Moore v. State
| Citation | 233 Ga. 861,213 S.E.2d 829 |
| Decision Date | 12 February 1975 |
| Docket Number | No. 29278,29278 |
| Parties | William Neal MOORE v. The STATE. |
| Court | Georgia Supreme Court |
Hinton R. Pierce, Augusta, for appellant.
H. Reginald Thompson, Dist. Atty., Swainsboro, Arthur K. Bolton, Atty. Gen., John W. Dunsmore, Jr., Asst. Atty. Gen., Atlanta, for appellee.
Syllabus Opinion by the Court
Following a plea of guilty, conviction, and sentence of death for murder and armed robbery this case is here by appeal and for mandatory review of the death sentence imposed. The appellant William Neal Moore, was charged with committing the offenses of murder and armed robbery on April 2, 1974, was indicted by a grand jury in Jefferson County on May 13, 1974, and entered a plea of guilty to both charges and waived trial by jury on June 4, 1974.
After the appellant's plea of guilty as entered, the prosecution presented the testimony of the doctor who performed the autopsy on the victim's body, two investigative agents and the sheriff who investigated the offenses. The defense presented testimony by the appellant and members of his family. Thereafter, the trial judge found aggravating circumstances and imposed the death sentence.
The testimony and other evidence revealed that the appellant had been a member of the U.S. Army, and former military policeman, where he met George Curtis, a nephew of the victim Fredger Stapleton. Curtis told him about his uncle Fredger Stapleton having money and showed him where he lived. In the words of the defendant,
In the late evening of April 2, 1974, appellant apparently re-entered the Stapleton home through a bedroom window. After gaining entrance he was surprised by Stapleton who proceeded to fire a shotgun at him. Appellant fired all five shots in his .38 caliber pistol at Stapleton. Stapleton subsequently died from two bullet wounds in the chest. After shooting Stapleton, appellant proceeded to remove two billfolds from the victim's pockets and took the victim's shotgun. Appellant then left through the front door of the Stapleton home and walked to his automobile which was parked by a laundromat nearby. He proceeded to his residence, burned the victim's wallets and disposed of the shotgun. The money taken from Stapleton amounted to $5700, which appellant subsequently surrendered to officers. Evidence at the scene implicated the appellant and corroborated his statement.
Appellant denied any intention of killing Stapleton: Held:
1. Appellant's first enumeration of error is that 'The imposition and carrying out of the death penalty in accordance with the present Georgia death penalty statute is unconstitutional and in violation of the Eighth and Fourteenth Amendments of the United States Constitution.'
( a) In support of this contention, appellant argues that the discretion permitted by the death penalty statute leaves room for arbitrariness, thus rendering the statute unconstitutional as a violation of equal protection.
Although the appellant plead guilty, the record is clear that he reserved his constitutional objections at the trial level. In Coley v. State, 231 Ga. 829, 204 S.E.2d 612, this court addressed the issue of discretion in the Georgia death penalty statute (Code Ann. §§ 26-2001 and § 27-2534.1 et seq.) in the face of the Eighth and Fourteenth Amendments to the Constitution of the United States as those amendments were construed and applied by the Supreme Court of the United States in Furman v. Georgia and Jackson v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. We there noted that 'it is not discretion per se which must be condemned, but it is unguided discretion that does not 'produce even-handed justice." 231 Ga. p. 834, 204 S.E.2d p. 616. We found there that 'the system of dispensation of the death penalty provided by the statute does not offend the principles of decision of the U.S. Supreme Court in Furman and Jackson' 231 Ga. p. 835, 204 S.E.2d p. 616. Although we now find appellant's contention to be without merit, the constitutionality of the application of the death penalty to him in the instant case must be determined upon review of the sentence by this court pursuant to the current Georgia statute. Code Ann. § 27-2503(b), Ga.L.1974, pp. 352, 357, was not in effect and thus is inapplicable to this case.
( b) The appellant further argues that the death penalty constitutes cruel and inhuman punishment in violation of the prohibition of the Eighth Amendment to the U.S. Constitution.
We have found no case where a majority of the Supreme Court of the United States or of this court has held that the death penalty constitutes cruel and unusual punishment.
In the Furman and Jackson cases, Chief Justice Burger, dissenting noted 'that only two members of the court, Mr. Justice Brennan and Mr. Justice Marshall, have concluded that the Eighth Amendment prohibits capital punishment for all crimes and under all circumstances.' See also Coley v. State, 231 Ga. 829, 204 S.E.2d 612, supra; House v. State, 232 Ga. 140, 205 S.E.2d 217; and Eberheart v. State, 232 Ga. 247, 206 S.E.2d 12.
2. (a) The appellant contends as to the sentence that the imposition of the death penalty in this case is disproportionate to the sentence imposed in other similar cases.
Appellant cites two trials, not a part of the record of this trial, which he alleges are similar to the facts in the instant case wherein the death sentence was not imposed. Although they were not considered by the trial judge and cannot be considered by this court, some comment is appropriate concerning this court's duty to compare the sentence in this case with that imposed in similar cases. As we view the court's duty in light of the Furman and Jackson cases and the statutory provisions designed by the Georgia legislature to meet the objections of those cases, this court is not required to determine that less than a death sentence was never imposed in a case with some similar characteristics. On the contrary, we view it to be our duty under the similarity standard to assure that no death sentence is affirmed unless in similar cases throughout the state the death penalty has been imposed generally and not 'wantonly and freakishly imposed,' as stated by Justice Stewart in his concurring opinion in the Furman and Jackson cases (408 U.S. 238, 310, supra, 92 S.Ct. 2726, 33 L.Ed.2d 346). We are endeavoring to do our duty under the standards provided.
