Lead Opinion
Larry L. Jenkins, Jr. was convicted of the malice murders and
1. The evidence adduced at trial showed that at 8:30 p.m. on January 8, 1993, Terry Ralston and her 15-year-old son Michael left their home in Ms. Ralston’s white Chevy Lumina van to drive to their family-owned laundromat in Jesup in order to collect coins from the machines and otherwise close the store. Two hours later, when they failed to return home, a family member went to the laundromat and discovered the establishment locked but only partially cleaned. The next day the bodies of Terry and Michael Ralston were found lying face down in a ditch near the railroad tracks. Michael had been shot six times from behind at close range, including once in the back of the head. His mother was shot once at the base of the skull. A piece of fresh onion was found next to the bodies. A witness residing in the vicinity where the bodies were discovered testified that she heard shots fired between 9:00 and 10:00 p.m. on January 8.
Witnesses testified that they observed Jenkins driving Ms. Ral-ston’s white van- after 10:30 p.m. on the night of January 8 as he drove around Jesup picking up some friends to go to a club. He picked up David Wilkerson at 11:30 p.m. after Wilkerson’s job shift, ended and picked up Burnies Durden shortly thereafter from an apartment where Durden had been playing cards since 5:00 p.m. Jenkins informed his friends that the van belonged to his mother. Jenkins carried a .22 Grendel magnum pistol and the van contained a duffle bag holding over $600 in quarters. Jenkins drove his friends to a nearby town in the van where they went to a club and spent the night at a woman’s house. The next day, Jenkins discussed the incident with Durden telling him that he had robbed a laundromat and shot and killed a lady and her son with a .22 along some railroad tracks after the boy “started to buck” and the woman began screaming. Jenkins drove the van back to Jesup where he, Durden and Wilkerson placed the quarters in coin wrappers. Jeramon Campbell joined the others and, after being told by Durden about Jenkins’ admission to robbing and killing two people, asked Jenkins if it was true. Jenkins replied that he was “just kidding,” but he later showed Campbell and Durden Michael Ralston’s learner’s permit.
Thereafter, the four men drove around Jesup and tried to cash in the quarters. At one store that Campbell entered, the cashier refused the coins because some people had been robbed the night before and were missing. When questioned by Campbell about this comment, Jenkins did not answer and told Wilkerson, who was driving, to back out so the cashier could not see the van’s license plate number. The police subsequently spotted the van and pulled it over; the passengers escaped on foot, but Wilkerson turned himself in to police at a nearby police station. Rolls of quarters, a clip from a .22 automatic weapon, a sportsbag, a box of .22 cartridges and two onion peels were found in the van. Jenkins threw the murder weapon into some bushes when he ran from the van and
Durden, Wilkerson and Campbell were interrogated separately and each gave corroborating statements about Jenkins’ actions and comments on January 8 and 9. The police were able to establish that none of the men had been with Jenkins or in the white van before 11:30 p.m. on the night of the murders. During the time Jenkins was incarcerated prior to conviction, inmate Curtis Mathis saw and heard Jenkins arguing with another prisoner. According to the inmate, Jenkins told the other prisoner that he had “already killed two [people] and it wouldn’t bother him again if he killed another one.”
The evidence adduced was sufficient to enable a rational trier of fact to find Jenkins guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia,
Pretrial Proceedings
2. Jenkins contends the trial court erred in denying his motion to preclude the State from seeking the death penalty due to the alleged unconstitutionality of the prosecutor’s criterion for determining when to seek it. The record reflects the position of the district attorney to seek the death penalty in every murder case in which there is a statutory aggravating circumstance, with the exception of cases involving outrageously or wantonly vile, horrible or inhuman circumstances, OCGA § 17-10-30 (b) (7), which are evaluated individually.
Absent facts to the contrary, it cannot be assumed that prosecutors will be motivated in their charging decision by factors other than the strength of their case and the likelihood that a jury would impose the death penalty if it convicts.
