Fair v. State
| Decision Date | 24 June 1980 |
| Docket Number | No. 35701,35701 |
| Citation | 245 Ga. 868,268 S.E.2d 316 |
| Parties | FAIR v. The STATE. |
| Court | Georgia Supreme Court |
George W. Brinson, Michael R. Casper, Gainesville, for appellant.
Bruce S. Harvey, Athens, amicus curiae.
Jeff C. Wayne, Dist. Atty., Arthur K. Bolton, Atty. Gen., Nicholas G. Dumich, Staff Asst. Atty. Gen., for appellee.
Keith Fair, the appellant, pled guilty in the Superior Court of Hall County to the murder of Jackie Morris. The trial judge, after a two-day presentence trial, found the existence of two statutory aggravating circumstances and imposed the death penalty. The case is here on direct appeal.
This case involves two killings by appellant. The trial judge, as the finder of fact, was authorized to find that the first killing occurred in Habersham County as a result of a dispute over a money matter. Apparently the Habersham County victim had hired appellant to burn a trailer for him and then did not have the money to pay. In front of his other accomplices, including Jackie Morris, hereinafter the Hall County victim, appellant shot the Habersham County victim at point blank range in the face, then threw him on the ground and shot him again, laughing all the while. The body was disposed of in Lake Lanier.
Later that night, appellant determined that the Hall County victim would have to be killed as well since he had been a "rat" in prison. Appellant pretended to need help with a wheel on an automobile and when the victim leaned over to help, appellant shot him in the head, laughing and saying, "you wasn't nothing but a rat you son-of-a-bitch no way, you pulled a knife on me when I was thirteen years old and scared the hell out of me." The body was placed in the car; the victim's throat was cut by another accomplice; and the car was set on fire.
After his arrest, the appellant bragged about the killing of the Hall County victim to other inmates. He also stated that when he got out he was going to kill the other witnesses. In conversation with other inmates he said that he was not sorry about the killing and did not lose any sleep over it. Appellant escaped from jail with another inmate to whom he admitted both killings. During the period he was a fugitive, he told the inmate he escaped with that the victims were criminals like him and deserved it but that he did not want to be shot because when he shoots people they "squeal like it hurts." Appellant was recaptured within a day and a half.
1. The appellant attacks the constitutionality of the Georgia Death Penalty Statute, Ga.L., 1973, p. 159 et seq. (Code Ann. § 27-2534.1) as written and applied. Both this court and the Supreme Court of the United States have upheld the constitutionality of the Georgia statute in a number of cases and appellant has advanced no new reason for us to reconsider our position. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Eberheart v. State, 232 Ga. 247, 206 S.E.2d 12 (1974); McCorquodale v. State, 233 Ga. 369, 211 S.E.2d 577 (1974); Smith v. State, 236 Ga. 12, 222 S.E.2d 308 (1976); Mason v. State, 236 Ga. 46, 222 S.E.2d 339 (1976); Birt v. State, 236 Ga. 815, 225 S.E.2d 248 (1976); Legare v. State, 243 Ga. 744, 257 S.E.2d 247 (1979). Appellant's first enumeration of error is without merit.
2. The appellant in his second enumeration of error argues that the trial court erred in admitting evidence of the murder of the Habersham County victim and relying upon that evidence in its finding of one of the statutory aggravating circumstances warranting the death penalty.
Appellant was given proper notice that the evidence of the Habersham County murder would be tendered in aggravation. At the presentence trial, his appointed attorney in the Habersham County case advised appellant to assert his Fifth Amendment privilege as to any question concerning the first murder. However, this in itself would not have prevented appellant from presenting evidence in defense of the Habersham County murder before the trial court in the instant case. The appellant had to choose which course to follow. Though a defendant may have a right, even a constitutional right to follow a certain course of action, it does not necessarily follow that to require him to choose a course of action is constitutionally forbidden. Decisions as to what course to follow in a criminal case are many times difficult. See McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). The appellant contends that the evidence of the Habersham murder should not have been introduced against him in aggravation because he had only been charged with that murder, had not been convicted, but was awaiting trial thereon. It is the rule in this state that it is not required that a defendant be convicted of the crime introduced as an aggravating circumstance. Hooks v. State, 233 Ga. 149, 210 S.E.2d 668 (1974); Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979). Appellant's reliance upon Code Ann. § 27-2534.1(b)(1) is misplaced in that the record clearly shows that the state relied upon and the trial court found that the murder occurred during the commission of another capital felony. Code Ann. § 27-2534.1(b)(2).
