*1 similarity. prior of Until without additional evidence of a conviction today, a defendant’s held that it is error to admit we have never similarity. guilty plea simply there is additional evidence of because prior convictions, is not limited to of similar crimes Evidence if illustrative of relevant issues in a evidence can be admitted such subsequent criminal trial. underlying purpose humanitarian of the First Offender Act by prohibiting guilty plea completely the State’s of a served use requiring proof prior of the defendant’s
connection with conviction. issue prior Although convictions, Ms. Davis has no it does not prior not commit a criminal offense. The First follow that she did Act was never intended to insulate the defendant from all Offender of Georgia consequences violating of the criminal laws of and to guilty prohibit guished pose using plea, the State from a first offender as distin- evidentiary pur- record, from the first offender for relevant allegedly subsequent defendant commit a similar should the prior guilty plea Here, offense. conviction of a was not offered to show Ms. Davis’ any offense, for to show that she admitted commission but aggravated majority, previous I assault with knife. Unlike part proof that this admissible as of the State’s believe evidence was aggravated prior of Ms. Davis’ commission of a similar to court assault which was being now tried. the trial for which she was Since question properly evidence, admitted the of harmless error arises. never
I in this that Justice Hines am authorized to state Hunstein and Justice join special concurrence. 2, 1998 Decided March April 2,1998.
Reconsideration denied appellant. Baverman, Alan J. Attorney, Nancy Charron, Bernes, I.
Thomas J. District Debra H. Attorneys, Jordan, Cole, A. Assistant District Thurbert E. Thomas Attorney Attorney Baker, General, Smith, Paula K. Senior Assistant Goldberg, Attorney appel- General, General, for Allison B. Assistant lee. THE
S97P1474. JENKINS v. STATE. Justice. Hunstein, Larry Jenkins, L. Jr. convicted of the malice murders and bodily injury robbery Terry kidnappings and armed of Ralston, theft recommended Michael coins. The $600 finding following murders, two sentences for the nine aggravating circumstances: the murder of Michael Ralston was com- during kidnapping mitted commission commission of a and in the kidnapping, robbery Terry murder, of the and armed Ralston; Terry murder of Ralston was committed the commission of a kidnapping kidnapping and in the commission of the murder and *2 pur- Ralston; Michael pose and that each murder was committed for the (b) receiving money. (2), OCGA 17-10-30 The trial court appeals.1 sentenced Jenkins to death and Jenkins We affirm. p.m. 1. The evidence adduced at trial showed that at 8:30 on Jan- uary Terry 15-year-old 8, 1993, Ralston and her son Michael left Chevy their home in Ms. Ralston’s white Lumina van to drive to their family-owned Jesup laundromat in in order to collect coins from the they machines and otherwise close the store. later, Two hours when family failed home, to return member went to the laundromat and only partially discovered the establishment locked but cleaned. The day Terry lying next face the bodies of and Michael Ralston were found
down a ditch near the railroad tracks. Michael had been shot range, including six times from behind at close once in the back of the piece head. His mother was shot once at the base of the skull. A residing fresh onion was found next to the bodies. witness in the vicinity where bodies were discovered testified that she heard p.m. January shots fired between 9:00 and 10:00 on 8. they driving
Witnesses testified that observed Jenkins Ms. Ral- p.m. night January ston’s white van- after 10:30 on the 8 as he Jesup picking up go picked drove around some friends to to a He club. shift, up p.m. job David Wilkerson at 11:30 after Wilkerson’s ended picked up shortly apartment Burnies Durden thereafter from an playing p.m. where Durden had been cards since 5:00 belonged informed his friends that the van to his mother. Jenkins magnum pistol carried a .22 Grendel and the van contained a duffle bag holding quarters. over $600 Jenkins drove his friends to a 8, January by Wayne County The crimes occurred on 1993. Jenkins was indicted (two (two grand jury counts), felony counts), kidnapping for malice murder murder with bod (two ily injury counts), (two robbery, burglary, by receiving by taking armed theft and theft counts) 25, January 9, on 1993. On June 1993 the State filed a notice of intent to seek the 29, 1995, penalty. September guilty murders, On found Jenkins of the malice kidnappings, robbery, counts; acquittal armed and theft the trial court directed a verdict of burglary charge. merged by taking on the The trial court one count of theft into the armed robbery merged by receiving remaining by taking. the theft into the count of theft following day, returned its recommendation of a death sentence for each murder count, sentence, imposed plus kidnap and the trial court three life sentences for the pings robbery years by taking, and armed and ten for the theft all sentences to be served consecutively. trial, July 6, Jenkins’ motion for new filed October 1995 and amended on 9, 1996, January 16, appeal 1996 and October was denied on 1997. Jenkins filed a notice of February 11, orally argued to this Court on 1997. The case was on October 1997. spent
