YOUNG v. THE STATE 6-24-2021 Substitute Opinion Issued.

In the Supreme Court of Georgia
Decided: June 24, 2021
S21P0078. YOUNG v. THE STATE.
MELTON, Chief Justice.
A jury found Rodney Renia Young guilty of the murder of Gary
Jones and related crimes. The jury declined in its guilt/innocence
phase verdict to find him “mentally retarded.” 1 At the conclusion of
the sentencing phase, the jury found multiple statutory aggravating
circumstances and sentenced Young to death for the murder. For
the reasons set forth below, we affirm Young’s convictions and
1 The mental condition now referred to as “intellectual disability” in the
mental health profession and in Georgia law was previously, including at the
time of Young’s trial, referred to as “mental retardation.” See Hall v. Florida,
572 U. S. 701, 704 (I) (134 SCt 1986, 188 LE2d 1007) (2014) (noting the change
in terminology); OCGA § 17-7-131 (as amended in 2017 by Ga. L. 2017, p. 471,
§ 3). We use both terms in this opinion, using “intellectual disability” in our
discussions of the condition in general terms and using “mental retardation”
in our discussions, particularly in quotations, of the specific proceedings below
and the law that applied to them.
sentences.2
1. Young had a seven-year relationship with Gary Jones’s
mother, Doris Jones, that was rife with arguments about money and
Young’s infidelity and included multiple breakups. After Young
came to visit Doris in Georgia in November 2007 and the pair
became engaged, Doris moved in with Young at his basement
apartment in Bridgeton, New Jersey, in January 2008. The couple
2 The victim was killed on March 30, 2008. A Newton County grand jury
indicted Young on June 6, 2008, on one count of malice murder, two counts of
felony murder, one count of aggravated assault, and one count of burglary. On
August 7, 2008, the State filed written notice of its intent to seek the death
penalty. The trial began with jury selection on February 6, 2012. The jury
found Young guilty on all charges on February 17, 2012. On February 21, 2012,
the jury recommended a death sentence for the murder, and that same day the
trial court filed an order imposing a death sentence on the malice murder
count. On February 22, 2012, the trial court filed an order merging the felony
murders with the malice murder (although they were actually vacated by
operation of law, see Willis v. State, 304 Ga. 686, 686 n.1 (820 SE2d 640)
(2018)), merging the aggravated assault with the malice murder, and deferring
sentencing on the burglary. On March 9, 2012, the trial court filed an order
imposing a 20-year sentence for the burglary, to be served concurrently with
the death sentence. On March 5, 2012, Young filed a motion for new trial, and
he amended the motion on April 1, 2014, and September 5, 2017. Following
multiple hearings, the motion was denied on April 9, 2019. Young filed a notice
of appeal on June 6, 2019. An appeal was initially docketed in this Court on
December 11, 2019, as Case No. S20P0630; however, on December 19, 2019,
this Court struck the case from the docket and remanded it, directing the trial
court to ensure that the record was complete. Following this remand, the case
was redocketed to the term of this Court beginning in December 2020, and the
case was orally argued on March 23, 2021.
2
argued in New Jersey, and Doris moved back to Georgia to once
again live with her son, Gary, in Covington. Young wrote Doris
multiple letters between January and March 2008, asking her to
return to him. On March 3, Young obtained approval from his
employer for time off on March 26 to 28. He subsequently contacted
his half-sister, whom he had never personally met and who lived in
Atlanta, and he told her that he was coming to see her while on
vacation. Prior to his trip, Young borrowed a GPS device from his
co-worker and obtained instructions on how to use it.
On March 28, Doris received yet another letter from Young,
which she did not read immediately. When Doris awoke the next
day, laundry that she had washed the night before had been folded,
despite the fact that Gary had been staying with his girlfriend and
no one else was home. That same weekend, Doris noticed that the
laundry room window had a hole in it and that the screen on that
window was missing. Testimony, cell phone records, and the
memory of the GPS device that Young borrowed all showed that,
from March 28 to 30, Young drove repeatedly from his half-sister’s
3
home in Atlanta to the area of Gary’s home in Covington. A witness
testified that he gave a man with a New Jersey license plate
directions from Covington Square to Gary’s neighborhood; this
witness later identified Young from a photographic line-up as that
man.
On March 30, Gary attended church with his girlfriend and
then returned home with a plan to meet his girlfriend later for
dinner. A little after 1:00 p.m. that day, Gary told his grandmother
on the telephone that he was arriving at his home and would call
her back in 15 minutes, which he never did. Doris discovered Gary’s
body in the home at approximately 11:20 p.m. that night and called
911. Gary was lying on his side on the floor in the dining room, and
he was tied to an overturned chair with duct tape, a telephone cord,
and fabric from some curtains. A bloody butcher knife and a bloody
hammer were found next to his body. The victim’s body had multiple
fractures to the skull, the left eye protruded from its socket, there
were sharp force injuries to the neck, head, and face, and there were
compression marks on the hands and legs indicating that the victim
4
was alive while bound. Glass in a door leading into the dining room
from an outside patio had been shattered, and the home showed
signs of a struggle, with blood in the foyer, living room, and dining
room. The home had multiple writings on the walls, including the
following as recounted by an investigator: “ATL mob $25,000, dead
in 20 days, 20 days to get out of state or dead, the hit be on you, were
know what you drive, ATL m-o-b, I want my f***ing money, $25,000,
you work at GRNCS.” The writings were matched at trial to Young’s
handwriting, and investigators testified that they were unaware of
a gang called the “ATL mob.”
Upon learning that Young had called her brother-in-law, Doris
called Young on the day after the murder. Young told Doris that he
would come to get her things and move her back to New Jersey and
that he had seen Gary in a dream asking him to take care of her.
Investigators interviewed Young in New Jersey on April 3, 2008; he
had two cuts on his right hand, and he denied traveling recently to
Georgia. A search of Young’s car yielded printed directions from
New Jersey to Covington and Doris’s ring that had been discovered
5
missing from Gary’s home, and a search of Young’s basement
apartment in New Jersey yielded Gary’s cell phone and duct tape
that was matched to the duct tape used to bind Gary.
Young presented evidence in the guilt/innocence phase in
support of a possible finding of “mental retardation” by the jury,
including testimony from staff members at his former high school
stating that he had been in special education, had been classified as
“educable mentally retarded” and therefore must have been tested
with an IQ of between 60 and 69, and had struggled intellectually in
academics and in sports. However, Young did not present any
expert testimony regarding his alleged intellectual disability or any
actual IQ test results. The State countered Young’s evidence with
cross-examination and direct testimony showing Young’s ability to
function normally at work and in various other settings in life. The
State also presented testimony from an expert who, although he had
not evaluated Young and had not formed an opinion as to whether
Young was intellectually disabled, was able to testify about the
subject of intellectual disability in general terms.
6
After reviewing the record, we conclude that the evidence
presented in the guilt/innocence phase was sufficient to authorize a
rational trier of fact to find beyond a reasonable doubt that Young
was guilty of all of the charges of which he was convicted and to find,
considering the conflicting testimony on the subject, that Young had
failed to prove beyond a reasonable doubt that he was “mentally
retarded.” See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99
SCt 2781, 61 LE2d 560) (1979) (providing the constitutional
standard for the review of the sufficiency of the evidence of a crime);
King v. State, 273 Ga. 258, 259 (1) (539 SE2d 783) (2000) (reviewing
the sufficiency of the evidence regarding alleged intellectual
disability); UAP IV (B) (2) (providing that, in all death penalty cases,
this Court will determine whether the verdicts are supported by the
evidence).
Pretrial Issues
2. We reject Young’s argument, including his arguments
specific to the practices of the prosecutor in his case, that Georgia’s
death penalty laws are unconstitutional in that they allegedly
7
permit unfettered discretion to prosecutors in choosing whether or
not to seek the death penalty and thereby result in arbitrary and
capricious results. See Arrington v. State, 286 Ga. 335, 336-337 (4)
(687 SE2d 438) (2009); Walker v. State, 281 Ga. 157, 161 (6) (635
SE2d 740) (2006).
3. The trial court properly refused Young’s attempt to plead
guilty but mentally retarded to his murder charge in exchange for a
life sentence, because the State objected to such a plea. See
Stripling v. State, 289 Ga. 370, 376 (3) (711 SE2d 665) (2011).
4. We reject Young’s arguments that he is entitled to a new
trial based on several alleged discovery violations by the State.
(a) The record shows that the State disclosed the identity of
Wanda Wilcher as a potential sentencing phase witness but listed
her address as “private” because she had a restraining order against
Young. The prosecutor represented to the trial court that she would
have informed defense counsel of the witness’s address if counsel
had inquired. Under the circumstances, we conclude that the trial
court did not abuse its discretion in not finding any prejudice to
8
Young or bad faith on the part of the prosecutor and, accordingly, in
allowing the witness to testify after first allowing defense counsel
an opportunity to interview the witness. See Wilkins v. State, 291
Ga. 483, 486-487 (5) (731 SE2d 346) (2012) (applying OCGA § 17-16-
6).
(b) The record reveals that Young was aware well before trial
of recordings of certain conversations between him and Doris Jones
and, more importantly, that the State served him with the actual
recordings by the statutory deadline.
(c) The trial court properly held that the State had no duty to
disclose the criminal histories of witnesses, because Young had
access to those records himself. See Jackson v. State, 306 Ga. 69, 89
(6) (d) (829 SE2d 142) (2019).
(d) After initially noting from the bench that the issue, at least
at that time, was moot in light of the State’s representation that it
was aware of no such records, the trial court then also filed a written
order denying Young’s request for any psychiatric records of the
State’s witnesses based on its finding that “[n]o particularized
9
showing of necessity for or even existence of these records ha[d] been
made.” We see no error. See King, 273 Ga. at 262-263 (11) (holding
that the defendant was not entitled to the psychiatric histories of
the State’s witnesses where he failed to show that the hypothetical
records were critical to his defense, that substantially similar
evidence was otherwise unavailable, and that the records were not
privileged); McMichen v. State, 265 Ga. 598, 611 (24) (458 SE2d 833)
(1995) (“In requesting the psychiatric histories of the state’s
witnesses, McMichen failed even to allege that such histories
existed.”).
(e) The trial court properly declined to conduct an in camera
review of the personnel records of the law enforcement officers who
would testify at trial, because Young made no “specific showing of
need.” Cromartie v. State, 270 Ga. 780, 785-786 (12) (514 SE2d 205)
(1999).
5. Young argues that the State’s use of funds from a victim
assistance account, see OCGA § 15-21-130 et seq., to reimburse four
witnesses for their lost wages without disclosing this fact to him at
10
trial constituted unconstitutional evidence suppression because
evidence of the use of the funds would have served as impeachment
evidence. To succeed on an evidence suppression claim, a defendant
must establish four elements: (1) the State possessed evidence
favorable to the defendant; (2) the defendant did not possess the
evidence and could not obtain it with reasonable diligence; (3) the
State suppressed the evidence; and (4) the suppression created a
reasonable probability of a different outcome of the trial. See
McCray v. State, 301 Ga. 241, 246 (2) (c) (799 SE2d 206) (2017). The
trial court found that the first three elements had been satisfied, but
it correctly determined that Young’s claim failed on the fourth
element.
As to the two witnesses at issue who testified regarding
Young’s guilt, their testimony showing his presence in Georgia at
the time of the murder was cumulative of multiple other
independent pieces of evidence showing that same fact. As to the
two witnesses at issue who testified regarding Young’s alleged
intellectual disability, the witnesses were his co-workers who stated
11
merely that he had not been a problem employee, was a “good
operator,” and was punctual. Finally, as to the one witness at issue
who testified in the sentencing phase, the witness stated that Young
had physically abused her while they were dating, and she showed
the jury a scar on her face from that abuse; however, a certified copy
of a restraining order regarding this witness was independently
admitted into evidence, and similar testimony showing Young’s
abusive nature was presented through Doris Jones. We also note
that evidence regarding the State’s reimbursement of these
witnesses’ actual lost wages would not have been strong
impeachment evidence. Pretermitting whether the other three
elements of this evidence suppression claim have been satisfied, we
hold that the trial court’s conclusion regarding the fourth element,
materiality, was not erroneous and that the overall claim was
therefore properly denied. See United States v. Payne, 63 F3d 1200,
1210-1211 (II) (A) (2) (2d Cir. 1995) (noting that the suppression of
impeachment evidence does not warrant a new trial where the
testimony of the witness who might have been impeached was
12
corroborated by other evidence and holding that the evidence
presented at trial was “sufficiently strong” to support the appellate
court’s concluding that the suppression in the case “d[id] not
undermine [the appellate court’s] confidence in the outcome of the
trial” and that the suppressed evidence therefore was “not
material”). Cf. Schofield v. Palmer, 279 Ga. 848, 851 (1), 853 (3) (621
SE2d 726) (2005) (reaching a different conclusion where, unlike in
Young’s case where the witnesses enjoyed no actual gain but merely
received reimbursement of their lost wages, “the GBI paid [a
confidential informant] $500 for providing information implicating
[the defendant]”).
Issues Related to the Jury
6. Young challenged the composition of both his grand jury
source list and his traverse jury source list. The trial court denied
both challenges, and we see no error.
(a) (i) In his challenge to his grand jury source list, Young first
claimed that an underrepresentation of African-American persons
on the list violated both his statutory and constitutional rights. As
13
in a previous case in which this Court denied relief, the undisputed
evidence in Young’s case
showed that the jury commission in [Newton] County,
pursuant to this Court’s directive in the Unified Appeal
Procedure, attempted to balance the percentages of
various cognizable groups of persons on the [relevant]
jury source list to match the percentages of those groups
of persons reported in the most-recently available
Decennial Census.
Williams v. State, 287 Ga. 735, 735 (699 SE2d 25) (2010), superseded
by the Jury Composition Reform Act of 2011 as noted in Ellington v.
State, 292 Ga. 109, 118 (4) n.2 (735 SE2d 736) (2012), disapproved
on other grounds by Willis v. State, 304 Ga. 686, 706 (11) (a) n.3 (820
SE2d 640) (2018). See also Ricks v. State, 301 Ga. 171, 173 (1) (800
SE2d 307) (2017) (noting changes since Williams in the Code, in the
Unified Appeal Procedure, and in relevant rules). In Williams, the
then-established process for constructing the jury list had combined
with shifting demographics in Clayton County to result in a
disparity of 17.49 percentage points between the percentage of
African-American persons on the jury source list and the percentage
of African-American persons as shown in the 2000 Census. See
14
Williams, 287 Ga. at 737-738 (2). In Young’s case, the disparity was
11.67 percentage points, or 11.37 percentage points if only the
numbers of citizens involved were considered. See Smith v. State,
275 Ga. 715, 721 (4) (571 SE2d 740) (2002) (stating regarding cases
where citizenship appears to be a significant factor: “When alleging
underrepresentation of a distinctive group, a defendant ‘must, to
establish a prima facie case, present data showing that the
percentage of persons in that group [on the jury list] is significantly
lower than the percentage eligible to serve on juries.’” (quoting
United States v. Artero, 121 F3d 1256, 1262 (III) (B) (9th Cir. 1997)
(emphasis supplied)). The trial court did not err in following this
Court’s binding case law on this issue, particularly our prior
holdings that the jury composition system then in place served “a
‘sufficiently significant state interest’ to rebut an otherwise-valid
prima facie [claim],” and thus denying this portion of Young’s
challenge to his grand jury. Williams, 287 Ga. at 738 (2) (quoting
Ramirez v. State, 276 Ga. 158, 162 (1) (c) (575 SE2d 462) (2003)).
15
(ii) Young’s challenge to his grand jury source list also included
an allegation of an underrepresentation of Hispanic persons.
Young’s expert testified that the Newton County jury commission
had not separately accounted for Hispanic persons on the relevant
jury certificate; however, the expert estimated the number of
Hispanic persons included on the source list by performing a search
for common Hispanic surnames. The expert testified that, as
compared to census estimates of the population at the time of
Young’s indictment, Hispanic citizens were underrepresented on the
grand jury source list by an absolute disparity of 0.91 percentage
points. 3 See Smith, 275 Ga. at 721 (4). We note further that the
uncontested testimony of the expert also showed that, as compared
to the 2000 Census, the absolute disparity was 0.42 percentage
points. Based on our holdings in Williams and Ramirez, which are
discussed above, the figure based on the 2000 Census was the correct
one to consider; however, considering either figure, the trial court
3 Young’s argument on appeal focuses on numbers of persons rather than
on percentages; however, the numbers alleged by Young in his brief align with
the percentages testified to by Young’s expert.
16
did not err in concluding that no impermissible underrepresentation
had been shown. See id. at 723 (4); Morrow v. State, 272 Ga. 691,
695 (1) (532 SE2d 78) (2000). Furthermore, even if an
underrepresentation had been shown, there would be no reversible
error, because Young did not even attempt to show in the trial court
that Hispanic persons were a cognizable group in Newton County, a
necessary part to his claim. See Smith, 275 Ga. at 718 (2) (holding
that whether a group is a cognizable group in a given county is a
matter of fact to be found by the trial court).
(b) Regarding the traverse jury source list, the trial court
found, after discounting an obvious error on the jury certificate and
crediting the testimony of Young’s expert, that there was an
absolute disparity of 2.88 percentage points between the percentage
of Hispanic persons on the 2011 jury list as compared to the
percentage of Hispanic persons in the actual population in 2010.
The uncontested testimony of Young’s expert also showed that the
absolute disparity was 1.38 percentage points when only Hispanic
citizens were considered. Considering either figure, the trial court
17
did not err in concluding that no impermissible underrepresentation
had been shown. See Smith, 275 Ga. at 723 (4); Morrow, 272 Ga. at
695 (1).
7. The trial court did not err by refusing to compensate jurors
beyond the amount authorized by OCGA § 15-12-7 (a) (2). See
Stinski v. State, 286 Ga. 839, 846 (21) (691 SE2d 854) (2010).
8. After Young moved the trial court to order the State to
disclose information about jurors concerning their possible
connections to the State or possible driving and arrest records, the
trial court accepted the representation from the State that it would
reveal any false answers by jurors known to it on such subjects
during voir dire. We see no error. See Stinski, 286 Ga. at 846 (23).
9. Young argues that his right to be present was violated
during several bench conferences held during jury selection. 4
Although these bench conferences were not transcribed, despite the
trial court’s having granted Young’s motion that all bench
4 In his brief in this Court, Young provides identical citations to the
record for two different jurors among the several he discusses. We have
reviewed the record as to both of these jurors.
18
conferences should be, the trial court entered an order
reconstructing the record of what transpired, see OCGA § 5-6-41 (f)
(providing for supplementation of the record), and Young presented
testimony at his motion for new trial hearing on the matter. As
found by the trial court in its order denying the motion for new trial,
Young sat during jury selection at the defense table with his three
attorneys, he observed the voir dire, he remained at the defense
table with one of his attorneys during the bench conferences, and yet
he never objected to his absence from those bench conferences. The
attorney who remained with Young refused to disclose the nature of
their discussions, but Young testified that he and that lawyer did
engage in conversations.
