Raymond Burgess, 38, was
sentenced to death on Feb. 25, 1992, in Douglas County. During a robbery
spree with co-defendant Norris Young.
Mr. Burgess shot and killed Liston
Chunn, 44, eight months after he was paroled from a life sentence for
another robbery-killing. Mr. Burgess was also convicted in 1977 of armed
robbery and sexual assault.
Mr. Young was sentenced to life in prison.
Mr. Burgess' state appeal challenging the fairness of his trial has been
pending since August 1995.
Murder. Fulton Superior Court. Before Judge McKenzie.
In October, 1978, appellant Raymond Burgess, Michael Dixon,
Michael Anthony Booker and Terri Jean Jones were indicted in
Fulton County for the murder of Danny Earl Cotton. Burgess
and Jones were tried jointly; both were found guilty of
felony murder and received life sentences.
The evidence showed that the four co-indictees were together
on the night of September 27, 1978, in Atlanta in a car
borrowed by Burgess. They drove to Decatur to Michael
Dixon's home and then decided to drive to Macon. They
proceeded toward Macon but stopped at a motel in Henry
County where the three men entered a motel room and robbed
the occupants of money and a pistol.
They left the motel and proceeded to drive along I-285,
where they picked up a young man walking home along the
expressway. He testified that he sat in the back with
Burgess and Jones
3 and that the
driver and the passenger in the front seat asked him a
number of questions about service stations, i.e., which ones
in the area were open late and at which the attendants were
armed. After he got out of the car, the four co-indictees
proceeded to the Union 76 gas station at Paces Ferry Road.
There the three men, one of whom brandished a pistol, robbed
the attendant, Danny Earl Cotton, and a friend who was
visiting him, and then forced Cotton to open a floor safe.
They then drove away from the area, taking Cotton and his
friend with them. They proceeded to the Bankhead Court
apartments where all four co-indictees got out of the car;
the murder victim, Danny Earl Cotton, and his friend also
got out and were ordered to run for some nearby woods. As
they ran, shots were fired and Danny Earl Cotton was fatally
1. Defendant's first enumeration of error, that the evidence
is insufficient to support the verdict, is without merit:
His enumerations that the trial court erred in not granting
his motions for a directed verdict made at the close of the
state's case and at the close of the evidence, are also
without merit. Mitchell v. State,
251 (4) (223 SE2d 650) (1976).
2. Defendant's second enumeration of error is that the trial
court erred in admitting his confession because it was not
voluntarily given. Pursuant to Jackson v. Denno, 378 U. S.
368 (84 SC 1774, 12 LE2d 908) (1964), the trial court
conducted a hearing on this issue outside of the jury's
presence and determined that the confession was voluntarily
given before allowing it to be presented to the jury. The
evidence presented by the state supported his determination.
This enumeration is without merit.
3. Defendant enumerates as error the trial court's denial of
his motion to suppress his identification by one of the
victims of the motel robbery. Defendant argues that this
identification was tainted by the fact that the victim
attended a lineup held outside of the presence of
defendant's attorney. This, however, was a pre-indictment
lineup, and there is no evidence of any abuse of the
identification procedures. There is no merit in this
enumeration. Kirby v. Illinois, 406 U. S. 682 (92 SC 1877,
32 LE2d 411) (1972); Mitchell v. State,
251 (2), supra.
4. Defendant contends that photographs of the victim's body
should not have been admitted because they were not properly
authenticated and because their prejudicial effect
outweighed their probative value. The truth and accuracy of
the photographs was testified to by three witnesses: a woman
who heard the shots and discovered the body; a police
officer called to the scene; and the victim's companion.
The pictures were all taken at the scene. There is no merit
in this enumeration. Davis v. State,
763 (6) (243 SE2d 12) (1978).
5. In enumerations 5 and 7, defendant contends that the
admission of evidence concerning the motel robbery was error
in that this evidence was not admissible because it related
to an independent crime and its prejudicial impact
outweighed its relevance. Payne v. State,
294, 312 (210
SE2d 775) (1974); Hunt v. State,
329 (211 SE2d 288) (1974). The defendant was
clearly identified as a perpetrator of that crime by the
victims, and although the two armed robberies varied in that
one occurred at a motel and the other at a filling station,
they were closely connected in time and involved the same
perpetrators. We find no reversible error in the admission
of the evidence of the motel robbery. French v. State,
620 (229 SE2d 410) (1976); Clemson v. State,
357 (3) (236 SE2d 663) (1977); Woods v. State,
265 (7) (239 SE2d 786) (1977).
6. There is no merit in defendant's contention that the
trial court abused its discretion in allowing the prosecutor
to lead one of the state's witnesses, the alleged
triggerman, Michael Dixon. Code Ann. 38-1706.
7. Defendant's ninth enumeration of error is that the trial
court erred in overruling his objection to the prosecutor's
question on cross: "Didn't you drive the getaway car after
Danny Cotton was killed?" Defendant contends that the use of
the word "getaway" was inflammatory and highly prejudicial
in that it implied that a crime had been committed by the
defendant. Such implication was supported by the evidence
and there is no merit in this contention.
Arline S. Kerman, for appellant.
Dixon, the alleged trigger man, pled guilty to murder.
Michael Anthony Booker was tried by a jury, convicted of
felony murders and sentenced to life imprisonment. The
appeal by Booker appears at Booker v. State,
Ga. 773 (1979); Jones' appeal appears at
Jones v. State, 242 Ga. 892,
2 There is
some evidence suggesting an attempted rape occurred
during this incident.
to statements by Burgess and Jones, Burgess was driving
at this time and for the rest of the evening.
witness was shown only one of the five photographs of
SUBMITTED SEPTEMBER 15, 1978 -- DECIDED JANUARY 4, 1979 --
REHEARING DENIED JANUARY 23, 1979.
(264 Ga. 777)
(450 SE2d 680)
Murder. Douglas Superior Court. Before Judge James.
1. The jury was authorized to find that, on July
16, 1990, appellant and his co-defendant, Norris Young, first
approached Laura and Randall Nuttle as they were entering their room
at the Best Western Motel in Douglas County. As Young attempted to
engage the Nuttles in conversation, appellant forced his way into
their room. Appellant was armed with a gold-plated revolver.
Appellant and Young made the Nuttles lie down on the bed, tied them
up, and then began rummaging through their personal belongings.