nearby in the where went to a club town van day, night the inci- at a house. The next Jenkins discussed woman’s telling a laundromat and Durden him that he had robbed dent with lady along a .22 some railroad and killed a and her son with shot began boy and the woman scream- tracks after the ing. “started to buck” Jesup he, where Durden and Wil- Jenkins drove the van back to Campbell placed quarters wrappers. in coin Jeramon kerson being joined and, told Durden about Jenkins’ the others after robbing killing people, if asked Jenkins it was admission to two “just kidding,” replied but he later showed true. Jenkins that he was permit. Campbell and Durden Michael Ralston’s learner’s Jesup and tried to cash in Thereafter, the four men drove around quarters. Campbell entered, the cashier refused the the coins because some were Jenkins did not answer and told At one store night
people had been robbed the before and missing. questioned by Campbell comment, about this When driving,
Wilkerson, to back who was plate out could not see the van’s license number. The so cashier police subsequently spotted pulled passen- over; the van and it gers escaped nearby police foot, but Wilkerson turned himself at a quarters, clip
police from a .22 automatic station. Rolls of *3 cartridges peels weapon, sportsbag, a box of .22 and two onion were weapon in found bushes when he ran from the van and the van. Jenkins threw the murder into some dropped backpack which con- quarters. day in he was arrested later that tained police When $142 permit pocket. in discovered Michael Ralston’s learner’s Campbell interrogated separately Durden, Wilkerson and gave corroborating and each statements about Jenkins’ actions January police comments on none of the men had been with Jenkins or 8 and 9. The were able to establish that the white van before p.m. night During 11:30 on the of the murders. the time Jenkins was prior conviction, incarcerated inmate Curtis Mathis saw and heard arguing prisoner. According inmate, Jenkins kins told the other with another to the Jen-
prisoner “already [people] that he had killed two again him if and it wouldn’t bother he killed another one.” The evidence adduced was sufficient to enable a rational trier of beyond guilty charged fact to find Jenkins of the crimes a reasonable Virginia, 2781, 443 U. SC 61 LE2d doubt. Jackson (1979). S. 307 Proceedings Pretrial denying 2. Jenkins contends the trial court erred his motion to alleged preclude unconstitutionality seeking penalty the State from the death due to the prosecutor’s determining criterion for position it. The reflects the of the district attor- when to seek record ney seek the death penalty in every murder case which there is a statutory aggravating circumstance, with the exception cases involving outrageously or wantonly vile, horrible or inhuman circum- (b) stances, OCGA (7), 17-10-30 which are evaluated individually.2 Jenkins argues that a system where a prosecutor automatically seeks the death if penalty certain statutory aggravating circum- stances are present is as arbitrary and unconstitutional as a mandatory sentencing scheme. See Woodson Carolina, v. North 944) (1976) (statute U. S. 280 SC providing for mandatory death sentence for certain crimes struck down as uncon- stitutional). Compare Gregg v. Georgia, 428 U. S. 859) (1976) 2909, 49 LE2d (appellant that exercise of claimed prosecutorial discretion made imposition of death sentence wanton and capricious). We disagree. prosecutor’s decision to seek the death penalty is limited by the jury’s ultimate decision impose it. McClain v.
has not produced any proof that the district attorney is motivated by anything other than the strength of the evidence.3
Absent facts to the it contrary, cannot be assumed pros- ecutors will be motivated in their charging decision fac- tors other than the strength of their case and the likelihood that a jury would impose the death if it convicts.
Gregg, supra, 428 U. S. (White, J., at 225 concurring). The U. S. Con stitution and Georgia law authorize the death penalty for Jenkins’ crimes and Jenkins has failed to show that the prosecutor acted in an unconstitutional manner with respect to his Statee, case. Rower v. Ga. 323
3. Jenkins contends the trial court erred in changing venue to a county tainted by prejudicial pretrial publicity. Jenkins moved for a change of beyond venue a 50-mile radius due to pretrial publicity Wayne County. The State conceded there had been prejudicial pre- *4 2 Blanks, In State v. previous penalty Indictment No. a pre-trial unrelated death proceeding Glynn County 30, 1991, conducted prosecutor on October this stated: gone great lengths We have community, circuit, to in this in this as this Court has judges have, and all defendant, the to eliminate juror, the race of a the race of a the being any race of a victim as issue in the trial of this case. It makes no difference. only question is, The penalty you that is asked in a statutory death case Do have a — — aggravating (b) (7) guess circumstance other than the I it’s cruel and inhu- mane, involving yes, torture one? If the penalty sought. answer is the death is If the no, answer is sought. the death cannot be 3 only The pages record in this pretrial hearing case transcript contains few of the previous court, from the though, case. particular The trial transcript did review the in its entirety ruling before that Jenkins had selecting failed to show that the method of penalty cases was unconstitutional.
