*1 591 However, her was told that Mrs. Wells’ medical record indicated that hand. when nurse office called doctor’s she
surgery left Dr. then due hand. nurse and Hoffman both examined hospital From Mrs. Wells’ hands. ployees these facts it is clear that the em- wilfully wantonly. They complete did not act carried out as investigation possible under circumstances and because showing so, did quences. there was no of a conscious indifference the conse- Finally, controversy 4. because there was a bona fide as to hospital’s employees negligent, hospital, whether the fending were in de- stubbornly litigious, itself, faith, did not act bad was not appellee unnecessary and cannot be said to have caused trouble expense. attorney against Therefore, $5,000 and of award fees SWCH is reversed. Judgment S90A0792, in Case No. and reversed Case affirmed
No. S90A0793. All the Justices concur. — 16,
Decided November 1990 4, denied Reconsideration December 1990. Sweeney, Henry Harmon, Owen, Owen, Saunders & H. Andrew Higdon, Green, Jr., Smith, Russell, D. Robert J. & Gambrell Rose- mary Stephen Haley, Smith, Brown, Forte, David M. M. S. Elizabeth appellants. Jacqueline appellee. Bird, Q. Bennett, William S90P1043. v. THE STATE. HAMMOND Justice. Fletcher, by jury County Emmanuel Hammond was convicted Fulton kidnapping robbery. murder, and armed He was sentenced to appeals death for the offense of malice conviction murder. He now his and death sentence.1 presented guilt phase
The evidence at the of this trial summarized as follows: July morning 11,
Julie Love was seen last fiance the evening 1988. He called her that and she not in. left He a mes- July 11, evening early morning The crimes in the occurred 1988 and the hours of 12, July 1989, August 1988. The not arrested until and was indicted on 12, September 8, February 1989. 1990. The The case was tried between March de directly trial; appealed fendant did not file a for new to this The case was motion he court. May arguments docketed in this court on heard on 1990. Oral June day. the next message He left another answering machine. sage on her calls, that she was at first thought his did not return When she How- at me little bit.” way” “getting back having her “sort of day con- next he became ever, call the when she failed to return family she and discovered began calling her friends He cerned. *2 apart- went to her them either. He of not been touch had home, they did and She was evening policeman. with a ment that How- they apartment at that time. a to enter her not feel had of half a gas and out ever, discovered abandoned after her car was house, by begun investigation a formal from fiance’s mile her year. for over a investigation proved fruitless police. The Weldon, 34-year-old stripper at an a August Janice 26-year-old Emmanuel companion of lounge and intimate Atlanta Hammond, after he charges aggravated assault him arrested on had charges, jail on Weldon these strangle her. While he was tried cousin Maurice Porter Hammond and his reported police up Police followed of Julie Love. disappearance for the responsible monitoring conversa- “body bug” on her and report by placing her several incrimi- Porter. Porter made her and Maurice tions between con- statements, Porter Hammond were arrested. nating and he and by identified her police skeletal remains which were fessed led and neighbor as the mortal remains dentist and next-door childhood at Hammond’s trial. Julie and Weldon testified Love. Porter them, driving Porter, Hammond were According to Weldon and maroon Oldsmo- evening July 1988 Hammond’s around by They walking the side of spotted Julie Love bile Cutlass sedan. driver, command, Porter, Howell Mill Road. At Hammond’s an- a ride. Love her she wanted stopped so Hammond could ask house, nearby claiming she pointed to negative, in the and swered they off. Before up driveway and drove lived there. She walked however, returning to the saw her they got sight, out of Hammond opposite by in the to turn around and drive road. Porter was told They past Julie direction, bright. drove lights this time with his correctly they up a car which again Love and saw farther the road drive, they and returned told Weldon deduced was hers. Hammond Hammond, car, armed awith stopped to Julie Love. Weldon out, her into grabbed victim and threw shotgun, jumped sawed-off the back of the car. (which Hammond Elementary
They Park School drove to Grove attended). instructed purse and Hammond Love’s was searched had bank to an automated Porter to take her bank cards Weldon and by them given number get money, using an access teller machine and shotgun with his sawed-off remained at the school Love. Hammond money returned later without and Julie Love. other two incorrect tried to use was bank number cards. access kept angry result, Hammond, at this the machines had the cards. raped shotgun. repeatedly Julie Porter then Love with the struck Love. pleading Love, hurt, had more cards Hammond she not to be told complex They apartment deterred but were home. drove to Love’s at from security presence guard entering at the entrance to complex. point, go home. She she be allowed to At this Weldon demanded dropped apartment remaining returned off at her and the three was to the Grove from the behind her back and got hangers and a sheet
