*1 courts, trial admit- reasons, imperative it is that when For statements, the do impact ensure statements not ting status, wealth, of social jurors’ seek the consideration the victim’s race, Only legis- then can the class, other similar distinction. statements, impact for admission lature’s the of victim provision thereof, be reconciled with the constitutional sanctioning this Court’s the bar of justice. mandate of fairness before July 14, 1997. Decided Jr., Taylor, appellant. Hurl R. for Baker, Custer, F. Thurbert E.
Cheryl Attorney, Attorney District General, General, Attorney appellee. H. Maddox Assistant for Kilgore, THE S97A0445. SIMPKINS v. STATE.
Per curiam. armed Simpkins A convicted Chester of Beverly shooting sought death of Williford. State Simpkins death received life without Simpkins parole. appeals.1 showed and Levon Burch Simpkins
The evidence at trial to store. Wil- shop plans the Crack Shot with rob the pawn entered store at time. Burch entered the store working liford was helping a customer. While Williford was pretended first and to be his and leaned Burch, gun entered the store with raised Simpkins head, him. killing counter across the and shot Williford police area on foot. The two then stole several items fled the 24,1994 18,1994. April May grand jury A The crimes were committed on indicted 24, 14,1994 May July Simpkins State served notice of intent seek 1994 and on its 6-17, 1995, guilty Simpkins After on November found of death a trial assault, murder, felony murder, robbery, aggravated burglary, counts armed two of malice crimes, posses possession of a firearm the commission of certain and three counts hearing, by sentencing At the was unable to sion of a firearm convicted felon. eight parole, jurors jurors life reach unanimous verdict. parole, voted for life with for without Two jurors judge and two for death. The trial then found existence of two murder, parole him malice life and sentenced to life without for twenty years burglary, years imprisonment twenty for for assault, possession years firearm the commission of a five each for counts of of a crime, years possession a firearm felon with all sentences run five a convicted 21, 1995, consecutively. Simpkins which he a motion for new trial on December filed 4, Simp court motion on November 1996. amended on June 1996. The trial denied the appeal in this Court on kins his notice of on November which docketed filed argument was held on March 1997. December oral Simpkins away making arrested a short distance while he was phone call. The evidence also showed that and Burch had previously pawn shop April 24, broken into the 1994 and stolen jewelry guns, and several one of which used kill Wil- liford. reviewing light
1. After
evidence
most favorable to the
*2
jury’s
guilt,
determination of
we conclude that a rational trier of fact
Simpkins guilty
charged beyond
could have found
of the crimes
a rea-
(99
Virginia,
sonable doubt. Jackson v.
2. In its at the the trial court during instructions on murder committed an armed as an (b) (2) aggravating § circumstance under OCGA 17-10-30 and also on pecuniary gain aggravating murder committed for as an (b) (4). Simpkins urges § stance giving under OCGA 17-10-30 this on both circumstances was redundant under unfairly prejudicial. the facts of the case and (b) (2) sepa- § Subsections of OCGA 17-10-30 refer to rate and distinct circumstances. “The stances refer to the manner in killed, which the victim was and the (b) (4), (7) killing.” the motive for State, McClain v. 267 Ga. SE2d clearly Here, the “motive”for the murder pecuniary gain applicable. and subsection was, therefore, Although Simpkins pecuniary gain, did kill for the “manner” in which he did so was use of a commit Thus, firearm. he did not pecuniary gain during murder for non-capital the commission of a crime, such committed the murder dur- robbery, the commission of capi- an armed which is itself another tal crime. It follows that subsection was, therefore, also an applicable aggravating circumstance under the facts of the case. long recognized
It has been that the use of a firearm in the com- separate mission of a separate crime is itself a crime which warrants punishment. (6) Wiley § OCGA 16-11-106; State, v. 250 Ga. 714) (1982). SE2d Also, the use of a firearm to commit a murder pecuniary gain is an circumstance which warrants separate contempo- consideration. Since not all murders involve the robbery, raneous commission of an armed “the plane,’ separating circumstance establishes a ‘second ‘from all mur- der possible cases those in punish- which the of death is a (1) (360 [Cits.]” 258) ment.’ (1987). State, Ford v. 257 Ga. SE2d robbery” aggravating overlap “armed “pecuniary gain” aggravating “[aggravating circumstance, but simply they might overlap circumstances are not invalid because (7). [Cits.]” some extent. State, The State precluded urging was not from in Tharpe was a factor both. See simply pecuniary because 78) (17) (416 State, (1992); Lonchar v. State, 110, 114 SE2d 262 Ga. (6) (369 State, 254 (1988); Parks v. Ga. 447, 453 (16) 403, 416 (Miss. 1991); Quesinberry, State v. State, 585 S2d 660
Willie v.
