*1 402 THE LIVINGSTON v. STATE.
S94A0277. THE WALDRIP v. STATE.
S94A0279. THE WALDRIP v. STATE.
S94A0280. (444 748) Sears-Collins, Justice. in appeal interim a case which the state is granted
This is a Kelly Liv- seeking penalty against co-defendants Howard Tommy Waldrip. Waldrip, Mark and Lee OCGA 17- ingston, John 10-35.1. Livingston Kelly
S94A0277. Howard Livingston argues denying 1. the trial court erred his mo- prohibit offering impact victim evidence at the tion to the state trial, him sentencing phase guilty should the find of the crimes charged. Additionally, Livingston appeals the trial court’s denial of his constitutional attack and other related attacks on OCGA 17-10- evidence, 1.2, admissibility governs impact of victim legislative apply amended the 1993 session to to death cases.
(a)
Maryland,
In Booth v.
2529,
Four
handing
after
down its decision
the U. S.
Booth,
Tennessee,
part,2
Court overruled
501
720)
2597, 115
(1991). Apparently
U. S. 808
SC
LE2d
responding
recognized
(1988),
This court
in Moon v.
to a current “nationwide ‘victim’s (Scalia, J., at 2613 concurring), Eighth Court held that the prohibition against punishment Amendment cruel and unusual does per evidence, not erect se bar to the admission of victim may legitimately that a “State conclude that evidence about the vic tim and about the of the murder on the victim’s is rele *2 vant jury’s penalty decision as to whether or not the death imposed.”4 should be 111 SC at 2609.
(b) We agree
Supreme
with the United States
Court’s assessment
in
Eighth
prohibition
that
Amendment
against cruel and
punishment
unusual
per
does not erect a
se bar to the introduction of
evidence,
Sermons,
impact
287,
all victim
see
262 Ga. at
and with that
Court’s
determination that victim
evidence can be admissible.
However,
recognize
we also
that under certain circumstances victim
impact evidence could render a defendant’s
fundamentally
trial
un-
arbitrary imposition
fair and could lead to the
penalty.
of the death
3
support
depart
Booth,
Payne explained
In
of its
decision
Court in
that
virtually
placed
mitigating
capital
while
limits are
no
on the relevant
evidence
may
circumstances,
concerning
defendant
introduce
his own
the State is barred from
offering
glimpse
extinguish,”
either
“a
of the life” which a defendant “chose to
or
demonstrating
society
the loss to the victim’s
and to
which have resulted
from the defendant’s homicide.
(Citation omitted.) Payne,
Court,
perceived inequity,
111 SC at 2607. Faced with this
in
keep
true,”
2609,
order “to
111
balance
SC at
held that it is not unconstitutional for the
proffer
uniqueness
state to
evidence of the
of the victim
in
as an individual
order to show the
“specific
by
[defendant],”
harm caused
111 SC at 2608. As it is the defendant who is on
is, therefore, subject
imposition
trial in a
murder case and who
to the
of the death
penalty,
agree
Georgia
required
we cannot
that
courts are
to maintain some sort of “balance”
penalty prosecution.
between the victim
and the defendant
a death
This rationale would
law,
long-standing Georgia
be inconsistent with
doctrine with
which has never embraced a “tit-for-tat”
respect
fact,
rights.
point
to defendants’ and victims’
In
it has been a funda-
legal
founding
country
mental
proved guilty beyond
tenet since the
of this
that a criminal defendant must be
establishing
guilt.
a reasonable doubt based on evidence
his
“[T]he
grants
rights
imposes special
Constitution
certain
to the criminal defendant and
limitations
designed
protect
overreaching by
disproportionately
on the State
powerful
the individual from
Payne,
(Stevens, J.,
Furthermore,
dissenting).
great many
State.”
111 SC 2627
weighted
Georgia
of evidence are also
“[r]ules
the
the defendant’s favor.” Id. We find
that
admitting
phase
sentencing
penalty
rationale for
victim
evidence in the
of a death
prosecution
culpability,
may
is that the evidence
reflect on the defendant’s
there-
Francis,
(308
sentencing
Godfrey
652,
fore be relevant to the
decision. See
251 Ga.
806) (1983);
State,
168) (1985).
SE2d
Alderman v.