Jury selection is a critical stage at which a defendant generally
is entitled to be present, including at bench conferences. See
Murphy v. State, 299 Ga. 238, 240 (2) (787 SE2d 721) (2016);
Sammons v. State, 279 Ga. 386, 387 (2) (612 SE2d 785) (2005). But
see Heywood v. State, 292 Ga. 771, 774 (3) (743 SE2d 12) (2013)
(holding that a defendant has no right to be present when only legal
19
arguments and logistical or procedural matters are discussed).
However, “the right to be present may be waived if the defendant
later acquiesces in the proceedings occurring in his absence,”
Jackson v. State, 278 Ga. 235, 237 (3) (599 SE2d 129) (2004) (citation
and punctuation omitted), and “[a]cquiescence may occur when
counsel makes no objection and a defendant remains silent after he
or she is made aware of the proceedings occurring in his or her
absence,” Murphy, 299 Ga. at 241 (2). And, in the absence of any
controlling authority to the contrary, we reject Young’s argument
that his right to be present could not have been waived simply
because this was a death penalty trial.
The record shows that Young was present throughout all of the
voir dire, that he was present in the courtroom during each of the
bench conferences at issue here, that the purpose of each was
obvious from its inception or announced afterward by the trial court,
that the result of each was announced in open court, and that
neither Young nor his counsel ever objected. Accordingly, we
conclude that the trial court did not err in concluding in its order
20
that Young acquiesced in the waiver of his presence that was made
by his counsel. Cf. Champ v. State, 310 Ga. 832, 834-848 (2) (a, b, and
c) (854 SE2d 706) (2021) (remanding where the trial court had not ruled
on the defendant’s acquiescence in counsel’s waiver).
10. We reaffirm our prior case law rejecting claims like Young’s
regarding the process of qualifying jurors based on their death
penalty views. See Willis, 304 Ga. at 694-695 (4).
11. Young argues that the trial court erred by excusing three
prospective jurors based on their voir dire responses regarding their
willingness to consider a death sentence. As we have explained:
[T]he proper standard for determining the
disqualification of a prospective juror based upon his
views on capital punishment is whether the juror’s views
would prevent or substantially impair the performance of
his duties as a juror in accordance with his instructions
and his oath. This standard does not require that a juror’s
bias be proved with unmistakable clarity. Instead, the
relevant inquiry on appeal is whether the trial court’s
finding that a prospective juror is disqualified is
supported by the record as a whole. An appellate court
. . . must pay deference to the trial court’s determination.
This deference encompasses the trial court’s resolution of
any equivocations and conflicts in the prospective jurors’
responses on voir dire. Whether to strike a juror for cause
is within the discretion of the trial court and the trial
court’s rulings are proper absent some manifest abuse of
21
discretion.
Humphreys v. State, 287 Ga. 63, 71-72 (5) (694 SE2d 316) (2010)
(citations and punctuation omitted), disapproved on other grounds
by Willis, 304 Ga. at 706 (11) (a) n.3. See also Willis, 304 Ga. at 698
(9) (“[T]he erroneous exclusion from the list from which a
defendant’s jury is selected of a single prospective juror based on his
or her purported unwillingness to consider a death sentence
mandates the reversal of a death sentence.”). After our careful
review of the voir dire of the jurors at issue, we conclude that the
trial court did not abuse its discretion by excusing them.
12. Young also argues that the trial court erred by refusing to
excuse eight prospective jurors based on their voir dire responses
regarding the death penalty. First, applying the same standards set
forth in Division 11, and after our careful review of the voir dire of
the jurors in question, we conclude that the trial court did not abuse
its discretion. See Humphreys, 287 Ga. at 72 (5) (“The same
standard applies to a court’s decision to qualify a prospective juror
over defendant’s objection.” (citation and punctuation omitted)).
22
Furthermore, declining Young’s invitation to overrule our recent
holding to the contrary, we conclude that any error regarding these
jurors would have been harmless because none of them served on
the 12-person jury that rendered the verdicts in Young’s case. See
Willis, 304 Ga. at 701-707 (11).
13. Young argues that the trial court improperly limited voir
dire regarding prospective jurors’ willingness to consider a sentence
less than death upon a conviction for murder, as distinguished from
cases where a complete defense has been proven or where only a
lesser crime has been proven. First, we conclude that this issue was
waived for the purposes of ordinary appellate review by Young’s
failure to object at the time of the announced limitations on his voir
dire. See Martin v. State, 298 Ga. 259, 278-279 (6) (d) (779 SE2d
342) (2015), disapproved on other grounds by Willis, 304 Ga. at 706
(11) (a) n.3; Braley v. State, 276 Ga. 47, 52 (18) (572 SE2d 583)
(2002).5 Furthermore, our review of the voir dire reveals that the
5 In Martin, we explained that a special form of review applies to cases
where a death sentence has been imposed. We stated:
23
trial court, rather than disallowing Young’s questions, simply
directed him to make his questions more focused, and we therefore
conclude that the trial court did not abuse its discretion. See
Arrington, 286 Ga. at 338 (7) (“The scope of voir dire is generally a
matter for the trial court’s discretion.”).
14. Young argues that the trial court improperly limited his
voir dire of one juror on the subject of the juror’s views on
intellectual disability. The trial court, after correctly noting that
similar questioning of the juror had already been allowed, simply
instructed Young to “rephrase [his] question” and specifically
authorized Young to “go into something more deeply” on the issue.
At that point, Young raised no objection to the trial court’s
instructions but instead stated: “[W]e’ll move on from that. We got
This form of review in death penalty cases arises not from any
ordinary appellate review principle; instead, it arises from the
statutory mandate for this Court to ensure that no death sentence
is “imposed under the influence of passion, prejudice, or any other
arbitrary factor.” OCGA § 17-10-35 (c) (1).
Martin, 298 Ga. at 278 (6) (d). We also explained that this special review
“include[s] a plenary review of the record” that “guards against any obvious
impropriety at trial, whether objected to or not, that in reasonable probability
led to the jury’s decision to impose a death sentence.” Id. at 279 (6) (d). We
conduct this special review below in Division 49.
24
enough questions on that. . . .” Accordingly, we hold that this claim
has been waived for the purposes of ordinary appellate review. See
Martin, 298 Ga. at 278-279 (6) (d); Braley, 276 Ga. at 52 (18).
Furthermore, we conclude that the trial court did not abuse its
discretion. See Arrington, 286 Ga. at 338 (7) (“The scope of voir dire
is generally a matter for the trial court’s discretion.”).
Issues Related to the Guilt/Innocence Phase
15. There is no merit to Young’s argument that Georgia’s
murder statute, OCGA § 16-5-1, is unconstitutional. See Lamar v.
State, 278 Ga. 150, 155 (10) (598 SE2d 488) (2004).
16. Young argues that his constitutional rights were violated
by the placement of an electronic stun belt on him during his trial.
Young filed a pretrial motion objecting to the use of such a stun belt
for security purposes at his trial, and the trial court ruled, with
Young present, that the issue was moot because no stun belt was
being used at the time. However, the trial court stated that it would
conduct a hearing on the issue if the use of a stun belt were
requested in the future. About halfway through the guilt/innocence
25
phase of the trial, while the trial court, again in Young’s presence,
was hearing arguments regarding a juror who was afraid of Young,
the prosecutor stated: “[O]bviously [the juror] doesn’t know that Mr.
Young’s wearing a shock belt. . . .” The prosecutor’s statement was
then reinforced in the State’s brief filed in the trial court in response
to Young’s motion to remove this fearful juror. That brief stated:
“The jurors do not have the knowledge that the Court, State, and
Defendant have with respect to the ‘shock belt’ device that the
Defendant is wearing underneath his non jail-garb clothing.”
Although the defendant himself obviously was aware that he was
wearing the stun belt from the beginning and that defense counsel
were aware of it at least from the time of the hearing and the State’s
brief, no concern regarding the stun belt was ever raised by Young
or his counsel during the trial.
After Young raised the issue of the stun belt for the first time
in his third amendment to his motion for new trial, the trial court
conducted a hearing on the matter. In its order denying the claim,
despite Young’s testimony at the hearing that the stun belt made
26
him “uncomfortable” and “scared” and prevented him from speaking
directly to the two of his three attorneys who were seated farther
down the defense table, the trial court noted that Young also
“testified that the stun belt did not prevent him from speaking to or
conferring with his third attorney who sat next to him throughout
the trial.” The court also noted that this third attorney testified that
she indeed spoke to Young during the trial, and the court further
noted that the attorney “said nothing about any anxiety or
reluctance [on Young’s part] to speak with her.” Based on this
evidence, the trial court found that “there is no credible evidence
that the stun belt had any effect, adverse or otherwise, on the
defendant’s Sixth Amendment and due process rights to be present
at trial and to participate in his defense.”
Furthermore, the trial court noted other testimony at the
hearing showing that the deputies who fitted Young with the stun
belt explained to Young “the operation of the stun belt and what
would have to occur before it was used,” explained to Young that he
“would be warned or given instructions before the belt was ever
27
activated,” and explained to Young the circumstances that would
warrant the use of the stun belt, which did not include anything
about Young’s speaking to his attorneys. The court further noted
testimony showing that “care was taken to be sure the device did not
fit too tightly” and that Young “never complained . . . about the belt
being uncomfortable or preventing him from communicating with
his attorneys.” Based on these findings, the court finally concluded:
“The constitutional rights of the defendant to counsel and to
participate in his defense were not impacted by the use of the stun
belt.”
As to any portion of this claim regarding the stun belt that is
related to the time period following the hearing regarding a fearful
juror in which the State specifically noted that Young was wearing
the belt, we conclude that the claim was waived for the purposes of
ordinary appellate review by Young’s failure to raise it. See Martin,
298 Ga. at 278-279 (6) (d); Weldon v. State, 297 Ga. 537, 541 (775
SE2d 522) (2015) (“Failure to raise the issue [regarding a stun belt]
deprives the trial court of the opportunity to take appropriate
28
remedial action and waives appellate review of any alleged
impropriety.”). Cf. People v. Harris, 904 NE2d 1200, 1206-1207 (III)
(Ill. App. Ct. 2009) (holding that a similar issue was amenable to
that court’s plain error review, which is analogous to the review we
conduct below in the Sentence Review section of this opinion). To
the extent that this waiver might not apply to the time period prior
to the hearing regarding the fearful juror because defense counsel
were entitled to rely on the trial court’s original ruling that any use
of a stun belt would only follow a request for that security measure
and a hearing on the matter, we conclude, based on the trial court’s
findings in its order denying Young’s motion for new trial, that the
lack of such a hearing was harmless beyond a reasonable doubt and
therefore does not require a new trial. See Chapman v. California,
386 U. S. 18, 24 (III) (87 SCt 824, 17 LE2d 705) (1967) (holding that,
in general, constitutional violations require reversal unless found to
be harmless beyond a reasonable doubt). Cf. United States v.
Durham, 287 F3d 1297, 1308-1309 (D) (11th Cir. 2002) (applying a
harmless beyond a reasonable doubt standard of review to a claim
29
regarding a stun belt); State v. Bates, 125 P3d 42, 47 (Or. Ct. App.
2005) (concluding “that there is little likelihood that the verdict was
affected by any inhibition defendant may have experienced as a
result of being required to wear the stun belt” and “that any error
was harmless beyond a reasonable doubt”).6
17. The trial court did not abuse its discretion in denying
Young’s motion in limine regarding testimony from Doris Jones
describing signs of a forced entry into the victim’s laundry room
prior to the day of the murder on grounds of relevance and the
allegedly speculative nature of that testimony, particularly in light
of the other evidence showing that Young had driven to the home
prior to the day of the murder. See Crozier v. State, 263 Ga. 866,
867 (2) (440 SE2d 635) (1994) (“Any evidence is relevant which
logically tends to prove or to disprove a material fact which is at
issue in the case, and every act or circumstance serving to elucidate
or to throw light upon a material issue or issues is relevant. . . . The
6 We do not endorse, however, the State’s failure to comply with the
trial court’s pretrial order regarding the use of a shock belt.
30
trial court has great discretion to determine relevancy and
materiality of evidence, and admission is favored in doubtful cases.”
(citation and punctuation omitted)). Insofar as Young’s additional
oral objection to the testimony also addressed a hearsay account of
the victim’s whereabouts on the night of the crime from his
girlfriend, we see no reversible error, because the testimony was
“cumulative of legally admissible evidence” from the girlfriend
herself. Wright v. State, 291 Ga. 869, 872 (3) (a) (734 SE2d 876)
(2012) (citation and punctuation omitted).
18. The trial court did not abuse its discretion in applying the
former necessity exception to the hearsay rule to allow testimony
from Doris Jones regarding a statement that the victim had made to
her about a warning he had given to Young regarding Young’s
possibly “putting his hands on” her. See Jennings v. State, 288 Ga.
120, 121-122 (3) (702 SE2d 151) (2010).7
7 We note that Young’s trial was not governed by Georgia’s current
Evidence Code, which took effect on January 1, 2013. See Parker v. State, 296
Ga. 586, 588 (1) (769 SE2d 329) (2015) (citing Ga. L. 2011, p. 99, § 101).
31
19. Young’s claim regarding the absence of a warrant to obtain
location data for his cell phone was waived for the purposes of
ordinary appellate review by his failure to raise the issue at trial.
See Martin, 298 Ga. at 278-279 (6) (d). See also Carpenter v. United
States, __ U. S. __, __ (IV) (138 SCt 2206, 2222, 201 LE2d 507) (2018)
(addressing the privacy of cell phone location data).
20. Young’s claim regarding the probative value versus the
prejudicial effect of a recorded 911 call from Doris Jones has been
waived for the purposes of ordinary appellate review by his failure
to object at trial. See Martin, 298 Ga. at 278-279 (6) (d); Bryant v.
State, 288 Ga. 876, 887 (8) (c) (708 SE2d 362) (2011).
21. Young argues that testimony from Doris Jones regarding
a statement from her sister recounting a report from a third person
about Young’s whereabouts during the crimes, along with certain
testimony from Annie Sampson, Sonny Goodson, Wesley Horne, Leo
Rivers, and Latrice Rivers, constituted improper hearsay testimony.
These claims were waived for the purposes of ordinary appellate
32
review by Young’s failure to object at trial. 8 See Martin, 298 Ga. at
278-279 (6) (d); Bryant, 288 Ga. at 887 (8) (c).
22. Young argues that an investigator gave speculative and
improper opinion testimony by stating that it would have been
“understandable” for Young to have been in Georgia and that it
would have been “natural” for Young freely to admit as much,
because, as Young had told the investigator, Young had been to
Georgia in the past. First, this issue was waived for the purposes of
ordinary appellate review by Young’s failure to object at trial. See
Martin, 298 Ga. at 278-279 (6) (d); Bryant, 288 Ga. at 887 (8) (c).
And, in any event, the testimony was not improper. See Harris v.
8 Young concedes that his hearsay argument regarding Annie Sampson
was not preserved for ordinary appellate review. Our own review of the record
reveals that the trial court’s order reconstructing portions of the record
concluded that a hearsay objection was raised in the bench conferences held
during Ms. Sampson’s testimony. See OCGA § 5-6-41 (f) (providing for
amendments to the record). However, Young’s “Proposed Record
Reconstruction and Request for Hearing” stated that neither party could
“recall the substance of the objection,” and, in keeping with that
representation, the trial court made no finding regarding what the substance
of the hearsay objection might have concerned. Because there is no record of
what specific hearsay objection was raised or why it was denied, we accept
Young’s concession on appeal that the issue was not preserved for ordinary
appellate review.
33
State, 279 Ga. 304, 305-306 (1) (612 SE2d 789) (2005) (“A lay
witness may relate his or her opinion as to the existence of any fact
so long as the opinion is based upon the person’s own experiences
and observations, and so long as the matter referred to is within the
scope of the average juror’s knowledge.”).
23. The trial court did not abuse its discretion in admitting
photographs of the victim taken during his autopsy while medical
instruments were used to retract tissue in order to reveal relevant
injuries. See Brown v. State, 250 Ga. 862, 867 (5) (302 SE2d 347)
(1983) (“A photograph which depicts the victim after autopsy
incisions are made or after the state of the body is changed by
authorities or the pathologist will not be admissible unless
necessary to show some material fact which becomes apparent only
because of the autopsy.”), abrogated by the current Evidence Code
as stated in Venturino v. State, 306 Ga. 391, 396 (2) (b) (830 SE2d
110) (2019). See also Bunnell v. State, 292 Ga. 253, 258 (5) (735
SE2d 281) (2013) (noting a trial court’s discretion regarding autopsy
photographs); Simmons v. State, 291 Ga. 705, 711 (8) (b) (733 SE2d
34
280) (2012) (addressing photographs taken during the use of medical
instruments such as forceps). This holding is not changed by the
fact that Young’s trial strategy included an admission of his guilt,
because the State was entitled to prove its case for guilt rather than
to rely on Young’s admissions. See Morgan v. State, 307 Ga. 889,
896 (3) (b) (838 SE2d 878) (2020) (“[A] criminal defendant may not
stipulate or admit his way out of the full evidentiary force of the case
as the State chooses to present it.” (citation and punctuation
omitted)).
24. During the guilt/innocence phase, a witness testified that
she had been Young’s friend for over ten years and that their
relationship had at some points been sexual. In addition to
corroborating several of the details of the State’s evidence regarding
Young’s whereabouts and cell phone calls near the time of the
murder, the witness also testified that Young came to her house on
the day following the murder after he got off work and that she then
saw him again later that night at his house. With no
contemporaneous objection from Young, the State asked her if she
35
and Young had sex that night, and she answered affirmatively.
After this testimony was concluded and after a lunch break,
defense counsel argued that the testimony about the witness and
Young having sex was improper because it was irrelevant to the
question of Young’s guilt. Defense counsel stated that Young was
not seeking a curative instruction but instead was asking that the
State be precluded from discussing the testimony about sex during
its closing argument in the guilt/innocence phase on the ground that
the testimony was irrelevant to the question of guilt but was highly
prejudicial. The trial court ruled:
Well, I can see that it would be corroborative in terms of
Ms. [Doris] Jones’ testimony about the defendant
allegedly being unfaithful, that this would corroborate
her perception of the nature of their relationship and why
they would have arguments and to show that her
testimony concerning his conduct, that would be evidence
to support that her suspicions or her statements were
well-founded. So I do find that it would have some
corroborative value there. So in terms of just totally
precluding them from arguing her testimony, I’m going to
deny that request. I mean, anything can be argued in the
wrong way. Anything can be – you can have incorrect
argument, but I’m not going to preclude them from even
mentioning it. They can’t use it just to attack the
character or whatever, but to, for the proper purpose that
36
I just described.
We conclude that the trial court did not abuse its discretion in ruling
on Young’s argument concerning the relevance of the witness’s
testimony to the question of guilt. See Spiller v. State, 282 Ga. 351,
354 (3) (647 SE2d 64) (2007) (holding that the trial court had not
abused its discretion in allowing a certain inference to be made in a
closing argument, because the “inference was a permissible one from
the evidence presented at trial”). See also Moore v. State, 295 Ga.