The Nuttles testified that the two men were
African-American and that one of the men was taller with longer
curly hair and carried no weapon, while the other, who displayed the
gold-plated revolver, wore a baseball cap and had a gold front tooth.
Laura Nuttle testified that, when she heard voices outside the motel
room, the man with the revolver left, but the taller man remained in
The Nuttles also testified that, when they
subsequently heard two shots fired, the man in their room left.
Laura Nuttle identified Young as the man who stayed in their room
until the shots were fired. Neither of the Nuttles was able to make
a positive identification of appellant as Young's accomplice.
However, jewelry recovered from appellant's home was determined to
belong to Laura Nuttle and appellant's fingerprints were found on a
credit card taken from Randall Nuttle.
Regina Thomas, the fiancee of the murder victim,
Liston Chunn, testified that, on July 16, 1990, she and Chunn were
staying with her children in the same Best Western Motel. That
evening, she noticed two African-American men standing in the
doorway of the room next to hers. One of the men came over and
forced his way into her room with a gold-plated revolver. Her two
children were sent to the bathroom. The man told Thomas and Chunn to
lie on the floor, but Chunn did not do so.
Thomas testified that the gunman shot Chunn after
Chunn failed to follow the gunman's order to remove his hand from
the pocket of his pants. After the fatal shot was fired, Thomas
heard a second person tell the gunman to get out of the room. Thomas
further testified that Chunn had a soft drink cup which spilled when
the shots were fired. She stated that Chunn "may have thrown" the
cup, but that she "was never able to realize the sequence, whether
he threw it at the shooter or if he dropped it when he was shot."
While Thomas was not able to identify the gunman, her son picked
appellant out of a lineup.
A repairman working at the motel noted the
license number of a Volvo speeding away after he heard screaming.
The vehicle's registration showed appellant's address. Janice
Burgess, wife of appellant, testified that appellant had given her a
diamond ring on the night that the crimes had been committed. It was
determined that this ring had been taken from Laura Nuttles. Janice
Burgess also testified that appellant had a gold tooth which he
sometimes wore. In addition to items taken during various robberies,
a gold-plated revolver was found in a search of appellant's home. A
firearms expert from the GBI Crime Laboratory testified that the
bullet which killed Chunn had been fired from this weapon.
Young told the police appellant had confided that
he shot Chunn and had done so because Chunn "was reaching for
something." Appellant, who had been paroled from a life sentence for
murder only eight months previously, admitted participating in the
armed robberies, but denied being the triggerman.
In addition to this evidence of the crimes
committed on July 16, 1990, the State also offered evidence to show
that, several days prior thereto, two African-American men had
forced their way into Linda Pfeifer's La Quinta Inn room in College
Park. One man held a gold-plated gun to her head and demanded money.
The robbery was thwarted when her husband and children returned to
the room. Her husband had been shot as the men fled, but he was able
to see them drive away in a tan Volvo. Appellant was identified from
a photo array as one of the robbers.
During the same period of time, a similar robbery
involving two African-American men and a gold-plated revolver took
place at the Days Inn in Clayton County. Appellant was placed at the
scene of this crime by a Days Inn employee who identified him as
someone who had been seeking information about a guest at the time
of the robbery.
Approximately two weeks prior to July 16, 1990,
Billy McNutt was robbed at a Days Inn in DeKalb County by two
African-American men, one of whom threatened him with a "yellow" gun.
A watch taken from McNutt was later recovered from appellant.
From this evidence, a rational trier of fact
could have found appellant guilty of the crimes charged beyond a
reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61
LE2d 560) (1979).
2. Appellant made a motion for funds to hire an
expert on jury composition. This expert was to determine whether
African-Americans were underrepresented on the grand and traverse
juries. The denial of this motion is enumerated as error.
The record shows that there was only a 3.4
percent racial disparity as to the grand jury and a zero percent
racial disparity as to the traverse jury. Such disparities would be
sufficient to withstand any attack that might be made. Cook v. State,
255 Ga. 565, 570 (11) (340
SE2d 843) (1986); Unified Appeal Procedure, Rule II (A) (6).
Therefore, appellant has not shown a reasonable probability that the
denial of his motion rendered his trial unfair. Isaacs v. State,
259 Ga. 717, 725 (12) (c) (386
SE2d 316) (1989); Crawford v. State,
257 Ga. 681, 686 (5) (362
SE2d 201) (1987).
3. Appellant urges that inquiry into the issue of
his parole eligibility was erroneously restricted on voir dire.
The record shows that, on voir dire, appellant
was allowed great latitude to pose questions regarding parole, even
though such questioning generally is not permitted. Davis v. State,
263 Ga. 5, 7 (7) (426
SE2d 844) (1993). Further, this court has repeatedly held
that in cases, such as this, wherein OCGA
17-10-31.1 (d) is inapplicable, the issue of a defendant's
parole eligibility is an inappropriate matter for jury consideration.
Quick v. State, 256 Ga. 780, 785
(9) (353 SE2d 497) (1987); Thornton
v. State, 264 Ga. 563 (449 SE2d 98) (1994).
Thus, a prospective juror's personal views regarding the meaning of
a life sentence or parole eligibility are extraneous to his or her
ability to serve as a juror, unless it can be shown that those views
would seriously impair the juror's performance of his or her duties.
Appellant has made no such showing with regard to any of the
prospective jurors in this case.
4. In an interracial capital crime, it is
permissible to inform the prospective jurors of the victim's race in
order to question them about racial bias. Legare v. State,
256 Ga. 302, 303 (1) (348
SE2d 881) (1986). Thus, it was not error to inform the
prospective jurors that some of the victims in this case were white.
5. Appellant urges that the trial court erred in
refusing to strike certain potential jurors for cause based upon
their alleged racial bias.
A criminal defendant certainly has a right to
explore issues of racial bias during voir dire, thereby enabling him
to use his peremptory strikes to remove suspected biased members of
the panel. Legare v. State, supra at 303 (1). See also Georgia v.
McCollum, 505 U. S. ---- (112 SC 2348, 2358, 120 LE2d 33) (1992).
However, appellant has not cited any authority for the proposition
that prospective jurors are required to be stricken for cause absent
a showing that they otherwise are unqualified to serve. No such
showing was made here.
6. Appellant urges that the trial court erred in
refusing to strike certain potential jurors for cause based upon
their alleged bias in favor of the death penalty.
