Opposition — High v. Georgia

2 ORIGINAL NO. 80-6843

Q Q— RECEIVED

IN THE JUL 13 1994

SUPREME COURT OF THE UNITED STATES OFFICE OF THE CLERK

SUPREME COURT, Us.

OCTOBER TERM, 1980

JOSE MARTINEZ HIGH,

Petitioner,

v.

STATE OF GEORGIA,

Respondent.

PETITION FOR WRIT OF

CERTIORARI TO THE SUPREME COURT OF GEORGIA

BRIEF IN OPPOSITION FOR THE RESPONDENT

ARTHUR K. BOLTON

Attorney General

ROBERT S. STUBBS, II

Executive Assistant

Attorney General

DON A. LANGHAM

First Assistant

Attorney General

JOHN C. WALDEN

Senior Assistant

Attorney General

CHARLES E. BROWN

Staff Assistant

Attorney General

Please serve:

CHARLES E. BROWN

132 State Judicial Bldg.

40 Capitol Square, SW

Atlanta, Georgia 30334

(404) 656-3339

QUESTIONS PRESENTED

1.

Whether the Georgia Supreme Court's decision that serious

psychological abuse of the victim supported the jury's finding

of torture and depravity of mind as an aggravating circumstance

under Ga. Code Ann. § 27-2534. 1b) (7), is in conflict with this

Court's decision in Godfrey v. Georgia?

2.

Whether it is necessary to conduct a new sentencing

hearing when the jury was correctly instructed in the entirety

of Ga. Code Ann. § 27-2534. 1 (b) (7), and the Supreme Court of

Georgia affirmed Petitioner's death sentence imposed pursuant

to a finding under Ga. Code Ann. § 27, 2534.1(b)(7), in light

of Godfrey v. Georgia?

3.

Whether Petitioner's sentence of death constitutes cruel and

unusual punishment under the Eighth Amendment solely because he

was seventeen years old at the time of the offense, when under

Georgia law, he was an adult?

*

TABLE OF CONTENTS

PAGE

Questions Present. i

Statement Of the cagzs „„ 1

ARGUMENT AND CITATION OF AUTHORITY

A. THE GEORGIA SUPREME COURT'S FINDING

THAT SERIOUS PSYCHOLOGICAL ABUSE OF

THE VICTIM SUPPORTED THE JURY'S

FINDING OF TORTURE AND DEPRAVITY OF

MIND AS AN AGGRAVATING CIRCUMSTANCE

UNDER G. CODE ANN. § 27-2534.1(b) (7),

IS NOT IN CONFLICT WITH THIS COURT'S

DECISION IN GODFREY V. GEORGIA, 446

U.S. 420 —11980))))h)hhuh 5 3

B. THE PETITIONER IS NOT ENTITLED TO A

NEW SENTENCING HEARING AS THE JURY

WAS CORRECTLY INSTRUCTED AND THE

SUPREME COURT OF GEORGIA PROPERLY

AFFIRMED PETITIONER'S DEATH SENTENCE

IMPOSED PURSUANT TO A FINDING UNDER

LIGHT OF GODFREY V. GEORGIA, 446 U.S.

420 (19BO) ùꝶͥͥã ne 7

C. PETITIONER'S SENTENCE OF DEATH DOES

NOT CONSTITUTE CRUEL AND UNUSUAL

PUNISHMENT UNDER THE EIGHTH AMENDMENT

SOLELY BECAUSE PETITIONER WAS SEVENTEEN

YEARS OLD AT THE TIME OF THE OFFENSE

AS UNDER GEORGIA LAW, HE WAS AN NDUUL rt. 9

CONCLUSION. cccccoccccccccessesesesesesesesessesessesereereer® 11

CERTIFICATE OF SERVICE. ...... 12

APPENDIX

High Vv. State, 247 Ga. 289, 2768. k. 2d 5 19811 A

TABLE OF AUTHORITIES

Cordinale V. Louisiana, 394 U.S. 437 (196990· AuerRkt

Godfrey V. Georgia, 446 U.S. 420 (199h⁶ũ „„

Gregg V. Georgia, 428 U.S. 153 (197616ꝶ⁵bꝙ.r

Hance v. State, 245 Ga. 861, 268 8. E. 2d 339 (1980), cert.

denied 5.6. on™ 191 S. Ct. 796 (1998³õĩ!ü: „

STATUTES CITED:

Ga. Code Ann. § 24-401 (UU

Ga. Code Ann. § 27-2534.1(D) (7)... „ „

Ga. Code Ann. § 27-2537 (l.

-iii-

PAGE(S

9

3,7

10

4,5

3,5,7

NO. 80-6843

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

JOSE MARTINEZ HIGH,

Petitioner,

v.