709, 714 (3) (763 SE2d 670) (2014) (addressing the propriety of
evidence that might incidentally place the character of the
defendant at issue but is otherwise relevant).
Pursuant to the trial court’s ruling on relevance, the State
argued in its guilt/innocence phase closing argument, while arguing
how various behaviors that Young was capable of were relevant to
the various “adaptive functioning areas” used in considering a
possible finding of intellectual disability: “And the fact, again, that
he’s able to have this other relationship with another woman shows
that he is multi-faceted, and there’s a lot more to Rodney Young than
37
what you’ve seen in this trial.” To the extent that Young argues on
appeal, in addition to the ground of relevance discussed above, that
the State’s argument regarding the issue of intellectual disability
was unconstitutional, we conclude that the issue was waived for the
purposes of ordinary appellate review by Young’s failure to make
this specific objection at trial. See Martin, 298 Ga. at 278-279 (6)
(d).
25. Young argues that requiring him to prove his intellectual
disability beyond a reasonable doubt in order to be exempted from a
death sentence was unconstitutional. Seeing no clear direction in
the law to hold otherwise, we adhere to our prior decisions upholding
Georgia’s standard of proof.
(a) In 1988, Georgia was the first state in the nation to enact
a statutory ban on the execution of intellectually disabled persons.
See OCGA § 17-7-131 (c) (3), (j) (as amended by Ga. L. 1988, p. 1003,
§ 1). In 1989, shortly after Georgia enacted this groundbreaking
statute, the United States Supreme Court held that there was no
similar protection in the United States Constitution. See Penry v.
38
Lynaugh, 492 U. S. 302 (109 SCt 2934, 106 LE2d 256) (1989).
However, this Court held in 1989 that such a protection did exist
under the Georgia Constitution and accordingly extended the new
statutory protection to apply to persons tried in Georgia before the
statute’s effective date. See Fleming v. Zant, 259 Ga. 687, 690 (3)
(386 SE2d 339) (1989) (“[Penry] was based in great part on the
absence of any ‘national consensus’ against executing the mentally
retarded. In contrast, the objective evidence indicates that a
consensus against execution of the mentally retarded does exist
among Georgians.”). This Court then further extended Georgia’s
protection of intellectually disabled persons to those who could have
but did not raise the issue at trial, concluding that allowing such
defaulted claims in a prisoner’s first state habeas proceeding was
necessary to prevent a possible miscarriage of justice. See Turpin v.
Hill, 269 Ga. 302, 303 (3) (b) (498 SE2d 52) (1998) (citing OCGA § 9-
14-48 (d)). In 2002, the United States Supreme Court, concluding
that a “national consensus” on the issue had developed in the 14
years since Georgia enacted its statutory protection for persons with
39
intellectual disabilities, overruled Penry and announced that the
execution of intellectually disabled persons violated the United
States Constitution. Atkins v. Virginia, 536 U. S. 304, 316 (III) (122
SCt 2242, 153 LE2d 335) (2002). See id. at 321 (IV) (“Construing
and applying the Eighth Amendment in the light of our ‘evolving
standards of decency,’ we therefore conclude that such punishment
is excessive and that the [United States] Constitution ‘places a
substantive restriction on the State’s power to take the life’ of a
mentally retarded offender.” (quoting Ford v. Wainwright, 477 U. S.
399, 405 (II) (106 SCt 2595, 91 LE2d 335) (1986)).
(b) While Georgia was the first state to ban the execution of
intellectually disabled persons, it has from the initial adoption of
that ban imposed a burden to prove intellectual disability on
defendants under a beyond a reasonable doubt standard.9 This
9 The Georgia Code provides: “The defendant may be found ‘guilty but
with intellectual disability’ if the jury, or court acting as trier of facts, finds
beyond a reasonable doubt that the defendant is guilty of the crime charged
and is intellectually disabled.” OCGA § 17-7-131 (c) (3) (as amended in 2017
to use the term “intellectual disability”). This Court has held: “[T]he plain
language of OCGA § 17-7-131 (c) (3) requires that the defendant prove his
40
standard of proof has been challenged several times in this Court on
constitutional grounds, particularly in light of the fact that some
other states impose only a clear and convincing evidence standard
on defendants seeking to prove their intellectual disability and the
majority of states that still have the death penalty impose only a
preponderance of the evidence standard on defendants. See
Raulerson v. Warden, 928 F3d 987, 1013-1014 (I) (B) (11th Cir. 2019)
(Jordan, J., concurring in part and dissenting in part) (discussing
the varying standards of proof applied). This Court’s last published
decision upholding Georgia’s standard of proof was in Stripling v.
State in 2011. See 289 Ga. at 371 (1) (“We have previously addressed
this very issue, and we now reiterate our prior holding that Georgia’s
beyond a reasonable doubt standard is not unconstitutional.” (citing
mental retardation beyond a reasonable doubt. . . .” Burgess v. State, 264 Ga.
777, 789-790 (36) (450 SE2d 680) (1994). Although we initially directed that a
preponderance of the evidence standard should be applied to claims of
intellectual disability raised by habeas petitioners who had been tried prior to
the effective date of the statutory protection, our later case law has strongly
suggested that even those cases should also have employed the beyond a
reasonable doubt standard. See Hill, 269 Ga. at 303-304 (4).
41
Head v. Hill, 277 Ga. 255, 260-263 (II) (B) (587 SE2d 613) (2003)).
In Stripling, we explained:
In addressing this issue previously, we first noted that,
although the Supreme Court of the United States had
recognized a constitutional right of mentally retarded
defendants to be exempt from the death penalty, it had
not directed the states to apply any particular burden of
proof to claims of mental retardation. See Atkins v.
Virginia, 536 U.S. 304 (122 SCt 2242, 153 LE2d 335)
(2002) (identifying a national consensus against
executing mentally retarded persons and holding that
executing such persons was therefore unconstitutional).
Instead, we noted that the Supreme Court “specifically
left ‘“to the States the task of developing appropriate ways
to enforce the (federal) constitutional restriction”’ on
executing the mentally retarded.” Hill, 277 Ga. at 260 (II)
(B) (quoting Atkins, 536 U. S. at 317 (III) (citation
omitted)). See also Bobby v. Bies, __ U. S. __, __ (I) (129
SC 2145, 2150 (I), 173 LEd2d 1173) (2009) (“Our opinion
[in Atkins] did not provide definitive procedural or
substantive guides for determining when a person who
claims mental retardation ‘will be so impaired as to fall
(within Atkins’ compass).’” (quoting Atkins, 536 U. S. at
317 (III)). . . .
Stripling, 289 Ga. at 371-372 (1). We reaffirmed our prior holding
that claims of intellectual disability are more closely analogous to
claims of insanity, which the Supreme Court has held could be
subjected to a beyond a reasonable doubt standard, than they were
42
to claims of incompetence to stand trial, which the Supreme Court
has held could not be subjected to a standard higher than a
preponderance of the evidence. See id. at 372 (1) (discussing Leland
v. Oregon, 343 U. S. 790 (72 SCt 1002, 96 LE 1302) (1952), and
Cooper v. Oklahoma, 517 U. S. 348 (116 SCt 1373, 134 LE2d 498)
(1996)). We concluded our discussion regarding the purely
procedural aspect of the standards that we were reaffirming by
stating:
Thus, in light of the specific statement by the Supreme
Court that it had not established any particular
procedural standards that must be applied to mental
retardation, the similarity of mental retardation claims to
claims of insanity at the time of the commission of crimes,
and the persuasive effect of having sister states who have
refused to declare the preponderance of the evidence
standard to be constitutionally required, we held that
Georgia’s beyond a reasonable doubt standard was not
unconstitutional from a procedural point of view.
Id. at 372-373 (1).
After concluding our analysis of Georgia’s standard of proof on
procedural grounds, we also reaffirmed our prior holding
that Georgia’s beyond a reasonable doubt standard
further served to define the category of mental
43
retardation within Georgia law and that, in [setting this
standard], Georgia had not acted outside the bounds of
the national consensus about the treatment of mentally
retarded persons identified by the Supreme Court in
Atkins.
Stripling, 289 Ga. at 373 (1). We further noted that “Georgia was
not alone in defining mental retardation through the use of a
heightened standard of proof at the time of Atkins” and that the
several states at that time applying a clear and convincing evidence
standard had been counted among the states forming a national
consensus. Stripling, 289 Ga. at 373 (1). We observed:
[T]he Supreme Court noted as follows:
To the extent there is serious disagreement
about the execution of mentally retarded
offenders, it is in determining which offenders
are in fact retarded. . . . Not all people who
claim to be mentally retarded will be so
impaired as to fall within the range of mentally
retarded offenders about whom there is a
national consensus.
Id. at 374 (1) (quoting Atkins, 536 U. S. at 317 (III)). We concluded
this portion of our analysis by stating:
Therefore, we reaffirm that Georgia’s statutory definition
of mental retardation, with its requirement that only
44
mental deficiencies capable of proof beyond a reasonable
doubt [qualify for protection], is not unconstitutional
under Atkins.
Id.(c) (i) First, Young assails our prior holdings affirming
Georgia’s beyond a reasonable doubt standard in reference to the
second portion of the analysis set forth in Stripling, which addressed
the matter from a more substantive perspective. The United States
Supreme Court has recently stated: “In Atkins v. Virginia, we held
that the Constitution ‘restrict[s] . . . the State’s power to take the life
of’ any intellectually disabled individual.” Moore v. Texas, __ U. S.
__, __ (II) (137 SCt 1039, 1048, 197 LE2d 416) (2017). Accordingly,
we disapprove anything in our prior decisions suggesting otherwise,
particularly those parts of our prior decisions suggesting that
“Georgia’s beyond a reasonable doubt standard further served to
define the category of mental retardation.” Stripling, 289 Ga. at 373(1). See Atkins, 536 U. S. at 317 (III); Hill, 277 Ga. at 262 (II) (B).
See also Williams v. Cahill, 303 P3d 532, 550 (Ariz. Ct. App. 2013)
(Eckerstrom, P.J., dissenting) (“But this paragraph [from Atkins], by
45
its terms, only invites states to develop ‘ways to enforce’ the
constitutional restriction imposed in Atkins. No part of that
language suggests the states are likewise entrusted with the power
to redefine the substance of the constitutional restriction itself.”).
While we continue to take some guidance from the Supreme Court’s
observation that there is disagreement among the states “in
determining which offenders are in fact retarded,” we acknowledge
that this observation is relevant only to the procedures for
determining whether defendants are intellectually disabled and
that every state is constitutionally required to recognize prevailing
clinical definitions of intellectual disability in defining the category
of persons who are constitutionally protected, including those who
are “mildly mentally retarded.” Atkins, 536 U. S. at 308 (I), 317 (III).
See Moore, 137 SCt at 1049 (II) (“Hall indicated that being informed
by the medical community does not demand adherence to everything
stated in the latest medical guide. But neither does our precedent
license disregard of current medical standards.”); Hall v. Florida,
572 U. S. 701, 720-721 (III) (C) (134 SCt 1986, 188 LE2d 1007)
46
(2014) (“If the States were to have complete autonomy to define
intellectual disability as they wished, the Court’s decision in Atkins
could become a nullity, and the Eighth Amendment’s protection of
human dignity would not become a reality. This Court thus reads
Atkins to provide substantial guidance on the definition of
intellectual disability.”). On this point, we emphasize that Georgia,
by statute and through case law, has always applied such prevailing
clinical standards. See, e.g., Stripling v. State, 261 Ga. 1, 4 (3) (b)
(401 SE2d 500) (1991). See also Hill v. Humphrey, 662 F3d 1335,
1352 (III) (D) (11th Cir. 2011) (“It is undisputed that Georgia’s
statutory definition of mental retardation is consistent with the
clinical definitions cited in Atkins.”).
(ii) We turn now to the procedural issue that Young raises
regarding the constitutionality of Georgia’s standard of proof. On
this question, we begin and end with the Supreme Court’s statement
in Atkins that it “‘l[eft] to the States the task of developing
appropriate ways to enforce the [federal] constitutional restriction’”
on executing intellectually disabled persons. Atkins, 536 U. S. at
47
317 (III) (quoting Ford, 477 U. S. at 416 (V) (A) (plurality portion of
opinion)). 10 We acknowledge that the states’ freedom to develop
appropriate procedures does not leave them unfettered from general
constitutional principles, but we conclude, despite Young’s
arguments to the contrary discussed below,11 that it does permit the
procedure that the Georgia General Assembly has chosen.
First, Young argues that the Supreme Court’s recent decisions
in Hall v. Florida and Moore v. Texas require this Court’s
disapproval of Georgia’s beyond a reasonable doubt standard. See
Moore, 137 SCt 1039 (addressing the “wholly nonclinical” factors
10 We again emphasize that the substantive question of intellectual
disability is not at issue here. As the Supreme Court has stated about its
principle of leaving to the states the responsibility for creating appropriate
procedures: “Fidelity to this important principle of federalism, however,
should not be construed to demean the substantive character of the federal
right at issue.” Montgomery v. Louisiana, 577 U. S. 190, 211 (III) (136 SCt 718,
193 LE2d 599) (2016). See People v. Vasquez, 84 P3d 1019, 1022 (III) (B) (1)
(Colo. 2004) (“Atkins placed a ‘substantive restriction on the State’s power to
take the life of a mentally retarded offender.’ Atkins, 536 U.S. at 321 (internal
quotation marks omitted) (emphasis added). Far from announcing a
procedural rule, Atkins merely declared that the Eighth Amendment now
prohibits the execution of the mentally retarded. Id.”).
11 We also consider here the parallel arguments made by the amici
curiae, The Arc of the United States, The Arc of Georgia, and the Georgia
Advocacy Office.
48
that Texas applied); Hall, 572 U. S. 701 (addressing a “strict IQ score
cutoff” applied by Florida). We have considered these decisions
carefully, especially as discussed in this opinion regarding the
procedural question of Georgia’s standard of proof. However, we
note that they directly addressed only questions regarding the
substantive definition of intellectual disability and the requirement
that states must, as Georgia indisputably does, adhere to prevailing
clinical definitions of intellectual disability in fashioning such a
definition. Thus, if this Court’s precedents regarding the beyond a
reasonable doubt standard are somehow incorrect, it would not be
because of the core holding of Hall or Moore.
Next, Young argues that this Court has previously relied on
inapposite case law from the United States Supreme Court in
upholding the beyond a reasonable doubt standard. As we noted
above, we have previously discussed the Supreme Court decisions of
Cooper v. Oklahoma and Leland v. Oregon as being relevant to our
evaluation of the constitutionality of Georgia’s beyond a reasonable
doubt standard. See Cooper, 517 U. S. 348; Leland, 343 U. S. 790.
49
See also Stripling, 289 Ga. at 372 (1) (discussing Cooper and
Leland); Hill, 277 Ga. at 261 (II) (B) (same). Despite Young’s
arguments that we should do otherwise, and although we
acknowledge that neither case is a perfect fit to answer the question
presented here, we continue to take more guidance from Leland
than from Cooper.
In Cooper, the Supreme Court held as a matter of federal due
process that a defendant could not be required to prove his or her
incompetence to stand trial by clear and convincing evidence. See
Cooper, 517 U. S. at 350, 369 (V). Cf. id. at 355 (II) (“Our recent
decision in Medina v. California, 505 U.S. 437, 120 L. Ed. 2d 353,
112 S. Ct. 2572 (1992), establishes that a State may presume that
the defendant is competent and require him to shoulder the burden
of proving his incompetence by a preponderance of the evidence. Id.,
at 449.”). The Supreme Court noted that “[n]o one questions the
existence of the fundamental right” involved, id. at 354 (II), and we
conclude that in this regard Cooper is relevant to the issue of
intellectual disability, because the right of intellectually disabled
50
persons not to be executed has also been made a clear constitutional
right. 12 Likewise, the issue in Cooper and the issue here both
involve consideration of the risks arising from a potentially
erroneous finding of fact. See id. at 362-368 (IV and V). 13 However,
the Supreme Court emphasized in Cooper the historical basis for the
right to not be tried while incompetent and the historical basis in
English and American common law for requiring defendants to
12 We note here Young’s argument that this Court first deemed Leland
to be more persuasive than Cooper on the issue of a standard of proof for
intellectual disability prior to the Supreme Court’s announcement of the
relevant federal constitutional right. However, we point out that this Court
has already addressed this issue, and we remain mindful of it as we reach our
conclusions here. See Hill, 277 Ga. at 260 (II) (B) (“Now that the Georgia
exemption from death sentences for mentally retarded persons is paralleled by
a new federal exemption, we must determine whether, under the authority of
federal constitutional law, the beyond a reasonable doubt standard continues
to be an acceptable standard of proof to apply to mental retardation claims.”
(emphasis omitted)).
13 We note here Young’s extensive argument regarding statistics
concerning claims of intellectual disability in Georgia; however, we agree with
the Eleventh Circuit in holding that statistics like Young’s are neither
complete nor constitutionally compelling. See Hill, 662 F3d at 1357 (F)
(“[E]ven if one were to consider the dissent’s skewed data, the fact remains that
reported cases in Georgia actually show that judges and juries do find
defendants guilty but mentally retarded under Georgia’s proof beyond a
reasonable doubt standard.”). It is important to note in this regard that cases
in which intellectually disabled persons are never charged with crimes, resolve
charges without a trial, or obtain a not guilty verdict from a jury would rarely
if ever result in reported judicial decisions and thus would not be included in
the statistics that Young offers here.
51
prove their incompetence only by a preponderance of the evidence.
See id. at 354-360 (II and III). And it was in reference to this
historical basis for the right at issue that the Supreme Court noted
the fact that “[o]nly 4 of the 50 States” imposed the higher burden of
proof at issue. Id. at 360 (III). See also id. at 362 (III) (“The near-
uniform application of a standard that is more protective of the
defendant’s rights than Oklahoma’s clear and convincing evidence
rule supports our conclusion that the heightened standard offends a
principle of justice that is deeply ‘rooted in the traditions and
conscience of our people.’ Medina v. California, 505 U.S. at 445(internal quotation marks omitted).”). In contrast, such historical
support is absent for claims of intellectual disability, as well
summarized by the Eleventh Circuit:
In contrast, there is no historical right (in the Eighth
Amendment or elsewhere) of a mentally retarded person
not to be executed. And since the constitutional right
itself is new, there is no historical tradition regarding the
burden of proof as to that right. As recently as 1989,
Penry refused to bar the execution of the mentally
retarded. Atkins was based not on historical tradition or
the Due Process Clause, but on the contemporary national
consensus that reflected “the evolving standards of
52
decency” that informed the meaning of the Eighth
Amendment. Atkins, 536 U.S. at 311-12, 122 S. Ct. at
2247. Indeed, Georgia’s reasonable doubt standard for
establishing a mental retardation exception to the death
penalty, which was enacted twenty-three years ago, is the
oldest such law in the nation. Although other states
recently have employed either clear and convincing
evidence or preponderance of evidence standards, no more
lenient standard of proof predates Georgia’s.
