*1 354 Baker, General, Attorney, Attorney Angelica
tаnt District Thurbert E. Woo, General, M. Assistant for Attorney appellee. THE
S98P1142. STEPHENS v. STATE. (509 Justice.
Sears, Kenny William was tried for malice murder and three Stephens aggravated counts of assault in 1980. He was convicted of all counts murder, and sentenced to death for the and his convictions and 1988, sentences were affirmed In by this Court.1 the United States Court of for the Eleventh Circuit Appeals vacated the death sentence because trial counsel failed to adequately investigate present mental health On the Eleventh problems.2 remand, Circuit’s a second trial in was held 1989. At that jury recommended a beyond death sentence after a finding the following statutory reasonable doubt circumstances: aggravating the offense of murder was committed while the offender was engaged in the commission of an aggravated battery;3 the offense of murder vile, outrageously wantonly inhuman, horrible and in that it depravity involved of mind of the aggravated defendant and an bat- tery victim;4 to the and the offense of murder was committed against a peace officer while in the engaged performance of his official duties.5 Because the trial erroneously court instructed the jury had Stephens alleged doubt, a beyond reasonable we reverse.6 398) (1981) (Stephens’s misspelled Stevens v. name case). style of this (11th 1988). Stephens Kemp, 846 F2d 642 Cir. (b) (2). (b) (7). (b) (8). § § OCGA 17-10-30 OCGA 17-10-30 OCGA 17-10-30 5 6 24, January Stephens The crimes occurred on 1979. was indicted for malice murder 30, aggravated January and three counts of assault on 1979. He was convicted of all counts by 15, jury February murder, Stephens on 1980. In addition to the death sentence for the twenty-year aggravated received three consecutive sentences for the assaults. After Ste phens’s Circuit, death sentence was vacated the Eleventh the State a notice of intent filed 10, рenalty Stephens’s sentencing to seek the death on October 1989. trial was held Novem 14-22, 1989, ber recommended a death sentence for the murder on November Stephens 29, 1989, supplemented 1989. filed a motion for new trial on November and a 29, 1990, motion for new trial on June filed a notice of which was denied on November 1990. appeal to this Court on November 1990. The case was remanded back to request hearing Attorney the trial cоurt at the State’s for a to determine the General’s role ordering neurological hearing a state examination of the defendant. The 10, 1998, February April held on and the case was re-docketed this Court 1998. on orally argued July 13, The case was 1998. the evi- to the prosecution, in the most favorable light
Viewed with- driving was arrested for DUI and dence showed that suspected 1979. The January police out a license guns store where severаl burglary had been involved return when he stolen, promised released two committed the After burglary. information who had about *2 police began as promised, had failed to return days, Stephens 1979, Stevens of Investigator Larry January for him. On looking the officer who was Sheriff’s County Department, the Richmond Investiga- car. While the investigating burglary, stopped car, his vehi- got out of sitting police Stephens tor Stevens was of the through rifle and fired the windshield high-рowered with a cle forearm. The car, Investigator right Stevens’s police shattering to retrieve his revolver officer, right-handed, managed who was Ste- Stephens. his car at through fired several wild left-handed shots side, officer in the seri- right time and hit the fired a second phens rear of the then walked around to the wounding Stephens him. ously fired a third shot car, height, rifle to shoulder raised his police hit in the chest and killed. rear window. The officer wаs through the car and to the rear of the police A worker saw walk postal Stephens high- then led several other officers on fire the last shot. Stephens in custody, While chase, and was arrested after shootout. speed statements. incriminating made several Stephens We find that the evidence adduced at 1. trier of fact to find the exis- any sufficient rational
trial was enable a reason- beyond of the circumstancеs statutory aggravating tence able doubt.7 the execution of a defendant (j) OCGA 17-7-131 prohibits
