YOUNG v. THE STATE.
S21P0078
Supreme Court of Georgia
May 17, 2021
312 Ga. 71
MELTON, Chief Justice.
FINAL COPY
A jury found Rodney Renia Young guilty of the murder of Gary Jones and related crimes. The jury declined in its guilt/innocence phase verdict to find him “mentally retarded.”1 At the conclusion of the sentencing phase, the jury found multiple statutory aggravating circumstances and sentenced Young to death for the murder. For the reasons set forth below, we affirm Young‘s convictions and sentences.2
1. Young had a seven-year relationship with Gary Jones‘s mother, Doris Jones, that was rife with arguments about money and Young‘s infidelity and included multiple breakups. After Young came to visit Doris in Georgia in November 2007 and the pair became engaged, Doris moved in with Young at his basement apartment in Bridgeton, New Jersey, in January 2008. The couple argued in New Jersey, and Doris moved back to Georgia to once again live with her son, Gary, in Covington. Young wrote Doris multiple letters between January and March 2008, asking her to return to him. On March 3, Young obtained approval from his employer for time off on March 26 to 28. He subsequently contacted his half-sister, whom he had never personally met and who lived in Atlanta, and he told her that he was coming to see her while on vacation. Prior to his trip, Young borrowed a GPS device from his co-worker and obtained instructions on how to use it.
On March 28, Doris received yet another letter from Young, which she did not read immediately. When Doris awoke the next day, laundry that she had washed the night before had been folded, despite the fact that Gary had been staying with his girlfriend and no one else was home. That same weekend, Doris noticed that the laundry room window had a hole in it and that the screen on that window was missing. Testimony, cell phone records, and the memory of the GPS device that Young borrowed all showed that, from March 28 to 30, Young drove repeatedly from his half-sister‘s home in Atlanta to the area of Gary‘s home in Covington. A witness testified
On March 30, Gary attended church with his girlfriend and then returned home with a plan to meet his girlfriend later for dinner. A little after 1:00 p.m. that day, Gary told his grandmother on the telephone that he was arriving at his home and would call her back in 15 minutes, which he never did. Doris discovered Gary‘s body in the home at approximately 11:20 that night and called 911. Gary was lying on his side on the floor in the dining room, and he was bound to an overturned chair with duct tape, a telephone cord, and fabric from some curtains. A bloody butcher knife and a bloody hammer were found next to his body. The victim‘s body had multiple fractures to the skull, the left eye protruded from its socket, there were sharp force injuries to the neck, head, and face, and there were compression marks on the hands and legs indicating that the victim was alive while bound. Glass in a door leading into the dining room from an outside patio had been shattered, and the home showed signs of a struggle, with blood in the foyer, living room, and dining room. The home had multiple writings on the walls, including the following as recounted by an investigator: “ATL mob $25,000, dead in 20 days, 20 days to get out of state or dead, the hit be on you, were know what you drive, ATL m-o-b, I want my f***ing money, $25,000, you work at GRNCS.” The writings were matched at trial to Young‘s handwriting, and investigators testified that they were unaware of a gang called the “ATL mob.”
Upon learning that Young had called her brother-in-law, Doris called Young on the day after the murder. Young told Doris that he would come to get her things and move her back to New Jersey and that he had seen Gary in a dream asking him to take care of her. Investigators interviewed Young in New Jersey on April 3, 2008; he had two cuts on his right hand, and he denied traveling recently to Georgia. A search of Young‘s car yielded printed directions from New Jersey to Covington and Doris‘s ring that had been discovered missing from Gary‘s home, and a search of Young‘s basement apartment in New Jersey yielded Gary‘s cell phone and duct tape that was matched to the duct tape used to bind Gary.
Young presented evidence in the guilt/innocence phase in support of a possible finding of “mental retardation” by the jury, including testimony from staff members at his former high school stating that he had been in special education, had been classified as “educable mentally retarded” and therefore must have been tested with an IQ of between 60 and 69, and had struggled intellectually in academics and in sports. However, Young did not present any expert testimony regarding his alleged intellectual disability or any actual IQ test results. The State countered Young‘s evidence with cross-examination and direct testimony showing Young‘s ability to function normally at work and in various other settings in life. The State also presented testimony from an expert who, although he had not evaluated Young and had not formed an opinion as to whether Young was intellectually disabled, was able to testify about the subject of intellectual disability in general terms.
After reviewing the record, we conclude that the evidence presented in the guilt/innocence phase was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Young was guilty of all of the charges of which he was convicted and to find, considering the conflicting testimony on the subject, that Young had failed to prove beyond a reasonable doubt that he was “mentally retarded.” See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (providing the constitutional standard for the review of the sufficiency of the evidence of a crime); King v. State, 273 Ga. 258, 259 (1) (539 SE2d 783) (2000) (reviewing the sufficiency of the evidence regarding alleged intellectual disability); Unified Appeal Procedure (“UAP“) IV (B) (2) (providing that, in all death penalty cases, this Court will determine whether the verdicts are supported by the evidence).
Pretrial Issues
2. We reject Young‘s argument, including his arguments specific to the practices
3. The trial court properly refused Young‘s attempt to plead guilty but mentally retarded to his murder charge in exchange for a life sentence, because the State objected to such a plea. See Stripling v. State, 289 Ga. 370, 376 (3) (711 SE2d 665) (2011).
4. We reject Young‘s arguments that he is entitled to a new trial based on several alleged discovery violations by the State.
(a) The record shows that the State disclosed the identity of Wanda Wilcher as a potential sentencing phase witness but listed her address as “private” because she had a restraining order against Young. The prosecutor represented to the trial court that she would have informed defense counsel of the witness‘s address if counsel had inquired. Under the circumstances, we conclude that the trial court did not abuse its discretion in not finding any prejudice to Young or bad faith on the part of the prosecutor and, accordingly, in allowing the witness to testify after first allowing defense counsel an opportunity to interview the witness. See Wilkins v. State, 291 Ga. 483, 486-487 (5) (731 SE2d 346) (2012) (applying
(b) The record reveals that Young was aware well before trial of recordings of certain conversations between him and Doris Jones and, more importantly, that the State served him with the actual recordings by the statutory deadline.
(c) The trial court properly held that the State had no duty to disclose the criminal histories of witnesses, because Young had access to those records himself. See Jackson v. State, 306 Ga. 69, 89 (6) (d) (829 SE2d 142) (2019).
(d) After initially noting from the bench that the issue, at least at that time, was moot in light of the State‘s representation that it was aware of no such records, the trial court then also filed a written order denying Young‘s request for any psychiatric records of the State‘s witnesses based on its finding that “[n]o particularized showing of necessity for or even existence of these records ha[d] been made.” We see no error. See King, 273 Ga. at 262-263 (11) (holding that the defendant was not entitled to the psychiatric histories of the State‘s witnesses where he failed to show that the hypothetical records were critical to his defense, that substantially similar evidence was otherwise unavailable, and that the records were not privileged); McMichen v. State, 265 Ga. 598, 611 (24) (458 SE2d 833) (1995) (“In requesting the psychiatric histories of the state‘s witnesses, McMichen failed even to allege that such histories existed.“).
(e) The trial court properly declined to conduct an in camera review of the personnel records of the law enforcement officers who would testify at trial, because Young made no “specific showing of need.” Cromartie v. State, 270 Ga. 780, 785-786 (12) (514 SE2d 205) (1999).
5. Young argues that the State‘s use of funds from a victim assistance account, see
As to the two witnesses at issue who testified regarding Young‘s guilt, their testimony showing his presence in Georgia at the time
Issues Related to the Jury
6. Young challenged the composition of both his grand jury source list and his traverse jury source list. The trial court denied both challenges, and we see no error.
(a) (i) In his challenge to his grand jury source list, Young first claimed that an underrepresentation of African-American persons on the list violated both his statutory and constitutional rights. As in a previous case in which this Court denied relief, the undisputed evidence in Young‘s case showed that the jury commission in [Newton] County, pursuant to this Court‘s directive in the Unified Appeal Procedure, attempted to balance the percentages of various cognizable groups of persons on the [relevant] jury source list to match the percentages of those groups of persons reported in the most-recently-available Decennial Census.
Williams v. State, 287 Ga. 735, 735 (699 SE2d 25) (2010), superseded by the Jury Composition Reform Act of 2011 as noted in Ellington v. State, 292 Ga. 109, 118 (4) n.2 (735 SE2d 736) (2012), disapproved on other grounds by Willis v. State, 304 Ga. 686, 706 (11) (a) n.3 (820 SE2d 640) (2018). See also Ricks v. State, 301 Ga. 171, 173 (1) (800 SE2d 307) (2017) (noting changes since Williams in the Code, in the Unified Appeal Procedure, and in relevant rules). In Williams, the then-established process for constructing the jury list had combined with shifting demographics in Clayton County to result in a disparity of 17.49 percentage points between the percentage of African-American persons on the jury source list and the percentage of African-American persons as shown in the 2000 Census. See Williams, 287 Ga. at 737-738 (2). In Young‘s case, the disparity was 11.67 percentage points, or 11.37 percentage points if only the numbers of citizens involved were considered. See Smith v. State, 275 Ga. 715, 721 (4) (571 SE2d 740) (2002) (stating regarding cases where citizenship appears to be a significant factor: “When alleging underrepresentation of a distinctive group, a defendant ‘must, to establish a prima facie case, present data showing that the percentage of persons in that group (on the jury list) is significantly lower than the percentage eligible to serve on juries.‘” (quoting United States v. Artero, 121 F3d 1256, 1262 (III) (B) (9th Cir. 1997) (emphasis supplied))). The trial
(ii) Young‘s challenge to his grand jury source list also included an allegation of an underrepresentation of Hispanic persons. Young‘s expert testified that the Newton County jury commission had not separately accounted for Hispanic persons on the relevant jury certificate; however, the expert estimated the number of Hispanic persons included on the source list by performing a search for common Hispanic surnames. The expert testified that, as compared to census estimates of the population at the time of Young‘s indictment, Hispanic citizens were underrepresented on the grand jury source list by an absolute disparity of 0.91 percentage points.3 See Smith, 275 Ga. at 721 (4). We note further that the uncontested testimony of the expert also showed that, as compared to the 2000 Census, the absolute disparity was 0.42 percentage points. Based on our holdings in Williams and Ramirez, which are discussed above, the figure based on the 2000 Census was the correct one to consider; however, considering either figure, the trial court did not err in concluding that no impermissible underrepresentation had been shown. See id. at 723 (4); Morrow v. State, 272 Ga. 691, 695 (1) (532 SE2d 78) (2000). Furthermore, even if an
underrepresentation had been shown, there would be no reversible error, because Young did not even attempt to show in the trial court that Hispanic persons were a cognizable group in Newton County, a necessary part to his claim. See Smith, 275 Ga. at 718 (2) (holding that whether a group is a cognizable group in a given county is a matter of fact to be found by the trial court).
(b) Regarding the traverse jury source list, the trial court found, after discounting an obvious error on the jury certificate and crediting the testimony of Young‘s expert, that there was an absolute disparity of 2.88 percentage points between the percentage of Hispanic persons on the 2011 jury list as compared to the percentage of Hispanic persons in the actual population in 2010. The uncontested testimony of Young‘s expert also showed that the absolute disparity was 1.38 percentage points when only Hispanic citizens were considered. Considering either figure, the trial court did not err in concluding that no impermissible underrepresentation had been shown. See Smith, 275 Ga. at 723 (4); Morrow, 272 Ga. at 695 (1).
7. The trial court did not err by refusing to compensate jurors beyond the amount authorized by
8. After Young moved the trial court to order the State to disclose information about jurors concerning their possible connections to the State or possible driving and arrest records, the trial court accepted the representation from the State that it would reveal any false answers by jurors known to it on such subjects during voir dire. We see no error. See Stinski, 286 Ga. at 846 (23).