286 agreed and to a venue but Wayne County change, publicity trial the agreement on the location of the unable to reach parties (a) that the (1), OCGA 17-7-150 the court ruled trial. Pursuant Glynn County. The court noted neighboring trial moved to would be mar- their news from different media that counties receive the two breakdown, kets,4 County and is conve- Glynn racial have a similar that ruling Jenkins asserts this nient to the and witnesses. parties are miles the coun- only apart, seats 40 county was error because border, Glynn jurors 13 prospective County ties a common and share had familiar with the case. heard about or were claim,
To his Jenkins had to sufficient evi- present prevail inherently prejudicial dence of the trial was setting to show that any juror due to actual displayed prejudice or that pretrial publicity (1) (a) (481 against him. Jones v. inherently Jenkins that it would be only proffered by evidence county’s that
prejudicial Glynn County proxim- to have the trial in that had ity County admission there Wayne prosecutor’s evidence, This County. been prejudicial Wayne pretrial publicity there have by itself, assertion that must support does Jenkins’ Glynn County. into With regard been “spill-over” prejudice that only actual the record reveals 13 of by bias prospective jurors, news prospective hearing any remember about jurors could memories of had crimes; only sketchy most of these had what jurors case; a fixed been none had formed about reported; opinion due any jurors for cause to pretrial Jenkins did not move to strike (3) Id.; publicity. Woodbury v. setting either that the trial proof Because there was no
Glynn that there actual County inherently prejudicial was court its bias on the did not abuse discretion part jurors, County. venue to changing Glynn 4. The trial court denied Jenkins’ for access to correctly request Ga. 624 juror Wansley State’s files. 5. to Bar of an Testimony Jenkins filed “Motion Unreliable trial, Mathis, Informant” before that Curtis inmate who claiming say overheard Jenkins he had killed two was unreliable people, testimony. thus the trial court The trial suppress should Mathis’ court credibility refused to hold a on Mathis’ and Jenkins hearing credibility asserts disagree. this was error. We “The a witness is a proper matter to be determined under instructions motion, from In did not the court.” OCGA 24-9-80. judicial Wayne County primarily its The trial court took receives news notice (Bruns Glynn primarily Glynn County County from Savannah and its news from receives wick) Jacksonville, Florida. *5 claim that Mathis’ testimony violated any rule of evidence or crimi- nal 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 decide and defend- ants have the right this challenge credibility through cross-exami- nation. See OCGA 24-9-64. It was not § error for the trial court to refuse to hold a on hearing Mathis’ credibility or to allow Mathis to testify.
6. The trial court correctly denied Jenkins’ request for a separate trial on the (c) (3) issue of mental retardation. OCGA 17-7-131 § requires the capital to determine a defendant’s mental retardation guilt/innocence phase. Livingston Ga. 402
Jury Selection (a) (4) 7. Although (c) Jenkins contends that subsections OCGA 15-12-164 this unconstitutional, are we need not consider enumeration of error because Jenkins lacks standing to challenge these subsections on constitutional grounds. Jefferson Ga. 821 The death qualification voir dire in this case was more extensive and detailed than that provided by (a) (4) OCGA 15-12-164 and the record indicates that no potential juror was excused from or serving declared competent to serve based (a) (4) solely his or her answer to the statutory question.
8. Jenkins argues the trial court failed to strike six prospec- tive jurors who were predisposed the death penalty and could not consider mitigating evidence.
The proper standard for determining disqualification of a prospective juror based upon his views on capital punish- ment “is whether juror’s views would ‘prevent or sub- stantially impair the performance of his duties as a juror in ” accordance with his instructions and his oath.’ Greene v. The disqualifi- cation of a potential juror need not appear with unmistakable clarity but a juror’s specific answers during voir dire are not to be taken out of context because voir dire is viewed as a whole. Id. at 48-49. Appel- late give courts deference to a trial court’s decision regarding the qualification of a juror. Id.
(a) Juror Hardwick. Hardwick responded to a question about his or religious personal convictions for against the death penalty by stating, “Either way I’d make my own mind up, an for an eye eye, a tooth, tooth for a something like that.” He stated that he was in favor of the death penalty but he did not think any situation was auto- He could con- picture.” have to look at the whole “you
matic because
a life sentence for a murder/kid-
evidence
return
mitigating
sider
on the “total
He
that he would base his decision
emphasized
napping.