While there may have been some initial
equivocation in the answers of the contested potential jurors, the
record nevertheless supports the trial court's ultimate
determination that, based upon the answers to subsequent questions,
each was capable of serving as an impartial juror and would weigh
evidence in mitigation and seriously consider the option of a life
sentence. Wainwright v. Witt, 469 U. S. 412 (105 SC 844, 83 LE2d
841) (1985); Ledford v. State, 264 Ga. 60,
64 (6) (b) (439 SE2d 917) (1994).
7. Appellant urges that the trial court erred in
refusing to strike certain prospective jurors for cause based upon
their alleged bias against the return of a verdict of "guilty but
Again, there may have been some initial
equivocation in the answers of the contested potential jurors.
However, the record supports the trial court's ultimate
determination that, based upon the answers to subsequent questions,
each was capable of serving as an impartial juror. A trial court's
determination of a potential juror's ability to serve is not limited
to the juror's opinion of his own impartiality. Lively v. State,
262 Ga. 510 (1) (421 SE2d 528) (1992).
8. During voir dire, a prospective juror stated
that his wife had been a desk clerk at the motel at the time of the
crimes and had since become a manager. Appellant urges that the
trial court erred in refusing to strike this prospective juror for
cause, on the ground that he was "so near of kin to the . . . victim
as to disqualify him by law from serving on the jury." See OCGA
15-12-163 (b) (4).
While kinship to the victim may automatically
disqualify prospective jurors in a criminal case pursuant to OCGA
15-12-163 (b) (4), mere employment by
[one not the] actual victim . . . is not a per se disqualification.
. . ."
(Emphasis in original.) Willingham v. State,
198 Ga. App. 178, 179 (2) (401
SE2d 63) (1990). The motel was not itself a "victim" and the
employment of the spouse of a prospective juror by an entity which
is neither a victim nor a party to the case is not a ground for
automatic disqualification. Accordingly, the trial court did not err
in refusing to strike this prospective juror for cause.
9. Several enumerations of error relate to the
trial court's striking of certain potential jurors for cause based
upon their expression of opposition to imposing the death penalty.
The record shows that the trial court was
authorized to find that these potential jurors' views would prevent
them from considering a death sentence and thus impair them from
performing their duties as jurors. Wainwright v. Witt, supra at 424;
Hill v. State, 263 Ga. 37, 40 (6) (427
SE2d 770) (1993). Accordingly, there was no error. That
another trial court previously had found one of these prospective
jurors to be qualified to serve in a death penalty case does not
support appellant's contention that the trial court in this case was
not evenhanded in its treatment of death-qualification issues.
10. Three potential jurors on the initial panel
of forty-two were African-Americans. The State sought to strike all
three for cause on the ground that appellant had either arranged for
various persons to contact them or had contacted them himself. It is
undisputed that two of these potential jurors actually were
contacted and asked to "do right" by appellant if selected for jury
duty. The third, Barbara James, testified that she had not been
contacted by appellant. However, fellow inmates of appellant and a
girl friend of one of these inmates testified that they had assisted
appellant in arranging at least two three-way telephone
conversations in which a juror named "Barbara" was contacted. One
inmate testified that appellant himself had attempted to contact
Barbara James, but that her husband had answered the phone and hung
up on appellant.
On this evidence, the trial court granted the
State's motion to excuse Barbara James for cause, concluding that it
was necessary to do so out of an abundance of caution. The trial
court's decision to strike Barbara James for cause will not be
overturned absent a "manifest abuse of discretion." Taylor v. State,
243 Ga. 222, 224 (2) (253
SE2d 191) (1979). No such showing has been made here.
11. The State and appellant agreed that one of
the three prospective jurors who had been stricken because of
appellant's jury tampering would be replaced with the only other
African-American member of the venire, Morey Ellison. However, the
State ultimately used one of the six peremptory strikes that it
exercised to remove Ellison from the jury. After Ellison was
peremptorily stricken, appellant made an unsuccessful Batson motion.
On appeal, appellant urges the trial court erred
in denying his Batson motion because the reasons the State gave for
striking Ellison were pretextual and applied equally to white
prospective jurors whom the State did not strike. According to the
State, however, its reasons for striking Ellison had been racially-neutral:
his strong opposition to the death penalty and his inability to
state whether he could put aside preconceived notions about the
death penalty; his prior criminal charge of driving under the
influence of which he was acquitted; and, the fact that he had a
mentally retarded brother who died at the age of 21. Moreover,
Ellison was the only prospective juror who had all of these
characteristics. Smith v. State, 264 Ga. 449,
452 (3) (448 SE2d 179) (1994). Under
these circumstances, appellant has not supported his claim that the
State's reasons were pretextual. Rather, the record supports the
trial court's determination that a discriminatory purpose was not
involved in the State's use of a peremptory strike to remove Ellison.
Gamble v. State, 257 Ga. 325, 326 (4)
(357 SE2d 792) (1987).
12. The jurors were sequestered at a motel
located only a short distance from the motel in which the crimes
took place. Appellant concedes that the State instituted protective
measures to ensure that the jurors had minimal exposure to the crime
scene itself. He urges, however, that the jurors nevertheless must
have compared their housing situation to that of the victims in this
case, given their proximity to the crime scene.
The motel in which the jurors were sequestered
was the only motel in Douglas County other than the one in which the
crimes took place. Sequestration of the jury was required by OCGA
15-12-142. Since no alternative
housing options were available and neither impropriety nor prejudice
has been demonstrated, appellant has failed to show reversible error
based upon the site where the jurors were sequestered.
13. On appeal, appellant has not substantiated
his claim that the impartiality of his trial was impaired because
the bailiffs were permitted to wear their customary uniforms rather
than civilian clothing. Bennett v. State, 262
Ga. 149, 154 (13) (414 SE2d 218)
(1992). Compare Zant v. Gaddis, 247 Ga. 717,
718 (2) (279 SE2d 219) (1981).
14. Appellant urges that the trial court erred in
failing to provide to him, pursuant to his Brady motion, a police
sketch of the crime scene depicting the location of the cup which
the murder victim "may have thrown" at the gunman.
According to appellant, the police sketch would
have supported a finding that the murder victim had been making a
threatening gesture prior to being shot. However, appellant has
failed to demonstrate how the police sketch differed from
photographs of the crime scene depicting the location of the paper
cup or how his lack of access to the sketch deprived him of a fair
trial. Dennis v. State, 263 Ga. 257,
259 (5) (430 SE2d 742) (1993).
