Moore v. StateMoore v. State
Lead Opinion
Following a plea of guilty, conviction, and sentence of death for murder and armed robbery this case is here by appeal and for mandatory review of the death sentence imposed. The appellant William Neal Moore was charged with committing the offenses of murder and armed robbery on April 2, 1974, was indicted by a grand jury in Jefferson County on May 13, 1974, and entered a plea of guilty to both charges and waived trial by jury on June 4, 1974.
After the appellant’s plea of guilty was entered, the prosecution presented the testimony of the doctor who performed the autopsy on the victim’s body, two investigative agents and the sheriff who investigated the offenses. The defense presented testimony by the appellant and members of his family. Thereafter, the trial judge found aggravating circumstances and imposed the death sentence.
The testimony and other evidence revealed that the appellant had been a member of the U. S. Army, and former military policeman, where he met George Curtis, a nephew of the victim Fredger Stapleton. Curtis told him about his uncle Fredger Stapleton having money and showed him where he lived. In the words of the defendant, "We planned this, he wanted to burn his uncle up, he would get the money and burn him up in the house, and we went over there and Curtis got scared after he went into the house, that was the first time, we was drinking, we had been drunk ... we went over to the house, we went to the back door, and we got in between one of the bedrooms and the front room, there was a locked door, we left and went back over to Curtis’ house. Curtis, he left and I went back over there . . .”
In the late evening of April 2, 1974, appellant apparently re-entered the Stapleton home through a
Appellant denied any intention of killing Stapleton: "I didn’t have no intention of killing him. When I went in there, he come out there with a shotgun and hit me in the leg, it scared me, made me shoot him, and I’m sorry for what I did, and ask for mercy of the court.” Held:
1. Appellant’s first enumeration of error is that "The imposition and carrying out of the death penalty in accordance with the present Georgia death penalty statute is unconstitutional and in violation of the Eighth and Fourteenth Amendments of the United States Constitution.”
(a) In support of this contention, appellant argues that the discretion permitted by the death penalty statute leaves room for arbitrariness, thus rendering the statute unconstitutional as a violation of equal protection.
Although the appellant plead guilty, the record is clear that he reserved his constitutional objections at the trial level. In Coley v. State,
(b) The appellant further argues that the death penalty constitutes cruel and inhuman punishment in violation of the prohibition of the Eighth Amendment to the U. S. Constitution.
We have found no case where a majority of the Supreme Court of the United States or of this court has held that the death penalty constitutes cruel and unusual punishment.
In the Furman and Jackson cases, Chief Justice Burger, dissenting, noted "that only two members of the court, Justice Brennan and Justice Marshall, have concluded that the Eighth Amendment prohibits capital punishment for all crimes and under all circumstances.” See also Coley v. State,
2. (a) The appellant contends as to the sentence that the imposition of the death penalty in this case is disproportionate to the sentence imposed in other similar cases.
Appellant cites two trials, not a part of the record of this trial, which he alleges are similar to the facts in the instant case wherein the death sentence was not imposed. Although they were not considered by the trial judge and cannot be considered by this court, some comment is appropriate concerning this court’s duty to compare the sentence in this case with that imposed in similar cases. As we view the court’s duty in light of the Furman and Jackson cases and the statutory provisions designed by the Georgia legislature to meet the objections of those
(b) It is next asserted that there was no aggravating circumstance in this case because a person cannot be guilty of armed robbery if the victim is not conscious or alive at the time of the robbery.
Code Ann. § 26-1902 provided: "A person commits armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon.” Ga. L. 1968, pp. 1249, 1298; 1969, p. 810. In Hicks v. State,
This accords with the general rule in the United States that the force or intimidation essential to robbery must either precede or be contemporaneous with, and not subsequent to, the taking. 77 CJS 457, Robbery, § 11 (1952). In Hicks the taking occurred before the victim woke up.
Without the force used by appellant here, the taking from Stapleton could not have been accomplished. That Stapleton died from the force used either immediately, or subsequently to the taking, does not make the offense any less a robbery.
Appellant’s admitted purpose in going to Stapleton’s home was to rob him. He then shot Stapleton to overcome his resistance before taking Stapleton’s money. We conclude that the evidence established that the offense of murder was committed while the appellant was engaged in another capital felony, to wit: armed robbery.
