Fleming v. State

• Decision Date: 30 June 1995
• Docket Number: No. S95A0185,S95A0185
• Parties: FLEMING v. The STATE.
• Court: Georgia Supreme Court

Page 638

458 S.E.2d 638

265 Ga. 541

FLEMING v. The STATE.

No. S95A0185.

Supreme Court of Georgia.

June 30, 1995.

G. Terry Jackson, Jackson & Schiavone, Savannah, Ray Chandler Smith, Richmond Hill, for Fleming.

Dupont K. Cheney, Dist. Atty., Hinesville, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Mary Beth Westmoreland, Sr. Asst. Attys. Gen., Dept. of Law, Atlanta, J. Thomas Durden, Asst. Dist. Atty., Hinesville, for the State.

Cathy Morris Alterman, Alterman & Associates, Nicholas A. Lotito, Davis, Zipperman, Kirschenbaum & Lotito, Atlanta, amici curiae.

HUNSTEIN, Justice.

Pursuant to the unified appeal procedure in capital felonies, OCGA § 17-10-35.1, we granted the application for interim appeal filed by Maurice Fleming, who has been charged with the armed robbery and malice murder of a Riceboro man. ¹

In his sole enumeration of error, appellant contends the trial court erred under Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) by ruling that in the closing argument in the sentencing phase of his trial, the prosecutor may argue that sentencing appellant to death will deter others from crime, but that appellant may not counter the State's argument with evidence from experts that the death penalty is ineffective as a general deterrent. We find no error in the trial court's ruling and affirm.

We have previously determined that the State may assert and the defense may rebut the effectiveness of the death penalty as a general deterrent in closing argument in the sentencing phase of capital trials. Walker v. State, 254 Ga. 149, 159-160, 327 S.E.2d 475 (1985). ² We noted that

[i]n making this determination, we must be mindful of the differences between sentencing hearings and proceedings to determine guilt or innocence. In determining sentence, the jury considers different kinds of issues, and performs distinctly different duties, than it does in determining guilt. Therefore, limitations on argument entirely appropriate to the guilt phase of a trial cannot be applied mechanistically to the sentencing phase.

Id. at 158, 327 S.E.2d 475. This Court held that the jury properly could be invited to consider the deterrent effect of the death penalty as part of the jury's function to weigh the possible consequences of its verdict and to render a verdict which speaks on behalf of the community. Id. at 158-159, 327 S.E.2d 475. In this regard, we stressed the defendant's right to an " 'open and far-ranging argument' " under Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and the fact that on the issue of sentence "the defendant always has the final closing argument. [Cit.]" Walker, supra at 159, 327 S.E.2d 475. Our approval of deterrence argument in the sentencing phase of death penalty cases is consistent with the majority of federal and state courts considering this issue. See, e.g., Brooks v. Kemp, 762 F.2d 1383, 1407 (11th Cir.1985), vacated and remanded on other grounds, 478 U.S. 1016, 106 S.Ct. 3325, 92 L.Ed.2d 732 (1986). ³ See generally Stein, Closing Argument, § 71.50.

As to the trial court's refusal to allow appellant to introduce expert testimony on the subject of the nondeterrent effect of capital punishment on crime, this issue has been raised previously and decided adversely to appellant's position. Stevens v. State, 247 Ga. 698(24), 278 S.E.2d 398 (1981). ⁴ Other states likewise refuse to admit such evidence. See, e.g., State v. Woomer, 278 S.C. 468, 299 S.E.2d 317, 320 (1982) (evidence properly excluded because it consisted of matters of legislative determination). ⁵ See also Annotation, Admissibility of Expert Testimony as to the Appropriate Punishment for Convicted Defendant, 47 ALR4th 1069.

Under well-established holdings of this Court, both the prosecution and the defense have the opportunity to argue the issue to the jury; both the prosecution and the defense are precluded from introducing evidence on the issue. Under these circumstances we find no possibility that appellant could receive the death penalty " 'on the basis of information which he had no opportunity to deny or explain.' [Cit.]" Simmons v. South Carolina, supra, 512 U.S. at ----, 114 S.Ct. at 2192(II). ⁶

Accordingly, we find no error in the trial court's ruling. Walker, supra; Stevens, supra.

Judgment affirmed.

All the Justices concur, except HUNT, C.J., who concurs in the judgment only.

BENHAM, P.J., and FLETCHER and SEARS, JJ., dissent.