15. At the guilt-innocence phase, the State
offered into evidence an "Identikit" sketch of a man wearing
sunglasses who resembled appellant. In the trial court, appellant's
only objection to the admission of this evidence was that the
detective who identified the sketch was unauthorized to do so
because he had no knowledge of "Identikits." However, the detective
identified the sketch as one which had been made at his request by
another detective who was certified to do so. A witness who saw the
writing being made may testify to its genuineness. Martin v. State,
135 Ga. App. 4, 7 (3) (217
SE2d 312) (1975). Accordingly, the trial court did not err in
admitting the "Identikit" sketch over appellant's objection.
16. At the guilt-innocence phase, the trial court
permitted the State to offer evidence of appellant's attempts to
tamper with the jury selection process. Appellant urges that it was
error to admit this evidence for the jury's consideration.
The evidence related to whether, as the State
claimed, appellant has sufficient mental capacity to engage in an
attempt to manipulate the judicial system or whether, as appellant
claimed, he has "significantly subaverage general intellectual
functioning resulting in or associated with impairments in adaptive
behavior." OCGA 17-7-131 (a) (3). Thus,
the evidence was relevant to rebut appellant's claim that he was
mentally retarded. Evidence which is relevant and material to the
issues in the case is not rendered inadmissible merely because it
may have some prejudicial effect. See Simon v. State,
253 Ga. 681, 682 (2) (324
SE2d 455) (1985).
17. The trial court admitted into evidence during
the guilt-innocence phase certain crime scene and pre-autopsy
photographs of the murder victim, as well as a bloody shirt worn by
him. The trial court also admitted into evidence during the
sentencing phase a photograph of the murder victim whom appellant
had been convicted of murdering in 1978.
The photographs admitted in the guilt-innocence
phase were relevant to the issues and were properly admitted. Burgan
v. State, 258 Ga. 512, 514 (3) (371
SE2d 854) (1988). The murder victim's shirt was admissible to
illustrate the location of his wounds and to rebut appellant's claim
that he shot the victim in self-defense. Crozier v. State,
263 Ga. 866, 867 (2) (440
SE2d 635) (1994). The photograph of the earlier murder victim
was properly admitted in aggravation during the sentencing phase.
18. Appellant enumerates as error the admission
of evidence of his commission of a similar armed robbery in 1977.
A prior similar transaction generally cannot be
proved solely by introduction of a certified copy of the conviction.
Stephens v. State, 261 Ga. 467, 468
(6) (405 SE2d 483) (1991). A prior
similar transaction may not be proved solely by the uncorroborated
testimony of an accomplice. Hill v. State,
236 Ga. 831 (225 SE2d 281) (1976). In this case, however, the
State produced both the detailed testimony of appellant's accomplice
in the 1977 armed robbery and a certified copy of appellant's
conviction for that crime. Taken together, this evidence was
sufficient to render the 1977 armed robbery admissible as a prior
similar transaction. Stephens v. State, supra; Williams v. State,
261 Ga. 640, 642 (2) (c) (409
SE2d 649) (1991).
19. While testifying to the facts of the 1977
armed robbery, appellant's accomplice in that crime made reference
to appellant's commission of a sexual assault upon the female victim.
Appellant unsuccessfully objected to this testimony on the ground
that the State was attempting to introduce evidence of an unrelated
prior transaction of which he had not been given notice.
The record shows that appellant had sufficient
notice that the entire scope of events involved in the 1977 armed
robbery would be presented as a similar transaction so as to satisfy
the requirements of Williams v. State, supra. The State did not
offer evidence of the sexual assault upon the female victim of the
1977 armed robbery as a separate and distinct prior crime, but as
part of the events involved in the prior similar armed robbery.
There was no reversible error in the admission of this evidence.
20. During closing arguments in the guilt-innocence
phase, the prosecutor stated that
you ask yourself if you are nine months pregnant
and a black man comes in the room, puts a gold gun to your head and
says lay down, I'm going to tie you up. . . .
We disapprove of this argument, as the jurors
were thereby "invited to place themselves in the victim's place in
regard to the crime itself [Cit.]" Horne v. State,
192 Ga. App. 528, 529 (2) (385
SE2d 704) (1989). However, given the overwhelming evidence
against appellant, we conclude that it is highly probable this
statement did not contribute to the jury's verdict of guilt. Johnson
v. State, 238 Ga. 59 (230 SE2d 869) (1976).
See also Horne v. State, supra at 528 (2).
21. Several other enumerations of error relate to
the prosecutor's statements during his closing argument at the guilt-innocence
Appellant characterizes certain of the
prosecutor's statements as impermissible victim impact evidence.
There is considerable doubt whether statements made during the
closing argument of the guilt-innocence phase may ever constitute
victim impact evidence within the meaning of Sermons v. State,
262 Ga. 286, 288 (1) (417
SE2d 144) (1992). In any event, the record shows that
appellant did not object to the prosecutor's allegedly impermissible
statements. Moreover, there is no reasonable probability that the
prosecutor's statements had the effect of changing the result of the
trial. Todd v. State, 261 Ga. 766, 767
(2) (410 SE2d 725) (1991).
Likewise, appellant did not object to the
prosecutor's reference to the evidence that appellant previously had
been in the penitentiary and there is no reasonable probability that
this statement by the prosecutor changed the result of trial. Todd
v. State, supra.
22. During closing arguments in the guilt-innocence
phase, defense counsel suggested that the State had misrepresented
and, perhaps manufactured, evidence. In his responsive closing
argument, the prosecutor countered that this argument was "ludicrous"
and that the jury should examine the "credibility of the lawyer."
Given the context of this exchange, the prosecutor's remarks cannot
be characterized as an attempt to impute guilt to appellant by
impugning the character of his counsel. Fugitt v. State,
256 Ga. 292, 295 (1) (d) (348
SE2d 451) (1986).
Later in his closing argument, the prosecutor
stated that appellant's actions "involved some conning of some
lawyers, some conning of some lawyers in this courtroom. . . ."
Defense counsel made a motion for mistrial and the jury was sent to
the jury room. When the jury returned, the trial court denied the
motion for mistrial and instructed the jury that, during the
discussions which had occurred while they were out of the room, "nothing
came up . . . to indicate that the defendant's counsel gave
telephone numbers to anybody." When the prosecutor resumed his
argument, he explained to the jury that he was trying to make the
point that appellant was smart enough to find the potential jurors'
phone numbers "without the assistance of any lawyer."
