*1 STREET THE STATE. 30644. Presiding Justice.
Undercofler, Street, The was indicted appellant, George robbery for murder and armed County Jury Pierce Grand a 14, Following trial occurring on October 19, 1974, 1974, ap- to December from December to and sentenced was on both counts convicted pellant robbery. for The case death for murder and life armed sentence appeal here and review imposed.
I. of the Evidence. Summary 1974, the On the morning appellant’s of October wife, into labor and was Ruby Taylor, common-law went The County taken to the Pierce Hospital delivery. be patient could before hospital policy required room) (treatment room emergency transferred from the to to had be made hospital, proper arrangements into cover the hospital expense. a.m., appellant hospital
The seen at the at 6:30 was at on October p.m., p.m. 9:00-9:30 and 2:00-2:30 again occasion, noticed to 1974. On latter was appellant his left fingers around two wrapped have a bandage Ruby bill of hospital on the paid hand. He also $29.00 Taylor. victim, Herrin,
Mr. M. drove a school bus B. "Red” unattended cab was a taxi service. Herrin’s operated A for the noticed 12:30 search p.m. subsequent first at his his cut and finding victim with throat body, resulted wounds, first in well placed other head an old fourteen stab blood an house. There were numerous behind abandoned around the crime stains cab and the house where occurred. in the victim’s cab.
The had been appellant seen apprehended appellant The was subsequently he made rights after advised of his constitutional being statement, as follows: summary lunch, before hospital,
After leaving drive him to his Mr. appellant contacted Herrin home, at When arrived her they mother-in-law’s home. returning before minutes for a few stayed appellant into town where him back then drove Mr. Herrin the taxi. attempted telephone mother, Street his did who phone. appellant answer the then had Mr. Herrin him home, return to his mother-in-law’s and thereafter again him drive back into town he un- where tried successfully point, to call his mother. At that Mr..Her- appellant rin informed the that his fare now $38. *2 appellant only The had knew he so he instructed Mr. $20 Herrin to drive him to his brother-in-law’s where he get money. would He directed Mr. Herrin to the pretense abandoned house under that his they brother-in-law resided there. When arrived at the appellant house inside, went returned and told Mr. apparently Herrin that his had brother-in-law moved. pay Mr. Herrin then informed Street that he must the fare appellant or he would him take to the sheriff. The stated going that he was not office, to the sheriffs at which time got they tussling. Mr. Herrin The out of the taxi and started appellant drew his hawk bill knife and slashed Mr. Herrin. He ran then into the house followed Mr. appellant through Herrin. The ran the house and circled behind through Mr. Herrin. Mr. Herrin continued house and went over near the turned, well and as he George appellant pushed Street him head first into the well. The
then ran to the taxi and drove back into Blackshear where he abandoned it. belonging including
Personal victim, items appellant wearing billfold and a watch had been seen appellant were found in a search of the house where the living weapon, as well as the murder a hawk bill knife. autopsy
An revealed that Mr. Herrin suffered multiple numerous knife wounds. The cause of death was deep drowning. knife wounds and
II. Enumerations of Error. appellant alleges 1. In Enumeration 1the the court overruling change erred in his motion for of venue. grounds of the motion were extensive adverse pre-trial publicity making county a fair trial surrounding danger counties unobtainable, violence to the defendant.
We appellant note there was no violence toward the during ground change the trial. That much venue is moot.
The appellant based his motion on news articles in the Blackshear 17, 1974, Times on October October 1974, and November 14,1974, and the Waycross Journal Herald on 17,19, October 11,1974. and November
Long-time residents of the county, state, called testified that they believed the appellant get could a fair trial the county.
The resulting prejudice alleged by appellant is, "During procedure selection at the trial itself 16, 1974, juror, Mrs. J. P. December Knowlton, indicated that she had a fixed opinion as to the guilt (Tr. 2) appellant. it is Although record, not reflected numerous jurors indicated on voir dire that they were acquainted with the facts of the case either through having read about it in the or some newspaper other means.”