254 Ga.
SE2d
legislative
allowing
Prior to the 1993
amendment
the admission
victim
evi
penalty cases,
recognized
Payne,
dence
death
this court
decision
but held that Geor
gia case law
precludes
testimony
sentencing
penalty
the introduction of
at the
trial
a death
[of
specific purpose
demonstrating
personal
case]
characteristics of the
of the crime on the
emotional,
psychological,
physical impact
victim and the
community.
victims’ families and
Sermons,
State,
holding
(d) does not result help that victim evidence To ensure we hold that the trial arbitrary imposition penalty, of the death admissibility of victim prior rule to trial on the must hear and court course, will, necessitate This sought to be offered. impact evidence which notify state the defendant of victim that the offer, notify the defend- require and will the trial court intends to prospective questions, any, if it intends to ask of the state’s ant of the of the days prior to trial. At the conclusion witnesses at least ten trial, may any the trial court reconsider guilt-innocence phase of admissibility impact evi- of victim pre-trial regarding decision dence.
(e) he is the crimes with which Livingston argues that because of OCGA 17-10- prior to the effective date charged were committed post facto 1.2, an ex application the statute to his case constitutes X. Const., Art. Sec. Par. We do of 1983 Ga. law violation scope of evidence OCGA 17-10-1.2 modified the agree. It did not case. sentencing at a a death
be offered
and,
by the
punishment,
as construed
degree
the manner or
affect
court,
Livingston
rights conferred on
did not alter
substantive
Todd v.
such,
post
ex
facto law.
it is not an unconstitutional
law. As
this and this concern the in denying that the trial court erred his Livingston
3. contends trial, innocence, or separate guilt before his trial on to motion for a However, he allegation mentally that is retarded. we find address his provided jury in legislature error the has that the no because trial guilt determines “at the time of the on innocence” Zant, Fleming v. mentally retarded. Ga. whether the defendant 687, 339) (1989); (j). OCGA 17-7-131 Livingston argues that because the issue of mental retardation sentence,” to his death it be “solely” “eligibility relates for a must apart relating guilt from issues and evidence to or inno- considered However, jury. we held prejudicing cence to avoid the have that evi- “may probative charged highly to the crime be relating dence [a materially question mental to abilities relevant the defendant’s] Foster, Zant mentally of whether or not he is retarded.” 74) (1991) (overruled grounds 451-452 on other Patillo, 259, 261, (1992)). State v. Ga. n. Livingston’s We find no merit in on related attacks OCGA 17- 7-131. there advantages While be to criminal defendant hav- ing apart phase a trial from guilt-innocence the on the issue of mental retardation, a change such must come from the Assembly. General John Waldrip
S94A0279. Mark 4. Waldrip’s John first adopt Mark two enumerations of error arguments Livingston regard of Howard with right to the state’s discovery and the admission evidence. These issues were opinion. decided Divisions 1 and this
5. Waldrip argues also that the trial court erred his denying motion to “enjoin” family victim’s showing emotion courtroom, require family and to the victim’s to sit friends where jury see cannot them.
In October the trial court entered an requiring order attorney notify family district “any that must it avoid display visible or disruptive” audible of emotion would that to trial proceedings. The trial court such disruptive concluded should courtroom, behavior place take court appropri- would take response ate measures. December to additional defense motions, the trial court entered a order denying requests second have the family them, victim’s sit where cannot see the trial court warn against disruptive courtroom behav- ior. The attorney trial court reiterated that explain district would acceptable courtroom behavior to the family, victim’s and concluded if the defendants became aware objectionable on behavior part spectators, they bring court could to the attention of the court and action curative would be taken. *5 nothing
Waldrip points dis- which indicates that the record to likely ruptive Further, he cites no author- at trial. is to occur behavior imposed. suggests prophylactic ity We should be measures he for presented by case, the action this that, circumstances hold under the appropriate. by is the trial court taken Waldrip Tommy Lee
S94A0280. Tommy Waldrip only error, Lee con- In his enumeration 6. suppress denying his motion to trial court erred tends that the body. discovery of the victim’s County Waldrip’s
Following arrest, made the Sheriff of Dawson help locating plea Miranda him the victim. No an emotional Waldrip response warnings given. the sheriff left made no and were the room. Waldrip jailer
Early morning, a that he wished next informed Waldrip jail speak cell, When the sheriff went to his to the sheriff. happened.” The sheriff he needed to talk about “what had stated that replied Waldrip time, would interview at another that someone else Waldrip locating then the victim. and that he was described the interested general could be found. No area which given during warnings Miranda were this interview. Waldrip. agents
Approximately GBI interviewed two hours later Waldrip signed They warnings a waiver of administered Miranda and agénts Waldrip agreed rights During interview to take the form. this body. Waldrip tape-recorded he statement that to the victim’s was them to where the victim was buried. made freely voluntarily, accompanying agents and then led Waldrip argues sheriff, made that because his statement leading warnings, provided Miranda information without benefit of discovery body, this discov- evidence of officers to the ery additionally suppressed. argues his statement to must be He that failing voluntary, the trial court erred the sheriff was not and that alleged mental illness de- I.Q. his consider evidence of low; voluntary. termining his statements were whether comprehensive order, that because the trial court ruled preceded by Waldrip’s warnings, Miranda to the sheriff was not statement However, concluded be excluded. the trial court must agents, preceded Waldrip’s Mi- GBI which was that randa statement to voluntary warnings, Because this and admissible at trial. was Waldrip’s voluntary, motion statement the trial court also denied was body. suppress discovery of the victim’s interrogation conduct custodial Where law enforcement officers pre- warnings, suspect Miranda there is a of a without the benefit of compelled, sumption suspect’s and Miranda answers are that the Arizona, S. (1966), U. SC 16 LE2d dictates However, they suppressed. suspect where the given later Miranda warnings, admissibility subsequent statement whether, circumstances, turns on under all the that statement was knowingly voluntarily Oregon Elstad, made. 470 U. S. 84 LE2d if suspect Further made the initial voluntarily, statement the fact preceded that it was not by Mi randa warnings will subsequent taint a voluntary statement which had the benefit of those warnings. Id. at 318.