The prosecutor's remarks in this exchange
likewise cannot be regarded as an attempt to impugn the integrity of
defense counsel, but, rather, as a comment on appellant's ability to
manipulate the judicial system. There was no error in denying the
motion for mistrial.
23. The trial court's charge at the guilt-innocence
phase accurately stated the statutory requirement that mental
retardation must be found beyond a reasonable doubt in order for the
jury to return a verdict of "guilty but mentally retarded." OCGA
17-7-131 (c) (3).
24. At the guilt-innocence phase, the trial court
charged that a verdict of "guilty but mentally retarded" would
result in appellant being "sentenced to prison for life as to the
murder charge." Subsequent to appellant's trial, we did hold that
such a charge should not be given. State v. Patillo,
262 Ga. 259, 260 (417
SE2d 139) (1992). However, the record shows that appellant
himself specifically requested that the trial court give the charge
in this case. Thus, the giving of the charge does not constitute
reversible error under the facts of this case.
25. Appellant requested an instruction regarding
the credibility of a witness who testifies under a grant of immunity.
The trial court correctly refused to give this instruction, since
there was no evidence before the jury that any witness had testified
under a grant of immunity.
26. Appellant contends that the trial court erred
in failing to give a requested instruction on voluntary manslaughter.
A trial court must give a written request to
charge on a lesser included offense if there is any evidence to
support it. State v. Alvarado, 260 Ga. 563,
564 (397 SE2d 550) (1990). In this
case, however, there was no evidence to authorize a charge on
voluntary manslaughter as a lesser included offense. The fact that
the murder victim "may have" tossed a soft drink cup in the
direction of appellant is, as a matter of law, insufficient to
create "serious provocation" which results in "a sudden, violent and
irresistible passion." OCGA 16-5-2.
27. Appellant urges that it was error to fail to
give a charge on self-defense.
Evidence that the murder victim refused to remove
his hand from his pants pocket upon request and possibly threw a
paper cup at appellant is not evidence of a confrontation between
the two men sufficient to support a charge on justification. OCGA
16-3-21. Compare Heard v. State,
261 Ga. 262 (3) (403 SE2d 438) (1991).
28. The trial court's charge adequately explained
the concept of reasonable doubt to the jury. Considering the charge
in its entirety, the trial court's use of the language "moral and
reasonable certainty" in defining the State's burden of proof did
not constitute reversible error. See Baldwin v. State,
264 Ga. 664 (449 SE2d 853) (1994);
Vance v. State, 262 Ga. 236, 237 (2) (416
SE2d 516) (1992). There is no reasonable likelihood that the
jury interpreted the charge as permitting a conviction on a lesser
standard of proof than is constitutionally required. Victor v.
Nebraska, 511 U. S. ____ (114 SC 1239, 127 LE2d 583) (1994).
29. As a young child, appellant was placed in the
custody of the Fulton County Department of Family and Children
Services (DFCS). Prior to trial, defense counsel subpoenaed all of
appellant's DFCS records so as to determine whether there was
evidence in mitigation of the sentence to be imposed. However, the
trial court conducted an in camera inspection of the entire DFCS
file pursuant to OCGA 49-5-41(a) (2)
and provided only a portion of the records to appellant. The
remainder of the records were sealed for review by this court.
Appellant urges that it was error to fail to provide him direct
access to the entirety of the DFCS file.
The trial court properly conducted an in camera
inspection of the file rather than providing it, in its entirety,
directly to appellant. OCGA 49-5-41
(a) (2). See also Stripling v. State, 261 Ga.
1, 6 (7) (401 SE2d 500) (1991).
A review of the sealed records which were not provided directly to
appellant shows the existence of certain information which might be
characterized as potentially mitigating and which, therefore, should
have been provided to him. Lockett v. Ohio, 438 U. S. 586, 604 (98
SC 2954, 57 LE2d 973) (1978); Spivey v. State,
241 Ga. 477, 479 (2) (246
SE2d 288) (1978). However, this information relates only to
facts regarding appellant's own personal childhood experiences and
not to such matters as might otherwise be unknown to him. Moreover,
the expert witnesses who testified in appellant's behalf were given
access to the entirety of the DFCS file. Even if appellant had been
given direct access to the information contained in the sealed
records, he suggests no use to which the information might have been
put other than as a basis for his experts' testimony for the defense.
Under these circumstances, any error in failing to allow appellant
himself to serve as the mere personal conduit for providing
potentially mitigating evidence to his experts was harmless at most.
See generally Jenkins v. State, 260 Ga. 231,
233 (4) (391 SE2d 397) (1990);
Phillips v. State, 255 Ga. 539, 540
(1) (340 SE2d 919) (1986).
30. The trial court did err in permitting the
jury to consider the five counts of kidnapping as aggravating
circumstances. Crawford v. State, 254 Ga.
435, 440 (5) (330 SE2d 567)
(1985). However, the invalidity of these aggravating circumstances
would not affect the validity of any of the remaining aggravating
circumstances found by the jury. Hill v. State, 263 Ga., supra at 40
(22); Zant v. Stephens, 250 Ga. 97,
100 (2) (297 SE2d 1) (1982).
31. Relying on Johnson v. Mississippi, 486 U. S.
578 (108 SC 1981, 100 LE2d 575) (1988), appellant urges that his
sentence of death must be set aside because his two prior
convictions which were admitted into evidence were
The holding in Johnson relates to the imposition
of a death sentence which was predicated in part upon a prior
conviction subsequently determined by a court of competent
jurisdiction to be constitutionally invalid. Appellant's two prior
convictions are currently valid and are not the subject of
collateral attack. Absent a determination by a court of competent
jurisdiction that these convictions are invalid, the trial court did
not err in permitting the jury to consider them as statutory
aggravating circumstances. See Moon v. State,
258 Ga. 748, 759 (31) (375 SE2d 442)
32. Appellant contends that the prosecutor was
erroneously permitted to suggest to the jury during closing
arguments in the sentencing phase that any lingering doubt as to
guilt should not be considered a mitigating circumstance.
The record shows that the prosecutor merely
pointed out that defense counsel would probably ask the jury to
consider residual or lingering doubt when deciding who actually shot
the victim, but that he was asking the jury to stand by its verdict
in the guilt-innocence phase finding that it was appellant who had
shot the victim. A defendant certainly may argue the issue of
residual doubt to the jury. Cook v. State, supra; Moon v. State,
supra at 759 (33). However, it is not improper for the State to ask
the jury to rely upon the findings implicit in its verdict of guilt
in determining the sentence to be imposed. The prosecutor's argument
cannot be characterized as asking the jury either to disregard or to
minimize mitigating circumstances.
