Lead Opinion
Sрivey was convicted in the Muscogee Superior Court of murder, kidnapping, armed robbery, and aggravated assault. He received sentences of death for murder, 20 years for kidnapping, two concurrent life imprisonment sentences for two armed robbery convictions, and two concurrent 10-year sentences for the two aggravated assault convictions. His case is here on direct appeal and for mandatory review of the death sentence imposed.
The evidence introduced at trial showed that Spivey had gone to thе Final Approach cocktail lounge in Columbus, Georgia, on December 28, 1976, where he consumed several drinks. Shortly before the lounge was to close, Spivey brandished a gun. He ordered the barmaid, Mary Davidson; a waitress, Lucy Weaver; and the only remaining patron in the bar, Burt Marten, to the back of the lounge. He then took $200 from the cash drawer and $50 from Mary Davidson’s purse. The manager of the cocktail lounge across the street, Buddy Allen, and a security guard, Billy Watson, who were both lingering outside, became suspicious because the front doors of the bar had not been closed as usual at the closing hour. They entered the bar and proceeded toward the back area, where Spivey and his hostages were located. As they approached him he turned around suddenly and shot them both, killing Watson on the spot. Hе then ordered Davidson, Weaver, and Marten to leave the lounge with him. As they were leaving Allen moaned, and Spivey turned around and shot him again. Although Allen was severely injured, he was able to run for help to the cocktail lounge across the street, whereupon Spivey sent Weaver and Marten into the lounge to ensure that the police were not called. The police were summoned, and when Spivey
At trial, Spivey was positively identified by witnesses Davidson, Weaver, and Allen as the perpetrator of these offenses. He did not deny committing the offenses, but asserted that hе was not criminally responsible because he was legally insane at the time of the crimes.
The only points raised in this appeal are Spivey’s assertions that the trial court erred in instructing the jury on the defense of insanity, and in failing to charge during the sentencing stage of the trial оn mitigating circumstances.
1. Considering Spivey’s mental condition at the time of the commission of the crimes, it suffices to state that although there was some slight evidence that he might have been insane, a finding of insanity by the jury was not demanded.
The trial judge instructed the jury during the guilt determination stage of the trial in accordance with Code Ann. § 26-605 (Ga. L. 1968, pp. 1249, 1269), that the test for legal insanity is that if a man has reason sufficient to distinguish between right and wrong, in relation to the particular act about to be committed, he is criminally responsible. Spivey enumerates error upon the trial judge’s furthеr instructing the jury that the standard by which the acts of the accused were to be judged was the conduct of a reasonable man. He argues that this portion of the charge was misleading because it diverted the jury’s attention away from his individualized conduct to the conduct of somе mythical, reasonable man.
Looking at the insanity charge as a whole, we do not find it misleading. It conformed to that found in the Pattern Criminal Jury Instructions, Council of Superior Court Judges of Georgia (pp. 31-34). The jury were adequately instructed that in determining the issue of sanity, they should consider the аcts and mental condition of the accused as revealed by the evidence before them, before and after the commission of the offense. They were
2. The trial judge instructed the jury that in reaching a determinatiоn of the penalty to be imposed, they were authorized to consider all of the evidence received in open court in both phases of the trial, and all of the facts and circumstances of the case. There was evidence introduced during the trial that would have authorized the jury to find that Spivey committed the murder while under the influence of extreme mental or emotional disturbance, and that his capacity to appreciate the criminality of his conduct or to conform his conduct with the requirements of the law was substantially imрaired. He argues here that these two factors constitute mitigating circumstances under Georgia’s capital punishment statute (see Code Ann. § 27-2503), and that the court should have charged the jury specifically that these two factors constituted mitigating circumstances. The transсript shows that defense counsel strenuously argued to the jury the defendant’s mental condition, and particularly his psychiatric history, as a reason for not imposing the death penalty.