Gregg, supra,
3. Jenkins contends the trial court erred in changing venue to a county tainted by prejudicial pretrial publicity. Jenkins moved for a change of venue beyond a 50-mile radius due to pretrial publicity in Wayne County. The State conceded there had been prejudicial pretrial publicity in Wayne County and agreed to a venue change, but the
To prevail on his claim, Jenkins had to present sufficient evidence to show that the setting of the trial was inherently prejudicial due to pretrial publicity or that any juror displayed actual prejudice against him. Jones v. State,
4. The trial court correctly denied Jenkins’ request for access to the State’s juror files. Wansley v. State,
5. Jenkins filed a “Motion to Bar Unreliable Testimony of an Informant” before trial, claiming that Curtis Mathis, the inmate who overheard Jenkins say he had killed two people, was unreliable and thus the trial court should suppress Mathis’ testimony. The trial court refused to hold a hearing on Mathis’ credibility and Jenkins asserts that this was error. We disagree. “The credibility of a witness is a matter to be determined by the jury under proper instructions from the court.” OCGA § 24-9-80. In his motion, Jenkins did not claim that Mathis’ testimony violated any rule of evidence or criminal procedure. Instead, the only apparent basis for Jenkins’ motion to suppress is his assertion that jailhouse informants are notoriously unreliable. A witness’s credibility is for the jury to decide and defendants have the right to challenge this credibility through cross-examination. See OCGA § 24-9-64. It was not error for the trial court to refuse to hold a hearing on Mathis’ credibility or to allow Mathis to testify.
6. The trial court correctly denied Jenkins’ request for a separate trial on the issue of mental retardation. OCGA § 17-7-131 (c) (3) requires the jury in a capital trial to determine a defendant’s mental retardation during the guilt/innocence phase. Livingston v. State,
Jury Selection
7. Although Jenkins contends that subsections (a) (4) and (c) of OCGA § 15-12-164 are unconstitutional, we need not consider this enumeration of error because Jenkins lacks standing to challenge these subsections on constitutional grounds. Jefferson v. State,
The proper standard for determining the disqualification of a prospective juror based upon his views on capital punishment “is whether the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ”
Greene v. State,
(a) Juror Hardwick. Hardwick responded to a question about his religious or personal convictions for or against the death penalty by stating, “Either way I’d make my own mind up, an eye for an eye, a tooth for a tooth, something like that.” He stated that he was in favor of the death penalty but he did not think any situation was automatic because “you have to look at the whole picture.” He could consider mitigating evidence and return a life sentence for a murder/kidnapping. He emphasized that he would base his decision on the “total situation” and “the evidence surrounding the whole case.” While he stated that a defendant’s youth and childhood in a broken home would not carry much weight with him, he cited a defendant’s character as a mitigating factor, stated he could fairly consider both a life and a death sentence and that he would follow the court’s instructions. Hardwick’s voir dire responses support the trial court’s decision that the juror’s views would not “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” See Bishop v. State,
(b) Juror Cope. Cope stated he had no personal views for or against the death penalty, would listen to evidence from both sides before making up his mind, would consider age and mental condition as mitigating factors, and could vote for life even if the defendant was convicted of murder. In response to questioning by Jenkins, Cope said that the State would have to prove guilt beyond a “shadow of a doubt” before he would impose the death penalty and then, if absolute guilt is proven, he would sentence the defendant to death. Jenkins further elicited from Cope his belief that age and a broken home would not really change his mind about sentence and that he could not think of any mitigating factors. Upon further questioning, Cope said that life in prison would be one of his decisions unless a death sentence would be more appropriate and that if a defendant was proven guilty of murder beyond a reasonable doubt, he did not know what sentence he would impose because he “would have to be there” in the sentencing phase. The trial court then elicited from Cope that he could lay aside his opinions and follow the law and the trial court’s instructions. Although some answers given by Cope in response to questions about the death penalty were equivocal or ambiguous, this alone does not disqualify a potential juror. Ledford v. State,
(c) Juror Wendel. Wendel stated that he had no personal conviction for or against the death penalty, could recommend either life or death if the defendant was convicted, and would consider mitigation evidence if instructed to by the judge. He said he was not strongly opinionated about the death penalty but he believes in it when “it should be handed out.” When asked by Jenkins if he would only consider the death penalty for someone convicted of the intentional killing of two persons, Wendel responded that he would need more facts, of both the crime and the defendant. The trial court asked Wendel if he would consider age, mental retardation, and family history in his
(d) Jurors Hooten, Phillips and Pierce. Jenkins claims that the statements of prospective jurors Hooten, Phillips and Pierce established that they would give no consideration to mitigation evidence and therefore the trial court should have struck them for cause. We disagree as this contention is unsupported by the record. All three jurors indicated that they could recommend a life sentence and that they would consider mitigation evidence. Jenkins pins much of bis argument on the inability of two of these jurors to list or enunciate mitigating factors that would be important to their sentencing determination. However, “[a] prospective juror’s inability to recite circumstances which might lead her to vote for a life sentence is not disposi-tive of her qualifications to serve as a juror.” Waldrip, supra,