In our sentence review we have considered each of the above circumstances, along with the aggravating circumstance found by the trial court and the evidence concerning the crime introduced in court.
The death sentence was imposed in this case by the trial judge without the intervention of a jury. We have reviewed the sentence as required by Ga. L. 1973, p. 159, et seq. (Code Ann. § 27-2537 (c)), as we did in Coley v. State,
We have compared the evidence and sentence in this case with other similar cases and conclude the sentence of death is not excessive or disproportionate to the penalty imposed in those cases. Those similar cases we considered in reviewing the case are: Lingo v. State,
In each of the comparison cases cited, the records show that the accused was found guilty of murder of the victim of a robbery or burglary committed in the course of such robbery or burglary. In each of those cases, the jury imposed the sentence of death. In Pass v. State, supra, the murder took place in the victim’s home, as occurred in the
We find that the sentence of death in this case is not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Code Ann. § 27-2537 (c) (3). Notwithstanding the fact that there have been cases in which robbery victims were murdered and the juries imposed life sentences (see Appendix), the cited cases show that juries faced with similar factual situations have imposed death sentences. Compare Coley v. State,
We have also reviewed the transcript and record in this case and have determined that the conviction and sentence are not contrary to law, and that there is ample evidence, in addition to the plea of guilty, to support the trial court’s judgment. The judgment of the trial court will, therefore, be affirmed.
Judgment affirmed.
Concurrence Opinion
concurring specially.
In Furman v. Georgia,
The Chief Justice noted that Justice Brennan and Justice Marshall had concluded that the Eighth
Presumably the validity of Georgia’s revived death penalty statute, Ga. L. 1973, p. 159 (Code Ann. § 27-2534.1), would be found valid by the Chief Justice and the other three dissenting Justices. Presumably Justices Brennan and Marshall would find it invalid. Therefore, in order to judge the validity of the death sentence in this case it becomes necessary in my view to undertake to ascertain the positions of Justice Douglas, Justice Stewart and Justice White upon this issue.
This court found the 1973 Act to be valid in Coley v. State,
It therefore has become necessary to undertake to ascertain how the three specified Justices, and the writer, see this issue: Where a death sentence may be withheld by uncontrolled discretion, is the imposition of the death sentence controlled by clear and objective standards nevertheless invalid?
It is difficult to divine how the three would answer, but as Justice White wrote, even though my conclusions cannot be proved, I must arrive at judgment.
Not one of the three Justices can I feel with certainty would approve a death statute which prevents uncontrolled imposition of the penalty but which permits discretionary non-imposition.
Moreover, the defect, as they might see it, of discretionary non-imposition, may be compounded by the following:
The prosecutor has discretion in bargaining for a plea of guilty in exchange for a non-death sentence. Once on trial he exercises discretion in deciding whether to ask the jury to impose the death penalty. The trial judge has discretion to grant a new trial, accept a guilty plea, and impose a non-death sentence upon that plea. Presumably these events would occur when the evidence showing aggravation is slight.
The new sentencing procedures law, Ga. L. 1974, pp. 352, 357, will permit juries to determine whether any mitigating or statutory aggravating circumstances exist "and whether to recommend mercy for the defendant.”
Although a majority of the United States Supreme Court might find the discretionary non-imposition of the death penalty to invalidate the controlled imposition thereof, I do not. In these murky waters, I do not feel that this conclusion constitutes wilful disobedience to the Constitution.
The discretionary non-imposition of a sentence of death is an act of mercy. I cannot find that discretionary mercy is unconstitutional or that it renders invalid the controlled nongranting of it. If the Constitution says otherwise, then the executives’ powers of commutation provided by civilized governments would render any sentence of death invalid. Moreover, if discretionary non-imposition of the death penalty were abolished, then the inability to be merciful in an appropriate case would, in my view, constitute cruel and unusual punishment in
I concur in upholding the validity of Ga. L. 1973, p. 159 et seq. (Code Ann. § 27-2534.1 et seq).
Appendix.
Similar Cases Considered by the Court: Lingo v. State,