Hill, 662 F3d at 1350-1351 (III) (C). See also Raulerson, 928 F3d at
1002 (III) (B) (2) (“Unlike the right at issue in Cooper, which has its
deep roots in our common-law heritage, there is no historical right
of an intellectually disabled person not to be executed.”).14
We turn next to an examination of our prior decisions insofar
as they identified limited guidance on the constitutionality of
Georgia’s standard of proof in Leland. The United States Supreme
Court began its analysis in Leland by noting that there was at least
14 We note that, if Cooper’s holding applied in this context with full force,
the laws of the states where a clear and convincing standard applies would also
be unconstitutional. See also Hill, 662 F3d at 1355 (III) (E) (“The effective
result of Hill’s argument, then, is that every state’s death penalty statute or
case law procedure is unconstitutional because none of them requires the state
to prove the absence of mental retardation beyond a reasonable doubt. Or, to
take Hill’s argument to its logical conclusion, beyond all doubt.”).
53
some historical precedent supporting Oregon’s beyond a reasonable
doubt standard for insanity claims, noting the origin of Oregon’s
statutory rule in 1864, the announcement in 1843 in England of a
rule requiring such claims to be “clearly proved,” and the
requirement applied in “most of the nineteenth-century American
cases” that a defendant “‘clearly’ prove insanity.” Leland, 343 U. S.
at 796-797. The Court also noted that it had previously adopted a
rule, through its supervisory authority over the federal courts,
requiring an acquittal in federal prosecutions whenever “‘there is
reasonable doubt whether [the defendant] was capable in law of
committing crime,’” id. at 797 (quoting Davis v. United States, 160
U. S. 469, 484 (16 SCt 353, 40 LE 499) (1895)); however, the Court
emphasized that its holding in Davis “obviously establishes no
constitutional doctrine, but only the rule to be followed in federal
courts,” id.The Supreme Court in Leland noted the central fact at issue,
which was that “Oregon [wa]s the only state that require[d] the
accused, on a plea of insanity, to establish that defense beyond a
54
reasonable doubt.” Leland, 343 U. S. at 798. The Court noted that
“[s]ome twenty states” required defendants “to establish [their]
insanity by a preponderance of the evidence or some similar
measure of persuasion.” Id. Nevertheless, the Court, in comparing
Oregon’s beyond a reasonable doubt standard with these
preponderance standards, held:
While there is an evident distinction between these two
rules as to the quantum of proof required, we see no
practical difference of such magnitude as to be significant
in determining the constitutional question we face here.
Id. And yet, while not “significant” to the ultimate question, the
Court stated, in words that warrant attention in Young’s case given
the number of American jurisdictions that employ standards of proof
for intellectual disability that are different from Georgia’s:
The fact that a practice is followed by a large number of
states is not conclusive in a decision as to whether that
practice accords with due process, but it is plainly worth
considering in determining whether the practice “offends
some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental.”
Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).
Id. (emphasis supplied). See Raulerson, 928 F3d at 1013-1014 (I)
55
(B) (Jordan, J., concurring in part and dissenting in part) (discussing
the various standards of proof applied in different jurisdictions).
The Court, again noting its own contrary rule for the federal
courts, held regarding Oregon’s standard of proof:
But “its procedure does not run afoul of the Fourteenth
Amendment because another method may seem to our
thinking to be fairer or wiser or to give a surer promise of
protection to the prisoner at the bar.” Snyder v.
Massachusetts, supra, at 105.
Leland, 343 U. S. at 799. The Court concluded:
We are therefore reluctant to interfere with Oregon’s
determination of its policy with respect to the burden of
proof on the issue of sanity since we cannot say that policy
violates generally accepted concepts of basic standards of
justice.
Id.We note, in deciding the degree of guidance to be gained in
Young’s case from Leland, that Leland was not a case involving an
underlying right that the Supreme Court had specifically “held to be
secured to defendants in federal courts by the Bill of Rights.”
Leland, 343 U. S. at 798. See also Medina v. California, 505 U. S.
437, 449 (112 SCt 2572, 120 LE2d 353) (1992) (“Moreover, while the
56
Due Process Clause affords an incompetent defendant the right not
to be tried, we have not said that the Constitution requires the
States to recognize the insanity defense.” (citations omitted)). But
we also note that the Supreme Court has since clarified that some
acceptable definition of insanity is constitutionally required. See
Kahler v. Kansas, __ U. S. __, __ (II) (A) (140 SCt 1021, 1028-1029,
206 LE2d 312) (2020) (“A State’s ‘insanity rule[ ] is substantially
open to state choice.’” (quoting Clark v. Arizona, 548 U. S. 735, 752
(II) (A) (126 SCt 2709, 165 LE2d 842) (2006))). See also id. at 1039
(II) (Breyer, J., dissenting) (“The Court contends that the historical
formulations of the insanity defense were so diverse, so contested,
as to make it impossible to discern a unified principle that Kansas’
approach offends. I disagree.”). In the end, while we see reason for
some circumspection in applying Leland, we also note that some
form of due process concerns regarding standards of proof were
clearly at issue in the case. Thus, although both the United States
Constitution and the Georgia Constitution now clearly protect
persons with intellectual disabilities from execution, we consider the
57
due process analysis in Leland worthy of our consideration here,
particularly given our conclusion that intellectual disability “is
comparable to a claim of insanity at the time of the crime in that
both relieve a guilty person of at least some of the statutory penalty
to which he would otherwise be subject.” Hill, 277 Ga. at 261 (II)
(B).
While identifying some guidance in Leland, we focus most
directly on the guidance given by the Supreme Court specifically on
the question at hand. As noted above, the Supreme Court in Atkins,
quoting Ford v. Wainwright, expressly “‘l[eft] to the States the task
of developing appropriate ways to enforce the [federal]
constitutional restriction”’ on executing intellectually disabled
persons. Atkins, 536 U. S. at 317 (III) (quoting Ford, 477 U. S. at416 (V) (A) (plurality portion of opinion)). See also Jones v.
Mississippi, No. 18-1259, 2021 U.S. LEXIS 2110, at *26-27 (II) (B)
(Apr. 22, 2021) (“[A]s the Court explained in Montgomery, when ‘a
new substantive rule of constitutional law is established, this Court
is careful to limit the scope of any attendant procedural requirement
58
to avoid intruding more than necessary upon the States’ sovereign
administration of their criminal justice systems.’” (quoting
Montgomery v. Louisiana, 577 U. S. 190, 211 (III) (136 SCt 718, 193
LE2d 599) (2016) (citing Ford, 477 U. S. at 416-417 (V) (A) (plurality
portion of opinion)))). The Supreme Court’s choice of Ford as a
lodestar makes sense, because Ford, like Atkins, addressed the
possible execution of a person with severe mental deficiencies that
significantly undermined the penological justifications for the
person’s execution. The protection announced in Atkins was
centered on a defendant’s mental state at the time of his or her crime
and the time of his or her trial, while Ford was centered on a
condemned prisoner’s mental state at the time of his or her actual
execution. But the legal similarities between the two were clearly
what commended Ford to the Atkins Court. 15
15 We note that Ford directly addressed the question of whether Ford had
a right to an evidentiary hearing on federal habeas review; however, both the
plurality opinion and the concurring opinion in that case clearly indicate that
the procedural due process necessary to enforce a clear Eighth Amendment
right was at the core of the analysis. See Ford, 477 U. S. at 410 (III) (plurality
portion of opinion) (“Once a substantive right or restriction is recognized in the
59
Like the Atkins Court did regarding intellectual disability, the
majority in Ford began with the conclusion that the execution of
mentally incompetent persons violated the Eighth Amendment. See
Ford, 477 U. S. at 401 (majority portion of opinion) (“For centuries
no jurisdiction has countenanced the execution of the insane, yet
this Court has never decided whether the Constitution forbids the
practice. Today we keep faith with our common-law heritage in
holding that it does.”). Thus, the Court’s decision to “leave to the
States the task of developing appropriate ways to enforce the
[federal] constitutional restriction” in Ford cannot be distinguished
from Young’s case based on the nature of the underlying right at
issue. Ford, 477 U. S. at 416 (V) (A) (plurality portion of opinion).
Our task in applying Ford here is complicated somewhat by the
fact that the portion of Ford directly quoted in Atkins was concurred
Constitution, therefore, its enforcement is in no way confined to the
rudimentary process deemed inadequate in ages past.”); id. at 424 (II) (Powell,
J., concurring in part and concurring in the judgment) (“At least in the context
of competency determinations prior to execution, this standard is no different
from the protection afforded by procedural due process. . . . Thus, the question
in this case is whether Florida’s procedures for determining petitioner’s sanity
comport with the requirements of due process.”).
60
in by only a plurality of the Supreme Court. See Atkins, 536 U. S.
at 317 (III) (quoting Ford, 477 U. S. at 416 (V) (A) (plurality portion
of opinion)). However, even assuming that the Atkins majority
meant to embrace the details of the Ford plurality’s reasoning to the
exclusion of the somewhat more accommodating reasoning in Ford’s
concurring opinion, we conclude that Ford supports our decision
here. 16 In concluding that Florida’s procedure was constitutionally
inadequate, the Ford plurality identified the following faults: “no
court played any role in the rejection of [Ford]’s claim of insanity”;
the decision was made “wholly within the executive branch, ex
16 We note that the concurring opinion noted similar defects in Florida’s
procedures but differed with the plurality mainly by providing a prescription
for procedures that was even less restrictive on the states than the plurality’s
prescription. To that end, the concurring opinion stated:
We need not determine the precise limits that due process imposes
in this area. In general, however, my view is that a
constitutionally acceptable procedure may be far less formal than
a trial. The State should provide an impartial officer or board that
can receive evidence and argument from the prisoner’s counsel,
including expert psychiatric evidence that may differ from the
State’s own psychiatric examination. Beyond these basic
requirements, the States should have substantial leeway to
determine what process best balances the various interests at
stake. As long as basic fairness is observed, I would find due
process satisfied. . . .
Ford, 477 U. S. at 427 (III) (Powell, J., concurring in part and concurring in the
judgment).
61
parte”; the Governor had announced a policy of excluding all
advocacy on prisoners’ behalf; and the Governor refused to inform
Ford’s counsel whether he had considered the “written materials,
including the reports of the two other psychiatrists who had
examined Ford at greater length,” that the attorneys had submitted
on Ford’s behalf. Ford, 477 U. S. at 410 (III) (A), 412-413 (III) (C)
(plurality portions of opinion). The Ford plurality concluded: “That
this most cursory form of procedural review fails to achieve even the
minimal degree of reliability required for the protection of any
constitutional interest . . . is self-evident.” Id. at 413 (III) (plurality
portion of opinion). But none of these deficiencies identified by the
Ford plurality are even remotely at issue regarding Georgia’s
procedure for evaluating intellectual disability claims.
Yet even though such glaring deficiencies did exist in Ford, the
Ford plurality nevertheless articulated this measured prescription:
We do not here suggest that only a full trial on the issue
of sanity will suffice to protect the federal interests; we
leave to the State the task of developing appropriate ways
to enforce the constitutional restriction upon its execution
of sentences.
62
Ford, 477 U. S. at 416-417 (V) (A) (plurality portion of opinion). The
plurality added this caution:
[T]he lodestar of any effort to devise a procedure must be
the overriding dual imperative of providing redress for
those with substantial claims and of encouraging
accuracy in the factfinding determination. The stakes are
high, and the “evidence” will always be imprecise.
Id. at 417 (V) (A) (plurality portion of opinion). But its focus in
making this statement was on the availability of an “adversary
presentation of relevant information,” the “manner of selecting and
using the experts,” and the need for “neutral, sound, and
professional judgments” by those experts. Id. (“Fidelity to these
principles is the solemn obligation of a civilized society.”).
The Ford plurality specifically disavowed requiring the full
panoply of procedures typically associated with a trial. See Ford,
417 U. S. at 416 (V) (A) (plurality portion of opinion) (“We do not
here suggest that only a full trial on the issue of sanity will
suffice. . . .”). Nevertheless, Georgia law does provide a right to a
full jury trial on the question of intellectual disability. Also critically
63
absent from the Ford plurality’s discussion is any mention
whatsoever of a standard of proof to be applied to claims of
incompetence to be executed.17 And this omission in Ford of any
reference to a required standard of proof is all the more conspicuous
in light of the fact that it seems certain, given the facts recited in
Ford, that the Florida Governor had been completely unrestricted in
selecting a standard of proof in Ford’s case and that the plurality
was indeed unaware of what that selected standard of proof might
17 In noting here the omission of any discussion in Ford of Florida’s
standard of proof for claims of incompetence to be executed, we acknowledge
Young’s argument regarding the inherent difficulties in assessing intellectual
disability. However, we note that the matter was addressed by the concurring
Justices in Ford but was considered by them as an additional reason to largely
leave choices regarding procedure to the states. See Ford, 477 U. S. at 426 (III)
(Powell, J., concurring in part and concurring in the judgment) (“Unlike issues
of historical fact, the question of petitioner’s sanity calls for a basically
subjective judgment.” (citing Addington v. Texas, 441 U. S. 418, 429-430 (III)
(B) (99 SCt 1804, 60 LE2d 323) (1979))); Hill, 662 F3d at 1354 (III) (D) (noting
that “Georgia has exercised [the] leeway” provided by Ford “by determining
that the risk of error due to malingering or other factors is substantial and that
there is a need for a robust burden of proof”). See also Heller v. Doe, 509 U. S.
312, 322 (III) (A) (113 SCt 2637, 125 LE2d 257) (1993) (acknowledging
Addington but crediting Kentucky’s assessment that the “‘risk of error’”
regarding a standard of proof for claims of intellectual disability was less than
it would be for claims of mental illness).
64
have been.18
We are not called upon here to make a pronouncement on the
wisdom of Georgia’s burden of proof from a policy perspective, and
to do so would be beyond this Court’s constitutional power. Instead,
we are called upon to apply the Georgia Constitution and the United
States Constitution. In light of the general discussion of due process
above, and especially in light of the clear delegation to the states by
Atkins, by reference to Ford, of much of the responsibility for
designing appropriate procedures, we hold that the standard of proof
for intellectual disability claims presently chosen by Georgia’s
General Assembly is not unconstitutional.
26. Young argues that, as a matter of Georgia statutory law,
he should have been permitted to enter a plea of “guilty but mentally
18We note here that Ford’s omission of any prescription for a particular
standard of proof was presumably made with the awareness of the fact,
highlighted by the dissent here in Young’s case in arguing that Georgia law
creates an “unacceptable risk,” that some risk inheres under any standard of
proof. See Hill, 662 F3d at 1354 (III) (E) (“A third critical flaw in Hill’s
argument is that a risk of error exists with any burden of proof.”). See also id.
at 1354 (III) (D) (noting that the Georgia General Assembly has “determin[ed]
that the risk of error due to malingering and other factors is substantial and
that there is a need for a robust burden of proof”).
65
retarded” over the objection of the State and that the trial court
should then have held a hearing to determine if it would accept the
plea and sentence him to imprisonment for life. The relevant statute
provides:
A plea of guilty but mentally ill at the time of the crime
or a plea of guilty but mentally retarded shall not be
accepted until the defendant has undergone examination
by a licensed psychologist or psychiatrist and the court
has examined the psychological or psychiatric reports,
held a hearing on the issue of the defendant’s mental
condition, and is satisfied that there is a factual basis that
the defendant was mentally ill at the time of the offense
or mentally retarded to which the plea is entered.
OCGA § 17-7-131 (b) (2) (prior to an amendment in 2017 adopting
the term “intellectual disability”). However, we reaffirm the
soundness of our reasoning in Stripling, in which we held: “While
the trial court may allow for the entry of a plea of guilty but mentally
retarded by the defendant, the case would still go forward absent
the agreement of the State to a judgment on that plea without a
trial.” Stripling, 289 Ga. at 376 (3). The provision in the statute at
issue is analogous to the requirement in the Uniform Superior Court
Rules that a trial court must find a factual basis for a plea of guilty
66
before accepting it, although the factual basis addressed in the
statute regarding intellectual disability appears designed to protect
only the interests of justice rather than the interests of the
defendant as well. See State v. Evans, 265 Ga. 332, 334 (2) (454
SE2d 468) (1995) (“The purpose of USCR 33.9 is to protect against
someone pleading guilty when that person may know what he has
done but may not know that those acts do not constitute the crime
with which he is charged.”). This provision does not undermine the
State’s entitlement “to have its full case adjudicated” where the
defendant seeks a sentence pursuant to a plea but the State insists
on seeking a greater sentence through a jury verdict. See Stripling,
289 Ga. at 376 (3).
27. Young also argues that trying the questions of guilt and
intellectual disability together in the guilt/innocence phase violated
his constitutional rights. He acknowledges that this Court has held
otherwise. See King, 273 Ga. at 272 (27) (citing Palmer v. State, 271
Ga. 234, 237 (3) (517 SE2d 502) (1999)). See also Livingston v. State,
264 Ga. 402, 406 (3) (444 SE2d 748) (1994) (“While there may be
67
advantages to a criminal defendant in having a trial apart from the
guilt-innocence phase on the issue of mental retardation, such a
change must come from the General Assembly.”). However, he
argues that the creation by the United States Supreme Court of a
federal constitutional right of intellectually disabled persons not to
be executed, particularly considering recent decisions from that
Court applying that right, dictates a different holding now by this
Court.
(a) Much of Young’s argument here focuses on his
mischaracterization of a holding of the United States Supreme
Court. That Court held that whether a defendant could formulate
plans to commit his or her crimes or could conceal facts or lie relative
to his or her crimes should not be determinative of the question of
intellectual disability, but the Court did not hold that evidence of
such things was irrelevant to the question of whether a defendant is
intellectually disabled under professionally accepted standards. See
Moore v. Texas, __ U. S. __, __ (III) (139 SCt 666, 671-672, 203 LE2d
1) (2019) (stating that clinicians might find this type of evidence
68
relevant and citing American Association on Intellectual and
Developmental Disabilities, Intellectual Disability: Definition,
Classification, and Systems of Supports 44 (11th ed. 2010).
Young also cites a psychological manual for the proposition
that there is insufficient “normative information” about crimes in
general to extrapolate conclusions regarding a defendant’s
intellectual disability from the manner in which the defendant has
carried out his or her crime. However, as with his characterization
of Supreme Court case law, Young concludes too much here.
Instead, we conclude that evidence regarding a defendant’s actions
during and around the time of a crime, although generally not
conclusive on the question, can be probative regarding whether a
defendant has deficits in specific adaptive behavior areas, just as his
or her previously observed actions in non-criminal settings might
similarly be probative on the question. See id.; Morrison v. State,
276 Ga. 829, 831 (2) (583 SE2d 873) (2003). Furthermore, we reach
this conclusion despite the fact that intellectual disability must have
an onset prior to the age of 18, because, as Young himself argues,
69
intellectual disability is regarded by mental health professionals as
generally being a lifelong condition.
