Dawson v. State

• Decision Date: 05 October 2001
• Docket Number: No. S01A1210., No. S01A1041
• Citation: 554 S.E.2d 137,274 Ga. 327
• Court: Georgia Supreme Court
• Parties: DAWSON v. The STATE. Moore v. The State.

554 S.E.2d 137

274 Ga. 327

DAWSON v. The STATE.

Moore v. The State.

Nos. S01A1041, S01A1210.

Supreme Court of Georgia.

October 5, 2001.

Thomas M. West, Robert H. Citronberg, Atlanta, for appellant (Case No. S01A1041).

Paul L. Howard, Jr., Dist. Atty., Peggy R. Katz, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen. for appellee (Case No. S01A1041).

Robert L. Tsai, Natsu T. Saito, Atlanta, Amy G. Donnella, St. Davids, PA, Bondurant, Mixson & Elmore, Emmet J. Bondurant, Michael B. Terry, Jane E. Fahey, Atlanta, Rogers & Hardin, C.B. Rogers, Sutherland, Atlanta, Asbill & Brennan, John A. Chandler, Atlanta, Doffermyre, Shields, Canfield, Knowles & Devine, Ralph I. Knowles, Miles J. Alexander, Atlanta, amici curiae (Case No. S01A1041).

Michael Mears, Stephen B. Bright, Atlanta, Althea L. Buafo, Macon, for appellant (Case No. S01A1210). Timothy G. Vaughn, Dist. Atty., Thurbert E. Baker, Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., for appellee (Case No. S01A1210).

Bondurant, Mixson & Elmore, Emmet J. Bondurant, Michael B. Terry, Jane E. Fahey, Atlanta, Rogers & Hardin, C.B. Rogers, Sutherland, Atlanta, Asbill & Brennan, John A. Chandler, Atlanta, Doffermyre, Shields, Canfield, Knowles & Devine, Ralph I. Knowles, Miles J. Alexander, Atlanta, for amici curiae (Case No. S01A1210).

HUNSTEIN, Justice.

The State is seeking the death penalty against Timothy Carl Dawson, who has been charged with four murders and numerous other crimes in Fulton County, and against Carzell Moore, in his new sentencing trial following his conviction for the 1976 murder and rape of Teresa Allen in Monroe County. See Moore v. State, 240 Ga. 807, 243 S.E.2d 1 (1978). Challenges were raised in both cases to the State's use of electrocution as the method of executing persons sentenced to death for capital offenses in Georgia. The trial court in Dawson's case found that the use of electrocution violates the State and Federal Constitutions; the trial court in Moore's case upheld the constitutionality of the use of electrocution. This Court granted Dawson and Moore's applications for interim review, consolidated the cases, and directed the parties to address whether electrocution remains a constitutional method of execution in Georgia. Upon considered review of this difficult issue, we conclude that future use of electrocution as a means of executing death sentences in Georgia would violate the prohibition against cruel and unusual punishment in Art. I, Sec. I, Par. XVII of the Georgia Constitution. Therefore, we direct that any future executions of death sentences in Georgia be carried out by lethal injection in accordance with OCGA § 17-10-38, as amended.

1. Both the Georgia Constitution and the Constitution of the United States proscribe punishments that are "cruel and unusual." U.S. Const., Amend. VIII; Ga. Const. of 1983, Art. I, Sec. I, Par. XVII. Long before the Eighth Amendment to the United States Constitution came to be recognized as fully applicable, through the Fourteenth Amendment, to states' powers to punish their own citizens, see Robinson v. California, 370 U.S. 660, 667, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), Georgia constitutional law proscribed this State's use of cruel and unusual punishments. Ga. Const. 1861, Art. I, Sec. 4901. Thus, while this Court consults decisions interpreting the Eighth Amendment to the Federal Constitution and must give full effect to that Amendment, this Court has recognized that "Federal constitutional standards represent the minimum, not the maximum, protection that this state must afford its citizens [cit.]," Fleming v. Zant, 259 Ga. 687, 690(3), 386 S.E.2d 339 (1989), and we have explicitly held that in interpreting the prohibition against cruel and unusual punishment found in the Georgia Constitution, the applicable standard is "the standard of the people of Georgia, not the national standard." Id.