We note that juror, Mrs. J. P. Knowlton, was not considered until after jurors twelve and the first alternate had been selected. She was then excused the defense. There is no indication of how this prejudiced could have *3 the appellant. (216
In Jarrell v. (1975) held, this court ". . . grant or denial of motions for change of venue in criminal cases lies within largely the discretion of the trial judge. exercise of that discretion will not be reversed on appeal unless is made ” to appear that there has been an abuse of discretion. . . (150 citing Anderson v.
(1966) and cits. No abuse of discretion is demonstrated § here. Code Ann. 27-1101. we are
Although satisfied that the trial court did law, not err under Georgia the increasing coverage of criminal matters the news media and the attendant litigation justifies an examination of the standards developed Supreme Court of the United States the Due Process Clause of the Fourteenth Amendment and the to trial right by jury under United States Constitution.
In v. States, (1959), Marshall United 360 U. a S. court, case in involving conviction federal Court of the United States held that the harm to the
petitioner resulted prejudicial when information denied admission into evidence was brought before the trial) jurors through newspapers (during requires The Marshall decision granted. new trial be was based on supervisory power the court’s to formulate and apply for enforcement of the criminal proper standards law Florida, In Murphy 794, 798 the federal courts. v. 421 U. S. (95 589) (1975) SC 44 LE2d held, court "We cannot agree that Marshall any application has beyond the federal courts.”
Likewise, we must conclude that the recent case of (5th United Williams, States v. Cir., 523 F2d 1203 1975), involving conviction in federal court was based on an application of those standards for enforcement of the criminal law the federal courts.
The cases pertinent to the process due standards state trials have been placed perspective by the United States Supreme Court in Murphy Florida, supra. The court there held that juror exposure to information about a state defendant’s prior convictions or to news accounts of the crime with which he is charged do not alone presumptively deprive the defendant of due process. The court distinguishes its recent cases with dealing state court convictions. In Irvin Dowd, 366 U. S. SC 6 LE2d
751) (1961) eight of the twelve jurors who tried the case
had formed an opinion that
the defendant was guilty
before the trial began. The court
there found actual
prejudice to a degree that rendered a fair trial
impossi-
ble.
In Rideau
Louisiana,
LE2d
the court held it was a denial of due
process of law to refuse a request
for a change of venue
after the people of the parish had
exposed
been
repeatedly
television)
times on
and in depth
spectacle
petitioner personally
confessing
detail
to the crimes
with which he was later to be charged.
*4
(85
In
Texas,
Estes v.
543) (1966), and
Sheppard Maxwell,
(86
In of the Supreme each these cases Court United States overturned the state court conviction in a trial utterly obtained that had been atmosphere press corrupted by coverage. under Murphy, supra,
From we conclude that the States, decisions of Court the United find that not petitioner trial, to did receive a fair (1) petitioner must show the trial setting of (2) inherently prejudicial or that the jury process selection prejudice degree showed actual to a that rendered fair trial impossible.
The appellant Street has shown neither.
We conclude that the trial court did err either motion denying federal law of venue. change appellant’s
Likewise Enumeration 3 that the court erred in to refusing excuse a who stated that she had juror a preformed opinion the guilt as to or innocence of the appellant is without merit.
2. In Enumeration 2 appellant court alleges erred in to overruling appellant’s objection qualification by the state of the jury opposition as to capital punishment, and in appellant Enumeration 39 the alleges the court erred in correcting transcript relative to the voir dire examination of as to their jurors opposition capital proceed- -trial punishment post ing.
These
enumerations
present
the same issues
recently
considered
State,
this court Davis v.
241).
SE2d
that,
We there
"In
recited
Owens
(1975)
Attached to record in the case of George Street ais on motion hearing for new trial and motion to cor- rect At transcript. the hearing testimony was heard the voir dire concerning examination of a jury panel member for scruples conscientious against imposition the death At penalty. the same hearing the record of the superior court clerk of the jury list used selecting jury the case Street, of State v. George Term, 1974, December with annotations by the clerk indicating excuse court, by state, defense, was used and attached to the trial court’s order without This objection. constitutes an official record of the reasons for excuse. From that record we can determine juror that one was probably improperly excused and it is unnecessary for us to consider the substance of the order of the trial court supplementing the record or the record of the hearing that purpose or the trial judge’s authority to do so § Code Ann. 6-805.
