*1
givе charge
requested
a
such
here.
one
There was no
refusing
give
charge.
error in
this
See Allanson v.
3)
(6) (221
Judgment All the Justices concur. affirmed. September 3, 5, 1976 Decided October Submitted 19, Rehearing 1976. denied October Langstaff, Campbell Plowden, Swan, & L. William appellant. for Attorney, Lee, Hind,
William S. District Hobart M. Attorney, Attorney Bolton, Assistant District Arthur K. Byrd, Attorney General, General, Isaac Assistant Staff appellee. 30982. HARRIS v. THE STATE. Per curiam. appellant, Harris,
Kenneth Allen was indicted Jury County the Grand of DeKalb for the murder of Mrs. (A occurring Xara Catherine Ward on October 1974. .the second count of indictment was severed on motion of appellant’s attorney and never considered jury.) by jury 10-13, a trial lasted from March guilty 1975, the found of murder March finding statutory aggravating 12, 1975, and after penalty. circumstance the recommended the death On 13, 1975, March he was sentenced to death. He is appeal mandatory before this court on and for review of penalty imposed. the death Summary
I. of the Evidence. morning On 2, 1974, of October Mrs. Xara Georgia, Catherine Decatur, Ward of entertained her regular Wednesday morning study group. Bible Afterwards, the women went to lunch at a nearby center and shopping discussed the Harvest then in Sale progress Rich’s. The women finished lunch 12:45 at about and went their separate ways. Approximately hour later Mrs. Ward a coat Rich’s bought Department at Storе in the South DeKalb Mall. That the last time anyone *2 (except appellant) the saw her alive. body
Her was discovered around 3:00 the a.m. her in following morning parked car the rear the at mall. She was lying across front seat of her automobile with a black coat over her head. There were two bullet holes the bloodstained coat.
It was medically determined that Mrs. Ward died as a result gunshot of two wounds The two head. projectiles found and during autopsy were removed. later,
Approximately police two weeks DeKalb Mr. investigators, acting supplied by on information Terry Moreland, brother-in-law, obtained appellant’s a warrant for Kenneth Allen He was on arrested Harris. October at site he construction where was employed.
Moreland tеstified that him at up Harris his. picked job on Whitehall p.m. Street Atlanta about 3:50 October 1974. As they drove out Interstate 20 towards Rockdale County, appellant asked Moreland he whether would have "the talk guts up shoot someone head.” not, When Moreland that replied he could him he told that had shot a woman.at the South DeKalb Mall. He the .32 pistol showed Moreland caliber he had Then, used with empty they two chambers. drove past mall, pointed Harris to Mrs. Ward’s car car,” the parking lot. "There’s he told his A days brother-in-law. few later Moreland called the police.
The used buried gun was later found near a bank in An County. creek Rockdale from employee the State Crime determined that the two Laboratоry bullets from fired from body taken of Xara were Ward Harris’ revolver.
Immediately arrest on following 14, 1974, October he his and in- rights was advised of dicated he after again that understood. He advised again headquarters,
they got police indicated to officers He made a statement he understood. then tape-recorded. which was beginning tape played open At the court. tape, had asked he
of the objections Harris was whether being recorded. He stated to the conversation he didn’t then the officers that that he did not. He told something I it, made him do "was know what always do.” wanted to telling he had hated
Harris continued officers how stepmother had killed his former her. He and how he wished he really his kill resembled wanted to someone who bought hunting stepmother, knife he he told them. So looking Mall times went out to South DeKalb several stepmother. him for a woman who reminded of the hated argued bragged their a lot and with Women who police. particularly He him, irritated he told husbands wanted to "just them.” mutilate the hell out of spotted Rich’s, floor of he He Mrs. Ward on the second "talking god said, like damn He she owned the world.” pulled gun car, he on her and followed her to her told her to do her where exactly Then, said, directed as he said. he he *3 park back mall and near a tree. to drive to the money, her, "I When she nothing you’ve got, except your him he told don’t want offered
life.” Then he took shopping bags, coat out of one ofher covered her head with "Bye Lady,” it, said and shot her. good he
Harris stated that he felt so afterwards that coming. again wanted to do it but left when he saw a car happy, He "I I said, he because had done ... what set they glad out to do.” He told the officers that he was caught again. him because he it He also would have done time, told them that he but was on medication at the stated had no effect his He said he would on decision. have it if he had done been "stone sober.” presented
The defense three medical doctors and Terry brother-in-law, Moreland. Moreland a testified that had had tonsillectomy recent and on at the time of was medication appeared the murder. He said that Harris drunk after taking speak the medication —that he could not walk or normally, and that his reflexes were slow.