(b) We also are not persuaded by Young’s argument that trying
the questions of guilt and intellectual disability together prevented
him from being able to “embrace” evidence of his crimes that
arguably supported a finding of intellectual disability without
thereby undermining his defense as to his guilt. This argument is
somewhat surprising in light of Young’s arguments regarding the
alleged irrelevance of evidence regarding the crimes to a possible
finding that he lacked deficits in adaptive behaviors. In any case,
we conclude that defendants are not generally denied a fair
opportunity to present a defense regarding their alleged guilt by
having to address the evidence of that guilt alongside other evidence
that might be relevant to a finding of intellectual disability, and we
conclude as to Young specifically that he has failed to show that he
suffered any actual disability in presenting such a defense.
(c) Young argues that trying the questions of guilt and
intellectual disability together also wrongly suggested to the jury
70
that a finding of intellectual disability would result in inadequate
punishment for the murder. As we discuss below in Division 34, the
trial court properly charged the jury in a manner that made clear
that, upon a finding of intellectual disability, Young would
nevertheless be placed in the custody of the Department of
Corrections. Accordingly, we conclude that this argument is
unpersuasive.
(d) Young also argues that trying the questions of guilt and
intellectual disability together deprived him of his ability to admit
his guilt, “contrary to his desire and explicit request to accept the
allegations of guilt.” However, as we make clear below in Division
29, it is untrue as a matter of fact that Young ever sought to plead
guilty to his charges other than as part of a plea bargain as to
sentencing, which, as we explained above in Division 26, the trial
court was not empowered to accept over the State’s objection.
(e) In light of the foregoing discussion, and taking note of our
discussion above in Division 25 regarding what procedural
requirements are constitutionally required for intellectual disability
71
claims, we conclude that the General Assembly’s chosen procedure
of trying intellectual disability claims together with the issue of guilt
is not unconstitutional. See Atkins, 536 U. S. at 317 (III) (“As was
our approach in Ford v. Wainwright, with regard to insanity, ‘we
leave to the States the task of developing appropriate ways to
enforce the constitutional restriction upon its execution of
sentences.’” (quoting Ford, 477 U. S. at 416 (V) (A) (plurality portion
of opinion))). Accordingly, we reaffirm this Court’s prior case law on
this issue. See King, 273 Ga. at 272 (27).
28. Young argues that his constitutional rights were denied by
his being forced to speak to an expert witness designated by the trial
court as a precondition to presenting his own expert testimony in
support of his claim of intellectual disability. As discussed in detail
below, we conclude that the trial court had discretion in this matter,
but we further conclude that, because this claim was waived, we
need not determine whether that discretion was abused.
(a) The circumstances concerning this claim began on June 2,
2011, when Young filed a notice regarding his intent to raise a
72
mental health defense at trial. The notice stated: “[T]he defense
intends to raise the issue that the defendant or accused was insane,
mentally ill or mentally retarded at the time of the act or acts
charged against the accused.”
On June 29, 2011, in response to this notice, the trial court
ordered an evaluation of Young regarding his competence to stand
trial and regarding his criminal responsibility as it related to the
“mental capacity to distinguish right from wrong” and any possible
“presence of a delusional compulsion.” On January 17, 2012, the
trial court conducted a hearing regarding the matter, and defense
counsel explained that Young had refused to speak to the expert
during the court-ordered evaluation, explaining that defense
counsel intended to argue at trial only intellectual disability and not
any other mental health claim and asserting that the facts of the
crimes were irrelevant to the question of intellectual disability. The
State countered that “the methods and manners and questions and
evaluations that are used” to evaluate possible intellectual disability
should be determined by the expert, that such an evaluation might
73
need to include the circumstances of the crimes, that the trial court
had asked the expert to evaluate the general question of criminal
responsibility, and that any diagnosis of intellectual disability would
likely require the expert to consider and rule out other diagnoses.
The trial court indicated that it would issue another order for an
evaluation “for purposes of criminal responsibility and competency
to stand trial, with retardation as being the primary focus of that
evaluation.” The trial court then indicated its initial opinion that
any refusal of Young to answer questions put to him by the expert
would prevent his use of his own expert at trial, but it left the matter
somewhat in flux by stating: “So if we run up on that again, I’ll be
prepared to rule on it. We’ll have to just hear what is and is not
being answered by the defendant.” Young then asserted that the
statute governing intellectual disability claims was
unconstitutional. The trial court instructed defense counsel to
notify it if they had any concerns once the court issued its new
written order for an evaluation, and the court indicated that, if there
were concerns, it would conduct a hearing and “cross that bridge
74
when we get there.”
On January 17 and 23, 2012, Young filed motions claiming that
OCGA § 17-7-131 and Uniform Superior Court Rule 31.5 were
unconstitutional to the extent that they might require him to speak
to a mental health expert regarding the facts of the crimes. On
January 24, 2012, the trial court conducted another hearing on this
matter. The trial court maintained at the hearing that intellectual
disability was a continuing mental condition despite the fact that its
onset must be before the age of 18 for it to be given as a diagnosis,
that evidence of that condition throughout all of one’s life was
relevant to the question of whether one is intellectually disabled,
and that the facts of the crime therefore were also relevant to that
question. The trial court then issued an order for Young to be
evaluated by a mental health expert regarding his criminal
responsibility and his competence to stand trial. 19 On January 26
19 With regard to this second order, which was issued after Young had
committed to the trial court that he would claim at trial only intellectual
disability and not insanity or incompetence, we query whether the order should
have omitted any reference to criminal responsibility and competence. While
75
and 30, 2012, the trial court filed written orders denying Young’s
motions challenging OCGA § 17-7-131 and Uniform Superior Court
Rule 31.5. On January 30, 2012, Young filed a notice indicating that
he was withdrawing his previous notice of an intent to present
“testimony of an evaluating expert” at trial.
(b) As the trial court correctly noted, and as we noted above in
Division 27 (a), this Court has held that
evidence of a defendant’s crimes in a mental retardation
trial may be admissible as probative evidence of the
defendant’s intelligence if that evidence demonstrates his
mental ability and adaptive skills, or is otherwise
relevant to the question of whether he is mentally
retarded.
Morrison, 276 Ga. at 831 (2). Cf. Moore, 139 SCt at 671-672 (III)
(stating that clinicians might find this type of evidence relevant).
We note, however, that in Morrison we relied on Zant v. Foster, in
which this Court held that, in determining the proper role of
evidence of a crime in a jury’s consideration of a claim of intellectual
we need not address this concern at length here, we recommend a
reexamination of Uniform Superior Court Rule 31.5 and the model order
provided in it, upon which the trial court’s order appears to have been based.
76
disability, a trial court must exercise its discretion in weighing the
probative value of such evidence against “unfair prejudice.” Zant v.
Foster, 261 Ga. 450, 451-452 (4) (406 SE2d 74) (1991), overruled on
other grounds by State v. Patillo, 262 Ga. 259, 261 n.1 (417 SE2d
139) (1992).
This Court has also held that a death penalty defendant who
wishes to support his or her claims at trial through expert mental
health testimony must submit to an examination by a mental health
expert selected by the State because of “‘the State’s overwhelming
difficulty in responding to the defense psychiatric testimony without
its own psychiatric examination of the accused.’” Jenkins v. State,
265 Ga. 539, 540-541 (3) (458 SE2d 477) (1995) (quoting Lynd v.
State, 262 Ga. 58, 64 (11) (414 SE2d 5) (1992) (citation and
punctuation omitted)). See also Nance v. State, 272 Ga. 217, 219-
220 (2) (526 SE2d 560) (2000) (citing Buchanan v. Kentucky, 483 U.
S. 402, 422 (III) (A) (107 SCt 2906, 97 LEd2d 336) (1987), and Estelle
v. Smith, 451 U. S. 454, 465 (II) (A) (2) (101 SCt 1866, 68 LE2d 359)
(1981), and holding that, “when a defendant must submit to a court-
77
ordered mental health examination because he wishes to present
expert mental health testimony at his trial, the State expert may
only testify in rebuttal to the testimony of the defense expert or to
rebut the testimony of the defendant himself”). However, this Court
has also stated:
In formulating the rule that a defendant in a case in
which the State is seeking the death penalty must either
cooperate in an evaluation by a mental health expert
whose report will be given to the State or forfeit the right
to present expert mental health testimony at trial, we
have balanced the truth-seeking function of the courts,
the defendant’s constitutionally-protected privilege
against self-incrimination, and the State’s interest in
having the ability to respond to the defendant’s expert
mental health testimony with [its own] expert testimony.
...
We have taken pains to ensure that the extent to which a
defendant must waive his constitutionally-protected right
to remain silent is no greater than is necessary to serve
the purpose mandating the waiver: “to permit the State
to formulate a response or a rebuttal to the testimony of
the defendant’s mental health expert.”
State v. Johnson, 276 Ga. 78, 79 (2) (576 SE2d 831) (2003) (quoting
Nance, 272 Ga. at 219-220 (2)).
In view of these prior holdings, we caution that a trial court
must exercise discretion in responding to a defense objection
78
regarding the scope of questions to be asked in a court-ordered
mental health evaluation of alleged intellectual disability or in
responding to an objection to the scope of expert testimony based on
such an evaluation. We stress that an inquiry regarding the facts of
a defendant’s alleged crimes is not necessarily irrelevant in such an
evaluation by the State’s expert or the Court’s expert simply because
the defense and its own expert might think so. However, we also
note that the facts of the crime that would be relevant to alleged
intellectual disability often can be made known to a mental health
expert through sources other than the defendant’s own statements
and that a defendant often can be asked questions by an expert
regarding the defendant’s personal abilities as they relate to the
facts of the crimes without asking the defendant whether he or she
admits committing those crimes. 20 Nevertheless, we need not
20 For example, the State argues that Young’s use of a GPS device to
navigate to the crime scene is evidence undermining his claim of intellectual
disability; however, we see no reason why Young could not have been asked by
the State’s expert generally about his ability to use a GPS device without being
asked to make a direct admission of guilt.
79
consider whether the trial court properly exercised such discretion
in Young’s case, because, as we discuss below, we conclude that the
issue was waived.
(c) On February 6, 2012, as jury selection was about to begin,
the District Attorney stated:
[T]he state will agree not to use any of the statements that
the defendant makes pertaining to what happened at the
time of the crime in terms of proving his guilt or
innocence, despite the fact that that handcuffs the state
in using that evidence to prove whether or not he’s
mentally retarded, we will put the defendant in a position
now where the state will agree not to introduce any of that
testimony and then let them still make the strategic
choice that they want to make in terms of an expert.
The District Attorney further agreed that the trial court could order
its designated expert, who had already conducted an evaluation
without the benefit of any statements from Young about the crimes
and who had already submitted a report under seal, “not to ask any
questions about what Mr. Young did at the time of the offense.”21
21 We note from our own review of the record that the expert’s sealed
report indicated that Young had refused to speak about the crimes at the
direction of his counsel, but we note that the expert was nevertheless able to
conduct psychological tests and to render an opinion, which was that Young
was not intellectually disabled.
80
Young rejected the State’s offer based solely on the fact that it would
“prejudice[] the defense in [its] strategic decision making” to accept
the offer at that stage of the case; however, we note that Young made
no complaint regarding the availability of his own expert to testify
and made no motion for a continuance. The State argued
persuasively in response that Young’s true motivation was the fact
that his own expert had tested his IQ as being 77, a fact that would
have been difficult to explain at trial. See Hall, 572 U. S. at 722 (III)
(D) (stating that “an individual with an IQ test score ‘between 70
and 75 or lower’ may show intellectual disability by presenting
additional evidence regarding difficulties in adaptive functioning”
(quoting Atkins, 536 U. S. at 309 n.5)); Raulerson, 928 F3d at 1008
(III) (C) (noting that “the Flynn effect adjusts for the empirical
observation that IQ scores are rising over time” but that “there is no
consensus about the Flynn effect among experts or among the
courts”). In any case, the trial court implicitly accepted the State’s
offer and explicitly noted Young’s rejection of that offer by stating:
“All right. We will note, of course, the state’s position as stated on
81
the record. . . . [A]nd I will note the decision of the defense as to
how the mental retardation defense is to be asserted.” Accordingly,
we conclude that Young’s claim here has been waived for the
purposes of ordinary appellate review. See Martin, 298 Ga. at 278-
279 (6) (d).
29. Young argues that he was forced to plead not guilty as a
condition of seeking a verdict of guilty but mentally retarded and
that such a requirement was unconstitutional and “prejudiced [him]
by creating a false impression for the jury, judicially-sanctioned,
that he did not accept responsibility and therefore felt no remorse.”
To the extent that Young is arguing that he was forced to plead not
guilty as a precondition of seeking a decision by a jury of whether he
was intellectually disabled, his claim is not supported factually by
the record.
To support such a claim, Young relies on the transcript of a
pretrial hearing held on whether he was required to speak to the
State’s expert about the facts of the crime as a precondition to
presenting his own expert testimony on his alleged intellectual
82
disability. However, a review of the full transcript reveals that
Young was not willing to plead guilty as part of a jury trial. Defense
counsel made comments indicating his hope that the jury would find
Young guilty but mentally retarded, but those comments never
communicated a desire to enter a non-negotiated guilty plea.
Instead, defense counsel stated: “I mean, essentially we would be
happy to do so [plead guilty] in exchange for a sentence that we could
agree upon.” We also note that Young never moved the trial court
to allow him to change the not guilty plea that he had entered and
signed on the indictment. Indeed, even now on appeal, Young
admits that his goal at this hearing was not to enter a guilty plea in
advance of a jury trial, as he states: “In this case, defense counsel
urged the court to allow Young to enter a plea of Guilty But Mentally
Retarded in exchange for an agreed upon sentence.” Accordingly,
we conclude that Young never actually requested that he be allowed
to enter a non-negotiated plea of guilty, with or without an
associated claim of intellectual disability.
83
30. Young argues that the trial court erred by excluding
testimony from three witnesses on the subject of his alleged
intellectual disability. We see no error.
(a) During defense counsel’s direct examination of a social
worker from Young’s high school who had known Young and his
family since Young was a young child, defense counsel asked the
witness whether and how he had “ever come into the[] lives” of
Young’s brothers and sisters. The State objected that the testimony
sought was not relevant, and a bench conference was held and then
explained later in detail on the record by the trial court and the
parties. Defense counsel explained that he had been seeking
testimony showing that Young’s siblings had been in special
education. Defense counsel conceded that it was “not universally
accepted” in the mental health profession that there was a genetic
component to intellectual disability, and it was not disputed that the
witness was not qualified to testify on the matter as an expert;
however, defense counsel argued that, “in the general community,
people are aware that certain diseases such as mental retardation,
84
such as all different kinds of diseases, are genetic in nature.”
Nevertheless, defense counsel also stated immediately after the trial
court announced its ruling: “I am certainly not making any
assertion that anyone in Mr. Young’s family is mentally retarded.”
Under these circumstances, we see no abuse of discretion in the trial
court’s sustaining the State’s objection. See Watson v. State, 278 Ga.
763, 771 (10) (604 SE2d 804) (2004) (holding that the question of
relevance is entrusted to a trial court’s discretion and holding: “The
proffered evidence in this case was too threadbare to be
admissible.”); cf. Wilson v. State, 233 Ga. 479, 481 (3) (211 SE2d 757)
(1975) (holding that it was not improper for a non-expert to testify
to a relevant factual matter within his personal knowledge).
(b) Pretermitting Young’s likely waiver of the issue, we
conclude that the trial court did not abuse its discretion by refusing
to allow one of Young’s former high school coaches to provide
speculative testimony about what Young’s team members thought
of him or about whether the team members wished that they could
be present at Young’s trial. Instead, the trial court properly focused
85
the witness’s attention on his personal observations regarding
Young’s interactions with his teammates. Cf. Mathis v. State, 291
Ga. 268, 270 (2) (728 SE2d 661) (2010) (addressing improper
testimony that “was based not on [the witness’s] personal knowledge
but rather on hearsay”).
(c) Another of Young’s former high school coaches testified that
Norfolk State College had regularly given “the opportunity to
potential athletes to be admitted on a probationary status,” that
Young had “only lasted a short while” at the college, that “the idea
wasn’t so much for [Young] to be a four-year college graduate” but
instead “was to hopefully improve his situation and to get him out
of dodge,” that “Norfolk State was giving him an opportunity to try
to make it in school, to try to better himself,” but that “[f]ootball was
the whole idea.” However, when the witness began to explain in
more detail about what happened regarding the college when “they
br[ought] you in,” the State objected to “any sort of speculation about
this” but conceded that the witness “c[ould] testify to personal
knowledge about this situation.” Defense counsel replied, “Sure.”
86
The trial court then stated that it was sustaining the objection and
directed defense counsel to “focus in a little more.” The witness then
testified: “[Young] got in because we had a contact there who
recognized his football ability.” The State objected, stating that a
foundation should be shown for any personal knowledge of the
witness on the subject, and the trial court instructed defense counsel
to “go a little more foundational with that” and to “[a]llow the
witness to explain his knowledge and how he gained it and so forth.”
Defense counsel again replied, “Sure.” Pretermitting the possible
waiver of the issue by Young, we conclude that the trial court did
not abuse its discretion in the manner in which it handled the
State’s objections regarding this witness. Cf. Mathis, 291 Ga. at 270
(2).
31. Young argues that the State presented testimony from
three of his co-workers at a food-canning company that the State
knew from Young’s employment records to be false. See Napue v.
Illinois, 360 U. S. 264, 269 (79 SCt 1173, 3 LE2d 1217) (1959). These
co-workers testified at trial in the State’s rebuttal case in the
87
guilt/innocence phase, where Young’s alleged intellectual disability
was to be decided, that Young was “good at his job,” was one of the
“best operators” of the can-labeling equipment, was not “a problem
employee,” was “there every day, pretty much,” “seemed to do fine,”
“was at work on time and everything,” and was “always on time.”
From the 184 pages of Young’s employment records spanning ten
years, Young’s brief points to “three suspensions, one lasting an
entire week, twenty-nine unexcused absences, twenty-seven
violations for lateness, and two warnings,” to a notice of “poor job
performance because of inattention, neglect or other non-deliberate
actions,” and to a notice regarding Young’s third work suspension
indicating that he would be terminated if he had an additional
infraction.
In his response brief, the Attorney General notes that this
“averages out to roughly a little less than three unexcused absences
and three violations for lateness per year.” Attempting to emphasize
the gravity of the negative notations in his work records, Young cites
the vague trial testimony of one of his co-workers that, “if you
88
accumulate up to, like, eight points, you get your terminated [sic]
from the job.” But the jury was aware at trial that Young was never
terminated, and even now Young cites part of his work records
showing that eight points only warranted a suspension. We also
note that one of the co-workers testified that the point system “had
nothing to do with the labeling part of it,” which is borne out in the
records and suggests that there is no reason to doubt the co-workers’
testimony regarding Young’s ability to perform his assigned work.
Upon reviewing the co-workers’ trial testimony and the ten years of
work records submitted by Young on motion for new trial, the trial
court found: “The defendant’s personnel records do not establish as
fact that the testimony of the defendant’s coworkers and supervisors
was knowingly and willfully false. . . .” We agree, and, therefore,
Young’s claim here fails.