33. Citing Simmons v. South Carolina, 512 U. S.
---- (114 SC 2187, 129 LE2d 133) (1994), appellant urges that, at
the sentencing phase, the trial court erred in failing to charge on
parole eligibility. However, that case only stands for the
relatively narrow proposition that, where the State makes an issue
of the defendant's future dangerousness during the sentencing phase
of a capital trial and state law prohibits the defendant's release
on parole, the jury must be informed that the defendant is
ineligible for parole. Simmons v. South Carolina, 114 SC, supra at
2198. Since OCGA 17-10-31.1 (d) is not
applicable here, state law would not prohibit appellant's release on
In a State in which parole is available, how the
jury's knowledge of parole availability will affect the decision
whether or not to impose the death penalty is speculative, and we
shall not lightly second-guess a decision whether or not to inform a
jury of information regarding parole. States reasonably may conclude
that truthful information regarding the availability of commutation,
pardon, and the like, should be kept from the jury in order to
provide "greater protection in [the States'] criminal justice system
than the Federal Constitution requires." [Cit.]
Simmons v. South Carolina, 114 SC, supra at 2196.
Thus, the trial court was not required to give
the instruction regarding parole requested by appellant and the
failure to give that instruction was not error.
34. A trial court is not required to charge, even
on request, that the State must prove "extrinsic crimes admitted in
general aggravation . . . beyond a reasonable doubt." Ward v. State,
262 Ga. 293, 301 (29) (417
SE2d 130) (1992).
"In considering this evidence [of extrinsic
crimes], the jury does not attempt to decide whether particular
elements have been proved, but instead makes a unique,
individualized judgment regarding the punishment that a particular
person deserves. . . ."
Ross v. State, 254 Ga. 22,
31 (5) (d) (326 SE2d 194) (1985).
35. The trial court did not err in refusing to
give appellant's request to charge the jury that its failure to
agree unanimously on a verdict would result in a life sentence.
Fugate v. State, 263 Ga. 260, 263 (5)
(b) (431 SE2d 104) (1993).
36. Appellant urges that the trial court erred by
refusing to instruct at the sentencing phase that the jury could not
return a death sentence if it found by a preponderance of the
evidence that he was mentally retarded.
It is the public policy of this state that the
execution of mentally retarded defendants constitutes cruel and
unusual punishment. Fleming v. Zant, 259 Ga.
687 (386 SE2d 339) (1989). To that end, the General Assembly
has enacted a statute which provides for a procedure whereby the
execution of mentally retarded defendants will be foreclosed. As
noted in Division 23, that statute mandates that the factfinder in a
capital trial must decide at the guilt-innocence phase whether to
return a verdict of "guilty but mentally retarded." OCGA
17-7-131 (c) (3). As is the case with
regard to a verdict of "guilty but mentally ill at the time of the
crime" under OCGA 17-7-131 (c) (2),
the plain language of OCGA 17-7-131(c)
(3) requires that the defendant prove his mental retardation beyond
a reasonable doubt in order to be found "guilty but mentally
retarded." See Brantley v. State, 262 Ga. 786,
792 (7) (d) (427 SE2d 758) (1993);
Foster v. State, 258 Ga. 736, 745 (11)
(374 SE2d 188) (1988); Spivey v. State,
253 Ga. 187, 188 (1, 2) (319
SE2d 420) (1984). There is no constitutional impediment to
this statutory requirement that the defendant meet a beyond a
reasonable doubt standard as to the issue of mental retardation.
Brantley v. State, supra at 792 (7) (d); Foster v. State, supra at
745 (11); Spivey v. State, supra at 188 (2). Accordingly, if, and
only if, the factfinder finds beyond a reasonable doubt at the guilt-innocence
phase that the defendant is "guilty but mentally retarded," "the
death penalty shall not be imposed and the court shall sentence the
defendant to imprisonment for life." OCGA
17-7-131 (j). Compare OCGA 17-10-60
et seq. which deals only with a trial court's ultimate stay of
scheduled execution based upon mental incompetency rather than the
factfinder's initial determination as to mental retardation at the
In two habeas corpus cases, this court has held
that mental retardation is to be proved by a preponderance of the
evidence and not beyond a reasonable doubt. See Zant v. Foster,
261 Ga. 450 (406 SE2d 74) (1991);
Fleming v. Zant, supra. The defendants in those cases were not tried
under the statutory procedure established by our legislature to
effectuate the public policy against the execution of mentally
retarded defendants. Nevertheless, it is clear that the intent of
those cases was to give the defendants therein
essentially the same opportunity to litigate the
issue of [their] mental retardation as [they] would have had if the
case[s] were tried today, with the benefit of the OCGA
17-7-131 (j) death-penalty exclusion.
Zant v. Foster, supra at 451 (4). However, in
order for that "same opportunity" to attach, mental retardation
would have to be proved beyond a reasonable doubt. The public policy
evidenced by the death-penalty preclusion of OCGA
17-7-131 (j) is that it constitutes
cruel and unusual punishment to execute only those defendants who
have met the burden of proving their mental retardation beyond a
reasonable doubt at the guilt-innocence phase in accordance with
OCGA 17-7-131 (c) (3). In some future
case, this court may have occasion to reconsider the validity of
these holdings in Zant v. Foster and Fleming v. Zant. However, this
case presents no such occasion. Those habeas corpus cases are
distinguishable. Unlike the defendants in those cases, appellant was
tried under the statutory procedure established by our legislature
to effectuate the public policy against the execution of mentally
retarded defendants, appellant's counsel did raise the issue of
appellant's purported mental retardation for the jury's
consideration during the guilt-innocence phase and the trial court
gave full and fair instructions on the return of a verdict of "guilty
but mentally retarded." Despite compliance with the applicable
statutory procedure, the jury found appellant guilty. Accordingly,
that guilty verdict did not result in an automatic life sentence
based upon appellant's mental retardation and it then became
necessary for the case to proceed to a sentencing phase.
