587 S.E.2d 613 (Ga. 2003), S03A0559, Head v. Hill

Docket NºS03A0559, S03X0560.
Citation587 S.E.2d 613, 277 Ga. 255
Opinion JudgeCARLEY, Justice.
Party NameHEAD v. HILL. Hill v. Head.
AttorneyThurbert E. Baker, Atty. Gen., Patricia B. Attaway Burton, Asst. Atty. Gen., Atlanta, for Appellant., Brian S. Kammer, Thomas H. Dunn, Atlanta, for Appellee., James C. Bonner, Jr., Sarah L. Gerwig, Michael M. Mears, Holly L. Geerdes, Atlanta; Gerald R. Weber, Jr., John R. Martin, Nicholas A. Loti...
Judge PanelSEARS, Presiding Justice, dissenting.
Case DateOctober 06, 2003
CourtSupreme Court of Georgia

Page 613

587 S.E.2d 613 (Ga. 2003)

277 Ga. 255

HEAD

v.

HILL.

Hill

v.

Head.

Nos. S03A0559, S03X0560.

Supreme Court of Georgia.

October 6, 2003.

Reconsideration Denied Nov. 7, 2003.

Page 614

[Copyrighted Material Omitted]

Page 615

[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

Page 617

[277 Ga. 275] Thurbert E. Baker, Atty. Gen., Patricia B. Attaway Burton, Asst. Atty. Gen., Atlanta, for Appellant.

Brian S. Kammer, Thomas H. Dunn, Atlanta, for Appellee.

James C. Bonner, Jr., Sarah L. Gerwig, Michael M. Mears, Holly L. Geerdes, Atlanta; Gerald R. Weber, Jr., John R. Martin, Nicholas A. Lotito, Atlanta, amici curiae.

CARLEY, Justice.

In a trial held in July and August of 1991, Warren Lee Hill was convicted and sentenced to death for the murder of Joseph Handspike. This Court unanimously affirmed the conviction and death sentence in March of 1993. Hill v. State, 263 Ga. 37, 427 S.E.2d 770 (1993).

Hill filed a petition for writ of habeas corpus on April 14, 1994, alleging that he was mentally retarded. The habeas court, erroneously invoking the procedure set forth in Fleming v. Zant, 259 Ga. 687, 386 S.E.2d 339 (1989), granted a limited writ ordering a jury trial in the original trial court on the question of mental retardation, with Hill bearing the burden of proof under the "preponderance of the evidence" standard. This Court reversed, holding that, although he could pursue relief under the "miscarriage of justice" provision of the habeas corpus statute by attempting to prove to the habeas court itself under the "beyond a reasonable doubt" standard that he was mentally retarded, Hill was not entitled to a jury trial under the preponderance of the evidence standard because he had been tried after the effective date of the statute providing defendants the opportunity to prove their mental retardation at trial. Turpin v. Hill, 269 Ga. 302, 498 S.E.2d 52 (1998).

The habeas court found on remand, in an order filed on May 16, 2002, that Hill succeeded in proving beyond a reasonable doubt

Page 618

that he had significantly subaverage intellectual functioning, but the habeas court further found that Hill failed to prove beyond a reasonable doubt the existence of impairments in adaptive behavior. Consequently, the habeas court concluded that Hill had failed to prove his alleged mental retardation beyond a reasonable doubt. See OCGA § 17-7-131(a)(3) (defining mental retardation). On September 20, 2002, the habeas court filed a supplemental order, upon the Warden's motion, denying Hill's remaining claims. On November 22, 2002, the habeas court granted a motion for reconsideration filed by Hill and once again granted a limited writ ordering a jury trial on the issue of mental retardation, with Hill bearing the burden of proof by a preponderance of the evidence.

For the reasons set forth below, we reverse the habeas court's order granting the motion for reconsideration of the mental retardation [277 Ga. 256] claim in Case Number S03A0559, and we affirm the habeas court's denial of relief to Hill on other grounds in Case Number S03X0560.

I. Factual Background

At the time of the murder of Joseph Handspike, both he and Hill were inmates at the Lee County Correctional Institute. Hill was serving a life sentence for murdering his former girlfriend by shooting her numerous times with a 9-millimeter handgun. On the morning of August 17, 1990, as Mr. Handspike slept, Hill removed a two-by-six board that served as a sink leg in the prison bathroom and forcefully beat the victim numerous times with the board about the head and chest as on looking prisoners pleaded with him to stop. A prison guard witnessed the attack and testified at trial. Several prisoners testified that Hill mocked the victim as he beat him. The victim arrived at the hospital in a coma and died there.