case.” While he
surrounding
situation” and “the evidence
whole
home
youth
that a defendant’s
and childhood
a broken
stated
him,
char-
much
he cited a defendant’s
carry
weight
would
factor,
he could
consider both a life
fairly
acter as a
stated
mitigating
*6
and that he would follow the court’s instruc-
and a death sentence
deci-
voir dire
court’s
responses
support
tions. Hardwick’s
substantially
not
or
juror’s
“prevent
impair
sion that the
views would
his
juror
of his duties as a
accordance with
performance
(6) (486
and his oath.” See
(b) he for Cope. Cope personal Juror stated had no views or the death would listen to from both sides against penalty, evidence mind, would consider and mental condition making up age before factors, if defendant mitigating as and could vote for life even was Jenkins, of murder. In to response questioning by Cope convicted said beyond the State would have to a “shadow of a doubt” prove guilt then, before he would the death if absolute impose penalty guilt he further would sentence defendant to death. Jenkins proven, age elicited from his belief that and a broken home would not Cope his mind he think really change about sentence and that could not further said that life any mitigating Upon questioning, Cope factors. would be one of his decisions unless a death sentence would prison more if a proven guilty be defendant was appropriate doubt, murder he did beyond reasonable not know what sentence he because he “would there” in the sentenc- impose would have be ing lay The trial court then elicited from that he could phase. Cope opinions aside his and follow the law and the trial court’s instruc- Although given by tions. some answers Cope response questions the death penalty equivocal ambiguous, about or this alone does disqualify potential juror. not Ledford whole, Viewing the voir dire as a the trial court did its discretion by refusing juror abuse strike this on reverse- at Witherspoon5 grounds. Bishop, supra, 268 Ga.
(c) Juror
stated that
had no personal
Wendel. Wendel
he
convic-
tion for or
could
either life or
against
penalty,
death
recommend
convicted,
death if the defendant
consider mitigation
would
if instructed to
He
he was not
judge.
strongly
evidence
said
in it
“it
opinionated
penalty
about
the death
but he believes
when
Illinois,
Witherspoon v.
(d) Phillips Hooten, Jurors and Pierce. Jenkins claims that the prospective jurors Phillips statements of Hooten, and Pierce estab- give mitigation lished that would no consideration to evidence *7 and therefore the trial court should have struck them for cause. We disagree unsupported by as this contention is the record. All three jurors they indicated that could recommend a life sentence and that they mitigation pins would consider bis evidence. Jenkins much of argument inability jurors on the two these to list or enunciate mitigating important sentencing factors that would be to their deter- “[a] prospective juror’s inability However, mination. to recite circum- might disposi- stances which lead her to vote for a life sentence is not qualifications juror.” Waldrip, supra, tive her to serve as a 267 Ga. (8) (a). by refusing at 739 The trial court did not abuse its discretion jurors Bishop, supra. to excuse these for cause. jurors improperly
9. Jenkins claims that three
struck for
inability
fairly
cause due to their
to consider
a death sentence.
(88
776)
Witherspoon
Illinois,
v.
10. The trial court did not err
a
due
(2) (414
disability.
hearing
explanations articulated the State were suffi- prima discrimination under Batson and facie case of State, J.E.B. See Davis v. Ga. 5 they jurors prosecutor explained that he struck six of the because imposing penalty. pro- expressed the death “A had reservations about juror’s imposition spective to the of the death conscientious aversion adequate justify peremptory strike in a sentence is an reason to 78) death-penalty (1992). Tharpe case.” jurors they had Two were struck because had relatives who history attorney’s prosecuted The criminal been the district office. family sufficiently jus- prospective juror’s of a is a neutral reason to tify supra; peremptory Davis, Batton v. strike. See (1990). Mental retardation an issue in jurors that it struck the case and the State stated two because “ discriminatory mentally impaired. had children who were intent is inherent in the . . . the reason offered will be deemed race neutral.’ ‘Unless *8 explanation [for proponent’s strike], a [Cits.]” Jackson 699) (1995). (2) (463 sup- State, the record 265 Ga. SE2d As striking gender ports neutral reasons for the State’s race and jurors question, find error. we no Contrary contention, did not
12. to Jenkins’ the trial court improperly scope that he was restrict the of voir dire. Jenkins claims asking prospective jurors prevented questions about the from to case, OJ their Simpson of the definition understanding of a “life sen- tence,” whether they would “help” person difficulties, with mental much weight how give would defendant’s background sentencing. record shows that Jenkins was often to able elicit the information he sought by rephrasing question. Furthermore, of voir dire is scope largely left to the trial court’s discretion and the “ voir dire examination in this case ascertain was broad enough ‘to the fairness and impartiality of the prospective jurors.’ [Cit.]” Hall v. 128) (1989). 259 Ga.
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 regard to the scope juror’s the first Moreover, voir dire. Id. any error would be harmless because the State used one of its peremptory challenges to juror. remove this Jen- kins’ argument regarding a question posed to the second juror waived because he failed to object at trial. Earnest v. 262 Ga.