Park school. Hammond clothes together, tied her hands trunk of the car. He tied Love’sfeet body. wrapped He then a sheet around pull telling wrapped hanger neck, and, Porter to a coat around her pulled strangle strug- other, Love. She one end while he gled tried got retied her broke free. Hammond her under control and they stopped Park, He told Porter to drive to Grove where hands. Leaving car, Hammond took Ju- the side of the road. Porter with the gunshot. A few minutes later lie Love into the woods. Porter heard a alone, flecked with blood. Hammond returned his face morning. Weldon Hammond returned home 7:00 a.m. that *3 happened to asked him what had about it to Julie Love. He did not want talk “put in then, her hands but later told her that after Love dumped face,” of her face off.” He front of her body he “blew side up pile with a board. a trash and covered her shotgun Dominick, to The was recovered from Michael sawed-off long killing gun after Julie Love whom Hammond had sold the having earrings recovered, after been with it. The victim’s were also by pawned Janice Weldon. $140 photograph arrest, ad- and
After his
Hammond
Weldon’s
$20,000
soon,
him
and offered
dress to an inmate due to be released
kill
her.
foregoing,
offered evidence establish-
addition to the
the state
ing
previous
Hammond had kid-
three
occasions Emmanuel
attempted
napped young
to rob them ob-
women and robbed or
taining
machines.
to use
automated teller
their bank cards
Moreover,
numerous times and
he stabbed the third of these women
pile area.
left her for dead on a trash
a wooded
light
state,
evidence,
The
most favorable to the
viewed
supports
phase
jury’s
guilt
the trial. Jackson
verdict at the
Virginia,
there were more than cf. Hall v. jury and three alternates. See allow selection 719) (1985). Moreover, the shows record Friday jury afternoon after the jurors the two were located late absent parties.2 questioned the court and the had been selected and were however, Thursday message; evening call to leave a One had tried to ju- county answering machine and had turned off the court’s she had message. Questioning revealed that ror could not leave qualified to be a Fayette County and therefore was not moved prospec- 15-12-40 and 42. The other County juror. Fulton OCGA §§ mes- juror called the court at 12:30 that afternoon left a tive had compli- message having sage on the court’s “voice mailbox.” She previous Monday, strong following surgery taking cations foot (Percocet), require follow-up going medicine pain-killing days medical and weeks The court ruled that treatment ahead. condition, juror because of her medical would have been excused brought to the court’s atten- for cause the circumstances had been prior jury tion selection. by proceeding
While do not erred we find that court did, if the jury selection of the it it is clear that court when delayed located process prospective jurors until the absent absence, questioned they about have excused their would been qualified for cause and the venire would have been the same complains one the defendant about. No error has been shown. telephoned Janice Weldon Love’s home before went apartment saying, complex, message
Love’s
and listened to a recorded
“Hi,
Julie,
phone
. The
and I can’t
now. .
.”
come to the
*4
object
the
hearsay
defendant did not
the admission of
grounds to
audiotape containing
message.3
hearsay objection
His
to another
this
tape containing incoming messages from friends and relatives
sustained, and,
brief,
not
tape
in his
contrary to
assertion
(continued),”
transcript
styled
See
volume
“Volume V
sealed
order of the
court.
objected
proper
He
the
for the admission of
state had not laid a
foundation
sustained,
objection initially
tape
tape.
laid
after
state
His
was admitted
the
but
further
for its
foundation
admission.
hearsay
played
jury.
to the
No inadmissible
was admitted over the
objection, and this enumeration of error is without merit.
defendant’s
given
3. Janice Weldon testified the defendant had
her some ear-
pawn.
rings
earrings
belonged
These
had
to Julie Love. The state
earrings
asked Weldon
the defendant had told her where the
had
appropriate
answered,
not,
come from. Weldon
but
“I
don’t know it’s
go
lot,
used to
steal cars a
him and his cousin.” The defend-
ground
impermissible
ant moved for a mistrial on the
character
evidence had been elicited. The court denied the motion for mistrial
curative instructions. There was no abuse of discretion.