9. Young argues that his right to be present was violated during several bench conferences held during jury selection.4 Although these bench conferences were not transcribed, despite the trial court‘s having granted Young‘s motion that all bench conferences should be, the trial court entered an order reconstructing the record of what transpired, see
testimony at his motion for new
Jury selection is a critical stage at which a defendant generally is entitled to be present, including at bench conferences. See Murphy v. State, 299 Ga. 238, 240 (2) (787 SE2d 721) (2016); Sammons v. State, 279 Ga. 386, 387 (2) (612 SE2d 785) (2005). But see Heywood v. State, 292 Ga. 771, 774 (3) (743 SE2d 12) (2013) (holding that a defendant has no right to be present when only legal arguments and logistical or procedural matters are discussed). However, “the right to be present may be waived if the defendant later acquiesces in the proceedings occurring in his absence,”
Jackson v. State, 278 Ga. 235, 237 (3) (599 SE2d 129) (2004) (citation and punctuation omitted), and “[a]cquiescence may occur when counsel makes no objection and a defendant remains silent after he or she is made aware of the proceedings occurring in his or her absence,” Murphy, 299 Ga. at 241 (2). And, in the absence of any controlling authority to the contrary, we reject Young‘s argument that his right to be present could not have been waived simply because this was a death penalty trial.
The record shows that Young was present throughout all of the voir dire, that he was present in the courtroom during each of the bench conferences at issue here, that the purpose of each was obvious from its inception or announced afterward by the trial court, that the result of each was announced in open court, and that neither Young nor his counsel ever objected. Accordingly, we conclude that the trial court did not err in concluding in its order that Young acquiesced in the waiver of his presence that was made by his counsel. Cf. Champ v. State, 310 Ga. 832, 834-848 (2) (a), (b), and (c) (854 SE2d 706) (2021) (remanding where the trial court had not ruled
on the defendant‘s acquiescence in counsel‘s waiver).
10. We reaffirm our prior case law rejecting claims like Young‘s regarding the process of qualifying jurors based on their death penalty views. See Willis, 304 Ga. at 694-695 (4).
11. Young argues that the trial court erred by excusing three prospective jurors based on their voir dire responses regarding their willingness to consider a death sentence. As we have explained:
[T]he proper standard for determining the disqualification of a prospective juror based upon his views on capital punishment is whether the juror‘s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. This standard does not require that a juror‘s bias be proved with unmistakable clarity. Instead, the relevant inquiry on appeal is whether the trial court‘s finding that a prospective juror is disqualified is supported by the record as a whole. An appellate court must pay deference to the trial court‘s determination. This deference encompasses the trial court‘s resolution of any equivocations and conflicts in the prospective jurors’ responses on voir dire. Whether to strike a juror for cause is within the discretion of the trial court and the trial court‘s rulings are proper absent some manifest abuse of discretion.
Humphreys v. State, 287 Ga. 63, 71-72 (5) (694 SE2d 316) (2010) (citations and punctuation omitted), disapproved on other grounds by Willis, 304 Ga. at 706 (11) (a) n.3. See also Willis, 304 Ga. at 698 (9) (“[T]he erroneous exclusion from the list from which a defendant‘s jury is selected of a single prospective juror based on his or her purported unwillingness to consider a death sentence mandates the reversal of a death sentence.“). After our careful review of the voir dire of the jurors at issue, we conclude that the trial court did not abuse its discretion by excusing them.
12. Young also argues that the trial court erred by refusing to excuse eight prospective
13. Young argues that the trial court improperly limited voir dire regarding prospective jurors’ willingness to consider a sentence less than death upon a conviction for murder, as distinguished from cases where a complete defense has been proven or where only a lesser crime has been proven. First, we conclude that this issue was waived for the purposes of ordinary appellate review by Young‘s failure to object at the time of the announced limitations on his voir dire. See Martin v. State, 298 Ga. 259, 278-279 (6) (d) (779 SE2d 342) (2015), disapproved on other grounds by Willis, 304 Ga. at 706 (11) (a) n.3; Braley v. State, 276 Ga. 47, 52 (18) (572 SE2d 583) (2002).5 Furthermore, our review of the voir dire reveals that the trial court, rather than disallowing Young‘s questions, simply directed him to make his questions more focused, and we therefore conclude that the trial court did not abuse its discretion. See Arrington, 286 Ga. at 338 (7) (“The scope of voir dire is generally a matter for the trial court‘s discretion.“).
14. Young argues that the trial court improperly limited his voir dire of one juror on the subject of the juror‘s views on intellectual disability. The trial court, after correctly noting that similar questioning of the juror had already been allowed, simply instructed Young to “rephrase [his] question” and specifically authorized Young to “go into something more deeply” on the issue. At that point, Young raised no objection to the trial court‘s instructions but instead stated: “[W]e‘ll move on from that. We got enough questions on that. . . .” Accordingly, we hold that this claim has been waived for the purposes of ordinary appellate review. See Martin, 298 Ga. at 278-279 (6) (d); Braley, 276 Ga. at 52 (18).
Furthermore, we conclude that the trial court did not abuse its discretion. See Arrington, 286 Ga. at 338 (7) (“The scope of voir dire is generally a matter for the trial court‘s discretion.“).
Issues Related to the Guilt/Innocence Phase
15. There is no merit to Young‘s argument that Georgia‘s murder statute,
16. Young argues that his constitutional rights were violated by the placement of an electronic stun belt on him during his trial. Young filed a pretrial motion objecting to the use of such a stun belt for security purposes at his trial, and the trial court ruled, with Young present, that the issue was moot because no stun belt was being used at the time. However, the trial court stated that it would conduct a hearing on the issue if the use of a stun belt were requested in the future. About halfway through the guilt/innocence phase of the trial, while the trial court, again in Young‘s presence, was hearing arguments regarding a juror who was afraid of Young, the prosecutor stated: “[O]bviously
After Young raised the issue of the stun belt for the first time in his third amendment to his motion for new trial, the trial court conducted a hearing on the matter. In its order denying the claim, despite Young‘s testimony at the hearing that the stun belt made him “uncomfortable” and “scared” and prevented him from speaking directly to the two of his three attorneys who were seated farther down the defense table, the trial court noted that Young also “testified that the stun belt did not prevent him from speaking to or conferring with his third attorney who sat next to him throughout the trial.” The court also noted that this third attorney testified that she indeed spoke to Young during the trial, and the court further noted that the attorney “said nothing about any anxiety or reluctance [on Young‘s part] to speak with her.” Based on this evidence, the trial court found that “there is no credible evidence that the stun belt had any effect, adverse or otherwise, on the defendant‘s Sixth Amendment and due process rights to be present at trial and to participate in his defense.”
Furthermore, the trial court noted other testimony at the hearing showing that the deputies who fitted Young with the stun belt explained to Young “the operation of the stun belt and what would have to occur before it was used,” explained to Young that he “would be warned or given instructions before the belt was ever activated,” and explained to Young the circumstances that would warrant the use of the stun belt, which did not include anything about Young‘s speaking to his attorneys. The court further noted testimony showing that “care was taken to be sure the device did not fit too tightly” and that Young “never complained . . . about the belt being uncomfortable or preventing him from communicating with his attorneys.” Based on these findings, the court finally concluded: “The constitutional rights of the defendant to counsel and to participate in his defense were not impacted by the use of the stun belt.”
As to any portion of this claim regarding the stun belt that is related to the time period following the hearing regarding a fearful juror in which the State specifically noted that Young was wearing the belt, we conclude that the claim was waived for the purposes of ordinary appellate review by Young‘s failure to raise it. See Martin, 298 Ga. at 278-279 (6) (d); Weldon v. State, 297 Ga. 537, 541 (775 SE2d 522) (2015) (“Failure to raise the issue [regarding a stun belt] deprives the trial court of the opportunity to take appropriate remedial action and waives appellate review of any alleged impropriety.“). Cf. People v. Harris, 904 NE2d 1200, 1206-1207 (III) (Ill. App. Ct. 2009) (holding that a similar issue was amenable to that court‘s plain error review, which is analogous to the review we conduct below in the Sentence Review section of this opinion). To the extent that this waiver might not apply to the time period prior to the hearing regarding the fearful juror because defense counsel were entitled to rely on the trial court‘s original ruling that any use of a stun belt would only follow a request for that security measure and a hearing on the matter, we conclude, based on the trial court‘s findings in its order denying Young‘s motion for new trial, that the lack of such a hearing was harmless beyond a reasonable doubt and therefore does not require a new trial. See Chapman v. California, 386 U. S. 18, 24 (III) (87 SCt 824, 17 LE2d 705) (1967) (holding that, in general, constitutional violations require reversal unless found to be harmless beyond a reasonable doubt). Cf. United States v. Durham, 287 F3d 1297, 1308-1309 (D) (11th Cir. 2002) (applying a
17. The trial court did not abuse its discretion in denying Young‘s motion in limine regarding testimony from Doris Jones describing signs of a forced entry into the victim‘s laundry room prior to the day of the murder on grounds of relevance and the allegedly speculative nature of that testimony, particularly in light of the other evidence showing that Young had driven to the home prior to the day of the murder. See Crozier v. State, 263 Ga. 866, 867 (2) (440 SE2d 635) (1994) (“Any evidence is relevant which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant. . . . The trial court has great discretion to determine relevancy and materiality of evidence, and admission is favored in doubtful cases.” (citation and punctuation omitted)). Insofar as Young‘s additional oral objection to the testimony also addressed a hearsay account of the victim‘s whereabouts on the night of the crime from his girlfriend, we see no reversible error, because the testimony was “cumulative of legally admissible evidence” from the girlfriend herself. Wright v. State, 291 Ga. 869, 872 (3) (a) (734 SE2d 876) (2012) (citation and punctuation omitted).
18. The trial court did not abuse its discretion in applying the former necessity exception to the hearsay rule to allow testimony from Doris Jones regarding a statement that the victim had made to her about a warning he had given to Young regarding Young‘s possibly “putting his hands on” her. See Jennings v. State, 288 Ga. 120, 121-122 (3) (702 SE2d 151) (2010).7
19. Young‘s claim regarding the absence of a warrant to obtain location data for his cell phone was waived for the purposes of ordinary appellate review by his failure to raise the issue at trial. See Martin, 298 Ga. at 278-279 (6) (d). See also Carpenter v. United States, 585 U. S. __, __ (IV) (138 SCt 2206, 2222, 201 LE2d 507) (2018) (addressing the privacy of cell phone location data).
20. Young‘s claim regarding the probative value versus the prejudicial effect of a recorded 911 call from Doris Jones has been waived for the purposes of ordinary appellate review by his failure to object at trial. See Martin, 298 Ga. at 278-279 (6) (d); Bryant v. State, 288 Ga. 876, 887 (8) (c) (708 SE2d 362) (2011).
21. Young argues that testimony from Doris Jones regarding a statement from her sister recounting a report from a third person about Young‘s whereabouts during the crimes, along with certain testimony from Annie Sampson, Sonny Goodson, Wesley Horne, Leo Rivers, and Latrice Rivers, constituted improper hearsay testimony. These claims were waived for the purposes of ordinary appellate review by Young‘s failure to object at trial.8 See Martin, supra at 278-279 (6) (d); Bryant, 288 Ga. at 887 (8) (c).
22. Young argues that an investigator gave speculative and improper opinion testimony by stating that it would have been “understandable” for Young to have been in Georgia and that it would have been “natural” for Young freely to admit as much, because, as Young had told the
23. The trial court did not abuse its discretion in admitting photographs of the victim taken during his autopsy while medical instruments were used to retract tissue in order to reveal relevant injuries. See Brown v. State, 250 Ga. 862, 867 (5) (302 SE2d 347) (1983) (“A photograph which depicts the victim after autopsy incisions are made or after the state of the body is changed by authorities or the pathologist will not be admissible unless necessary to show some material fact which becomes apparent only because of the autopsy.“), abrogated by the current Evidence Code as stated in Venturino v. State, 306 Ga. 391, 396 (2) (b) (830 SE2d 110) (2019). See also Bunnell v. State, 292 Ga. 253, 258 (5) (735 SE2d 281) (2013) (noting a trial court‘s discretion regarding autopsy photographs); Simmons v. State, 291 Ga. 705, 711 (8) (b) (733 SE2d 280) (2012) (addressing photographs taken during the use of medical instruments such as forceps). This holding is not changed by the fact that Young‘s trial strategy included an admission of his guilt, because the State was entitled to prove its case for guilt rather than to rely on Young‘s admissions. See Morgan v. State, 307 Ga. 889, 896 (3) (b) (838 SE2d 878) (2020) (“[A] criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the State chooses to present it.” (citation and punctuation omitted)).