Although
appellant’s
objection
qualification
state of the jury as to
opposition
capital punishment
is not meritorious, nevertheless
reporter’s transcript
is silent concerning excuse of this
juror and we are unable to
if
determine
the examination
was adequate under Witherspoon
Illinois,
These enumerations
are without merit.
8,10,
5, 6, 7,
12,13, 14,15,16, 18,
Enumerations
19, 20,
24, 25,
and 32
argued
appeal.
were
(c) (2)
Although normally under Rule
Court of
Georgia,
those
enumerations
would be considered
abandoned,
nevertheless,
have
we
view
sentence
each of
imposed, examined
these enumerations
and find them to be without substance or merit. We have
also
9,17, 26,
28, 29,
examined
Enumerations
*6
and find
to be
them
without
foundation in the record or
matters within the sound
judge
discretion of the trial
State,
which no abuse of his
v.
discretion
shown. Moore
(146
895)
221
(1966);
State,
Ga. 636
SE2d
v.
220
Gravitt
(141
893) (1965);
State,
Ga. 781
(172
226
SE2d
Butler v.
Ga. 56
399)
(188
(1970);
State,
SE2d
v.
Tanner
4. In 4 Enumeration the appellant alleges, "The court erred in overruling appellant’s suppress motion his purported confession to the crime.”
In a hearing
suppress
on the
appellant’s motion
the court heard
and considered
testimony
documentary
both
evidence from
sides
equivalent
a Jackson-Denno
(Jackson
(84
Denno,
v.
hearing
(1972); Brown Ga. The trial did judge not err the motion to overruling suppress inor admitting the statement of defendant evidence.
5. 11,-21, 22, Enumerations argued 40 were not be considered abandoned. would normally on appeal Court.) (2) (Rule (c) However, view of have examined each of these imposed, sentence we enumerations and find them to be without substance or merit. the court alleges
6. In Enumeration23 the appellant 28 into evidence over Exhibit admitting erred in State’s appellant. objection is that here argument The essence of appellant’s (a the trail portion showing Exhibit 28 photograph) red photo to be a appears the house of what through Testimony substance was inadmissible. liquid the victim that this was the route taken appellant was yard in the front appellant after he had been cut The exhibit and in fact had been retraced the victim. did not err and material and the trial court was relevant in its admission. 33, 34, appellant In Enumerations appellant’s erred in
alleges overruling the court attorney motions for mistrial or the district permitting when, to argue prejudicial matter during sentence, state’s argument attorney the district argued: crime], facts of the "You the heinous relating
[After it, here, if tell Red’s spirit you think of and Red’s is still bad; had spirit it wasn’t so this fellow must have *7 him; that he’s entitled to life. Look back something good over and family good tell Red’s this fellow has some got him; mistake; hu;rt that it was all a that he didn’t mean to (After Red.” trial motion for mistrial was made the court admonished attorney, the district "Just don’t mention the family any more. Just talk the and about case motion.) crime,” defendant and the overruled bit, "To into the law a little go just may please Court, we have the death for the most horrible crimes, these horrible crimes such as aircraft hi-jacking, murder, and, armed robbery, rape ...” "In one of our very cases, famous State, Hawkins versus the 25 Ga. may it please Court, used language by the learned Justice 'Human says: day, life is sacrificed at land, throughout with more indifference than the life ” of a if it dog, especially be a good dog.’
315
judge
admonishing
The
action of the trial
timely
to,
family
counsel
"Just
mention the
anymore”
don’t
any possible prejudicial
removed
effect of that
remark.
State,
See Coker v.
