Hammond v. State , 264 Ga. 879 ( 1995 )

Benham, Presiding Justice,

dissenting.

“[Tjhere is no life without parole in Georgia. So one day [the defendant] will be a free man.” When the assistant district attorney uttered those words during his argument to the jury in the sentencing phase of appellant’s trial, a mistrial was appellant’s for the asking. All he had to do was ask. Yet appellant’s trial counsel did not think to ask because he did not know to ask.³

If trial counsel had but asked, appellant automatically would have received a new sentencing trial instead of being given a death sentence. OCGA § 17-8-76 states:

(a) No attorney at law in a criminal case shall argue to or in the presence of the jury that a defendant, if convicted, may not be required to suffer the full penalty imposed by the court or jury because pardon, parole, or clemency of any nature may be granted . . .

(b) If counsel for either side in a criminal case argues to or in the presence of the jury as provided in subsection (a) of this Code section, opposing counsel shall have the right immediately to request the court to declare a mistrial, in which case it shall be mandatory upon the court to declare a mistrial. Failure to declare a mistrial shall constitute reversible error.

In concluding that trial counsel’s failure to ask for the statutorily-mandated mistrial did not constitute ineffective assistance of counsel, the majority opines that the outcome would not have been different even if a mistrial had been sought because the evidence in aggravation presented by the State during the sentencing phase was overwhelming. I disagree with that reasoning. The fact that appellant would have had a new sentencing trial rather than be sentenced to death by a jury which heard impermissible remarks constitutes “a reasonable probability” that the outcome of the proceeding would have been different but for trial counsel’s unprofessional error. Cf. Jowers v. State, 260 Ga. 459, 462 (396 SE2d 891) (1990). The majority concludes that it is speculation to suggest that a different jury might have recommended a sentence other than death. Yet, this Court has described the jury’s role in the sentencing phase as. “mak[ing] a unique, individualized judgment regarding the punishment that a particular person deserves. [Cit.]” (Emphasis supplied.) Ross v. State, 254 Ga. 22 (5) (d) (326 SE2d 194) (1985). The legislature’s passage of OCGA § 17-8-76, a statute that requires a new trial in this situation, a statute that itself states it is reversible error not to declare a mistrial if the defendant asks for one, endorses the view that a different jury, untainted by the impermissible remark, might reach a conclusion different from that reachable by the tainted jury.

Decided January 23, 1995 — Reconsideration denied February 10, 1995. Michael Mears, Nancy L. Mau, Clive A. Stafford-Smith, Robert L. McGlasson II, for appellant. Lewis R. Slaton, District Attorney, Carl P. Greenberg, Assistant District Attorney, Michael J. Bowers, Attorney General, Mary Beth Westmoreland, Susan V. Boleyn, Senior Assistant Attorneys General, for appellee.

Because I cannot agree with the majority’s conclusion that appellant did not show that a different outcome would have resulted had trial counsel asked for a mistrial, I must respectfully dissent from the majority’s conclusion that trial counsel’s representation of appellant did not fall below the constitutional standards of the Sixth Amendment.

I am authorized to state that Justice Sears and Justice Carley join this dissent.

3 This is not a case where defense counsel exercised reasonable trial strategy in failing to ask for a mistrial. Defense counsel made several motions for mistrial during the sentencing phase of appellant’s trial and, as stated above, defense counsel did not know he could seek a mistrial when the assistant district attorney made the improper remark during closing argument.