Sabel
4. Weldon and Porter both testified that Hammond was armed 12-gauge shotgun with a at the the crime. time of Police were unable gun. during However, trial, to locate the one Michael Dominick prosecution informed the him that Hammond had sold a sawed-ofF 12-gauge shotgun long disappeared. after Julie Love had At the purchased gun, time he Dominick did not know Hammond had anything by disappearance. gun to do with Julie Love’s was seized police during a search of Dominick’s residence connection drug charges with criminal unrelated to this case. At the time of this gun police many trial, the had been in the evidence room for months. police prosecution gun Neither the any nor the were aware that the jail, Dominick, connection to this case until who was volun- begun. teered the information after the trial had The state offered the gun testimony newly and the of Dominick as discovered evidence. objected testimony The defendant and moved to exclude the and the gun because name list fur- Dominick’s was not on the of witnesses except trial, 17-7-110, because, § nished to him before see OCGA testimony, nothing gun for his trial. The court ruled: there was tie the crime on grants
“[A]s the record now stands the Court the defense motion. ...” cross-examination, Later the state defendant testified. On
displayed gun to the him if defendant and asked he had ever seen selling it. He admitted he had. He denied it to Dominick but admit- being present gun when, claimed, ted as he Janice Weldon sold the gun time, Dominick. The state re-offered the evidence. This addition, court admitted it. In Dominick testified in rebuttal that gun Hammond had sold the him. initially granted
The court record defendant’s motion preclude attempt by at that stood state to time. The court did not expand subsequent testimony by that record the defend- by admitting gun ant. The trial court did not err about its sale after the it. defendant identified
5. The defendant contends he was “denied a fair trial due prosecutorial claiming throughout trial, misconduct,” that, *5 “expressed opinions, improper questions intro- prosecutor asked improper evidence.” duced testimony alleged misconduct concerns the
The first instance of testified, the defendant moved to Before she ex- of Janice Weldon. speak she to testimony because had declined to defense clude her Weldon, however, right the refuse to trial. to talk counsel before (4) attorney. Baxter v. to defendant’s the prosecutor the more Absent evidence that did than speak, the of her not to there no inform witness prosecutorial Id. at 542. misconduct. alleged prosecutorial next two misconduct con-
The instances testimony cern the cellmate who testified the defendant tried the kill if the witness prosecutor to hire him to Weldon. The asked Janice carry against the “would out threats” Weldon. thought defendant objected in the The defendant on The witness answered affirmative. question ground the “calls for a conclusion.” The court sustained the Later, the objection jury disregard answer. told to beating about a he had after he had state asked witness received attempt reported the kill Weldon. The defendant ob- defendant’s to jected because the state failed to that the defendant was establish way responsible any beating. objec- for the The court sustained this also, jury disregard testimony tion and instructed any testimony to draw inference adverse to the accused from might persons about an witness have had with other altercation the than the defendant.
Assuming attempt arguably relevant elicit misconduct, we prosecutorial could some instances amount find that, instructions, especially in there light of court’s curative no misconduct might prejudiced rights here that have the substantial (11th Odom, of the defendant. States v. 858 F2d 664 Cir. United 1988).
