*1 105 against public policy.4 forfeiture
Judgment All the Justices concur. affirmed. — 27, February Decided 27, 1991.
Reconsideration denied March Arnall, Gregory, Evans, Golden & Randolph J. appellant. McLeod, Edwards, Edwards & Hartley, Robert B. Rowe & Fowler, Joseph Fowler, H. appellee. WADE
S90P1631. v. THE STATE. Presiding Justice. Smith, This is appearance the second of this death case. The previous opinion. facts are recounted in our Wade There we held that the evidence was “suf ficient to establish guilt reasonable doubt the defendant’s the offense of malice Id. murder.” at 325. Wade’s conviction af was firmed, but his sentence was reversed because of an error sentencing-phase court’s charge, and the case remanded for resen tencing. sentencing phase The has now been jury, retried before a new and Wade appeal. has been resentenced to This is death. his trial,
1. inAs the first the state contended that offense murder was committed while the engaged offender was the com- (b) (2). aggravated battery. mission of OCGA 17-10-30 § agreed, circumstance, and found this statutory aggravating as did the jury at sentencing the first trial.
Wade contends the insufficient this case “raise[] into that . . involving aggravated battery class of cases jus- that can tify a death sentence.” disagree, previous opin- We and adhere to our ion that prove the evidence was ag- sufficient to Wade committed an gravated battery preceded separate killing and distinct supra act from the act causing death. Wade at 330. The evidence was sufficient b support jury’s finding. § (b) (2); (3 c) 588, OCGA 17-10-30 Davis written order dated amendments were several argued on the latter date. On and after the sentencing The state’s motion to reconsider In this instance on January parties phase May 22, were was retried from $10 April filed, granted equals 17, 1989, the motion was heard on .0002 of the total extensions of time to file their April the sentence reversal through docketed payments. filed his motion April January this court on October 1989. Sentence was briefs, denied on June 25, 1990, for new trial. After the case was and denied 22, imposed 4, 1990, orally 862) (1986).2 agree Moreover, with Wade’s contention we do sufficiently justify aggravated to sen- was not that tence. We crime dispro- excessivenor sentence is neither find that imposed portionate cases, both the in similar to sentences (c) (3). similar cases OCGA 17-10-35 crime and the defendant. listed in the this imposition Appendix support a death sentence *2 case. mitigating were on circumstances 2. The court’s instructions b) (1983); Romine v. deficient. supra at
Davis charged jury on reasonable doubt: 3. The trial court the person provides The which is of a crime law that when a convicted by punishable a shall sentence of death be unanimously beyond imposed a finds unless the be statutory aggravating cir- that at least one reasonable doubt present. . . . cumstance says. It a
A fair-minded, is a doubt of reasonable doubt means what honestly seeking impartial juror It is the truth. arbitrary capricious doubt, it is doubt not an arising nor a but a giving If, from conflict in the evidence. after consid- a your case, all of this eration to the facts circumstances wavering, unsatisfied, then unsettled and that minds are the impose you law, to would not be authorized doubt the . . . a death sentence. by failing a
Wade contends the court to tell the that erred evidence” reasonable doubt can arise not but also from “a conflict to “a of evidence.” He contends the court’s failure from lack prosecu- phrase from the include the tion the “or lack of evidence” removed statutory alleged aggravating proving circum- its burden of agree. The in- court’s stance structions were reasonable doubt. We do not juror
sufficient; misled could been reasonable believing from a not have arisen into that a reasonable doubt could lack of evidence. There was no reversible error. alleged by statutory Concerning circumstance person aggra- state, commits the court “a instructed intentionally say, maliciously, vated when he that is to bodily justification provocation, to an-
without or serious causes harm by gave that “a [etc.].” other . . . also the usual instructions and fractured his skull. tissue, in the head At the retrial, heavy as stick and that one original trial, the state blows lacerated proved victim was struck twice scalp, tore brain person presumed intent,” will not be act with criminal but that “words, conduct, demeanor, intent and other could inferred from the motive shown circumstances” the evidence. request giving
The defendant contends the court erred charge request charge was, number This toto: “Defendant respectfully requests fully charge the court to on the element of mal- applied aggravated battery.” request face, ice to complied On its seems However, to have with. been elaborate during charge suggesting conference, somewhat should that the court adapt (b), an instruction on malice from defin- OCGA 16-5-1 ing expressed implied malice as it relates to the mur- offense of explain, yet, just der. But the defendant did not and has not how adaptation such an would read. (b) language
We find no error. The unmodified of OCGA 16-5-1 clearly appropriate give ag- not an instruction to in relation to the gravated battery statutory aggravating circumstance, and we decline speculate utility possible adaptations about the thereof not presented to the trial court or to this court. alternatively, contends,
The defendant court should at charged “specific request intent,” least have on based on his *3 telling jury is, number 4. That instead “maliciously, say, is committed when the defendant that is to inten- tionally justification provocation” and without or serious causes the specified bodily charged harm, the it is com- court should “maliciously specific mitted when the with and intent” bodily causes the harm. This is not a correct statement of See law. Pope (23) 831) (1986). State, 195, v. 212-213 The by refusing give request court did not err the defendant’s number 4. jury:
5. The court instructed the
jury
guilty.
