Christopher A. Burger, Cross-Appellant v. Walter A. Zant, Warden, Georgia Diagnostic and Classification Center, Cross-Appellee

718 F.2d 979, 1983 U.S. App. LEXIS 16101

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 13, 1983
• Docket: 81-7419
• Status: Published

Opinions

VANCE, Circuit Judge:

The state of Georgia appeals the district court’s grant of a petition for a writ of habeas corpus setting aside the death sentence of Christopher Burger.

The facts in this case are set out in the district court’s opinion. Burger v. Zant, 513 F.Supp. 772, 788-89 (S.D.Ga.1981). Briefly, Christopher Burger and Thomas Stevens, both soldiers at Fort Stewart, Georgia, were indicted for the murder of Roger Honeycutt, also a soldier. On September 4, 1977, Burger and Stevens decided to rob a taxicab driver. The victim, who supplemented his military income by driving a taxi, picked up the two men. Burger and Stevens threatened Honeycutt with knives, forced him to stop the cab and robbed him of sixteen dollars. The victim was placed in the back seat of the cab with Stevens. As Burger drove the vehicle, Stevens forced Honeycutt to disrobe and then to participate in acts of oral and anal sodomy. The victim, nude and bound, was then placed in the trunk of the cab.

With Honeycutt still in the trunk, Burger drove the cab to the local airport, where he and Stevens met a friend and fellow soldier, James Botsford. As they drove back to Fort Stewart, Burger and Stevens explained what they had done, confirming their story by exchanging remarks with Honeycutt in the trunk. After some discussion, Botsford convinced his friends to promise to release Honeycutt unharmed. They dropped Botsford off at the post.

Burger and Stevens then drove to a nearby “borrow pit” which was filled with water. After removing their fingerprints from the cab and removing its radio, Burger raised the trunk and asked Honeycutt if he was all right. Honeycutt responded affirmatively. Burger then closed the trunk, started the car and drove it into the pond, jumping out as it entered the water. The victim died by drowning.

Christopher Burger was convicted of murder and sentenced to death. Stevens was tried separately, convicted, and also sentenced to death. Stevens v. State, 242 Ga. 34, 247 S.E.2d 838 (1978). On direct appeal to the Georgia Supreme Court, Burger’s conviction was affirmed but his death sentence was vacated and the case remanded for resentencing. Burger v. State, 242 Ga. 28, 247 S.E.2d 834 (1978).

On remand, Burger was once again sentenced to death and the sentence was affirmed by the Supreme Court of Georgia. Burger v. State, 245 Ga. 458, 265 S.E.2d 796 (1980). The United States Supreme Court denied certiorari. 448 U.S. 913, 101 S.Ct. 31, 65 L.Ed.2d 1175 (1980).

After unsuccessfully exhausting available state post-conviction remedies, Burger filed a petition for a writ of habeas corpus in federal district court. The district judge granted the writ insofar as it vacated Burg-. er’s death sentence.

The state of Georgia as appellant and Burger as appellee/cross-appellant raise five issues before this court: whether Burger was denied effective assistance of counsel; whether the jury instructions impermissibly shifted the burden of proof onto the defendant; whether Miranda violations occurred; whether the district court properly vacated Burger’s death sentence where the jury instructions concerning two of the three aggravating circumstances upon which it was based were insufficient; and whether the jury instruction on the aggravating circumstance set out in Ga.Code Ann. § 27-2534.1(b)(7) sufficiently channeled the discretion of the jury to impose the death sentence.¹ All of these questions were carefully analyzed in District Judge Edenfield’s opinion. 513 F.Supp. at 788-803. As to the first three issues, we adopt Judge Edenfield’s opinion as our own. The final two issues require discussion.

(D

The Stephens Issue

Christopher Burger’s sentencing jury based its death sentence upon three statutory aggravating circumstances: (a) the “offense of murder was committed while the offender was engaged in the commission of another capital felony, kidnapping”; (b) the “offense of murder was committed while the offender was engaged in the commission of another capital felony, armed robbery”; (c) the offense of murder was “outrageously or wantonly vile, horrible or inhuman in that it involved torture and depravity of mind.” On direct review, the Georgia Supreme Court held that the trial court had erroneously failed to instruct the jury on the definitions of kidnapping and robbery. The Georgia Supreme Court upheld the death sentence, however, based on the single remaining aggravating circumstance. Burger v. State, 265 S.E.2d at 800.