Any colloquy prosecution during comments made outside Hence, presence jury. no effect jury could have had on prosecutorial alleged the defendant’s fourth and fifth instances of (11th (III) Kemp, misconduct are immaterial. Willis v. 838 F2d 1510 1988). Cir. prosecutorial alleged
The defendant’s sixth miscon- instance of duct occurred Weldon. during the state’s examination Janice She photo- compared belonging a shirt one the defendant with graph objected not then into be- admitted evidence. cause the not in This was sus- photograph objection evidence. Later, We tained. are photograph was admitted evidence. any prosecutorial unable discern misconduct here. prosecutorial alleged instance of miscon- defendant’s seventh opinion. duct is dealt with in 4 of Division alleged prosecutorial The final instance of misconduct occurred prosecutor jury during guilt-phase closing told the argu- when the its jury guilty, ment that knew the defendant was and the reason the you you would know it “is to think how would feel if him saw knowing you streets what know about the defendant.” objected The defendant argument, parties to this and the dis- objection cussed the at a bench conference outside the hearing of the jury. proper prosecutor The defendant it contended was not for the *6 jurors ask the to assume position prosecutor of the victim. The responded merely asking jury that he was to make a common- court, sense decision expressly based the evidence. The without sustaining objections, prosecutor the defendant’s “go directed the for- argument ward” with his stating “directly indirectly” without or that jurors place “should themselves in the shoes of the victim.” The trial court by did not commit reversible error refusing to grant the defendant’s motion mistrial. lightly court prosecutor should not infer that a intends
[A] an ambiguous damaging meaning remark to have its most or exhortation, jury, sitting lengthy that a will draw that meaning plethora damaging interpretations. from the of less Donnelly DeChristoforo, v. 637, 416 U. S. 647 40 LE2d 431) (1974). prosecutor’s argument example preju- was not an dicial misconduct that would entitle the defendant to a new trial. Kemp, Willis v. supra. Contrary assertion, to the defendant’s the trial court did con hearing presence
duct a
jury
outside the
of the
to determine the ad
missibility
sentencing-phase testimony by
raped
a woman who was
burglarized by
Ap
and whose home was
the defendant. See Unified
peal
(B) (1) (b).
Procedure
III
Georgia Court and Bar Rules at 9-11.
§
The trial
correctly
given
court
determined that
the defendant
State,
Alderman v.
sufficient
testimony,
notice of her
Ga. 206
see
254
(8) (327
168) (1985),
pre-trial
prior
SE2d
and that the
dismissal of the
(as
part
case
means of a
prosequi
plea-bargained guilty
nolle
plea by the
charges)
preclude
to other
did not
the state’s
in this case. Potts v.
use of the
aggravation
victim’s
in
State,
(14) (376
State,
851) (1989);
Moon v.
7. The defendant contends
sentencing
from evidence at
been excluded
bery should have
record,
attorney. how-
by an
unrepresented
phase because
(We
represented
attorney.
ever,
he was
on its face that
shows
by the
also established
of the crime was
the commission
note
State, supra.)
The trial court
See Potts
testimony of two witnesses.
by allowing
juvenile adjudication to be admitted
did not err
sentencing phase of this trial. Burrell v.
during
evidence
(7) (376 SE2d
8. Our Code (a) criminal to or in attorney argue at law a case shall No defendant, convicted, may presence jury of the imposed by penalty full required to suffer the not be pardon, parole, clemency or na- jury because court Governor, granted by the the State Board of ture authority Paroles, proper or other vested Pardons clemency. right grant (b) or in argues If case counsel for either side a criminal (a) provided in of this presence of the subsection section, opposing shall have immedi- Code counsel mistrial, ately request the court to declare a which *7 mandatory the to a upon case it shall be court declare mis- trial. to a mistrial shall constitute reversible Failure declare error.
(Emphasis supplied.) OCGA 17-8-76. § phase
During closing jury sentencing to the at the argument trial, given not prosecutor argued of the the Hammond should that a life sentence because: day he parole
There is So one will Georgia. no life without be a free man. agree argument prohib-
We the is one with defendant that (a) However, by improper. ited OCGA the defendant 17-8-76 and is § State, crime, acquitted. v. long has not the he has not been been convicted of so as Jefferson (8 (353 468) case, b) (1987). S. Su We note in a recent U. SE2d pre preme Jeopardy does not Court held Clause of the U. S. Constitution Double acquitted. Dow evidentiary prior clude the crime even when the defendant has been use 708) ling States, S. _ (110 ___, (1990). entry v. United Since the 493 U. 107 LE2d any acquittal prosequi prior or nolle to an resolve a case at issue here did not amount State, favor, supra, u. in this see Moon in the we need not decide factual issue defendant’s Dowling (which by governed Georgia our own case are what effect will have on future cases Constitution). Constitution and laws addition to the Federal — (b) not as he could have under the terms of did subsection of the — Instead, objected Code move for a mistrial. he and asked the court jury disregard argument. instruct to The court sustained curative objection instructions. require Our Code does not that a mistrial be declared even with- request, by granting only and the trial court did not err out sought by the relief defendant trial. Finally, by failing
9.
the defendant contends the court erred
requests
charge
through
written
numbers 2
give the defendant’s
request
sought
number
the defendant
to advise the
when
eligible
parole
given
would be
consecutive life sentences
penalty.
give
rather
than a death
It was not error to refuse to
Quick
State,
v.
request
charge.
anyAt Supreme time after the case is docketed Superior by Supreme Court be directed Court to hearings, conduct further conferences or to hold additional specified purposes, findings or to make additional of facts parties in respect or conclusions of law to issues raised appeal perceived by Supreme although Court not asserted the defendant or the state.
