Spivey v. State, 40781

CourtSupreme Court of Georgia
Citation319 S.E.2d 420,253 Ga. 187
Docket NumberNo. 40781,40781
PartiesSPIVEY v. The STATE.
Decision Date02 July 1984

William J. Smith, Dist. Atty., Columbus, Douglas C. Pullen, Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., Dennis R. Dunn, for the State.

WELTNER, Justice.

This is a death penalty case, here on direct appeal and for review pursuant to the Unified Appeal Procedure and OCGA § 17-10-35 (Code Ann. § 27-2537). Appellant, Ronald Spivey, was convicted in Muscogee Superior Court of the murder and armed robbery of Billy Watson, the kidnapping and armed robbery of Mary Davidson, and the aggravated assaults on Buddy Allen and Jeff Arrington. These crimes all occurred in December 1976 at a shopping mall in Columbus, Georgia, a few hours after Spivey had murdered a man in Macon, Georgia.

We first encountered this case six years ago when on direct appeal we affirmed Spivey's various convictions and death sentence. Spivey v. State, 241 Ga. 477, 246 S.E.2d 288 (1978). Spivey obtained federal habeas relief (Spivey v. Zant, 683 F.2d 881 (5th Cir.1982) and Spivey v. Zant, 661 F.2d 464 (5th Cir.1982)) which resulted in the

return of the case to Muscogee Superior Court for retrial on the issues of guilt and sentence. The case was retried in November 1983, not quite seven years after the crimes were committed.


The factual elements of the case are essentially undisputed.

Billy Watson, a Columbus police officer, was employed as a security guard at Brer Rabbit's, a restaurant in Peachtree Mall directly across the hall from the Final Approach Lounge.

Shortly after 2:00 a.m. on December 28, 1976, Watson noticed that the door to the Final Approach was still open. He and Brer Rabbit's manager, Buddy Allen, decided to walk over and investigate, as they knew that the doorway should have been closed at 2:00 a.m. They entered the lounge, which was empty, and proceeded towards the bar, where they heard voices. As they approached the doorway to the bar, Ronald Spivey shot Watson twice, killing him. Spivey then shot Allen two or three times.

Spivey, who had just robbed two waitresses and a customer of approximately $400, herded his three hostages out of the Final Approach, taking Watson's gun as they left. When they reached the door, Allen groaned. Spivey turned and shot him again.

Spivey took his hostages outside the mall to the parking lot, demanding that someone furnish him a car. Meanwhile, Allen got up and proceeded to Brer Rabbit's in an effort to get help. Spivey followed him, and then fired several times into the restaurant. One bullet struck a bartender in the hip. Spivey then took the remaining hostage, Mary Davidson, to his car and they proceeded to Alabama, where he was arrested and she was released.


1. In his sixth enumeration of error, Spivey contends the evidence is insufficient to support the verdicts. We note that although he pleaded not guilty, his basic contention at trial was that he was guilty but mentally ill. The evidence amply supports a finding that Spivey committed the crimes charged, and a rational trier of fact could have found from the evidence presented that Spivey failed to establish mental illness, as defined by OCGA § 17-7-131(a)(2). Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), Brown v. State, 250 Ga. 66(2), 295 S.E.2d 727 (1982).

2. In his fifth enumeration, Spivey complains of the court's charge that if the jury believed "beyond a reasonable doubt under the evidence and the court's instructions that the defendant is guilty and was mentally ill at the time of the commission of the offense," then the jury would be authorized to find Spivey guilty but mentally ill. Spivey contends that, as it was he and not the state urging the jury to return a verdict of guilty but mentally ill, the charge as given was unconstitutionally burden-shifting. We disagree.

OCGA § 17-7-131(c)(2) provides that a defendant may be found guilty but mentally ill if the jury "finds beyond a reasonable doubt that the defendant is guilty of the crime charged and was mentally ill or mentally retarded at the time of the commission of the crime." The court's charge was consistent with Georgia law. We note that the standard of proof established by Georgia law is consistent with guilty but mentally ill provisions of other states, including Michigan, which first formulated such form of verdict in 1975. See People v. Booth, 414 Mich. 343, 324 N.W.2d 741, 744 (1982); Mich.Stat.Ann. § 28.1059(1) [M.C.L.A. § 768.36]. See also Ill.Rev.Stat. Ch. 38 § 115-3(c).