II. Alleged Mental Retardation

"Mentally retarded" under Georgia law "means having significantly subaverage general intellectual functioning resulting in or associated with impairments in adaptive behavior which manifested during the developmental period." OCGA § 17-7-131(a)(3). Death penalty defendants tried on or after July 1, 1988 are entitled to present evidence of retardation to the jury at the guilt/innocence phase of their trials and, if found beyond a reasonable doubt to be retarded, to avoid a death sentence. OCGA § 17-7-131(j). At his trial, Hill presented evidence of his intellectual slowness, but his psychological expert testified that Hill had an intelligence quotient of 77 and was not mentally retarded. Hill did not request that the jury be charged on a "guilty but mentally retarded" verdict.

Because Hill did not seek a jury determination of his alleged mental retardation at trial, that issue is procedurally defaulted. OCGA § 9-14-48(d); Turpin v. Todd, 268 Ga. 820, 824(2)(a), 493 S.E.2d 900 (1997); Black v. Hardin, 255 Ga. 239, 240(4), 336 S.E.2d 754 (1985). Nevertheless, this Court held in the previous appeal in this case that the execution of a mentally retarded person whose retardation was not considered at trial would constitute a miscarriage of justice. Turpin v. Hill, supra at 303(3)(b), 498 S.E.2d 52. Accordingly, this Court ordered the habeas court to consider Hill's claim of mental retardation "without intervention of [a] jury" under the beyond a reasonable doubt standard set forth in OCGA § 17-7-131. Turpin v. Hill, supra at 304(4), 498 S.E.2d 52. However, the habeas court, on motion for reconsideration, once again granted a limited writ ordering a jury trial on the question of mental retardation, with Hill bearing the burden of proof [277 Ga. 257] under the preponderance of the evidence standard.

(A) The habeas court concluded that Hill is now entitled to a jury trial on the issue of mental retardation under the authority of Ring v. Arizona, 536 U.S. 584, 602, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), wherein the Supreme Court of the United States held that, "[i]f a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact--no matter how the State labels it--must be found by a jury beyond a reasonable doubt[,]" and under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), wherein the Supreme Court announced

Page 619

a federal constitutional ban on executing mentally retarded persons. We hold that Ring and Atkins do not require a jury trial on Hill's alleged mental retardation for the following reasons:

(1) First, we hold that Ring does not have retroactive effect in the present case, a collateral review proceeding instituted after the appeals from the original trial have been completed. We have adopted the "pipeline" rule regarding the retroactivity of new rules of criminal law, and we apply that rule in conformity with at least the minimum guarantees applicable to the states under the United States Supreme Court's retroactivity jurisprudence. See Luke v. Battle, 275 Ga. 370, 565 S.E.2d 816 (2002); Taylor v. State, 262 Ga. 584, 586(3), 422 S.E.2d 430 (1992). See also Tyler v. Cain, 533 U.S. 656, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) (discussing the effect of a change in federal statutory law on retroactivity rules in second and subsequent federal habeas petitions); Colwell v. State, 59 P.3d 463, 470(III)(A) (Nev.2002) (noting that the United States Supreme Court's retroactivity requirements represent the minimum requirements applicable to the states). In applying the pipeline rule, we have held that new rules of criminal procedure, as distinguished from substantive criminal law, generally cannot be applied retroactively. Luke v. Battle, supra at 370, 565 S.E.2d 816. A new rule of criminal law will have retroactive effect if it falls within one of the following two exceptions: new rules that place certain conduct beyond the power of the State to proscribe, that is, a change in substantive criminal law; and, watershed rules concerning procedures that are implicit in the concept of ordered liberty and that implicate the fundamental fairness and accuracy of the criminal proceeding. See Bousley v. United States, 523 U.S. 614, 619-620, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); Teague v. Lane, 489 U.S. 288, 311(V), 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion).

We find that the rule announced in Ring, which overruled Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), was a new rule of criminal law. Turner v. Crosby, 339 F.3d 1247, 1284(IV)(B)(1) (11th Cir.2003); State v. Towery, 204 Ariz. 386, 64 P.3d 828, 833(III)(C) (2003); Colwell v. State, supra at 472-473(III)(A). However, we also find that the new rule announced in Ring, assuming that its jury requirement is even applicable to findings [277 Ga. 258] of mental retardation, does not fall within one of the two exceptions to non-retroactivity described above. The first exception clearly does not apply, and we find that the fundamental fairness and accuracy of determining mental retardation would not be increased by having a jury rather than a trial judge make the determination. Turner v. Crosby, supra at 1285(IV)(B)(2); State v. Towery, supra at 834-835(III)(D); Colwell v. State, supra at 473(III)(A). See also Ring v. Arizona, supra at 621, 122 S.Ct. 2428 (O'Connor, J., dissenting and noting that majority holding would not have retroactive effect under Teague v. Lane, supra).