you
Another
at another time found him
I told
As
you
guilt
earlier,
will not be
or inno-
issue
considering only
impose
You
cence.
will be
what
sentence
[taking
. .
consideration]
.
into
all
here
the evidence received
presented by
in Court
both the
defendant. . .
state
These
contends,
erroneous,
not,
instructions
were
as the defendant
did
deprive
major
against
pen
argument
him his
the death
alty.
(13) (376
851) (1989).
State,
Potts v.
port in this sentence, have been form and should disagree. imposed. trial did not err We court life and a sentence by returning deliberations, room further opinion express violating not, contends, an as the defendant (12), supra, at 332 and cits. § v. Ga. 17-8-57. Wade OCGA accepted by subsequent court, verdict, while not which was (b) (2), finding language suffices as in of the exact of OCGA 17-10-30 (7). supra Ga., b circumstance. Romine hearsay by excluding unreliable testi- did not err say mony someone the defendant a witness who overheard away bicycle, on his where the victim rode was still the witness could not heard numerous different customers at her store when identify declarant, and had the out-of-court variety from a stories about the crime (7) (327 Alderman v. Ga. 206 her store. 168) (1985). by denying to to court did err Wade’s motion limine directly relating prevent presenting the state (b) (a) statutory proof the defend circumstances (1) (360 (1987); Ford v. ant’s character. 369) (1983).
Blankenship
uv.
11. In of his mo- his 26th Wade contends the denial foregoing tion for “for reasons.” new trial error all the above and Nothing brief, raised here that is raised elsewhere not enumeration without merit. plain argued,
12. Enumerations 27 and 28 not er- are absent Appeal Georgia ror, find, Proce- we do are waived. Unified (IV) (B) (2). dure, § sentencing jury to 13. Wade it was allow see contends error to prior guilty showing jury’s of malice his indictment verdict of felony supra, State, See v. Ga. at 325- murder murder. Wade may sentencing jury 326 Wade contends been misled prior believing he into had a record or had been convicted of two murders. delivery object
Wade did not of the unaltered indictment sentencing jury. so, and verdict to the Had he done the trial court felony well have excised all references to the murder Nev- count. agree significant possibility ertheless, we do not that there awas many was misled confused about how murders defendant had committed. The court instructed that Wade had been “murder,” convicted and the indictment shows on its face that alleged Moreover, each count the same victim and the same date. presented any evidence was about other murder than the one for which the defendant was convicted. There nowas harmful error. by denying err trial court Wade’s motion change or, alternative, of venue in the v. a continuance. Isaacs (15) (386 316) (1989). State, 725-726 SE2d imposed We do not find that Wade’s death sentence was passion, prejudice, arbitrary result other factor. OCGA 17- (c) (1). 10-35 foregoing reasons,
16. For the Wade’s death sentence is affirmed. Judgment except concur, Clarke, J., All the C. Justices affirmed. Weltner, Benham, JJ., who dissent.
Appendix.
(366
689) (1988);
State,
Newland v.