Spivey’s argument raises a point which has already been decided against him in Thomas v. State,
In Jurek v. Texas,
After studying the Supreme Court’s Jurek opinion, and after obtаining and studying the trial court’s charge to the jury as actually given at Jerry Lane Jurek’s trial, we conclude that the United States Supreme Court would not have affirmed Jurek’s death penalty, as they did, unless they were satisfied that a defendant’s constitutional rights were adequately preserved in a capital punishment system which had the following two characteristics:
1. The death penalty is not mandatory;
2. The jury’s discretion to choose life or death is focused to some extent on the particularized nature of the crime and they are permitted to consider not only aggravating circumstances, but also any mitigating circumstances which have appeared in the evidence, though they need not ever hear the words "mitigating circumstances” nor need they ever be told expressly to consider them.
The italicized phrase necessarily follows from this language of the Suрreme Court in Jurek: "The Texas statute does not explicitly speak of mitigating circumstances; it directs only that the jury answer three questions. Thus, the constitutionality of the Texas procedures turns on whether the enumerated questions allow consideration of particularized mitigating fаctors.”
When Georgia juries are instructed in sentencing to consider all the facts and circumstances which have appeared at both phases of the tlrial, this necessarily includes any mitigating circumstances which defendant has shown, or argued, or both. The trial court did not еrr in failing to use the talismanic words "mitigating circumstances,” nor did it err in failing to charge specifically that certain evidence was to be deemed mitigating.
In recent months, this court has reversed sentences of death in six cases for errors in the jury charge on the sentencing phase. Those cases are: Fleming v. State,
This test is substantive rather than formalistic and conforms with the mandate of the Supreme Court of the United States that "a single instruction to the jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Cupp v. Naughten,
The charge given to Spivey’s jury meets that test.
The death penalty imposed in this case must conform to the standards set forth in Code Ann. § 27-2534.1. This court must determinе whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; whether the evidence supports the jury’s finding of a statutory aggravating circumstance; and, whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant, as required by Code Ann. § 27-2537 (c) (1-3). We conclude that the sentence of death imposed on Ronald Spivey was not imposed under the influence of passion, prejudice, or any other arbitrary factor.
The jury found as a statutory aggravating circumstance that the offense of murder was committed while the offender was engaged in the commission of a capital felony, to wit: armed robbery. Code Ann. § 27-2534.1 (b) (2).
The evidence supports the statutory aggravating circumstance found and the verdict.
Spivey, surprised in the act of armed robbery by a police officer in uniform, shot the officer after time for contemplation although the officer did not draw his weapon; fired additional bullets into the victim when he made a noise as he lay dying; and boasted to his robbery and kidnap victim that he had shot five people that day.
Notwithstanding his high intelligence and better than average educational background, this 37-year-old man was already well into a life of crime at the time of this offense as evidenced by his record of prior criminal activity.
Although Spivey denies any independent recollection of the events, the jury was justified in rejecting his claim based on the evidence before it.
In reviewing the death penalty in this case, we have considered the cases apрealed to this court since January 1,1970, in which a death or life sentence was imposed for murder, and we find the similar cases listed in the Appendix support affirmance of the death penalty for murder.
Ronald Spivey’s sentence to death for murder is not excessive or disproportionate considering the crime and the defendant.
Judgment affirmed.
Appendix.
House v. State,
Dissenting Opinion
dissenting.
The majority opinion approves a sentencing charge in which the jury was not told to consider mitigating circumstances. Our statute provides that"... the judge... shall include in his instructions to the jury for it to consider, any mitigating circumstances . . .” Code Ann. § 27-3534.1 (b). The majority opinion never mentions this requirement of our law.
As the majority opinion notes, in recent months this court has reversed sеntences of death in six cases for errors in the jury charge on the sentencing phase. The
The majority opinion retreats from these clear statements of law rеndered within the year. The majority now say that it is sufficient if a reasonable juror considering the charge as a whole would know that he should consider all the facts and circumstances of the case, and even though he might find one or more aggravating circumstances to exist, wоuld know that he might recommend life imprisonment. In doing so the majority ignore the statutory requirement that the judge instruct the jury to consider any mitigating circumstances. Because the trial court did not follow the mandate of our law and instruct the jury to consider any mitigating circumstances, I must dissent from the imposition of the death penalty in this case.
I am authorized to state that Justice Marshall joins in this dissent.