Martin v. State

In the Supreme Court of Georgia
Decided: November 2, 2015
S15P0675. MARTIN v. THE STATE.
HINES, Presiding Justice.
A jury convicted DeKelvin Martin of raping his girlfriend, Tymika
Wright, murdering her 12-year-old child, Savion Wright, and her elderly
grandparents, Travis Ivery and Ila Ivery, by stabbing each of them repeatedly,
committing aggravated sodomy against Ms. Wright in the presence of the 2-
year-old child that Martin and Ms. Wright had together, Christin Martin, and
related crimes.1 The jury found multiple statutory aggravating circumstances
1
Martin committed his crimes on October 1, 2002. He was originally indicted on December
6, 2002, by a Fulton County grand jury for the murders of Savion Wright and Travis Ivery, along
with related crimes. On January 13, 2003, the State filed written notice of its intent to seek the death
penalty. On September 5, 2003, after Ila Ivery died, Martin was reindicted on the following counts:
three counts of malice murder, three counts of felony murder, four counts of aggravated assault with
a deadly weapon, one count of armed robbery, two counts of aggravated sodomy, one count of rape,
and two counts of cruelty to children in the second degree. In 2004, after initially granting review,
this Court dismissed for lack of jurisdiction an interim review claim by the State in which it sought
the recusal of the original trial judge. See State v. Martin, 278 Ga. 418 (603 SE2d 249) (2004).
Martin then pled guilty in 2005 and received a death sentence in a bench trial. On January 11, 2005,
Martin filed a motion for a new trial, and he amended that motion on March 30, 2005. After the
recusal of the original trial judge and the remaining judges of the circuit, a judge from the Douglas
Judicial Circuit granted the State’s motion to disqualify Martin’s original trial counsel and then later
granted Martin’s motion to withdraw his guilty plea based on the incomplete recitation at the plea
hearing of the rights that Martin would have at his bench trial. This Court dismissed the State’s
related to the murders of Savion Wright and Travis Ivery and recommended a
death sentence for those murders, which the trial court imposed along with a life
sentence for the murder of Ila Ivery and other related sentences. For the reasons
set forth below, we affirm.
1. (a) Viewed in the light most favorable to the State, the evidence
presented at trial, drawn largely from Tymika Wright’s testimony, showed the
following set of facts. Martin had been dating his girlfriend, Tymika Wright,
appeal of the order allowing the withdrawal of Martin’s guilty plea, citing this Court’s lack of
jurisdiction. See State v. Martin, S07A0871 (decided on Mar. 26, 2007). See also Boykin v.
Alabama, 395 U. S. 238 (89 SCt 1709, 23 LE2d 274) (1969). On September 26, 2007, the State filed
a second written notice of its intent to seek the death penalty. In October of 2008, this Court
addressed on interim review the admissibility of the prior testimony of Tymika Wright, who had died
since the first trial. See Martin v. State, 284 Ga. 504 (668 SE2d 685) (2008). In a trial held on
December 16-17, 2008, a jury found that Martin was mentally competent to stand trial. Martin’s
retrial, this time before a jury, was held from January 5 to February 11, 2009. On the State’s motion,
the trial court entered an order of nolle prosequi regarding one of the two aggravated sodomy counts.
On February 6, 2009, the jury acquitted Martin of the armed robbery count but found him guilty of
the lesser included offense of theft by taking, acquitted Martin of one of the cruelty to children
counts, and convicted Martin of the remaining counts. On February 11, 2009, the jury recommended
a death sentence for the murders of Savion Wright and Travis Ivery. That same day, the trial court,
in light of the malice murder convictions, properly imposed no sentences on the felony murder
counts, see Malcolm v. State, 263 Ga. 369, 372 (4) (434 SE2d 479) (1993), and aggravated assault
counts involving the murder victims, see Hulett v. State, 296 Ga. 49, 55 (2) (a) (766 SE2d 1) (2014),
imposed death sentences for the murders of Savion Wright and Travis Ivery, and imposed
consecutive sentences of life imprisonment for the murder of Ila Ivery, 20 years’ imprisonment for
the aggravated assault of Tymika Wright, 20 years’ imprisonment for the remaining aggravated
sodomy count, life imprisonment for the rape, 12 months’ imprisonment for the theft by taking, and
12 months’s imprisonment for the cruelty to children in the second degree. Martin filed a motion
for a new trial on February 23, 2009, which he amended on March 1, 2012, December 11, 2012, and
February 22, 2013. The trial court denied the motion in an order filed on March 19, 2013, set that
order aside, and filed a reissued order on May 16, 2013. Martin filed a timely notice of appeal on
May 17, 2013. This appeal was docketed to the April 2015 term of this Court, and the case was
orally argued on July 14, 2015.