2. § retardation is retarded. Mental mentally who that he or she proves trial. His coun- one defenses at his 1989 retarded, mentally expert testimony sel presented IQ from 62-72 on several ranged evidence that Stephens’s as well as in the school tests, grades leaving he failed three before and that with proper proof A arose over the burdеn grade. dispute fifth 17-7-131 because OCGA mental regard § (c) (3) that he or she is men- prove defendant must specifies that a guilt-innocence doubt in the beyond a reasonable tally retarded convictions, no upheld Stephens’s Since the Eleventh Circuit phase.8 a sen- 1989; held in faced was to be guilt/innocence phase not Furthermore, (j) 17-7-131 was OCGA tencing only. because § 560) (1979); Virginia, LE2d see also OCGA S. 307 SC Jackson v. 443 U. (c) (2). 17-10-35 § (c) (3); § OCGA 17-7-131 Mosher (1997). statutory enacted until did not hаve benefit against executing mentally prohibition retarded to him available sentencing trial, in 1980 at his first trial. In the 1989 the trial court charged jury proving had the burden of his mental beyond Stephens objected, claiming retardation that the a reasonable doubt. proof for his mental retardation claim should have burden preponderance been a of the evidence. Georgia, public policy §
It is the as evidenced OCGA 17-7- (j), punishment that it cruel and to execute “those is unusual proving defendants who have met the burden of their mental retar beyond guilt-innocence phase dation a reasonable doubt at the (3).”9 (c) jury finding capi A accordance with OCGA 17-7-131 that a “guilty requires tal defendant is but retarded” that the trial imprisonment.10 court sentence defendant to life If a defendant prove guilt-innocence guilty phase fails to he but men tally retarded, the issue of the defеndant’s mental retardation is no longer merely sentence, conclusive to his but becomes one of the miti gating penalty phase. factors that the can consider in the guilt- defendant who fails to retardation in the phase charge penalty phase innocence is not entitled to a any proof burden of to mental retardation.12 *3 Fleming statutory prohibi- Zant,13
In
this Court held that the
against executing
prove
tion
those defendants who can
their mentаl
applies
capital
to
defendants who were tried before the
(j).14
proce-
§
enactment of OCGA 17-7-131
The Court established a
where,
dure
a
once a habeas court has determined that there has been
prima
showing
retardation,
.facie
of mental
a
trial is held to
petitioner mentally
pre-
determine whether the
is
retarded so as to
petitioner
trial,
clude his execution. At this
bears the burden of
proving
by preponderance
his mental retardation
a
the evidence.15
procedure
designed
This
to ensure that a defendant has “essen-
tially
opportunity
litigate
the same
to
the issue of his mental retar-
today,
dation as he
had if
would have
the case were tried
with the
(j) death-penalty
§
benefit of the OCGA 17-7-131
exclusion.”16Flem-
ing specifies
procedure
only
apply
that this
is remedial
does not
defendants who are tried after the effective date of OCGA
(36) (450
680) (1994).
(Emphasis supplied.) Burgess v.
264 Ga.
SE2d
10Id.;
(j).
OCGA 17-7-131
§
11Burgess,
or of the If tried after the enactment of OCGA trial was held. (j), required prove § mental retardation 17-7-131 he would be beyond If the enact- a reasonable doubt. was tried before permitted prove (j), § mental he would be ment OCGA 17-7-131 retardation issue, his trial occurred before the by preponderance to this a of the evidence. With guilt-innocence phase is unusual: the situation (j), enactment of OCGA 17-7-131 sentencing phase afterwards. occurred phase timing guilt-innocence deter- We conclude that the proof applies. so, This must because the mines which burden of be statutory legislature pub- to effectuate the scheme established our against requires pоlicy retarded that the lic execution of the guilt- defendant’s claim of mental retardation be decided Fleming phase. petitioners Foster, Ste- innocence phens Like the statutory There- to avail himself of this scheme. unable petitioners Fleming fore, Foster, and sentencing should like only required at his 1989 trial to his have Accordingly, by preponderance of the evidence. mental retardation sentence, death and remand for a we reverse proving alleged trial where retardation bears the burden
by preponderance of the evidence. required to vacate convic- 3. The trial court was not Stephens’s purported This tions due to mental retardation. Court appeal,18 in 1981 on direct affirmed convictions Appeals upheld Stephens’s convictions on Eleventh Circuit Court of corpus.19 federal habeas Stephens presented psychiatric sentencing
4. At the 1989 support ill- mental retardation and mental of his claim of presented evidence, In the State several doc- ness. order to rebut that psychological previously performed exami- tors who had nations on these examinations violated his Fifth Amendment objected, claiming Stephens. Stephens the use of
right against self- right counsel be incrimination, and his Sixth Amendment to have *4 against possible аnd their uses Ste- informed of the examinations phens at trial. Stephens’s ill- of mental retardation and
In rebuttal of
evidence
17
Hill,
302,
(4),
4;
Turpin
Fleming,
304
at 691
n.
see also
v.
269 Ga.
259 Ga.
52) (1998).