All
supra,
and cits.
of the re
p.
marks here were
during
phase
made
the sentence
prosecutor
trial. A
for
may argue
sentence
State,
plausible
offer
for
position.
reasons
his
Allen
187
(200
State,
(1938);
Ga.
SE
Strickland v.
(2)
(75
(1953);
Ga. 675
State,
SE2d
Chenault v.
(215
223) (1975).
SE2d
The
may
district attorney
urge
(4)
severe punishment.
State,
Bailey v.
The record does not reflect a manifest abuse of discretion overruling the motion mistrial requiring reversal by this court.
8. In appellant alleges Enumeration 36 the the court erred in overruling appellant’s motion to quash. purpose of the motion to was that the court quash should declare the of Georgia laws the crime of defining murder and of death providing punishment therefor as unconstitutional applied as to the defendant in this per case and se.
Every issue raised herein has been raised in earlier cases before this coming Coley court with beginning 612) (1974) and in each instance of these constitutionality Georgia laws has been upheld. presented Nothing here convinces us that the statutes should be overturned.
9. In 37 the appellant alleges Enumeration court erred in overruling appellant’s motion discovery compel disclosure.
Appellant’s motion, motion was a wide-ranging in argument to the although only trial court evidence favorable to the defense requested. The state promised to furnish laboratory reports as defense soon they obtained them.
Appellant might has not his be shown how case helped or materially prejudiced by other evidence specific in the hands of the state.
There is ho statute or rule of which practice *8 State, requires discovery cases. v. 227 criminal See Pass 316 779) (1971). (12) (182 SE2d 730
Ga. Maryland, v. Brady reliance on puts appellant 215) (1963). (33 In Hicks 1194, 10 LE2d U. S. 83 SC 377 30) (1974) (207 we held: State, 393, SE2d v. 232 Ga. 396 its file open to the prosecution does not "Brady require pre-trial or for the defense general inspection F2d 1107 Moore, 439 v. also United States discovery. See 1971). (Sixth the burden has Cir., appellant . . The prejudiced, materially has been how his case showing in camera to make an the trial court declines even when 670, F2d 677 Harris, 458 United States v. inspection. See 1972).” State, 700 (Fifth v. 230 Ga. Whitlock Cir., See also 865) State, 232 523 (198 v. Ga. (1973), and Wanzer SE2d 466) (207 (1974). (8) SE2d merit.
This enumeration is without "The appellant alleges, 10. In Enumeration 38 the motion for new overruling appellant’s court erred amended, which portion alleged trial as especially array did challenge appellant that counsel trial and that prior traverse to grand juries have been done.” should array made to the
Appellant timely challenge no In for a challenge traverse order juries. either the grand be entertained jurors of the "to array grand to the return of the court, be made prior trial must show that he had no indictment or the defendant must constructive, of such knowledge, alleged either actual or prior to the time grand jury of the illegal composition otherwise, is returned; objection indictment was (208 State, 703, 232 708 v. Ga. deemed to be waived. Estes 806) (1974). State, v. 232 Ga. Accord, McHan SE2d State, (2) (207 v. 226 Ga. (1974); Simmons 471 SE2d State, (172 210 Ga. (1970); 110, 111 Williams SE2d 217) (1954).” Sanders SE2d showing No such until urged made in this case and this was not ground challenge In for a trial and conviction. order after trial by the traverse to be entertained array jurors him. court, upon is jury put it must be made at the time the criminal long required "The this state has procedure time lists at the jury defendant to raise a challenge right him’ he his upon or else waives 'put See Williams Ga. object.
217) (1954); Hill Stynchcombe, 225 Ga. 127 SE2d legal The which sal- policy upon utary rule rests that an accused cannot sit back and gamble upon dissatisfied, the verdict and if then, complain of the jury’s selection process the first time after he been Young has convicted.” 232 Ga. 439) (1974). 286
The appellant offered no support evidence of his allegations.
This enumeration is without merit.