The district court vacated Burger’s death sentence, holding that the Supreme Court of Georgia’s disposition of the first two aggravating circumstances rendered the entire verdict invalid. The district judge based his decision on our opinion in Stephens v. Zant, 631 F.2d 397, modified on panel rehearing, 648 F.2d 446 (5th Cir.1981),².and Burger and Georgia agree that Stephens controls this issue in the present case. Certiorari was granted in the United States Supreme Court in Zant v. Stephens, 454 U.S. 814, 102 S.Ct. 90, 70 L.Ed.2d 82 (1981), question certified to the Georgia Supreme Court, 456 U.S. 410, 102 S.Ct. 1856, 72 L.Ed.2d 222, question answered, 250 Ga. 97, 297 S.E.2d 1 (1982).

On June 22, 1983, the United States Supreme Court decided Zant v. Stephens, - U.S. -, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), reversing the judgment rendered by a panel of the former fifth circuit. The Court held that under the Georgia capital punishment statute the invalidity of one of a plurality of statutory aggravating circumstances does not require that the entire death sentence be vacated. The Court found the death penalty in that case permissible because there were two remaining aggravating circumstances that “adequately differentiate!)! that] case in an objective, evenhanded, and substantively rational way from the many Georgia murder cases in which the death penalty may not be imposed.” Id. at -, 103 S.Ct. at 2744. So long as “at least one of a plurality of aggravating circumstances found by the jury is valid and supported by the evidence,” Zant v. Stephens, 456 U.S. 410, 414, 102 S.Ct. 1856, 1857, 72 L.Ed.2d 222 (1982), the death sentence may stand. We thus reverse the district court’s order compelling resentencing based on our opinion in Stephens.

(2)

The Godfrey Issue

Burger also challenged the adequacy of the trial court’s charge on the sole remaining aggravating circumstance that was applied in his case. Under Ga.Code Ann. § 17-10-30(b)(7), a jury may impose the

death penalty if it finds that the defendant’s crime was “outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.” Since “[i]t is, of course, arguable that any murder involves depravity of mind or an aggravated battery,” Gregg v. Georgia, 428 U.S. 153, 201, 96 S.Ct. 2909, 2938, 49 L.Ed.2d 859 (1976), the potential subjectivity of § (b)(7) has made it the target of numerous constitutional challenges. Although the Supreme Court ruled that § (b)(7) was not unconstitutional on its face in Gregg, the Court conceded that the statutory language might be subject to abuse if the Georgia Supreme Court were to adopt “an open-ended construction” of its terms. Id. Four years later, the Court re-examined the operation of § (b)(7) in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), and concluded that the Georgia courts had strayed from the straight and narrow path marked out in Gregg. In Godfrey, there was no allegation that the murders committed by the defendant involved either torture or an aggravated battery, and the sentencing jury based its imposition of the death penalty on the simple grounds “that the offense of murder was outrageously or wantonly vile, horrible and inhuman.” The Georgia Supreme Court upheld the sentence on review, but the Supreme Court reversed. Writing for a plurality of the Court, Justice Stewart held that the jury’s findings were an insufficient basis for imposing the death penalty, because “nothing in these few words, standing alone ... implies any inherent restraint on the arbitrary and capricious infliction of the death sentence.” Id. at 428, 100 S.Ct. at 1765. Although Justice Stewart found that the Georgia Supreme Court in Godfrey had ignored its responsibility “to keep § (b)(7) within constitutional bounds,” id. at 429, 100 S.Ct. at 1765, he noted that other decisions by that court had placed a limiting construction on the statute that was sufficient to bring § (b)(7) within the ambit of constitutional acceptability:

The Harris [v. State, 237 Ga. 718, 230 S.E.2d 1] and Blake [v. State, 239 Ga. 292, 236 S.E.2d 637] opinions suggest that the Georgia Supreme Court had by 1977 reached three separate but consistent conclusions respecting the § (b)(7) aggravating circumstance. The first was that the evidence that the offense was “outrageously or wantonly vile, horrible or inhuman” had to demonstrate “torture, depravity of mind, or an aggravated battery to the victim.” The second was that the phrase, “depravity of mind,” comprehended only the kind of mental state that led the murderer to torture or to commit an aggravated battery before killing his victim. The third, derived from Blake alone, was that the word, “torture,” must be construed in pari materia with “aggravated battery” so as to require evidence of serious physical abuse of the victim before death.