A state may constitutionally require a criminal defendant to prove his insanity defense beyond a reasonable doubt. Rivera v. Delaware, 429 U.S. 877, 97 S.Ct. 226, 50 L.Ed.2d 160 (1976); Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952). In Georgia, proof of sanity is not an element of the prosecution's case and the defendant bears the 3. In his first four enumerations of error, Spivey contends that for a variety of reasons, the district attorney's closing argument at the guilt phase of trial was improper, violating Georgia law as well as federal due process.

burden of persuasion on that issue. Brown v. State, supra. It is equally clear that mental illness is not an element of the underlying offense. Instead, the guilty but mentally ill verdict allows for accommodation to the mental health needs of those defendants who are guilty, but have a mental disorder which falls short of insanity under OCGA § 16-3-2. The statutory provision that such mental illness be proved beyond a reasonable doubt is not constitutionally infirm. Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977).

(a) It is clear from the transcript of the proceedings below that the disputed issue in the case was not whether Spivey was guilty or not guilty, but whether he was guilty, or guilty but mentally ill. The prosecutor was not required to accede to Spivey's contention that he was guilty but mentally ill, nor was he precluded from arguing vigorously his position that Spivey was guilty. The prosecutor was entitled to emphasize the evidence favorable to his contention, to discuss and draw inferences from factual matters in evidence relating to the credibility of witnesses, and to respond to points made in--and issues omitted from--the defendant's closing argument. Conner v. State, 251 Ga. 113(6), 303 S.E.2d 266 (1983).

Spivey contends that the prosecutor misstated the law regarding the verdict of guilty but mentally ill.

During the district attorney's concluding argument the following transpired:

[The district attorney] "And let me make the position of the State of Georgia, whom I represent, clear in this case from this moment forward. And that is this. The verdict of guilty but mentally ill is the same as a not guilty verdict. On behalf of these victims"

[Defense counsel] "Your Honor, that's a misstatement of the law and it misleads the jury. And I never interrupt during a closing argument, but, Your Honor, that is a misstatement of the law."

[The court] "The court will give the law."

[The district attorney] "Thank you."

[Defense counsel] "I apologize for interrupting, Your Honor, and I apologize to Mr. Smith."

[The district attorney] "In the eyes of these victims, members of the jury, I submit they are synonymous, one and the same. Of course, they're separate verdicts. Of course they are. You're going to be given four potential verdicts. And I submit to you in the eyes of the prosecution and the eyes of the victims, they're one and the same."

The jury was sworn to "render a verdict according to the law and the evidence...." In response to the defense objection to the state's closing argument, the court instructed the jury that the court would give the law. The defendant did not move for a mistrial. We find no reversible error.

(b) Spivey makes further complaints about the prosecutor's guilt-phase argument. 1 However, as these complaints were not timely raised at trial, we do not address them except as noted in Division 4, infra. Mincey v. State, 251 Ga. 255(14), 304 S.E.2d 882 (1983).

4. In his seventh enumeration, Spivey contends that the district attorney's closing argument at the sentencing phase, independently and in combination with his closing argument at the guilt phase, violated due process by encouraging the jury to impose the death penalty on the basis of arbitrary factors.

At trial, Spivey objected to two portions of the prosecutor's closing argument, both of which related to observations concerning the purposes of punishment. In the first instance, the prosecutor argued that the protection of the public, by the substitution of legal process for personal revenge and retaliation, was one of the legitimate purposes of criminal punishment, and that the purpose could be achieved only so long as the public had confidence and faith that the system worked.

Later, after discussing rehabilitation as a goal of punishment, the prosecutor stated that "[Spivey], as proved to you through our evidence and through his own witnesses' testimony over and over that either he cannot or he will not live under the rules of our society which allow you and me to live and work and raise our families and be free and safe from individuals like this."

We find nothing improper in either argument. Conner v. State, supra; Horton v. State, 249 Ga. 871, 295 S.E.2d 281 (1982). See also, Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949).

On appeal, Spivey for the first time complains of additional portions of the prosecutor's closing argument, which he contends involved such egregious misconduct as to deny him fundamental fairness, and thus due process.

We note, first, that it is generally true that "[...

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