Smith v. State

• Decision Date: 06 April 1982
• Docket Number: No. 38247,38247
• Citation: 249 Ga. 228,290 S.E.2d 43
• Parties: SMITH v. The STATE.
• Court: Georgia Supreme Court

Page 43

290 S.E.2d 43

249 Ga. 228

SMITH v. The STATE.

No. 38247.

Supreme Court of Georgia.

April 6, 1982.

[249 Ga. 235] Floyd W. Keeble, Jr., Royston, for William Alvin Smith.

J. Cleve Miller, Dist. Atty., Elberton, Michael J. Bowers, Atty. Gen., for the State.

WELTNER, Justice.

The defendant was convicted of armed robbery and murder of 82 year-old Daniel Turner. The jury returned a finding that the murder was outrageously and wantonly vile, horrible and inhuman in that the murder involved torture, depravity of mind and aggravated battery to the victim, and recommended that the defendant be sentenced to death. The trial court then sentenced the defendant to death for murder, and life imprisonment for the armed robbery.

1. In his first enumeration of error Smith contends that the trial court erred in admitting in evidence two black-and-white photographs of the victim. The two photographs showing the numerous stab wounds and head injuries received by the victim, one frontal and one rear view, cannot be said to be repetitious and cumulative. The state complied with our suggestion in Florence v. State, 243 Ga. 738, 741 (fn. 1), 256 S.E.2d 467 (1979). The photographs were relevant in that they depicted the location and nature of the wounds received by the victim and corroborated the confession of the defendant. Davis v. State, 242 Ga. 901, 252 S.E.2d 443 (1979); Brooks v. State, 244 Ga. 574, 261 S.E.2d 379 (1979); Cobb v. State, 244 Ga. 344, 260 S.E.2d 60 (1979); Franklin v. State, 245 Ga. 141, 263 S.E.2d 666 (1980); Fair v. State, 245 Ga. 868, 268 S.E.2d 316 (1980); Dick v. State, 246 Ga. 697, 273 S.E.2d 124 (1980). We find no merit in this enumeration of error.

Smith further complains that by admitting the photographs, the jury was given the opportunity to make a decision as to the cause of death. The defendant overlooks the fact that this is the ultimate fact facing the jury in any murder trial--death at the hand of the defendant.

2. In his second and third enumerations of error, Smith contends that the trial court erred in not defining the term "mitigating" and in not specifying the mitigating circumstances offered by him.

In Potts v. State, 241 Ga. 67, 86(16), 243 S.E.2d 510 (1978), this court held: "Under Georgia law, mitigating circumstances are not required to be singled out in the charge. Thomas v. State, 240 Ga. 393, 401, 242 S.E.2d 1 (1977)"; and in Collier v. State, 244 Ga. 553, 568-9(12), 261 S.E.2d 364 (1979), the court held: "The trial court charged that the jury was to 'consider all the evidence submitted in both phases of the trial in arriving at your verdict, including any and all evidence of mitigating circumstances.' It is not required that specific mitigating circumstances be singled out by the court in giving its instructions to the jury. [citations omitted] To influence the jury by use of examples may limit their discretion to consider other matters in addition to the examples given. A charge such as the one requested may influence the jury either to weigh mitigation against aggravation or to limit their consideration to whether mitigating circumstances exist. Under our statute the jury may recommend a life sentence even though no mitigating circumstances are found." Accord Stevens v. State, 247 Ga. 698(18), 278 S.E.2d 398 (1981).

The charge concerning mitigation was not improper, nor was it subject to the deficiencies discussed in Spivey v. Zant, 661 F.2d 464 (5th Cir. 1981). The triers of fact were not limited in what they might consider in mitigation. Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). Mitigation being a word of common meaning and understanding, it is not error to fail to define it. Cape v. State, 246 Ga. 520, 272 S.E.2d 487 (1980).

3. Smith's fifth enumeration of error asserts that the trial court erred in instructing the jury to disregard an emotional outcry by Smith's mother during the sentencing phase of the trial.

The transcript reflects the following events during examination of Smith's mother by his counsel:

"MRS. SMITH: I'm begging y'all. Please don't take him away from me. (Witness crying). Punish him, yes, but don't kill him.

"MR. KEEBLE: Miss Mary, please compose yourself. All right? Just answer [the District Attorney's] questions."

The District Attorney then cross-examined Mrs. Smith, asking but seven questions, whereupon the witness was dismissed, and another witness was called on behalf of Smith. It was at this point that the court stated to the jury: "Ladies and gentlemen of the jury, I believe this is a serious matter, but I will ask you to please disregard the emotional outbreak. It has no part in this trial. We're here to decide this matter--you are--from the evidence and the law, and you decide it from that."