2
for approximately five years, and they were living with Ms. Wright’s elderly
grandparents, Travis and Ila Ivery, along with Ms. Wright’s 12-year-old son
from a prior marriage, Savion Wright, and the 2-year-old son she had with
Martin, Christin Wright.2 On the night and early morning of September 30 to
October 1, 2002, Martin consumed a large quantity of alcohol, some powder
cocaine, and then some crack cocaine.
At about 1:30 a.m., Martin tapped on Ms. Wright’s window, and she let
him in through the kitchen door. Martin told Ms. Wright that he wanted to
speak to her about something, he went into the den and sat on the couch, and she
sat in front of him in a chair. He told her that he wanted to move back to his
hometown, Fitzgerald, Georgia. He then asked her if she wanted to have sex.
She said, “no,” but offered to make him something to eat. He said that he was
not hungry, but he went with her to the kitchen to look at the food that she had
left from the family dinner that he had missed earlier. As she was preparing the
food, he took a knife from the dishwasher, grabbed her, told her that he would
2
The original indictment and the transcript from the bench trial held in 2005 spell this name
as “Christin,” while the second indictment and the transcript from the trial held in 2009 spell it as
“Christian.” Because the parties both have spelled the name in this appeal as “Christin,” we adopt
that spelling for this opinion.
3
kill everyone in the house if she said anything, dragged her into the den, and
pushed her onto the couch. She reminded him that he previously had vowed not
to act like that and reassured him that her grandparents were not angry that he
had been out late. He apologized and placed the knife on the side of the couch,
and she talked him into turning on the television and then hid the knife under a
pillow in her bedroom. Savion got up from bed and came into the hallway, and
Martin stood in the doorway from the den to the hallway and greeted him. Ms.
Wright sent Savion back to bed and turned around to find Martin making a face,
standing close to her, and “acting paranoid and nervous.” She asked him if he
was on drugs, but he denied that he was. She decided to try to calm him by
making conversation and by again reassuring him that no one had a problem
with his having come home at 1:30 a.m.
Ms. Wright failed to calm Martin, he again asked her for sex, and she
agreed in the hope that he would go to sleep afterward. She asked him if she
could turn a light on, but he said that she would “regret it” if she did. They were
“on the floor” and “started to have sex,” but a light came on in the hallway in the
back of the house. Ms. Wright got up, she found Ms. Ivery in the hallway, she
helped Ms. Ivery to the bathroom, and then Ms. Ivery went back to bed. Martin
4
and Ms. Wright then “started again” having sex, but the hallway was illuminated
when Savion left his bedroom at the back of the house and turned on the light
in the bathroom near his room. After Savion went back to bed, Martin and Ms.
Wright again “started to have sex, but [he] couldn’t keep an erection.” He
accused her of cheating on him or having something wrong with her, but she
denied the accusations. He then called her names and told her that she “smelled
like [she had] been with somebody else.” She laughed and explained that she
had been at the house all day.