Dr. Roach George testified that he had a performed on tonsillectomy September Harris on 24. Following he surgery, prescribed pénicillin Sedapap, alcohol/barbiturate combination. An overdose of this medication could drowsiness, cause drunkenness and/or he testified. Smith,
Dr. Carl psychiatrist a at Central State testified that he Hospital observed the over period days. He concluded that Harris was suffering from a schizoid personality, but not from any delusional compulsion. Dr. Smith’s opinion, Harris could dis- tinguish right from wrong.
Dr. Ehik, Julius psychiatrist, that testified he examined 16, Harris on 1974, November again November 23. In his oрinion, Harris suffered from a "pronounced personality disorder” where he harbored hostility toward a type certain of female. He did not feel that he was psychotic, however. Dr. Ehik stated that a combination of alcohol and barbiturates could lessen an individual’s controls but stated that appellant knew right from wrong was not delusional.
II. Enumerations of Error 1. In appellant’s first enumeration he avers the trial court erred in pre-sentence its to the charge jury regarding imposition of the death penalty, thereby depriving appellant process of due of law under the Fifth and Fourteenth Amendments to the Constitution United States.
The thrust of the appellant’s argument support this enumeration is that the pre-sentence instructions jury by the trial court were death-oriented. Specifically he complains should have told judge if even found a they statutory aggravating did they not have to the death impose penalty. Eberheart
As we noted in 12) (1974) (Ga. 159, 163-165; the statute L. *4 pp. (c)) § Code Ann. 27-2534.1 "The statutory in requires: structions by determined the trial judge to be war ranted the evidence shall given in charge and in writing to the jury for its deliberation. The if jury, its verdict be a recommendation of death, shall in designate the the jury, the foreman of
writing, signed it circumstances which aggravating the doubt.” In cases beyond non-jury found a reasonable of in cases designation. Except shall make such judge the aircraft unless at least one of hijacking, treason or §in enumeratеd circumstances statutory aggravating (b) found, not be penalty 27-2534.1 is so the death shall imposed. as we
The trial court the statute and complied with the end he read at the and at beginning his instruction life sentence they instructed that could return a read. that Appellant’s allegation how should death instructions were death-oriented or slanted toward without merit. that the court allegation Likewise his copies erred in of his furnishing jury multiple pursuant statutory instruction to the requirement to the given writing instructions be charge Multiple copies its deliberation. of jury as no more than a instructions could at most be considered convenience to the must reach a jury juror because each verdict based on his own conscience.
2. In Enumeration the trial appellant alleges of jury court erred in its on the charge consequences insanity, thereby verdict of not reason of guilty by Fifth denying appellant dire of law under the process and Fourteenth Amendments to the Constitution United States and the under equal protection laws the Fourteenth Amendment to the Constitution United States. erred in appellant contends that the trial court § Ann. 27-1503
charging language of Code on the effect of a verdict acquittal by insanity reason of entirety. its As we said in Graham v. 236 Ga. 803) (1976), decided "This issue has been adversely 261, 262 Hulsey 797) which held that charge latter of Code Ann. part 27-1503 'though inappropriate, does not amount to harmful error a reversal of requiring ” the judgment.’ Although we those cases recognize involved life imposed sentences and the sentence death, Harris was the instruction on the issue of guilt or innocence and was no an issue at the sentence longer
723 of stage proceedings. determination the This enu- merit. meration is without
3. third the trial Appellant’s alleges enumeration court erred in to failing charge jury the on the burden of defense, proof insanity denying of the thereby appellant process due of under the Fifth and law Fourteenth Amendments to the Constitution United States.
Where the charge of the court includes instruction as but insanity places the burden of as to each proof crime, essential intent, element of the the including upon doubt, state beyond reasonable is not error for the court not to the jury specifically, instruct absent a request, Adams v. as to of proof burden regarding sanity. (224 (1976). 469 SE2d See also McNeill, 281) (1975). State v. Enumeration 3 is without merit.