STATE OF GEORGIA,

Respondent

PETITION FOR WRIT OF

CERTIORARI TO THE SUPREME COURT OF GEORGIA

BRIEF IN OPPOSITION FOR THE RESPONDENT

PART ONE

STATEMENT OF THE CASE

On December 1, 1978, the Petitioner, Jose Martinez High,

was tried by jury in the Superior Court of Taliaferro County

for the offenses of murder, two counts of kidnapping with bodily

injury, armed robbery, possession of a firearm during the

commission of a crime and aggravated assault. Petitioner was

convicted of all charges and sentenced to death for armed

robbery, murder and two counts of kidnapping. On appeal, the

Supreme Court of Georgia vacated two of the four death sentences,

those being the armed robbery and kidnapping of the victim who

survived the execution attempt on his life. The Court upheld

the jury's finding under Ga. Code Ann. § 27-2534.1(b)(7), for

the murder of Bonnie Bulloch,

From the Supreme Court of Georgia's decision of February

24, 1981, affirming Petitioner's death sentence, this petition

for a writ of certiorari has followed, The facts of this case

are adequately set forth in the Supreme Court of Georgia's

opinion under the division entitled "Sentence Review", which

opinion is attached hereto as Respondent's Appendix A.

PART_TWO

ARGUMENT AND CITATION OF AUTHORITY

A. THE GEORGIA SUPREME COURT'S FINDING

THAT SERIOUS PSYCHOLOGICAL ABUSE OF

THE VICTIM SUPPORTED THE JURY'S

FINDING OF TORTURE AND DEPRAVITY OF

MIND AS AN AGGRAVATING CIRCUMSTANCE

UNDER GA. CODE ANN. § 27-2534.1(b) (7),

IS NOT IN CONFLICT WITH THIS COURT'S

DECISION IN GODFREY V. GEORGIA, 446 U.S.

420 (1980).

The jury in Petitioner's trial found the following aggravating

circumstance: "The offense of murder, armed robbery, and

kidnapping was outrageously or wantonly vile, horrible and

inhuman in that it involved torture, depravity of mind, and

aggravated battery to the victim." ‘The Georgia Supreme Court

in conducting its sentence review in light of this Court's

decision in Godfrey v. Georgia, supra found:

"we find from the evidence in this case,

that the serious psychological abuse by

the appellant to the victim before death,

especially in view of the victim's young

age, and physical characteristics, supports

beyond a reasonable doubt the jury's

finding of torture and depravity of mind

on the part of the appellant. We further

find that this murder and kidnapping with

bodily injury was outrageously or wantonly

vile, horrible or inhuman in that it is

distinguishable from ordinary murders and

kidnapping with bodily injury for which

the death penalty is not appropriate.

-3-

While the victim died relatively instan-

taneously, he was a young child and not

a member of the appellant's family. He

was not subjecting appellant to any

emotional trauma nor giving the appellant

any reason whatsoever to assault him.

The appellant showed no remorse for the

killing, but rather bragged that ‘he

wanted to be the most famous black ring

leader in the world.' Under the evidence

of this case, there is no doubt that the

kidnapping and murder were the type

universally condemned by civilized societies

as outrageously or wantonly vile or inhuman."

Petitioner now contends that "torture" as delineated

in Hance v. State, 245 Ga. at 861, 268 8. E. 2d 339 (1980),

cert. denleg u. s. 191 S.Ct. 796 (1980), and as

applied in the present case, is given a broader meaning

than commoniy understood, to include a situation wherein the

victim “briefly” anticipates death. (Petitioner's brief at

p. 10). Yet, the facts in Petitioner's case amply show the

eleven year old victim was taunted with his impending doom

while being transported by Petitioner approximately a mile

to the execution site, and during this brief“ period, begged

for his life. Bonnie Bulloch did not briefly anticipate

his death, rather due to the Petitioner's actions, the child

was confronted with the horror of his demise repeatedly.

Respondent respectfully submits that the spector of a child

crying out for his life, in response to Petitioner's repeated

acclamations that the child would be killed while in route to

the execution site does not constitute a brief period of time

in the case under consideration.

The Supreme Court of Georgia's definition of torture

in Hance v. State, supre requires evidence of psychological

abuse to the victim resulting in severe mental anguish in

anticipation of physical harm, which amounts to the equivalent

of serious physica) abuse. Torture evidencing depravity

of mind, through the infliction of psychological abuse has

been all too well demonstrated by various tyrannical regimes

during this century. The Respondent respectfully submits

that this Court requires no recitation of examples to demonstrate

that intentional infliction of psychological abuse is often

the effective equivalent of physical abuse in its end result

upon a victim. The Georgia Supreme Court correctly recognized

this form of torture, stating:

"Evidence of psychological abuse by the

defendant o the victim before death where

it is shown to have resulted in severe

mental anguish to the victim in anticipa-

tion of physical harm may amount to serious

physical abuse (i.e., torture of the victim),

and also will support a finding of depravity

of mind of the defendant."

Hance, supra at 961.