24. During the guilt/innocence phase, a witness testified that she had been Young‘s friend for over ten years and that their relationship had at some points been sexual. In addition to corroborating several of the details of the State‘s evidence regarding Young‘s whereabouts and cell phone calls near the time of the murder, the witness also testified that Young came to her house on the day following the murder after he got off work and that she then saw him again later that night at his house. With no contemporaneous objection from Young, the State asked her if she and Young had sex that night, and she answered affirmatively.
After this testimony was concluded and after a lunch break, defense counsel argued that the testimony about the witness and Young having sex was improper because it was irrelevant to the question of Young‘s guilt. Defense counsel stated that Young was not seeking a curative instruction but instead was asking that the State be precluded from discussing the testimony about sex during its closing argument in the guilt/innocence phase on the ground that the testimony was irrelevant to the question of guilt but was highly prejudicial. The trial court ruled:
Well, I can see that it would be corroborative in terms of Ms. [Doris] Jones’ testimony about the defendant allegedly being unfaithful, that this would corroborate her perception of the nature of their relationship and why they would have arguments and to show that her testimony concerning his conduct, that would be evidence to support that her suspicions or her statements were well-founded. So I do find that it would have some corroborative value there. So in terms of just totally precluding them from arguing her testimony, I‘m going to deny that request. I mean, anything can be argued in the wrong way. Anything can be – you can have incorrect argument, but I‘m not going to preclude them from even mentioning it. They can‘t use it just to attack the character or whatever,
but to, for the proper purpose that I just described.
We conclude that the trial court did not abuse its discretion in ruling on Young‘s argument concerning the relevance of the witness‘s testimony to the question of guilt. See Spiller v. State, 282 Ga. 351, 354 (3) (647 SE2d 64) (2007) (holding that the trial court had not abused its discretion in allowing a certain inference to be made in a closing argument, because the “inference was a permissible one from the evidence presented at trial“). See also Moore v. State, 295 Ga. 709, 714 (3) (763 SE2d 670) (2014) (addressing the propriety of evidence that might incidentally place the character of the defendant at issue but is otherwise relevant).
Pursuant to the trial court‘s ruling on relevance, the State argued in its guilt/innocence phase closing argument, while arguing how various behaviors that Young was capable of were relevant to the various “adaptive functioning areas” used in considering a possible finding of intellectual disability: “And the fact, again, that he‘s able to have this other relationship with another woman shows that he is multi-faceted, and there‘s a lot more to Rodney Young than what you‘ve seen in this trial.” To the extent that Young argues on appeal, in addition to the ground of relevance discussed above, that the State‘s argument regarding the issue of intellectual disability was unconstitutional, we conclude that the issue was waived for the purposes of ordinary appellate review by Young‘s failure to make this specific objection at trial. See Martin, 298 Ga. at 278-279 (6) (d).
25. Young argues that requiring him to prove his intellectual disability beyond a reasonable doubt in order to be exempted from a death sentence was unconstitutional. Seeing no clear direction in the law to hold otherwise, we adhere to our prior decisions upholding Georgia‘s standard of proof.
(a) In 1988, Georgia was the first state in the nation to enact a statutory ban on the execution of intellectually disabled persons. See
(b) While Georgia was the first state to ban the execution of intellectually disabled persons, it has from the initial adoption of that ban imposed a burden to prove intellectual disability on defendants under a beyond
standard of proof has been challenged several times in this Court on constitutional grounds, particularly in light of the fact that some other states impose only a clear and convincing evidence standard on defendants seeking to prove their intellectual disability and the majority of states that still have the death penalty impose only a preponderance of the evidence standard on defendants. See Raulerson v. Warden, 928 F.3d 987, 1013-1014 (I) (B) (11th Cir. 2019) (Jordan, J., concurring in part and dissenting in part) (discussing the varying standards of proof applied). This Court‘s last published decision upholding Georgia‘s standard of proof was in Stripling v. State in 2011. See 289 Ga. at 371 (1) (“We have previously addressed this very issue, and we now reiterate our prior holding that Georgia‘s beyond a reasonable doubt standard is not unconstitutional.” (citing Head v. Hill, 277 Ga. 255, 260-263 (II) (B) (587 SE2d 613) (2003))).
In Stripling, we explained:
In addressing this issue previously, we first noted that, although the Supreme Court of the United States had recognized a constitutional right of mentally retarded defendants to be exempt from the death penalty, it had not directed the states to apply any particular burden of proof to claims of mental retardation. See Atkins v. Virginia, 536 U. S. 304 (122 SC[t] 2242, 153 LE2d 335) (2002) (identifying a national consensus against executing mentally retarded persons and holding that executing such persons was therefore unconstitutional). Instead, we noted that the Supreme Court “specifically left ‘“to the State(s) the task of developing appropriate ways to enforce the (federal) constitutional restriction“’ on executing the mentally retarded.” Hill, 277 Ga. at 260 (II) (B) (quoting Atkins, 536 U. S. at 317 (III) (citation omitted)). See also Bobby v. Bies, 556 U. S. 825, [831] (I) (129 SC[t] 2145, 2150 (I), 173 LE2d 1173) (2009) (“Our opinion [in Atkins] did not provide definitive procedural or substantive guides for determining when a person who claims mental retardation ‘will be so impaired as to fall (within Atkins’ compass).‘” (quoting Atkins, 536 U. S. at 317 (III))). . . .
Stripling, 289 Ga. at 371-372 (1). We reaffirmed our prior holding that claims of intellectual disability are more closely analogous to claims of insanity, which the Supreme Court has held could be subjected to a beyond a reasonable doubt standard, than they were to claims of incompetence to stand trial, which the Supreme Court has held could not be subjected to a standard higher than a preponderance of the evidence. See id. at 372 (1) (discussing Leland v. Oregon, 343 U. S. 790 (72 SCt 1002, 96 LE 1302) (1952), and Cooper v. Oklahoma, 517 U. S. 348 (116 SCt 1373, 134 LE2d 498) (1996)). We concluded our discussion regarding the purely procedural aspect of the standards that we were reaffirming by stating:
Thus, in light of the specific statement by the Supreme Court that it had not established any particular procedural standards that must be applied to mental retardation, the similarity of mental retardation claims to claims of insanity at the time of the commission of crimes, and the persuasive effect of having sister states who have refused to declare the preponderance of the evidence standard to be constitutionally required, we held that Georgia‘s beyond a reasonable doubt standard was not unconstitutional
from a procedural point of view.
After concluding our analysis of Georgia‘s standard of proof on procedural grounds, we also reaffirmed our prior holding
that Georgia‘s beyond a reasonable doubt standard further served to define the category of mental retardation within Georgia law and that, in [setting this standard], Georgia had not acted outside the bounds of the national consensus about the treatment of mentally retarded persons identified by the Supreme Court in Atkins.
Stripling, 289 Ga. at 373 (1) (emphasis in original). We further noted that “Georgia was not alone in defining mental retardation through the use of a heightened standard of proof at the time of Atkins” and that the several states at that time applying a clear and convincing evidence standard had been counted among the states forming a national consensus. Stripling, 289 Ga. at 373 (1). We observed:
[T]he Supreme Court noted as follows:
To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded. . . . Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus.
Id. at 374 (1) (quoting Atkins, 536 U. S. at 317 (III)). We concluded this portion of our analysis by stating:
Therefore, we reaffirm that Georgia‘s statutory definition of mental retardation, with its requirement that only mental deficiencies capable of proof beyond a reasonable doubt [qualify for protection], is not unconstitutional under Atkins.
(c) (i) First, Young assails our prior holdings affirming Georgia‘s beyond a reasonable doubt standard in reference to the second portion of the analysis set forth in Stripling, which addressed the matter from a more substantive perspective. The United States Supreme Court has recently stated: “In Atkins v. Virginia, we held that the Constitution ‘restrict[s] . . . the State‘s power to take the life of’ any intellectually disabled individual.” Moore v. Texas, __ U. S. __, __ (II) (137 SCt 1039, 1048, 197 LE2d 416) (2017) (emphasis in original). Accordingly, we disapprove anything in our prior decisions suggesting otherwise, particularly those parts of our prior decisions suggesting that “Georgia‘s beyond a reasonable doubt standard further served to define the category of mental retardation.” Stripling, 289 Ga. at 373 (1) (emphasis in original). See Atkins, 536 U. S. at 317 (III); Hill, 277 Ga. at 262 (II) (B). See also Williams v. Cahill, 303 P3d 532, 550 (Ariz. Ct. App. 2013) (Eckerstrom, P. J., dissenting) (“But this paragraph [from Atkins], by its terms, only invites states to develop ‘ways to enforce’ the constitutional restriction imposed in Atkins. No part of that language suggests the states are likewise entrusted with the power to redefine the substance of the constitutional restriction itself.“). While we continue to take some guidance from the Supreme Court‘s observation that there is disagreement among the states “in determining which offenders are in fact retarded,” we acknowledge that this observation is relevant only to the procedures for determining whether defendants are intellectually disabled and that every state is constitutionally required to recognize prevailing clinical definitions of intellectual disability in defining the category of persons who are constitutionally protected, including those who are “mildly mentally retarded.” Atkins, 536 U. S. at 308 (I), 317 (III). See Moore, 137 SCt at 1049 (II) (”Hall indicated that being informed by the medical community does not demand adherence to everything stated in the latest medical guide. But neither does our precedent license disregard of current medical standards.“); Hall v. Florida, 572 U. S. 701, 720-721 (III) (C) (134 SCt 1986, 188 LE2d 1007) (2014) (“If the States were to have complete autonomy to define intellectual disability as they wished, the Court‘s decision in Atkins could become a nullity, and the
(ii) We turn now to the procedural issue that Young raises regarding the constitutionality of Georgia‘s standard of proof. On this question, we begin and end with the Supreme Court‘s statement in Atkins that it “‘l[eft] to the State(s) the task of developing appropriate ways to enforce the [federal] constitutional restriction‘” on executing intellectually disabled persons. Atkins, 536 U. S. at 317 (III) (quoting Ford, 477 U. S. at 416 (V) (A) (plurality portion of opinion)).
First, Young argues that the Supreme Court‘s recent decisions in Hall v. Florida and Moore v. Texas require this Court‘s disapproval of Georgia‘s beyond a reasonable doubt standard. See Moore, 137 SCt 1039 (addressing the “wholly nonclinical” factors that Texas applied); Hall, 572 U. S. 701 (addressing a “strict IQ score cutoff” applied by Florida). We have considered these decisions carefully, especially as discussed in this opinion regarding the procedural question of Georgia‘s standard of proof. However, we note that they directly addressed only questions regarding the substantive definition of intellectual disability and the requirement that states must, as Georgia indisputably does, adhere to prevailing clinical definitions of intellectual disability in fashioning such a definition. Thus, if this Court‘s precedents regarding the beyond a reasonable doubt standard are somehow incorrect, it would not be because of the core holding of Hall or Moore.
Next, Young argues that this Court has previously relied on inapposite case law from the United States Supreme Court in upholding the beyond a reasonable doubt standard. As we noted above, we have previously discussed the Supreme Court decisions of Cooper v. Oklahoma and Leland v. Oregon as being relevant to our evaluation of the constitutionality of Georgia‘s beyond a reasonable doubt standard. See Cooper, 517 U. S. 348; Leland, 343 U. S. 790. See also Stripling, 289 Ga. at 372 (1) (discussing Cooper and Leland); Hill, 277 Ga. at 261 (II) (B) (same). Despite Young‘s arguments that we should do otherwise, and although we acknowledge that neither case is a perfect fit to answer the question presented here, we continue to take more guidance from Leland than from Cooper.