At the sentencing phase, appellant certainly was
entitled to produce evidence in mitigation of the imposition of the
death sentence, including a reintroduction of the evidence of his
purported mental retardation. However, appellant was not entitled to
have the jury charged that it could not impose a death sentence if
it found by a preponderance of the evidence that he was mentally
retarded. The issue of whether appellant's purported mental
retardation, standing alone, would preclude, as a matter of law, the
imposition of a death sentence had already been determined by the
jury's rejection of a "guilty but mentally retarded" verdict in the
guilt-innocence phase. At the sentencing phase, the issue of
appellant's purported mental retardation was no longer conclusive as
to his sentence, but was merely one of the mitigating factors which
the jury would be authorized to consider in determining appellant's
sentence. The only requirement on the part of the trial court was to
charge in accordance with OCGA 17-10-30.
Under that statute,
[i]t is not required that specific mitigating
circumstances be singled out by the court in giving its instructions
to the jury. [Cits.] . . . All the mitigating circumstances which
the accused has introduced and wishes to be considered may be argued
to the jury, and a nonspecific charge, free of examples, allows the
jury to consider anything it finds proper.
Collier v. State, 244 Ga.
553, 569 (12) (261 SE2d 364)
(1979). Appellant makes no contention that a proper, nonspecific
charge on mitigating circumstances was not given in this case.
Accordingly, appellant erroneously contends that
his death sentence must be reversed because, at the sentencing phase,
he was entitled to have the jury charged that it could not impose a
death sentence if it found by a preponderance of the evidence that
he was mentally retarded. The giving of such a charge is entirely
inconsistent with the General Assembly's establishment of a specific
procedure for determining whether a defendant who claims to be
mentally retarded should be sentenced automatically to life
imprisonment, rather than be subject to the possibility that the
jury would impose the death penalty at the sentencing phase. In this
case, the trial court properly conducted the sentencing phase, and
the jury, after having reconsidered appellant's purported mental
retardation along with the other relevant mitigating and aggravating
factors, returned a death sentence. That death sentence cannot be
reversed for lack of any charge singling out mental retardation as a
37. The evidence supports the jury's findings of
the following aggravating circumstances: the murder was committed by
a person with a prior record of conviction of murder, OCGA
17-10-30 (b) (1); the murder was
committed by a person with a prior record of conviction for armed
robbery, OCGA 17-10-30 (b) (1); the
murder was committed while appellant was engaged in the commission
of armed robberies against three separate victims, OCGA
17-10-30 (b) (2); the murder was
committed while appellant was in the commission of a burglary, OCGA
17-10-30 (b) (2); and, the murder was
committed by appellant for the purpose of receiving money or other
things of monetary value, OCGA 17-10-30
38. We do not find that appellant's death
sentence was imposed under the influence of passion, prejudice or
other arbitrary factor. OCGA 17-10-35
(c) (1). The death sentence is not excessive or disproportionate to
penalties imposed in similar cases, considering both the crime and
the defendant. The similar cases listed in the Appendix support the
imposition of the death sentence in this case.
HUNT, Chief Justice, Concurring.
Respectfully, I concur in judgment only as to the
conclusion reached by the majority in Division 33, relating to the
issue in Simmons v. South Carolina, 512 U. S. ____ (114 SC 2187, 129
LE2d 133) (1994). I do not agree that Simmons should be construed so
narrowly that it applies only where state law prohibits parole with
respect to a life sentence that is, where a life sentence precludes
release. I agree with the interpretation given Simmons by the New
Mexico Supreme Court in the case of Clark v. Tansy, 882 P2d 527 (N.M.
1994), that, if the prosecutor, in the sentencing phase, offers
evidence or argument of the defendant's future dangerousness and
such evidence or argument implies release on parole, the defendant
may, at his or her option, through evidence, argument, or court
instructions, inform the jury of the relevant statute governing
eligibility. It seems fundamental that if the state's evidence or
argument permits a jury inference concerning parole eligibility that
may be untrue, a defendant may appropriately demonstrate any
statutory provision to the contrary. In Burgess's case, the statute
makes him ineligible for parole for 25 years. OCGA
42-9-39 (b). However, the only
evidence in Burgess's trial even remotely suggesting the possibility
of parole involved the state's cross-examination of a defense expert
witness. Burgess's objection to that evidence was sustained by the
trial court who addressed the matter to the jury appropriately and
sufficiently. Therefore, I agree with the conclusion of Division 33.
I am authorized to state that Justice Sears joins
in this concurrence.
BENHAM, Presiding Justice, concurring in part and
dissenting in part.
While I concur in the majority's affirmance of
appellant's conviction, I respectfully dissent to the majority's
affirmance of appellant's death sentence.
1. Appellant contended at trial and on appeal
that the trial court erred when it refused to instruct the jury at
the sentencing phase that the jury could not recommend imposition of
a death sentence if it found by a preponderance of the evidence that
appellant was mentally retarded. Appellant's proposed instruction
was in accord with our decisions in Fleming v. Zant,
259 Ga. 687 (386 SE2d 339) (1989), and
Zant v. Foster, 261 Ga. 450 (406 SE2d 74)
(1991). In Fleming, we addressed the contention that
Fleming's death sentence violated the federal and state
constitutional guarantees against imposition of cruel and unusual
punishment, and concluded that the Georgia constitutional guarantee
forbade the execution of a mentally retarded person. We determined
that imposition of a life sentence upon a finding by a preponderance
of the evidence that a defendant was mentally retarded ensured that
guarantee. See also Zant v. Foster, supra at Division 5. The
majority now attempts to distinguish the holdings in Fleming and
Foster on the ground that they were habeas corpus cases brought by
defendants convicted prior to the enactment of OCGA
17-7-131 (c) (3). However, that
purported distinction does not stand up under close scrutiny in both
Fleming and Foster, the case was remanded to give the defendant a
full evidentiary hearing on the issue of retardation before a jury
in the court in which the original trial was conducted. Having been
granted that evidentiary hearing, Fleming and Foster stood,
procedurally, on equal footing with the defendants tried after the
passage of 17-7-131 (c) (3). But this
court went a step further and, applying constitutional principles,
held that Fleming and Foster would be sentenced to life imprisonment
if they established retardation by a preponderance of the evidence.
The majority today does not explain why the constitutional reasoning
applicable to Fleming and Foster is not applicable to Burgess.
The majority now sets forth that OCGA
17-7-131 (c) (3) and (j) provide the
legislative framework for implementation of Georgia's public policy
that execution of mentally retarded persons violates the prohibition
against cruel and unusual punishment. However, that legislative
framework was in place at the time of the Fleming decision in 1989 (see
Ga. L. 1988, p. 1003, 1), and this court recognized its existence.