Thus, the trial correctly court ruled Waldrip’s initial state- ment to the sheriff must be excluded. Because the *6 supports record trial court’s finding Waldrip’s that both statement to the sheriff and his statement to made, the GBI were voluntarily the trial court did in ruling not err that Waldrip’s statement to the GBI agents could be Likewise, admitted evidence. because the discovery of the victim’s body was the Waldrip’s voluntary statement, “fruit” of it need not be suppressed. Zant, Wilson 373, (1982). 378
The record shows that the trial court considered evidence of Waldrip’s I.Q. alleged and mental illness in determining whether his voluntarily However, statements were made. regardless suspect’s of a state, police mental activity “coercive necessary is a predicate to the finding that confession ‘voluntary’ is not within meaning [his] the Due Process Clause of the Fourteenth Amendment.” Colorado v. Connelly, 157, 479 U. S. 515, SC 93 LE2d As there is no police evidence of activity case, coercive in this Waldrip’s contention that his statements were voluntary under the Four- teenth Amendment must fail. Judgment All the concur, Justices except J., Carley, affirmed.
who specially, Benham, concurs J., P. who dissents. Justice, concurring.
Fletcher,
I fully concur with
majority opinion.
I
separately
write
stress that
v. Tennessee,
2597,
sentencing proceeding as to render it fundamentally unfair, defendant appropriate seek relief under the Due Process Clause of the Fourteenth Amendment. (O’Connor, J.,
Id. at 2612 concurring); see also id. at 2608. With those considerations, background Assembly the General attempted has narrowly permit draft OCGA 17-10-1.2 “only such a manner degree and to such a as not to inflame (a) unduly (1). prejudice jury.” Id. at Georgia’s attorneys district are skilled the law believe they duty understand that of the state’s “in attorney a criminal prosecution is not that shall win a justice case but that [the state] shall be done.” Evidence which unduly “inflames or prejudices the jury” violates due and denies the accused’s constitutionally protected rights pronounced by both Supreme Court and this mind, court. With this I urge attorneys district cautiously ap- proach the use of such victim evidence. It benefits neither the victim, the family, public victim’s nor the if advocacy successful re- sults in irrelevant, the admission of prejudicial inflammatory evi- dence require which will then new sentencing trials and further un- duly delay finality penalty death cases. Justice, concurring specially. Carley, Tennessee, 501 U. S. 720) (1991),
LE2d States, Court of the overruling United prior cases, its held that may legitimately State conclude that
[a] evidence about the victim and about of the murder on the victim’s family is relevant to the jury’s decision as to whether or not imposed. should be There is no reason to *7 treat such evidence differently than other relevant evidence is treated.