Martin and Ms. Wright were at this point still on the floor in the den. He
told her to turn around, she turned around and got on her knees to stand, and he
grabbed her around the neck and began choking her. She broke away from him,
told him that he would have to leave the house, began walking down the hallway
toward her bedroom to retrieve her car keys, and called for Savion. Martin came
toward her fast in the hallway, she tried to hold a door shut to keep him away
from her, she screamed for Savion to get up and call the police, her grip on the
door began slipping, she screamed for Mr. and Ms. Ivery to help her, and Martin
snatched the door from her grip. Martin walked slowly past Ms. Wright,
grabbed Savion near the door to his bedroom, and started stabbing Savion in the
5
neck as Savion tried to break free.3 Ms. Wright got between Martin and Savion,
and Martin stabbed her in the back and cut her face as he tried to pursue Savion.
Ms. Wright continued to scream for Mr. and Ms. Ivery.
Martin pursued Savion, who had fled to the bathroom. Ms. Ivery, bracing
herself because she was barely able to stand given her medical condition, tried
to block Martin in the bathroom doorway as he reached past her trying to stab
Savion, stabbing Ms. Ivery in the process. Ms. Ivery called for Mr. Ivery,
prompting Martin to stab her more. Ms. Wright told Savion to run, but he
collapsed to the floor after three or four steps and then made a gurgling sound.
As Ms. Wright and Ms. Ivery struggled with Martin, Mr. Ivery came out of his
room, he grabbed Martin, and Martin began stabbing him. Martin then pushed
Mr. Ivery backwards onto his bed, straddled over the top of him, and stabbed
him repeatedly in the chest. Ms. Wright reached for the telephone, but Martin
cut the telephone cord. Ms. Wright ran for another telephone, but she stopped
when she saw Martin standing over Christin and Savion with a knife. After
3
At least three knives were involved in the crimes. After the crimes, one was found under
Ms. Wright’s pillow, where she said she hid it after the initial attack on her, one was found buried
in a flower pot outside, where Martin admitted that he had secreted it as he left the house, and one
was found broken in half, with the blade left inside Mr. Ivery’s chest and the handle left on the floor.
6
Christin laid his head over Savion, Martin began running back and forth
between Mr. and Ms. Ivery and stabbing them. Ms. Ivery begged Martin to stop
stabbing her and just let her die, but he continued to stab her.
Martin took Ms. Wright by the hand and took her into another room, while
Christin held her leg and she begged for her life. Martin told her that she had
to perform oral sex on him if she wanted to live and pushed her to her knees as
he held a knife to her head and as Christin continued to hold onto her leg. After
she submitted to oral sex with him, he demanded vaginal sex. At that point, she
was “trying to do anything that he’s saying,” but he did not respond when she
offered him some food as a distraction. However, Martin agreed to leave the
house when Ms. Wright offered to give him money from Mr. Ivery’s wallet. At
this point, Ms. Wright was still unclothed. After first trying to clean blood off
of Ms. Wright’s face in a bathroom sink, Martin and Ms. Wright got into the
shower together to clean her. Martin disassembled a cellular telephone when he
discovered that Ms. Ivery was attempting to use it.
Martin then ordered Ms. Wright into her vehicle, although Ms. Wright
insisted that Christin stay behind. Ms. Wright failed to get the attention of a
police officer when the vehicle was stopped at a routine police roadblock.
7
Martin later allowed Ms. Wright to call 911 on a payphone, because Christin
had been left in the house unattended. Martin directed her to drive in various
directions, directed her to begin driving to a recreation center, told her that he
was going to let her go, told her to stop at a gas station on the way, and then
walked away from the vehicle with her still seated inside.
In response to Ms. Wright’s earlier 911 call and a 911 call from Ms. Ivery,
police officers and paramedics discovered Christin crawling around near
Savion’s lifeless body. Mr. Ivery was gasping for air and died as he was being
transported to the hospital. Ms. Ivery was having trouble breathing, was
transported to the hospital, remained in the hospital for three months, and died
a month after her release as a result of complications from her stab wounds.
(b) Among the crimes of which he was convicted, Mr. Martin
challenges the sufficiency of the evidence only as to his rape conviction.4 We
explain below why we conclude that the evidence of Martin’s commission of a
rape was sufficient.