In Cooper, the Supreme Court held as a matter of federal due process that a defendant could not be required to prove his or her incompetence to stand trial by clear and convincing evidence. See Cooper, 517 U. S. at 350, 369 (V). Cf. id. at 355 (II) (“Our recent decision in Medina v. California, 505 U. S. 437 [112 SCt 2572, 120 LE2d 353)] (1992), establishes that a State may presume that the
See id. at 354-360 (II) and (III). And it was in reference to this historical basis for the right at issue that the Supreme Court noted the fact that “[o]nly 4 of the 50 States” imposed the higher burden of proof at issue. Id. at 360 (III). See also id. at 362 (III) (“The near-uniform application of a standard that is more protective of the defendant‘s rights than Oklahoma‘s clear and convincing evidence rule supports our conclusion that the heightened standard offends a principle of justice that is deeply ‘rooted in the traditions and conscience of our people.’ Medina v. California, 505 U. S. at 445 (internal quotation marks omitted).“). In contrast, such historical support is absent for claims of intellectual disability, as well summarized by the Eleventh Circuit:
In contrast, there is no historical right (in the
Eighth Amendment or elsewhere) of a mentally retarded person not to be executed. And since the constitutional right itself is new, there is no historical tradition regarding the burden of proof as to that right. As recently as 1989, Penry refused to bar the execution of the mentally retarded. Atkins was based not on historical tradition or the Due Process Clause, but on the contemporary national consensus that reflected “the evolving standards of decency” that informed the meaning of theEighth Amendment . Atkins, 536 U. S. at 311-12, 122 S. Ct. at 2247. Indeed, Georgia‘s reasonable doubt standard for establishing a mental retardation exception to the death penalty, which was enacted twenty-three years ago, is the oldest such law in the nation. Although other states recently have employed either clear and convincing evidence or preponderance of evidence standards, no more lenient standard of proof predates Georgia‘s.
Hill, 662 F3d at 1350-1351 (III) (C). See also Raulerson, 928 F3d at 1002 (III) (B) (2) (“Unlike the right at issue in Cooper, which has its deep roots in our common-law heritage, there is no historical right of an intellectually disabled person not to be executed.“).
We turn next to an examination of our prior decisions insofar as they identified limited guidance on the constitutionality of Georgia‘s standard of proof in Leland. The United States Supreme Court began its analysis in Leland by noting that there was at least some historical precedent supporting Oregon‘s beyond a reasonable doubt standard for insanity claims, noting the origin of Oregon‘s statutory rule in 1864, the announcement in 1843 in England of a rule requiring such claims to be “clearly proved,” and the requirement applied in “most of the nineteenth-century American cases” that a defendant “‘clearly’ prove insanity.” Leland, 343 U. S. at 796-797. The Court also noted that it had previously adopted a rule, through its supervisory authority over the federal courts, requiring an acquittal in federal prosecutions whenever “‘there is reasonable doubt whether [the defendant] was capable in law of committing crime,‘” id. at 797 (quoting Davis v. United States, 160 U. S. 469, 484 (16 SCt 353, 40 LE 499) (1895)); however, the Court emphasized that its holding in Davis “obviously establishes no constitutional doctrine, but only the rule to be followed in federal courts,” id.
The Supreme Court in Leland noted the central fact at issue, which was that “Oregon [wa]s the only state that require[d] the accused, on a plea of insanity, to establish that defense beyond a reasonable doubt.” Leland, 343 U. S. at 798. The Court noted that “[s]ome twenty states” required defendants “to establish [their] insanity by a preponderance of the evidence or some similar measure of persuasion.” Id. Nevertheless, the Court, in comparing Oregon‘s beyond a reasonable doubt standard with these preponderance standards, held:
While there is an evident distinction between these two rules as to the quantum of proof required, we see no practical difference of such magnitude as to be significant in determining the constitutional question we face here.
The fact that a practice is followed by a large number of states is not conclusive in a decision as to whether that practice accords with due process, but it is plainly worth considering in determining whether the practice “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Snyder v. Massachusetts, 291 U. S. 97, 105 [(54 SCt 330, 78 LE 674) (1934).
Id. (emphasis supplied). See Raulerson, 928 F3d at 1013-1014 (I) (B) (Jordan, J., concurring in part and dissenting in part) (discussing the various standards of proof applied in different jurisdictions).
The Court, again noting its own contrary rule for the federal courts, held regarding Oregon‘s standard of proof:
But “its procedure does not run afoul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at the bar.” Snyder v. Massachusetts, supra, at 105.
Leland, 343 U. S. at 799. The Court concluded:
We are therefore reluctant to interfere with Oregon‘s determination of its policy with respect to the burden of proof on the issue of sanity since we cannot say that policy violates generally accepted concepts of basic standards of justice.
We note, in deciding the degree of guidance to be gained in Young‘s case from Leland, that Leland was not a case involving an underlying right that the Supreme Court had specifically “held to be secured to defendants in federal courts by the Bill of Rights.” Leland, 343 U. S. at 798. See also Medina, 505 U. S. at 449 (“Moreover, while the Due Process Clause affords an incompetent defendant the right not to be tried, we have not said that the Constitution requires the States to recognize the insanity defense.” (citations omitted)). But we also note that the Supreme Court has since clarified that some acceptable definition of insanity is constitutionally required. See Kahler v. Kansas, __ U. S. __, __ (II) (A) (140 SCt 1021, 1028-1029, 206 LE2d 312) (2020) (“A State‘s ‘insanity rule[ ] is substantially open to state choice.‘” (quoting Clark v. Arizona, 548 U. S. 735, 752 (II) (A) (126 SCt 2709, 165 LE2d 842) (2006))). See also id. at 140 SCt 1039 (II) (Breyer, J., dissenting) (“The Court contends that the historical formulations of the insanity defense were so diverse, so contested, as to make it impossible to discern a unified principle that Kansas’ approach offends. I disagree.“). In the end, while we see reason for some circumspection in applying Leland, we also note that some form of due process concerns regarding standards of proof were clearly at issue in the case. Thus, although both the United States Constitution and the Georgia Constitution now clearly protect persons with intellectual disabilities from execution, we consider the due process analysis in Leland worthy of our consideration here, particularly given our conclusion that intellectual disability “is comparable to a claim of insanity at the time of the crime in that both relieve a guilty person of at least some of the statutory penalty to which he would otherwise be subject.” Hill, 277 Ga. at 261 (II) (B).
While identifying some guidance in Leland, we focus most directly on the guidance given by the Supreme Court specifically on the question at hand. As noted above, the Supreme Court in Atkins, quoting Ford v. Wainwright, expressly “‘l[eft] to the State(s) the task of developing appropriate ways to enforce the [federal] constitutional restriction‘” on executing intellectually disabled persons. Atkins, 536 U. S. at 317 (III) (quoting Ford, 477 U. S. at 416 (V) (A) (plurality portion of opinion)). See also Jones v. Mississippi, __ U. S. __, __ (II) (B) (141 SCt 1307, 1321, 209 LE2d 390) (2021) (“[A]s the Court explained in Montgomery, when ‘a new substantive rule of constitutional law is established, this Court is careful to limit the scope of any attendant procedural requirement to avoid intruding more than necessary upon the States’ sovereign administration of their criminal justice systems.‘” (quoting Montgomery v. Louisiana, 577 U. S. 190, 211 (III) (136 SCt 718, 193 LE2d 599) (2016) (citing Ford, 477 U. S. at 416-417 (V) (A) (plurality portion of opinion)))). The Supreme Court‘s choice of Ford as a lodestar makes sense, because Ford, like Atkins, addressed the possible execution of a person with severe mental deficiencies that significantly undermined the penological justifications for the person‘s execution. The protection announced in Atkins was centered on a defendant‘s mental state at the time of his or her crime and the time of his or her trial, while Ford was centered on a condemned prisoner‘s mental state at the time of his or her actual execution. But the legal similarities between the two were clearly what commended Ford to the Atkins Court.
Like the Atkins Court did regarding intellectual disability, the majority in Ford began with the conclusion that the execution of mentally incompetent persons violated the
Our task in applying Ford here is complicated somewhat by the fact that the portion of Ford directly quoted in Atkins was concurred in by only a plurality of the Supreme Court. See Atkins, 536 U. S. at 317 (III) (quoting Ford, 477 U. S. at 416 (V) (A) (plurality portion of opinion)). However, even assuming that the Atkins majority meant to embrace the details of the Ford plurality‘s reasoning to the
exclusion of the somewhat more accommodating reasoning in Ford‘s concurring opinion, we conclude that Ford supports our decision here.16
In concluding that Florida‘s procedure was constitutionally inadequate, the Ford plurality identified the following faults: “no court played any role in the rejection of [Ford]‘s claim of insanity“; the decision was made “wholly within the executive branch, ex parte“; the Governor had announced a policy of excluding all advocacy on prisoners’ behalf; and the Governor refused to inform Ford‘s counsel whether he had considered the “written materials, including the reports of the two other psychiatrists who had examined Ford at greater length,” that the attorneys had submitted on Ford‘s behalf. Ford, 477 U. S. at 410 (III) (A), 412-413 (III) (C) (plurality portions of opinion). The Ford plurality concluded: “That this most cursory form of procedural review fails to achieve even the minimal degree of reliability required for the protection of any constitutional interest . . . is self-evident.” Id. at 413 (III) (plurality portion of opinion). But none of these deficiencies identified by the Ford plurality are even remotely at issue regarding Georgia‘s procedure for evaluating intellectual disability claims.
Yet even though such glaring deficiencies did exist in Ford, the Ford plurality nevertheless articulated this measured prescription:
We do not here suggest that only a full trial on the issue of sanity will suffice to protect the federal interests; we leave to the State the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.
Ford, 477 U. S. at 416-417 (V) (A) (plurality portion of opinion). The plurality added this caution:
[T]he lodestar of any effort to devise a procedure must be the overriding dual imperative of providing redress for those with substantial claims and of encouraging accuracy in the factfinding determination. The stakes are high, and the “evidence” will always be imprecise.
Id. at 417 (V) (A) (plurality portion of opinion). But its focus in making this statement was on the availability of an “adversary presentation of relevant information,” the “manner of selecting and using the experts,” and the need for “neutral, sound, and professional judgments” by those experts. Id. (“Fidelity to these principles is the solemn obligation of a civilized society.“).
The Ford plurality specifically disavowed requiring the full panoply of procedures typically associated with a trial. See Ford, 477 U. S. at 416 (V) (A) (plurality
We are not called upon here to make a pronouncement on the wisdom of Georgia‘s burden of proof from a policy perspective, and to do so would be beyond this Court‘s constitutional power. Instead, we are called upon to apply the Georgia Constitution and the United States Constitution. In light of the general discussion of due process above, and especially in light of the clear delegation to the states by Atkins, by reference to Ford, of much of the responsibility for designing appropriate procedures, we hold that the standard of proof for intellectual disability claims presently chosen by Georgia‘s General Assembly is not unconstitutional.
26. Young argues that, as a matter of Georgia statutory law, he should have been permitted to enter a plea of “guilty but mentally retarded” over the objection of the State and that the trial court should then have held a hearing to determine if it would accept the plea and sentence him to imprisonment for life. The relevant statute provides:
A plea of guilty but mentally ill at the time of the crime or a plea of guilty but mentally retarded shall not be accepted until the defendant has undergone examination by a licensed psychologist or psychiatrist and the court has examined the psychological or psychiatric reports, held a hearing on the issue of the defendant‘s mental condition, and is satisfied that there is a factual basis that the defendant was mentally ill at the time of the offense or mentally retarded to which the plea is entered.
27. Young also argues that trying the questions of guilt and intellectual disability together in the guilt/innocence phase violated his constitutional rights. He acknowledges that this Court has held otherwise. See King, 273 Ga. at 272 (27) (citing Palmer v. State, 271 Ga. 234, 237 (3) (517 SE2d 502) (1999)). See also Livingston v. State, 264 Ga. 402, 406 (3) (444 SE2d 748) (1994) (“While there may be advantages to a criminal defendant in having a trial apart from the guilt-innocence phase on the issue of mental retardation, such a change must come from the General Assembly.“). However, he argues that the creation by the United States Supreme Court of a federal constitutional right of intellectually disabled persons not to be executed, particularly considering recent decisions from that Court applying that right, dictates a different holding now by this Court.
