271 S.E.2d 352 (Ga. 1980), 33879, Collins v. State

Docket Nº:33879.
Citation:271 S.E.2d 352, 246 Ga. 261
Opinion Judge:NICHOLS, Justice.
Party Name:COLLINS v. THE STATE.
Attorney:Aultman, Moore & Daly, James J. Daly, Jr., Warner Robins, for appellant., Stephen Pace, Jr., Dist. Atty., Miriam D. Wansley, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Daryl A. Robinson, Asst. Atty. Gen., for appellee. [246 Ga. 262] Aultman, Moore & Daly, James J. Daly, Jr., Warner Robins,...
Case Date:September 08, 1980
Court:Supreme Court of Georgia
 
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Page 352

271 S.E.2d 352 (Ga. 1980)

246 Ga. 261

COLLINS

v.

THE STATE.

No. 33879.

Supreme Court of Georgia.

September 8, 1980

Page 353

[246 Ga. 262] Aultman, Moore & Daly, James J. Daly, Jr., Warner Robins, for appellant.

Stephen Pace, Jr., Dist. Atty., Miriam D. Wansley, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Daryl A. Robinson, Asst. Atty. Gen., for appellee.

NICHOLS, Justice.

By its order of May 27, 1980, the Supreme Court of the United States vacated this court's judgment in this case as to the death sentence (243 Ga. 291, 253 S.E.2d 729 (1979)) and remanded for further consideration in light of Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).

As mandated, this court has reexamined the holding in this case that the evidence supports a reasonable trier of facts in finding beyond a reasonable doubt that the appellant's murder of the victim was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind." Code Ann. § 27-2534.1 (b)(7).

In Godfrey, the court found that Code Ann. § 27-2534.1 (b)(7) had been unconstitutionally applied. This court finds material differences between Godfrey and the case under review, which distinguish this murder from the murder in Godfrey and from other "ordinary" murders for which the death penalty is not appropriate. The evidence in this case clearly establishes that the victim was not related to the appellant. She was not threatening the appellant nor was she causing any emotional trauma to him. The appellant left the scene and attempted in every manner to avoid prosecution for his crime.

As set out in the original opinion, the autopsy report showed that while the victim had died relatively instantaneously from a massive head injury, she also had been raped and sodomized. The evidence shows she had been sexually abused by appellant and his two codefendants prior to death. See Burger v. State, 245 Ga. 458, 265 S.E.2d 796 (1980); Stevens v. State, 245 Ga. 583, 266 S.E.2d 194 (1980).

Page 354

Torture occurs when the victim is subjected to serious physical abuse before death. Godfrey v. Georgia, supra. Serious sexual abuse may be found to constitute serious physical abuse, House v. State, 232 Ga. 140, 205 S.E.2d 217 (1974). Hance v. State, 245 Ga. 856, 268 S.E.2d 339 (1980). A defendant who tortures the victim before killing the victim can be...

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