4
Martin raises the challenge only as part of a claim that the jury was improperly permitted
to consider and find the statutory aggravating circumstance concerning a murder committed during
the commission of a rape. See Division 13 below. However, we address the matter here as part of
our routine review of the sufficiency of the evidence to support guilty verdicts and then refer to this
analysis several times below.
8
The evidence of rape suggests the possibility that a rape occurred on two
separate occasions, one before Martin stabbed Ms. Wright and the other victims
and one afterward. Martin focuses his argument on the evidence of the second
possible rape. As stated above, this second possible rape was preceded by
Martin’s forcing oral sex on Ms. Wright, whereupon he demanded vaginal sex.
Ms. Wright described this second instance of possible rape as follows:
[H]e said that he wanted to have sex and . . . he still has the knife,
and I’m like trying to do anything that he’s saying – asking me to
do because at that point I didn’t want to die. But at the same time
I’m thinking, oh, my God, I’ve got to get out of this house. What
am I going to do to get out of this house? So I start offering him
stuff. I was like, do you want to eat – what is it that – you know,
I’ll go with you wherever it is, you know, to get you to leave this
house, but you’ve got to go. And he didn’t seem to respond to
anything that I said, and I said, I have money. Would you take
money? I have money. And that seemed to, you know – he was
like, okay.
Her testimony also shows that she was unclothed at the conclusion of this
second incident. The State argues that this testimony standing alone permits a
conclusion that the evidence was sufficient to authorize the jury to conclude
beyond a reasonable doubt that Martin raped Ms. Wright. See Jackson v.
Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979) (providing the
constitutional standard for the review of the sufficiency of the evidence of a
9
crime). However, we need not reach a conclusion on the sufficiency of the
evidence of a rape based on this testimony, because there is much clearer
evidence of rape regarding the earlier incident that occurred shortly after Martin
arrived at the house.5
As set forth above, shortly after arriving at the house and before stabbing
anyone, Martin asked Ms. Wright if she wanted to have sex with him, and she
said, “no.” Martin then took a knife from the dishwasher, grabbed Ms. Wright,
told her that he would kill everyone in the house if she said anything, dragged
her into the den, and pushed her onto the couch. At this point, the evidence of
coercion is undeniable. We do note that, after Ms. Wright reminded Martin that
he had previously promised not to terrorize her in such a manner, he put down
the knife, and she distracted him with the television and hid the knife. However,
Ms. Wright’s hiding of the knife demonstrates that she remained afraid of him
and what he might do to her, and she knew that Martin could easily obtain
another knife from the kitchen nearby. Ms. Wright’s testimony also shows that,
5
Although not necessary to our holding here, we note that the jury apparently found that the
rape occurred before the stabbings. The jury found in its verdict that a rape had occurred at some
point, and it is clear that it either occurred before the stabbings while Christin was still asleep or after
the stabbings while Christin clung to Ms. Wright’s leg. While the jury convicted Martin of cruelty
to children in the second degree for forcing Ms. Wright to perform oral sex in Christin’s presence,
it acquitted Martin of committing a rape in Christin’s presence.
10
when Savion got up from bed and greeted Martin at the doorway to the den,
Martin made some sort of facial expression that struck her as noteworthy, stood
uncomfortably close to her, and acted “paranoid and nervous.” At this point,
she felt it necessary to make conversation to distract him and to reassure him
that no one in the family was angry with him in an effort to calm him. However,
her testimony shows that he did not calm down, and he again asked her for sex.
As she was preparing to comply, she made the minor request that she be
permitted to turn on a light. His reply that she would “regret it” if she did
confirmed for Ms. Wright that she truly was in great danger. In light of this
testimony, we easily conclude that whatever sexual contact that actually
occurred at that time was coerced and thus was committed “forcibly and against
[Ms. Wright’s] will.” OCGA § 16-6-1 (a) (1). See Curtis v. State, 236 Ga. 362,
362 (1) (223 SE2d 721) (1976) (“True consent to the act, of course, negates the
element of force; but it is both entirely logical and legally certain that apparent
‘consent’ induced by fear is not the free consent required to prevent the act’s
constituting a crime, but is the mere product of force within the meaning of the
statute.”).