The Supreme Court of Georgia in its sentence review

carefully set forth the facts upon which the findings of

depravity of mind and torture by the jury were substantiated

beyond a reasonable doubt. Contrary to Petitioner's contention,

the case under consideration is well within the core“ cases

under Section (b)(7). The victim was a young child, not a

member of Petitioner's family, and was ruthlessly executed

after being forced to beg for his life. Thus, contrary to

Petitioner's contentions, the evidence produced at trial amply

-5-

supports the jury's finding of the Section (b)(7) aggravating

circumstance. Accordingly, the opinion of the Supreme Court

of Georgia in Petitioner's case is not in conflict with this

Court's decision in Godfrey v. Georgia.

B. THE PETITIONER IS NOT ENTITLED TO A

NEW SENTENCING HEARING AS THE JURY

WAS CORRECTLY INSTRUCTED AND THE

SUPREME COURT OF GEORGIA PROPERLY

AFFIRMED PETITIONER'S DEATH SENTENCE

IMPOSED PURSUANT TO N FINDING UNDER

GA. CODE ANN. § 27-2534.1(b) (7), IN

LIGHT OF GODFREY V. GEORGIA, 446 U.S.

420 (1980).

Contrary to Petitioner's contention, no requirement

exists under Godfrey v. Georgia, that the present case under

consideration be remanded to the trial court for a new sentencing

hearing. Unlike che facts in Godfrey, the jury in Petitioner's

case made a complete finding under Section (b)(7) of the aggravating

circumstances underlying its recommendation of the death sentence.

Further, the trial court instructed the jury in the language of

Section (b)(7) in its entirety. In Godfrey, the jury had

based its recommendation only upon a partial finding of first

subpart of Section (b)(7), without specifying the basis for

its decision that the murder had been “outrageously or wantonly

vile, horrible and inhuman".

The wording of the jury's finding in the Petitioner's case

was sufficiently definite to provide a basis for adequate sentence

review by the Supreme Court of Georgia. The absence of definitive

terminology as to the meaning of the terms within Section (b)(7), in

the trial court's instruction does not constitute a basis for

rehearing. The finding of torture and depravity of mind by

the jury leaves no doubt as to the basis upon which the jury

found the murder to fall within the first part of Section (b) (7).

The Supreme Court Georgia in conducting its sentence review,

was not required ta engage in speculation as to the jury's

findings, and the court had before it the benefit of this

Court's opinion in Godfrey.

Therefore, this Court can determine that the absence

of explanatory definitions as to the meaning of individual

terms contained within Section (b)(7), did not deprive the

Petitioner of any of his constitutional or statutory rights.

A new sentencing hearing is not required in Petitioner's case

as Section (b)(7) was constitutionally applied to the specific

facts of this case, and the Supreme Court of Georgia properly

reviewed the sentence pursuant to Ga. Code Ann. § 27-2537(c).

C. PETITIONER'S SENTENCE OF DEATH DOES

NOT CONSTITUTE CRUEL AND UNUSUAL

PUNISHMENT UNDER THE EIGHTH AMENDMENT

SOLELY BECAUSE PETITIONER WAS SEVENTEEN

YEARS OLD AT THE TIME OF THE OFFENSE

AS UNDER GEORGIA LAW, HE WAS AN ADULT.

Petitioner for the first time on this petition for a

writ of certiorari, specifically contends that his sentence of

death constitutes cruel and unusual punishment under the Eighth

Amendment solely because Petitioner was seventeen years old

at the time of the murder he committed. Because neither this

allegation, nor any evidence in support of the same has ever

been squarely presented to the state courts for resolution,

this allegation cannot serve as a basis for the granting of

the request of certiorari. Cardinale v. Louisiana, 394 U.S.

437 (1969).

Notwithstanding the fact that this untimely allegation

cannot serve as the basis for granting of the requested writ,

Respondent notes with interest Petitioner's characterization

of himself as a child, and of his death sentence as a pending

child execution. Contrary to Petitioner's assertions, however,

under Georgia law, Petitioner was not a child, nor a juvenile,

but rather an adult at the time of the murder of the victim,

Bonnie Bulloch, an eleven year old boy. Ga. Code Ann. § 24A-401(c).

Purther, while Petitioner contends that this court should

grant the requested writ in order that this untimely issue

might be considered in conjunction with Eddings v. Oklahoma,

Case No. 80-5727, Respondent notes that the defendant in

Eddings, supra, was a sixteen year old juvenile at the time of

the vicious murder he committed, not an adult as was Petitioner.

Further, as noted by the court in Eddings v. Oklahoma, 616 P.2d

1159 (Okla. Crim. 1980, citing Gregg v- Georgia, 428 U.S. 153

(1976), capital punishment is not abhored by public sentiment,

which fact is evidenced by the inactment of state legislatures

of new capital sentencing statutory schemes. Thus, the imposition

of the death sentence upon this Petitioner, who was an adult

at the time of the murder he committed, does not constitute

cruel and unusual punishment.