In so holding, recognized Court potential the inherent injustice for by preclusion created impact victim evidence. virtually placed no limits are on the
[W]hile relevant miti- gating capital evidence a defendant introduce concern- ing circumstances, his own the State is barred from either offering glimpse “a of the life” which a defendant “chose to extinguish,” [cit.], or demonstrating the loss to the victim’s family society and to which have resulted from the defend- ant’s homicide. [act of]
Payne Tennessee, 111 SC at 2607. Payne decided,
After was Assembly General of Georgia amended OCGA 17-10-1.2 so as to authorize the admission of § vic- impact tim in capital evidence cases. It is the duty limited of this court now to construe OCGA 17-10-1.2 in accordance with the legis- §
lative intent which prompted its I agree amendment. major- with the 17-10-1.2 is constitutional ity’s conclusion that OCGA ultimate § however, agree, pre- I not with the our state constitution. do under majority bases its ultimate conclusion. The fun- upon mise which the analysis I is evi- perceive majority’s error which damental Therein, by opinion. majority rejects of its denced footnote 3 construing OCGA 17- underlying rationale of as a basis for § predicates statutory exclusively its construction 10-1.2 and instead upon upon “long-standing Georgia law” and decisions former former admitting victim evi- explicating of this court “rationale penalty prosecution.” sentencing phase in the of a death dence rationales, Notwithstanding any provisions former or the Su- preme Court of the United States has now removed a constitutional impediment to the admission of victim evidence and an effort change has since undertaken through legislature’s our law been responsibility give amendment of OCGA 17-10-1.2. It is our ef- § change applicable statutory fect to that accordance with rules of construction. “ my opinion, keep was with clear intent ‘to the balance ” legislature true’ that our amended OCGA 17-10-1.2 and author- § ized the admission of cases this Tennessee, Accordingly, state. SC at 2609. it is with that intent, rationales, provisions accordance with former this court must now construe OCGA 17-10-1.2. submit § majority opinion give legislative fails to full effect to that intent and, reason, I specially. for that concur certainly OCGA 17-10-1.2 must be construed connection Const,
with Art. Sec. Par. I of the Ga. provides: person deprived “No shall life . .. except process due of law.” However, nothing prohibits OCGA 17-10-1.2 the defendant who has been guilty introducing found of murder from evidence in mitiga- tion of his sentence. The upon focus of victim evidence is not murderer, himself, the convicted upon family the victim his society. The due clause of neither the federal nor our Constitution renders inadmissible evidence which is otherwise rele- vant as
offering glimpse “a of the life” which a defendant “chose to extinguish,” [cit.], demonstrating the loss to the victim’s society and to which have resulted from the defend- ant’s homicide. [act of]
Payne Tennessee, v. Indeed, very purpose SC at 2607. of vic- tim very evidence is to counteract range mitigat- broad ing evidence which the defendánt is authorized to introduce under “ process accused, ‘[J]ustice, due clause. though due to the is due concept to the accuser also. The of fairness must not be strained till it ” keep Payne is narrowed to a filament. We are to the balance true.’ Tennessee, range SC at 2609. To counteract that broad of miti- evidence, state, gating through legislature, a its may properly conclude that the jury meaning- for to assess fully blameworthiness, culpability the defendant’s moral phase it should have before it at sentencing evidence of specific by harm caused the defendant. State has “[T]he legitimate a interest in counteracting mitigating in, put by which the defendant is reminding entitled just sentencer that as the murderer should be considered as individual, an so the victim an too individual whose death a represents unique society loss to particular to his family.” [Cit.]
(Emphasis Tennessee, supplied.) Payne v. 111 SC at 2608.
Thus, it is “unique loss” caused a defendant’s act of mur- der which our legislature has determined to be a sentencing relevant If factor. evidence relates to the “unique resulting loss” from the victim, murder of the then that evidence does not relate to a constitu- tionally impermissible factor under the due clause and its ad- mission would not render a fundamentally unfair. v. Ten- nessee, 111 SC at 2608. is an affront to the civilized members of the human race
“[I]t say sentencing capital case, that at parade a of wit- may praise nesses background, character good deeds , . . relevancy, without limitation as to [the] [defendant. nothing may of, upon be said that bears the character imposed, the harm upon victims.” [the] [Cit.] Tennessee, 111 SC at 2609. OCGA 17-10-1.2 must also be construed in connection with Const, Art. Sec. Par. XXV of the Ga. provides: “The social status of a citizen shall subject legisla- never be the However, tion.” certainly social status of a citizen is not the “sub- ject” of contrary, OCGA 17-10-1.2. To “subject” “uniqueness” regard- statute is the and all murder victims less of their social status. encourage compar- evidence is not offered to [V]ictim — judgments instance,
ative of this kind that the killer of hardworking parent penalty, devoted deserves the death but that the reprobate murderer of a does not. It is designed to show instead each “uniqueness victim’s as an individual *9 the loss to the jury might think being,” whatever the human be. The facts of community might from his death resulting Gathers[, S. SC Carolina v.] 490 U. [South of this: (1989)] are an excellent illustration LE2d work, the victim was an out of showed that the evidence not, individual, eyes in the perhaps mentally handicapped society, nonetheless a most, significant a contributor being. murdered human Tennessee, 111 SC at 2607. original.) Payne v.
