hours. deliberating for jury jury when the had been State, mine v. 521 SE2d 256 Ga. (7) above, b find- supports jury’s
17. As noted the evidence § (c) (2). sen- do not find that Hall’s death 17-10-35 We ing. OCGA § prejudice or other arbi- imposed passion, the result of tence was (c) (1). sentence is neither trary 17-10-35 death factor. OCGA § Hall’s cases, imposed similar disproportionate penalties excessive nor (c) 17-10-35 the defendant. OCGA considering both the crime and (3). imposition Appendix support similar listed cases in this case. of a death sentence concur, except Weltner and Judgment All the Justices affirmed. 11; Bell,
Hunt, JJ., Benham and specially who as to Division concur sentence; Fletcher, JJ., 11 the death who as to Division dissent Weltner, Fletcher, JJ., 7 who dissent.as Division Benham the conviction on two counts to children.
Appendix.
State,
Conner v.
(327
168) (1985);
Alderman v.
785
209) (1980);
(259
81)
State,
SE2d
Hamilton
Ga. 145
SE2d
(1979);
(260
855) (1979);
State,
Bowen
2. An of the statute demonstrates the for the separate inquiries. fact finder to make two (a) inquiry element, The first concerns the existence of a factual i.e., whether or not the evidence establishes that thе murder involved (1) (2) depravity aggravated battery torture, or mind, victim. (if inquiry The second determines that the murder *7 elements) did involve at one least of three these factual concerns the (by murder, i.e, attributes the whether virtue of the existence of elements) specified or one more of the three factual the murder was (1) (3) outrageously wantonly vile, horrible, or or or inhuman. majority 3. The are or the dissent at odds over whether not the evidence was is sufficient establish “torture.” That issue jury’s case, however, essential to the this in resolution of view of the verdict.1 (a) jury possible found two the three elements and factual (7). specified attributes, § three оf the in OCGA 17-10-30 (b) Whether or the factual circumstances in this case rise to jury assuredly might “torture,” a most find that the murder presence along daughters, of his minor son in the his of minor immediately following murder, his conduct the “de- demonstrated pravity of mind.”2 joins special I am authorized state that Justice Hunt con- doubt: Zant p. [2] [1] “We the See Conklin v. wantonly Stephens, jury vile, find the 161-162 depravity following aggravating concurring opinion mind, horrible, 564-565 inhuman in circumstances 532) (1985). Compare to exist it involved beyond torture.” Id. at a reasonable See also West v.
currence. dissenting. Justice, Benham, My the evidence ad- convinced me that of this case has review imposition of the death the was insufficient to duced at trial cruelty support appellant’s
penalty to children. convictions toor respectfully the therefore, Divisions 7 and of ma- must, dissent pen- judgment opinion jority as it affirms the death insofar and the alty to children. convictions for and the aggravating in the State relied on which 1. The circumstance (b) (7), penalty seeking in OCGA 17-10-30 was that found death wantonly “outrageously vile, horrible or inhu- that the murder man battery.” aggravated depravity of mind or it involves battery aggravated in- no The State conceded that only charged elements, tor- the other two volved, and the depravity mind. ture and appellant’s question in this matter was cоnduct
There is no
justly
However,
was,
terrible as
and is
condemned.
abhorrent
evidence
rageously
killing
appropriate.
was so “out-
that his conduct
this case does not establish
distinguish
wantonly
vile,
inhuman” as to
horrible or
“ordinary
penalty
is not
for which the
of death
murders
. . .” Hance v.
the death
has been
Appendix
the ma-
cited
it is instructive to review the cases
168) (1985),
jority opinion.