(a) Much of Young‘s argument here focuses on his mischaracterization of a holding of the United States Supreme Court. That Court held that whether a defendant could formulate plans to commit his or her crimes or could conceal facts or lie relative to his or her crimes should not be determinative of the question of intellectual disability, but the Court did not hold that evidence of such things was irrelevant to the question of whether a defendant is intellectually disabled under professionally accepted standards. See Moore v. Texas, __ U. S. __, __ (III) (139 SCt 666, 671-672, 203 LE2d 1) (2019) (stating that clinicians might find this type of evidence relevant and citing American Association on Intellectual and Developmental Disabilities, Intellectual Disability: Definition, Classification, and Systems of Supports 44 (11th ed. 2010)).
Young also cites a psychological manual for the proposition that there is insufficient “normative information” about crimes in general to extrapolate conclusions regarding a defendant‘s intellectual disability from the manner in which the defendant has carried out his or her crime. However, as with his characterization of Supreme Court case law, Young concludes too much here. Instead, we conclude that evidence regarding a defendant‘s actions during and around the time of a crime, although generally not conclusive on the question, can be probative regarding whether a defendant has deficits in specific adaptive behavior areas, just as his or her previously observed actions in non-criminal settings might similarly be probative on the question. See Moore, 139 SCt at 671-672; Morrison v. State, 276 Ga. 829, 831 (2) (583 SE2d 873) (2003). Furthermore, we reach this conclusion despite the fact that intellectual disability must have an onset prior to the age of 18, because, as Young himself argues, intellectual disability is regarded by mental health professionals as generally being a lifelong condition.
(b) We also are not persuaded by Young‘s argument that trying the questions of guilt and intellectual disability together prevented him from being able to “embrace” evidence of his crimes that arguably supported a finding of intellectual disability without thereby undermining his defense as to his guilt. This argument is somewhat surprising in light of Young‘s arguments regarding the alleged irrelevance of evidence regarding the crimes to a possible finding that he lacked deficits in adaptive behaviors. In any case, we conclude that defendants are not generally denied a fair opportunity to present a defense regarding their alleged guilt by having to address the evidence of that guilt alongside other evidence that might be relevant to a finding of intellectual disability, and we conclude as to Young specifically that he
(c) Young argues that trying the questions of guilt and intellectual disability together also wrongly suggested to the jury that a finding of intellectual disability would result in inadequate punishment for the murder. As we discuss below in Division 34, the trial court properly charged the jury in a manner that made clear that, upon a finding of intellectual disability, Young would nevertheless be placed in the custody of the Department of Corrections. Accordingly, we conclude that this argument is unpersuasive.
(d) Young also argues that trying the questions of guilt and intellectual disability together deprived him of his ability to admit his guilt, “contrary to his desire and explicit request to accept the allegations of guilt.” However, as we make clear below in Division 29, it is untrue as a matter of fact that Young ever sought to plead guilty to his charges other than as part of a plea bargain as to sentencing, which, as we explained above in Division 26, the trial court was not empowered to accept over the State‘s objection.
(e) In light of the foregoing discussion, and taking note of our discussion above in Division 25 regarding what procedural requirements are constitutionally required for intellectual disability claims, we conclude that the General Assembly‘s chosen procedure of trying intellectual disability claims together with the issue of guilt is not unconstitutional. See Atkins, 536 U. S. at 317 (III) (“As was our approach in Ford v. Wainwright, with regard to insanity, ‘we leave to the State(s) the task of developing appropriate ways to enforce the constitutional restriction upon (their) execution of sentences.‘” (quoting Ford, 477 U. S. at 416 (V) (A) (plurality portion of opinion))). Accordingly, we reaffirm this Court‘s prior case law on this issue. See King, 273 Ga. at 272 (27).
28. Young argues that his constitutional rights were denied by his being forced to speak to an expert witness designated by the trial court as a precondition to presenting his own expert testimony in support of his claim of intellectual disability. As discussed in detail below, we conclude that the trial court had discretion in this matter, but we further conclude that, because this claim was waived, we need not determine whether that discretion was abused.
(a) The circumstances concerning this claim began on June 2, 2011, when Young filed a notice regarding his intent to raise a mental health defense at trial. The notice stated: “[T]he defense intends to raise the issue that the defendant or accused was insane, mentally ill or mentally retarded at the time of the act or acts charged against the accused.”
On June 29, 2011, in response to this notice, the trial court ordered an evaluation of Young regarding his competence to stand trial and regarding his criminal responsibility as it related to the “mental capacity to distinguish right from wrong” and any possible “presence of a delusional compulsion.” On January 17, 2012, the trial court conducted a hearing regarding the matter, and defense counsel explained that Young had refused to speak to the expert during the court-ordered evaluation, explaining that defense counsel intended to argue at trial only intellectual disability and not any other mental health claim and asserting that the facts of the crimes were irrelevant to the question of intellectual disability. The State countered that “the methods and manners and questions and evaluations that are used” to evaluate possible intellectual disability should be determined by the expert, that such an evaluation might need to include the circumstances of the crimes, that the trial court had asked the expert to evaluate the general question of criminal responsibility, and that any diagnosis of intellectual disability would likely require the expert to consider and rule out other diagnoses. The trial court indicated that it would issue another order for an evaluation “for purposes of criminal responsibility and competency to stand trial, with retardation as being the primary focus of that evaluation.” The trial court then indicated its initial opinion that any refusal of Young to answer questions put to him by the expert would prevent his use of his own expert at trial, but it left the matter somewhat in flux by stating: “So if we run up on that again, I‘ll be prepared to rule on it. We‘ll
On January 17 and 23, 2012, Young filed motions claiming that
(b) As the trial court correctly noted, and as we noted above in Division 27 (a), this Court has held that
evidence of a defendant‘s crimes in a mental retardation trial may be admissible as probative evidence of the defendant‘s intelligence if that evidence demonstrates his mental ability and adaptive skills, or is otherwise relevant to the question of whether he is mentally retarded.
Morrison, 276 Ga. at 831 (2). Cf. Moore, 139 SCt at 671-672 (III) (stating that clinicians might find this type of evidence relevant). We note, however, that in Morrison we relied on Zant v. Foster, in which this Court held that, in determining the proper role of evidence of a crime in a jury‘s consideration of a claim of intellectual disability, a trial court must exercise its discretion in weighing the probative value of such evidence against “unfair prejudice.” Zant v. Foster, 261 Ga. 450, 451-452 (4) (406 SE2d 74) (1991), overruled on other grounds by State v. Patillo, 262 Ga. 259, 261 n.1 (417 SE2d 139) (1992).
This Court has also held that a death penalty defendant who wishes to support his or her claims at trial through expert mental health testimony must submit to an examination by a mental health expert selected by the State because of “‘the State‘s overwhelming difficulty in responding to the defense psychiatric testimony without its own psychiatric examination of the accused.‘” Jenkins v. State, 265 Ga. 539, 540-541 (3) (458 SE2d 477) (1995) (quoting Lynd v. State, 262 Ga. 58, 64 (11) (414 SE2d 5) (1992) (citation and punctuation omitted)). See also Nance v. State, 272 Ga. 217, 219-220 (2) (526 SE2d 560) (2000) (citing Buchanan v. Kentucky, 483 U. S. 402, 422 (III) (A) (107 SCt 2906, 97 LE2d 336) (1987), and Estelle v. Smith, 451 U. S. 454, 465 (II) (A) (2) (101 SCt 1866, 68 LE2d 359) (1981), and holding that, “when a defendant must submit to a court-ordered mental health examination because he wishes to present expert mental health testimony at his trial, the State expert may only testify in rebuttal to the testimony of the defense expert or to rebut the testimony of the defendant himself“). However, this Court has also stated:
In formulating the rule that a defendant in a case in which the State is seeking the
death penalty must either cooperate in an evaluation by a mental health expert whose report will be given to the State or forfeit the right to present expert mental health testimony at trial, we have balanced the truth-seeking function of the courts, the defendant‘s constitutionally-protected privilege against self-incrimination, and the State‘s interest in having the ability to respond to the defendant‘s expert mental health testimony with [its own] expert testimony. . . .
We have taken pains to ensure that the extent to which a defendant must waive his constitutionally-protected right to remain silent is no greater than is necessary to serve the purpose mandating the waiver: “to permit the State to formulate a response or a rebuttal to the testimony of the defendant‘s mental health expert.”
State v. Johnson, 276 Ga. 78, 79 (2) (576 SE2d 831) (2003) (quoting Nance, 272 Ga. at 219-220 (2)).
In view of these prior holdings, we caution that a trial court must exercise discretion in responding to a defense objection regarding the scope of questions to be asked in a court-ordered mental health evaluation of alleged intellectual disability or in responding to an objection to the scope of expert testimony based on such an evaluation. We stress that an inquiry regarding the facts of a defendant‘s alleged crimes is not necessarily irrelevant in such an evaluation by the State‘s expert or the Court‘s expert simply because the defense and its own expert might think so. However, we also note that the facts of the crime that would be relevant to alleged intellectual disability often can be made known to a mental health expert through sources other than the defendant‘s own statements and that a defendant often can be asked questions by an expert regarding the defendant‘s personal abilities as they relate to the facts of the crimes without asking the defendant whether he or she admits committing those crimes.20 Nevertheless, we need not consider whether the trial court properly exercised such discretion in Young‘s case, because, as we discuss below, we conclude that the issue was waived.
(c) On February 6, 2012, as jury selection was about to begin, the District Attorney stated:
[T]he state will agree not to use any of the statements that the defendant makes pertaining to what happened at the time of the crime in terms of proving his guilt or innocence, despite the fact that that handcuffs the state in using that evidence to prove whether or not he‘s mentally retarded, we will put the defendant in a position now where the state will agree not to introduce any of that testimony and then let them still make the strategic choice that they want to make in terms of an expert.
The District Attorney further agreed that the trial court could order its designated expert, who had already conducted an evaluation without the benefit of any statements from Young about the crimes and who had already submitted a report under seal, “not to ask any questions about what Mr. Young did at the time of the offense.”21 Young rejected the State‘s offer based solely on the fact that it would “prejudice[ ] the defense in [its] strategic decision making” to accept the offer at that stage of the case; however, we note that Young made no complaint regarding the availability of his own expert to testify
and made no motion for a continuance. The State argued persuasively in response that Young‘s true motivation was the fact that his own expert had tested his IQ as being 77, a fact that would have been difficult to explain at trial. See Hall, 572 U. S. at 722 (III) (D) (stating that “an individual with an IQ
29. Young argues that he was forced to plead not guilty as a condition of seeking a verdict of guilty but mentally retarded and that such a requirement was unconstitutional and “prejudiced [him] by creating a false impression for the jury, judicially-sanctioned, that he did not accept responsibility and therefore felt no remorse.” To the extent that Young is arguing that he was forced to plead not guilty as a precondition of seeking a decision by a jury of whether he was intellectually disabled, his claim is not supported factually by the record.
To support such a claim, Young relies on the transcript of a pretrial hearing held on whether he was required to speak to the State‘s expert about the facts of the crime as a precondition to presenting his own expert testimony on his alleged intellectual disability. However, a review of the full transcript reveals that Young was not willing to plead guilty as part of a jury trial. Defense counsel made comments indicating his hope that the jury would find Young guilty but mentally retarded, but those comments never communicated a desire to enter a non-negotiated guilty plea. Instead, defense counsel stated: “I mean, essentially we would be happy to do so [plead guilty] in exchange for a sentence that we could agree upon.” We also note that Young never moved the trial court to allow him to change the not guilty plea that he had entered and signed on the indictment. Indeed, even now on appeal, Young admits that his goal at this hearing was not to enter a guilty plea in advance of a jury trial, as he states: “In this case, defense counsel urged the court to allow Young to enter a plea of Guilty But Mentally Retarded in exchange for an agreed upon sentence.” Accordingly, we conclude that Young never actually requested that he be allowed to enter a non-negotiated plea of guilty, with or without an associated claim of intellectual disability.