14. We find no error in the trial court’s enforcement of a sub- poena requiring defense’s Dr. psychological expert, William Dick- inson, to provide to the State copies scores, of Jenkins’ test the psy- chologist’s answer sheets III WISC testing manual. Dr. Dickinson tested Jenkins and proffered opinion that based on his IQ Jenkins mentally was retarded. Jenkins claims that the subpoena exceeded the scope of permissible discovery. The record reveals that produced these materials without objection or an attempt quash the It subpoena. is axiomatic that error not raised in the trial court Earnest, will not be reviewed on appeal. supra, Ga. 494 at
Guilt/Innocence Phase 15. The trial court did not err by failing to grant directed ver- dict on the issue of Jenkins’ mental retardation. directed verdict was warranted because the evidence regarding Jenkins’ mental (a). ability disputed conflicting. OCGA 17-9-1 16. Jenkins contends that the prosecutor made improper misleading comments regarding Jenkins’ mental retardation his opening statement and closing argument. Because Jenkins failed raise objection statement, the State’s opening need only we determine whether there is a probability reasonable the improper argument changed the outcome of the trial. Todd v. (2) (a) (410 both
During opening statement and closing argument the prose- cutor commented on Jenkins’ mental capabilities by to his referring
292
prosecutor’s
“competence.”
use of
contends that the
Jenkins
mental
the term
right
ability
distinguish
“competence”
references to his
to
wrong
not
to the trial
these issues were
relevant
when
jury
improperly
mental retarda-
as to Jenkins’ claim of
misled the
prosecutor’s
context, however, we find the
statements
tion. Viewed
were not
tor’s overall
part
prosecu-
designed
of the
to confuse
but
argument
evidenced a mental
that Jenkins’ conduct
capability
mental retardation.
inconsistent with
procedural
error sufficient to overcome Jenkins’
We find no
(b).
failing
object
opening
Id. at
to the State’s
statement.
default in
during closing
prosecutor’s
comments
We also conclude
argument,
context,
were relevant to the evidence and
when viewed
range
permissible argument.
of
Conner v.
251 Ga.
within the
(303
(6)
SE2d
charged by
properly
that in
The
the trial court
order
17.
was
mentally
finding
“guilty
retarded,”
a
of
but
Jenkins had
to arrive at
the burden
tally
beyond
proving
men-
of
a reasonable doubt that he was
680)
(36)
Burgess State,
retarded.
(1994).
Although
trial,
trial
file
18.
court examined the State’s
before
exculpatory
contends that the State withheld
evidence
Jenkins
violation
Brady Maryland,
1194, 10 LE2d
Jenkins has failed to establish that of the above exculpatory, prevent if revealed too late to him from receiv- even ing a fair trial. See Parks v. deputy’s provided at trial and Jen- notes were to Jenkins being deputy suspect kins cross-examined the about Michael Woods early investigation.6 Brady not exist in the violation does where sought by the defendant at trial. the information becomes available 191) (1996). Similarly, State, 266 dur- Davis v. ing case, the trial court trial of the defense counsel was informed Jenkins) (with testimony apparent that Michael Woods It is from the of trial witnesses burglary guns, including suspect the murder had in the of a home where several been weapon, were stolen. Durden, testimony inconsistencies between Wilker- Campbell previous son and and their written statements. Jenkins’ error as claims of to the witnesses who saw white van and Wil- with the gun unavailing kerson are as the reveals transcript testify called at thus defense these witnesses trial and upon to be their clearly had aware of substance of testimony before find no Brady Parks, supra. Id.; trial.7 We violation. Giglio v. United
19.
claims that
State violated
104) (1972)
States,
20. trial court did not err seven of photographs the Michael Terry photos bodies Ralston. The were taken the autopsy depict before nature and location of the victims’ Photographs body, wounds. of a victim’s taken before are autopsy, (8) (a) (331 generally admissible. Baxter SE2d 561) (1985). The were not relevant and photographs duplicative.
Sentencing Phase
find
the
21. We
no error in
refusal
to
the
court’s
instruct
(1)
of a life sentence. Jones v.
meaning
on
Likewise,
parole eligibility
defendant’s
Phil
life
is
an
is
cases where
without
inadmissible.
parole
option
trial,
resulting
provided
its
Before
State
Jenkins with a list
witnesses
from
investigation. These witnesses
on that list.
were
158)
(1997); Burgess, supra,
State,
pot Carolina, v. South reliance on Simmons Jenkins’ at 788 264 Ga. (1994), Bur misplaced. 2187, 512 U. S. supra. gess, Jenkins’ by denying pretrial not err trial court did
22. The to delibera- jury prior to address requesting permission motions alternative, or, for permission in the sentencing phase tion only limited to cross-examination testify but have the stand take does not A defendant on direct examination. issues covered those sentencing during statement to make an unsworn right have the 717, 737 trial. Isaacs v. death penalty of a phase “[i]f but may testify, choose defendant and may as other witness testifies, any he shall be sworn defendant 24- other witness.” OCGA as examined and cross-examined be (b). 9-20 statutory regarding enumerations Jenkins raises several
23. circumstances. aggravating
(a) circumstances statutory aggravating nine Among the death sentences recommendation of two based its which circumstances, namely, aggravating mutually-supporting two the murder of during Ralston took Terry place the murder of took place the murder of Michael Ralston Michael Ralston and (b) (2). The 17-10-30 Terry murder of Ralston. OCGA pre- circumstances mutually-supporting aggravating doctrine for a sec- murder the death support cludes the use of one *11 murder to the support murder and the use of the second ond for the first murder. Wilson statutory aggravat- set aside the Accordingly, we during Ralston occurred that the murder of Michael circumstance ing However, reversal of either death Ralston. no Terry the murder of that each death sentence we find sentence is because required circumstances. statutory aggravating valid remains based on other Id.