Ga.
SE2d
Hicks
(352
762) (1987);
State,
State,
Justice Vol. Pattern provide separate preliminary Cases, Criminal does not instructions for hearing sentencing phase. a perior which is of Su- The Council Judges may pur- charges Court be well for this advised draft pose, taking into account the None- concerns raised that dissent. charges theless, whether or such from are to the court available requesting source, those is not excused charges necessary he believes to elaborate of “residual” issue *5 , objected nor to the request no such This made doubt.3 defendant of a trial court Surely, preliminary statement given.4 as the or innocence because guilt consider the issue of jury this cannot that error, be cannot empaneled only punishment, is to decide this error. less reversible much in joins Smith Presiding to Justice
I am authorized state that concurrence. Justice, dissenting. Chief
Clarke, judgment. the respectfully Division I dissent to court, af- appearance of this before this we previous In the the met the standard and held that firmed the conviction 560) (1979). 2781, 61 Virginia, 443 U. LE2d Jackson S. 307 SC case, in this holding the evidence I with that and believe agree verdict, the a trier of light in most favorable to authorized viewed a beyond My a reasonable doubt. guilty find fact the however, question of of reasonable problem, rests on the lack question of residual doubt. presence on the of the doubt but rather a and is not A residual doubt is less than reasonable doubt Nevertheless, I be believe a must enough to reverse a conviction. question in residual doubt its deliberation on allowed to consider put shall whether a defendant be death.
We have noted before:
“The fact a reason- jurors guilt have determined necessarily no enter- juror doubt mean that able does any may be reasonable tained doubt whatsoever. There — — yet genuine upon doubt doubt based reason some confusing. any juror can have doubt about a de The term “residual doubt” While phase guilt, juror guilt-innocence sat trial and who did who fendant’s not finding diminish, doubt, doubt, a a reasonable can a residual doubt entertain entertain leftover eviscerate, concern, believe, way any guilt. in we do not or The dissent’s right empaneled punishment resentencing juror fix trial to entertain previously culpability if he or she had been same reservation about defendant’s empaneled guilt to consider the issue of or innocence. sentence, When a case is as to both the and the defendant are entitled retried state validity innocence, guilt not because the to offer evidence on the issue issue, is at conviction but because the examine the circumstances of needs to punishment. (Empha- intelligently question ... the offense sis to decide order supplied.) Alderman v. whole, discouraged, Nothing charge, prevented, in the court’s taken as a or even jury’s examination of those circumstances. objections general charge, conclusion of defendant’s reservation of at the purports preserve charge, Appeal, Outline of this issue for But see Unified review. (B) (3) (a) 9-12, Proceedings, prohibits objections to sen Par. the reservation of charge. might question objections applies, tencing-phase One further whether a reservation of event, any preliminary instructions.
Ill may possibility; may doubt It exists. reflect a mere be but whimsy juror the — of one Yet several. this whimsical doubt — certainty this absence of absolute real. can be capital guilt abundantly
“The defendant whose seems may obstructing justice engaged demonstrated be neither nor futility vigorous in an exercise when his counsel mounts a proffered slight hope defense on the merits. It *6 unanticipated might persuade success; of it seek to one or prevent unanimity likely conviction; more to for it is more produce only whimsical doubt. Even the the latter serves de juror entertaining fendant, for the doubt which does rise expected to reasonable doubt can be to resist those who impose penalty would State, the irremedial of death.” Cook v. (Unit Balkcom, See Smith v. B, 660 F2d 580-581 former 5th Cir. 1981). strength Because the the consider or weakness of the determining penalty case, evidence in the sentence in I would “you hold that the will the issue of guilt or innocence” rises to the level harmful error such cases. joins