Id. 446 U.S. at 431, 100 S.Ct. at 1766. As long as the Georgia courts observed these precedents, Justice Stewart suggested, death sentences imposed on the basis of § (b)(7) would meet the requirements of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

In the present case, the trial judge charged the jury that one of the bases for imposing the death penalty was a finding “that the offense of murder was outrageously or wantonly vile, horrible or inhumane [sic] in that it involved torture and depravity of mind.” Burger contends that this was insufficient to provide adequate guidance to the jury, and asserts that the trial court was required under Godfrey to explain and limit the meaning of § (b)(7) in accordance with the construction of the statutory language and Georgia case law presented by Justice Stewart in the plurality opinion.³ The district court did not expressly address the issue of whether a limiting construction was required at the sentencing phase, but two recent decisions of this circuit have rejected the argument that Godfrey requires the trial court to supply additional definitions or a limiting instruction in its charge to the jury. See Westbrook v. Zant, 704 F.2d 1487, 1501, 1504 (11th Cir.1983); Stanley v. Zant, 697 F.2d 955, 971 (11th Cir.1983).

The facts of Stanley in particular have some similarity to those in this case. Ivon Ray Stanley and his codefendant robbed

their victim at gunpoint, then compelled him to accompany them to a wooded area where they beat and shot him before burying him alive. At the sentencing phase of Stanley’s trial, the judge charged the jury in terms that were essentially identical to those employed by the trial court in the present case, instructing them that they could impose the death penalty if they found that Stanley’s offenses were “outrageously and wantonly vile, horrible and inhuman, in that the offenses involved Defendant’s depravity of mind and torture to the victim.” Stanley, 697 F.2d at 971-72. The jury found that Stanley’s offense “involved depravity of mind and torture to the victim” and sentenced him to death. Id. This court distinguished Stanley from Godfrey on the grounds that the charge used in the former (as well as in this case) required the jury to find that the crime involved both torture and depravity of mind, whereas the formulation used by the trial judge in Godfrey was phrased in the disjunctive language of the statute and permitted the jury to sentence the defendant to death on finding that the crime evidenced either torture or depravity of mind or an aggravated battery.⁴ The jury’s findings in Godfrey did not make it apparent which, if any, of these factors it had relied on in sentencing the defendant to death, and the absence of any evidence suggesting that the defendant had tortured or physically abused his victims before their deaths led Justice Stewart to conclude that there was “no principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not.” Godfrey, 446 U.S. at 433, 100 S.Ct. at 1767. In contrast, the instructions given the Stanley and Burger juries prevented them from imposing the death sentence unless they found that the victims had in fact been tortured before death. Since the jurors in each of these cases made an explicit finding that torture had occurred, we cannot say that their reasons for imposing the death penalty must remain “the subject of sheer speculation.” Id. at 429, 100 S.Ct. at 1765. The only remaining questions are first, whether there was anything about the instructions as given that might have led the jurors to base their sentence on a mistaken interpretation of state law, see Sandstrom v. Montana, 442 U.S. 510, 517, 99 S.Ct. 2450, 2455-56, 61 L.Ed.2d 39 (1979), and second, whether the state law as applied in this case is constitutional.

Burger contends that the trial judge’s instructions in his case were defective because they did not set forth Justice Stewart’s construction of the Georgia law from Godfrey. With regard to the first two points in Justice Stewart’s analysis, however, Burger’s objections are easily disposed of. Although the trial judge did not expressly specify that the jury could not find that a crime was “outrageously or wantonly vile, horrible or inhuman” without making a specific finding that it demonstrated “torture, depravity of mind, or an aggravated battery to the victim,” the jury in this case — unlike the jury in Godfrey — returned a verdict that clearly revealed its understanding that the two clauses were interrelated. Burger also contends that the jury should have been instructed that it could not find “depravity of mind” without finding that the defendant had tortured or physically abused the victim before his death. The trial judge in Burger, however, clearly linked “torture and depravity of mind” in his instructions, and the jury’s verdict did likewise.⁵