Alderman v.
death on the
to the execution
then
him
forced
to lie
ground
stepfather,
on the
next to his
where both victims were killed.
prolonged psychological
This court took note of the deliberate and
boy
subjected during
torture to which the
the drive. The murder
(275
for which
State,
in
Strickland
times
to render her unattractive to
killing
spree,
In
others.
girl
the first
in the
the defendant shot the former
point
friend’s sister
the face four or five times with hollow
bul
making
gruesome
punish
lets,
girl
the crime
in order to
his former
Tyler
549) (1981),
friend.
skull fractures from a
with an iron
This court noted
again that this was
“[T]orture
not a domestic murder.
of the most
sadistic kind . . .” was this court’s characterization of the brutal stran
gulation
nine-year-old
boy
of a
in Thomas v.
and from a 100 feet above damage organs,” . . . “severe mechanical trauma to the internal killing the child. The evidence in Dix v. 47) (1977), showed that the victim was struck the face with a taped instrument, shut, blunt or more such had her mouth was tortured with one receiving strangled knives, cuts, least 11 and was then with the defendant in Finally, hemorrhaging. as to force cause facial 1) (1976), stranger, Harris v. abducted a gunpoint relatively private part forced her at shopping to drive to a parking put her, center lot where he abducted then a coat twice, over her head and shot her him all because she reminded of his stepmother whom he hated. commonality horror, The cited cases demonstrate a a sustained brutality complete pain or indifference to the and even the lives of motivating anger explain, though others, without even the force of present excuse, of the defendants’ conduct. The case What the evidence in this case belong company. does shows is that the consuming defendant, after alcohol for an extended
period angered perceived time, became at what he as his son’s diso- up shotgun, up boy bedience, and, took his walked to the without a By single word, further cases, fired a fatal shot. contrast with the cited physical torture, mental, there was no either or over an ex- period, mutilation, was, tended no no sexual abuse. There as has be- woefully angry ending common, come domestic confrontation shooting. in a fatal (b) (7)
Reсognizing aggravating might that the circumstance be abused, this court cautioned in Harris v. 237 Ga. at had permitting statutory aggravating
no intention of circum- simply stance to become a “catch all” for cases because no statutory aggravating other circumstance is raised the evi- dence. present case,
In the indicated that it had found the nec- essary components depravity Those torture mind. elements Phillips also the fact finder found 217) (1982),but. court there found evidence insuffi findings. here, There, those there were none of cient physical, psychological sexual elements of serious death case abuse before which еstablish and there was no either evidence “subjected psychological the victim to serious abuse or sexual abuse disfigurement, death, mutilation, before serious (id.) depravity after death” which establish of mind. The would court pain anticipation rejected the notion that and the of death alone con *10 stitute physical psychological
serious abuse before death. Such (b) interpretation § would allow the trier fact to (b) (7) every in find broadly case. almost murder We cannot so “physical” “psychological” [Id.]
construe abuse. clearly Phillips apprehension This court held in that the mere immediately death, inflicted, before the fatal wound is does not psychоlogical shooting death, amount to serious abuse before and that multiple alone, shots, even In is sufficient show torture. con- cluding Phillips, in the sentence review this court made an observa- equally applicable present tion to the case: undeniably in evidence is case sufficient to demon-
strate that a murder fense, [Hall] For of- was committed. this heinous punished. agree, however, [I]
must be cannot “outrageously wantonly vile, that this murder was horri- ble depravity and inhuman that it involved torture the victim part 342.] [Id. of mind on defendant.” applicable my following Also to this case is observation from dis- (1991): sent Wade v.