(Emphasis supplied.) Id. at 9-15. perceive possible
We in this issue as to effectiveness of counsel case, give and we therefore remand the trial court to case to the opportunity defendant an litigate the issue of trial counsel’s effec- question tiveness.5 The an examination of effectiveness involves only performance prejudice. agree trial counsel’s We but also *8 any deficiency representation by the dissent coun- that the trial materially proceeding, sel did not affect the outcome of the constitu- 5 may proceedings opportunity on remand will be Hammond’s to raise whatever State, course, Gary pointed v. wish on the issue of infra, of Of as we out in effectiveness counsel. part litigate waive in whole or his a defendant cannot be forced to an issue and challenge right trial counsel’s effectiveness. Ibid. 600 Washington, Strickland v. not exist. See
tional ineffectiveness would
674) (1984). However,
(104
2052,
we
LE2d
SC
80
466 U. S.
effectiveness
the
question
the
of
on
we can decide
agree
cannot
represent
necessary
appoint
counsel to
If it is
before us.
record
remand,
so.
the conclusion of
court shall do
After
on
remand,
to this court
the case shall
returned
proceedings on
statutory
sen-
proceedings
remand and for
for review of the
on
review,
for
proceedings on remand obviate
need
unless the
tence
State,
(389
v.
appellate review. See Meders
cept P. Justice, Smith, Presiding dissenting. judicial resources
A in this is a waste of time and remand case following reasons. and is not warranted for First, alleging ineffective has no enumeration of error there been empowers Appeal Procedure While the Unified assistance counsel. initiative, possibility of on its own we this Court to review the error developed are record at trial. That record either constrained If or it not. the record reflects ineffective assistance of counsel does error, judgment shows such an reverse the and return it to we should not, Obviously, not. it the trial court for a new trial. it does Since does precedent setting a terrible we should affirm the verdict. This Court is ground appeal and cre- remanding inventing this case. We are a ating delay by judge go on a witch hunt. directing the trial by appellant. He filed numerous
Counsel this case was retained throughout timely interposed objections trial. motions way we individuals Just because he did not handle the case have, He might does not establish that his actions were ineffective. position to trying the case was in a better the scene and dic- progressed. understand the flow of the as it Circumstances trial strategy tate trial and I do not believe that record shows that appellant’s error. strategy constituted deficient,
Additionally, even
counsel was
it
not established
To
deficiency
a
estab-
justifying
rose to
level
remand.
counsel,
party must
lish a valid claim of ineffective assistance of
deficient, and,
unprofes-
“but
counsel’s
show that counsel was
errors,
different.”