I am authorized to state that Weltner Justice this dis- sent. dissenting. Justice,
Benham, A life has been taken. When such a loss has resulted from a crim- society justifiably outraged, act, inal when the death involves years, society’s outrage magnified. affirming one of tender In charged death-producing act, conviction aof with a society’s outrage. obligation However, court reaffirms our as a goes merely expressing outrage. duty imposes Our also obligation us an criminal must to assure of law and of substantive rules
procedure pursuit duty are is in observed. It of that respectfully majority opinion. dissent to the (Wade appellate appearance In the first this case 482) (1988)), felony appellant Ga. 324 stood convicted underlying felony being aggravated murder with the assault. We re improper charge jury. versed to the sentence because of an appellant again trial, death, On the second was sentenced to with battery being aggravated circumstance this time under (b) (2), permits OCGA 17-10-30 im to be posed “[t]he when offense of . . murder while the was committed engaged battery.” aggravated offender was in the commission of . . . (a) provides OCGA 16-5-24 as follows: he person aggravated when A commits the offense of by depriving him maliciously bodily harm to another causes body body, rendering member of a member of his useless, by seriously body or member disfiguring or thereof. opinion sufficient to show
The main decides the evidence is therefore, battery; was the death sentence aggravated commission shows the was author- A careful review the record authorized. times in head had struck several that the victim been ized find inches which caused laceration Vz type some of instrument clearly in width. This laceration length to Vi inch and Vs hair, the victim’s it was visible because it covered prepared autopsy. There being discovered when victim swelling and produced to the face which was also evidence a blow injuries preceded All stran- eyes. these discoloration around the gulation of the victim. abundantly makes covering
The statute committed, offense to be there must clear that order (2) (1) member, rendering a member deprivation been useless, nor the discolora- disfigurement. Neither laceration eyes victim’s rose to the level of harm swelling tion and around the *7 battery which the statute referred. aggravated takes, conduct, Admittedly, matter form it is criminal what pres- society by citizens are offended its law-abiding odious and all Nevertheless, punishment penalty is a that histori- ence. the death It cally egregious has criminal offenses. been reserved for most life, nothing precious is than and out of is so ordained because more taking exe- an the state authorizes the life abundance caution offenses, and only specifically heinous cution commission only statutory all rules of law and con- then after the time-honored struction applied. have been applied is must first rule of law to be here that criminal laws State, strictly v.
be
in favor of the
Holland
34
construed
accused.
Virginia,
pertinent
v.
455
Another
rule is set out
Jackson
(99
560)
(1979),
ap
requires
443 U. S.
SC
61
307
LE2d
pellate
determine
is
to allow
courts to
whether the evidence
sufficient
guilt beyond
reasonable
the factfinder to determine
defendant’s
can
our
place
imprimatur
doubt. Before we
on the
case,
must
we
determine whether the evidence
sufficient
guilty beyond
committing
find the defendant
a reasonable doubt of
separate
aggravated
offense of
the death occurred.
before
denied,
Burger
(265
796) (1980),
v.
tablish the while view of where we circumstance that murder was committed appellant committing aggravated battery. However, a re portrait. cases renders a different In cases aggravated battery, have affirmed conviction for the evi deprivation member,5 member,6 dence has shown loss of use disfigurement.7 and serious present aggravated battery origin
Our statute had its in the com- mayhem. mon law crime of Code, 1968 Criminal [OCGA § of which Code 26-1305 (a)] part, aggravated battery
16-5-24
is a
created the crime of
mayhem.
in lieu of
[Mitchell
the older crimes
. .
v.
(231
773) (1977).]