11. In supplemental 42 the Enumerations and appellant alleges the trial in not limiting court erred the jury instructions Ann. required by those Code (b) (Ga. § 27-2503 L. and 1974, pp. failing give the jury written on mitigating instructions circumstances or The trial a full and mercy. gave judge instruction complete on mitigating and aggravating circumstances. He the gave written instructions on jury circumstances raised the evidence a aggravating by as guide for possible their findings as Code Ann. required (c). § 27-2534.1
These are merit. enumerations without 12. In supplemental appellant Enumeration the alleges, failing "The court erred in instruct properly if life jury as to insure that presentencing stage so crime, can be constitutionally punishment taken as only life will be taken under full and exact requirements of the process law as is the due required clause of the Fourteenth Amendment the United States of I, I, and Art. Ill Constitution Sec. Par. of the Constitution of Georgia.”
We believe the trial did jury court’s instruction to the with full comply and exact requirements of the cited provisions the United States Con- stitutions. enumeration is without merit. This
III. Sentence Review. In our sentence review we have considered circumstances found aggravating concerning evidence in court. crime introduced We L. have reviewed the Ga. required by sentence as (Code (c) 1973, p. (1-3)), § 159 et we Ann. 27-2537 seq. (1974), Coley did penalty- the death case involving in each subsequent of death the sentence under this statute. We conclude the influence imposed here was imposed evi- The arbitrary factor. prejudice, any or other passion, following stat- finding of the supports jury’s dence circumstances. utory aggravating while murder was committed offense of (Code felony capital in another appellant engaged (b) (2)) § Ann. 27-2534.1 and: vile, wantonly outrageously 2. The murder was or torture, depravity in that it involved horrible or inhuman Ann. mind, an of the victim. Code aggravated battery (b) (7). § 27-2534.1 in this have the evidence and sentence
We compared appendix similar cases contained case with *10 to death opinion. to this Street’s sentence George attached is or disproportionate for murder not excessive both the considering cases imposed in similar penalty crime and the defendant. concur, except All the Justices Judgment affirmed.
Gunter, J., who dissents. July 9, Argued January 20, 1976 1976 Decided Rehearing July 1976. denied Strickland, Bennett, Jr., Dennis for E. Kontz J. appellant. Strickland,
Dewey Hayes, Attorney, Dean District Bolton, Attorney Assistant District Arthur K. Attorney, General, Atkinson, Attorney Kirby Assistant G. Staff General, appellee.
Appendix.
v.
Lingo
by the court:
considered
Similar
cases
657) (1970); Johnson
(175
State, 226 Ga.
SE2d
496
(175
840)
(1970);
State,
Pass
v.
226
511
SE2d
Ga.
(182
779)
State,
v.
(1971);
v.
227
Kramer
Ga. 730
SE2d
805)
(199
State,
State,
(1973);
319
(210
829)
State,
280
SE2d
(1975);
Floyd v.
SE2d
(214
900)
810)
State,
SE2d
(1975);
v.
Gunter, held just has the United States Court of Supreme the imposition statutory provisions that Georgia’s of the in murder cases are violative the death penalty v. Georgia, of the United States. Gregg Constitution I July Although USLW decided disagree with the of the con- construction Federal Constitution as strued seven Supreme members the United States nevertheless, Court I Gregg, am as a member of the Georgia Court, bound that construction of However, federal law. the Gregg decision the United States Supreme Court not in any does way prevent bridle me as a member of the highest court of this state from construing provisions Constitu- Georgia tion.
Laying the Federal Constitution entirely aside, it is my view that current Georgia’s statutory provisions that permit imposition of the death penalty certain specified unconstitutional; cases are they violate the I Constitution. would therefore hold that imposition of the death instant case constitutionally impermissible.
Cruel and unusual punishment *11 Georgia’s Constitution provides that "cruel and unusual punishment” shall not be inflicted upon a citizen convicted of a against crime the state.
Prior 1972, no court in nation to my this knowledge had ruled that the imposition and out carrying of the death penalty constituted cruel and unusual punishment in the constitutional sense.1 29, On June the Supreme Court of the United States said: "The Court v. P2d
1People Anderson, 6 3d Cal. 628 (1972).
