Livingston v. State

• Decision Date: 27 June 1994
• Docket Number: Nos. S94A0277,S94A0279 and S94A0280,s. S94A0277
• Citation: 444 S.E.2d 748,264 Ga. 402
• Parties: LIVINGSTON v. The STATE. WALDRIP v. The STATE. WALDRIP v. The STATE.
• Court: Georgia Supreme Court

Page 748

444 S.E.2d 748

264 Ga. 402

LIVINGSTON v. The STATE.

WALDRIP v. The STATE.

WALDRIP v. The STATE.

Nos. S94A0277, S94A0279 and S94A0280.

Supreme Court of Georgia.

June 27, 1994.

Reconsiderations Denied July 21, 1994.

Michael Mears, Director, Multi-County Public Defender, Atlanta, Harold M. Walker, Jr., Valpey & Walker, Gainesville, Stephen B. Bright, Colleen Q. Brady, Barry J. Fisher, Atlanta, for Livingston.

Curtis Wayne Miller, Miller, Rucker & Associates, Athens, Stanley W. Robbins, Gainesville, for Waldrip in No. S94A0279.

J. Richardson Brannon, Jefferson, Anne H. Watson, Watson & Watson, Bozeman, MT, for Waldrip in No. S94A0280.

Lydia J. Sartain, Dist. Atty., Lee Darragh, William M. Brownell, Jr., Asst. Dist. Attys., Gainesville, for the State.

SEARS-COLLINS, Justice.

This is a granted interim appeal in a case in which the state is seeking the death penalty against co-defendants Howard Kelly Livingston, John Mark Waldrip, and Tommy Lee Waldrip. OCGA § 17-10-35.1.

S94A0277. HOWARD KELLY LIVINGSTON.

1. Livingston argues that the trial court erred in denying his motion to prohibit the state from offering victim impact evidence at the sentencing phase of trial, should the jury find him guilty of the crimes charged. Additionally, Livingston appeals the trial court's denial of his constitutional attack and other related attacks on OCGA § 17-10-1.2, which governs the admissibility of victim impact evidence, as amended in the 1993 legislative session to apply to death penalty cases.

(a) In Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), the U.S. Supreme Court found "that because of the nature of the information contained in a [victim impact statement], it creates an impermissible risk that the capital sentencing decision will be made in an arbitrary manner." Booth, 482 U.S. at 505, 107 S.Ct. at 2534. As the capital sentencing decision must be based on considerations of the defendant's personal responsibility, moral guilt, and blameworthiness, the Court held, the Eighth Amendment to the U.S. Constitution creates a per se bar to "the introduction of [victim impact evidence] at the sentencing phase of a capital murder trial." ¹ Booth, 482 U.S. at 509, 107 S.Ct. at 2536.

Four years after handing down its decision in Booth, the U.S. Supreme Court overruled Booth, in part, ² in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Apparently responding to a current "nationwide 'victim's rights' movement," ³ Payne, 501 U.S. at ----, 111 S.Ct. at 2613 (Scalia, J., concurring), the Payne Court held that the Eighth Amendment prohibition against cruel and unusual punishment does not erect a per se bar to the admission of victim impact evidence, and that a "State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed." ⁴ 501 U.S. at ----, 111 S.Ct. at 2609.

(b) We agree with the United States Supreme Court's assessment in Payne that the Eighth Amendment prohibition against cruel and unusual punishment does not erect a per se bar to the introduction of all victim impact evidence, see Sermons, 262 Ga. at 287, 417 S.E.2d 144, and with that Court's determination that victim impact evidence can be admissible. However, we also recognize that under certain circumstances victim impact evidence could render a defendant's trial fundamentally unfair and could lead to the arbitrary imposition of the death penalty. This concern was paramount to the United States Supreme Court's decision in Booth, and in Payne that Court recognized that principles of due process prohibit the admission of victim impact evidence which renders a trial fundamentally unfair, Payne, 501 U.S. at ----, 111 S.Ct. at 2608.

In Georgia, we have considered what will render a capital sentencing trial fundamentally unfair. The state may not offer evidence which would result in the imposition of the death penalty due to "passion, prejudice, or any other arbitrary factor." OCGA § 17-10-35(c)(1). This statutory provision supports the mandate of the Georgia Constitution that "[n]o person shall be deprived of life ... without due process of law." 1983 Georgia Constitution, Art. I, Sec. I, Par. I. Construing these provisions, this court has held that "the 'passion' proscribed by our law does not encompass all emotion, but only that engendered by prejudice, particularly racial prejudice ... or [prejudice towards] religious preference," or other arbitrary factors. Conner v. State, 251 Ga. 113, 121, 303 S.E.2d 266 (1983). Additionally, we have held that it would be constitutionally impermissible for a jury to base its death penalty recommendation on the victim's class or wealth. Ingram v. State, 253 Ga. 622, 634, 323 S.E.2d 801 (1984). See also 1983 Georgia Constitution, Art. I, Sec. I, Par. XXV. ⁵ Clearly, some evidence which would fall within the broad parameters of OCGA § 17-10-1.2 could also reflect on those factors which this court and our state legislature have already found constitutionally irrelevant to death penalty sentencing. Indeed, even some legitimate victim impact evidence could inflame or unduly prejudice a jury if admitted in excess.