18Stevens,
ness, the State relied five in 1978 and 1979 had mental examinations. examinations request Stephens’s defense courts, ordered at the competenсy time, in order to determine and criminal counsel at the responsibility.20Stephens’s con- examinations 1981 and 1984 were pursuant to a consent order entered in an unrelated class- ducted action lawsuit while imprisoned, required which was Department provide psychological testing of death-row and treat- Corrections inmates.21 to all A 1988 examination of ment (as although explained prison, was also conducted while he was below) requested that examina- the record is inconclusive as to who tion. Stephens presented alleged
Because evidence of his mental through expert witnesses, mental there is no retardation and illness countering Fifth Amendment error caused the State evidence psychiatric support When, a claim of of its own.22 illness, or defendant presents [expert] psychiatric very evidence, then, at the prosecutiоn may presentation least, the this with evi- rebut reports dence from the the examination that defend- [relied upon]. [has] ant The defendant no Fifth Amendment privilege against mony by psychiatric this introduction of testi- prosecution [for] . . . such a limited rebuttal purpose.23 — quite simple prosecutions
The reason for this is this such as testify one, where the defendant does not and asserts a defense of through testimony, expert mental retardation the State could not respond present countervailing, psychiatric other, unless it could evi- Accordingly, reject dence.24 we Fifth Amendment claim. reject Stephens’s We also Sixth Amendment claim of insufficient possibility notice of the examinations and the could be used against him at trial. The re- 1978 and 1979 examinations were quested by Stephens’s time, trial counsel at the so notice of these ex- obviously provided aminations counsеl. anticipation felony charge The 1978 examination was in unrelated of an for which acquitted; anticipation Stephens’s original the 1979 examination was in trial for malice murder. 1981). (M.D. Zant, 5, Daniels et al. v. Civ. No. 79-110-MAC Ga. June Texas, 680, 3146, 106 (1989); Hargrave Powell v. 492 U. S. LE2d SC (11th Wainwright, 1986); App. 804 F2d Cir. Hammock v. (1) (436 23 571) (1993). (B) (107 (III) Kentucky, Buchanan v. 483 U. S. SC 97 LE2d 24 Id.
359 solely to de- were conducted those two examinations also claims that responsibility, competency and that counsel and criminal termine had mitigation they de- could be used to undermine no notice that However, retardation and mental illness. fense of mental scope complain examinations exceeded not that the counsel does attorneys presumed to have un- were notice,25and of the derstood put status’ defense that, if on a ‘mental “intended psychological [they] anticipate have to the use of . . . would regard by prosecution With to the examinations in rebuttal.”26 already Stephens in had been convicted conducted and 1981 and appeal Therefore, sentenced, had been exhausted. and his direct regard right Amendment with to counsel had ended his Sixth in the normal examinations,27 which were conducted those two pending. prison administration, no trial of with course objection Finally any Stephens to the admission has waived opinion vacat- Eleventh Circuit issued its the 1988 examinаtion. The ing shortly April 22, 1988, there- death sentence Stephens, neurological to “rule after, a examination of prison by any significant A Dr. Slade. disease,” was conducted out report examination was on Dr. Slade’s states that notation lawyers undisputed “requested by that none of the AG’s office.”It is Stephens representing At notified about this examination. were by the State from of Dr. examination were elicited the results Slade’s expert expert testified The defense a defense on cross-examination. Stephens, report analyzing while he had reviewed Dr. Slade’s that expert, jury part report who of Dr. Slade’s read to the heard diagnoses mental retardation and it affected his denied questions object Stephens to the State’s mental illness.28 the defense witness later did not Stephens to the 1988 examination. objected grounds the State called Amendment when on Sixth regarding testify the 1988 exami- to evidence Dr. Slade to rebuttal nation. argument persuaded not the State’s
We are right because, at the 1988 examination no Sixth Amendment had yet Supreme though not denied the Court had even the United States virtually petition trial was assured certiorari, a new for April the Elev- death sentence was vacated 1988 when (III) (B). Buchanan, See 483 U. S. at id. See 539) (1987) (no con Pennsylvania Finley, 95 LE2d 481 U. S. SC to the ex right become final due after the conviction has stitutional to counsel defendant’s appellate process). haustion of the thought emotional report content and exhibited normal stated tone, Dr. that he had presidential also told Slade candidates. and that he knew grade. 12th finished the custody enth Circuit. and the State knew that Ste- phens certainly almost faced a second where Further, the mental status would be an issue. phens State knew that Stе- represented by necessary However, counsel.29 “'it is object actually offered, to evidence at the time it is and failure to do any objection party] might [the amounts to a so waiver which have ”30 [Cits.]’ Stephens’s had. claim that the 1988 examination results should not have admitted therefore waived because the already objection, part report heard, without of Dr. Slade’s *6 that dealt with mental state. complains prosecutorial also about misconduct because Attorney by allegedly ordering office,
the nation without notice to General’s the 1988 exami- engaged parte counsel, in an ex party represented by communication with a it knew to be counsel.31 Attorney requested hearing The General a remand so that could be hearing, Attorney held on this issue. At the of members the General’s request examination, office testified that Slade’s sultation did not the and Dr. supervisor, “requested by who wrote AG’s office”on con- the
request portion report, why of the did not he remember Attorney made that The trial notation. court examined the General’s pertaining file and discovered no documents an to examination request. Therefore, while we are concerned about the unusual cir- cumstances of the examination, we are constrained to conclude prosecutorial that there is insufficient the to find misconduct Attorney General’s office associated the examination. 5. Because sentence, we have reversed death we need Stephens’s remaining not address enumerations of error. Judgment except concur, Hunstein, reversed. the All Justices Car-
ley
Thompson, JJ.,
who dissent.