(b) It is next asserted that there was no aggravating circumstance in this case because a person cannot be guilty of armed robbery if the victim is not conscious or alive at the time of the robbery.
Code Ann. § 26-1902 provides: 'A person commits armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon.' Ga.L.1968, pp. 1249, 1298; 1969, p. 810. In Hicks v. State, 232 Ga. 393, 207 S.E.2d 30, we concluded that this section 'clearly contemplates that the offensive weapon be used as a concomitant to a taking which involves the use of actual force or intimidation (constructive force) against another person.' P. 403, p. 37 of 207 S.E.2d.
This accords with the general rule in the United States that the force or intimidation essential to robbery must either precede or be contemporaneous with, and not subsequent to, the taking. 44 C.J.S. 457 Robbery § 11 (1952). In Hicks the taking occurred before the victim woke up.
Without the force used by appellant here, the taking from Stapleton could not have been accomplished. That Stapleton died from the force used either immediately, or subsequently to the taking, does not make the offense any less a robbery.
Appellant's admitted purpose in going to Stapleton's home was to rob him. He then shot Stapleton to overcome his resistance before taking Stapleton's money. We conclude that the evidence established that the offense of murder was committed while the appellant was engaged in another capital felony, to wit: armed robbery.
The trial judge found as mitigating circumstances that the appellant did everything that a man could do after he was caught, and did an honorable thing in making true statements, cooperating with the officials and pleading guilty. In addition to these circumstances appellant urges consideration of the following: that he fully cooperated with the police; that he is 23 years old; that he is not an experienced criminal; and that he started shooting from a combination of fright and intoxication.
In our sentence review we have considered each of the above circumstances, along with the aggravating circumstance found by the trial court and the evidence concerning the crime introduced in court.
The death sentence was imposed in this case by the trial judge without the intervention of a jury. We have reviewed the sentence as required by Ga.L.1973, p. 159 et seq. (Code Ann. § 27-2537(c)), as we did in Coley v. State, 231 Ga. 829, 204 S.E.2d 612, supra, and each subsequent case involving a death penalty under the new statute. We conclude that the sentence of death imposed here was not imposed under the influence of passion, prejudice, or any other arbitrary factor. The evidence supports the trial judge's finding of a...
To continue reading
Request your trial
-
State v. Marshall
...has been imposed generally * * *.' " Gregg, supra, 428 U.S. at 205, 96 S.Ct. at 2939, 49 L.Ed.2d at 892 (quoting Moore v. State, 233 Ga. 861, 213 S.E.2d 829, 832 (1975)); see also Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258, 270 (1975) (asking whether "juries generally throughout the stat......
-
Moore v. Zant
...Court affirmed Moore's conviction and sentence in February, 1975, and later denied his petition for a rehearing. Moore v. State, 233 Ga. 861, 213 S.E.2d 829 (1975). The United States Supreme Court also denied review. Moore v. Georgia, 428 U.S. 910, 96 S.Ct. 3222, 49 L.Ed.2d 1218 (1976), pet......
-
Roberts v. State
...3 (1976); Goodwin v. State, 236 Ga. 339, 223 S.E.2d 703 (1976); Mitchell v. State, 234 Ga. 160, 214 S.E.2d 900 (1975); Moore v. State, 233 Ga. 861, 213 S.E.2d 829 (1975); Callahan v. State, 229 Ga. 737, 194 S.E.2d 431 1 The death sentence was imposed by the jury on March 30, 1983, and a mot......
-
Cape v. Francis
...is affirmed unless in similar cases throughout the state the death sentence has been imposed generally * * *." Moore v. State, 233 Ga. 861, 864, 213 S.E.2d 829, 832 (1975), cert. denied, 428 U.S. 910, 96 S.Ct. 3222, 49 L.Ed.2d 1218 Cape urges that the state Supreme Court did not consider th......
-
The failure of comparative proportionality review of capital cases (with lessons from New Jersey).
...has been mistreated or seriously injured. In this case the victim was murdered. 216 S.E.2d 256, 270 (Ga. 1975). (84) Moore v. State, 213 S.E.2d 829, 832 (Ga. 1975). Ross v. State, 211 S.E.2d 356, 360 (Ga. 1974). The Georgia Supreme Court summarized the standard of review as As we view the c......
-
Death Penalty Law - Michael Mears
...17-10-35(c)(3) (1997)). 234. Id. 235. Id. at 717-19, 532 S.E.2d at 691. 236. Id. at 719, 532 S.E.2d at 691-92; compare Moore v. State, 233 Ga. 861, 865, 213 S.E.2d 829, 832 (1975) (concluding that the death sentence imposed was not done under influence of emotions). 237. 272 Ga. at 718, 532......
-
Getting out of this mess: steps toward addressing and avoiding inordinate delay in capital cases.
...290-92 (1993). (231) The inmate was William Neal Moore. In 1974, Moore pleaded guilty to armed robbery and murder. See Moore v. State, 213 S.E.2d 829, 830 (Ga. 1975). The day before his execution, in 1990, the Georgia Board of Pardons and Paroles commuted his sentence. Among the factors the......
-
Resurrection from a death sentence: why capital sentences should be commuted upon the occasion of an authentic ethical transformation.
...can be used to achieve justice, by individualizing sentences and remitting undeserved punishment."). In the case of Moore v. State, 213 S.E.2d 829 (Ga. 1975), for example, clemency was granted by the Georgia Board of Pardons and Paroles citing William N. Moore's exemplary prison record, rem......