Burger’s final objection to the trial court’s charge is somewhat more troublesome. He asserts that the jury should have been instructed that the word “torture” assumes the existence of an aggravated battery and therefore requires evidence of serious physical abuse of the victim before death. In Stanley and Westbrook, this aspect of Justice Stewart’s opinion was not problematic, since it was not disputed that in both of those cases the defendant had inflicted extreme physical abuse on his victim prior to the murder itself. See West-brook, 704 F.2d at 1505 & n. 18; Stanley, 697 F.2d at 972. In dictum, however, the Stanley court reflected that “[arguably], the undefined word ‘torture’ [might] fall[] short of meeting the [Godfrey] test because in a given case a jury might understand it to mean mental torture rather than a word to be read in pari materia with ‘aggravated battery’ to require evidence of serious physical abuse.” Stanley, 697 F.2d at 972. There was no contention in Stanley that “the torture to which his victim was subjected was anything other than physical,” id., but the situation in the present case is far less clear. In Burger, the jury might have viewed the evidence that was presented in a number of different ways. The jury found that Burger had tortured his victim, and the evidence supports a finding beyond a reasonable doubt that Honeycutt was tortured before he died. There was sufficient evidence from which the jury may properly have concluded that Burger aided and abetted his codefendant Stevens in physically torturing Honeycutt, as well as that he personally tortured Honeycutt both physically and psychologically. On the other hand, it is also conceivable that the jury may have found that while Stevens physically tortured Honeycutt, Burger inflicted only psychological torture on him.⁶ This case therefore requires us to answer the question which we raised but did not resolve in Stanley: whether there is any significant distinction between mental or psychological and physical torture under either the law of Georgia or the Constitution. If the latter is within constitutional limits but the former is not, Sandstrom requires that the jury must receive instructions to this effect.

The deliberate infliction of mental anguish certainly comes within the commonly understood meaning of the word “torture,”⁷ and the sole support which Burger offers for his argument that the court should hold differently is the language of Justice Stewart’s plurality opinion in Godfrey. As an initial matter, it is important to emphasize that the Godfrey plurality’s reversal of the death sentences imposed in his case ultimately stemmed not from its dissatisfaction with the jury instructions, but from its belief that the Georgia Supreme Court had failed to carry out its place in the statutory scheme given conditional approval in Gregg.

In past cases the State Supreme Court has apparently understood this obligation of carrying with it the responsibility to keep § (b)(7) within constitutional bounds .... Thus, the validity of the petitioner’s death sentences turns on whether, in light of the facts and circumstances of the murders that he was convicted of committing, the Georgia Supreme Court can be said to have applied a constitutional construction of the [statute],

446 U.S. at 429, 432, 100 S.Ct. at 1765, 1767. Thus, the key inquiry in the minds of the Godfrey plurality was whether the Georgia Supreme Court had kept faith with its own expressed standards in reviewing the defendant’s sentences of death. Justice Stewart found that it had not done so in Godfrey, basing this view on his construction of the Georgia statute and ease law. He noted, however, that his research was limited to cases pre-dating 1978, and he conceded that the third of the “separate but consistent conclusions” which he deduced-from the Georgia case law — -the requirement that torture be construed in pari materia with “aggravated battery” — was derived from a single decision, Blake v. State, 239 Ga. 292, 236 S.E.2d 637 (1977). The basis for Justice Stewart’s conclusion was apparently the Georgia Supreme Court’s statement that it “[c]onsider[ed] torture and aggravated battery on the one hand as substantially similar treatment of the victim and depravity of mind on the other hand as relating to the defendant .... ” 236 S.E.2d 643 (emphasis added).

Although Justice Stewart’s construction of the Georgia law on this point was strongly criticized at the time, see, e.g., Godfrey, 446 U.S. at 435-36, 100 S.Ct. at 1768-69 (Marshall, J., concurring in the judgment); 446 U.S. at 443, 100 S.Ct. at 1772-73 (Burger, C.J., dissenting); Donohue, Godfrey v. Georgia: Creative Federalism, the Eighth Amendment, and the Evolving Law of Death, 30 Cath.U.L.Rev. 13, 44-47 (1980), the Georgia Supreme Court subsequently affirmed its adherence to his construction in Hanee v. State, 245 Ga. 856, 268 S.E.2d 339 (1980), where the court noted that “[t]orture occurs when the victim is subjected to serious physical abuse before death.” 268 S.E.2d at 345. The Hanee court went on, however, to embrace an expansive definition of the term “serious physical abuse”:

Serious sexual abuse may be found to constitute serious physical abuse, [citation omitted] Torture also occurs when the victim is subjected to an aggravated battery as hereinabove defined. Evidence of psychological abuse by the defendant to the victim before death where it is shown to have resulted in severe mental anguish to the victim in anticipation of physical harm may amount to serious physical abuse (i.e., torture of the victim), and also will support a finding of depravity of mind of the defendant.

