Hall v. State

Jordan, Justice,

dissenting.

I dissent from Division 8 of the opinion vacating the death sentence of the appellant on the basis that his co-defendant at a subsequent trial was only given a life sentence.

Under the sentence review provisions of the death penalty statute we are required (1) to determine whether a particular jury in a particular case imposed the death sentence under the influence of passion, prejudice or some arbitrary factor. Such does not appear in this case. The facts amply authorize the conviction for felony murder and the sentence of death.

We are required (2) to consider whether "the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” (Emphasis supplied.) While the evidence and circumstances surrounding a crime might be similar, yet a consideration of the defendant, including his demeanor in connection with the crime as well as his past history and record, though not the triggerman, might well authorize a verdict of death where his confederate would be meted lighter punishment.

As an aid to this court in making the latter determination, a report completed by the trial court must accompany each death sentence review. This report includes questions concerning the defendant’s age, family status, education, past criminal behavior, and many other pertinent facts which usually do not appear in the record of the trial. A thorough appraisal of this report in the *262 instant case leads me to the conclusion that this court can reasonably uphold the death sentence of this appellant even though his confederate, the "triggerman,” received only a life sentence.

The FBI record attached to this report shows a long and continuous criminal record dating from 1956 to the present time. In 1956 Hall was convicted for resisting arrest; on October 3,1956, he was arrested on a charge of robbery and on March 13, 1957, arrested on a charge of robbery by intimidation. For those offenses he was sentenced on each charge to a term of 3 to 5 years to run concurrently. He apparently escaped and was arrested in Chicago on a fugitive warrant on March 13, 1958. On December 3, 1960, he received a 6-year sentence for robbery by force. On October 17, 1963, he was charged with burglary and receiving stolen property and sentenced to 10 years on February 20, 1964. On May 19, 1969, he was charged with robbery by the use of an offensive weapon and found not guilty. In 1971, he was convicted for armed robbery and given a 10-year sentence. In 1976, he entered a plea of guilty to selling a controlled drug and sentenced to 3 years on probation. On this occasion in 1976 he engaged in an armed robbery resulting in the death of the store clerk. This record shows him to be a habitual criminal, either behind bars or outside engaging in serious crimes, for more than 20 years.

The report further shows that the appellant Hall completed high school and was 40 years old at the time this crime occurred. The report further shows that there was no physical or mental condition calling for special consideration and that there was absolutely no evidence of any mitigating circumstances.

As to the co-defendant Smith who received the life sentence, his prior criminal record consisted only of a conviction for robbery by .use of an offensive weapon in 1969 and a sentence of 1 year for escape while serving the robbery sentence. The record shows him to be 34 years old, with a wife and 4 children in his household. At the sentencing phase of his trial, defense counsel asked the jury to consider the facts in "regard to his family condition” in mitigation.

In the guilt phase of Smith’s trial, he took the stand *263 and steadfastly denied any participation in the crime, though he was identified by a witness for the state as being one of the three participants. Even though the jury found him to be a participant, and even though the evidence indicates he fired the fatal shot, the jury could have concluded from Smith’s statement and other evidence that Hall was the leader or "prime mover” in setting up the crime. See Hill v. State, 237 Ga. 794 ( 229 SE2d 737 ) (1976).

Considering the defendant Hall’s background, character, and record, I cannot conclude that the crime for which Hall and Smith were convicted was "similar,” considering both the crime and the defendant. Code Ann. § 27-2537 (c) (3). Based on this review, it cannot be said that Hall’s sentence was excessive or disproportionate in comparison with the sentence received by his co-defendant Smith.

I respectfully dissent. I am authorized to state that Justice Bowles and Justice Marshall join in this dissent.