9. Jenkins claims that three jurors were improperly struck for cause due to their inability to consider fairly a death sentence. Witherspoon v. Illinois,
10. The trial court did not err by excusing a prospective juror due to a hearing disability. Bennett v. State,
11. Jenkins contends that the State violated Batson v. Kentucky,
Pretermitting the propriety of the trial court’s ruling on the existence of a prima facie case, we find no error in the trial court’s determination that the explanations articulated by the State were sufficient to rebut a prima facie case of discrimination under Batson and J.E.B. See Davis v. State,
12. Contrary to Jenkins’ contention, the trial court did not improperly restrict the scope of voir dire. Jenkins claims that he was prevented from asking questions to the prospective jurors about the OJ Simpson case, their understanding of the definition of a “life sentence,” whether they would “help” a person with mental difficulties, and how much weight they would give a defendant’s background in sentencing. The record shows that Jenkins was often able to elicit the information he sought by rephrasing the question. Furthermore, the scope of voir dire is largely left to the trial court’s discretion and the voir dire examination in this case was broad enough “ ‘to ascertain the fairness and impartiality of the prospective jurors.’ [Cit.]” Hall v. State,
13. Jenkins claims that the trial court erred by allowing the State to ask a question to two prospective jurors that called for them to prejudge the case. A review of the record shows that the trial court did not abuse its discretion with regard to the scope of the first juror’s voir dire. Id. Moreover, any error would be harmless because the State used one of its peremptory challenges to remove this juror. Jenkins’ argument regarding a question posed to the second juror is waived because he failed to object at trial. Earnest v. State,
14. We find no error in the trial court’s enforcement of a subpoena requiring the defense’s psychological expert, Dr. William Dickinson, to provide to the State copies of Jenkins’ test scores, the psychologist’s answer sheets and WISC III testing manual. Dr. Dickinson tested Jenkins and proffered his opinion that based on his IQ Jenkins was mentally retarded. Jenkins claims that the subpoena exceeded the scope of permissible discovery. The record reveals that Jenkins produced these materials without objection or an attempt to quash the subpoena. It is axiomatic that error not raised in the trial court will not be reviewed on appeal. Earnest, supra,
Guilt/Innocence Phase
15. The trial court did not err by failing to grant a directed verdict on the issue of Jenkins’ mental retardation. A directed verdict was not warranted because the evidence regarding Jenkins’ mental ability was disputed and conflicting. OCGA § 17-9-1 (a).
16. Jenkins contends that the prosecutor made improper and misleading comments regarding Jenkins’ mental retardation during his opening statement and closing argument. Because Jenkins failed to raise any objection to the State’s opening statement, we need only determine whether there is a reasonable probability the improper argument changed the outcome of the trial. Todd v. State,
During both opening statement and closing argument the prosecutor commented on Jenkins’ mental capabilities by referring to his mental “competence.” Jenkins contends that the prosecutor’s use of the term “competence” and references to his ability to distinguish right and wrong when these issues were not relevant to the trial improperly misled the jury as to Jenkins’ claim of mental retardation. Viewed in context, however, we find the prosecutor’s statements were not
We find no error sufficient to overcome Jenkins’ procedural default in failing to object to the State’s opening statement. Id. at (b). We also conclude that the prosecutor’s comments during closing argument, when viewed in context, were relevant to the evidence and within the range of permissible argument. Conner v. State,
17. The jury was properly charged by the trial court that in order to arrive at a finding of “guilty but mentally retarded,” Jenkins had the burden of proving beyond a reasonable doubt that he was mentally retarded. Burgess v. State,
18. Although the trial court examined the State’s file before trial, Jenkins contends that the State withheld exculpatory evidence in violation of Brady v. Maryland,
Jenkins has failed to establish that any of the above evidence, even if exculpatory, was revealed too late to prevent him from receiving a fair trial. See Parks v. State,
19. Jenkins claims that the State violated Giglio v. United States,
20. The trial court did not err by admitting seven photographs of the bodies of Terry and Michael Ralston. The photos were taken before autopsy and depict the nature and location of the victims’ wounds. Photographs of a victim’s body, taken before autopsy, are generally admissible. Baxter v. State,
Sentencing Phase
21. We find no error in the trial court’s refusal to instruct the jury on the meaning of a life sentence. Jones v. State,
22. The trial court did not err by denying Jenkins’ pretrial motions requesting permission to address the jury prior to deliberation in the sentencing phase or, in the alternative, for permission to take the stand and testify but have cross-examination limited to only those issues covered on direct examination. A defendant does not have the right to make an unsworn statement during the sentencing phase of a death penalty trial. Isaacs v. State,