11
Rape also includes the element of “carnal knowledge.” OCGA § 16-6-1
(a). “Carnal knowledge of rape occurs when there is any penetration of the
female sex organ by the male sex organ.” Id. (emphasis supplied). See Loyd
v. State, 288 Ga. 481, 491 (4) (c) (705 SE2d 616) (2011) (noting that “an
entering of the anterior of the organ, known as the vulva or labia, is sufficient”
(punctuation and citation omitted)). From her testimony, we know that Ms.
Wright and Martin were on the floor in the den when they “started to have sex.”
Under ordinary circumstances, the phrase, “started to have sex,” can imply
foreplay in anticipation of penetration. However, under the extreme
circumstances described by Ms. Wright, who was speaking from her own
perspective as a victim, the jury was authorized to view the phrase differently.
Furthermore, the jury was authorized to infer that penetration occurred from Ms.
Wright’s testimony that, during the third time that Martin “started to have sex”
with her, he was unable to “keep an erection” (emphasis supplied), because that
phrase suggests that he had an erection at first in that third incident as well as
suggests that his difficulty in the third incident contrasted with his performance
in the two earlier incidents. We conclude that the evidence of penetration was
sufficient. See Payne v. State, 231 Ga. 755, 755 (1) (204 SE2d 128) (1974) (“In
12
a rape case, penetration may be proved by indirect or circumstantial evidence.”).
See also Jackson, 443 U. S. at 319 (III) (B) (holding that a proper review of the
sufficiency of the evidence under the due process clause “gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts”).
Finally, we address Martin’s argument that, despite the evidence of rape
described above, the jury was unauthorized to find that a rape had occurred
because Ms. Wright did not report the rape early in her interactions with
investigators. We find this argument unpersuasive for four reasons. First, a
rape conviction is not unauthorized under the law simply because the victim
chooses not to report the rape immediately. See Watson v. State, 235 Ga. 461,
463 (2) (219 SE2d 763) (1975) (holding that a delay in reporting an alleged rape
goes to the victim’s credibility, which is solely a jury question). Second, the
jury might well have considered Ms. Wright’s early failure to report the rape as
unremarkable in light of the staggering nature of the crimes against her closest
family members that she did manage to report in those early interactions with
investigators. Third, Ms. Wright failed to report any sexual assault in her early
13
interactions with investigators, including the aggravated sodomy that Martin
does not even contest. Fourth and finally, the jury was authorized to disregard
Ms. Wright’s delay in reporting the rape in its deliberations in light of her
obvious credibility and her lack of a motive to add an accusation of rape in a
case that already involved three brutal murders.
(c) Upon our review of the record, including the review of the
evidence of rape discussed in detail above, we conclude that the evidence
presented at trial was sufficient to authorize a rational trier of fact to find beyond
a reasonable doubt that Martin was guilty of all of the charges of which he was
convicted. See Jackson, 443 U. S. 307. See also U.A.P. 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. Martin argues that the judge presiding over his first motion for a new
trial, which included an alternative motion to withdraw his guilty plea, erred by
removing the defense attorneys who had represented him leading up to and
during his first trial. We find that, under the unusual circumstances of this case,
14
the presiding judge did not abuse his discretion by removing Martin’s original
counsel.
(a) From the beginning of his case, Martin was represented by
Thomas West and Robert Citronberg. These original lawyers represented
Martin on interim review in 2004, when the State attempted to appeal the
original trial judge’s decision not to recuse herself after the State alleged that she
had made a promise to Martin from the bench in a pretrial hearing that she
would impose a sentence of life without parole if Martin would plead guilty and
agree to a bench trial. Martin’s original lawyers insisted that no such promise
had been made and that the trial judge instead had made clear that she would
consider all three sentences. This matter was never considered by this Court,
however, because there was no statutory authority at the time for this Court to
exercise jurisdiction over the State’s appeal. See State v. Martin, 278 Ga. 418(603 SE2d 249) (2004). But see also OCGA § 5-7-1 (9) (as amended in 2005
and subsequently).