Fleming v. Zant, supra at 687-688. Aware of the legislatively-established
"beyond a reasonable doubt" standard of proof, this court concluded
it was cruel and unusual punishment to execute anyone who had
established by a preponderance of the evidence that he was mentally
retarded. See id. at Division 4. In reaching that conclusion, this
court either implicitly held the legislatively-enacted beyond a
reasonable doubt standard was unconstitutional, or envisioned a two-step
procedure to ensure that Georgia did not execute a mentally retarded
person. Because I am reluctant to endorse the concept of implicit
holdings of unconstitutionality, I take the position that the
Fleming court's setting of "preponderance of the evidence" as the
constitutional standard was an effort to establish a two-tiered jury
determination concerning a defendant's claim of mental retardation.
The defendant may be found "guilty but mentally
retarded" if the [factfinder] finds beyond a reasonable doubt that
the defendant is guilty of the crime charged and is mentally
retarded. If the [factfinder] should make such finding, it shall so
specify in its verdict.
The trial court's charge during the guilt/innocence
phase accurately reflected the statutory requirement that mental
retardation beyond a reasonable doubt must be found before a jury
can return a verdict of guilty but mentally retarded and thereby
effectuate the statutory preclusion of the death penalty found in
OCGA 17-7-131 (j).
However, at the sentencing phase, we must be
cognizant of the constitutional preclusion of the death penalty. In
Fleming v. Zant, supra, we held that "the execution of mentally
retarded offenders violates the Georgia constitutional guarantee
against cruel and unusual punishment." See also Zant v. Foster,
supra. During the sentencing phase, the jury may not be precluded
from considering any aspect of the defendant's character or personal
history in mitigation. Romine v. State, 251
Ga. 208 (11) (305 SE2d 93) (1983). This includes evidence
bearing on the issue of the defendant's mental retardation. A jury's
finding of guilt beyond a reasonable doubt "does not necessarily
mean that no juror entertained any doubt whatsoever." Cook v. State,
255 Ga. 565, 586, n. 11 (340
SE2d 843) (1986). A juror may find no "reasonable" doubt, yet
some degree of doubt persists. Such a doubt benefits the defendant
in the penalty phase of trial, "for the juror entertaining doubt
which does not rise to reasonable doubt can be expected to resist
those who would impose the irremedial penalty of death." Id. See
also Wade v. State, 261 Ga. 105, 110 (401
SE2d 701) (1991) (Clarke, C. J., dissenting). Similarly, a
juror's determination during the guilt/innocence stage of trial that
the defendant did not prove mental retardation beyond a reasonable
doubt does not preempt during the sentencing phase a finding that
the defendant was sufficiently mentally retarded to preclude, under
constitutional standards, the imposition of the death penalty. A
juror may conclude that some degree of mental retardation exists and
should be able to consider this proof of retardation during the
penalty phase of trial, and to perhaps "resist those who would
impose the irremedial penalty of death." Cook, supra, 255 Ga. at
586, n. 11. Should the jury find by a preponderance of the evidence
that the defendant is mentally retarded, imposition of the death
penalty is constitutionally prohibited. Fleming v. Zant, supra.
Appellant, who unsuccessfully raised the issue of
mental retardation during the guilt/innocence phase of trial, was
entitled to present evidence of mental retardation as a mitigating
circumstance during the sentencing phase, and was entitled to an
instruction informing the jury that a sentence of death could not be
recommended if it had been established by a preponderance of the
evidence that appellant was mentally retarded. Such an instruction
would have been in line with our determination that the
constitutional prohibition against cruel and unusual punishment
requires that the defendant be sentenced to life imprisonment should
it be determined by a preponderance of the evidence that he is
mentally retarded. Fleming v. Zant, supra at Division 4.
"[A]n individualized sentencing decision is
essential in capital cases. [Cit.]" Conner v. State,
251 Ga. 113 (5) (303 SE2d 266) (1983).
Georgia's death penalty statute provides that any mitigating
circumstance authorized by law must be considered by the jury in
reaching that individualized decision. OCGA
17-10-30 (b). Any aspect of the defendant's character or
personal history is ripe for consideration by the sentencing jury.
Romine v. State, supra at Division 11. The United States Supreme
Court has determined that "the Eighth and Fourteenth Amendments
require that the sentencer . . . not be precluded from considering,
as a mitigating factor, any aspect of a defendant's character. . .
." Eddings v. Oklahoma, 455 U. S. 104, 110 (102 SC 869, 71 LE2d 1)
(1982); Lockett v. Ohio, 438 U. S. 586 (98 SC 2954, 57 LE2d 973)
(1978). This court has recognized that Lockett and Eddings "impose a
severe limitation upon the trial court's authority to exclude
evidence offered by defendants in the sentencing phase of a death
penalty case." Blankenship v. State, 251 Ga.
621, 624 (308 SE2d 369) (1983).
Taken together, OCGA 17-10-30 permits
the defendant to present evidence as to any mitigating
circumstances, and Lockett and Eddings require the sentencer to
listen. Eddings v. Oklahoma, 455 U. S. at 115, n. 10.
The trial court's failure to give trial counsel "potentially
mitigating" material from the confidential DFACS records amounted to
the trial court's improper exclusion of that mitigating evidence
from the sentencing jury. The majority forgives the improper
exclusion of the mitigating evidence because the defendant had
knowledge of the childhood experiences since he had lived through
them, because appellant did not state how he would have used the
undisclosed confidential information had it been disclosed to him,
and because appellant's experts had access to the DFACS file. If
personal experience obviates the need for disclosure of confidential
material, we can disband the trial court's in camera review of
confidential files since death penalty defendants generally seek
their own records in search of mitigating circumstances. Second, a
death penalty defendant is under no duty to explain how he would use
mitigating evidence -- since he is entitled to present any evidence
of mitigating circumstances to the jury, it is not necessary that he
disclose how he would use material to which he is entitled. Finally,
the "expert" who needs access to evidence in mitigation is the death
penalty defendant's lawyer. Whatever access testifying experts had
to the confidential files, it is not the equivalent of an attorney
reviewing mitigating evidence and planning how best to present such
evidence to the jury.
David McDade, District Attorney, Michael J.
Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney
General, Paige M. Reese, Assistant Attorney General, for appellee.
1 The crimes occurred on July 16,
1990. Appellant was indicted during the April 1990
John R. Martin, Edwards & McLeod, Jennifer McLeod, for appellant.
DECIDED DECEMBER 5, 1994 -- RECONSIDERATION DENIED DECEMBER 20,