4. In 4 Enumeration the the appellant alleges trial court erred in the sentencing appellant to death on the basis of a verdict which jury improper form, as to thereby the denying appellant process due of law under the Fifth Fourteenth Amendments-to the Con- stitution of the United States. v. 232 Ga. appellant did in Eberheart
As the 247, supra, appellant complains jury here verdict repeated the presentence relevant portion charge practically verbatim and found circumstan- ces instead of Eberheart fаcts. Our- statement is equal- ly applicable here. "We note that of a designation is far than the something different narration of facts that The appellant urges required. statute requires designation of the circumstance circumstances, an ultimate issue or issues. This the jury did. Neither can we find jury repeating error same wording given to If them the written charge. wording found, stated is what and there is no contrary indication in trial, did not transcript they err in their finding.”
We find no merit to Enumeration 4.
5. In Enumeration 5 the trial appellant alleges court erred allowing a to the tape recording played jury without a proper laid, having foundation been un-
thereby denying process due of law der the Fifth and Fourteenth Amendments States, Constitution of the United Enumeration that the trial court erred in the court directing reporter transcribe from a after the trial testimony recording instead of the trial as the heard during recording the jury. Solomon, Jr., Steve M. Inc. relies on 167) (1955)
Edgar, App. Ga. dealt which with a dictaphone record in a civil suit wherein Court Appeals set out standards for the foundation required *6 before a may recorded device be to a The played jury. seven elements court that must be recognized (1) established as the foundation are It as follows: must be shown that the mechanical device was transcription (2) capable of taking It that the testimony. must shown (3) operator of the device was competent operate to it. authenticity and correctness of thе must be recording (4) additions, established. It must be shown that changes, (5) or deletions have not been made. The manner of (6) preservation of the record must be Speakers shown. (7) must be identified. It must be shown that the testimony elicited freely made, was and voluntarily without kind of duress. when the Solomon case was
Since 1955 decided, great advances have been made in the simplicity operation of in recording devices both the and recording playback features as well as the miniaturization of the equipment.
The appellant objection made no at the trial alleged absence of a proper foundation for the in- troduction of the tape recordings. objections'were His unrelated grounds. Prior to the before playing tapes the jury, the trial court conducted inspection camera listening recordings the presence of counsel and specified the portions that could be before the played jury over objections appellant’s counsel and his own judicial discretion. There had been previously testimony as to the circumstances of the statement and the manner in which it was recorded. There was also testimony a concerning gap the tape resulting from the officer’s attempt to duplicate the tape.
725 foundation was laid for proper playing We believe after the careful of the trial court. tape editing there, Appellant anything does not аver was to him in that portion tape constituting favorable he "gap” and we are led to the conclusion that was not thereby. harmed
The court "in trial reporter was camera” when the judge designated portions that could be be- played fore the court recorded his instructions. Those instructions were before the apparently followed reporter the court from report therefore able tape the narration before the as well as a played jury just reporter a document into the might incorporate transcript from portions which had been ordered deleted trial such as judge the second count of the indictment. relies on Owens v. 233 Although Ga. (214 173) (1975) v. Tamplin Ga. transcript wherein the incomplete because of the omission of the voir dire prospective jurors, examination of this court was unable Illinois, consider the issue raised by Witherspoon 776) (1968). U. S. 510 SC 20 LE2d There is no issue that we are precluded from reviewing method reporting here, utilized since especially there is and, no inaccurate, also, contention the transcription appellant has shown no harm to him. resulting
Enumerations 5 and 6 are without merit.
In6. Enumeration 7 the appellant alleges there is in error the fact that the court did reporter not take down and record the complete of the state closing argument notwithstanding appellant’s the counsel’s to the request court to do so. reporter §
Code Ann. 27-2401 in provides part: "On the trial of аll felonies the shall have the presiding judge testimony down, and, taken directed the the court judge, when reporter record, shall take exactly truly sten- of, in the ographic notes testimony proceedings case, except the argument of counsel.”
In an affidavit attached exhibit brief the official court stated as reporter "I follows: was the Official Court for the trial of Reporter the case of Georgia State of v. Kenneth Allen Harris. I case, closing arguments, before trial of
During closing if he wished Sidney Emeson Mr. asked closing that he wished He stated argumentsvreported. reported. of the‘State arguments as was «closing argument, Mr. Emesori’s "During office, my in to remain I allowed was being reported, not come to be buzzed to waiting transcripts, on other working closing final the State’s to report courtroom into the time, was the entire office my I remained argument. closing final State’s and, thus, buzzed, never reported. not was argument in his was asked that Mr. Emeson
"I further state closing he wished recess, office, whether during arguments reported.”