Following this dismissed interim review, Martin’s original lawyers
continued to represent Martin, and Martin entered a guilty plea in 2005 and
agreed to waive his right to a jury trial on sentencing and to be sentenced in a
15
bench trial conducted by his original trial judge in the Superior Court of Fulton
County. At the conclusion of the bench trial, the original trial judge imposed a
death sentence. Martin’s original trial lawyers filed a motion for a new trial
which, as amended, also sought to withdraw his guilty plea. The amended
motion alleged that the original trial judge had promised Martin’s original trial
lawyers in an untranscribed conference in the judge’s chambers that she would
impose a sentence of life without parole if Martin would plead guilty and agree
to a bench trial on sentencing. The State moved for the original trial judge’s
recusal, the original trial judge referred the motion to recuse for assignment to
another judge in the same circuit, and the original trial judge was ordered
recused. Martin’s original lawyers then filed a motion to recuse all of the judges
of the Atlanta Judicial Circuit, which was granted by the Chief Judge of the
circuit.
Martin’s case was then assigned to a judge from the Douglas Judicial
Circuit, in order for him to preside over Martin’s motion for a new trial and
motion to withdraw the guilty plea. Martin’s original lawyers issued subpoenas
to the original trial judge and her staff, and the original trial judge moved to
quash the subpoenas. The State then moved the presiding judge to order the
16
disqualification of Martin’s original trial lawyers, arguing that they would be
necessary witnesses at the hearing to be held on Martin’s motion for a new trial.
Martin’s original lawyers filed briefs opposing the State’s motion and included
an affidavit from Martin expressing his desire to retain his original lawyers.
After conducting a hearing, the presiding judge ordered the disqualification of
Martin’s original trial lawyers6 and then appointed two new lawyers. The same
presiding judge later, with Martin represented by the new lawyers, granted
Martin’s motion to withdraw his guilty plea based on the incomplete recitation
at the plea hearing of the rights that Martin would have at trial, thus rendering
moot the issue of the alleged promise from the original trial judge.
Nevertheless, Martin’s new lawyers never requested that the original lawyers be
allowed to return to the case,7 and Martin was represented at trial by one of the
new lawyers appointed by the presiding judge and another new lawyer who was
appointed later.8
6
Martin’s original lawyers obtained a certificate of immediate review from the presiding
judge regarding the order to disqualify them, but they never filed an application for interlocutory
appeal in this Court.
7
Martin’s new lawyers also never raised this matter in the interim review that occurred prior
to Martin’s new trial. See Martin, 284 Ga. 504.
8
The possibility that Martin’s original counsel could be disqualified solely for the purpose
of the litigation of Martin’s motion to withdraw his guilty plea based on the alleged promise was also
17
(b) This Court has held as follows:
An indigent defendant has no right to compel the trial court to
appoint an attorney of his own choosing. The choice of appointed
counsel is a matter governed by the trial court’s sound exercise of
discretion and will not be disturbed on appeal unless abused.
However, when a defendant’s choice of counsel is supported by
objective considerations favoring the appointment of the preferred
counsel, and there are no countervailing considerations of
comparable weight, it is an abuse of discretion to deny the
defendant’s request to appoint the counsel of his preference.
Davis v. State, 261 Ga. 221, 222 (403 SE2d 800) (1991) (citations omitted).
One of the objective considerations favoring the appointment of a defendant’s
counsel of choice is counsel’s “long-standing relationship with the defendant,
who they contend is in a fragile state of mental health.” Id. (addressing a
defendant’s desire to retain counsel who had represented him in his previous
trial in the same matter). See also Amadeo v. State, 259 Ga. 469 (384 SE2d 181)
(1989) (same). Here, it is clear that Martin wished to have his original trial
counsel continue representing him, and Martin’s long previous relationship with
never raised by either his original counsel before their disqualification or by his new counsel.