30. Young argues that the trial court erred by excluding testimony from three witnesses on the subject of his alleged intellectual disability. We see no error.
(a) During defense counsel‘s direct examination of a social worker from Young‘s high school who had known Young and his family since Young was a young child, defense counsel asked the witness whether and how he had “ever come into the[ ] lives” of Young‘s brothers and sisters. The State objected that the testimony sought was not relevant, and a bench conference was held and then explained later in detail on the record by the trial court and the parties. Defense counsel explained that he had been seeking testimony showing that Young‘s siblings had been in special education. Defense counsel conceded that it was “not universally accepted” in the mental health profession that there was a genetic component to intellectual disability, and it was not disputed that the witness was not qualified to testify on the matter as an expert; however, defense counsel argued that, “in the general community, people are aware that certain diseases such as mental retardation, such as all different kinds of diseases, are genetic in nature.” Nevertheless, defense counsel also stated immediately after the trial court announced its ruling: “I am certainly not making any assertion that anyone in Mr. Young‘s family is mentally retarded.” Under these circumstances, we see no abuse of discretion in the trial court‘s sustaining the State‘s objection. See Watson v. State, 278 Ga. 763, 771 (10) (604 SE2d 804) (2004) (holding that the question of relevance is entrusted to a trial
(b) Pretermitting Young‘s likely waiver of the issue, we conclude that the trial court did not abuse its discretion by refusing to allow one of Young‘s former high school coaches to provide speculative testimony about what Young‘s team members thought of him or about whether the team members wished that they could be present at Young‘s trial. Instead, the trial court properly focused the witness‘s attention on his personal observations regarding Young‘s interactions with his teammates. Cf. Mathis v. State, 291 Ga. 268, 270 (2) (728 SE2d 661) (2012) (addressing improper testimony that “was based not on [the witness‘s] personal knowledge but rather on hearsay“).
(c) Another of Young‘s former high school coaches testified that Norfolk State College had regularly given “the opportunity to potential athletes to be admitted on a probationary status,” that Young had “only lasted a short while” at the college, that “the idea wasn‘t so much for [Young] to be a four-year college graduate” but instead “was to hopefully improve his situation and to get him out of dodge,” that “Norfolk State was giving him an opportunity to try to make it in school, to try to better himself,” but that “[f]ootball was the whole idea.” However, when the witness began to explain in more detail about what happened regarding the college when “they br[ought] you in,” the State objected to “any sort of speculation about this” but conceded that the witness “c[ould] testify to personal knowledge about this situation.” Defense counsel replied, “Sure.” The trial court then stated that it was sustaining the objection and directed defense counsel to “focus in a little more.” The witness then testified: “[Young] got in because we had a contact there who recognized his football ability.” The State objected, stating that a foundation should be shown for any personal knowledge of the witness on the subject, and the trial court instructed defense counsel to “go a little more foundational with that” and to “[a]llow the witness to explain his knowledge and how he gained it and so forth.” Defense counsel again replied, “Sure.” Pretermitting the possible waiver of the issue by Young, we conclude that the trial court did not abuse its discretion in the manner in which it handled the State‘s objections regarding this witness. Cf. Mathis, 291 Ga. at 270 (2).
31. Young argues that the State presented testimony from three of his co-workers at a food-canning company that the State knew from Young‘s employment records to be false. See Napue v. Illinois, 360 U. S. 264, 269 (79 SCt 1173, 3 LE2d 1217) (1959). These co-workers testified at trial in the State‘s rebuttal case in the guilt/innocence phase, where Young‘s alleged intellectual disability was to be decided, that Young was “good at his job,” was one of the “best operators” of the can-labeling equipment, was not “a problem employee,” was “there every day, pretty much,” “seemed to do fine,” “was at work on time and everything,” and was “always on time.” From the 184 pages of Young‘s employment records spanning ten years, Young‘s brief points to “three suspensions, one lasting an entire week, twenty-nine unexcused absences, twenty-seven violations for lateness, and two warnings,” to a notice of “poor job performance because of inattention, neglect or other non-deliberate actions,” and to a notice regarding Young‘s third work suspension indicating that he would be terminated if he had an additional infraction.
In his response brief, the Attorney General notes that this “averages out to roughly a little less than three unexcused absences and three violations for lateness per year.” Attempting to emphasize the gravity of the negative notations in his work records, Young cites the vague trial testimony of one of his co-workers that, “if you accumulate up to, like, eight points, you get your terminated [sic] from the job.” But the jury was aware at trial that Young was never terminated, and even now Young cites part of his work records showing that eight points only warranted a suspension. We also note that one of the co-workers testified that the point system “had nothing to do with the labeling part of
32. Young argues that the State made improper arguments regarding his alleged intellectual disability. First, we hold that this claim has been waived for the purposes of ordinary appellate review, because Young did not raise any related objections at trial. See Martin, 298 Ga. at 278-279 (6) (d). Second, as we discuss below, the contested arguments were not improper.
(a) Young contends that the State‘s argument placed “undue emphasis on Young‘s perceived adaptive strengths, arguing that relative strengths could overcome adaptive deficits,” and that the State‘s argument improperly relied on lay stereotypes. We disagree.
We note that it was the psychiatrist presented by the State22 who set forth the areas of adaptive skills “listed in the DSM-IV-TR,” an authoritative text in the field of mental health, and who, using a demonstrative exhibit without any objection from Young, explained the areas of adaptive skills “utilized by the American Academy of Mental Retardation [(‘AAMR‘)].”23 On cross-examination by Young, the State‘s psychiatrist also explained the three areas of adaptive skills used by the American Association on Intellectual and Developmental Disabilities and the fact that a person would only need to have a deficit in one of those three areas to qualify for a diagnosis of mental retardation.
Notably, as the State did later in its closing argument, Young attempted in his cross-examination of the State‘s psychiatrist to emphasize specific things regarding Young‘s past behaviors and activities and how they might be relevant to the areas of adaptive skills. Even more notably, the State‘s psychiatrist answered affirmatively when Young asked whether “the DSM says that the focus is on the deficits,” when Young asked whether, “if someone had particular strengths in any of these [areas of adaptive skills], they could still be classified as mentally retarded,” when Young asked if it would be “irresponsible” to “ever say that[,] because [a person] can do X, one thing, that they are not mentally retarded,” and when Young asked whether “what you‘re looking for is significant deficits in at least two” of the areas of adaptive skills when considering the list used by the AAMR. The State‘s psychiatrist also described how intellectually disabled persons often “try to act normal” and engage in “parroting behavior,” that some of them are able to interact appropriately, that “they may not look mentally retarded on the surface,” that they may appear “street smart,” and that they may be able to do some tasks normally. See Moore, 139 SCt at 669 (I) (citing Moore, 137 SCt at 1051-1052 (IV) (C) (1)) (holding that the procedure for considering alleged intellectual disability must be based on the medical community‘s diagnostic standards).
Having itself presented an expert who carefully explained the proper analysis of areas of adaptive skills under prevailing professional standards, the State gave a closing argument that attempted to highlight various parts of the evidence showing Young‘s lack of deficits in those areas. Upon our review of the State‘s arguments at issue, we conclude that, although at times somewhat impassioned, they were not improper. See Cullen v. Pinholster, 563 U. S. 170, 200 (III) (D) (1) n.19 (131 SCt 1388, 179 LE2d 557) (2011) (noting that the prosecuting attorney cannot
(b) As we explained in Division 27 (a), evidence regarding a defendant‘s actions during and around the time of a crime can be probative on the question of whether a defendant lacks deficits in specific areas of adaptive behavior. See Morrison, 276 Ga. at 831 (2). See also Moore, 139 SCt at 671-672 (III) (stating that clinicians might find this type of evidence relevant). Accordingly, we hold that the State did not act improperly by making arguments regarding Young‘s alleged intellectual disability based on the evidence of how he carried out his crimes.
(c) The State did not argue improperly by emphasizing the fact that there were no records showing any specific IQ score for Young, that the range of scores presumed by the school employees who testified on Young‘s behalf did not necessarily indicate intellectual disability, and that any additional IQ test that might be given to Young would “probably” show that, while not one of “the brightest bulbs on the tree,” Young was not intellectually disabled. See Ellington, 292 Ga. at 143 (10) (c) (noting the latitude granted to the parties in making their closing arguments).
33. Young argues that a particular juror tainted the jury with extrajudicial evidence and that the jury engaged in premature deliberations. As explained below, we reject both arguments.
Young questioned the juror during voir dire about his stepdaughter, and the juror disclosed that his stepdaughter had “special needs,” that she was 19 years old but at times was like a 7- or 8-year-old, that he had been her caretaker for 18 years, that her need for special education became apparent at the age of 3 or 4 years old, that she had been slow to learn to speak, that her disability was not apparent from her physical appearance, and that she had been diagnosed as brain damaged. Young did not move to have the juror excused for cause.
In support of this claim, which Young also raised in his motion for new trial, he relies on the testimony of an alternate juror. See Collins v. State, 308 Ga. 608, 610 (2) (842 SE2d 811) (2020) (noting that juror testimony is permitted regarding extraneous prejudicial information). But see United States v. Siegelman, 467 FSupp.2d 1253, 1279 (M.D. Ala. 2006) (expressing doubt that juror testimony regarding alleged premature deliberations is admissible). The alternate juror testified that the juror in question entered the jury room after some testimony about intellectual disability, that he appeared to be “agitated,” and that he stated to several other jurors that “he knew what a disabled person was because his [step]daughter was disabled and she had to have a lot of care.” The alternate juror testified that the juror in question “didn‘t actually come out and say” that Young was not disabled, but she testified that “it was basically like he could tell the difference between someone that had a disability and one that didn‘t,” and she concluded, “I don‘t think he felt like [Young] had one.” The alternate juror testified that the juror in question was in the same corner of the jury room and with the same few other jurors that he had been with during other breaks, but she added that the juror was not loud, that the other jurors did not gather around him, and that she never heard jurors, including those who were with the juror in question, deliberating or expressing an opinion about whether or not Young was intellectually disabled. In its order on Young‘s motion for new trial, the trial court found that the juror in question “was making statements concerning his life experience that apparently touched on the testimony he had just heard,” that doing so was “understandable in light of his experience with his step daughter as revealed to counsel in voir dire,” and that “[h]e expressed no opinion on any trial issues such as guilt or innocence or the mental condition of the defendant.” The trial court further found that “these issues were not discussed, talked about, or deliberated” and concluded that the matter did “not constitute premature deliberation.” The trial
(a) In light of the foregoing, we accept the trial court‘s findings of fact and agree with the trial court‘s conclusion that no premature deliberations occurred. See Sims v. State, 266 Ga. 417, 419-420 (3) (467 SE2d 574) (1996).
(b) We also agree with the trial court‘s conclusion that the statements by the juror in question, which regarded matters that were discussed at length by him in his voir dire, did not warrant a new trial. See Martin, 298 Ga. at 292-294 (16) (“Having accepted Juror Lemmond as a juror, Martin cannot now complain that her knowledge drawn from her past employment assisted the other jurors in considering the evidence and arguments made by the parties at trial.“), disapproved on other grounds by Willis, 304 Ga. at 706 (11) (a) n.3.
34. The trial court charged the jury, in accordance with
35. Young argues that the trial court erred by denying five requests to charge on the subject of intellectual disability, and he highlights in particular his requested charges that the jury could find Young intellectually disabled even if it found adequate functioning in some or many areas of adaptive functioning, that “[i]ndividuals may have capabilities and strengths that are independent of their mental retardation,” and that such “abilities do not exclude a diagnosis of mental retardation.” The trial court correctly instructed the jury on the statutory definition of “mental retardation,” charging as follows: “The term mentally retarded means having significantly subaverage general intellectual functioning resulting in or associated with impairments in adaptive behavior that became clear during the developmental period.” See
37. Young argues that the pre-printed verdict form used in the guilt/innocence phase of his trial, coupled with the trial court‘s charges to the jury, would have misled the jury regarding its duties in considering his alleged intellectual disability. See Rowland v. State, 306 Ga. 59, 67-68 (6) (829 SE2d 81) (2019) (holding that a verdict form should be considered in conjunction with the jury charges); Rucker v. State, 270 Ga. 431, 435 (5) (510 SE2d 816) (1999) (holding that the use of a verdict form is error if it “would mislead jurors of reasonable understanding“). In Young‘s case, the verdict form and the jury charges made clear that the jury was to select, for each of the charges in the indictment, only one of the three verdict options: not guilty, guilty, or guilty but mentally retarded. The charges, read as a whole, also made clear that no verdict could be reached and entered on the verdict form unless it was unanimous. Furthermore, despite the trial court‘s somewhat confusing statement at one point that the jury should determine which of the three verdicts applied if it found that Young was “suffering mental retardation,” the charges as a whole indicated that the jury should reach a unanimous conclusion regarding one option to the exclusion of the other two.