Thus, this does not request appear If record. counsel wants the final arguments recorded it is his duty to see that it is done inasmuch as it is not required by statute. this case he present in court where the court reporter’s absence during the concluding argument apparent,-and there is no indication that he took steps to have reporter recalled to the courtroom. Coun sel cаnnot sit permit some matter they could cor rect by timely action and later claim error. Our duty to review the record to determine whether the sentence of death was imposed under the passion, influence of prej udice, (Code or any other arbitrary factor Anri. 27-2537 (c) (1)) in way no relieves the counsel of diligence behalf of his (206 client. Eberheart v. 247, 251 12) (1974).
Appellant relies on our insistence in Ross v. 356) (1975) that the voir dire transcription be included in the record to enable us to examine the entire record of the proceedings the trial -court notwithstanding arparticrilar error may not be assigned by the appellant.
Our requirement transcript of the voir dire was based on a United proceedings Supremе States Court holding appears to that a require transcript of the voir dire proceedings must be included in the record cases where the death penalty imposed.
"In Funicello New 403 U. Jersey, S. 948 SC *8 2278, 29 LE2d [1970], petitioner the sought
727- post-conviction imposition relief from death penalty based the and on double upon Witherspoon issue the sentencing standard in United involved States U. New Jackson, 510, supra. Jersey Supreme S. transcript Court denied the relief because no of requested the voir dire had been either on or on submitted the review direct from the appeal judgment the of conviction and of testimony the veniremen was never a transcribed. memorandum Court opinion Supreme the United States reversed the judgment imposed insofar as it the death sentence and for further remanded proceedings, citing Boulden, the Witherspoon, Maxwell and Jacksoncases.” Ross, p. 368. supra,
The case sub voir judice transcript contains the dire and our examination reveals no. violation Witherspoon rule. other the weighs
One consideration against appellant’s If position. the district his rebuttal attorney had made some appellant’s statement the counsel to case, considered has the prejudicial his client’s he of responsibility objecting so the matter and objectionable the trial judge’s thereon a matter of record. ruling will be We also observe that the rebuttal is to rebut matter brought appellant’s out counsel. argument by the matters, Unlеss the state strayed’into new not argued defense, done, no allegation there is such was the remarks were rebuttal induced of argument counsel. Code Ann. 27-2201 specifies argument. order of
7. In Enumeration the trial appellant alleges court in sentencing erred to death appellant where attorney district had directly commented on the failure of thereby of testify, depriving due of process law under Fifth and the. Fourteenth Amendments to the Constitution of the United States.
During the sentencing phase of the trial district if attorney part argument his stated: this "Certainly, was a where case a were couple gambling fellows mad, drunk and got pulled, and one of them a pistol, shot, you not him the give would want death penalty. him, This man hаs no excuse. There is no one to speak good, mistake, this or this something was was the trial. made at objection No wrong.” *9 Ann. violation of Code this is a alleges Appellant right against the constitutional embodying 38-415 failure of "The provides part: self-incrimination which against presumption create no testify to shall a defendant of such be made because him, and no comment shall failure.” We can position. to appellant’s
We cannot subscribe
prosecutor’s
of the
interpretation
logical
deduce no
comment on
as a
be characterized
comments
would
testify.
appellant
the failure of
8 is without merit.
Enumeration
the trial
alleges
appellant
8. In Enumeration
9 the
motion for а
appellant’s
court erred in
denying
the trial
presence during
portion
mistrial based on the
table.
at the state’s counsel
of the victim’s widower
Ward,
Jr.,
Mr.
testimony,
Phillip
After his
prosecution’s
to sit at the
husband,
permitted
victim’s
of several other state’s
testimony
table
during
counsel
to the
trial,
objected
During
appellant
witnesses.
widower,
mistrial out of the
presence
moving
of the
for a
appellant’s
The trial court overruled
presence
jury.
husband not sit at
motion, but directed that
the victim’s
trial.
table for the rest of the
the prosecution’s
547)
(221
State,
693, 699
SE2d
v.