(Emphasis disparate Thus, purport does not to authorize OCGA 17-10-1.2 § upon the social status of sentencing treatment of murderers based evidentiary treat- equal purports It to authorize their victims. ment for murder victims their social status. To that notwithstanding “ ‘a end, the State to offer evidence of OCGA 17-10-1.2 authorizes § [cit.], extinguish,’ glimpse of the life’ which a defendant ‘chose society resulted . . . the loss to the victim’s and to which have Tennessee, Payne v. SC from the defendant’s homicide.” [act of] “ a defendant ‘chose to extin- glimpse at 2607. of the life’ which ‘[A] ” guish’ certainly may upon have occasion to touch wealth, class, ethnicity, religion, his his his educational his race or him factors which made background or number of other imposing A 17-10-1.2 as “unique” individual. construction of OCGA § af- preclusion a blanket on the admission of such evidence would “ ” “unique” individual jury glimpse ford the of the life’ of the ‘[a] murdered, turning who was has the effect of phase stranger the victim into a “faceless at the of a trial,” full deprives . . . the State of the [cit.] [and] may prevent from moral force of its evidence and having necessary before it all the information to determine proper punishment first-degree for a murder. Tennessee, v. 111 SC at 2608. Accordingly, preclude state constitution does not admis- juries sion of such evidence under OCGA 17-10-1.2. That different § may return different sentences for different defendants who have murdered different victims is no reason to construe OCGA 17-10- 1.2 preclude any jury hearing so as to all the relevant evidence regarding imposed upon specific the actual defendant sentence to be unique for the murder of a individual. generally rules of evidence extant at federal and
“[T]he state levels relevant, anticipate unprivileged factfinder, weight should be admitted and its left to the who contrary would have the ev- benefit of cross examination idence the opposing party.” [Cit.] Tennessee, Payne at 2607.
The function this court is not to legislation, rewrite but to con- legislation conformity strue that with the legislative intent with Accordingly, which was enacted. I agree while that OCGA 17-10- unconstitutional, 1.2 is not I cannot majority’s rewriting concur intent, of that statute so as to legislative thwart which was to authorize the admission of victim evidence in accordance with the broad mandate the decision of Court Tennessee. Justice,
Benham, Presiding dissenting. While I opinion find Division 1 of the majority to be a valiant far-reaching effort to curtail effect of Georgia’s *10 statute,8 I respectfully statement must separately dissent and write to point out the unconstitutionality catastrophic statute’s and the effect the impact admission of victim will statements have our to on efforts every assure a fair defendant. majority opinion, Tennessee,
The in reliance on v. (111 2597, (1991), U. S. 808 SC LE2d holds that the victim impact Eighth statement statute is constitutional under the Amend- ment the United U. Supreme States Constitution. Since the S. Court is to spoken, entitled the last word on issue I am that and has compelled agree. However, opinion the majority holds the also that Georgia statute is valid under the holding Constitution. It is that with which take issue.
Some background
impact
information on the victim
statement
necessary
statute is
fully
we
par-
understand
how
have reached this
In
arena,
ticular
the
signifi-
cross-road.
federal
there have been three
developments
concerning
admissibility
cant
impact
of victim
496,
2529,
In Booth v. Maryland,
statements.
S.
482 U.
SC
440) (1987),
Supreme
96 LE2d
the United States
Court forbade
statements,
holding
use
victim
that
such a statement
purpose
no
jury
other
than
inflame the
and divert it
“serve[s]
deciding the
on the
concerning
case
relevant evidence
the crime and
the defendant.” The
found
court
the statement
to be offensive to
protections
Eighth
impermissible
Amendment
because
“creates an
capital sentencing
arbitrary
risk that
in
decision will be made
an
manner.” Id. at 505. Booth
South
was followed
Carolina
Gath-
ers,
876) (1989),
gation, and
guilty
pleas
or
pleas
criminal convictions
prior
....
defendant
contendere of the
of nolo
impact statement
made of the victim
was
mention whatsoever
No
crime on the
effects of the
testimony concerning
psychological
Second,
17-10-
community.
OCGA
victim,
family or the
“except in cases
part
1.1,
provided
pertinent
enacted
. . .
imposed
must be
or the death
imprisonment
life
determining
impact statement
a victim
judge
consider
(1)
State,
Third,
Sermons v.