(2) Second, even if Ring were retroactive, we do not find that it establishes a constitutional requirement that a jury determine the question of mental retardation regardless of the procedural posture of a case. Ring, like its predecessor, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), held that facts which determine the upper limit of punishment for particular criminal conduct must be proved to a jury unless, of course, the right to a jury is waived by the defendant....

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98 practice notes
  • Young v. State, 060121 GASC, S21P0078
    • United States
    • Georgia Supreme Court of Georgia
    • 1 Junio 2021
    ...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 S.E.2d 613) (2003)). In Stripling, we explained: In addressing this issue previously, we first noted that......
  • 922 F.Supp.2d 334 (E.D.N.Y. 2013), 04-CR-1016 (NGG), United States v. Wilson
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Court (Eastern District of New York)
    • 7 Febrero 2013
    ...1019, 1023 (Colo.2004) (upholding a Colorado statute requiring proof by the defendant by clear and convincing evidence); Head v. Hill, 277 Ga. 255, 261, 587 S.E.2d 613 (2003) (upholding a Georgia statute requiring proof by the defendant beyond a reasonable doubt).8 This is also the standard......
  • United States v. Wilson, 020713 NYEDC, 04-CR-1016 (NGG)
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Court (Eastern District of New York)
    • 7 Febrero 2013
    ...1019, 1023 (Colo. 2004) (upholding a Colorado statute requiring proof by the defendant by clear and convincing evidence); Head v. Hill, 277 Ga. 255, 261 (2003) (upholding a Georgia statute requiring proof by the defendant beyond a reasonable doubt).8 This is also the standard set forth in N......
  • The shifting of the Supreme Court of Georgia's death penalty decisions from 1998-2003.
    • United States
    • Albany Law Review Vol. 68 Nbr. 2, March 2005
    • 22 Marzo 2005
    ...145 (Sears, P.J., concurring). (89) Id. (Sears, P.J., concurring). (90) Id. at 145-46 (Thompson, J., dissenting). (91) See Head v. Hill, 587 S.E.2d 613,627 (Ga. 2003) (Sears, P.J., dissenting). (92) See id. at 622. (93) Id. at 628 (citing Cooper v. Oklahoma, 517 U.S. 348, 367-68 (1996)). In......
  • Request a trial to view additional results
97 cases
  • Young v. State, 060121 GASC, S21P0078
    • United States
    • Georgia Supreme Court of Georgia
    • 1 Junio 2021
    ...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 S.E.2d 613) (2003)). In Stripling, we explained: In addressing this issue previously, we first noted that......
  • 922 F.Supp.2d 334 (E.D.N.Y. 2013), 04-CR-1016 (NGG), United States v. Wilson
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Court (Eastern District of New York)
    • 7 Febrero 2013
    ...1019, 1023 (Colo.2004) (upholding a Colorado statute requiring proof by the defendant by clear and convincing evidence); Head v. Hill, 277 Ga. 255, 261, 587 S.E.2d 613 (2003) (upholding a Georgia statute requiring proof by the defendant beyond a reasonable doubt).8 This is also the standard......
  • United States v. Wilson, 020713 NYEDC, 04-CR-1016 (NGG)
    • United States
    • Federal Cases United States District Courts 2nd Circuit United States District Court (Eastern District of New York)
    • 7 Febrero 2013
    ...1019, 1023 (Colo. 2004) (upholding a Colorado statute requiring proof by the defendant by clear and convincing evidence); Head v. Hill, 277 Ga. 255, 261 (2003) (upholding a Georgia statute requiring proof by the defendant beyond a reasonable doubt).8 This is also the standard set forth in N......
  • 928 So.2d 315 (Ala.Crim. 2004), CR-01-1619, Morrow v. State
    • United States
    • Alabama Alabama Court of Criminal Appeals
    • 27 Agosto 2004
    ...question whether any burden higher than a preponderance would be constitutional has been raised in other jurisdictions. In Head v. Hill, 277 Ga. 255, 587 S.E.2d 613 (2003), the Georgia Supreme Court found that mental retardation is more akin to the affirmative defense of insanity and, relyi......
  • Request a trial to view additional results
1 books & journal articles
  • The shifting of the Supreme Court of Georgia's death penalty decisions from 1998-2003.
    • United States
    • Albany Law Review Vol. 68 Nbr. 2, March 2005
    • 22 Marzo 2005
    ...145 (Sears, P.J., concurring). (89) Id. (Sears, P.J., concurring). (90) Id. at 145-46 (Thompson, J., dissenting). (91) See Head v. Hill, 587 S.E.2d 613,627 (Ga. 2003) (Sears, P.J., dissenting). (92) See id. at 622. (93) Id. at 628 (citing Cooper v. Oklahoma, 517 U.S. 348, 367-68 (1996)). In......

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