sional
would have been
proceeding
the result of
Washington,
Strickland
LE2d
at raped machine and twice. bank teller occasion, and an- juvenile, still a Hammond
2. On another while victim kidnapped him and drove the gunpoint, man at other robbed a in his own car. around Later, knifepoint, kid- Hammond robbed another woman
3. her, throat, her, her five raped slit her stabbed napped and sodomized trash. pile left for dead in a in the chest and her times knifepoint, took her car still woman at 4. He accosted another around, managed kill rape and her. She threatening and drove carry out his threats. escape before he could bed, while she was into another woman’s home 5. He broke left, he stole sexually fondled her. Before he asleep, up woke her tape recorder. cash and a case, kill his arrested after he tried to present
6. In the he was friend, Weldon, pay another jail and while he offered girl Janice $20,000 kill her. inmate present this, attorney supposed light of all was Hammond’s Hammond mur- evidence a case where good
voluminous character his sixth woman victim cold blood? dered murder of Second, story night of the of the grisly there is the man, armed with story strong, is one of a able-bodied Julie Love. This sixth woman looking streets for his shotgun, riding a sawed-off as fol- picture live action presents The evidence a brutal victim. lows: friend, (Hammond’s whom Hammond, girl and Weldon
1. Porter kill) in Ham- driving around hire were he later tried to someone mond’s car. of the road. walking by the side spotted
2. Julie Love Hammond stop the car. Porter to 3. Hammond ordered She declined if she wanted a ride. 4. Hammond asked Ms. Love they on. drove returning to the road Ms. Love 5. watched and saw Hammond her home. driveway house she had claimed from the of the past Ms. and drive to turn around 6. Hammond ordered Porter bright. again, lights the car Love saw a past Love and they Ms. 7. Hammond exclaimed as drove I knew it!” “I knew it! stopped by the side of the road: car Weldon slowly and ordered he drove too 8. Hammond told Porter walking. They to where Julie Love to drive. returned car, shot- with a sawed-off of the armed jumped 9. Hammond out car. Love, the back of the her into gun, grabbed Ms. and threw Elemen- Park to Grove Weldon to drive Hammond ordered tary School which he had attended. purse. He Love’s to search Julie
11. Hammond ordered Weldon Ms. Love’s bank cards to an to take ordered Weldon and Porter then pro- money using an access number get teller and automated bank by her. vided with Julie Love. Neither the school
12. Hammond remained at happened at the school while testify could what Porter nor Weldon trial, bragged about awaiting Hammond while gone. But jailer, Hammond According to the Love. raping Ms. and, organ his sex holding pants to his knees pulled his down Love.” to Julie hands, jailer told the “that’s what [sic] [he] shotgun when Porter and Love with his 13. Hammond beat Ms. money. returned without Weldon *10 raped Julie Love. by while Porter
14. Hammond stood Hammond, him not to hurt her pleaded Love 15. after Ms. complex proceed apartment her driver to anymore, directed the presence cards, because of the did not enter get more credit but security guard. Porter, dropped request, Weldon Hammond and at Weldon’s 16. back to the school. apartment, then took Julie Love at her sheet from the trunk of hangers and a got 17. Hammond clothes the car. her hands together, feet bound
18. Hammond bound Julie Love’s body. back, around her wrapped her a sheet behind Love’s neck. hanger around Julie 19. Hammond wound a coat end, Hammond, strangle one tried to telling 20. Porter to hold hanger. Julie Love with a coat free, Hammond, got her under con- struggled
21. after Ms. Love her hands. trol retied nearby Park.
22. Porter to drive to Grove Hammond ordered Love stay in car and took Julie 23. Hammond told Porter to into the woods. with his sawed-off
24. Hammond Julie Love the head shot shotgun, blowing side of her face off.” “the pile by placing a board body a trash
25. Hammond hid pile. trash he had left over it. This was the second woman car, face flecked with blood. 26. Hammond returned to the Julie Love. shotgun 27. Hammond sold the after he killed and told her earrings to Weldon Hammond Ms. Love’s pawn them. life. synopsis Consider this of Hammond’s orchestrated, directed, 27 of these 28 a. or committed Hammond raped Julie while Porter shotgun, acts and stood with his sawed-off Love in the 28th one. Hammond, and vio- a life of crime juvenile,
b. since a has led lence. rights of others. respected
c. has never the law or the Hammond simple iota of human de- failed to exhibit one Hammond has d. cency. following crimes one or more Hammond has committed
e. women. to six different roll
Here’s the call: — women, including Julie Love. six A. Terrorized — four, Love. Julie Kidnapped including B. — three, Love. Raped including Julie C. —rape Threatened one. D. — E. one. Sodomized — five, using gun physically knife or F. Assaulted either including Julie Love. — one. G. Cut — H. Stabbed one. — I. Slit the throat one. — four, Love. including Julie J. Robbed —kill K. Threatened or tried to three. — two, Attempted L. bank teller and credit card theft automatic including Julie Love. — four, including Falsely imprisoned in an Julie automobile M. Love. — two, thought dead pile, N. Left trash either dead or to be Love. including Julie (fondled Sexually breaking into her a woman after O. assaulted —