32. Young argues that the State made improper arguments
regarding his alleged intellectual disability. First, we hold that this
claim has been waived for the purposes of ordinary appellate review,
because Young did not raise any related objections at trial. See
89
Martin, 298 Ga. at 278-279 (6) (d). Second, as we discuss below, the
contested arguments were not improper.
(a) Young contends that the State’s argument placed “undue
emphasis on Young’s perceived adaptive strengths, arguing that
relative strengths could overcome adaptive deficits,” and that the
State’s argument improperly relied on lay stereotypes. We disagree.
We note that it was the psychiatrist presented by the State 22
who set forth the areas of adaptive skills “listed in the DSM-IV-TR,”
an authoritative text in the field of mental health, and who, using a
demonstrative exhibit without any objection from Young, explained
the areas of adaptive skills “utilized by the American Academy of
Mental Retardation.” 23 On cross-examination by Young, the State’s
psychiatrist also explained the three areas of adaptive skills used by
22 The State’s psychiatrist, unlike the expert designated pretrial by the
trial court whose report remained under seal, testified that he had never
examined Young and had not reached a diagnosis regarding Young’s alleged
intellectual disability.
23Young assails the appropriateness of the diagnostic questions listed on
this demonstrative exhibit. However, the State’s psychiatrist explained that
these questions were “some suggest[ed] questions that they have for looking at
those particular skills area[s].”
90
the American Association on Intellectual and Developmental
Disabilities and the fact that a person would only need to have a
deficit in one of those three areas to qualify for a diagnosis of mental
retardation.
Notably, as the State did later in its closing argument, Young
attempted in his cross-examination of the State’s psychiatrist to
emphasize specific things regarding Young’s past behaviors and
activities and how they might be relevant to the areas of adaptive
skills. Even more notably, the State’s psychiatrist answered
affirmatively when Young asked whether “the DSM says that the
focus is on the deficits,” when Young asked whether, “if someone had
particular strengths in any of these [areas of adaptive skills], they
could still be classified as mentally retarded,” when Young asked if
it would be “irresponsible” to “ever say that[,] because [a person] can
do X, one thing, that they are not mentally retarded,” and when
Young asked whether “what you’re looking for is significant deficits
in at least two” of the areas of adaptive skills when considering the
list used by the AAMR. The State’s psychiatrist also described how
91
intellectually disabled persons often “try to act normal” and engage
in “parroting behavior,” that some of them are able to interact
appropriately, that “they may not look mentally retarded on the
surface,” that they may appear “street smart,” and that they may be
able to do some tasks normally. See Moore, 139 SCt at 669 (I) (citing
Moore, 137 SCt at 1051-1052 (IV) (C) (1)) (holding that the procedure
for considering alleged intellectual disability must be based on the
medical community’s diagnostic standards).
Having itself presented an expert who carefully explained the
proper analysis of areas of adaptive skills under prevailing
professional standards, the State gave a closing argument that
attempted to highlight various parts of the evidence showing
Young’s lack of deficits in those areas. Upon our review of the State’s
arguments at issue, we conclude that, although at times somewhat
impassioned, they were not improper. See Cullen v. Pinholster, 563
U. S. 170, 200 (III) (D) (1) n.19 (131 SCt 1388, 179 LE2d 557) (2011)
(noting that the prosecuting attorney cannot be expected to argue
the evidence in the light most favorable to the defendant); Ellington,
92
292 Ga. at 143 (9) (c) (noting the latitude granted to the parties in
making their closing arguments), disapproved on other grounds by
Willis, 304 Ga. at 706 (11) (a) n.3.
(b) As we explained in Division 27 (a), evidence regarding a
defendant’s actions during and around the time of a crime can be
probative on the question of whether a defendant lacks deficits in
specific areas of adaptive behavior. See Morrison, 276 Ga. at 831(2). See also Moore, 139 SCt at 671-672 (III) (stating that clinicians
might find this type of evidence relevant). Accordingly, we hold that
the State did not act improperly by making arguments regarding
Young’s alleged intellectual disability based on the evidence of how
he carried out his crimes.
(c) The State did not argue improperly by emphasizing the fact
that there were no records showing any specific IQ score for Young,
that the range of scores presumed by the school employees who
testified on Young’s behalf did not necessarily indicate intellectual
disability, and that any additional IQ test that might be given to
Young would “probably” show that, while not one of “the brightest
93
bulbs on the tree,” Young was not intellectually disabled. See
Ellington, 292 Ga. at 143 (9) (c) (noting the latitude granted to the
parties in making their closing arguments).
33. Young argues that a particular juror tainted the jury with
extrajudicial evidence and that the jury engaged in premature
deliberations. As explained below, we reject both arguments.
Young questioned the juror during voir dire about his
stepdaughter, and the juror disclosed that his stepdaughter had
“special needs,” that she was 19 years old but at times was like a 7
or 8 year old, that he had been her caretaker for 18 years, that her
need for special education became apparent at the age of 3 or 4 years
old, that she had been slow to learn to speak, that her disability was
not apparent from her physical appearance, and that she had been
diagnosed as brain damaged. Young did not move to have the juror
excused for cause.
In support of this claim, which Young also raised in his motion
for new trial, he relies on the testimony of an alternate juror. See
Collins v. State, 308 Ga. 608, 610 (2) (842 SE2d 811) (2020) (noting
94
that juror testimony is permitted regarding extraneous prejudicial
information). But see United States v. Siegelman, 467 FSupp.2d
1253, 1279 (M.D. Ala. 2006) (expressing doubt that juror testimony
regarding alleged premature deliberations is admissible). The
alternate juror testified that the juror in question entered the jury
room after some testimony about intellectual disability, that he
appeared to be “agitated,” and that he stated to several other jurors
that “he knew what a disabled person was because his
[step]daughter was disabled and she had to have a lot of care.” The
alternate juror testified that the juror in question “didn’t actually
come out and say” that Young was not disabled, but she testified
that “it was basically like he could tell the difference between
someone that had a disability and one that didn’t,” and she
concluded, “I don’t think he felt like [Young] had one.” The alternate
juror testified that the juror in question was in the same corner of
the jury room and with the same few other jurors that he had been
with during other breaks, but she added that the juror was not loud,
that the other jurors did not gather around him, and that she never
95
heard jurors, including those who were with the juror in question,
deliberating or expressing an opinion about whether or not Young
was intellectually disabled. In its order on Young’s motion for new
trial, the trial court found that the juror in question “was making
statements concerning his life experience that apparently touched
on the testimony he had just heard,” that doing so was
“understandable in light of his experience with his step daughter as
revealed to counsel in voir dire,” and that “[h]e expressed no opinion
on any trial issues such as guilt or innocence or the mental condition
of the defendant.” The trial court further found that “these issues
were not discussed, talked about, or deliberated” and concluded that
the matter did “not constitute premature deliberation.” The trial
court also concluded that the statements to several jurors by the
juror in question “d[id] not constitute extra judicial evidence.”
(a) In light of the foregoing, we accept the trial court’s findings
of fact and agree with the trial court’s conclusion that no premature
deliberations occurred. See Sims v. State, 266 Ga. 417, 419-420 (3)
(467 SE2d 574) (1996).
96
(b) We also agree with the trial court’s conclusion that the
statements by the juror in question, which regarded matters that
were discussed at length by him in his voir dire, did not warrant a
new trial. See Martin, 298 Ga. at 292-294 (16) (“Having accepted
Juror Lemmond as a juror, Martin cannot now complain that her
knowledge drawn from her past employment assisted the other
jurors in considering the evidence and arguments made by the
parties at trial.”), disapproved on other grounds by Willis, 304 Ga.
at 706 (11) (a) n.3.
34. The trial court charged the jury, in accordance with OCGA
§ 17-7-131 (b) (3) (C), that a verdict of guilty but mentally retarded
would result in Young’s being “placed in the custody of the
Department of Corrections,” which would monitor his “mental
health needs,” and that, “at the discretion of the Department of
Corrections,” he could be “referr[ed] for temporary hospitalization at
a facility operated by the Department of Behavioral Health and
Developmental Disabilities.” The trial court correctly refused to
include Young’s requested additional charge that, upon such a
97
verdict, “the defendant w[ould] be sentenced to imprisonment for
life.” The charge as given was not misleading, because it clearly
stated that the DOC would have custody of Young. Furthermore,
this Court has held that charges prior to a guilty verdict generally
should not give any instruction regarding possible sentences. See
Patillo, 262 Ga. at 260. Although the charge prescribed by the Code
and given in Young’s case is a limited exception to this general rule
that is designed to prevent jurors from speculating about a
defendant’s “immediate release” upon a finding of mental
retardation, the additional charge requested by Young about a life
sentence would have simply drawn undue attention to the issue of
sentencing and would have raised questions such as whether or not
a life sentence would carry the possibility of parole.
35. Young argues that the trial court erred by denying five
requests to charge on the subject of intellectual disability, and he
highlights in particular his requested charges that the jury could
find Young intellectually disabled even if it found adequate
functioning in some or many areas of adaptive functioning, that
98
“[i]ndividuals may have capabilities and strengths that are
independent of their mental retardation,” and that such “abilities do
not exclude a diagnosis of mental retardation.” The trial court
correctly instructed the jury on the statutory definition of “mental
retardation,” charging as follows: “The term mentally retarded
means having significantly subaverage general intellectual
functioning resulting in or associated with impairments in adaptive
behavior that became clear during the developmental period.” See
OCGA § 17-7-131 (a) (3) (prior to an amendment in 2017 adopting
the term “intellectual disability” and renumbering subdivisions);
OCGA § 17-7-131 (a) (2) (after the amendment in 2017). We agree
with the trial court that the additional, detailed charges requested
by Young, which were drawn from two professional texts and a
federal district court opinion, were not incorrect statements but
nevertheless were more matters of evidence rather than legal
principles suitable for jury charges. 24 Accordingly, we conclude that
24We note that, through questioning both by the State on direct
examination and by Young on cross-examination, the State’s psychiatrist
99
the trial court did not err in refusing to give them. See Massey v.
State, 270 Ga. 76, 78 (4) (c) (508 SE2d 149) (1998) (“It is axiomatic
that a trial court does not err in refusing to give a requested
instruction in the exact language requested where the charges given
in their totality substantially and adequately cover the principles
contained in the requested charge.”).
36. Young made no objection to the trial court’s charging the
jury, according to OCGA § 16-2-3, that “[e]very person is presumed
to be of sound mind.” Therefore, his claim on appeal that the charge
should not have been given is subject to review only for whether
there was plain error that affected substantial rights and under our
Sentence Review below regarding Young’s death sentence. See
OCGA § 17-8-58 (b); Martin, 298 Ga. at 278-279 (6) (d).
Nevertheless, we conclude that the trial court did not err under even
the ordinary standard of review, because the charge was entirely
consistent with the fact that, under Georgia law as we affirm it
testified about the same diagnostic principles that Young asked the trial court
to address in the jury charges.
100
above, Young bore the burden of proving his alleged intellectual
disability. See Medina, 505 U. S. at 452 (II) (“In light of our
determination that the allocation of the burden of proof to the
defendant does not offend due process, it is not difficult to dispose of
petitioner’s challenge to the presumption of competence imposed
[under California law].”).
37. Young argues that the pre-printed verdict form used in the
guilt/innocence phase of his trial, coupled with the trial court’s
charges to the jury, would have misled the jury regarding its duties
in considering his alleged intellectual disability. See Rowland v.
State, 306 Ga. 59, 67-68 (6) (829 SE2d 81) (2019) (holding that a
verdict form should be considered in conjunction with the jury
charges); Rucker v. State, 270 Ga. 431, 435 (5) (510 SE2d 816) (1999)
(holding that the use of a verdict form is error if it “would mislead
jurors of reasonable understanding”). In Young’s case, the verdict
form and the jury charges made clear that the jury was to select, for
each of the charges in the indictment, only one of the three verdict
options: not guilty, guilty, or guilty but mentally retarded. The
101
charges, read as a whole, also made clear that no verdict could be
reached and entered on the verdict form unless it was unanimous.
Furthermore, despite the trial court’s somewhat confusing
statement at one point that the jury should determine which of the
three verdicts applied if it found that Young was “suffering mental
retardation,” the charges as a whole indicated that the jury should
reach a unanimous conclusion regarding one option to the exclusion
of the other two.
Finally, after first stating that the jury would have the “duty”
to find Young guilty but mentally retarded if it so found beyond a
reasonable doubt, the charges, in tracking the language of the
pattern jury charge, later stated as to each charge that the jury
would be “authorized” to enter such a verdict upon such a finding.
See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, §
3.80.50.25 However, in light of the clear charges to the jury that any
verdict must be unanimous and in light of a charge that individual
25In identifying no reversible error, we do not suggest that this pattern
charge could not be improved.
102
jurors “should never surrender an honest opinion in order to be
congenial or to reach a verdict,” we conclude that the jury would not
have been misled regarding its duties by the use of the word
“authorized.”26 Cf. Cheddersingh v. State, 290 Ga. 680, 681-682 (2)
(724 SE2d 366) (2012) (holding that a preprinted verdict form and
jury charges should be considered as a whole and concluding that
the verdict form might have led the jury to believe that it must
conclude beyond a reasonable doubt that the defendant was not
guilty in order to acquit).
Young raised no objection to either the charges at issue or to
the verdict form. Therefore, the issues here are subject to review
only for whether there was plain error that affected substantial
rights and under our Sentence Review below regarding Young’s
death sentence. See OCGA § 17-8-58 (b); Martin, 298 Ga. at 278-
26 Young argues that the jury’s notes to the trial court discussed in
Division 45 show that it struggled with the issue of his alleged intellectual
disability. Contrary to this argument, even assuming that such a fact is
relevant at all to evaluating the charges and verdict form, we conclude that
this fact shows that the jurors did indeed follow the trial court’s charge on not
surrendering individual opinions simply to reach a verdict.
103
279 (6) (d). To show plain error, an appellant must show: (1) there
was no affirmative waiver; (2) the error was obvious; (3) the
instruction likely affected the outcome of the proceedings; and (4)
the error seriously affects the fairness, integrity, or public
reputation of the judicial proceedings. See Beasley v. State, 305 Ga.
231, 236 (3) (824 SE2d 311) (2019). In light of the discussion above,
and pretermitting the questions of whether any error here was
affirmatively waived or should have been obvious to the trial court,
we conclude that the outcome in Young’s case was not likely affected
and that any error did not seriously affect the fairness, integrity, or
public reputation of his proceedings.
Issues Related to the Sentencing Phase
38. We see no merit to Young’s arguments, including his
arguments regarding the decline in the frequency of death
sentences, that Georgia’s death penalty statutes are
unconstitutional in that they fail to sufficiently narrow the
categories of murder eligible for the death penalty and thereby
result in arbitrary and capricious death sentences. See Ellington,
104
292 Ga. at 116 (3) (b), disapproved on other grounds by Willis, 304
Ga. at 706 (11) (a) n.3.
39. Young argues that the trial court improperly closed the
courthouse during the sentencing phase and thereby violated his
constitutional rights. See Waller v. Georgia, 467 U. S. 39, 46 (II) (A)
(104 SCt 2210, 81 LE2d 31) (1984) (discussing the right to a public
trial). The day in question was a furlough day for county employees;
however, the trial court informed the parties that it would be having
court on the furlough day and that the courthouse would be open to
members of the public who wished to attend. On the furlough day,
the trial court noted on the record that bailiffs had been “instructed
at the front door that if anyone comes in looking for the, for a closed
office, to tell them, but the building is open to the public.” Young
did not object to holding the trial on the furlough day. Testimony
from officers confirmed that an entrance was open and that no one
was turned away. We conclude that this issue was waived for the
purposes of ordinary appellate review by Young’s failure to object in
the trial court. See Martin, 298 Ga. at 278-279 (6) (d). Furthermore,
105
the record supports the trial court’s finding that the courtroom
remained open with access freely available to the public. Cf. State
v. Brown, 293 Ga. 493, 493-496 (1) (748 SE2d 376) (2013)
(addressing a courthouse that was accessible only to persons with a
special relationship to court personnel).
40. Young argues that the trial court erred by overruling
certain objections to the State’s victim impact testimony. We have
held previously that victim impact testimony should not include
characterizations of the crime or the defendant and that it should
not include any statements regarding the appropriate sentence. See
Bryant, 288 Ga. at 895 (15) (a). We have held that testimony
regarding the emotional impact on the victim’s family and the
community must be controlled within the trial court’s discretion but
is not categorically improper. See Walker v. State, 282 Ga. 774, 779-
780 (11) (653 SE2d 439) (2007), disapproved on other grounds by
Ledford v. State, 289 Ga. 70, 85 (14) (709 SE2d 239) (2011),
disapproved on other grounds by Willis, 304 Ga. at 706 (11) (a) n.3.
We have held that victim impact testimony should not encourage the
106
jury to base its sentencing decision on factors such as “class or
wealth.” Livingston, 264 Ga. at 404 (1) (b). We have held that
“religious references” in victim impact testimony are not
categorically prohibited but instead are entrusted to the trial court’s
discretion. Pickren v. State, 269 Ga. 453, 454-455 (1) (500 SE2d 566)
(1998). We have also held that victim impact testimony may include
evidence such as video recordings or photographs “of the victim
alive.” Tollette v. State, 280 Ga. 100, 105 (11) (621 SE2d 742) (2005).
Finally, we have held that “even some legitimate victim impact
evidence could inflame or unduly prejudice a jury if admitted in
excess.” Livingston, 264 Ga. at 404 (1) (b). Applying these various
principles, and pretermitting the fact that Young waived much of
this claim by failing to object or by failing to obtain rulings, we
conclude that the specific portions of the victim impact testimony
that Young complains about on appeal were not improper. See
Walker, 282 Ga. at 779 (11).
41. Young argues that the trial court prevented him from
asking certain witnesses in the sentencing phase about the impact
107
that Young’s execution would have on them. We conclude that, by
agreeing first to a general set of questions to be asked of witnesses
and then agreeing to additional questions to be asked of close family
members, Young waived this claim for the purposes of ordinary
appellate review. See Martin, 298 Ga. at 278-279 (6) (d).
Furthermore, we conclude that the trial court’s approach to this
matter was not an abuse of discretion, because the court accepted
the fact that a witness with especially intimate knowledge of a
defendant can sometimes shed light on the defendant’s character by
asking for mercy and by testifying about how the loss of the
defendant would affect the witness personally and thus permitted
some questions on the matter, while it also set reasonable limits on
which witnesses were in a suitable position to give such testimony.
See Bryant, 288 Ga. at 899 (16) (holding that “mitigating evidence
that does not focus on the character, background, or offense of the
particular defendant on trial is properly excluded”); Barnes v. State,
269 Ga. 345, 359 (27) (496 SE2d 674) (1998) (“In Georgia, mitigation
evidence that relates to the individual defendant and not to the
108
death penalty in general is admissible.”); Childs v. State, 257 Ga.
243, 256 (19) (b) (357 SE2d 48) (1987) (holding that, “although a
defendant may present witnesses who know and care for him and
are willing on that basis to ask for mercy on his behalf, a defendant
may not present witnesses to testify merely to their religious or
philosophical attitudes about the death penalty”); Romine v. State,
251 Ga. 208, 217 (11) (305 SE2d 93) (1983) (“Ralph’s testimony that
he did not wish to see his grandson die would have been admissible
in mitigation. . . .”).