Appellant further argues that the evidence was totally irrelevant and, therefore, inadmissible. We do not agree. The first murder was committed within hours of the second. The motive for the murder of the Hall County victim was to silence him so he would not be able to testify against the appellant regarding the first murder. The arson of the trailer, the murder in Habersham County, the murder in Hall County and the arson of the car in Hall County were all part of a continuous transaction and all were mutually dependent crimes. Collins v. State, 239 Ga. 45, 235 S.E.2d 523 (1977); Stewart v. State, 239 Ga. 588, 238 S.E.2d 540 (1977). Had the appellant pled not guilty and elected to go to trial on guilt-innocence, the evidence complained of would have been admissible to show scheme, motive, or intent. McClesky v. State, 245 Ga. 108, 263 S.E.2d 146 (1980). It, therefore, follows that such evidence was certainly admissible during the presentence trial in which additional evidence, not admissible during the guilt-innocence phase, is allowed. Code Ann. § 27-2503; see Spivey v. State, 241 Ga. 477, 246 S.E.2d 288 (1978). Furthermore, such evidence is not inadmissible on the ground that it places the defendant's character in evidence. During the presentence hearing, the state, subject to notice limitations, is allowed to place the defendant's character in issue through his prior record or other criminal acts. Code Ann. §§ 27-2503; 27-2534.1. A defendant in a capital case stands before the trial court or jury in a presentence trial a convicted felon with no presumption of innocence. All aspects of his crime or crimes, his character and his attitude are admissible, subject to the applicable rules of evidence regarding reliability, to guide the fact finder in determining appropriate sentence. See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Collier v. State, supra.
Appellant asserts that the trial court's finding that the offense of murder occurred while the offender was engaged in another capital felony: to wit, the murder of the Habersham County victim, cannot stand because at his subsequent trial for that offense in Habersham County, the appellant was acquitted. Appellant's subsequent acquittal is not part of the record in this case. Nevertheless, assuming such an acquittal, we find no error. Necessarily, two different triers of fact were involved. Different triers of facts may reach different results. See Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973). Under our statute, the fact finder in a presentence trial must determine whether beyond a reasonable doubt any of the statutory aggravating circumstances exist under the evidence presented. Code Ann. §§ 27-2503, 27-2525, 27-2534.1. A review of the evidence presented to the trial judge in this case overwhelmingly supports a finding by a rational trier of fact that the appellant was engaged in the commission of another murder when he killed the Hall County victim. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
In the instant case, the murders were committed in separate counties which of necessity required that one murder be tried before the other. 1 The subsequent acquittal simply has no bearing on the issue of whether the trier of fact is presented with sufficient evidence to find beyond a reasonable doubt the existence of an aggravating circumstance.
3. The trial court also found an additional aggravating circumstance in that the murder of the victim in this case was outrageously and wantonly vile, horrible and inhuman in that it involved depravity of mind on the part of the defendant. The appellant argues that such a finding under Code Ann. § 27-2534.1(b)(7) is incomplete in that the statute requires a finding of either torture or aggravated battery in addition to a finding of depravity of mind. Code Ann. § 27-2534.1(b)(7) provides as follows: "The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." The statute is worded in the disjunctive, not the conjunctive. It is not required that a trier of fact find the existence of each disjunctive phrase of the statute, only that at least one phrase of the first clause of the statute exists due to the existence of at least one phrase of the second clause of the statute. Furthermore, this court has upheld an identical finding of this statutory aggravating circumstance in Corn v. State, 240 Ga. 130, 240 S.E.2d 694 (1977).
The evidence supports a finding of this aggravating circumstance by a rational...
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