Finally, after first stating that the jury would have the “duty” to find Young guilty but mentally retarded if it so found beyond a reasonable doubt, the charges, in tracking the language of the pattern jury charge, later stated as to each charge that the jury would be “authorized” to enter such a verdict upon such a finding. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 3.80.50.25 However, in light of the clear charges to the jury that any verdict must be unanimous and in light of a charge that individual jurors “should never surrender an honest opinion in order to be congenial or to reach a verdict,” we conclude that the jury would not have been misled regarding its duties by the use of the word “authorized.”26 Cf. Cheddersingh v. State, 290 Ga. 680, 681-682 (2)
(724 SE2d 366) (2012) (holding that a preprinted verdict form and jury charges should be considered as a whole and concluding that the verdict form might have led the jury to believe that it must conclude beyond a reasonable doubt that the defendant was not guilty in order to acquit).
Young raised no objection to either the charges at issue or to the verdict form. Therefore, the issues here are subject to review only for whether there was plain error that affected substantial rights and under our Sentence Review below regarding Young‘s death sentence. See
Issues Related to the Sentencing Phase
38. We see no merit to Young‘s arguments, including his arguments regarding the decline in the frequency of death sentences, that Georgia‘s death penalty statutes are unconstitutional in that they fail to sufficiently narrow the categories of murder eligible for the death penalty and thereby result in arbitrary and capricious death sentences. See Ellington, 292 Ga. at 116 (3) (b), disapproved on other grounds by Willis, 304 Ga. at 706 (11) (a) n.3.
39. Young argues that the trial court improperly closed the courthouse during the sentencing phase and thereby violated his constitutional rights. See Waller v. Georgia, 467 U. S. 39, 46 (II) (A) (104 SCt 2210, 81 LE2d 31) (1984) (discussing the right to a public trial). The day in question was a furlough day for county employees; however, the trial court informed the parties that it would be having court on the furlough day and that the courthouse would be open to members of the public who wished to attend. On the furlough day, the trial court noted on the record that bailiffs had been “instructed at the front door that if anyone comes in looking for the, for a closed office, to tell them, but the building is open to the public.” Young did not object to holding the trial on the furlough day. Testimony from officers confirmed that an entrance was open and that no one was turned away. We conclude that this issue was waived for the purposes of ordinary appellate review by Young‘s failure to object in the trial court. See Martin, 298 Ga. at 278-279 (6) (d). Furthermore, the record supports the trial court‘s finding that the courtroom remained open with access freely available to the public. Cf. State v. Brown, 293 Ga. 493, 493-496 (1) (748 SE2d 376) (2013) (addressing a courthouse that was accessible only to persons with a special relationship to court personnel).
40. Young argues that the trial court erred by overruling certain objections to the State‘s victim impact testimony. We have held previously that victim impact testimony should not include characterizations of the crime or the defendant and that it should not include any statements regarding the appropriate sentence. See Bryant, 288 Ga. at 895 (15) (a). We have held that testimony regarding the emotional impact on the victim‘s family and the community must be controlled within the trial court‘s discretion but is not categorically improper. See Walker v. State, 282 Ga. 774, 779-780 (11) (653 SE2d 439) (2007), disapproved on other grounds by Ledford v. State, 289 Ga. 70, 85 (14) (709 SE2d 239) (2011), disapproved on other grounds by Willis, 304 Ga. at 706 (11) (a) n.3. We have held that victim impact testimony should not encourage the jury to base its sentencing decision on factors such as “class or wealth.” Livingston, 264 Ga. at 404 (1) (b). We have held that “religious references” in victim impact testimony are not categorically prohibited but instead are entrusted to the trial court‘s discretion. Pickren v. State, 269 Ga. 453, 454-455 (1) (500 SE2d 566) (1998). We have also held that victim impact testimony may include evidence such as video recordings or photographs “of the victim alive.” Tollette v. State, 280 Ga. 100, 105 (11) (621 SE2d 742) (2005). Finally, we have held that “even some legitimate victim impact evidence could inflame or unduly prejudice a jury if admitted in excess.” Livingston, 264 Ga. at 404 (1) (b). Applying these various principles, and pretermitting the fact that Young waived much of this claim by failing to object or by failing to obtain rulings, we conclude that the specific portions of the victim impact testimony that Young complains about on appeal were not improper. See Walker, 282 Ga. at 779 (11).
41. Young
42. Young argues that it was unconstitutional for his jury to consider alleged non-statutory aggravating circumstances without being instructed that such circumstances must be found beyond a reasonable doubt. First, this specific issue was not raised in the trial court and therefore has been waived for the purposes of ordinary appellate review. See Martin, 298 Ga. at 278-279 (6) (d). Furthermore, contrary to Young‘s argument, “the finding of a non statutory aggravating circumstance does not increase the defendant‘s maximum potential punishment” and therefore does not have to be found beyond a reasonable doubt. Ellington, 292 Ga. at 116-117 (3) (d) (citing Ring v. Arizona, 536 U. S. 584, 609 (II) (122 SCt 2428, 153 LE2d 556) (2002)), disapproved on other grounds by Willis, 304 Ga. at 706 (11) (a) n.3.
43. We reject Young‘s invitation to overrule our precedent holding that this Court‘s proportionality review under
44. During sentencing phase deliberations, the jury sent the trial court a note asking if there is “an automatic appeal when the death penalty is given,” and the trial court responded: “You are to decide this case based upon the evidence, the law and the instructions given to you. You are not to concern yourselves with matters of this nature.” Young‘s complaint regarding this response was waived for the purposes of ordinary appellate review by Young‘s failure to object at trial. See Martin, 298 Ga. at 278-279 (6) (d). Furthermore, we conclude that the trial court‘s response was not unconstitutional as Young argues, because it did not suggest that “the responsibility for determining the appropriateness of the defendant‘s death rest[ed] elsewhere.” Caldwell v. Mississippi, 472 U. S. 320, 329 (III) (A) (105 SCt 2633, 86 LE2d 231) (1985) (reversing where the prosecutor argued that any death sentence would be reviewed by the appellate court for correctness).
45. Young argues that the trial court erred regarding two other notes from the jury during its sentencing phase deliberations. As explained below, we see no error.
(a) About an hour and 45 minutes into sentencing phase deliberations, a juror sent a note to the trial court stating: “I am
(b) Later, the jury sent a note informing the trial court that it was deadlocked eleven to one in favor of a death sentence and asking, “What is the next step?” At that point, which was after less than four hours of deliberations, the trial court properly charged the jury consistently with this Court‘s suggested modified Allen charge for such circumstances, instructing them (1) that each juror must agree in order for the jury to return a verdict, (2) that jurors have a duty to consult one another, (3) that each juror must decide the case for himself or herself, (4) that a juror should not hesitate to reexamine his or her views and change an opinion if convinced that it is erroneous, and (5) that no juror should surrender his or her views solely based on other jurors’ opinions or for the mere purpose of returning a verdict. See Romine v. State, 256 Ga. 521, 527 (1) (d) (350 SE2d 446) (1986). See also Allen v. United States, 164 U. S. 492 (17 SCt 154, 41 LE 528) (1896). We disagree with Young‘s contention that the charge given was coercive or improperly singled out the one juror who had not voted for death, even accounting for the fact that the jury had volunteered in its note the nature and breakdown of its deadlock. Cf. Smith v. State, 302 Ga. 717, 721 (2) (808 SE2d 661) (2017) (providing guidance on determining if an Allen charge was coercive).
46. We reject Young‘s argument that his right to be present was denied in the sentencing phase during bench conferences in which the juror notes regarding an alleged jury deadlock were discussed. We conclude that the trial court did not err in its order denying Young‘s motion for new trial in concluding that he was aware of the subject matter of the bench conferences, that the decisions made at them were announced in open court, that Young never personally voiced any concerns, and, accordingly, that Young personally acquiesced in the waiver of his presence that was made by his counsel. Cf. Champ, 310 Ga. at 834-848 (2) (a), (b), and (c) (remanding where the trial court had not ruled on the defendant‘s acquiescence in counsel‘s waiver).
Appellate Issues
47. Young argues that he is entitled to a new trial because a photograph of him as an infant or toddler was admitted at trial but is not included in the appellate record, despite the best efforts of his counsel on remand from this Court to complete the record, including a trip to New Jersey. First, Young has failed to show why he could not have obtained an adequate description of the photograph, with or without an intervening trip to New Jersey, in an order from the trial court pursuant to
48. Young argues that his convictions and sentences should be reversed based on a
Sentence Review
49. Upon our review of the entire record, especially those portions relevant to the matters noted above that were waived for the purposes of ordinary appellate review, we conclude that the sentence of death in this case was not imposed under the influence of passion, prejudice, or any other arbitrary factor. See
50. In its sentencing verdict, the jury found as statutory aggravating circumstances that the murder was committed while Young was engaged in the commission of burglary and aggravated battery and that the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture and aggravated battery to the victim before death and involved the defendant‘s depravity of mind. See
51. The Georgia Code requires this Court, in the direct appeal of a death sentence, to determine “[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”
(a) Contrary to Young‘s arguments, “[t]his Court‘s proportionality review is not inadequate under statutory or constitutional standards,” Ellington, 292 Ga. at 117 (3) (e), disapproved on other grounds by Willis, 304 Ga. at 706 (11) (a) n.3, and there is no need for this Court to remand this case to the trial court for further proceedings regarding this issue. In support of this holding, we set forth our reasoning regarding Young‘s specific arguments in more detail below.
(i) As this Court has explained previously, our proportionality review
concerns whether the death penalty “is excessive per se” or if the death penalty is “only rarely imposed . . . or substantially out of line” for the type of crime involved and not whether there ever have been sentences less than death imposed for similar crimes.
Gissendaner v. State, 272 Ga. 704, 717 (19) (a) (532 SE2d 677) (2000) (citations omitted; emphasis in original). Furthermore, as noted previously in a concurrence to the
The Court does not determine whether the death sentence under review represents a large or small percentage of sentences in factually comparable cases. Rather, the Court examines the sentence on appeal to ensure that it is not an anomaly or aberration.
Terrell v. State, 276 Ga. 34, 46 (572 SE2d 595) (2002) (Fletcher, C. J., concurring). Thus, an argument like Young‘s highlighting the infrequency of death sentences in Georgia, particularly regarding cases involving crimes that are arguably somewhat similar to his and defendants that are arguably somewhat similar to him, “while not irrelevant, cannot alone compel a finding of unlawful disproportionality.” Gissendaner, 272 Ga. at 717 (19) (a). Instead, “[t]his Court views a particular crime against the backdrop of all similar cases in Georgia in determining if a given sentence is excessive per se or substantially out of line.” Id. (emphasis supplied). We reaffirm these aspects of our proportionality review.
(ii) We reaffirm this Court‘s previous holding that, “[b]ecause it is a jury‘s reaction to the evidence before it that concerns this Court in its proportionality review, it is irrelevant if the sentences in the cases used for comparison were already at the time, or later are, reversed for reasons unrelated to the juries’ reactions to the evidence.” Davis v. Turpin, 273 Ga. 244, 246 (2) (539 SE2d 129) (2000).28
(iii) We disagree with Young‘s assertion that this Court‘s partial reliance in its proportionality review on some cases that are not as recent as others in itself renders this Court‘s proportionality review inadequate.