(b) it for the State to submit improper Jenkins that was argues of the jury to the when some circumstances statutory aggravating Jenkins mutually supporting. circumstances aggravating in an unfair accumulation of resulted procedure claims that this jury the towards may that have prejudiced factors aggravating all present to disagree. prosecutor permitted death verdict. We the evidence supported circumstances statutory aggravating (b) (trial include in his judge 17-10-30 “shall jury. the See OCGA § following the any to consider . . . of jury to the for it instructions the evi- may supported by which be circumstances aggravating [ten] dence”). state and here Moreover, weighing juries is not a Georgia more circumstances aggravating to view multiple are not instructed or harshly single aggravating aggra- than a circumstance to balance (2) and factors. See vating mitigating Simpkins Ga. (c) statutory Jenkins that four of the circum- argues aggravating cannot stand the listed aggravating stances because offense on the form is and not jury “kidnapping” “kidnapping bodily verdict with cannot injury.” Simple kidnapping statutory aggravating serve as (b) (2). circumstance under OCGA 17-10-30 § Crawford 567) record, however, Ga. 435 the supports bodily of with as to the four statu- jury’s finding kidnapping injury The indictment tory aggravating specifies bodily circumstances. that harm was done to the victims and the trial kidnappings in chargéd jury guilt/innocence court both the and sentencing bodily with out the phases kidnapping injury, specifically setting elements of with We therefore conclude kidnapping bodily injury.8 bodily injury that convicted Jenkins of with and kidnapping found as a offense for each kidnapping bodily injury supporting (b) (2) aggravating OCGA 17-10-30 circumstance. Accord Potts v. (11th ((b) (2) Zant, aggravating 734 F2d Cir. circum- involving “kidnapping” any stance invalid where court omitted reference to in “bodily injury” guilt/innocence sentencing phase jury charge).
(d) (b) (4) Jenkins that the OCGA 17-10-30 alleges aggravating circumstances, i.e., that the committed for the purpose murders were (b) (2) money, aggravating were subsumed circum- receiving adversely armed issue decided involving robbery. stance This (2), at 220 we held that Simpkins, supra, which (b) (b) (4) statutory and distinct separate subsections refer to (b) (4) circumstances; aggravating circumstance ref- aggravating (b) (2) to the and the circum- killing aggravating ers motive for refers to the manner in which the was killed. Simpkins, stance victim case, under of this the evidence Simpkins, As facts supra. (b) (2) (b) (4) cir- finding aggravating authorized both cumstances. by failing
24. Jenkins contends that the trial court erred 17- charge they mercy. that could recommend See OCGA § (c). jurors 10-2 The record shows that the trial court instructed could consider circumstances miti- they mitigating any evidence or no rea- they could return a life sentence for reason gation; all; son at and that “feelings sympathy could consider *12 whole, the trial suffi- mercy that flow from the evidence.” As a court mercy mitigation instructed the on the issues of ciently jury jury charge during provided copy their The was also with a of the court’s deliberations. sentence, return a life regardless informed the that it could jury State, Spivey SE2d aggravating the evidence. find no error in the trial court’s refusal to instruct the 25. We as a guilt that could consider residual doubt of Jenkins’ jury they not required factor. “It is well-settled that a court is mitigating ‘identify mitigating by circumstances offered the charge its Taylor [Cit.]” defendant.’ 255)
(1991).
err
several of Jen
by refusing
give
26. The trial court did not
in the
As to Jenkins’
requested jury charges
sentencing phase.
kins’
in a
charge
unanimity by
jury
that lack of
the
would result
requested
sentence,
required
life
it is well settled that a trial court is not
Burgess,
about the
of deadlock.
charge
consequences
supra,
Harris v.
(35);
27. Jenkins thát the State made three complains improper state- ments in the closing argument penalty phase.
(a) The State
that
argued
sentencing
any-
Jenkins to death “tells
body that wants to follow in his
will not stand for
footsteps
we
in this
community
community.”