23. Jenkins raises several enumerations regarding the statutory aggravating circumstances.
(a) Among the nine statutory aggravating circumstances on which the jury based its recommendation of the two death sentences were two mutually-supporting aggravating circumstances, namely, that the murder of Terry Ralston took place during the murder of Michael Ralston and that the murder of Michael Ralston took place during the murder of Terry Ralston. OCGA § 17-10-30 (b) (2). The doctrine of mutually-supporting aggravating circumstances precludes the use of one murder to support the death penalty for a second murder and the use of the second murder to support the death penalty for the first murder. Wilson v. State,
(b) Jenkins argues that it was improper for the State to submit statutory aggravating circumstances to the jury when some of the aggravating circumstances were mutually supporting. Jenkins claims that this procedure resulted in an unfair accumulation of aggravating factors that may have prejudiced the jury towards a death verdict. We disagree. A prosecutor is permitted to present all statutory aggravating circumstances supported by the evidence to the jury. See OCGA § 17-10-30 (b) (trial judge “shall include in his instructions to the jury for it to consider . . . any of the following [ten] aggravating circumstances which may be supported by the evidence”). Moreover, Georgia is not a weighing state and juries here are not instructed to view multiple aggravating circumstances more harshly than a single aggravating circumstance or to balance aggravating and mitigating factors. See Simpkins v. State,
(c) Jenkins argues that four of the statutory aggravating circumstances cannot stand because the aggravating offense listed on the jury verdict form is “kidnapping” and not “kidnapping with bodily injury.” Simple kidnapping cannot serve as a statutory aggravating circumstance under OCGA § 17-10-30 (b) (2). Crawford v. State,
(d) Jenkins alleges that the OCGA § 17-10-30 (b) (4) aggravating circumstances, i.e., that the murders were committed for the purpose of receiving money, were subsumed by the (b) (2) aggravating circumstance involving armed robbery. This issue was decided adversely to Jenkins in Simpkins, supra,
24. Jenkins contends that the trial court erred by failing to charge the jury that they could recommend mercy. See OCGA § 17-10-2 (c). The record shows that the trial court instructed jurors that they could consider mitigating evidence or any circumstances in mitigation; that they could return a life sentence for any reason or no reason at all; and that they could consider “feelings of sympathy and mercy that flow from the evidence.” As a whole, the trial court sufficiently instructed the jury on the issues of mercy and mitigation and informed the jury that it could return a life sentence, regardless of the aggravating evidence. Spivey v. State,
25. We find no error in the trial court’s refusal to instruct the jury that they could consider residual doubt of Jenkins’ guilt as a mitigating factor. “It is well-settled that a trial court is not required in its charge to ‘identify mitigating circumstances offered by the defendant.’ [Cit.]” Taylor v. State,
26. The trial court did not err by refusing to give several of Jenkins’ requested jury charges in the sentencing phase. As to Jenkins’ requested charge that lack of unanimity by the jury would result in a life sentence, it is well settled that a trial court is not required to charge the jury about the consequences of deadlock. Burgess, supra,
27. Jenkins complains thát the State made three improper statements during the closing argument in the penalty phase.
(a) The State argued that sentencing Jenkins to death “tells anybody that
(b) The prosecutor began his opening statement in the guilt/innocence phase with a quote he attributed to a former judge: “When I go to bed at night, I dream that life is beauty, and when I wake up in the morning, I find that life is duty.” The prosecutor repeated this quote at the start of his closing argument in the sentencing phase and added:
[the quote] illustrates where we are and what we are here to do today, and that is to do our duty. We are to discuss and think about and decide on something for everyone in this courtroom. So deep, and serious, and important that it requires all our best effort.