(Cal.
(N.C.
1984);
1987);
stance or circumstances (I), fn. 12 462 U. S. Stephens, v. (1983). state, In this not, however, state. “weighing” is such a to no instructions states, receives “weighing”
unlike in the circumstance, consider to any aggravating to weight give special than a any significant circumstances multiple circumstance, single such or to balance the mitigat- ing any circumstances pursuant special standard.
Thus, in Georgia, finding of an not play any guiding
does role sentencing body discretion, exercise of its apart from its function of narrow- the class of persons convicted of murder who are eligible penalty. for the death (I).
Zant Stephens, at 874 Thus the from supra decisions “weigh- states, ing” wherein the existence multiple a determining stances is factor to be balanced against the mitigating circumstances, state, have no value in a precedential “non-weighing” such as which the existence of multiple cir- cumstances is not involved the determination of whether defend- ant has eligible who been found for the death penalty should receive (II) (B) (1) Black, that sentence. Stringer See state, In this juries are not required balance aggravating against circumstances mitigating death sentence only be considered if the [S]tate
establishes beyond a reasonable at doubt least one of the set forth in OCGA 17-10-30, if established, such a circumstance “may nonetheless withhold the death any reason, or without reason.” [Cits.] (2). Ford v.
Consistent with the law of Georgia state, as a “non-weighing” trial court in this case did not the existence of multiple aggravating circumstances was a factor to be against balanced mitigating circumstances. Pursuant to the trial court’s charge, was instructed consider existence of one or more aggravating circumstances in determining Simpkins’ eligibility for *4 “ ‘(I)n scheme,
[U]nder the Georgia the decision making as to factfinder takes into consideration all cir- cumstances before it from guilt-innocence both the and the sentence phases the trial. These circumstances relate ” both to the offense and the defendant.’ [Cit.] (II) (A) (1). Black, Stringer v. Because the evidence authorized a of the finding overlapping, separate, aggravat- ing circumstances of Simpkins’ commission of the murder while rob- firearm, bing victim with there was no error.
3.
also
challenges
the introduction of victim impact
evidence
sentencing phase. The three witnesses who testi-
short,
fied read
statements
prepared
response to the prosecutor’s
questions.
questions and answers had
previously given
been
defense counsel. In the prepared statements,
each witness described
the victim’s death had
him
impact
or her personally and also
provided
“glimpse
brief
into the life” of the victim. A witness’s testi-
mony
regarding
personal
of the death
impact
on him is permissi-
long
ble so
as the testimony does not cross the line
highly
to a
emo-
tional and inflammatory
to the
appeal
jury’s
passions
prejudices.
Turner v.
the witness to describe the life, life, victim’s “personal family employ- ment, recreation, church, et basic, cetera.” Such factual evidence about the victim is admissible as victim impact evidence long so as it does not encourage jury to impose on the based victim’s class wealth and so long as it does not unduly inflame or prejudice the jury. of the “glimpse life” evidence in this case was just three pages transcript and it focused on the victim’s work and family We relationships. conclude that these brief statements were not unduly prejudicial find no error in their admission. Judgment concur, Benham, All the J., Justices except C. affirmed.
Fletcher, J., Sears, J, P. who concur specially. Justice, Presiding concurring specially.
Fletcher, At the sentencing hearing, trial court instructed the the statutory aggravated circumstances of murder committed during an armed robbery under OCGA 17-10-30 com- § mitted for pecuniary gain under OCGA 17-10-30 I hold that this charge was error because are redun- dant under the facts of this case and have the potential unfairly prejudice Simpkins because a finds two statutory aggravat- ing circumstances be may likely to impose a harsher sentence. Nevertheless, I concur with the affirmance because the did not return a death sentence and the trial court sentenced him to life without parole.