Id. Subsequent decisions by Georgia’s highest court have reaffirmed its interpretation of “physical abuse” as including both sexual and psychological abuse as well. See, e.g., Phillips v. State, 250 Ga. 336, 297 S.E.2d 217, 221 (1982); Brown v. State, 247 Ga. 298, 275 S.E.2d 52, 58 (1981).

Since the Georgia law therefore follows common usage in finding that the deliberate infliction of mental anguish constitutes “torture,” we conclude that the trial court’s failure to elaborate or define the term further does not run afoul of the rule in Sandstrom. In meaningful contrast to the more amorphous term “depravity of mind,” “torture” has a readily understandable and generally understood meaning. This excludes a reasonable risk that the jury might give it an unintended interpretation.

We see no basis for concluding that the definition of “torture” applied by the Georgia courts violates substantive federal constitutional guarantees. The central theme of the Supreme Court’s death penalty jurisprudence has always been that the states must draft and apply their capital punishment laws in a manner that “genuinely narrow[s] the class of persons eligible for the death penalty,” Zant v. Stephens,U.S. at -, 103 S.Ct. at 2742-43, thereby providing a “principled basis for distinguishing [a] case, in which the death penalty [is] imposed, from the many in which it [is] not.” Godfrey, 446 U.S. at 433, 100 S.Ct. at 1767. The Georgia Supreme Court has recently demonstrated that it will not allow the category of psychological abuse to become all-inclusive.⁸ In Phillips v. State, supra, the court emphasized that a finding of “serious psychological abuse” required a showing that “the defendant inflicted deliberate, offensive and prolonged pain on his victim prior to death.” 297 S.E.2d at 221. Thus, “the mere apprehension of death, immediately before the fatal wounds are inflicted” was found insufficient to justify a finding of “torture” under § (b)(7). Id.

We therefore decide that a death sentence may constitutionally be imposed under § (b)(7) based on a finding that the defendant inflicted either psychological or physical torture upon his victim. We can discern no principled basis for attempting to distinguish the two, and it seems highly questionable that Justice Stewart meant to draw such a distinction in Godfrey. The standards applied by the Georgia courts certainly restrict the class of persons eligible for the death penalty by reason of the “torture” provision of § (b)(7), and the facts of this case easily place it within the core of those the statute was designed to reach. Burger’s contentions must therefore be rejected.

Having concluded that both phases of Burger’s trial are free of constitutional error, we reverse the judgment of the district court and remand with instructions that the writ be denied.

REVERSED and REMANDED.

1 . In addition, Burger challenges the sufficiency of the evidentiary hearing conducted by the district court. This contention is patently frivolous. The most cursory examination of the district judge’s opinion demonstrates the care with which he treated the case and the seriousness with which he regarded the issues raised by Burger.

2 . In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc) this circuit adopted as precedent all former fifth circuit cases submitted or decided prior to October 1, 1981. In Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir.1982), the court held that Unit B panel or en banc court decisions of the former fifth circuit also are binding precedent in the eleventh circuit.

3 . We note in passing that Burger did not object to the (b)(7) instruction at the resentencing hearing. This does not bar review of the issue under the doctrine of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), however, for either of two reasons. First, we address the issue because the Georgia Supreme Court ruled on its merits. Burger v. State, 265 S.E.2d at 799-800. This court recently observed that “[c]onsiderations of comity and federalism have resulted in the development of a well-settled exception to the procedural default rule of Sykes: where a state appellate court does not rely on a procedural default, but reaches the merits of the federal law claim, the Sykes bar is inapplicable.” Booker v. Wainwright, 703 F.2d 1251, 1255 (11th Cir.1983). Because in the present case the Georgia Supreme Court “entertained the federal claims on the merits, a federal habeas court must also determine the merits of appellant’s claim.” Lefkowitz v. Newsome, 420 U.S. 283, 292 n. 9, 95 S.Ct. 886, 891 n. 9, 43 L.Ed.2d 196 (1975). See also County Court v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979); Francis v. Henderson, 425 U.S. 536, 542 n. 5, 96 S.Ct. 1708, 1711 n. 5, 48 L.Ed.2d 149 (1976); Westbrook v. Zant, 704 F.2d 1487, 1491 n. 6 (11th Cir.1983); Henry v. Wainwright, 686 F.2d 311, 313 (5th Cir. Unit B 1982), on remand from 457 U.S. 1114, 102 S.Ct. 2922, 73 L.Ed.2d 1326 (1982); Machetti v. Linahan, 679 F.2d 236, 238 n. 4 (11th Cir.1982); Washington v. Watkins, 655 F.2d 1346, 1368 (5th Cir. Unit A 1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982); Sasoon v. Stynchcombe, 654 F.2d 371, 374 (5th Cir.1981); Moran v. Estelle, 607 F.2d 1140, 1142—43 (5th Cir.1979); Cannon v. Alabama, 558 F.2d 1211, 1216 n. 12 (5th Cir. 1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1281, 55 L.Ed.2d 792 (1978).

