Fleming v. State

458 S.E.2d 638, 265 Ga. 541

• Court: Supreme Court of Georgia
• Decided: June 30, 1995
• Docket: S95A0185
• Status: Published

Opinions

Hunstein, Justice.

Pursuant to the unified appeal procedure in capital felonies, OCGA § 17-10-35.1, we granted the application for interim appeal filed by Maurice Fleming, who has been charged with the armed robbery and malice murder of a Riceboro man.¹

In his sole enumeration of error, appellant contends the trial court erred under Simmons v. South Carolina,_U. S._(114 SC 2187, 129 LE2d 133) (1994) by ruling that in the closing argument in the sentencing phase of his trial, the prosecutor may argue that sentencing appellant to death will deter others from crime, but that appellant may not counter the State’s argument with evidence from experts that the death penalty is ineffective as a general deterrent. We find no error in the trial court’s ruling and affirm.

We have previously determined that the State may assert and the defense may rebut the effectiveness of the death penalty as a general deterrent in closing argument in the sentencing phase of capital trials. Walker v. State, 254 Ga. 149, 159-160 (327 SE2d 475) (1985).² We noted that

[i]n making this determination, we must be mindful of the differences between sentencing hearings and proceedings to determine guilt or innocence. In determining sentence, the jury considers different kinds of issues, and performs distinctly different duties, than it does in determining guilt. Therefore, limitations on argument entirely appropriate to the guilt phase of a trial cannot be applied mechanistically to the sentencing phase.

Id. at 158. This Court held that the jury properly could be invited to consider the deterrent effect of the death penalty as part of the jury’s function to weigh the possible consequences of its verdict and to render a verdict which speaks on behalf of the community. Id. at 158-159. In this regard, we stressed the defendant’s right to an “ ‘open and far-ranging argument’ ” under Gregg v. Georgia, 428 U. S. 153 (96 SC 2909, 49 LE2d 859) (1976), and the fact that on the issue of sentence “the defendant always has the final closing argument. [Cit.]” Walker, supra at 159. Our approval of deterrence argument in the sentencing phase of death penalty cases is consistent with the majority of federal and state courts considering this issue. See, e.g., Brooks v. Kemp, 762 F2d 1383, 1407 (11th Cir. 1985), vacated and remanded on other grounds, 478 U. S. 1016 (106 SC 3325, 92 LE2d 732) (1986).³ See generally Stein, Closing Argument, § 71.50.

As to the trial court’s refusal to allow appellant to introduce expert testimony on the subject of the nondeterrent effect of capital punishment on crime, this issue has been raised previously and decided adversely to appellant’s position. Stevens v. State, 247 Ga. 698 (24) (278 SE2d 398) (1981). ⁴ Other states likewise refuse to admit such evidence. See, e.g., State v. Woomer, 299 SE2d 317, 320 (S.C. 1982) (evidence properly excluded because it consisted of matters of legislative determination).⁵ See also Annotation, Admissibility of Expert Testimony as to the Appropriate Punishment for Convicted Defendant, 47 ALR4th 1069.

Under well-established holdings of this Court, both the prosecution and the defense have the opportunity to argue the issue to the jury; both the prosection and the defense are precluded from introducing evidence on the issue. Under these circumstances we find no possibility that appellant could receive the death penalty “ ‘on the basis of information which he had no opportunity to deny or explain.’ [Cit.]” Simmons v. South Carolina, supra, 114 SC at 2192 (II).⁶

Accordingly, we find no error in the trial court’s ruling. Walker, supra; Stevens, supra.

Judgment affirmed.

All the Justices concur, except Hunt, C. J., who concurs in the judgment only, and Benham, P. J., Fletcher and Sears, JJ., who dissent.

1 The granted application for interim appeal by Fleming’s co-defendant, Clevon Jamel Jenkins, is the subject of this Court’s opinion in Jenkins v. State, 265 Ga. 539 (458 SE2d 477) (1995).

2 See also Conner v. State, 251 Ga. 113 (5) (303 SE2d 266) (1983); Horton v. State, 249 Ga. 871 (7) (295 SE2d 281) (1982); Wilson v. State, 246 Ga. 62 (3) (A) (268 SE2d 895) (1980).

3 See also Lesko v. Lehman, 925 F2d 1527, 1545 (3rd Cir. 1991); Davis v. Kemp, 829 F2d 1522, 1527-1528 (11th Cir. 1987); Coleman v. Brown, 802 F2d 1227, 1239 (10th Cir. 1986); Davis v. Singletary, 853 FSupp. 1492, 1572 (M.D. Fla. 1994); Bailey v. Snyder, 855 FSupp. 1392, 1406 (D. Del. 1993); Smith v. Armontrout, 692 FSupp. 1079, 1094 (IV) (W.D. Mo. 1988). For state opinions see, e.g., State v. Truesdale, 393 SE2d 168 (IV) (S.C. 1990); Pellegrini v. State, 764 P2d 484, 487 (Nev. 1988); Payne v. Commonwealth, 357 SE2d 500, 505 (Va. 1987); State v. McDonald, 661 SW2d 497, 506 (Mo. 1983); Commonwealth v. Zettlemoyer, 454 A2d 937, 956-958 (Pa. 1982).

4 See also Felker v. State, 252 Ga. 351 (18) (314 SE2d 621) (1984); Franklin v. State, 245 Ga. 141 (7) (263 SE2d 666) (1980); Brooks v. Kemp, supra at 1409.

5 See also State v. Gilmore, 681 SW2d 934, 947 (Mo. 1984).

Other states have also recognized the impropriety of admitting evidence on deterrence on the basis that such evidence constitutes an impermissible infringement on a matter solely for the legislature, although disallowing deterrence argument on other grounds. See, e.g., People v. Williams, 454 NE2d 220, 243 (Ill. 1983); State v. Johnson, 632 SW2d 542, 548 (Tenn. 1982); People v. Bickley, 372 P2d 100, 106 (Cal. 1962).

6 This Court recognized in Burgess v. State, 264 Ga. 777 (33) (450 SE2d 680) (1994) that Simmons v. South Carolina

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. [Cit.]

(Emphasis omitted.) Burgess, supra at 788 (33).