HUNT, Chief Justice, concurring.

I concur in the judgment because I agree that argument on the issue of the general deterrent effect of the death penalty is permissible as long as that argument is confined by the rationale of Walker v. State, 254 Ga. 149, 159(14), 327 S.E.2d 475 (1985) and I do not believe the opinion holds otherwise. In Walker we said:

[While] considerations of neither general deterrence nor retribution will demand the imposition of the death penalty. ... [T]hat is not to say that a prosecutor may not urge vigorously that a death sentence is appropriate punishment in the case at hand, or that in doing so he may not remind the jury of the retributive and general deterrent function of its verdict. (Emphasis in the original).

I read that to say, consistent also with Simmons, that a prosecutor may argue to the sentencing body both the purposes of the sentencing scheme and the appropriate level of punishment in a particular case. He or she may refer to deterrence, general or specific, as a valid goal of punishment. He or she may argue that notice of the jury's verdict of death will serve to inform the public of the serious consequences of the crime of murder and may well serve as a deterrent to the commission of that crime. But that is as far as a prosecutor may go. If the prosecutor insists that the goal of deterrence has in fact been achieved or that it is well known or well established; or if the prosecutor contends that jurisdictions that have enforced the death penalty have lower crime rates than those jurisdictions which do not, then I believe, in fairness, the defendant's response is not limited to argument but may include evidence to the contrary, if such is available.

Under these circumstances I would agree with the dissent that any reasonable interpretation of Simmons would authorize this result. I must also say that the dissent's position that no argument is permitted is the safer rule and prosecutors would be well advised to confine their remarks to the appropriateness of a particular punishment for a particular offender.

FLETCHER, Justice, dissenting.

I agree with Justice Sears that if the state asks the jury to impose the death penalty as a general deterrent to crime, fundamental due process requires that the defendant be able to rebut this argument with contrary evidence. I would go further, however, and exclude both argument and evidence on public policy grounds.

While the admission of expert evidence is required to satisfy due process, it will also prolong the trial and dramatically increase the cost as both the state and defense employ competing experts. ¹ Additionally, I recognize that legislatures rather than juries are best equipped to consider sociological evidence on the deterrent value of the death penalty. ² To meet these concerns and satisfy due process requirements we should simply preclude the state from arguing that the death penalty deters crime, and thus avoid the quagmire created by battling sociological experts. Prohibiting this argument and evidence will also allow the jury to remain focused on the individual circumstances of the crime and the defendant. ³

Furthermore, while there are studies that suggest that capital punishment does not serve as a general deterrent to crime, ⁴ to date there are no statistics, data, or other evidence conclusively supporting or refuting the value of the death penalty as a general deterrent. Thus, argument or evidence about the general deterrent effect of the death penalty would merely manipulate a juror by taking advantage of preconceived notions of the nature and effect of capital punishment. Moreover, because the evidence is inconclusive, its use could lead a juror to impose the death penalty based, at best, on vague and unsubstantiated notions of deterrence, and, at worst, on false notions thereof. This court should not sanction such arbitrary sentencing decisions.

In summary, I am persuaded that the fairest practice is to exclude any argument or evidence on the deterrent value of the death penalty, as two of our sister states have done. ⁵

I am authorized to state that Justice SEARS joins in this dissent.

SEARS, Justice, dissenting.

Fleming contends that the trial court erred in ruling that the prosecutor may argue, without supporting evidence, that sentencing Fleming to death will deter others from crime, but that Fleming may not counter this argument with expert testimony that the death penalty is ineffective as a deterrent. I agree with Fleming that due process requires that he be permitted to present evidence to rebut the state's argument, and, therefore, I dissent.

Last year in Simmons v. South Carolina, ¹ the United States Supreme Court held that a state may not urge the jury to impose the death penalty by arguing that the defendant presents a future danger without also informing the jury that the defendant is ineligible for parole. The basis for the Court's ruling was that due process does not allow execution of a defendant "on the basis of information which he had no opportunity to deny or explain." ² In light of Simmons, allowing prosecutors to argue that the death penalty deters crime, ³ but at the same time refusing to allow a defendant to introduce expert evidence to the contrary ⁴ also violates the due process guarantee. Prohibiting a defendant from introducing evidence relating to the deterrent effect of the death penalty deprives the defendant of an adequate "opportunity to deny or explain" the prosecutor's...