*1 Accordingly, with direction remanded reversed and mus. requiring petition grant for mandamus the trial emphasize approval in no decision landfill. We Board’s addresses the Crymes to the is entitled whether operation landfill, permits which deci- for the construction and County Development by Director. must made sion All the Jus- with direction. and remanded reversed tices concur. 12, 1988 2, 1988. Lynn Stewart, Flint, Flint, C.
Schreeder, David & Wheeler appellants. Sidney Montgomery, Johnson, Vincent, Albert & Johnson ap- Taylor,
Chorey, Taylor Schaub, for Jr., L. Feil, L. John & John pellees. THE SPRAGGINS v. STATE.
44903. (364 SE2d Justice. Bell, previously. See, here case that has been This is a death e.g., After by Court of assistance of the Federal habeas Appeals Circuit, for the 11th retrial. See counsel, for a his case was returned to our state courts 1983). Spraggins has 720 F2d rape, retried, sentenced to
now been death. He convicted of murder and appeals, raising We find meritori- of error. 55 enumerations by omitting give a ous his contention statutorily-mandated jury “guilty the trial erred the verdict of instruction find this error to ill.” Because we do not harmless, be reversed.1 conviction must [felony] provides: “In cases 1. insanity . . jury . which (C) Guilty; Guilty; Not Not whether the defendant is: (D) Guilty crime; or the time of the at was filed motion their was docketed briefs, defendant was denied and oral the defendant on December this court May arguments 15, 1987, sentenced to death on November July were 1987. postponed notice 10, 1986, parties appeal November were was filed on supplemented April 12, 1986. extensions of June A motion for new 1987. The case 27, time to file 1987. The
tally ill at . . .” crime. “mentally (a) (2)
The term ill” defined OCGA 17-7-131 having thought significantly and “means a disorder of or mood which impairs judgment, capacity recognize reality, ability behavior, cope ordinary having signifi- demands life state cantly subaverage general functioning existing intellectual concur- *2 rently adaptive originates behavior which in the de- defects of velopmental period. (Emphasis supplied.) . .”. Psychologist Mary Drake testified on behalf of the defendant at guilt phase Spraggins’ trial. Dr. Drake testified that the defend- “significantly subaverage” intelligence, ant is gence that his intelli- low concurrently adaptive exists behavior,” with “defects of originated developmental period. that these conditions in the Under jury statute, was entitled to instructions but (b) (3) provides: § 2. OCGA 17-7-131 “In all cases which the charge jury, following: charges, charge in addition to other I you you that should in- sanity at the this court will maintain the defendant until the court satisfied is not a to himself or to others. that should you ill at the time of the crime, the defendant will be of Correc- tions or the as the mental condi- (Emphasis supplied.) tion of the defendant During charge conference, the defendant called the court’s at- responded, pattern to tention this Code Section. The trial “The charge you different, is a little want, but if this is the one that’s ok with me.” charge language § court did of OCGA (b) (3) (A), concerning 17-7-131 of a verdict of not charge court omitted to 17- OCGA (b) (3) (B) disposition 7-131 of a defendant found to ill. The to this omission
was overruled. charge The Code mandates that set forth OCGA 17-7- (b) (3) (B) given. by failing 131 “shall” be The trial court erred
give it. argues any parts 3. The state error to both OCGA language § 17-7-131 is harmless. But the of this section is mandatory, mandatory pre- and the failure to with a rule is sumptively Poultryland, Anderson, harmful. Inc. v. 562 200 Ga. (37 785) (1946). Davis, SE2d See also Davis v. SE2d 253 455) (1984). 34 (b) (3) (B) purpose is to It is clear that a verdict ensure that the understands only Here, not will released.
ill was the not mean that does strongly prosecutor’s argument informed, not so implied release. the defendant’s such a verdict would result argued: “Folks, not. to ex- or he’s You need He he’s either your you you him, deci- him If to excuse that’s want cuse sion. don’t. pun- you you guilty, want to So, . ... think he’s don’t . . if say him, victim], ‘We don’t care what [the ish happened want just through,’ you you, went care what don’t retarded, him then tell the other find anything. worry people, . . .’” it . . . can [sic] ‘Don’t about argument, say prosecutor’s closing we cannot In view of the jury’s instead decision to tally omission to not the court’s Compare consequences App. v. the Ga. of the latter verdict. Loftin (3) (349 conclude, therefore, We that the error has failed to meet its burden to show 645) (1983).2 (2) (306 v. Henderson harmless. must Because evidence conviction be reversed. Virginia, U. S. SC meets the Jackson standard of *3 560) (1979), remaining may enumer- LE2d retried. prose- regarding of ations error need not be addressed. compared closing argument attor- cutor’s ney in which he Fugitt church,” to the “devil in see d) (348 except concur, reversed. All the Justices Weltner Hunt, JJ., who dissent. dissenting. Justice, Weltner, guilt-innocence phase Spraggins’ plea trial,
At was of his last (b) (1) requires not trial reason respect under these to instruct the circumstances may return, to the four if the it and as to the verdicts guilty is verdict not two verdicts are the error is harmless between a verdict of such a We have not verdict, legislature ill harm identified above eligible inconsequential, rather than yet anyway. resolved the for need not this state has created a and a is question sentence, the reasonable so defendant today, of whether for arguably light ill. Of meaningless possibility any event, of the course, was defendant statutory deprived verdict, that we are not the differences between ill is the error found of no inconsequential. provisions that prepared real the difference benefit, hold instruction, specifies manner as “(A) I follows: should crime, at the time of the this court will
maintain defendant until the court satis- fied not a himself or to others. should at the time of defendant will be over the De- partment or the Department Corrections as mental warrant.” The trial instruction, failed to read subparagraph statutory the second and for that the majority reverses. omission,
I dissent I see no because in which that failing requirements Code, any way harmful to Spraggins.
(1) There is no real the mur- committed der of France Coe.1
(2) The jury had gathered touching all information that could be condition, on mental and emotional and with the of a verdict of ill, aspects instructed on all of OCGA 17-7-131.2
(3) The during error occurred guilt-innocence phase trial, punishment such, not the phase. could As it not have influenced penalty.
I am joins authorized to Hunt dissent. Justice McIntyre, Michael Kennedy appellant. Hamrick, Jr., Bowers,
William G. Attorney, District Michael J. Attorney General, Mary Westmoreland, Attorney Beth Assistant General, for appellee. *4 20) (1978) (conviction Spraggins v. life sentence affirmed, reversed, penalty only); Spraggins death new trial ordered on sentence 620) (1979) (second affirmed); penalty (habeas 720 F2d assistance, ordered). new trial included the of a of not statutory charge apply simply as to does not executed, assuredly “given case. If a defendant he is not sentenced most Corrections or the Human Resources as the mental of the defendant