Pace v. State , 271 Ga. 829 ( 1999 )

Hunstein, Justice,

dissenting in part.

Now, come with me to that scene of the crime. Imagine that night. Ms. McAfee is laying in bed asleep. She is violently awakened by somebody standing over her. Somebody grabbing at her. If you could imagine being asleep, and you wake up to hands tearing off your clothes. You wake up to hands grappling your body. And just as you wake up and realize what’s going on, your clothes are ripped from you. Something is tied around your neck, and you áre strangled.

This is the argument the prosecution used to persuade the jury to sentence Pace to death. The prosecutor did not stop with Ms. McAfee but continued this argument when he invited the jury to imagine themselves in the place of the next victim:

So come with me and think about [the next] crime scene. How would you feel in Ms. McClendon’s situation? Again, to wake up with some man standing up over you choking the life out of you and pulling on your clothes.

Any argument “which importunes the jury to place itself in the position of the victim for any purpose must be carefully scrutinized to ensure that no infringement of the accused’s fair trial rights has occurred.” (Citations and punctuation omitted.) McClain v. State, 267 Ga. 378, 383 (3) (a) (477 SE2d 814) (1996). “The ‘Golden Rule’ argument, suggesting to jurors as it does that they put themselves in the shoes of one of the parties, is generally impermissible because it encourages the jurors to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence.” 75A AmJur2d, Trial, § 650, p. 260. See also Hayes v. State, 236 Ga. App. 617 (3) (512 SE2d 294) (1999); Horne v. State, 192 Ga. App. 528 (2) (385 SE2d 704) (1989). Georgia law has clearly and repeatedly disapproved the use of the golden rule argument by prosecutors in criminal cases. See, e.g., Greene v. State, 266 Ga. 439 (19) (c) (469 SE2d 129) (1996); McClain, supra; Burgess v. State, 264 Ga. 777 (20) (450 SE2d 680) (1994); Hayes, supra; Heller v. State, 234 Ga. App. 630 (4) (507 SE2d 518) (1998).

Where, as here, no objection was made to the prosecutor’s golden rule argument, this Court must “determine whether there is a reasonable probability the improper argument changed the outcome of the sentencing proceeding. [Cit.]” Carr v. State, 267 Ga. 547, 556 (8) (a) (480 SE2d 583) (1997). The majority dismisses this issue by peremptorily holding that “given the amount of evidence in aggravation, we do not conclude that this argument changed the result of the sentencing phase. [Cit.]” Majority opinion, Division 32 (h). The problem with this conclusion, however, is that the jury was not contemplating whether to find Pace guilty or innocent, but whether to sentence Pace to death or impose a life sentence. While the amount of evidence of guilt may be so overwhelming that no reasonable probability exists that the use of a golden rule argument affected the outcome in the guilt-innocence phase, Greene, Burgess, supra, the jury in the sentencing phase has moved beyond weighing evidence into weighing imponderables. When faced with the effect of an impermissible argument, the “amount of evidence” may ensure that confidence in the outcome of the guilt-innocence phase was not undermined; however, the impact of improper argument on a jury’s consideration of mercy cannot be as easily quantified. “[T]he ‘exercise of mercy . . . can never be a wholly rational, calculated, and logical process. [Cit.]’ ” Conner v. State, 251 Ga. 113, 121 (303 SE2d 266) (1983).

In order to determine whether there is a reasonable probability that, but for an improper argument, a death verdict would not have been given, the reviewing court must evaluate the improper remarks in the context of the entire proceeding. Brooks v. Kemp, 762 F2d 1383, 1413 (V) (11th Cir. 1985). In this case, the prosecutor deliberately used an argument which was prohibited by well-established Georgia case law. The argument was neither isolated nor unintentional. The argument unambiguously invited the jurors to imagine themselves in the place of two crime victims. The improper argument was not mitigated by other arguments made by the State or by any instruction by the court. Compare Ford v. State, 255 Ga. 81 (8) (i) (335 SE2d 567) (1985); Brooks v. Kemp, supra. Furthermore, the record in this case establishes that the jury was not so appalled by the crimes committed by Pace that they rejected out of hand any sentence other than death. Rather, the record establishes that the jury remained open to the possibility of a life sentence, as evidenced by the question they sent to the trial court during their sentencing deliberations regarding the possibility of a sentence of life without parole. See Majority opinion, Division 34.

The prosecutor’s golden rule argument was dramatic in its details and was uttered for the purpose of prejudicing the jury against exercising mercy in its sentencing decision. See OCGA § 17-10-35 (c) (1). While I support giving prosecutors wide latitude in their choice of style, tactics and language used in closing argument, Georgia law clearly prohibits prosecutors from urging jurors to imagine themselves in the victim’s place. “Wide latitude” does not justify the prosecutor’s impermissible use of the golden rule argument under the facts of this case.

Based on the State’s deliberate and extensive introduction of a prohibited argument into the closing of Pace’s capital sentencing hearing, the absence of any factors to mitigate that impermissible argument, and indicators that the evidence of Pace’s guilt did not automatically predispose the jury to consider only a death sentence, I would hold that the prosecutor’s use of the golden rule argument here undermined confidence in the outcome of the sentencing proceeding, i.e., that there is a “‘reasonable probability that the improper arguments changed the jury’s exercise of discretion in choosing between life imprisonment or death.’ [Cit.]” Ford, supra, 255 Ga. at 94. I would therefore conclude that the improper argument rendered Pace’s capital sentencing hearing fundamentally unfair. Brooks v. Kemp, supra, 762 F2d at 1416. Accordingly, I must respectfully dissent to the majority’s affirmance of Pace’s death sentence. I concur in the affirmance of Pace’s convictions.

I am authorized to state that Presiding Justice Fletcher joins this dissent.

Appendix.

Gulley v. State, 271 Ga. 337 (519 SE2d 655) (1999); Pruitt v. State, 270 Ga. 745 (514 SE2d 639) (1999); Pye v. State, 269 Ga. 779 (505 SE2d 4) (1998); DeYoung v. State, 268 Ga. 780 (493 SE2d 157) (1997); Raulerson v. State, 268 Ga. 623 (491 SE2d 791) (1997); Wellons v. State, 266 Ga. 77 (463 SE2d 868) (1995); Gary v. State, 260 Ga. 38 (389 SE2d 218) (1990); Pitts v. State, 259 Ga. 745 (386 SE2d 351) (1989); Isaacs v. State, 259 Ga. 717 (386 SE2d 316) (1989); Foster v. State, 258 Ga. 736 (374 SE2d 188) (1988); Blankenship v. State, 258 Ga. 43 (365 SE2d 265) (1988); Ross v. State, 254 Ga. 22 (326 SE2d 194) (1985); Devier v. State, 253 Ga. 604 (323 SE2d 150) (1984); Allen v. State, 253 Ga. 390 (321 SE2d 710) (1984); Waters v. State, 248 Ga. 355 (283 SE2d 238) (1981).

Decided December 3, 1999 Reconsideration denied December 20, 1999. Michael Mears, Charlotta Norby, for appellant. Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Peggy R. Katz, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Allison B. Goldberg, Assistant Attorney General, for appellee.