235 Ga.
In Nunnally
fact that the widow of
objected
to the
prosecution’s
to sit at the
permitted
deceased was
of the trial. We there said:
counsel table
the course
during
necessarily
trial
case is
any
"The conduct of the
vested with a wide
judge,
controlled
the trial
who is
court
appellate
and in the exercise of which an
discretion
appear
it is made to
should never interfere unless
Atlanta
has
from its abuse.
wrong
oppression
resulted
(114
Grimes,
(1960);
v.
This enumeration is without merit.
9. In Enumeration 10 the trial appellant allegesThe court erred in refusing grant motion to quash the indictment.
Beginning Coley with 612) (1973) and in each involving case a death subsequent sentence the constitutionality Death Georgia (Ga. Penalty Statute L. §§ 159 et Code Ann. p. seq.; 27-2737) 27-2534.1 and has been court. upheld by this *10 to Subsequent the time the appellant’s counsel submitted her brief the Supreme Court of the United States has upheld the constitutionality Georgia statute cases involving murder. See Gregg v. Gеorgia, —U. S.— SC 2909, (1976). 49 LE2d
Although we hold this attack on the constitutionality of the statute to be without merit we will consider the appellant’s contention that the aggravating circumstance found by the jury was unconstitutional in our review of the death sentence.
10. In Enumeration the appellant the alleges trial court erred in denying the appellant’s second amended motion for new trial which was based on the denial to the appellant of a fair trial due to extensive prejudicial pre-trial publicity.
The appellant contends that he was denied a fair trial because of prejudicial pre-trial publicity. appellant did not make any motion for a continuance or change of venue at the trial because of unfavorable but in publicity a death case this matter must be considered pursuant to the court’s to duty consider punishment the as well as any errors enumerated by way of appeal. § Code Ann. 27-2537.
"(c) With regard sentence, the the court shall (1) determine: Whether the sentence of death imposed under the influence of passion, prejudice, or any other arbitrary factor, and . . .” Code Ann. 27-2537. created pre-trial publicity whether
The measure of arbitrary or other passion, prejudice an influence of the same invokes on the death sentence factors the merits in evaluating that are utilized considerations of venue. change of a treet v.
In recent case of S the standаrds process of due development have traced the we decisions on state appellate on United States court based alleged pre-trial publicity court convictions where there the of the accused. We prejudicial rights the Court Supreme that under the decisions of concluded did not States, petitioner of the United to find that (1) that trial, receive a fair must show petitioner (2) inherently prejudicial of the trial was setting to a prejudice showed actual jury process selection that rendered a fair trial degree impossible. of five
In this case the cites instances read, of, the case veniremen who had heard or discussed He cites six of jury. who were not selectеd to serve on the who panel eventually jury members who served on newspapers. of the case via the knowledge indicated some not so with an juror No who served indicated he could do fact, mind or considered the open appellant guilty. strikes. peremptory did not utilize all of his copies newspaper has submitted Although appellant articles in the was drawn from a community, jury county Many almost half a million residents. comprising appeared exhibits submitted were from articles that after was chosen and The exhibits sequestered. between publicity indicate almost a four-month break and the trial. publicity the bulk of the believe that Under circumstances we do not *11 the due appellant has established a violation of either of set process pre-trial publicity prejudice standards for Street, forth in either the trial on or supra, affecting guilt innocence or the sentence. 11
Enumeration merit. without 12, 11. In alleges Enumeration trial court erred in motion denying appellant’s amended for new trial. enumerations
Only by specific one issue not covered of error amended motion for new appears
731 trial. That issue concerns voluntariness of appellant’s pre-trial statement police which and for taped played and jury. tape was admitted played after the trial determined that judge the statement was freely voluntarily and at a given (Jackson Jackson-Denno hearing Dennо, v. 368 U. S. 1206)). 1774, SC 12 LE2d 1 ALR3d We find no in his abuse determination. Enumeration is without merit.
12. In Enumeration 13 the appellant alleges that he was denied a fair trial due to the cumulative effect of all the errors enumerated in the enumeration of errors.
The court found having no merit to the other enumerations of error finds this enumeration without foundation or merit.
III. Sentence Review In our sentence review we have considered aggravating circumstance found jury and the concerning evidence the crime introduced court. We have reviewed the required sentence as L. by Ga. (Code (c) 1973, p. 159 et seq. §Ann. (1-3)), we 27-2537 612) (1974) did in Coley Ga. in each case subsequent a death under involving penalty this statute. We conclude that the sentence of death imposed on Kenneth Allen Harris imposed was not under the influence of passion, or other prejudice, arbitrary factor.
