Simpkins v. State , 268 Ga. 219 ( 1997 )

Fletcher, Presiding Justice,

concurring specially.

At the sentencing hearing, the trial court instructed the jury on the statutory aggravated circumstances of murder committed during an armed robbery under OCGA § 17-10-30 (b) (2) and murder committed for pecuniary gain under OCGA § 17-10-30 (b) (4). I would hold that this charge was error because (b) (2) and (b) (4) are redundant under the facts of this case and have the potential to unfairly prejudice Simpkins because a jury that finds two statutory aggravating circumstances may be more likely to impose a harsher sentence. Nevertheless, I concur with the affirmance because the jury did not return a death sentence and the trial court sentenced him to life without parole.

This Court has previously held that where separate aggravating circumstances merely “overlap,” the trial court may instruct the jury on both.² The situation this Court has not addressed directly is whether statutory aggravating circumstances that refer to identical aspects of the crime may both be charged. The majority insists that these aggravating circumstances are different and relies primarily on the cursory statement in McClain v. State³ that “(b) (2) circumstances refer to the manner in which the victim was killed, and the (b) (4), the motive for the killing.” After further research and consideration, it is apparent that this distinction is neither sound nor accurate. The (b) (2) circumstance covers murder during the commission of another capital felony⁴ and thus applies to rape and kidnapping as well as armed robbery. It does not address the “manner in which the victim was killed” as that phrase is commonly understood. When the manner in which the victim is killed is a relevant circumstance warranting enhanced punishment, another circumstance more likely applies.⁵ The (b) (4) circumstance applies to situations in which a desire for pecuniary gain was the motive for the murder. Thus, a murder-for-hire or a murder to gain insurance proceeds would fall under (b) (4).

The vast majority of courts that have considered this issue have concluded that where pecuniary motive is in fact the motive for the robbery, it is improper to charge both murder committed during a robbery and murder for pecuniary gain as statutory aggravating circumstances.⁶ In each of these foreign decisions, the defendant used an offensive weapon to rob and kill the victim; thus, the majority’s reliance on the difference between robbery and armed robbery to distinguish these cases is meaningless. Furthermore, in Georgia, a robbery in which the perpetrator kills the victim will warrant a conviction for armed robbery.⁷ Finally, the requirement that these other states “weigh” aggravating and mitigating circumstances does not affect the substantive analysis of whether charging separate aggravating circumstances for identical aspects of a crime is logical or fair. Rather, the fact that Georgia is not a “weighing” state affects only the potential harm of any error.

Under the facts of this case, the motives for the crimes were the same whether considered under (b) (2) as a murder committed during an armed robbery or under (b) (4) as a murder committed for pecuniary gain. Under both circumstances, the motive for the robbery was pecuniary gain and the motive for the killing was to eliminate a witness to the robbery. Because (b) (2) and (b) (4) refer to identical aspects of the crime in this case, it is irrational to charge separate aggravating circumstances. Therefore, I would adopt the majority position that a murder committed during the offense of armed robbery constitutes only one aggravating circumstance.

Even though I would conclude that the trial court’s charge on both (b) (2) and (b) (4) was error, I agree that it does not require reversal. Simpkins received life without parole and not the death penalty and, therefore, the unique concerns for reliability in sentencing are not present.⁸ Additionally, the trial court sentenced Simpkins after the jury could not reach a unanimous decision and there is less concern that the trial court would be improperly influenced by the mere number of aggravating circumstances.

I am authorized to state that Chief Justice Benham joins in this special concurrence.

2 Thornton v. State, 264 Ga. 563, 578 (449 SE2d 98) (1994).

3 267 Ga. 378, 387 (477 SE2d 814) (1996).

4 Subsection (b) (2) also applies when the murder is committed while the defendant was engaged in aggravated battery or burglary or arson in the first degree.

5 OCGA § 17-10-30 (b) (7) (murder was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery).

6 See Provence v. State, 337 S2d 783, 786 (Fla. 1976), cert. denied, 431 U. S. 969 (97 SC 2929, 53 LE2d 1065) (1977); Cook v. State, 369 S2d 1251, 1256 (Ala. 1978) (decided under Alabama’s former death penalty law); Willie v. State, 585 S2d 660, 680-681 (Miss. 1991); State v. Quesinberry, 354 SE2d 446, 452-453 (N.C. 1987); People v. Bigelow, 691 P2d 994, 1005-1006 (Cal. 1984). See also State v. Rust, 250 NW2d 867, 874 (Neb. 1977) (it is “not reasonable to construe the [murder for pecuniary gain and murder to conceal identity of perpetrator] definitions in such a manner as to . . . make the same identical facts constitute two aggravating circumstances”).

7 Lipham v. State, 257 Ga. 808, 810 (364 SE2d 840), cert. denied, 488 U. S. 873 (109 SC 191,102 LE2d 160) (1988) (where victim is killed with gun, jury may infer from the evidence that the defendant committed armed robbery whether the victim was shot before or after the taking).

8 Compare Woodson v. North Carolina, 428 U. S. 280, 303-305 (96 SC 2978, 49 LE2d 944) (1976). (“[D]eath is a punishment different from all other sanctions in kind rather than degree” so that “there is a . .. difference in the need for reliability in the determination that death is the appropriate punishment in a specific case”)