Thompson,
Justice,
dissenting.
Although
guilt-innocence
prior
trial was held
to the effective
§ 17-7-131,
date of OCGA
it was determined
the Eleventh Circuit
Appeals
Court of
was not denied effective
of
assistance
during
proceeding.
counsel
That Court took into consideration
psychiatric
showing
the results of a 1979 court-ordered
evaluation
disability
Stephens Kemp,
“no evidence of a mental
846 F2d
or disorder.”
(11th
1988).
Cir.
The Court concluded that trial
counsel’s reliance on that evaluation “was reasonable insofar as the
29 Stephens’s
represented Stephens
years
habeas counsel had
for several
of habeas
corpus litigation against
lawyers
appointed
the State. One of
habeas
was also
be his trial counsel for the 1989
trial.
(4) (393
60)
South,
123, 126
(1990),
App.
Guthrie v. Bank
quoting
195 Ga.
SE2d
Hall
689) (1978).
County
Baker,
App.
Mem. Park v.
SE2d
(A) (1).
See DR 7-104
[there was]
proceeding,
guilt phase
no failure of counsel
regard.”
retarda-
Thus,
neither had a viable mental
Id.
time
counsel deficient
of his 1980
nor was
tion defense at the
failing
inquire
the matter further.
into
Stephens’
years
majority
sec-
later, would reverse
Almost 20
court failed to instruct
ond
trial because the trial
question
proof
preponderance
on the
of the evidence standard
on
of
mitigation
imposition
mental retardation raised
penalty.
majority premises
the rationale
its conclusion on
death
(1991)
(406
Fleming v.
Foster,
of Zant v.
corpus
habeas
cases
Zant,
I am authorized to state that Justice Hunstein ley join in this dissent. — 4, 1998
Decided December 17,1998. Reconsideration denied December appellant. Johnson, Carroll, D. John R. for Peter Attorney Craig, Attorney, Baker, Thurbert E. Daniel J. District Attorney Deputy Mary Westmoreland, General, General, Paula Beth appellee. Attorney General, Smith, for K. Senior Assistant v. THE STATE. S98A1193. SUITS (507 SE2d Justice. Sears, appellant, appeals for Suits, Marcus from his conviction stemming the death of Melinda Garrett and
malice murder from his conviction for from during
possession the commission of a firearm including felony.1 appeal, issues, On Suits raises numerous admitting hearsay, permitting and erred in the trial court erred the medical examiner to
testify that the cause of death was a homi- contentions, we con- cide and not a suicide. With clude that all to Suits’s merit, that, them are without as for but two of any occurred, it contentions, those two if error was harmless. Accord- ingly, we affirm. County Department April 24, 1995,
1. On the Hall Police emergency personnel responded, other a 911 call at the mobile to Upon arriving, home firemen found of Suits Mеlinda Garrett. large lying Melinda on a sofa with a head wound covered with towels. baby lay Melinda, blood, A next to covered but unharmed. pistol right-handed, Melinda, in her At the who was had a left hand. gun police scene, crime Suits told officers that he had taken a from “mess,” the bedroom to kill himself Melinda had taken his life was a but that because gun him. Suits stated that he then went the from living bedroom, that, to the he came the back room, Melinda, when back into Zachary, holding while their son shot herself argued day. head. Suits he also stated that and Melinda put Suits added that he had the towels around Melinda’s wounds. changed story Suits later in his second statement police. sitting gun He stated that Melinda on the sofa with the gun standing he, her, cocked when while in front of tried to take the struggled get gun her, from her. As he from he stumbled back- grabbed gun gun’s According Suits, wards as she barrel. accidentally discharged, striking addition, Melinda in the In head. *8 24, 1995, April May The crime on occurred on and Suits was indicted 1995. Suits guilty August 28, day. found on and sentenced that same Suits filed a motion for 27,1996. September reporter transcript new trial on The court the trial on October certified 11, 1997, 1996. Suits an new trial March and the trial court filed amended motion for on amended, a notice denied Suits’s motion for new as on November 1997. Suits filed 22,1998, appeal 19,1997. April on December The case was docketed this Court on orally July 14, argued 1998.