(iv) The Georgia Code provides that this Court
shall be authorized to employ an appropriate staff and such methods to compile such data as are deemed by the Chief Justice to be appropriate and relevant to the statutory questions concerning the validity of the sentence reviewed in accordance with Code Section 17-10-35.
decision, including in an appendix providing “a reference to those similar cases which [this Court] took into consideration,”
(v) Finally, Young complains that it is “unfair” that he will not have access to this Court‘s reasoning regarding the proportionality of his death sentence prior to the issuance of this opinion, after which his only remaining remedy in this Court will be a motion for reconsideration. In rejecting this argument, we note that a similar difficulty presents itself to all unsuccessful appellants in this Court, regardless of the issue decided on appeal.
(c) The evidence in this case shows that, after weeks of careful planning, Young ruthlessly executed the prolonged attack on and brutal murder of his former fiancée‘s son for the purpose of manipulating his former fiancée into resuming a relationship with him and returning to live with him. Considering both the crime and the defendant, including the evidence of his intellectual difficulties, we conclude that the death sentence imposed for the murder in this case is not disproportionate punishment within the meaning of Georgia law. See
Judgment affirmed. All the Justices concur, except Nahmias, P. J., and Boggs and Peterson, JJ., who concur specially, Warren, J., who concurs in judgment only, and Bethel, J., who dissents.
APPENDIX.
Spears v. State, 296 Ga. 598 (769 SE2d 337) (2015), disapproved on other grounds by Willis v. State, 304 Ga. 686, 706 (11) (a) n.3 (820 SE2d 640) (2018); Barrett v. State, 292 Ga. 160 (733 SE2d 304) (2012); Ledford v. State, 289 Ga. 70 (709 SE2d 239) (2011), disapproved on other grounds by Willis, 304 Ga. at 706 (11) (a) n.3; Arrington v. State, 286 Ga. 335 (687 SE2d 438) (2009); Walker v. State, 282 Ga. 774 (653 SE2d 439) (2007) (relevant to Young‘s case despite the fact that the convictions and sentences were later vacated for reasons unrelated to the jury‘s reaction to the evidence before it, see Humphrey v. Walker, 294 Ga. 855 (757 SE2d 68) (2014), disapproved on other grounds by Ledford, 289 Ga. at 85 (14), disapproved on other grounds by Willis, 304 Ga. at 706 (11) (a) n.3); Lewis v. State, 277 Ga. 534 (592 SE2d 405) (2004) (relevant to Young‘s case despite
NAHMIAS, Presiding Justice, concurring specially.
With the one exception that I discuss below, I am fairly confident that the Court reaches the right result on all of the issues presented in this case, so I concur in the judgment upholding Young‘s convictions and sentences, including his death sentence. I am less sure about everything the plurality opinion says, or fails to say, about each of the issues presented. I do not fault the author of the plurality opinion for that, because the opinion has to try to explain its reasoning regarding the 50 enumerations of error (many with subparts) raised in Young‘s 466-page principal brief (which was supplemented by another 76 pages of argument in a reply brief), and the Court must decide this case (along with our many other second-term cases) by July 2 to comply with our state Constitution‘s unique “two-term rule.” See
This Court has not (yet) imposed a page limit on briefs in death penalty cases. See
The issue that is closest, as evidenced by Justice Bethel‘s dissent, and as to which I have the least confidence in the result, is the continued viability, under the
That doctrine, which does not purport to be founded on the original public meaning of the constitutional text, allows judges to outlaw punishments based on their judicial conceptions of what contemporary “decency” requires. See Atkins, 536 U.S. at 337 (Scalia, J., dissenting) (explaining that the rule adopted by the majority opinion “find[s] no support in the text or history of the Eighth Amendment“); Conley v. Pate, 305 Ga. 333, 339-341 (825 SE2d 135) (2019) (Peterson, J., concurring) (explaining that the
Consequently, when we enter the realm of
Thereafter, however, in Hall v. Florida, 572 U.S. 701 (134 SCt 1986, 188 LE2d 1007) (2014), and Moore v. Texas, 581 U.S. ___ (137 SCt 1039, 197 LE2d 416) (2017), the majority on the United States Supreme Court began to constrain the leeway that the states appeared to have been given regarding how intellectual disability may be determined. The holdings of those two cases do not address what standard of proof may be
The reasoning of the United States Supreme Court‘s decisions does not bind lower courts, however; only the holdings govern. Cf. Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (109 SCt 1917, 104 LE2d 526) (1989) (explaining that even when the holding of a Supreme Court case appears to be contradicted by the reasoning of another line of decisions, the holding rather than the subsequent reasoning is binding on lower courts). And particularly in this area of “evolving standards of decency,” in which it all comes down to whether five Justices decide to “evolve” the
Since the death penalty for juveniles was outlawed by the 5-4 decision in Roper v. Simmons, 543 U.S. 551, 578 (125 SCt 1183, 161 LE2d 1) (2005), the clear trend line of the United States Supreme Court‘s cases in this area (all decided by narrow margins) was to restrict the states’ authority to punish juveniles. In particular, the reasoning of the Court‘s 6-3 majority opinion in Montgomery v. Louisiana, 577 U.S. 190 (136 SCt 718, 193 LE2d 599) (2016), seemed to make it clear that before a juvenile murderer could be sentenced to life without parole, the sentencer must consider more than just the defendant‘s youth and its attendant characteristics; there must be a specific determination that the defendant is one of those “rarest of juvenile offenders . . . whose crimes reflect permanent incorrigibility.” Id. at 208-212. This Court and other lower courts relied on that reasoning to require such a determination. See Veal v. State, 298 Ga. 691, 702-703 (784 SE2d 403) (2016). See also, e.g., Malvo v. Mathena, 893 F3d 265, 275 (4th Cir. 2018); Commonwealth v. Batts, 163 A3d 410, 459 (Pa. 2017). But then the composition of the United States Supreme Court changed, and just a few weeks ago that Court held, by a 6-3 margin, that notwithstanding most of what the Montgomery majority opinion said, that decision does not require a specific finding of permanent incorrigibility. See Jones v. Mississippi, 593 U.S. ___ (141 SCt 1307, 1311, 209 LE2d 390) (2021). See also Holmes v. State, __ Ga. __, __ (__ SE2d __) (2021). Both the three dissenters and Justice Thomas (who concurred in the judgment based on his view that Montgomery was wrongly decided) criticized the majority opinion for disregarding Montgomery‘s logic and reasoning. See Jones, 141 SCt at 1323, 1326-1328 (Thomas, J., concurring in the judgment); id. at 1330-1337 (Sotomayor, J., dissenting).
Jones demonstrates that courts like mine should be cautious in deciding
Of course I (and the majority of this Court) could be wrong. Young is welcome to seek certiorari from the United States Supreme Court to have that Court tell us that we are wrong; I would obediently accept and forthrightly apply such a decision. Young and his advocates are also welcome to try to
I am authorized to state that Justice Boggs and Justice Peterson join this special concurrence.
BETHEL, Justice, dissenting.
“[T]he
In Atkins, the Supreme Court of the United States determined that the
In Hall, Florida‘s rule precluding a finding of intellectual disability for any person scoring over 70 on an IQ test failed constitutional review because it created “an unacceptable risk that persons with intellectual disability will be executed.” Hall, 572 U. S. at 704. The “rigid” statutory rule in Hall was deemed unacceptable by the Supreme Court, in part because the strict rule failed to consider the margin of error and variability inherent in IQ testing, and thus disregarded established medical practice. See id. at 713-714 (III) (A).
Likewise, in Moore, the seven-factor test established by Texas courts to evaluate intellectual disability was found to be deficient because “[b]y design and in operation,” the Texas test created “‘an unacceptable risk that persons with intellectual disability will be executed.‘” Moore, 137 SCt at 1051 (IV) (C) (1) (quoting Hall, 572 U. S. at 701). More specifically, the Supreme Court determined that the Texas test failed to protect those with mild levels of intellectual disability from execution. See id. This was impermissible because “the entire category
The question before us, then, is whether Georgia‘s requirement that a defendant prove his or her own intellectual disability beyond a reasonable doubt creates “an unacceptable risk that [an intellectually disabled person] will be executed.” Hall, 572 U. S. at 704. Here, the existence of such a risk seems plain.
Obviously, some portion of persons who are actually intellectually disabled would, nevertheless, find it difficult to prove that fact in a judicial proceeding under any standard of proof. See Raulerson v. Warden, 928 F3d 987, 1015, 1016 (I) (C) (11th Cir. 2019) (“Intellectual disability is an inherently imprecise and partially subjective diagnosis. . . . Given that intellectual disability disputes will always involve conflicting expert testimony, there will always be a basis for rejecting an intellectual disability claim.“) (Jordan, J., concurring in part and dissenting in part); see also Hill v. Humphrey, 662 F3d 1335, 1367 (I) (11th Cir. 2011) (Barkett, J., dissenting) (“[M]ental retardation spans a spectrum of intellectual impairment[.]“). There is a risk of failure in every effort to divine truth through a judicial proceeding. Employing the highest burden of proof in our system of justice, however, significantly increases the risk of an offender with an actual intellectual disability being executed because he or she is unable to meet the high standard of proof.30 Under Georgia‘s standard, a meaningful portion of intellectually disabled offenders are effectively excluded from the constitutional protection recognized in Atkins. See Humphrey, 662 F3d at 1365-1366 (Barkett, J., dissenting) (noting that the State does not “have unfettered discretion to establish procedures that through their natural operation will deprive the vast majority of [intellectually disabled] offenders of their
Further, when the standard of proof is beyond a reasonable doubt, an individual juror who merely believes the defendant to be probably or even clearly intellectually disabled would still be authorized to join a sentence of death if any part of their mind was wavering, unsettled, or unsatisfied that the defendant had proven intellectual disability. We know that a rigid cutoff for IQ that does not account for variability and margin of error in the test is unreasonable. See Hall, 572 U. S. at 713-714 (III) (A). Likewise, we know that employing a test that exposes those with mild intellectual disabilities to a greater risk of execution is unreasonable. See Moore, 137 SCt at 1051 (IV) (C) (1). With these truths in mind, then, it seems plain to me that requiring the highest burden of proof known to our judicial system is also unreasonable because it fails to protect intellectually disabled persons who are unable to prove that fact beyond a reasonable doubt. Accordingly, while I concur in the balance of the Chief Justice‘s opinion, I respectfully dissent with respect to Division 25. Thus, I would vacate the trial court‘s judgment and remand the case for a new jury trial on the sole question of intellectual disability and for resentencing consistent with the result of that trial, or for other constitutionally agreeable proceedings.
Decided June 24, 2021.
Murder. Newton Superior Court. Before Judge Ozburn.
Josh D. Moore, Thea A. Delage, Brian Stull, for appellant.
Randal M. McGinley, District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Sabrina D. Graham, Senior Assistant Attorneys General, for appellee.
FisherBroyles LLP, Andrew J. King; Blank Rome LLP, Laurence Shtasel, Taylor K. Lake, Heidi Crikelair, amici curiae.
Notes
Ford, 477 U. S. at 427 (III) (Powell, J., concurring in part and concurring in the judgment).We need not determine the precise limits that due process imposes in this area. In general, however, my view is that a constitutionally acceptable procedure may be far less formal than a trial. The State should provide an impartial officer or board that can receive evidence and argument from the prisoner‘s counsel, including expert psychiatric evidence that may differ from the State‘s own psychiatric examination. Beyond these basic requirements, the States should have substantial leeway to determine what process best balances the various interests at stake. As long as basic fairness is observed, I would find due process satisfied. . . .
Id. at 948-949. The dissent in Fleming similarly explained that in holding that the death penalty for the intellectually disabled was prohibited by the Georgia Constitution based primarily on the enactment ofI am voting against the petition for rehearing because the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority‘s decision in this case. The majority opinion, after an unpersuasive attempt to show that a consensus against the penalty existed, in the end came down to this: ” ‘[T]he Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.’ ” [554 U.S.] at 434. Of course the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read “no criminal penalty shall be imposed which the Supreme Court deems unacceptable.” But that is what the majority opinion said, and there is no reason to believe that absence of a national consensus would provoke second thoughts.