42. Young argues that it was unconstitutional for his jury to
consider alleged non-statutory aggravating circumstances without
being instructed that such circumstances must be found beyond a
reasonable doubt. First, this specific issue was not raised in the trial
court and therefore has been waived for the purposes of ordinary
appellate review. See Martin, 298 Ga. at 278-279 (6) (d).
Furthermore, contrary to Young’s argument, “the finding of a non-
statutory aggravating circumstance does not increase the
defendant’s maximum potential punishment” and therefore does not
109
have to be found beyond a reasonable doubt. Ellington, 292 Ga. at
116-117 (3) (d) (citing Ring v. Arizona, 536 U. S. 584, 609 (II) (122
SCt 2428, 153 LE2d 556) (2002)), disapproved on other grounds by
Willis, 304 Ga. at 706 (11) (a) n.3.
43. We reject Young’s invitation to overrule our precedent
holding that this Court’s proportionality review under OCGA § 17-
10-35 (c) (3) can never “‘increase . . . the maximum punishment’” and
therefore does not have to be performed by a jury under the beyond
a reasonable doubt standard. Willis, 304 Ga. at 693 (3) (c) (citation
omitted).
44. During sentencing phase deliberations, the jury sent the
trial court a note asking if there is “an automatic appeal when the
death penalty is given,” and the trial court responded: “You are to
decide this case based upon the evidence, the law and the
instructions given to you. You are not to concern yourselves with
matters of this nature.” Young’s complaint regarding this response
was waived for the purposes of ordinary appellate review by Young’s
failure to object at trial. See Martin, 298 Ga. at 278-279 (6) (d).
110
Furthermore, we conclude that the trial court’s response was not
unconstitutional as Young argues, because it did not suggest that
“the responsibility for determining the appropriateness of the
defendant’s death rest[ed] elsewhere.” Caldwell v. Mississippi, 472
U. S. 320, 329 (III) (105 SCt 2633, 86 LE2d 231) (1985) (reversing
where the prosecutor argued that any death sentence would be
reviewed by the appellate court for correctness).
45. Young argues that the trial court erred regarding two other
notes from the jury during its sentencing phase deliberations. As
explained below, we see no error.
(a) About an hour and 45 minutes into sentencing phase
deliberations, a juror sent a note to the trial court stating: “I am
asking to be dismiss [sic] as a juror. I have lots of questions and due
to those I cann’t [sic] say yes to death penalty.” The trial court did
not abuse its discretion by refusing Young’s request to declare a jury
deadlock and impose a sentence of life without parole, as it was not
clear at this early stage that additional deliberations would be
fruitless. The trial court also did not abuse its discretion by refusing
111
Young’s request “that the Court instruct the juror that each person’s
individual, moral assessment is to be respected.” Instead, the trial
court acted properly in simply letting the jury continue to deliberate
under the court’s original instructions, when there was no reason for
the court to believe that the juror had misunderstood them, while
announcing that it would take further action if the jury later notified
the court of a deadlock. See Porras v. State, 295 Ga. 412, 419-420
(3) (761 SE2d 6) (2014) (holding that a trial court did not err by
ordering the jury to continue deliberating). Cf. Anderson v. State,
262 Ga. 26, 27 (1) (c) (413 SE2d 732) (1992) (“The record in this case
indicates that the jury was confused about the charge. No remedial
instruction was given. . . .”).
(b) Later, the jury sent a note informing the trial court that it
was deadlocked eleven to one in favor of a death sentence and
asking, “What is the next step?” At that point, which was after less
than four hours of deliberations, the trial court properly charged the
jury consistently with this Court’s suggested modified Allen charge
for such circumstances, instructing them (1) that each juror must
112
agree in order for the jury to return a verdict, (2) that jurors have a
duty to consult one another, (3) that each juror must decide the case
for himself or herself, (4) that a juror should not hesitate to
reexamine his or her views and change an opinion if convinced that
it is erroneous, and (5) that no juror should surrender his or her
views solely based on other jurors’ opinions or for the mere purpose
of returning a verdict. See Romine v. State, 256 Ga. 521, 527 (1) (d)
(350 SE2d 446) (1986). See also Allen v. United States, 164 U. S. 492(17 SCt 154, 41 LE 528) (1896). We disagree with Young’s
contention that the charge given was coercive or improperly singled
out the one juror who had not voted for death, even accounting for
the fact that the jury had volunteered in its note the nature and
breakdown of its deadlock. Cf. Smith v. State, 302 Ga. 717, 721 (2)
(808 SE2d 661) (2017) (providing guidance on determining if an
Allen charge was coercive).
46. We reject Young’s argument that his right to be present
was denied in the sentencing phase during bench conferences in
which the juror notes regarding an alleged jury deadlock were
113
discussed. We conclude that the trial court did not err in its order
denying Young’s motion for new trial in concluding that he was
aware of the subject matter of the bench conferences, that the
decisions made at them were announced in open court, that Young
never personally voiced any concerns, and, accordingly, that Young
personally acquiesced in the waiver of his presence that was made
by his counsel. Cf. Champ, 310 Ga. at 834-848 (2) (a, b, and c)
(remanding where the trial court had not ruled on the defendant’s
acquiescence in counsel’s waiver).
Appellate Issues
47. Young argues that he is entitled to a new trial because a
photograph of him as an infant or toddler was admitted at trial but
is not included in the appellate record, despite the best efforts of his
counsel on remand from this Court to complete the record, including
a trip to New Jersey. First, Young has failed to show why he could
not have obtained an adequate description of the photograph, with
or without an intervening trip to New Jersey, in an order from the
trial court pursuant to OCGA § 5-6-41 (f). Second, we conclude that
114
a photograph of Young as a very young child would not assist our
appellate review. See West v. State, 306 Ga. 783, 787 (2) (833 SE2d
501) (2019); Brockman v. State, 292 Ga. 707, 716 (5) (b) (739 SE2d
332) (2013) (denying relief where the defendant failed to show that
he was harmed or prevented from raising any viable issue on appeal
by the omission from the record of four exhibits, including three
mitigation photographs).
48. Young argues that his convictions and sentences should be
reversed based on a cumulative error analysis. Pretermitting the
question of how suitable the various issues are for such a review and
what rule this Court should adopt in that regard in the future, we
hold that the cumulative effect of the several instances of
constitutional violations and trial court error that we have assumed
to exist above does not warrant relief under any rule that we might
adopt. See State v. Lane, 308 Ga. 10, 14 (1), 17-18 (1), 21-22 (4) (838
SE2d 808) (2020) (holding that “Georgia courts . . . should consider
collectively the prejudicial effect of trial court errors and any
deficient performance by counsel — at least where those errors by
115
the court and counsel involve evidentiary issues” but declining to
decide “exactly how multiple standards may interact under
cumulative review of different types of errors”). 27
Sentence Review
49. Upon our review of the entire record, especially those
portions relevant to the matters noted above that were waived for
the purposes of ordinary appellate review, we conclude that the
sentence of death in this case was not imposed under the influence
of passion, prejudice, or any other arbitrary factor. See OCGA § 17-
10-35 (c) (1). See also Martin, 298 Ga. at 279 (6) (d) (stating
regarding this Court’s review under OCGA § 17-10-35 (c) (1): “That
plenary review guards against any obvious impropriety at trial,
whether objected to or not, that in reasonable probability led to the
jury’s decision to impose a death sentence.”).
50. In its sentencing verdict, the jury found as statutory
aggravating circumstances that the murder was committed while
Our analysis here includes the issues addressed in Divisions 5, 16, and
27
37. However, we reiterate that we are not announcing here a rule regarding
what types of error should be considered cumulatively.
116
Young was engaged in the commission of burglary and aggravated
battery and that the murder was outrageously or wantonly vile,
horrible, or inhuman in that it involved torture and aggravated
battery to the victim before death and involved the defendant’s
depravity of mind. See OCGA § 17-10-30 (b) (2), (7). Upon our
review of the record, we conclude that the evidence presented at trial
was sufficient to authorize a rational trier of fact to find beyond a
reasonable doubt the existence of these statutory aggravating
circumstances. See Ring, 536 U. S. 584, passim; Jackson, 443 U. S.
at 319 (III) (B); OCGA § 17-10-35 (c) (2) (requiring a review of the
statutory aggravating circumstances found by the jury); UAP IV (B)
(2) (providing that, in all death penalty cases, this Court will
determine whether the verdicts are supported by the evidence).
51. The Georgia Code requires this Court, in the direct appeal
of a death sentence, to determine “[w]hether the sentence of death
is excessive or disproportionate to the penalty imposed in similar
cases, considering both the crime and the defendant.” OCGA § 17-
10-35 (c) (3). As discussed below, we reject Young’s arguments that
117
our proportionality review is unconstitutional or otherwise
improper, we reject his claim that he is categorically exempt from a
death sentence based on his claim of intellectual disability, and we
conclude that his death sentence is not disproportionate
punishment.
(a) Contrary to Young’s arguments, “[t]his Court’s
proportionality review is not inadequate under statutory or
constitutional standards,” Ellington, 292 Ga. at 117 (3) (e),
disapproved on other grounds by Willis, 304 Ga. at 706 n.3, and
there is no need for this Court to remand this case to the trial court
for further proceedings regarding this issue. In support of this
holding, we set forth our reasoning regarding Young’s specific
arguments in more detail below.
(i) As this Court has explained previously, our proportionality
review
concerns whether the death penalty ‘is excessive per se’ or
if the death penalty is ‘only rarely imposed . . . or
substantially out of line’ for the type of crime involved and
not whether there ever have been sentences less than
death imposed for similar crimes.
118
Gissendaner, 272 Ga. at 717 (19) (a) (citations omitted).
Furthermore, as noted previously in a concurrence to the affirmance
of the soundness of this Court’s proportionality review:
The Court does not determine whether the death sentence
under review represents a large or small percentage of
sentences in factually comparable cases. Rather, the
Court examines the sentence on appeal to ensure that it
is not an anomaly or aberration.
Terrell v. State, 276 Ga. 34, 46 (572 SE2d 595) (2002) (Fletcher, C.J.,
concurring). Thus, an argument like Young’s highlighting the
infrequency of death sentences in Georgia, particularly regarding
cases involving crimes that are arguably somewhat similar to his
and defendants that are arguably somewhat similar to him, “while
not irrelevant, cannot alone compel a finding of unlawful
disproportionality.” Gissendaner, 272 Ga. at 717 (19) (a). Instead,
“[t]his Court views a particular crime against the backdrop of all
similar cases in Georgia in determining if a given sentence is
excessive per se or substantially out of line.” Id. (emphasis supplied).
We reaffirm these aspects of our proportionality review.
119
(ii) We reaffirm this Court’s previous holding that, “[b]ecause
it is a jury’s reaction to the evidence before it that concerns this
Court in its proportionality review, it is irrelevant if the sentences
in the cases used for comparison were already at the time, or later
are, reversed for reasons unrelated to the juries’ reactions to the
evidence.” Davis v. Turpin, 273 Ga. 244, 246 (2) (539 SE2d 129)
(2000).28
(iii) We disagree with Young’s assertion that this Court’s
partial reliance in its proportionality review on some cases that are
not as recent as others in itself renders this Court’s proportionality
review inadequate.
(iv) The Georgia Code provides that this Court
shall be authorized to employ an appropriate staff and
such methods to compile such data as are deemed by the
Chief Justice to be appropriate and relevant to the
statutory questions concerning the validity of the
28 Young cites one particular case that he claims this Court cited in its
proportionality reviews in several other defendants’ direct appeals but was
later vacated on habeas review on grounds that arguably affect the question of
proportionality regardless of the correctness of our reasoning in Davis; Young’s
point is unpersuasive, however, because his proportionality review is being
conducted here on its own merits. We are also unpersuaded by Young’s
arguments that are based on a 2007 newspaper article that takes a different
view than we did in Davis.
120
sentence reviewed in accordance with Code Section 17-10-
35.
OCGA § 17-10-37 (b) (as amended by Ga. L. 2010, p. 420, § 2). In a
case where this Court affirms a death sentence, the role of the
“compil[ation] of] such data,” id., is reflected in this Court’s
published decision, including in an appendix providing “a reference
to those similar cases which [this Court] took into consideration,”
OCGA § 17-10-35 (e). See also OCGA § 17-10-35 (e) (2) (directing
this Court to provide the trial court, for resentencing purposes, with
“[t]he records of those similar cases” cited by this Court in its opinion
and with “the extracts prepared as provided for in subsection (a) of
Code Section 17-10-37” in any case where this Court sets aside a
death sentence on proportionality grounds). This Court’s
proportionality review complies with statutory requirements
regarding its consideration of relevant data, and we hold that this
Court’s practices regarding those data are not unconstitutional. In
light of this holding, we decline Young’s invitation to remand this
case for further evidentiary development regarding this issue,
121
including his request to probe this Court’s internal deliberative
processes via an Open Records Act request directed at this Court
and via subpoenas directed to this Court’s staff. Cf. UAP IV (B) (1)
(providing for this Court to direct the trial court to conduct whatever
further proceedings this Court deems necessary to allow a full
review on appeal).
(v) Finally, Young complains that it is “unfair” that he will not
have access to this Court’s reasoning regarding the proportionality
of his death sentence prior to the issuance of this opinion, after
which his only remaining remedy in this Court will be a motion for
reconsideration. In rejecting this argument, we note that a similar
difficulty presents itself to all unsuccessful appellants in this Court,
regardless of the issue decided on appeal.
(b) Young argues that he belongs to a class of persons, namely
persons with intellectual disability, who are categorically exempt
from the death penalty under the United States Constitution and
the Georgia Constitution and that this Court should enforce that
exemption through this Court’s proportionality review in his case,
122
see OCGA § 17-10-35 (c) (3), or through other unspecified authority.
Although we have previously held that the execution of an
intellectually disabled person would violate the Georgia
Constitution, see Fleming, 259 Ga. at 690 (3), we see no
constitutional infirmity in the General Assembly’s determination
that the issue of whether a defendant is categorically exempt from
the death penalty based on intellectual disability should be decided
by a jury, rather than by this Court, subject only to this Court’s
review of the sufficiency of the evidence to support the jury’s verdict.
But cf. Hill, 269 Ga. at 303-304 (3 and 4) (holding that, where alleged
intellectual disability was not determined by a jury at trial despite
the statutory provision allowing for such a claim at that stage, a
habeas court may consider alleged intellectual disability under the
miscarriage of justice exception to the procedural default rule).
Nevertheless, we do consider Young’s evidence of alleged intellectual
disability falling short of the categorical exemption here in our
proportionality review, because we are directed by law to consider
“the crime and the defendant.” OCGA § 17-10-35 (c) (3).
123
(c) The evidence in this case shows that, after weeks of careful
planning, Young ruthlessly executed the prolonged attack on and
brutal murder of his former fiancée’s son for the purpose of
manipulating his former fiancée into resuming a relationship with
him and returning to live with him. Considering both the crime and
the defendant, including the evidence of his intellectual difficulties,
we conclude that the death sentence imposed for the murder in this
case is not disproportionate punishment within the meaning of
Georgia law. See OCGA § 17-10-35 (c) (3); Gissendaner, 272 Ga. at
716-717 (19) (a) (holding that this Court’s statutorily mandated
proportionality review concerns whether a particular death sentence
“is excessive per se” or is “substantially out of line”). The cases
cited in the Appendix support our conclusion, because each shows a
jury’s willingness to impose a death sentence for the deliberate,
unprovoked commission of a murder during the commission of a
burglary, see OCGA § 17-10-30 (b) (2), or a murder that was
“outrageously or wantonly vile, horrible, or inhuman,” see OCGA §
17-10-30 (b) (7). See OCGA § 17-10-35 (e). See also Barrett v. State,
124
292 Ga. 160, 190 (4) (733 SE2d 304) (2012) (explaining that seldom,
if ever, will the facts surrounding two death penalty cases be entirely
alike and that this Court is not required to find identical cases for
comparison in its proportionality review); Ross v. State, 233 Ga. 361,
366-367 (2) (211 SE2d 356) (1974) (“It is the reaction of the sentencer
to the evidence before it which concerns this court and which defines
the limits which sentencers in past cases have tolerated. . . .”).
Judgment affirmed. All the Justices concur, except Nahmias, P. J., and
Boggs and Peterson, JJ., who concur specially, Warren, J., who concurs in
judgment only, and Bethel, J., who dissents.
APPENDIX
Spears v. State, 296 Ga. 598 (769 SE2d 337) (2015), disapproved on
other grounds by Willis v. State, 304 Ga. 686, 706 (11) (a) n.3 (820
SE2d 640) (2018); Barrett v. State, 292 Ga. 160 (733 SE2d 304)
(2012); Ledford v. State, 289 Ga. 70 (709 SE2d 239) (2011),
disapproved on other grounds by Willis, 304 Ga. at 706 (11) (a) n.3;
Arrington v. State, 286 Ga. 335 (687 SE2d 438) (2009); Walker v.
State, 282 Ga. 774 (653 SE2d 439) (2007) (relevant to Young’s case
despite the fact that the convictions and sentences were later
vacated for reasons unrelated to the jury’s reaction to the evidence
before it, see Humphrey v. Walker, 294 Ga. 855 (757 SE2d 68) (2014),
disapproved on other grounds by Ledford, 289 Ga. at 85 (14),
disapproved on other grounds by Willis, 304 Ga. at 706 (11) (a) n.3));
Lewis v. State, 277 Ga. 534 (592 SE2d 405) (2004) (relevant to
Young’s case despite the fact that the death sentence was later
vacated for reasons unrelated to the jury’s reaction to the evidence
before it, see Hall v. Lewis, 286 Ga. 767, 767-768, 781 (II) (692 SE2d
125
580) (2010)); Sallie v. State, 276 Ga. 506 (578 SE2d 444) (2003);
Braley v. State, 276 Ga. 47 (572 SE2d 583) (2002); Terrell v. State,
276 Ga. 34 (572 SE2d 595) (2002); Fults v. State, 274 Ga. 82 (548
SE2d 315) (2001); McPherson v. State, 274 Ga. 444 (553 SE2d 569)
(2001) (relevant to Young’s case despite the fact that the death
sentence was later vacated for reasons unrelated to the jury’s
reaction to the evidence before it, see Hall v. McPherson, 284 Ga.
219, 220 (663 SE2d 659) (2008)); King v. State, 273 Ga. 258 (539
SE2d 783) (2000); Jones v. State, 273 Ga. 231 (539 SE2d 154) (2000),
overruled on other grounds by State v. Lane, 308 Ga. 10, 23 (838
SE2d 808) (2020); Drane v. State, 271 Ga. 849 (523 SE2d 301) (1999),
265 Ga. 255 (455 SE2d 27) (1995); Jones v. State, 267 Ga. 592 (481
SE2d 821) (1997).
126
S21P0078. YOUNG v. THE STATE.
NAHMIAS, Presiding Justice, concurring specially.