-10-

CONCLUSION

This Court should refuse to grant a writ of certiorari

to the Supreme Court of Georgia as it is manifest that no

substantial federal question not previously decided by this

Court is presented and the decision sought to be reviewed

is demonstrably in accord with the applicable decisions of

this Court.

Please serve: Respectfully submitted,

CHARLES E. BROWN ARTHUR K. BOLTON

132 State Judicial Bldg. Attorney General

40 Capitol Square, SW

Atlanta, Georgia 30334 ROBERT S. STUBBS, II

(404) 656-3339 Executive Assistant

Attorney General

Meng Foye"

First Assistant Attorney General

C 2

Staff Assistant Attorney General

eee are we 2 N

In the Supreme Court of Georgia

Decided: FEB 94 1981

36689. JOSE M. HIGH v. THE STATE

CLARKE, Justice

The appellant, Jose Martinez High, was tried by a jury

in the Superior Court of Taliaferro County for the offenses

of murder, two counts of kidnapping with bodily 1a ry armed

robbery, possession of a firearm during the commission of a

crime and aggravated assault. He was convicted of all charges

and sentenced to death for armed robbery, murder and two counts

of kidnapping. The appellant was also sentenced to five years

imprisonment on the charge of possession of a firearm during

the commission of a crime and ten years imprisonment on the

aggravated assault charge. The case is here on direct appeal

and for mandatory review of the death sentences imposed. The

facts surrounding the crimes charged and the death of the young

victim are amply set out in the companion case of Ruffin v. State,

243 Ga. 95 (252 SE2d 472) (1979), and will not be repeated here.

ENUMERATIONS OF ERROR

1. The defendant was not denied due process of law as

claimed by the preemptory striking of some black potential tra-

verse jurors. Swain v. Alabama, 380 U.S. 202 (85 SC 824, 13 LE2d

759) (1965); Taylor v. State, 243 Ga. 222 (253 SE2d 191) (1979),

see also Willis v. State, 243 Ga. 185 (253 SE2d 10) (1979); Jones

v. State, 243 Ga. 820 (256 SE2d 907) (1979) .2/

2. Appellant's attorney upon motion sought funds to hire

investigators and obtain expert witnesses. The only evidence

presented by the appellant in support of his motion was as to the

size of the district attorney's staff, the resources available

L/ We note that four of the twelve pectic jurors selected were

black and one of the two alternates selected was black.

\

— APPENDIX A“ 1

1

E S — = ee ee . 2 —

to the district attorney, and the amount of salaries paid to

the district attorney and his staff. The state presented

evidence that the appellant was represented by a retained

attorney who was assisted by two paid law student interns

supplied by the Southern Poverty League. Expert testimony was

not crucial to the state’ s case and no showing was made as to

the need for expert testimony on behalf of the appellant. "The

granting or denial of a motion for appointment of expert witnesses

lies within the sound discretion of the trial court and unless

there has been an abuse of discretion, the trial court’s ruling

would be upheld.” Patterson v. State, 239 Ga. 409 (3) (238 SE2d

2) (1977). The appellant has made no showing of prejudice and

his second enumeration is therefore without merit. Whitaker v.

State, 246 Ga. 163 (269 SE2d 436) (1980). '

3. Thirty-two potential jurors of appellant's race were

excluded for cause under Witherspoon during the voir dire process:

Appellant moved for a Wee to secure additional members

of his race for possible jury service. The trial court denied

the motion and the appellant asserts error.

When it became apparent that it was necessary to impanel

additional jurors because of the number of jurors who were

challenged for cause, the trial court drew additional names from

the jury box to fill the deficit. Appellant makes no contention

that the persons selected were not competent veniremen properly

drawn to sit on the panel. Wor does he contend that the jury ‘

list was improperly constituted. "A defendant is entitled to

array of properly drawn impartial jurors to which he may direct

his preemptory challenges. Franklin v. State, 245 Ga. 141

(263 SE2d 666) (1980). A party is entitled to this as a matter

of right; but, conversely, he is entitled to no more.” Dampier

v. State, 245 Ga. 427 (263 SE2d 666) (1980). Appellant's third

enumeration is without merit. Taylor v. Louisiana, 419 U.S. 522

(95 SC 692, 42 LE2d 690) (1975).

4. In his fourth enumeration of error, the appellant... _

contends that the trial court erred in failing to grant his motion

ao. Siw e

„ .

ee

„%% K

we

for new trial. We do not agree. ~~ a -

We find upon review of the evidence in light most favorable

to the verdict, a ratiorsl trier of fact could have found the :

essential elements of the crimes beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560)

(1979). Sentence review ante. At trial, the surviving victim,

Henry Phillips positively identified the e e being one

of the three persons who robbed the gasoline station and sub-

sequently shot him and his stepson. The witness testified that

the appellant was the person who pointed a pistol in his face

immediately after the three robbers drove into the station and

asked for gas. He further testified that the station was well!

lit. .