(c) Having recognized that under some circumstances victim impact evidence has the potential to render a death penalty sentence constitutionally infirm, we nevertheless uphold the constitutionality of § 17-10-1.2. We do so because our legislature has employed sufficient safeguards within the statute to ensure that victim impact evidence will not be admitted which reflects on factors which this court has found constitutionally irrelevant to death penalty sentencing, and which could result in the arbitrary and unconstitutional imposition of the death penalty. As precautionary measures, for example, the statute gives a trial court the discretion to exclude victim impact evidence altogether, § 17-10-1.2(a)(1), limits evidence related to the impact of the offense upon the victim's family or community to that which is inquired of by the court, § 17-10-1.2(b)(6), and states that victim impact evidence "shall be permitted only in such a manner and to such a degree as not to inflame or unduly prejudice the jury," § 17-10-1.2(a)(1). ⁶ Obviously, victim impact evidence relating to constitutionally impermissible factors would "unduly prejudice" a jury. Thus, a trial court would abuse the unusually broad discretion granted by the statute by admitting such evidence. Because of the safeguards included in the statute, and because we presume that trial courts will follow the dictates of the statute in not admitting inflammatory or unduly prejudicial evidence, we affirm the trial court's holding that the statute, as written, ⁷ does not violate the Georgia Constitution.

(d) To help ensure that victim impact evidence does not result in the arbitrary imposition of the death penalty, we hold that the trial court must hear and rule prior to trial on the admissibility of victim impact evidence sought to be offered. This will, of course, necessitate that the state notify the defendant of victim impact evidence which it intends to offer, and will require the trial court to notify the defendant of the questions, if any, it intends to ask of the state's prospective witnesses at least ten days prior to trial. At the conclusion of the guilt-innocence phase of the trial, the trial court may reconsider any pre-trial decision regarding the admissibility of victim impact evidence.

(e) Livingston argues that because the crimes with which he is charged were committed prior to the effective date of OCGA § 17-10-1.2, application of the statute to his case constitutes an ex post facto law in violation of 1983 Georgia Constitution, Art. I, Sec. I, Par. X. We do not agree. OCGA § 17-10-1.2 modified the scope of evidence which may be offered at a sentencing trial in a death penalty case. It did not affect the manner or degree of punishment, and, as construed by the court, did not alter any substantive rights conferred on Livingston by law. As such, it is not an unconstitutional ex post facto law. Todd v. State, 228 Ga. 746, 187 S.E.2d 831 (1972).

2. For the reasons expressed in Division 5 of this court's opinion in Rower v. State, 264 Ga. 323, 443 S.E.2d 839 (1994), we affirm the trial court's denial of the state's discovery demand based on its decision that the state is not entitled to discover from the defendant that which the defendant would not be entitled to discover from the state, see OCGA § 17-7-211.

3. Livingston contends that the trial court erred in denying his motion for a separate trial, before his trial on guilt or innocence, to address his allegation that he is mentally retarded. However, we find no error because the legislature has provided that the jury in a capital trial determines "at the time of the trial on guilt or innocence" whether the defendant is mentally retarded. Fleming v. Zant, 259 Ga. 687, 688, 386 S.E.2d 339 (1989); OCGA § 17-7-131(j).

Livingston argues that because the issue of mental retardation relates "solely" to his "eligibility for a death sentence," it must be considered apart from issues and evidence relating to guilt or innocence to avoid prejudicing the jury. However, we have held that evidence relating to the crime charged "may be highly probative of [a defendant's] mental abilities and materially relevant to the question of whether or not he is mentally retarded." Zant v. Foster, 261 Ga. 450, 451-52, 406 S.E.2d 74 (1991) (overruled on other grounds in State v. Patillo, 262 Ga. 259, 261, n. 1, 417 S.E.2d 139 (1992)).

We find no merit in Livingston's related attacks on OCGA § 17-7-131. While there may be advantages to a criminal defendant in having a trial apart from the guilt-innocence phase on the issue of mental retardation, such a change must come from the General Assembly.

S94A0279. JOHN MARK...