Hardy v. State

• Decision Date: 03 March 1981
• Docket Number: No. 35588,35588
• Citation: 247 Ga. 235,275 S.E.2d 319
• Parties: HARDY v. The STATE.
• Court: Georgia Supreme Court

Page 319

275 S.E.2d 319

247 Ga. 235

HARDY v. The STATE.

No. 35588.

Supreme Court of Georgia.

March 3, 1981.

L. Eddie Benton, Jr., Commerce, Marguerite B. Filson (Western Electric), New York City, for Kenneth Hardy.

Nat Hancock, Dist. Atty., Jefferson, Arthur K. Bolton, Atty. Gen., Daryl A. Robinson, Asst. Atty. Gen., Atlanta, for the State.

CLARKE, Justice.

ADDENDUM

By order of the Supreme Court of the United States, this case, as to sentence only, has been vacated and remanded for further consideration by this court in light of Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980); Hardy v. Georgia, --- U.S. ----, 101 S.Ct. 523, 66 L.Ed.2d 285 (1980). Our opinion in this case is reported at 245 Ga. 272, 264 S.E.2d 209 (1980).

In Godfrey v. Georgia, supra, the Supreme Court of the United States held that Code Ann. § 27-2534.1(b)(7) was unconstitutionally applied as to a specific factual circumstance. See Hance v. State, 245 Ga. 856, 268 S.E.2d 339 (1980).

The appellant's sentence to death in this case rests upon a finding by a rational trier of fact beyond a reasonable doubt of Code Ann. § 27-2534.1(b) (7). ¹

As mandated, we have reviewed the sentence in this case, and this court finds material difference 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.

The evidence in this case shows that unlike Godfrey, the victim was not killed instantaneously; he was not a member of the appellant's family, nor was he threatening the appellant in any manner. This was a coldblooded, planned execution type murder perpetrated for the purpose of robbing the victim, who was known to have a large amount of cash. With that purpose in view, the perpetrator severely beat and partially disrobed the victim seeking to find where he kept his money. As was pointed out in the original opinion, the victim was "cut all to pieces" and gasoline was poured over him before he was shot. When the appellant returned from the killing, he had blood on his clothing, and there was blood in the yard where the victim had been beaten prior to being put in the back of a pickup truck and taken to the actual execution site. Thereafter, the victim's truck with his body in it was burned in order to hide the crime.

The evidence supports a finding beyond a reasonable doubt of serious physical abuse prior to death. Hance v. State, supra. As we held in our original opinion, the jury's finding of Code Ann. § 27-2534.1(b)(7), torture occurs when the victim is subjected to serious physical abuse before death. Hance v. State, supra. A defendant who tortures a victim or subjects a victim to an aggravated battery before killing a victim...