The appellant contends that the trial cour! erred in ö

. permitting the witness to identify the defendant at trial in that

an adequate basis for determining the reliability of such

identification was lacking. He bases this contention upon the

witness’ wearing of glasses and excited state during the crime.

However, these factors go to the witness’ credibility and the

, weight of his testimony and not to the admissibility of his

testimony. See Watkins v. Sowders, . s. (case No. 79-5949

decided January 13, 1981; 28 CRL 3037); Gresham v. State,

246 Ga. 574 ( 8EZ2d ) (1989). The record in this case simply

does not support a contention that the identification procedure

was impermissibly suggestive. Thomas v. State, 245 Ga. 688 f

(267 SE2d 253) (1980); McClesky v. State, 245 Ga. 108 (263 SE2d

146) (1980); Burrell v. State, 239 Ga. 792 (239 SE2d 11) (1977).

5. At the call of the case and prior to a jury being im-

paneled but in the presence of the veniremen, the trial court

ruled on the appellant's motion for in camera inspection. The

trial court stated in its ruling that it found nothing exculpatory

or favorable to the defendant in the files of the district

attorney. Appellant then moved for a dismissal of the indictment

oe 30

or in the alternative to continue the case until such time as a

new panel which had not heard the court's ruling could be obtained.

The court overruled the objection and instructed all members of

the jury panel present in the courtroom that they were not to be

concerned with the rulings of the court in that such rulings

were not an expression of opinion by the court of the facts of

the case. 5 8

The appellant argues that the ruling of the trial court

amounted to an impermissible expression of opinion prohibited

by Code Ann. § 81-1104. We do not agree. It is clear from the

record that the trial judge was not expressing an opinion but

ruling upon the motion which had been made by the appellant.

Wright v. State, 223 Ga. 849 (159 SF2d 76) (1968). See Tucker

„ State, 245 Ga. 68 (263 SE2d 109) (1980); Whisman v. State, |

221 Ga. 460 (145 SE2d 499) (1965).

6. It is clear from the voir dire examination that the

jurors excused for being conscientiously opposed to the death

penalty were “irrevocably committed before the trial began to

vote against the death penalty regardless of the facts.and

circumstances that might emerge in the course of the proceedings.

Witherspoon v. Illinois, 391 U.S. 510 (88 SC 1770, 20 LE2d 776)

(1968); Thomas v. State, 245 Ga. 688 (267 SE2d 253) (1980);

Davis v. Georgia, 429 U.S. 122 (97 SC 399, 50 LE2d 399) (1977);

Corn v. State, 240 Ga. 130 (240 SE2d 694) (1977).

While not raised as error, as in part of our independent 1

review, we have noted that a juror vas excused over objection by

the trial court on the grounds that she was incompetent to

serve. During voir dire, the prospective juror, in responding

to the trial court's inquiry, stated that she could not understand

the questions of a most elementary nature that were propounded

by either the defense counsel or counsel for the state. It was

evident that this juror could not understand the nature of the

proceedings, and we find no error in the court upon its own

motion excusing her. code Ann. § 59-106. Welch v. State,

237 Ga. 665 (229 SE2d 390) (1976); Patterson v. State, supra.

See Barrow v. State, 239 Ga. 162 (236 SE2d 257) (1977).

The appellant argues that the trial court erred in refusing

to allow him to question each prospective juror on voir dire

outside the presence of the other jurors. Such matters are

necessarily within the sound discretion of the trial court.

Finney v. State, 242 Ga. 582 (250 SE2d 388) (1978); Green v.

State, __ Ga. ___ (Case No. 36115, decided October 7, 1980).

‘We find upon review of voir dire that the trial court did not

abuse its discretion in denying the appellant's motion especially

in view of the trial court's instructions to the panel that the

questions of counsel were merely aids in selecting an impartial !

jury and that members of the panel were to give no consideration

whatsoever to what was said during voir dire, insofar as the

trial of the case was concerned. Nor has the defendant shown

“substantial prejudice” by the court's failure to allow

sequestered voir dire. Duckworth v. State. 6a. (Case Wo.

36612, decided November 5, 1980).

The appellant contends that the trial judge abused his

discretion in limiting voir dire examination of prospective

jurors. We do not agree. The trial judge upon proper objection

refused to allow the examination of veniremen with regard to

burden of proof, reasonable doubt and questions of evidence.

These were technical legal questions and therefore prohibited.

Stack v. State, 234 Ga. 19 (214 SE2d 514) (1975); Cobb v. State,

244 Ga. 344, (260 SE2d 60) (1979). Likewise, defense counsel was

prohibited from asking questions which were attempts to obtain

a prejudgment of his case, which is impermissible. Pinion v.

State, 225 Ga. 36 (165 SE2d 708) (1969); Cobb v. State, supra.

The trial court did not err in allowing the state to qualify

the prospective jurors as to kinship with the other two co-defend-

ants. Contrary to appellant's argument, such qualification could

eS

not have prejudiced appellant as the participation of the

co-defendants in the crime was a necessary part of the state's

proof.