2. The people of Georgia, through their elected representatives, have chosen electrocution as the method of executing persons sentenced to death for capital offenses committed before May 1, 2000. Ga. L.2000, p. 947, § 1. See OCGA § 17-10-38. We operate from the presumption that this method of execution is constitutional. See Miller v. State, 266 Ga. 850(2), 472 S.E.2d 74 (1996) (statutes are presumed constitutional). That presumption of constitutionality, however, cannot prevail when a statute manifestly infringes upon a constitutional provision or violates the rights of the people. Id. Thus, the mere fact that the Legislature has spoken on the issue of the method of execution does not preclude or in any manner limit this Court's evaluation of the selected method to determine whether it comports with the constitutional prohibition against cruel and unusual punishment. See Lambeth v. State, 257 Ga. 15, 16, 354 S.E.2d 144 (1987). See also Weems v. United States, 217 U.S. 349, 379, 30 S.Ct. 544, 54 L.Ed. 793 (1910) (legislatively-prescribed punishments "have no limitation... but constitutional ones, and what those are the judiciary must judge").

Similarly, prior rulings by this Court regarding the constitutionality of the use of electrocution cannot be deemed determinative of the issue. This Court has acknowledged that "whether a particular punishment is cruel and unusual is not a static concept, but instead changes in recognition of the `"evolving standards of decency that mark the progress of a maturing society."' [Cit.]" Fleming v. Zant, supra, 259 Ga. at 689(1), 386 S.E.2d 339. As noted by the United States Supreme Court in addressing the scope of the Eighth Amendment's prohibition against cruel and unusual punishments, "if we are to attribute an intelligent providence to its advocates we cannot think that it was intended to prohibit only practices like the Stuarts, or to prevent only an exact repetition of history." Weems v. United States, supra, 217 U.S. at 373, 30 S.Ct. 544.

Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, "designed to approach immortality as nearly as human institutions can approach it." The future is their care, and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been but of what may be.

Id.

In OCGA § 17-10-38, as amended, the Legislature also contemplated "what may be," id., when it recognized the possibility that this Court would find unconstitutional its retention of electrocution as the method of executing persons sentenced to death for capital offenses committed before that statute's effective date. In anticipation of such a ruling and with full awareness of the disfavor into which death by electrocution has fallen,¹ the Legislature made express provisions in the uncodified section of OCGA § 17-10-38. It specifically stated that

[i]t is the further intention of the General Assembly that persons sentenced to death for crimes committed prior to the effective date of this Act be executed by lethal injection if the Supreme Court of the United States declares that electrocution violates the Constitution of the United States or if the Supreme Court of Georgia declares that electrocution violates the Constitution of the United States or the Constitution of Georgia.

Ga. L.2000, p. 947, § 1. See also id. at § 6, holding that lethal injection shall apply to persons sentenced to death for crimes committed prior to May 1, 2000 in the event electrocution is declared unconstitutional by this Court or the U.S. Supreme Court. Compare Ohio Rev.Code Ann. § 2949.22(E) (providing in regard to the amendment allowing condemned prisoners to elect lethal injection that "[n]o change in the law made by this amendment constitutes a declaration by or belief of the general assembly that execution of a death sentence by electrocution is a cruel and unusual punishment proscribed by the Ohio Constitution or the United States Constitution").

3. Our reevaluation of the constitutionality of electrocution as a method of execution in Georgia is influenced greatly by the enactment of the amended version of OCGA § 17-10-38. That statute represents "the clearest and most objective evidence of how contemporary society views a particular punishment" inasmuch as that significant change in the law "amount[s] to evidence of the shifting or evolution of the societal consensus." Fleming v. Zant, supra, 259 Ga. at 689-690(3), 386 S.E.2d 339. We note that while several death penalty cases have come before this Court since this significant change in the law, those cases have failed to offer the Court an opportunity to consider the question of the continued constitutionality of electrocution on the footing presented by the case before us now. Several recent cases challenging electrocution involved motions which were unsupported by admissible evidence or which proffered evidence that was not actually made part of the record placed before this Court. See, e.g., Colwell v. State, 273 Ga. 634, 640(6), 544 S.E.2d 120 (2001) ("[i]n the absence of admissible evidence demanding a different result, the trial court did not err in declining to declare execution by electrocution unconstitutional"); Esposito v. State, 273 Ga. 183(3)(b), 538 S.E.2d 55 (2000). But see Heidler v. State, 273 Ga. 54(25), 537 S.E.2d 44 (2000) (declining to reverse where the trial court denied a request for an evidentiary hearing prior to April 27, 2000). In many of the recent cases, however, the issue of electrocution was not raised on appeal, had been waived at trial, or was procedurally barred. See Presnell v. State, 274 Ga. 246, 551 S.E.2d 723 ...