Hamilton v. State, 35078

• Decision Date: 08 September 1980
• Docket Number: No. 35078,35078
• Citation: 246 Ga. 264,271 S.E.2d 173
• Parties: HAMILTON v. The STATE.
• Court: Georgia Supreme Court

Page 173

271 S.E.2d 173

246 Ga. 264

HAMILTON v. The STATE.

No. 35078.

Supreme Court of Georgia.

Sept. 8, 1980.

John F. M. Ranitz, Jr., Savannah, Jack Greenberg, James M. Nabrit, III, Joel Berger, John Charles Boger, Deborah Fins, New York City, for appellant.

Andrew J. Ryan, III, Dist. Atty., Michael K. Gardner, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Mary Beth Westmoreland, Staff Asst. Atty. Gen., for appellee.

UNDERCOFLER, Chief Justice.

The United States Supreme Court by its order in Hamilton v. Georgia, 446 U.S. 961, 100 S.Ct. 2936, 64 L.Ed.2d 821 (1980), has vacated this court's judgment in Hamilton v. State, 244 Ga. 145, 259 S.E.2d 81 (1979), insofar as the affirmance of the death penalty imposed, and remanded this case for further consideration in light of Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).

Pursuant to that mandate, we have considered appellant's sentence of death which rests partially upon Code Ann. § 27-2534.1(b)(7) ¹ and we find 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. See generally Hance v. State, 245 Ga. 856, 268 S.E.2d 339 (1980); Dampier v. State, addendum, 245 Ga. 882, 268 S.E.2d 349 (1980).

Unlike the murder in Godfrey, death was not instantaneous, the victim was not related to the defendant, and the victim was in no way threatening nor hostile to the defendant. The defendant planned to "roll" the victim in advance and took advantage of his hospitality in order to rob and kill him. Thereafter the defendant fled and made every attempt to conceal his crime. See Godfrey v. Georgia, supra.

Code Ann. § 27-2534.1(b)(7) provides in pertinent part: "The offense of murder ... was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." In our opinion we held that the jury's finding beyond a reasonable doubt that the "murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or aggravated battery to the victim was supported by the evidence. The evidence shows that the victim, who had taken the defendant and his girlfriend into his home after buying them drinks at local bars, was killed as a part of a robbery scheme. The victim prior to his death was savagely beaten with a soft drink bottle and vase. The bottle and vase broke due to the impact with the victim's skull. The victim was cut and stabbed four times. Two of these wounds were to the head, one almost severing part of his ear. None of the above wounds were in and of themselves fatal. The appellant stabbed the victim twice in the chest, one wound resulting in death. The appellant, after taking some of the victim's property then fled with his girlfriend.

The evidence as set forth above clearly demonstrates that the victim suffered serious physical abuse prior to death. Therefore, we hold that the jury was authorized to find, consistently with the United States Supreme Court's holding in Godfrey, supra, that 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, or an aggravated battery. Hance v. State, supra. Mulligan v. State addendum, 245 Ga. 881, 268 S.E.2d 351 (1980); Dampier v. State, addendum, supra.

Judgment imposing the death penalty reaffirmed.

All the Justices concur.

1 The jury returned a finding of two...