With the one exception that I discuss below, I am fairly
confident that the Court reaches the right result on all of the issues
presented in this case, so I concur in the judgment upholding
Young’s convictions and sentences, including his death sentence. I
am less sure about everything the plurality opinion says, or fails to
say, about each of the issues presented. I do not fault the author of
the plurality opinion for that, because the opinion has to try to
explain its reasoning regarding the 50 enumerations of error (many
with subparts) raised in Young’s 466-page principal brief (which was
supplemented by another 76 pages of argument in a reply brief), and
the Court must decide this case (along with our many other second-
term cases) by July 2 to comply with our state Constitution’s unique
“two-term rule.” See Ga. Const. of 1983, Art. VI, Sec. IX, Par. II (“The
Supreme Court and the Court of Appeals shall dispose of every case
at the term for which it is entered on the court’s docket for hearing
127
or at the next term.”).
This Court has not (yet) imposed a page limit on briefs in death
penalty cases. See Supreme Court Rule 20 (3). Compare id. (1) and
(2) (imposing a 50-page limit for principal briefs in other criminal
cases and a 30-page limit in civil cases). Young presents several
substantial issues, but it is difficult to identify the wheat among all
the chaff, and even the chaff must be addressed. Indeed, the
plurality opinion might be 250 pages long if it dealt with every issue
in detail (and if this Court had time to do so). Because Young has
chosen to present his appeal in this way, I join only the result of the
plurality opinion, without necessarily agreeing with every bit of its
analysis.
The issue that is closest, as evidenced by Justice Bethel’s
dissent, and as to which I have the least confidence in the result, is
the continued viability, under the Eighth Amendment of the United
States Constitution, of Georgia’s unique statute placing on the
defendant the burden of proving his intellectual disability beyond a
reasonable doubt. See OCGA § 17-7-131 (c) (3). As the plurality
128
opinion recounts, in 1988, the people of this State, acting through
their elected representatives, were the first in the nation to take the
humane step of prohibiting the execution of intellectually disabled
criminal defendants. See id. (j) (prohibiting the imposition of the
death penalty after a finding of intellectual disability). Not long
thereafter, this Court, and then the United States Supreme Court,
constitutionalized that prohibition using the doctrine that applies
the “cruel and unusual punishments” constitutional text based on
“evolving standards of decency that mark the progress of a maturing
society.” See Fleming v. Zant, 259 Ga. 687, 689-690 (386 SE2d 339)
(1989); Atkins v. Virginia, 536 U.S. 304, 312, 321 (122 SCt 2242, 153
LE2d 335) (2002).
That doctrine, which does not purport to be founded on the
original public meaning of the constitutional text, allows judges to
outlaw punishments based on their judicial conceptions of what
contemporary “decency” requires. See Atkins, 536 U.S. at 337(Scalia, J., dissenting) (explaining that the rule adopted by the
majority opinion “find[s] no support in the text or history of the
129
Eighth Amendment”); Conley v. Pate, 305 Ga. 333, 339-341 (825
SE2d 135) (2019) (Peterson, J., concurring) (explaining that the
majority opinion in Fleming departed without explanation from “the
history and context of the Georgia Constitution, as well as over 100
years of Georgia precedent,” to adopt the “evolving standards of
decency” doctrine from the United States Supreme Court case law).
I say “judicial conceptions,” because although judges applying this
doctrine often purport to be reflecting the views of contemporary
American (or Georgian) society, the cases often disregard the best
evidence of those views, which is contemporary legislation enacted
by the people’s elected representatives. 29
29 Perhaps the most telling example of this is the United States Supreme
Court’s 5-4 decision in Kennedy v. Louisiana, 554 U.S. 407 (128 SCt 2641, 171
LE2d 525) (2008), which prohibited under all circumstances the death penalty
for rape of a child not resulting in the child’s death. See id. at 421. The majority
then stuck to that position even when the Court was advised in a motion for
rehearing that only two years before, Congress had enacted (by vote of 374-41
in the House and 95-0 in the Senate) and the President had signed a law
authorizing the death penalty for members of the military who rape a child.
See Kennedy v. Louisiana, 554 U.S. 945, 946-948 (129 SCt 1, 171 LE2d 932)
(2008) (statement of Kennedy, J., respecting the denial of rehearing); id. at 948-
950 (statement of Scalia, J., respecting the denial of rehearing). Justice Scalia,
who had dissented, explained why he was not voting to grant rehearing as
follows:
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Consequently, when we enter the realm of Eighth Amendment
“evolving standards of decency,” if there is not a holding from a
United States Supreme Court case directly on point, a lower court
trying to understand what validly enacted state laws that Court will
decide the United States Constitution has morphed to nullify
requires guessing about what the majority of Justices currently
serving on that Court will decide when a particular new issue is
presented to them. The Atkins majority explained that “[n]ot all
I am voting against the petition for rehearing because the views of
the American people on the death penalty for child rape were, to
tell the truth, irrelevant to the majority’s decision in this case. The
majority opinion, after an unpersuasive attempt to show that a
consensus against the penalty existed, in the end came down to
this: “[T]he Constitution contemplates that in the end our own
judgment will be brought to bear on the question of the
acceptability of the death penalty under the Eighth Amendment.”
554 U.S. [at 434]. Of course the Constitution contemplates no such
thing; the proposed Eighth Amendment would have been laughed
to scorn if it had read “no criminal penalty shall be imposed which
the Supreme Court deems unacceptable.” But that is what the
majority opinion said, and there is no reason to believe that
absence of a national consensus would provoke second thoughts.
Id. at 948-949. The dissent in Fleming similarly explained that in holding that
the death penalty for the intellectually disabled was prohibited by the Georgia
Constitution based primarily on the enactment of OCGA § 17-7-131, the
majority disregarded the limitations and prospective-only application of that
statute enacted by the people’s representatives. See Fleming, 259 Ga. at 691-
701 (Smith, J., dissenting).
131
people who claim to be mentally retarded will be so impaired as to
fall within the range of mentally retarded offenders about whom
there is a national consensus,” and asserted that the Court would
therefore “leave to the State[s] the task of developing appropriate
ways to enforce the constitutional restriction upon [their] execution
of sentences.” Atkins, 536 U.S. at 317 (citation and punctuation
omitted). Taking heed of those statements, this Court held in Head
v. Hill, 277 Ga. 255, 260-263 (587 SE2d 613) (2003), and reiterated
in Stripling v. State, 289 Ga. 370, 371-374 (711 SE2d 665) (2011),
that Georgia’s beyond-a-reasonable-doubt standard of proof for
claims of intellectual disability (in conjunction with other
procedures protecting the intellectually disabled from death
sentences) does not violate the Eighth Amendment. And the en banc
United States Court of Appeals for the Eleventh Circuit held that
our decisions on this issue were not contrary to clearly established
federal law. See Hill v. Humphrey, 662 F3d 1335, 1337-1338 (11th
Cir. 2011) (en banc), cert. denied, 566 U.S. 1041 (132 SCt 2727, 183
LE2d 80) (2012).
132
Thereafter, however, in Hall v. Florida, 572 U.S. 701 (134 SCt
1986, 188 LE2d 1007) (2014), and Moore v. Texas, 581 U.S. ___ (137
SCt 1039, 197 LE2d 416) (2017), the majority on the United States
Supreme Court began to constrain the leeway that the states
appeared to have been given regarding how intellectual disability
may be determined. The holdings of those two cases do not address
what standard of proof may be used to evaluate an intellectual
disability claim, and thus they plainly do not affect Georgia’s law.
But as Justice Bethel explains in his dissent, some of the reasoning
of the cases, particularly their disapproval of state measures that
“‘creat[e] an unacceptable risk that persons with intellectual
disability will be executed,’” Moore, 137 SCt at 1044 (quoting Hall,
572 U.S. at 704), certainly casts doubt on this State’s uniquely high
standard of proof.
The reasoning of the United States Supreme Court’s decisions
does not bind lower courts, however; only the holdings govern. Cf.
Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S.
477, 484 (109 SCt 1917, 104 LE2d 526) (1989) (explaining that even
133
when the holding of a Supreme Court case appears to be
contradicted by the reasoning of another line of decisions, the
holding rather than the subsequent reasoning is binding on lower
courts). And particularly in this area of “evolving standards of
decency,” in which it all comes down to whether five Justices decide
to “evolve” the Eighth Amendment a little more, it is risky to rely on
reasoning alone. Indeed, this Court just experienced that pitfall in
another area of “evolving” Eighth Amendment jurisprudence – the
imposition of life without parole sentences on defendants convicted
of murders committed when they were juveniles.
Since the death penalty for juveniles was outlawed by the 5-4
decision in Roper v. Simmons, 543 U.S. 551, 578 (125 SCt 1183, 161
LE2d 1) (2005), the clear trend line of the United States Supreme
Court’s cases in this area (all decided by narrow margins) was to
restrict the states’ authority to punish juveniles. In particular, the
reasoning of the Court’s 6-3 majority opinion in Montgomery v.
Louisiana, 577 U.S. 190 (136 SCt 718, 193 LE2d 599) (2016), seemed
to make it clear that before a juvenile murderer could be sentenced
134
to life without parole, the sentencer must consider more than just
the defendant’s youth and its attendant characteristics; there must
be a specific determination that the defendant is one of those “rarest
of juvenile offenders . . . whose crimes reflect permanent
incorrigibility.” Id. at 208-212. This Court and other lower courts
relied on that reasoning to require such a determination. See Veal
v. State, 298 Ga. 691, 702-703 (784 SE2d 403) (2016). See also, e.g.,
Malvo v. Mathena, 893 F3d 265, 275 (4th Cir. 2018); Commonwealth
v. Batts, 163 A3d 410, 459 (Pa. 2017). But then the composition of
the United States Supreme Court changed, and just a few weeks ago
that Court held, by a 6-3 margin, that notwithstanding most of what
the Montgomery majority opinion said, that decision does not require
a specific finding of permanent incorrigibility. See Jones v.
Mississippi, 593 U.S. ___ (141 SCt 1307, 1311, 209 LE2d 390) (2021).
See also Holmes v. State, Case No. S21A0377, slip. op. at 11-17
(decided June 1, 2021). Both the three dissenters and Justice
Thomas (who concurred in the judgment based on his view that
Montgomery was wrongly decided) criticized the majority opinion for
135
disregarding Montgomery’s logic and reasoning. See Jones, 141 SCt
at 1323, 1326-1328 (Thomas, J., concurring in the judgment); id. at
1330-1337 (Sotomayor, J., dissenting).
Jones demonstrates that courts like mine should be cautious in
deciding Eighth Amendment cases based on aspects of the
reasoning, rather than the square holdings, of the United States
Supreme Court’s “evolving standards of decency” decisions, and
should be wary of trying to predict which way those holdings are
trending. If I had to guess today, I would say that it is likely that if
the United States Supreme Court, as currently comprised, is called
on to decide whether Georgia’s beyond-a-reasonable-doubt-standard
for proof of intellectual disability violates the Eighth Amendment, a
majority of the Justices would not extend the holdings of Hall and
Moore to strike down our State’s statute, notwithstanding the
reasoning of the majority opinions in those two cases.
Of course I (and the majority of this Court) could be wrong.
Young is welcome to seek certiorari from the United States Supreme
Court to have that Court tell us that we are wrong; I would
136
obediently accept and forthrightly apply such a decision. Young and
his advocates are also welcome to try to persuade the people of
Georgia, through their elected representatives, to revisit OCGA §
17-7-131 (c) (3) in light of the extensive developments in the science
of intellectual disability and the law in this area since that statute
was enacted more than three decades ago; if the General Assembly
takes a further humane step with regard to criminal defendants who
are potentially intellectually disabled, I would embrace that change.
In the meantime, however, I see no compelling reason for this Court
to overrule our well-established precedent on this issue.
I am authorized to state that Justice Boggs and Justice
Peterson join this special concurrence.
137
S21P0078. YOUNG v. THE STATE.
BETHEL, Justice., dissenting
“[T]he Eighth and Fourteenth Amendments to the [United
States] Constitution forbid the execution of persons with intellectual
disability.” Hall v. Florida, 572 U. S. 701, 704 (I) (134 SCt 1986, 188
LE2d 1007) (2014) (citing Atkins v. Virginia, 536 U. S. 304, 321 (IV)
(122 SCt 2242, 153 LE2d 335) (2002)). However, before a person can
access this constitutional protection, Georgia requires that the
person first prove that he or she is intellectually disabled beyond a
reasonable doubt. See OCGA § 17-7-131 (c) (3), (j). As others have
before him, Young argues that Georgia’s law is unconstitutional.
See, e.g., Stripling v. State, 289 Ga. 370, 371-374 (1) (711 SE2d 665)
(2011); Head v. Hill, 277 Ga. 255, 260 (II) (B) (587 SE2d 613) (2003)
(rejecting habeas court decision that beyond-a-reasonable-doubt
standard is unconstitutional under Atkins because “nothing in
Atkins instructs the states to apply any particular standard of proof
to [intellectual disability] claims”). But Young suggests that
138
subsequent decisions of the Supreme Court of the United States cast
doubt on Stripling and Head and compel a different conclusion. I
agree.
In Atkins, the Supreme Court of the United States determined
that the United States Constitution prohibits the execution of
intellectually disabled persons. See 536 U. S. at 321 (IV). When this
constitutional protection was identified, its contours were not
particularly well-defined, and it appeared that the individual states
were to be responsible for defining and safeguarding this right. See
id. at 317 (III) (“[W]e leave to the States the task of developing
appropriate ways to enforce the constitutional restriction upon their
execution of sentences.” (citation and punctuation omitted)); see also
Bobby v. Bies, 556 U. S. 825, 831 (I) (129 SCt 2145, 173 LE2d 1173)
(2009) (“Our opinion [in Atkins] did not provide definitive procedural
or substantive guides for determining when a person who claims
[intellectual disability] will be so impaired as to fall within Atkins’
compass. We left to the States the task of developing appropriate
ways to enforce the constitutional restriction.” (citation and
139
punctuation omitted)). Since then, however, we have learned that
States are not authorized to enforce legislative rules or judicial tests
that by design or operation create “an unacceptable risk that
persons with intellectual disability will be executed.” Hall, 572 U. S.
at 704 (I); see also Moore v. Texas, __ U. S. __ (137 SCt 1039, 1051
(IV) (C) (1), 197 LE2d 416) (2017).
In Hall, Florida’s rule precluding a finding of intellectual
disability for any person scoring over 70 on an IQ test failed
constitutional review because it created “an unacceptable risk that
persons with intellectual disability will be executed.” Hall, 572 U. S.
at 704 (I). The “rigid” statutory rule in Hall was deemed
unacceptable by the Supreme Court, in part because the strict rule
failed to consider the margin of error and variability inherent in IQ
testing, and thus disregarded established medical practice. See id.
at 713-714 (III) (A).
Likewise, in Moore, the seven-factor test established by Texas
courts to evaluate intellectual disability was found to be deficient
because “by design and in operation,” the Texas test created “‘an
140
unacceptable risk that persons with intellectual disability will be
executed.’” Moore, 137 SCt at 1051 (IV) (C) (1) (citing Hall, 572 U. S.
at 701). More specifically, the Supreme Court determined that the
Texas test failed to protect those with mild levels of intellectual
disability from execution. See id. This was impermissible because
“the entire category of intellectually disabled offenders” is
constitutionally protected from execution. (Citation, punctuation,
and emphasis omitted.) Id.
The question before us, then, is whether Georgia’s requirement
that a defendant prove his or her own intellectual disability beyond
a reasonable doubt creates “an unacceptable risk that an
intellectually disabled person will be executed.” Hall, 572 U. S. at
704 (I). Here, the existence of such a risk seems plain.
Obviously, some portion of persons who are actually
intellectually disabled would, nevertheless, find it difficult to prove
that fact in a judicial proceeding under any standard of proof. See
Raulerson v. Warden, 928 F3d 987, 1015, 1016 (I) (C) (11th Cir.
2019) (“Intellectual disability is an inherently imprecise and
141
partially subjective diagnosis. . . . Given that intellectual disability
disputes will always involve conflicting expert testimony, there will
always be a basis for rejecting an intellectual disability claim.”)
(Jordan, J., concurring in part and dissenting in part); see also Hill
v. Humphrey, 662 F3d 1335, 1367 (I) (11th Cir. 2011) (Barkett, J.,
dissenting) (“[M]ental retardation spans a spectrum of intellectual
impairment[.]”). There is a risk of failure in every effort to divine
truth through a judicial proceeding. Employing the highest burden
of proof in our system of justice, however, significantly increases the
risk of an offender with an actual intellectual disability being
executed because he or she is unable to meet the high standard of
proof.30 Under Georgia’s standard, a meaningful portion of
intellectually disabled offenders are effectively excluded from the
constitutional protection recognized in Atkins. See Humphrey, 662
30 Indeed, the beyond-a-reasonable-doubt standard employed in criminal
proceedings has been described in the legal community as a societal preference
for acquitting guilty people rather than risking incarceration of the innocent.
See, e.g., In re Winship, 397 U. S. 358, 372 (90 SCt 1068, 25 LE2d 368) (1970)
(Harlan, J., concurring) (“I view the requirement of proof beyond a reasonable
doubt in a criminal case as bottomed on a fundamental value determination of
our society that it is far worse to convict an innocent man than to let a guilty
man go free.”).
142
F3d at 1365-1366 (Barkett, J., dissenting) (noting that the State
does not “have unfettered discretion to establish procedures that
through their natural operation will deprive the vast majority of
[intellectually disabled] offenders of their Eighth Amendment right
not to be executed”). The United States Constitution protects all
intellectually disabled offenders from execution under Atkins, and
Georgia’s standard “effectively limits the constitutional right
protected in Atkins to only those who [suffer from severe or profound
intellectual disability]” such that their disability is not subject to any
real dispute or doubt. Id. at 1365-1377. But as the Supreme Court
has determined, the Eighth and Fourteenth Amendments must
afford protection to an offender whose disability is less obvious or
profound. See Moore, 137 SCt at 1051 (IV) (C) (1).
Further, when the standard of proof is beyond a reasonable
doubt, an individual juror who merely believes the defendant to be
probably or even clearly intellectually disabled would still be
authorized to join a sentence of death if any part of their mind was
wavering, unsettled, or unsatisfied that the defendant had proven
143
intellectual disability. We know that a rigid cutoff for IQ that does
not account for variability and margin of error in the test is
unreasonable. See Hall, 572 U. S. at 713-714 (III) (A). Likewise, we
know that employing a test that exposes those with mild intellectual
disabilities to a greater risk of execution is unreasonable. See Moore,
137 SCt at 1051 (IV) (C) (1). With these truths in mind, then, it
seems plain to me that requiring the highest burden of proof known
to our judicial system is also unreasonable because it fails to protect
intellectually disabled persons who are unable to prove that fact
beyond a reasonable doubt. Accordingly, while I concur in the
balance of the Chief Justice’s opinion, I respectfully dissent with
respect to Division 25. Thus, I would vacate the trial court’s
judgment and remand the case for a new jury trial on the sole
question of intellectual disability and for resentencing consistent
with the result of that trial, or for other constitutionally agreeable
proceedings.
144