7. During opening argument, the district attorney

introduced himself by saying in part, "I've been your district

attorney for the last nineteen years." The appellant's attorney

objected as he objected to other remarks of the district attorney

throughout the trial as improper argument. The record simply |

does not support the contention of appellant that the remarks

of the district attorney were made with disturbing frequency

or made a mockery of the proceeding. In each instance the trial

court admonished the district attorney concerning any improper

argument. This enumeration is without merit. See Watkins v.

State, 237 Ga. 678 (229 SE2d 465) (1976); Dorris v. State, 237

Ga. 837 (229 SE2d 638) (1976); Phears v. State, 236 Ga. 660

(225 SE2d 4) (1976); Shirley v. State, 245 Ga. 616 (266 SE2d 218)

(1980).

8. The appellant contends that the trial court erred in

U

permitting state's witnesses to remain in the courtroom after

the rule of sequestration had been invoked. This same argument

was raised in Ruffin v. State, supra, and decided adversely

to appellant's position. The district attorney requested that

the chief investigating office remain in the courtroom in

order to assist the state in the presentation of its case. The

sheriff was allowed to remain in the courtroom in his official

capacity. Hardy v. State, 245 Ga. 272 (264 SE2d 209) (1980);

Hardy v. State, 245 Ga. 673 (266 SE2d 489) (1980); O'Dillon v.

State, 245 Ga. 342 (265 SE2d 18) (1980). See Dampier v. State,

245 Ga. 427 (265 SE2d 565) (1980).

9. The appellant argues that the trial court erred in

admitting certain items into evidence. These items included

photographs of the co-conspirators, the ‘guns of the co-conspirators,

tires and tire prints from the car used in the robbery, evidence

of fingerprints taken from the automobile used in the robbery

=: OS

* W Sah ve 14 1 ( 7

eee

and the money tray which was found after the crime: Evidence

of the weapons used by the co-defendants, the car driven by the

co-defendants with their fingerprints located thereon and

photographs of the co-defendants were properly admitted as part

of the state's proof as to the conspiracy to rob the service

station and kill the witnesses. See Ruffin v. State, supra.

The gist of appellant's objection to the introduction of the

money tray, tires and tire prints is that they were not

positively identified as the money tray which came from the

service station and that the witnesses could not positively

testify that the tire prints were made by the tires found on the

automobile used in the robbery. However, the state introduced

evidence to show that the money tray was either the money tray

in the service station or one identical to it and that the tires

were of the same brand and type as the tires which made the

prints taken from the scene. The trial court did not err in

admitting such evidence. Patterson v. State, 233 Ga. 724

(213 SE2d 612) (1975). See Ruffin v. State, supra.

10. The appellant contends that the trial court erred in

admitting the testimony of agent Monahan of the G.B.1. in that

such testimony was hearsay. We do not agree. The agent

testified that he observed br. Carrington at the university

hospital emergency room remove a projectile from the wrist of

one of the victims, and he took custody of that projectile.

Such testimony is not hearsay.

11. The appellant contends that the trial court erred in

imposing the sentence of death in that under the Georgia statute

as applied, there is a substantial risk that the death penalty

will be inflicted in an aribtrary and capricious manner. This

argument has been raised before and decided adversely to the

|

|

|

appellant's position. Gregg v. Georgia, 228 U.S. 153 (96 SC 2909.

49 LE2d 859) (1976); Hance v. State, 245 Ga. 856 (268 8E 2d 339)

(1980); Cape v. State. 6a. (Case Wo. 36298, decided

October 7, 1980). —— —

12. ‘The appellant alleges that Count 1, armed robbery,

merged with Count 2, possession of a firearm during the commission

of a crime. We agree. Where one is charged with armed robbery

end a separate crime of possession of a firearm during the

commission of a crime, the possession count may or may not be

included in the greater crime of armed robbery. Whereas here,

— —ñW)——— — —

the evidence discloses that the crime of armed robbery was

committed with the same firearm as that for which the appellant

is charged with possessing, the lesser crime of possession of

a firearm during the commission of a crime is included in the

| greater crime of armed robbery. Roberts v. State, 228 Ga. 298

(185 SE2d 385) (1971); Crumbley v. State, 235 Ga. 540 (221 SE2d

--

13) (1975); Code Ann. § 26-506. However, Count 6, aggravated

_ assault upon the person of Henry Phillips, does not merge as

a matter of law or fact with Count 1, armed robbery. Roberts v.

State, supra. Furthermore,” under the evidence of this case, the

kidnapping of Bonnie Bulloch with bodily injury did not merge

as a matter of law or a matter of fact with the armed robbe: /

of the service station.