This Court previously has held that where separate aggravating circumstances merely the trial “overlap,” court instruct the jury
224 directly is addressed Court has not The situation this
on both.2 statutory aggravating to identical that refer circumstances whether majority charged. that aspects insists The both be of the crime primarily and relies are different circumstances “(b) (2) cursory v. State3 that in McClain statement on the stances (b) killed, and the was in which victim
refer to the manner killing.” (4), consid- further research and After for the the motive apparent nor accu- neither sound this distinction is eration, it is commission covers circumstance rate. of another kidnapping applies rape
capital felony4
as
thus
“manner in which the
the
not address the
It does
as armed
well
victim was
commonly
phrase
understood. When
is
killed” as that
a
circumstance war-
is killed is
manner in which the victim
ranting
relevant
likely
punishment,
circumstance
another
enhanced
applies
applies.5
in which
to situations
gain
pecuniary
Thus, a
for the murder.
was the motive
desire for
proceeds
fall
insurance
murder-for-hire or a murder
under
majority
have
considered this issue
of courts
have
The vast
pecuniary
for the
is in fact the motive
motive
concluded that where
robbery,
robbery
improper
murder committed
it is
both
statutory aggravating
pecuniary gain
circ
and murder for
foreign decisions,
used
the defendant
In each of these
umstances.6
an offensive
majority’s
weapon
victim; thus, the
and kill the
to rob
robbery
robbery and armed
to dis
reliance on the difference between
tinguish
bery
meaningless.
Furthermore, in
rob
is
these cases
perpetrator
warrant a convic
kills the victim will
in which
robbery.7 Finally,
requirement
that these other
for armed
tion
mitigating
“weigh”
does not
states
2
(449
State,
563,
v.
264 Ga.
578
SE2d
Thornton
3
(477
378,
267 Ga.
387
4
the defendant was
applies
the murder is committed while
also
when
Subsection
degree.
battery
burglary
engaged
in the first
or
or arson
5
(7) (murder
horrible,
(b)
vile,
outrageously
wantonly
inhu
or
was
OCGA 17-10-30
torture,
mind,
aggravated battery).
depravity of
or an
man in that it involved
6
(Fla. 1976),
denied,
State,
783,
cert.
special concurrence. concurring specially. Justice, Sears, Although majority opinion, I concur in the result of the I write to fully explain my reasons. In an circumstance “ genuinely persons eligible ‘must narrow the class of for the death reasonably justify imposition and must of a more severe compared guilty sentence on the defendant to others found of mur- ”9 reason, der.’ For this I conclude that when two alleged by they stances are state, in fact illuminate one selecting eligible reason for the defendant’s case as a case for the penalty, “double-counting” improper. death such so-called More- over, because I further conclude that the merely duplicate single at issue in this case do not reason for dis-
tinguishing Simpkins’ conduct from that of defendants who do not separate receive the death but instead serve to elucidate two Compare Carolina, Woodson v. North 428 U. S. SC 49 LE2d 944) (1976). (“[D]eath punishment is a different from all other sanctions in kind rather than degree” reliability so that “there is . .. difference in the need for in the determination that case”) appropriate punishment specific death is the in a Stephens, (1983); Zant v. 462 U. S. 77 LE2d Lowenfield Phelps, sentence of a more severe imposition justifying reasons double-counting improper I find no Simpkins, majority opinion.10 concur and therefore stances com robbery murder and armed facts of the regard, In this was to find that authorize a would by Simpkins mitted involved armed felony, a capital to commit willing to elim willing he then and that was to a person, of violence prospect (b) (2).* These 17-10-30 OCGA § to that offense. the witness inate in meant believe, this Court are, I what considerations relating circumstance describing State12 Second, the facts of killed.”13 was in which to the “manner to find that a jury authorize armed murder and OCGA gain. for pecuniary to commit willing authorize a will probably the evidence Although 17-10-30 majority of factors in the vast find these two factors cases, although robbery-murder circum case, in this the same conduct arise from his the defendant different characteristics stances reveal nar serves to genuinely crimes, each aggravating penalty.14 for the death eligible the class of defendants row July 14, 1997. Decided Garrett, S. Gilliard, Padgett, C. Melissa Michael Garrett & *7 appellant. R. Assis- Attorney, Sheppard, Charles J. District Craig,
Daniel General, Baker, Paula K. Attorney Thurhert E. Attorney, tant District General, Attaway, Assistant Smith, Beth Attorney Senior Assistant General, Attorney appellee. 10 (11th (holding generally Dugger, F2d 1319 Cir. Henderson v. See double-counting
that, Florida, impermissible there is no crime”). of the facts .. . reveal different characteristics when “the same Gregg Georgia, n. See (7) (477 Ga. 13Id. a Further, why to find that not be authorized I can discern no reason crime, committing monetary the elimi motives in here defendant acted with dual justify independently Moreover, of these motives serves each nation of witness. imposition