1. In impact state- As it relates to the victim competing interests. between of the statute, right to balance the legislature sought has ment the state to human- right of against have a fair trial defendant to determine whether judiciary The of the is ize the victim. role requirements. constitutional comports struck with balance to consider the constitutional- I to do this dissent is What seek Georgia’s under constitu- statement statute ity of the victim decision, opportu- numerous our court has had the Booth tion. Since of our own light statement the victim nities to consider we I conclude that to do so. can but we have failed constitution to be consistent holding the Booth we found have not acted because Sermons, the issue of supra, In we decided with our own constitution. statutory law Georgia’s of on the basis the victim statement
415 reaching issue, than rather the state constitutional a course consistent our of practice reaching with not constitutional issues unless neces- Todd v. (2) sary. 205 363 Ga. SE2d On occasions have Georgia give several we said that can its citi- under rights zens more its own than provided constitution are under deciding the United Constitution.9 In States under our constitution equal law, whether all victims should stand we before must draw well-spring Georgia history, keeping mind that Georgia which, is one of the original thirteen colonies unlike subsequently- strength formed states which drew from the central government, fur- nished to the strength government central from our storehouse of rights. so, in doing But we did not leave our state cup- constitutional completely board bare entirely protection and bereft of for our own citizens. fact, duty we judges interpret have sworn our own con-
stitution not merely blindly and to follow the interpretation given the Therefore, federal my constitution.10 what I seek to do in dissent is to breathe life into own constitution merely and treat as some placed relic to be only. Accordingly, museum for viewing any ref- erence to support positions federal decisions in of the I take is merely purposes, for instructive and illustrative and is not intended as au- thority take, I positions authority for the I for which find in the Georgia Constitution.
Four paragraphs of Art. Sec. I Georgia of the Constitution are pertinent II, to this consideration: & Pars. XVII XXV.
(a) Life, liberty, property. and person life, deprived
No shall be liberty, prop- erty except by due of law. 9 See, Miller, 547) e.g., (1990) (finding State v. 1983 provides Amendment); protection Constitution broader than the First Green v. (1990) (finding grants right against Ga. State Constitution a broader Constitution); Zant, Fleming v. self-incrimination than the U. S. Ga. 339) (1989) (holding guarantee punishment against state constitutional cruel and unusual standard). extensive federal
more than constitutional Justices; compensation OCGA 15-2-3. Oath of (a) duties, entering discharge shall Before on the of their the Justices take the prescribed judges superior courts, along required oath with all oaths other for civil officers. judges OCGA Oath of 15-6-6. justice respect person equal I “I will swear that administer without and do rights faithfully poor impartially discharge and the rich and that will and perform judge superior and state, on courts all duties incumbent me as of this my ability understanding, according agreeably to the best of laws and Constitution this state the Constitution the United States. So help me God.” *12 416 I, 1983, I, Par. I. Sec. Const.
Ga. Art. trial, penalty the state phase of a death sentencing During the circumstances statutory aggravating any of the may offer evidence Addition- to OCGA 17-10-30. pursuant in the indictment alleged § circumstances “any mitigating to consider ally, jury the is authorized authorized circumstances otherwise [non-statutory] aggravating or (b). However, may not offer evi- the state 17-10-30 OCGA law.” § due penalty the death imposition would result the dence which OCGA 17-10- arbitrary other factor.” “passion, prejudice, § I. S. Const., Par. As the U. (c) (1); Art. Sec. 1983 Ga. 35 (96 2909, Georgia, 428 U. S. 153, 49 Gregg v. 189 stated Court suitably di- 859) (1976), jury] must be discretion the “that LE2d [of wholly arbitrary and minimize the risk of so as to rected and limited capricious action.” non- mitigating and permitted to consider Georgia, jury
In of the de- relating to “the character statutory evidence aggravating Ford v. the crime on trial.” circumstances of . . . and the fendant Stephens, Zant v. 258) (1987); State, 461, SE2d 257 Ga. 1) (1982). pur- these Evidence admitted for Ga. whether to determining jury’s discretion poses serves to narrow punish- issue of it is relevant to the impose the death because particular defendant on by the specific crime committed ment for Horton See, 249 Ga. e.g., trial. circumstances, OCGA
(1982). statutory Additionally, aggravating crime, to a (b), of the “limit focus on the nature 17-10-30 § penalty. the death imposing jury’s discretion large degree” Stephens, supra, Zant v. 100. 250 Ga. at limitations, 17-10-1.2 not OCGA sharp to these contrast penalty, death impose jury’s discretion only fails to narrow punishment on a its determination of permits jury to base relate factors which arbitrary highly prejudicial range of broad character of the defendant. of the crime nor the neither to the nature unconstitutionally over- 17-10-1.2 is hold that OCGA would which en- presentation of evidence broad, beyond far advancing human as an individual “uniqueness jury to see the victim’s ables focusing on evi- Payne, than 111 SC at 2607. Rather being.” supra, characteristics while personal would define dence which victim’s ripple-effect of the life, of the permits the statute community. Such victim’s death on both the victim’s family and the the victim as a human portrayal of irrelevant to the state’s evidence is arbitrary on which factors sentencing trial with being and infuses the penalty. impose determine focus of shifts the Further, impact evidence admission of victim nature of the crime and the sentencing from the defendant victim’s community place on the family and victim’s the value the life. The state “cannot make the existence ...of an identifiable char- per justification acteristic of . . . the victim an issue se and for a death Ingram sentence.” statutory permission given
More insidious is the the trial in- court to *13 sufferings vite a detailed narration of the emotional and economic community resulting and members of the victim’s inflammatory from the victim’s death. These factors cannot but infect jury’s decision-making process, rendering sentencing trial fun- damentally denying guaranteed unfair and the due of law Georgia Constitution.