A life has taken. been When such a loss hаs resulted from a society outraged, justifiably act, criminal is and when years, society’s mag- outrage death involves one of is tender affirming charged nified. the conviction of society’s death-producing act, with a rage. sing reaffirms out- court expres- obligation goes beyond However, our as a court duty outrage. imposes upon obligation Our also us an pro- assure cedure are substantive rules of law and of criminal pursuit duty It must observed. is of that respectfully penalty [affirmance dissent to the death opinion. majority the] Appellant’s cruelty solely conviction for to children was based daughters present on the fact that his two wеre and saw him murder apparent, applicable part therefore, It is his son. that the of the defi- “Any nition of the offense is subsection of OCGA 16-5-70: person maliciously commits the offense of to children when he age physical causes child under the of 18 cruel or excessive pain.” being physical pain case, mental There no issue of in this we only pain. need be concerned with evidence of mental Neither of the appellant’s any pain concerning nor children wife testified suffered only issue, victim’s murder sisters. The witnesses on the as noted by majority, witnesses, two social workers. One of those who days death, saw the children three after their brother’s testified that they signs resulting exhibited no of trauma from the violence their witness, home. That and another social worker who never interviewed many all, the children at testified that children who have witnessed signs immediately, may such events exhibit no emerge years of trauma but it They testify, however, later. did not that these children pain they certainly suffered or that would do so in the future. As the majority testimony notes, the of these witnesses offered to establish that two children had suffered cruel and excessive pain, expected strategy. mental but to counter an defense pertinent alleged suffering evidence, then, which was to the of thosе' testimony children from the conduct of their father was the defense great the children showed affection to their father at their *11 brother’s funeral. majority’s holding dangerous precedent.
The in this case sets a It proposition pres- stands for the that violent crime in committed ence of a child constitutes cruel treatment of that if child even way apparent conduct in involved is no aimed at that child. It is language legislature protect of the statute that the intended to children from cruel conduct directed at them. The in conduct appellant’s daughters; they case was not directed at were not victims bystanders. but majority’s interpretation
The in OCGA 16-5-70 this case protection is overbroad. The statute was not enacted for the of wit- protection appellant’s crime, nesses to but for the of victims. While abhorrent, conduct was itself and was exacerbated his indifference possible impact to the of that conduct on than others the murder vic- presence tim, the fact that the conduct in occurred of children did separate not constitute a must, therefore, crime. I dissent also to appellant’s affirmance of convictions for to children. joins I am authorized to state that Justice Fletcher this dis- joins sent, and that Justice Bell Division of this dissent. — Decided December Reconsideration denied December Larry Norby, ap- Duttweiler, Snell, L. Melodie L. Charlotta for pellant. Timothy Attorney, Jeffery Madison, Morrow, G. District G. As- Attorney, Attorney Bowers, General,
sistant District J. Michael C. A. Benjamin Attorney, appellee. Woolf, Staff
S91P0984. BLACK v. THE STATE. Chief Justice. Clarke, by jury County Robert Leonard Black was a convicted Banks including aggravated offenses, of murder other assault, and several sentenced death.1 Shortly August 20, 1987, before noon the defendant entered preparing the victim’s kitchen as she and her two children were According per- children, defendant, leave. spiring, to the two nervous and telephone. glass
demandеd a of water and the use of their daughter The victim’s left the room. When she re-entered sometime struggling later, the defendant and the victim were and the defendant handgun. daughter had a if The defendant ordered the outside to see anyone coming. returned, “run, When she the victim told her to baby, ing daughter run,” and the fled the home. The son had been watch- adjacent ap- noise, he television Disturbed room. proached holding kitchen find the defendant the victim with gun arm, fired, one in his A vic- other hand. shot was and the collapsed top began tim with the defendant on her. hitting gun. the victim the head with the When the son said some- . thing defendant, to the he turned and fired a at the child. The shоt son fled the house. repairmen up
Outside, two in white drove truck. children help. happening, they told them what At some left to call for clear) point (just persons up when is a red vehicle. two drove just The first leav- law enforcement officer arrived vehicle was ing. house, This officer went to the he scuffle where heard sounds trial redocketed on originally orally filed began The crime occurred on June September docketed in this on June April 21, 1988, 7, 1988 and ended June heard on 1991. After extensions of court on November August May *12 20,1987. 9, 1989, 10, 1, 1989, 1988. and denied defendant was arrested the same time were but was removed defendant’s August granted, the case was motion for new trial from the docket 1989. The day. case was argued The