The jury found the following cir- aggravating cumstance:
The murder was vile, outrageously wantonly horrible, and inhuman in that it involved torture (b) (7). depravity of mind. Code Ann. 27-2534.1
The appellant attacks constitutionality of this aggravating that, as so vague instead of serving limitation, as a it serves to of open up the area discretion.
The entire aggravating circumstance involved reads as follows: murder,
"The offense or rape, robbery, armed kidnapping was wantonly vile, outrageously horrible or inhuman in torture, mind, depravity involved or an aggravated battery to the victim.” *12 both circumstance involves
This aggravating viz., torture, or an victim, aggravated on the effect mind. As to offender, viz., of deprаvity and battery; (the offense) were the acts test is that parties both vile, horrible or inhuman. wantonly or outrageously clearly defined Each of these terms used is Words dictionaries, or Dictionary, Black’s Law ordinary and understanding subject and and Phrases aby jury. application of of abuse possibility there is a
We recognize have we circumstance but aggravating this statutory "(2) Whether, in cases of duty determining been given the evidence hijacking, than or aircraft other treason statutory of a finding or jury’s judge’s supports in section circumstance as enumerated aggravating (c) (2). 27-2534.1(b).” § a test Ann. This is Code 27-2537 §in specified from duties and distinct our separate (c) (3). (1) if cases test Indeed, the similar 27-2537 statutory aggravating to be limited similar circumstances, limiting application of we would be statutory aggravating to some common statute in each case appear that would have to circumstance affirmed. (c) Ann. 27-2537 duty specified
Under Code our (2) statutory this permitting we have no intention of all” for circumstance to become "catch aggravating statutory no aggravating cases because other simply is raised the evidence. sentences, involving This court has affirmed death this circumstance. The cases were: statutory aggravating 217)
(1) House v. (1974), den., 44 LW 3762, cert. defendant which to death guilty strangling seven-year-old boys found two (anal sodomy) upon after them. committing rape (2) McCorquodale den. LE2d in which cert. beat, burned,
defendant bit and cut his bound whipped, victim, her wounds, on her abused put sexually salt her prior murdering strangulation. (1976)
(3) State, 237 Banks v. Ga. 325 which non-offending persons defendant killed two defenseless an execution-style killing by gunshot. establishes of these cases believe each
We mind and depravity reasonable doubt a beyond any battery or an aggravated either involved torture outrageously crimes were illustrating victim as vile, inhuman. of the cases is wantonly horrible or Each to restrict periphery, at the core and not the we intend *13 statutory under this penalty our the death approval to those lie at the cases that aggravating in State problem core. to similar approach See Florida’s a Dixon, by the 1, 10 approval v. 283 S2d cited with Florida, in Proffitt Supreme Court of the United States — — (96 (1976). U. S. SC LE2d 913 In this case the crime is described in own (the words: The victim) followed Mrs. Ward (Rich’s) around the store and out to her car. He a pulled gun, forced Mrs. Ward into her car and made her drive around behind the mall and park a deserted area in the back lot. parking
The appellant then sat in Mrs. Ward’s car with her and her, talked to laughed at her and around clowned Ward, with her. Mrs. in desperation, tried appease to appellant and offered him money. pleaded She with him and him, kept asking you "What do Then, want?” words of appellant, him, Mrs. Ward begged '"You’re me, to hurt going You’re to I going hurt me. you’re know going said, to hurt me.’ I 'I I T might lady.’ said, just might do I said, that.’ 'I I might shoot you. you.’ kill I might said, 'You I don’t know.’ 'I’m says, liable to do anything.’ Shе said, 'You me,’ want my and money, you rape want to and I said, all this. I lady, 'No don’t want you. I don’t rape want your money. I [Unintelligible] don’t want nothing you’ve got, except your life. I That’s all I said, want.’ main 'That’s the I thing life,’ want your and then she really cracked then.” up
The appellant then made lay Mrs. Ward her head down on the seat and the following conversation ensued: "Well, just there, she laid know, and, you 'Please don’t do this,’ and... and I just... know, then I just... don’t reckon it, I’d too; do and do it you’d you you’re die, know fixing know, you or she thought was, but, did, you she which she know, just, this,’ 'Please don’t you just do know. You don’t I [Unintelligible] this, all and just told her she better shut ” said, talking.’ 'I’m doing I lady.