320 death of the out carrying and imposition that
holds unusual and cruel constitute cases in these penalty Fourteenth and Eighth of in violation punishment Five U. S. 238. Georgia, Furman Amendments.” Ias and concurring opinions, filed that court of members of imposition opinions, concurring those interpreted "discretionary system” penalty the death in of violation punishment and unusual cruel constituted of imposition but proscription, the constitutional did not "mandatory system” under a penalty in violation punishment unusual and constitute cruel exactly I said proscription. the constitutional State, Coley in my part opinion concurring 612) (1974): "I therefore hold would authorizing imposition statutes the current 'discretionary system’ have created of the death this imposing 'mandatory system’ to a opposed are unconsti- these statutes and penalty, ultimate p. tutional.” opinions
My interpretation concurring because the obviously wrong, Furman was 2, 1976, ruled in July United States on Court of the Carolina, that a Woodson v. North USLW Eighth "mandatory death sentence statute violates However, Fourteenth Amendments.” is of some many lawyers small to me that eminent consolation iñ the jurists interpreted concurring opinions the five I did, same manner and even Mr. Justice Rehnquist has recently determining meaning said that easy in Furman is "not an task expressed concerns those manner which considering glossolalial Carolina, 44 expressed.” concerns were Woodson North (1976). USLW
I think I positions that understand the constitutional Mr. Brennan and subject enunciated Justice Marshall; I I Mr. Justice also believe that understand the Justice, enunciated the Chief positions constitutional I Blackmun, but Mr. Justice and Mr. Justice Rehnquist; wholly am unable to understand constitutional positions Stewart, Mr. Mr. set forth Justice Justice White, Powell, Mr. Justice and Mr. Justice Stevens their respective Furman, opinions Gregg, *12 attempt to any I therefore abandoned have Woodson. a subject on this on personal position own my establish as construed Federal Constitution construction of the of the Court Supreme of the by present membership the this sub- on I hereby my position United States. establish Georgia. of ject solely provisions of the Constitution ruled of Georgia 1964 the Court As late as (1964), that Balkcom, in Sims rape death in a forcible penalty the of the of imposition involved, not "cruel case, being homicide not the Eighth proscribed as punishment” unusual Georgia in Con- the equivalent and its Amendment the "So as long in that case: This court said stitution. crime, this any penalty the death legislature provides be no there can rape, court it for forcible uphold will of the sentence Accordingly more crime. reprehensible as contended.” death neither of the Constitutions violates p. majority Coley supra,
Ten later in years imposition the the of this court held membership excessive rape the in a forcible case was penalty death such had Georgia legislature provided even the though case that heard the though and even the penalty rapist. had on the convicted imposed penalty the death the "We, therefore, In said: conclude Coley majority and have no here is excessive penalty imposed itself, alternative, of the statute language under in to set aside the sentence of death this case.” except p. imposition this court held that 835. Two members of I concurred the death was not excessive. penalty Coley on the Coley penalty aside of the death setting under impermissible it was ground constitutionally penalty. "discretionary system” impose Georgia’s the death had authorized legislature Because be majority held penalty under statutes case had constitutional, and because the jury hearing imposed the death under statutes held penalty constitutional, I that the majority only to be can conclude held be excessive majority imposition penalty of the reason simple in that case for the unconstitutional punishment” that it constituted "cruel and unusual States or the United either Constitution Constitution both.
A membership of this court has also majority imposition held that of the death mere cases, involved, armed robbery a homicide not being excessive and Gregg unconstitutional. *13 (1974). I has, therefore, held,
This court as read the majority in decisions that the Coley Gregg, imposition instances, death in penalty these two stated although by authorized statute and a is imposed by jury, excessive and unconstitutional. I
Because of the Georgia’s am view that current system for the death imposing penalty is purely discretionary jury impose with the that votes to or not that impose penalty, the present system collides with Georgia constitutional that provision prohibits of "cruel and imposition upon unusual a punishment” I convicted citizen. realize that a plurality membership of the Supreme Court of the United States has held that "discretion” Georgia system is channeled: "No can a longer jury wantonly and freakishly sentence; the death impose it cir- is always cumscribed by the legislative guidelines. In addition, the review function of the Supreme Court of Georgia affords additional assurance that the concerns our prompted decision in Furman are not present any significant degree procedure the Georgia applied here.” Gregg v. Georgia, USLW 5246.