At the conclusion of his closing argument, the prosecutor again repeated the former judge’s quote and added, “I ask you to do your duty.”
Jenkins complains that these comments constituted an improper argument on the “war on crime” and amounted to a statement telling the jury that it was their duty to convict him. We disagree. The duty argument, viewed as a whole, is best characterized as the prosecutor’s attempt to impress upon the jury the gravity and importance of their sentencing task. The State is “afforded ‘considerable latitude in imagery and illustration’ in reminding the jury of its responsibilities in enforcing the law. [Cits.]” Id.
(c) A defendant’s lack of remorse is a permissible area of argument during the sentencing phase of a capital trial. Carr v. State,
28. Jenkins’ argument that execution by electrocution is unconstitutional under the Federal or State constitutions has previously been ruled upon and resolved adversely to him. Stripling v. State,
29. The sentence of death in this case was not imposed under the influence of passion, prejudice, or any other arbitrary factor. OCGA § 17-10-35 (c) (1). The death sentence is also not excessive or disproportionate to the sentences imposed in similar cases, considering both the crimes and the defendant. OCGA § 17-10-35 (c) (3). The similar cases listed in the Appendix support the imposition of the death penalty in this case in that these cases involved one or more deliberate, unprovoked killings during a kidnapping with bodily injury and/ or armed robbery and show that juries are willing to impose the death penalty under these circumstances.
Judgment affirmed.
Appendix.
Bishop v. State,
Notes
The crimes occurred on January 8, 1993. Jenkins was indicted by the Wayne County grand jury for malice murder (two counts), felony murder (two counts), kidnapping with bodily injury (two counts), armed robbery, burglary, theft by receiving and theft by taking (two counts) on January 25, 1993. On June 9, 1993 the State filed a notice of intent to seek the death penalty. On September 29, 1995, the jury found Jenkins guilty of the malice murders, kidnappings, armed robbery, and theft counts; the trial court directed a verdict of acquittal on the burglary charge. The trial court merged one count of theft by taking into the armed robbery and merged the theft by receiving into the remaining count of theft by taking. The following day, the jury returned its recommendation of a death sentence for each murder count, and the trial court imposed that sentence, plus three life sentences for the kidnappings and armed robbery and ten years for the theft by taking, all sentences to be served consecutively. Jenkins’ motion for new trial, filed October 30, 1995 and amended on July 6, 1996 and October 9, 1996, was denied on January 16, 1997. Jenkins filed a notice of appeal to this Court on February 11, 1997. The case was orally argued on October 20, 1997.
In State v. Blanks, Indictment No. 8352, a previous unrelated death penalty pre-trial proceeding conducted in Glynn County on October 30, 1991, this prosecutor stated:
We have gone to great lengths in this community, in this circuit, as this Court has and all the judges have, to eliminate the race of a defendant, the race of a juror, the race of a victim as being any issue in the trial of this case. It makes no difference.
The only question that is asked in a death penalty case is, Do you have a statutory aggravating circumstance other than the — I guess it’s (b) (7) — cruel and inhumane, involving torture one? If the answer is yes, the death penalty is sought. If the answer is no, the death penalty cannot be sought.
The record in this case only contains a few pages of the pretrial hearing transcript from the previous case. The trial court, though, did review the particular transcript in its entirety before ruling that Jenkins had failed to show that the method of selecting death penalty cases was unconstitutional.
The trial court took judicial notice that Wayne County receives its news primarily from Savannah and Glynn County receives its news primarily from Glynn County (Brunswick) and Jacksonville, Florida.
Witherspoon v. Illinois,
It is apparent from the testimony of trial witnesses that Michael Woods (with Jenkins) had been a suspect in the burglary of a home where several guns, including the murder weapon, were stolen.
Before trial, the State provided Jenkins with a list of witnesses resulting from its investigation. These witnesses were on that list.
The jury was also provided with a copy of the court’s charge during their deliberations.
Dissenting Opinion
dissenting.
1.1 dissent to divisions 6 and 17 because I conclude that requiring a capital defendant to prove mental retardation beyond a reasonable doubt in the guilt-innocence phase is fundamentally unfair and I would hold that the issue should be resolved in a pre-trial hearing with “preponderance of the evidence” as the burden of proof.
(a) The question in this case is whether “procedures for guaranteeing a fundamental constitutional right are sufficiently protective
Because the classification of mental retardation is a modern concept, there can be no precision in determining the historical procedural burden. The common law idea most closely related to mental retardation is “idiocy.”