(b) person property; equal protection. Protection to and person property paramount duty
Protection to is the government impartial complete. and shall be No person equal protection shall be denied the of the laws. I, I, Ga. Const. Art. Sec. Par. II. previous equal
On
I
occasions have raised the issue of the
treat-
considering
ment of all who come before the courts of this
state.
process Congdon
(424
State,
selection
v.
by inquiry backgrounds into their and that of their deceased system jurisprudence One of the hallmarks of the American is equal put place that all citizens stand rules of substantive and before the law and we have
procedural equal- law to assure this sense of ity. homogenous population, Unlike other societies which have a in we heterogenous makeup. people America are in our We have of different religions diversity requires go great races, and cultures. Such us to lengths equally, to treat all citizens and nowhere is that notion of equality carefully system. more scrutinized than our court How- scope ever, the unchanneled of victim evidence which is ad- grave jury may missible under the statute creates a risk that the con- permissible impose clude that it is for its decision to constitutionally impermissible to be based on such factors as (Conner religion, race, (1983)), Ingram supra. class, wealth.
(c) arrest, Bail; fines; punishment; prisoners. abuse of required, excessive bail not be nor fines
Excessive shall inflicted; punishments nor and unusual imposed, cruel arrested, any person being while be abused nor shall arrest, prison. or in under Art. Par. XVII.
Ga. Const. Sec. Payne, supra, arbitrary Although reflects conclusion capital punishment which will capricious enforcement of follow does broad-scale victim not offend the admission of standards, national decency” interpre- “standard relevant
[t]he
punish-
cruel
prohibition against
and unusual
tation of
in the
is the
ment found
Constitution
standard
Georgia,
people
the national standard. Federal
minimum, not
represent
constitutional
standards
maximum, protection that
this state must afford its citizens.
Duncan,
Harris v.
Fleming I believe is decency people by that of of the of offended the standard the of evidence the victim which is irrelevant admission about issue of for the personal killing the defendant’s blameworthiness of decency being. by another human So too is our standard of violated a policy guarantees capriciousness implementation the of the that penalty by death of cannot consideration elements which be ascer- cannot, therefore, prior tained to the commission of the crime and be applied consistently Notwithstanding cases. the federal different standards, demanding of this judiciary’s recognition less state should apply impartial retain standards them fair and its own to assure trials.
(d) Status of the citizen. subject status shall never be the
The social citizen legislation. XXV.
Ga. Art. Par. Const. Sec. only impact the of victim statements create Not does admission kill defendants, worthy society two members of classes of those who citizens, necessarily kill creates worthy and those who less classes of victims: their killer should those whose lives were so worthwhile that put death, lives their be whose are so worthless that those back only put killer receive sentence that will them into soci- should ety in years. less than ten past, the the we have focused on the trial of offenses
conduct of the defendant and we have looked to matters of defendant culpability, rather than the background the victim or the on survivors, in determining punishment the what should be meted out. Booth, supra. That is not that say prohibition we have had a against humanizing done, the victim. That can and be should how- ever, making without the victim the focus of inquiry. the The statute upheld by opinion, however, majority the makes the victim inquiry, the focus of the invites social status of the victim to deciding determining be factor whether a defendant should live die. suggest To that such a statute does not social make status its subject ignore reality. is to conclude, above, reasons stated that the victim impact
statement statute at issue high here fails conform to the standards by established guarantees. constitution’s 2. In reaching the that constitutional, conclusion statute majority opinion problems has myriad failed to consider a that will be created the allowance of the victim impact statement: (1) To what extent will the be background subject victim’s inquiry by the defendant? Brady
(2)
Maryland,
1194, 10
Under
(3) pursue Will failure to investigate, present information background by about victim’s rise give defense counsel to a valid claim of ineffectiveness of counsel?