Appellant contends under Code Ann. § 26-506 the evidence of

the murder, Count 5 of the indictment, cannot be used as the

- basis for the separate conviction of the murder count and also

to authorize a conviction of kidnepping with bodily injury to

—

the murder victim. Allen v. State, 233 Ga. 200 (210 SE2d 680)

(1974); Presnell v. State, 241 Ga. 49 (243 SE2d 496) (1978).

See State v. Estevez, 232 Ga. 316 (206 SE2d 475) (1974). The

kidnapping indictment in this case alleges the bodily injury to

be the murder of the victim. In Potts v. State, 241 Ga. 67

(243 SE2d 510) (1978), the defendant was convicted for the murder

of Michael Priest and kidnapping with bodily injury of Michael

Priest. The bodily injury alleged was the killing of the victim.

We held in Potts that as a matter of fact, as well as a matter of

law, the murder of the victim and the kidnapping of the victim

-_ "|

* —_ 7

oo

with bodily injury were not included offenses so as to bar the

defendant from being prosecuted and subsequently convicted of both

‘crimes. This conclusion was reached because neither of the

crimes could have been established by proof of the same or less

than all of the facts required to establish the commission of the

crime charged. Code Ann. § 26-505(a). The murder required a

finding of malice aforethought but the kidnapping required no

such finding. The kidnapping required a finding of unlawful

abduction, while such a finding is not necessary for the conviction

for murder. We here follow the rule established in Potts and

‘hold that the conviction and sentence of death for murder and

_ kidnapping with bodily injury must be affirmed.

The same rationale does not apply to the conviction for

kidnapping with bodily injury and the conviction for aggravated

' assault of Henry Phillips. This is true because the elements

— © om e+e —

of the crime of aggravated assault must have been proven in order

to sustain a conviction for the crime of kidnapping with bodily

injury. Therefore, the aggravated assault in this case is an

included offense of the crime of kidnapping with bodily injury

and the conviction for aggravated assault, Count 6 of the

indictment, is reversed. Williams v. State, 238 Ga. 244 (232 SE2d

238) (1977).

In his last enumeration of error, the appellant urges that

Code Ann. § 38-411 is unconstitutional on its face and in its

‘ application in violation of the Eighth and Fourteenth Amendment s

to the Constitution of the United States. ‘That Code section

reads as follows: "To make a confession admissible it must have

been made voluntarily, without being induced by another by the

slightest hope of benefit or remotest fear of injury." The

_ appellant argues that because the statute on its face or as

applied does not provide for a determination of the “reliability”

of the confession as a condition of edmissibility that it is

unconstitutional. He cites no authority for his position, and

this court has not found any. He argues furthermore that the

442 u. s. 510 (99 SC 2415, 61 LE2d 39) (1979). This enumeration

— —U Ue U ee ee ee

——

8 27-2537(c) (1-3)], we have reviewed the death sentence in this

: Counts 1, 3, 4 and 5. "The offense of murder, armed robbery and

_ kidnapping was outrageously or wantonly vile, horrible and inhuman

Code section makes the confession admissible once the "feather-

weight" determination of voluntariness has been made for all

purposes thereby creating an irrebuttable presumption of

"reliability" in violation of the rule of Sandstrom v. Montana,

is without merit. Code Ann. § 38-420.

Finally, the appellant argues that the state failed to carry

its burden as to a motion to suppress and that the state did not

prove the legality of his arrest which ultimately led to the

appellant's confession. However, the legality of the arrest

complained of had been adjudicated in the state's favor. State

v. High, 145 Ga.App. 772 (244 SE2d 888) (1978).

SENTENCE REVIEW

As required by Georgia Laws 1973, p. 159, et seq. [Code Ann:

case. We have considered the aggravating circumstance found by

the jury, the evidence concerning the crimes, and the defendant

pursuant to the mandate of the statute. We conclude that the

sentences of death imposed in this case were not imposed under

the influence of passion, prejudice or any arbitrary factor.

The jury found the following aggravating circumstance as to

in that it involved torture, depravity of mind, and an aggravated

battery to the victim." Code Ann. § 27-2534.1(b) (7).

The evidence, if it is to be believed, shows that the

appellant and his two co-indictees planned the armed robbery on

the night in question with the express purpose of eliminating any

witnesses to the crime. They abducted an eleven-year old child

along with his stepfather at gunpoint. The victim was fifty-six

inches tall and weighed seventy pounds. As they drove the victims

to the execution site, the young boy rode inside the automobile )

with the appellant while his stepfather was locked in the trunk.

The appellant in his statement said he thought the boy was too ;

10 s |

young, but he kept asking him as they rode, Axe you ready to die?

Do you want to die? Well, you're going to die." He stated that

the boy was begging for his life. Once the three robbers reached

a rural area, the victims were removed from the car, marched

around to the front of the automobile and forced to lie on their

} faces. They were then shot in the head in a coldblooded execution

fashion. The murder victim's stepfather, however, was not fatally

injured.