argument
other
This
McClain,
(b) The his statement in the prosecutor began opening guilt/inno- cence I phase quote judge: go with a he attributed to a former “When I night, to bed at dream that life is I wake beauty, up when I find that life is this morning, duty.” prosecutor repeated at the in the quote closing argument sentencing phase start and added: here to quote]
[the illustrates where we are and what we are today, duty. do and that is to do our We are to discuss and think something everyone about and decide on this
297 serious, and that it deep, important courtroom. So all our effort. best requires again the closing argument, prosecutor
At the conclusion of his added, “I to do you your the former ask repeated judge’s quote duty.” comments constituted an improper that these complains statement telling on the “war on crime” and amounted to a
argument duty to convict him. We jury duty disagree. that it was their whole, prosecu- as a is best characterized as the argument, viewed upon gravity importance tor’s attempt impress in task. The State is “afforded ‘considerable latitude sentencing their in reminding responsibilities and illustration’ of its imagery Id. enforcing [Cits.]” the law. (c) argu- A defendant’s lack of remorse is a area of permissible State, a Carr v. 267 sentencing phase capital ment trial. (d) (480 583) (1997). SE2d Ga. 547 electrocution is uncon- argument
28. Jenkins’ execution previously under the Federal or State constitutions has stitutional State, Stripling ruled and resolved to him. v. upon adversely been 1 261 Ga. SE2d in this case was not under the imposed
29. The sentence of death arbitrary other factor. OCGA passion, prejudice, influence of (c) (1). is also not excessive or dispro- 17-10-35 The death sentence cases, considering to the sentences similar portionate imposed (c) (3). The and the defendant. OCGA 17-10-35 sim- both crimes listed in the of the death Appendix support imposition ilar cases in that these cases involved one or more deliber- this case penalty and/ ate, killings during kidnapping bodily injury a unprovoked willing impose are robbery juries or armed and show under these circumstances. concur, Benham, J.,C. except All the Justices Judgment affirmed. Fletcher, J, P. who dissent. Appendix. (486 887) State, (1997); v. State, v. 268 286 SE2d Carr
Bishop
Ga.
583)
(480
State,
739
(1997);
v.
267 Ga.
Waldrip
Fletcher, 1.1 dissent to divisions 6 and 17 because I conclude that requir- ing capital defendant prove mental retardation beyond reason- able 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 this case is whether “procedures guaran teeing a fundamental constitutional right are sufficiently protective of that right.”9 This Court previously has held that subjecting men tally retarded defendant to the death penalty offends prohibition *14 in the Georgia Constitution against cruel and unusual punishment.10 11 A right rooted in our state constitution and protected by statute is certainly “fundamental.”12 Jenkins argues that using “beyond a rea sonable doubt” as the burden of proof to establish mental retardation fails to this protect right. this Although Mosher v. State13 addresses issue, analysis further convinces me that we decided this issue incor rectly in that In case. order to determine whether a procedural rule governing a fundamental constitutional right sufficiently protects that right, we must look at the historical14 and contemporary pract ice,15 as well as whether the operation of the rule demonstrates “fun damental fairness.”16
Because the classification of mental retardation is a modern con-
cept, there can
precision
be no
in determining the historical procedu-
ral burden. The common law idea most closely related to mental
retardation
“idiocy.”17
is
That concept also encompasses the distinct
issues of insanity and competency to stand trial
that
employ
courts
today.18 In Cooper Oklahoma,19
v.
the United States
Court
Supreme
9
(116
Cooper Oklahoma,
1373,
498) (1996).
1383,
dance. of the other retarded.21 None mentally of the the execution prohibit mentally retarded execution of that prohibit jurisdictions two Only does Georgia.22 doubt as beyond a reasonable require proof a preponder- than higher standard proof by require jurisdictions Geor- difference between significant Another of the evidence.23 ance Georgia places that is jurisdictions and that of other procedure gia’s in the guilt-innocence the defendant standard highest this phase.24 a standard uniformly use almost jurisdictions
The fact that other strongly supports rights of defendant’s more protective significantly is unconsti- standard reasonable doubt Georgia’s that the conclusion “[t]he in Cooper, Court noted Supreme United States As the tutional. of the more protective of a standard that is application near-uniform the heightened . . our conclusion rights supports . defendant’s in the ‘rooted deeply justice principle offends standard ”25 people.’ conscience of our traditions and the rule dem- operation is whether The final consideration determination we making In this fairness.”26 “fundamental onstrates defendant,27 recognizing of the state the interests must balance *15 attached importance “indicated] the relative proof of the burden 20 (72 1002, 790, 797, LE Oregon, 14 SC 96 U.S. n. Leland v. 343 21 the passed provisions since these of these states have cited in n. 14. Nine See statutes Georgia only (Noting Penry, that at time of decision at 334 Penry See 492 U.S. decision. retarded). the Dis mentally 12 states and Another Maryland prohibited execution of the the law. Columbia have no trict of 22 (d) 16-9-402, (2); (2); 16-9-403 O.C.G.A. Rev. Stat. §§ Colo. §§ Ark. Stat. Ann. 5-4-618 (d); (c) 35-36-9-4, 35-36-9-6; Ann. 21-4623 (3), (j); § Kan. Stat. Ann. §§ Ind. Code 17-7-131 § (Art. 27) (g); 532.140, (2); 412 § Ann. Crim. Law Md. Code Ky. Ann. 532.135 §§ Rev. Stat. (12) (c) (e); Tenn. Code (C); Proc. 22-B 400.27 § 31-20A-2.1 N.Y. Crim. § Stat. Ann. N.M. (c) (2); and 21 U.S.C. (c); § 18 U.S.C. 3596 10.95.030 § Wash. Rev. Code Ann. 39-13-203 § (1). 848 § 23 (clear convincing). Ann. 35-36-9-4 § and Ind. Code Rev. Stat. 16-9-402 Colo. Kansas, Kentucky, the federal courts by proof specified statute in is not The standard of the issue. cases on research has not revealed 24 (b). 1 See infra at discussion 25 Medina, 1380, quoting U.S. at 445. Cooper, 505 116 SC at Medina, 1380, 448. quoting 505 U.S. at Cooper, 116 SC at 27 Id. at 1382. consequences
to the ultimate decision.”28The anof erroneous deci- the hand, sion for defendant are obvious and critical. On the other an way incorrect in no decision frustrates state’s interest enforc- ing punishing laws;29 its criminal laws or in of violators those at punishment. most, the will not able state be to exact the ultimate through wrong Furthermore, feigning the risk of a decision the defendant’s highest justify mental retardation does not resort to the bur- proof. pro- retardation, den of To establish mental a defendant must expert significant subaverage duce evidence of intellectual function- ing, subaverage functioning well as as evidence that the results in or impairments adaptive is associated with behavior and that the impairment developmental period.30 behavior manifested Georgia’s requirement retardation, narrow definition mental expert testimony, and the fact that the defendant bears the burden protect preventing issue is sufficient to state’s interest in malingerers feigning from mental retardation. beyond
These considerations me convince that the a reasonable fundamentally unfair, and, doubt standard consistent with the majority prohibit mentally of states that also execution of the require by pre- retarded, I would the defendant to meet burden a ponderance of the evidence. Oregon,31 upheld requiring
Leland v. which the defendant beyond prove insanity require doubt, a reasonable does a differ- Insanity, proved, ent result. if would relieve the defendant of crimi- responsibility punishing nal for Thus, his act.32 the state’s interest in entirely, pres- criminal law violations would be frustrated unlike the punishment ent case where the state’s interest in is satisfied imposition Additionally, proving of a life sentence. the standard for insanity Oregon at the time of the Leland decision much less stringent Georgia’s requirements than current to establish mental retardation.33 (b) majority upholds request 6, In division the denial of a pre-trial hearing on the issue of mental retardation. Jenkins con- by forcing try sentencing
tends
guilt-innocence
a defendant
issue
Georgia’s
phase,
procedure
protec-
fails to accord the
Addington
Texas,
418,
441 U.S.
(j) (finding
O.C.G.A.
requires imposition
§ 17-7-131
of mental retardation
of life sen-
tone©)
(a) (3).
O.C.G.A. 17-7-131
31Leland,
contrast,
By
Georgia requires
at
insanity
343 U.S.
790.
prove
a defendant
preponderance
446),
evidence. Lawrence v.
312-313
*16
denied,
200,
cert.
301 Although majority v. Gregg Georgia.34 as vital in recognized tions specifically that case did not address on Livingston relies State,35 record developed raises. The challenge the constitutional was decided on case, Livingston this which was available when in this review, procedure. out the inherent problems interim bears Furthermore, prove the defendant jurisdiction requires no other Finally, the merit phase.36 guilt-innocence mental retardation it pre- is obvious: determination, require, of a as other states pre-trial the trial confusion, may vastly simplify reduces prejudice, vents of the case. (d) 23 because under facts this
2.1 also dissent division (b) (4) (b) (2) charge fair to both the logical case it is neither nor refer to identical aggravating aspects circumstances since crime.37 joins in
I to state that Chief Justice Benham this am authorized dissent. February 23, 1998 Decided April 2,1998.
Reconsiderations denied Schiavone, Jackson, Williams, Pattie J. Terry Jackson & G. Howard, Bennett, Cars- Carswell & Kenneth R. Steven L. Sparger, well, appellant. for III, Assis- Kelley, Attorney, District John B. Johnson
Stephen D.
Baker,
General,
E.
Susan V.
Attorney,
Attorney
District
Thurhert
tant
Whitaker,
General,
R.
Beth
Attorney
Paige
Senior Assistant
Boleyn,
General, for
Attaway,
Attorneys
appellee.
Assistant
34
859) (1976).
2909,
U.S.
SC
428
153
hearing
pre-sentencing.
jurisdictions provide
separate
pre-trial
Ark. Stat.
Most
(d)
(2);
17-7-131;
(2);
Rev.
O.C.G.A.
Ind. Code Ann.
§
§
Ann.
5-4-618
Colo.
Stat.
16-9-402
§
(2);
35-36-9-5;
(d); Ky.
Kan.
Ann.
Rev. Stat. Ann. 532.135
N.M. Stat. Ann.
§
§
Stat.
21-4623
(e).
Smith,
(C);
See
v.
denied,
893 S.W.2d
Crim. Proc. 22-B 400.27
also State
§
908, 916,
(116
31-20A-2.1
N.Y.
(Tenn. 1994)
(preferable
hearing),
pre-trial
have
cert.