(4) fashioning Will instructions for the in a victim judicial nightmare? statement case become a (5) Will sentencing phase there mini-trials within the of the just to consider various victim evidence? Payne acknowledges Even majority opinion that victim be so unduly prejudicial evidence can it violates the due process guarantees of U. S. Constitution. Id. at 111 SC 2608. I am convinced statute considering we are is so broad that it de *15 nies process due all in death penalty major to defendants trials. The ity has sought problems by limiting application to alleviate those statute, of the those but limits will create such burdens on the trial of they process. due death cases will themselves violate The questions today I have raised above and others not foreseen will vex hamper beyond justice the administration of the limits set process Georgia of guarantees due Constitution. prohibition against
3. The of a admission state- people law, equal ment rooted in the belief that stand before the all just defendants alike. of a rich life is and victims The value man’s important society as man. its poor gains to that of a Life value not State should never and the from one’s existence status but
from one’s society of one’s life to passing on the value of position in the be general. statute, journey begin we will impact statement the victim
With worth of citi- determining the relative path of down the treacherous prose- We will force penalty for the accused. seeking zens in economics, education, religion and race, of consider matters cutors to deciding whether their survivors victims and ethnicity of the only will the accused. Not penalty on of the death imposition seek permanently image justice of will process suffer due scarred. signify To our image justice. lightly not take should
We blind- symbol justice a woman have as a equality we notion of sym- scales, The sword holding a sword. folded, evenly-balanced with The of all our citizens. rights for the willingness fight bolizes the courts. And equality of treatment before symbolize the scales person posi- respecter not a that the law is symbolizes blindfold sym- from the rips the blindfold Unfortunately, today’s decision tion. factors which take into consideration and forces us to justice bol justice. place no the fair administration have had heretofore will so of the victim statement the virus My fear is that rendered funda- the trial will be sentencing process infect appellate likelihood of unfair, thereby increasing the mentally greatly good how and no- No matter valid convictions. reversals of otherwise statute, its at- enacting legislature intentions of the ble the inevitably victim will uniqueness of the individual tempt to show the among victims and discriminate sentencing juries encourage race, ethnicity and class. already festering sores of thereby aggravate the victim statement inescapable that The conclusion is totally irrelevant unmanageable and evidentiary tool is too as an offense; therefore, would to allow such evidence the trial of a constitutionally pro- burden on an undue and unwarranted place I Consequently, would Georgia Constitution. rights tected under the guarantees of the Constitution’s hold the statute violative cruel prohibitions against its equal protections and due its sub- social status as legislation with punishment and unusual respectfully dissent. Accordingly, ject. — 27, 1994 Decided June July 21, 1994. denied
Reconsiderations Walker, Walker, Stephen M. Mears, Harold Valpey & Michael (case Fisher, no. appellant Q. Brady, Barry J. Bright, B. Colleen S94A0277).
Miller, Associates, Miller, Rucker & Curtis W. Stanley W. Rob- bins, (case S94A0279). appellant for no. Brannon,
J. Watson, Watson, Richardson & Watson Anne H. for (case S94A0280). no. appellant Sartain,
Lydia J. Attorney, Darragh, District Lee William M. Jr., Brownell, Attorneys, Assistant District appellee. for S94A0442. BANKS COUNTY et al. GEORGIA, v. CHAMBERS OF
INC. et al.
Thompson, Justice. presents question This case a impression: appli- first an Does proposed cant for a solid landfill waste have a right vested to written compliance verification of zoning with local if ordinances he is com- pliance with such ordinances requests when he first written verifica- question tion? We answer affirmatively. this County Banks operated own its landfill until the mid-1980’s. At time, County that shut down its landfill sought persons out operating interested in private County. landfill R & B (“R Wastes, B”), Inc. & a corporation by Daniel, owned Richard J. Daniel, Donald R. Angie Daniel, A. April 23, came forward. On permit R & B Department obtained from of Nat- (“DNR”) ural Resources to operate approximately a landfill on acres of a 64-acre tract land to belonging the Daniels.
Thereafter, proposed R & B expanding site, the landfill or selling expanded an (“Chambers”). landfill to site Chambers of Inc. Georgia, (Chambers has option purchase tract, an the 64-acre as well as ad- Daniels.) jacent tracts owned
Applicants permits for solid waste must submit written verifica- County tion from the proposed that site in compliance with local Comp. land use laws. OCGA 12-8-24 (g); Regs., Ga. R. & r. (1993). 391-3-4-.05 Written zoning compliance verification of is one of sanitary the first hurdles a must landowner clear to obtain a landfill permit DNR. B, (hereinaf- 20, 1991,
On August R & the Daniels and Chambers collectively ter “plaintiffs”), sought referred as written verification proposed, expanded complied County’s site with zoning It apparent County ordinances. soon became going was not plaintiffs So, give they sought. September written verification on 26, 1991, plaintiffs relief, petition filed a mandamus other alia, seeking, County, inter an order compelling the members of the County Commissioners, County’s Board of and the administrative (hereinafter zoning “defendants”), collectively officer referred to