In that the sentence of death in this case rests upon

findings of Code Ann. § 27-2534. 1 (b) (7), the jury's finding of

that aggravating circumstance must be reviewed in light of the

| Supreme Court decision in Godfrey v. Georgia, 446 U.S. 420

— +

<

(100 SC 1759, 64 LE2d 398) (1980); Hance v. State, 245 Ga. 856

(2686 SE2d 339) (1980).

Evidence of psychological abuse by the defendant to the

victim be fore death where it is shown to have resulted in severe

=

mental anguish to the victim in. anticipation of physical harm

may amount to serious physical abuse (i.e. torture to the victim)

and will support a finding of depravity of mind of the defendant.

. Hance X. State, supra.

In determining whether the evidence shows "depravity of

; mind, the age, and the physical characteristics of the victim

may be considered. Hance v. State, supra; Thomas v. State,

245 Ga. 688 (266 SE2d 499) (1980). We find from the evidence

in this case, that the serious psychological abuse by the

appellant to the victim before death, especially in view of

the victim's young age, and physical characteristics, supports

beyond a reasonable doubt the jury's finding of torture and

depravity of mind on the part of the appellant. We further find

that this murder and kidnapping with bodily injury was out rageous-

ly or wantonly vile, horrible or inhuman in that it is distinguish-

able from ordinary murders and kidnapping with bodily injury for

which the death penalty is not appropriate. While the victim

died relatively instantaneously, he was a young child and not

1

—

a member of the appellant's family. He was not subjecting the

appellant to any emotional trauma nor giving the appellant any

reason whatsoever to assault him. The appellant showed no remorse

kor the killing, but rather bragged that “he wanted to be the most

famous black ringleader in the world." Under the evidence of

this case, there is no doubt that the kidnapping and murder were

of the type universally condemned by civilized societies as

' outrageously or wantonly vile or inhuman.

We find the evidence factually substantiates and supports

the finding of this aggravating circumstance and the sentences of

death by a rational trier of fact beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560)

| (1979). We have thoroughly reviewed the instruction of the trial

court during the sentencing phase of the trial and find that the

charge was not subject to the defects dealt with in Fleming

V. State, 240 Ga. 142 (240 SE2d 37) (1978) and Hawes v. State,

240 Ga. 327 (240 SE2d 833) (1978).

As part of our independent review, althovgh not enumerated

as error, we note that the appellant received a death penalty

for armed robbery from the person of Henry Phillips, Count 1 of

f the indictment, and kidnapping with bodily injury of Henry

; Phillips, Count 4 of the Walen The death sentence received

by appellant under Count 1 and Count 4 of the indictment must

be set aside and remanded to the trial court with the direction

that appellant be resentenced to life imprisonment as to Count 4

of the indictment, the only permissible punishment remaining

under the kidnapping statute, and that the trial judge sentence

appellant for the offense of armed robbery as provided by law.

Peek v. State, 239 Ga. 422 (238 SE2d 12) (1977). We find no

prejudice to the defendant by resentencing as to these counts

or the reversal of the count in Division 12 herein as the

evidence of such crimes was necessarily before the jury. Collier

v. State, 244 Ga. 553 (261 SE2d 364) (1979). In addition, we

tag

point out that we are here ordering the reduction of sentences

and not the disallowance of an aggravating circumstance.

In reviewing the death penalty in this case, we have

considered the cases appealed to this court since January 1. 1970,

in which a death or life sentence was imposed for murder. The

appellant by his own admission was the leader of the criminal

enterprise and was an active participant in all aspects of the

armed robbery, kidnapping, and murder of the victim. The kidnap-

ping and murder was of a young child who had been taunted with the

prospect of his own death while he was in the process of being

abducted and taken to the execution site. We find that these

similar cases set forth in the Appendix, in addition to those

—— —— bbQQ— —

similar cases set forth in the Appendix to the companion case

of Ruffin v. State, supra, support the affirmance of the death

penalty. After careful review in considering both the crime and

the defendant, we find no material difference between this case

and the companion case of Ruffin v. State, supra, insofar as

the imposition of the death penalty is concerned. Jose High's

sentence to death for kidnapping with bodily injury in which the

victim was murdered: and murder is not excessive or disproportionate

to the penalty imposed in similar cases considering both the crime

and the defendant. See Potts v- State, supra.

Judgment affirmed in part, reversed in part, and vacated

and remanded in part. All the Justices concur, * A.,, vs

: 44 ‘ , vil, J 2 C. Ju i~ 2 ,.

2 J, nol ee, Ay

—— — —

Pe we

8 WwW ND PF

APPENDIX

Ruffin v. State, 243 Ga. 95 (252 SE2d 472) (1979)

Fair v. State, 245 Ga. 868 (268 SE2d 316) (1980)

Patrick v. State, 245 Ga. 417 (265 SE2d 553) (1980)

Dampier v. State, 245 Ga. 427 (265 SE2d 565) (1980)

Addendum - 245 Ga. 882 (268 SE2d 349) (1980)

——— p — Oe