I respectfully with disagree Stewart, Mr. Justice Mr. Powell, Justice and Mr. Justice My experience Stevens. cases tried under reviewing the current system me a convinces jury’s channeled, discretion is a Georgia jury can "at whim” its impose not impose the death penalty any case wherein the say statutes it can be imposed and where the statutory aggravating circumstances are found present to be and unrefuted. Furthermore, my me that experience also teaches majority of the "at membership of court can its whim” allow a penalty death stand or set aside excessive and unconstitutional.
I am personally unable subscribe to such any system myself grounds. July constitutional Prior to for the "mandatory system” I that a thought had as that conceived such penalty, of the death imposition Furman, Louisiana, Oklahoma after Carolina, North muster, state and federal. both would constitutional pass the United members of of three However, plurality "mandatory system” that a say Court Supreme States Federal Constitution and two members of violates the any system Court hold that Supreme United States for violates the Feder- imposing penalty death Therefore, al "mandatory system” Constitution. would receive constitutional con- my approval gets differing stitutionally grounds convicted on federal as that of the United States reasons Court currently court is constituted. imposing
I current Georgia’s system think unconstitutional, because it violates § Ann. 2-109. Code Georgia Constitution. Impartial Jury
Trial an accused that an provides Constitution also Georgia’s Code impartial jury.” "trial an citizen is entitled to that a juror *14 Georgia currently provides § Ann. 2-105. law of the death imposition to the unalterably opposed who is in case. capital is to serve as a a penalty ineligible juror jury by from the automatically Such a is excluded juror (4) and §Ann. 59-806 the trial "for cause.” See Code judge Eberheart v. I
In
consider
such as
"discretionary
system,”
be,
automatic exclusion of
current
to
Georgia’s
system
in
case
jurors
capital
deprives
from
the trial of a
serving
by
mandated
"impartial
jury”
the accused citizen of an
as
Georgia
Constitution.
berheart,
I
supra,
E
said
opinion
In
in
my separate
erroneous, and
jurors
of the
for cause was
"exclusion
trial. See
of a new
grant
such exclusion would require
LE2d
Kiff,
Peters v.
A and believes juror strongly mightily who just the death in cases is imposition penalty capital unalterably in who is partial capital juror case as is a opposed imposition of the death in a penalty capital If automatically case. one is excluded law from serving in case, such a it my is view that the other should also automatically be excluded. Georgia’s "discretionary system,” coupled with the automatic exclusion from jury service in capital cases of non-capital-punishment- oriented-jurors, guarantees the state will have a jury partial during guilty or not guilty phase of the trial and during the discretionary sentencing phase of the trial. cases,
Georgia juries capital because of this mandatory service, automatic exclusion from not, do in my opinion, reflect the conscience of the community, such juries do not constitute a re- presentative cross section of the community population constitutionally required determination guilt or innocence and for determination of the sentence be I imposed the event of conviction. think the Georgia system with this built-in jurors automatic exclusion violates the "impartial jury” provision of the Georgia (Code 2-105) § Constitution Ann. and the "due process” (Code provision § the Georgia Constitution Ann. 2-103).
On
22, 1975,
December
the Supreme
Judicial Court
of Massachusetts
held a
un-
statute
constitutional
on state-law grounds without
respect
federal constitutional
law and the
placed
construction
the Federal Constitution
Court
of the
United States.
O’Neal,
Commonwealth
For the reasons I dissenting opinion, stated would hold that system the current imposing the death penalty violates three specific provisions Georgia Constitution, 2-103, 2-105, §§ Code Ann. *15 2-109.
I respectfully dissent.