A review of contemporary practice, however, provides more guidance. Currently 11 states plus the federal government expressly prohibit the execution of the mentally retarded.
The fact that other jurisdictions almost uniformly use a standard significantly more protective of defendant’s rights strongly supports the conclusion that Georgia’s reasonable doubt standard is unconstitutional. As the United States Supreme Court noted in Cooper, “[t]he near-uniform application of a standard that is more protective of the defendant’s rights . . . supports our conclusion that the heightened standard offends a principle of justice that is deeply ‘rooted in the traditions and conscience of our people.’ ”
The final consideration is whether the operation of the rule demonstrates “fundamental fairness.”
These considerations convince me that the beyond a reasonable doubt standard is fundamentally unfair, and, consistent with the majority of states that also prohibit execution of the mentally retarded, I would require the defendant to meet his burden by a preponderance of the evidence.
Leland v. Oregon,
(b) In division 6, the majority upholds the denial of a request for a pre-trial hearing on the issue of mental retardation. Jenkins contends that by forcing a defendant to try a sentencing issue in the guilt-innocence phase, Georgia’s procedure fails to accord the protections recognized as vital in
2.1 also dissent to division 23 (d) because under the facts of this case it is neither logical nor fair to charge both the (b) (4) and (b) (2) aggravating circumstances since they refer to identical aspects of the crime.
I am authorized to state that Chief Justice Benham joins in this dissent.
Cooper v. Oklahoma,
Fleming v. Zant,
O.C.G.A. § 17-7-131 (j).
That the United States Supreme Court reached a different conclusion in Penry v. Lynaugh,
Cooper, 116 SC at 1377 (“Historical practice is probative of whether a procedural rule can be characterized as fundamental.”), quoting Medina v. California,
Id. at 1380.
Id. at 1380, quoting Medina,
See Penry,
See id. at 331-333 and Cooper, 116 SC at 1377-1378.
Cooper, 116 SC at 1378.
Leland v. Oregon, 343 U.S. 790, 797, n. 14 (72 SC 1002, 96 LE 1302) (1952).
See statutes cited in n. 14. Nine of these states have passed these provisions since the Penry decision. See Penry,
Ark. Stat. Ann. §§ 5-4-618 (d) (2); Colo. Rev. Stat. §§ 16-9-402, 16-9-403 (2); O.C.G.A. § 17-7-131 (c) (3), (j); Ind. Code Ann. §§ 35-36-9-4, 35-36-9-6; Kan. Stat. Ann. § 21-4623 (d); Ky. Rev. Stat. Ann. §§ 532.140, 532.135 (2); Md. Code Ann. Crim. Law (Art. 27) § 412 (g); N.M. Stat. Ann. § 31-20A-2.1 (C); N.Y. Crim. Proc. § 22-B 400.27 (12) (c) and (e); Tenn. Code Ann. § 39-13-203 (c); Wash. Rev. Code § 10.95.030 (2); 18 U.S.C. § 3596 (c) and 21 U.S.C. § 848 (1).
Colo. Rev. Stat. § 16-9-402 (2) and Ind. Code Ann. § 35-36-9-4 (clear and convincing). The standard of proof is not specified by statute in Kansas, Kentucky, or the federal courts and research has not revealed any cases on the issue.
See discussion infra at 1 (b).
Cooper, 116 SC at 1380, quoting Medina,
Cooper, 116 SC at 1380, quoting Medina,
Id. at 1382.
Addington v. Texas,
O.C.G.A. § 17-7-131 (j) (finding of mental retardation requires imposition of life sen-tone©)
O.C.G.A. § 17-7-131 (a) (3).
Leland,
Leland,
See State v. Wallace,
Most jurisdictions provide for separate hearing pre-trial or pre-sentencing. Ark. Stat. Ann. § 5-4-618 (d) (2); Colo. Rev. Stat. § 16-9-402 (2); O.C.G.A. § 17-7-131; Ind. Code Ann. § 35-36-9-5; Kan. Stat. Ann. § 21-4623 (d); Ky. Rev. Stat. Ann. § 532.135 (2); N.M. Stat. Ann. § 31-20A-2.1 (C); N.Y. Crim. Proc. § 22-B 400.27 (12) (e). See also State v. Smith,
See Simpkins v. State,