Second, the state has not raised the procedural default issue and thus it must be deemed waived. See Goode v. Wainwright, 704 F.2d 593, 596 n. 1, 612 n. 25 (11th Cir.1983); Washington v. Watkins, 655 F.2d at 1368; Smith v. Estelle, 602 F.2d 694, 708 n. 19 (5th Cir.1979), affd, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1980); LaRoche v. Wainwright, 599 F.2d 722, 724 (5th Cir. 1979). Cf. Lamb v. Jernigan, 683 F.2d 1332, 1335 n. 1 (11th Cir.1983) (state waives exhaustion requirement by failing to raise it).

4 . The Georgia Supreme Court has stressed the importance of the fact that § (b)(7) is worded in the disjunctive, rather than the conjunctive. Thus, “[i]t is not required that a trier of fact find the existence of each disjunctive phrase in the statute, only that at least one phrase of the first clause of the statute exists due to the existence of at least one phrase of the second clause of the statute.” Fair v. State, 245 Ga. 868, 268 S.E.2d 316, 320 (1980). Although the trial judge’s charge in Godfrey was therefore technically correct, the jury returned a report that did not specify which, if any, of the phrases in the second clause was the basis of its death sentence. In addition, the potential subjectivity of the phrase “depravity of mind” renders a death sentence that is based upon that phrase alone more suspect than one that is based on both “depravity of mind” and one of the other factors as well. See note 5 infra.

5 . Our consideration today does not reach the situation presented by a charge of depravity of mind not involving torture or aggravated battery. That question is obviously a more difficult one in the light of Gregg and Godfrey. Cf. Westbrook v. Zant, 704 F.2d 1487 (11th Cir. 1983) (section (b)(7) charge stated in the disjunctive held not to require instruction in excess of statutory language). Contrary to the conclusion of Justice Stewart in Godfrey, the Georgia Supreme Court in a line of cases extending well before that opinion has upheld findings of depravity of mind based on such factors as age of the victim, physical characteristics of the victim and mutilation, disfigurement or sexual abuse after death. See Phillips v. State, 250 Ga. 336, 297 S.E.2d 217 at 221.

6 . The district court’s correct analysis of the evidence is as follows:

Of course, the present case involves many circumstances which may readily be seen as involving “torture” and reflecting “depravity of mind.” There was ample evidence upon which the jury might have found that petitioner aided and abetted in Stevens’ sodomizing the victim prior to his death. Serious sexual abuse has been equated with “torture” under Georgia law. House v. State, 232 Ga. 140, 205 S.E.2d 217 (1974). Similarly, serious physical abuse can readily be seen in the confining of the victim in the car trunk for a period of hours, bound, nude and certainly anxious in the extreme over his captors’ intentions. Likewise, there can be little argument but that petitioner’s sadistic inquiry into Private Honeycutt’s condition prior to submerging the taxi well-demonstrated “depravity of mind” and, further, that the victim’s horror as the trunk inexorably filled amounted to “torture.”

513 F.Supp. 798-99.

7 . In pertinent part, the definition of torture provided by Webster’s New Collegiate Dictionary is as follows:

1: the infliction of intense pain (as from burning, crushing, or wounding) to punish, coerce, or afford sadistic pleasure 2a: anguish of body or mind: agony b: something that causes agony or pain.

8 . Here, of course, as in Zant v. Stephens, our decision “depends in part on the existence of an important procedural safeguard, the mandatory appellate review of each death sentence by the Georgia Supreme Court to avoid arbitrariness and to assure proportionality.” - U.S. at -, 103 S.Ct. at 2749.