State,
disfigurement rendering organ results use- injury ordinarily bring less. The sufficient to the case deprive injured per- within the statute where it is such organ ordinary practical pur- son of the and usual 5 Deprivation of a member: spleen; victim remained in coma with percent rendered boiling disfigurement shot wound to in tion, plastic (1980), Griffin (1983), face and (314 Mitchell v. Loss Serious water thrown on victim Howard v. fractured loss of an of brain App. paraplegic by eyes surgery disfigurement: Veasley use of a member: and 724) (1984), face; requiring destroyed; 170 Ga. jawbone, ear; loss Ewing and 238 Ga. Jarrard v. gunshot 173 Ga. App. permanent use skin loss which had to be Jackson v. loss [287] graft; causing 167, supra, wound to Ingram State, jaw App. an of (1988), (316 scarring. Price v. use eye; until severe SE2d of Drayton 152 Ga. spine; loss of it healed. loss of right App. wired 142 Ga. 797) injuries 142 Ga. Baker v. arm sight. an App. to (1984), App. and eye; immobilize requiring App. leg McCulligh (1985), [565] victim remained App. 167 Ga. App. (263 and (236 several weeks of (237 *8 poor loss of it, App. Ga. with serious (1984), potash eyesight 444) leg; 549) 464) (1977), in Harris (266 (306 (1979), (1977), coma with 75 169 Ga. and 825) (1984), 744) (1981), hospitaliza temporary memory; thrown loss of victim App. gun 731) 477) (c) (3).] Mayhem,
poses § 3 [57 life. CJS origin having Aggravated statutes, in the com- com- of had their light mayhem, be construed crime of should mon law mon law. 53 Mayhem, § AmJur2d merely early injury disfigured law, if an common Under the corporal person diminishing abilities, it his without mayhem. in- Moreover, whatever the of of the constitute crime per- body might any be, if it did not to member physical ability person manently of the to defend affect the may- adversary, annoy it did amount to himself or hem. . . . or member importance organ military or combative destroyed, injured or to which the old common significance special regard, is, however, of no law had whatever mayhem most as a under statutes. constituent by capacity has or defense been lessened Whether the ute looks attack utterly maiming stat- irrelevant immaterial. The and fighting, giving shunning blows, to maintaining integrity person, the natural but completeness the human members and comeliness of organs, plied.] [Emphasis sup- preserving their functions. [Id. 3.] disfigurement” is a matter factual issue “serious (Miller App. determination (1980)); however, must evidence there be sufficient sufficiency determining make In evi- can its determination. require provided dence, no than is for under the stat- we should more require hand, than ute. On the other we should less the statute doing so, careful not to allow the stat- dictates. And we should be interpreted relating aggravating too ute loosely. circumstances to be injuries to the victim this on which State relies to aggravated battery show consisted a laceration which was hidden moving hair, the victim’s hair and was not without head visible bruising, ligature injuries the victim’s neck. and facial marks on testimony Conspicuously any the in- absent from the body juries any deprived would have the victim of member any body, the use of been of his victim member or that the would seriously injuries. disfigured Taking into consideration origin and the the common law of the offense of aggravated battery statute, cases decided under our light verdict, the evidence find the evi- most favorable to the prove aggravated battery dence be insufficient to as an *9 authorizing imposition penalty. circumstance of the death There- fore, I would vacate death sentence and remand this case to the imposition trial court for of a life sentence. — 15, Decided March 27, 1991.
Reconsideration denied March appellant. Walker, Strauss, Strauss & T. John for Attorney, Millsaps, Ott, John W. District J. Ellis Assistant Dis- Attorney, Attorney Bowers, General, Ree, trict Michael J. Andrew S. appellee.
S90P1667. FERRELL THE STATE. Chief Justice. Clarke, penalty Lynn defendant, Ferrell, This The case. Eric by jury grandmother was convicted the murder of his and his robbery possession cousin, and for the offenses armed and of a fire- given arm a convicted felon. He was the death for each of appeal.1 the murders. This is his spent night 29-30, 1. The defendant at December
grandmother’s early morning. Shortly noon, house. He left before stopped by another relative defendant’s found house and the bodies grandmother and cousin Both bedroom. victims had very range. been shot twice head close police scene, While officers were at the defendant returned repeatedly asking happened?” house, tried enter the “What’s police The defendant and other relatives were tion. In the defendant’s sta- interviewed at pockets spent were four rounds of .22 ammu- nition A and over cash. $600 search the defendant’s home turned up a .22 caliber revolver. revolver was identified a ballistics weapon, casings examination as the four murder shell found pocket in the defendant’s the murder were determined to have been fired from weapon. satisfactorily money was unable to for the account
arrested The case filed on heard on on November was The crime September early tried January 4, docketed in this the next occurred September 23, 1989, morning. Amendments 1988. morning April He was through on 10-11, September of December indicted September to the motion were during 24, 30, motion 17, 1987. 1988. A motion for new and oral January filed, denied defendant was arguments term of on the motion was July 1988, were heard 30, trial formally and the