No objection was made to this instruction and we cannot say that the trial court abused its discretion in so instructing the jury. Messer v. State, 247 Ga. 316, 324(6), 276 S.E.2d 15 (1981), and cases cited. It is apparent that the trial judge's ruling was not an impermissible comment on the evidence. See High v. State, 247 Ga. 289, 276 S.E.2d 5 (1981).

4. In his sixth and seventh enumerations, Smith contends that both the death penalty statute and the Georgia Unified Appeal procedures are unconstitutional, both as constituted, and as applied in this case. "This court and the Supreme Court of the United States have upheld the constitutionality of the Georgia death penalty statute in a number of cases, and the appellant has advanced no new reason for us to reconsider our position. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Legare v. State, 243 Ga. 744, 257 S.E.2d 247 (1979)." Stevens v. State, supra 247 Ga. at 707, 278 S.E.2d 398.

Smith avers that the statutes have been applied in fact in an arbitrary and capricious manner. He points to no facts which support this conclusion. The same attack has been raised before and decided adversely to Smith's position. McCorquodale v. Balkcom, 525 F.Supp. 408, 525 F.Supp. 431 (N.D.Ga.1981).

This court has also upheld the constitutionality of the Unified Appeal procedure in Sliger v. State, 248 Ga. 316, 282 S.E.2d 291 5. We have studied the entire record of this case, and turn now to two matters which are not addressed in the enumeration of error.

                (1981), cert. denied, 455 U.S. 945, 102 S.Ct. 1442, 72 L.Ed.2d ---- (1982).  Certainly, to determine at a state in the proceeding when a remedy might be provided whether a client is satisfied with his attorney's handling of his case is not invading the attorney-client relationship, as urged upon us by Smith.  Neither does that determination call into [249 Ga. 231] question the "judgment of the accused's counsel."   Similar procedures are used to determine competency of counsel when guilty pleas are tendered, Fair v. State, 245 Ga. 868, 268 S.E.2d 316 (1980);  and, it cannot seriously be argued that these procedures, which are designed to protect the rights of a defendant, violate the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States
                

The trial court charged on insanity as follows: "Thus, if you find the defendant did not have reasonable sufficiency to distinguish between right and wrong because of mental disease, injury or congenital deficiency, and [emphasis supplied] that he acted as he did because of delusional compulsion, as I have instructed you, at the time the commission of such alleged offense, that would be an end of your consideration of this case and you would stop at that point and enter a verdict that would reflect your findings. And the form of that verdict would be, 'We, the jury, find the defendant not guilty by reason of insanity.' "

It is possible that the use of the conjunction "and" might be understood by the jury to imply that a verdict of not guilty by reason of insanity would require both an inability to distinguish right and wrong and delusional compulsion.

We have reviewed the record in this case relative to any evidence of insanity which could support a finding of not guilty by reason of insanity. The most the evidence shows is that Smith had a low IQ, possibly equivalent to that of an eleven year-old child. There is a vast difference between low intelligence and an inability to distinguish between right and wrong. Indeed, the psychiatric testimony in the case indicates that 10% of the adult population has an intelligence level not greater than Smith's.

In final argument, Smith's counsel addressed the question of insanity as follows: "And [the judge] will charge you, I would expect, that you are to consider in your deliberations, taking your experience into that jury room, that you are to consider the absolute senselessness of the act. I will say to you the absolutely bizarre, totally senseless taking of Mr. Dan's life. You can consider that, ladies and gentlemen, in your deliberation. And, in that event, you would be authorized, if you so found, that because of the very nature of the act and the other evidence that has been presented to you, and I submit to you his IQ level, that he was insane at the time he did it. He just went beserk. No planning was involved in this thing. Certainly there's no logic to it, any way you can look at it. So I submit to you, ladies and gentlemen, that we're talking about a ten or eleven year-old child...." There being no evidence, and no suggestion by counsel, of an inability to distinguish between right and wrong or of acts which were the consequence of an insane delusion, any want of precision in the charge relative to these two principles is at most harmless error. Lively v. State, 178 Ga. 693(12), 173 S.E. 836 (1934); Reece v. State, 212 Ga. 609, 94 S.E.2d 723 (1956); Woods v. State, 214 Ga. 546, 105 S.E.2d 896 (1958).

We note, also, that the court submitted to the jury a prepared verdict in the form as follows:

"VERDICT

COUNT I: 'We, the jury, find the defendant (guilty-not guilty) of murder.'

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