house) one. — P. one. Solicited murder *11 — one, Love. Q. Murdered Julie to acts, Love forced suffer of the above 17 criminal Julie Out nine. through man, an attack on one but criminal record includes
Hammond’s kidnapped another felon operandi his the same. He and modus him robbed at in victim’s car and and drove the victim around gunpoint. above, case of the it is clear a remand of this light assistance of counsel is possible
trial court to look into ineffective resources, insult to judicial and an travesty justice, a waste of assaulted, terrorized, and mur- robbed, raped, victims that he has dered, as well as to their families. 258) (1987), (360
In Ford v. (1) sentencing in are held, normally Court considered factors “[t]he defendant, previous criminal activ including of the his character (2) See also ity, any, of the crime on trial.” and the circumstances _ 1441, -LE2d Mississippi, _ U. Clemons v. S. _) (1990). criteria, you find? do
Matching appellant two what these character, the record shows Hammond to be without a shred of As to socially redeeming decency, totally lacking single, trait human and juvenile. he was a This has been true since of character. activity legion has been limitless and as be seen
His criminal in dissent. elsewhere crime, circumstances of this there are no words that can
As to the appellant up was involved fully describe the acts or actions including blowing “the side of her face off.” Love’s] [Julie appellant pulled jail awaiting speak off The two acts that eloquently his character and how he feels about the murder of about complete Those acts demonstrated a absence of re- Julie Love. victim, society an utter disdain for the and the law. morse and 1) friend, attempt girl inmate to kill his They were: his to hire an him, Weldon, prevent testifying against her from Janice private parts stating to an officer and what he did showing act of his to Julie Love. pattern
All which shows that of these crimes follow a premeditated, planned purpose, with a and evidence a callous life, rights being indifferent view toward the and well of his fellow- man. appellant’s attorney
I do not think the was ineffective at either guilt-innocence phase sentencing phase of the trial. Ineffec- or the only by showing deficient tive assistance of counsel can be established attorney Washing- performance prejudice. and actual Strickland ton, S., supra 466 U. It was Hammond’s burden to show that mitigating reasonably evidence existed which could have led the spare his life. appellant’s attorney attempted good faith to do so. He I failing present cannot faulted for which did not exist. example appellant’s grandfa- think one enough to show this. The approxi- ther him. mitigation testified for His covered mately If page. grandfather good one tell all the he knew could page, appellant about him in one could not find it is clear that anyone supply greater mitigating else that could evidence.
Appellant help by going could not even himself on the stand. explanation give appel- What could for his criminal behavior? The if he lant’s counsel knew this. He was in a catch 22. He was damned did and damned he didn’t. retrial,
Harm even as well as error must be shown to warrant a Clemons, penalty supra a death case. at 1450-52.
Furthermore, Supreme States Court stated the United *12 Boyde _ U. S __ (_ SC _, __ LE2d -) California, (1990): is, course,
There of in deter- strong policy a favor of accurate appropriate capital case, but mination of the sentence against equally policy strong . . retrials . where anis there speculation. to no more than claimed error amounts again, case, and the remand is I is no claimed error this stress there speculation. mere based
Assuming, argument, deficient, counsel for the sake of deficiency enough harmless. If there is evidence to envision enough possible ineffectiveness, is evidence for this issue there of supra, holding Clemons, The determine if it was harmless. Court to supports Supreme proposition Court can make a de- that a State deficiency rise of of counsel to the level termination that the does constitutionally likewise, should and not set a harmful error. We do remanding perceive precedent we the trial court because new of possibility finding court ineffective assistance mere remote of counsel. any representation how defect
It difficult understand deprived appellant mitigating circumstances. have could strong, appellant aggravation in is so this case is so evidence history lengthy, dangerous, crime mon- his is so his is so criminal testimony only page. grandfather’s strous, covered one own opinion legality responsible rendering as to Those for following February Mary made Queen 1586 of of Scots the trial statement: proposition terms, trial, “For this let this delivered known punished say every thus, to be be- man breaks law is penalty willing he was to bear of his offense.”
cause Emman- I would affirm the and the death sentence of conviction Fitzgerald uel Hammond. —
Decided November 4, 1990. Reconsideration denied December appellant. Wehunt, William A. Attorney, Slaton, Hicks, Assistant Lewis R. District E. Richard Attorney Attorney, Bowers, General, Susan V. Michael
District J. Boleyn, Attorney appellee. General, Senior Assistant DEVELOPMENT, WEBB
S90A1089. COUNTY et al. v. COBB INC. (398 SE2d Presiding Justice. Smith, (Webb) appellee, Development, sought a writ Webb Inc.