up, heard as told that Mrs. Ward Then, the last words I and coat out got "I and the blue open tore it appellant: and said, Lady,’ I just 'Bye then laid her. And it over just minutes, I a her, know, set there for few and then you shot her minutes, again.” shot waited few of Mrs. Ward’s car out got then "I time. a third back and shoot Mrs. Ward go decided to back back, go her and then again and shoot go wanted to then again, again.” then and shoot her again, killing his about the feeling expressed The appellant I I’d then, say, Like you "I know. was happy as follows: I do, to do.” I what set out done what wanted to jury’s finding supports We evidence believe And that too circumstance. statutory aggravating circumstance. the statutory aggravating lies at the core of in this and sentence compared We have the evidence style execution involving case with similar all cases to this aрpendix murders in the attached contained for murder is Kenneth Harris’ sentence to death opinion. imposed the penalty disproportionate not excessive or *14 the crime and considering both similar cases defendant. concur, except All the Justices Judgment affirmed. J., Hall, J., only, in the judgment who concurs
Ingram, who the sentence the reasons stated specially concurs for 325, State, v. 237 Ga. special his concurrence Banks Gunter, J., who dissents. April September 19, 28, 1976 1976 Decided Submitted Rehearing 19, 1976. denied October Emeson, for appellant. A. Sallie Rich Sidney Jocoy, Duvall, Bell, Thomas Ol< Attorney, Richard District Bolton, Jr., Arthur K. Attorney, Assistant District General, Parker, Attorney Assistant G. Attorney Stephen General, appellee.
Apрendix.
State,
v.
Similar cases considered
the court: House
217)
(205
v.
(1974);
735
State,
(211
577) (1974);
(1975);
258)
State,
v.
Jarrell
234
410
Ga.
SE2d
(1975);
(215
State,
223)
Chenault v.
Hill, Justice, concurring.
The defendant raises constitutionality seventh circumstance death aggravating penalty of our (b) (7). statute, Code Ann. 27-2534.1 — — Gregg Georgia, U. S. SC 859), LE2d the Supreme Court upheld validity Georgia’s seventh statutory aggravating against its rendered our challenge imprecision capital-sentencing system invalid under Eighth (see 51). Fourteenth Amendments fn.
There a question remains as ground to whether might be so vague provide as to notice to inadequate defеndant. The statement raises a question (murder, Where the question, which is: crime in this case) is defined specifically, must aggravating relating punishment circumstances be just specifically defined so as to put person notice as to both the crime and the punishment may which imposed?
Because, view, statute my ground provides 7 of our I adequate notice, do not find it necessary resolve the intervening posed above. question *15 case,
As applicable provides to this as ground § follows: "The of murder . . . offense [Code 26-1101] vile, outrageously wantonly or or inhuman in horrible torture, mind, of or an involved depravity aggravated "torture, The battery victim.” words mind, battery of to the victim” depravity aggravated or in is defined battery reasonably sрecific (aggravated are 26-1305). Code view, sufficiently specific, be ground 7 would my concerned, if it of notice is requirement as the
insofar torture, involved of murder that the offense only provided to the victim. mind, battery an aggravated of or depravity or ("outrageously adjective phrase The addition inhuman”) vile, modifying horrible wantonly of defendant and murder favor operates of offense not, view, unconstitutionally render my ground does of the sentence failing adequate notice vague provide may imposed. which from raised here different legal question
The (7) (224 in Arnold 236 Ga. raised here different from (1976), and the are presented facts I supra. in Banks v. presented those of opinion judgment concur in the therefore court. specially. Justice, concurring
Ingram, Hill his by Justice expressed I view join is said with all that agree not but do concurring opinion Therefore, only I concur court. opinion in the case. rendered judgment majority 31255. COMPANY HILL-HARMON PULPWOOD
et al. v. WALKER et al.
Nichols, Chief Justice. death compensation This is an action for workmen’s pulpwood of a brought benefits the wife children vendor who was killed while a forklift. operating 12, 1971, May accident while the occurred pulpwood and a were his helper hauling deceased dealer, Pulpwood Georgia Company. Hill-Harmon had Casualty Company policy & issued a Surety compensation Pulpwood workmen’s to Hill-Harmon "Hill-Harmon Inc. Company covering Pulpwood, [sic] Pulpwood, Vendors while wood for Hill-Harmon cutting