Instead, the parties presented the matter of the possible disqualification of Martin’s original counsel
to the presiding judge as an all-or-nothing proposition. In that vein, we note that there is an
important difference between a situation where a lawyer is prohibited from serving as a witness and
an advocate and a situation where a lawyer has some complete disqualification from a case, such as
that caused by a conflict of interest. See McLaughlin v. Payne, 295 Ga. 609, 611 (761 SE2d 289)
(2014).
18
them, which included their investigating and litigating the issue of his alleged
mental illness, was clearly an objective consideration favoring their continued
representation.
However, in considering the State’s motion to disqualify Martin’s original
counsel, the presiding judge was also required to consider whether there were
any “countervailing considerations of comparable weight.” Davis, 261 Ga. at
222. This Court has recognized that a trial court has “‘an independent interest
in ensuring that criminal trials are conducted within ethical standards of the
profession and that legal proceedings appear fair to all who observe them.’”
Davenport v. State, 283 Ga. 29, 32 (2) (b) (656 SE2d 514) (2008) (quoting
United States v. Gonzalez-Lopez, 548 U. S. 140, 152 (IV) (126 SCt 2557, 165
LE2d 409) (2006) (citations and punctuation omitted)). The presiding judge
correctly identified the relevant ethical standard at issue here:
(a) A lawyer shall not act as advocate at a trial in which the lawyer
is likely to be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal
services rendered in the case; or
(3) disqualification of the lawyer would work substantial
hardship on the client.
Georgia Rules of Professional Conduct, Rule 3.7.
19
We begin by applying the actual words of the ethical rule to Martin’s case.
First, we consider whether the presiding judge erred by viewing Martin’s
original lawyers as necessary witnesses. There was no dispute that the lawyers
were the only witnesses, other than the original trial judge whose integrity was
already being disputed by the lawyers, who claimed to have any knowledge
about what the judge might have said to the lawyers in chambers.9 Thus, as the
parties agreed, the lawyers were necessary witnesses if the claim regarding the
judge’s statements were to go forward. See Clough v. Richelo, 274 Ga. App.
129, 132 (1) (616 SE2d 888) (2005) (holding that a lawyer is a necessary
witness where “the lawyer’s testimony is relevant to disputed, material questions
of fact and [where] there is no other evidence available to prove those facts”).
The lawyers stated at the hearing that they would prefer to withdraw that claim
if the presiding judge was “inclined” to grant the motion to disqualify them.
However, the statement was conditional in nature rather than being an actual
9
The presiding judge did not have the benefit of knowing precisely what the original trial
judge’s testimony might be, but the parties assumed in their arguments to the presiding judge that
she would deny having made the off-the-record promise alleged by Martin, and this assumption is
buttressed by the fact that she did not disqualify herself from the case sua sponte for her own
misconduct. Martin’s motion to withdraw his guilty plea stated that two prosecutors were in the
original trial judge’s chambers when the alleged promise was made, but the prosecutors had no
recollection of ever hearing any such matter discussed.
20
withdrawal of the claim. Upon inspection of the presiding judge’s order and the
remainder of the record, we conclude that the lawyers never obtained a ruling
on whether withdrawing their claim would permit them to remain as counsel
once the presiding judge’s order made clear that their disqualification would be
required if they were to serve as witnesses. See Smith v. Baptiste, 287 Ga. 23,
30 (694 SE2d 83) (2010) (holding that a party must “obtain a distinct ruling” on
an issue in order to raise it on appeal). Furthermore, if the lawyers had actually
attempted to withdraw the claim in order to preserve their role as Martin’s
advocates, the presiding judge would have had to further consider their
disqualification in order to ensure that Martin was adequately represented,
particularly after the lawyers had argued so stridently in favor of the strength of
their claim and given the fact that, as the trial court noted, the post-sentencing
procedural posture of the case would have allowed for an orderly consideration
of any ineffective assistance claims that might have existed to date. See Chapel
v. State, 264 Ga. 267, 270 (3) (c) (443 SE2d 271) (1994) (“Furthermore, this
court has held that when faced with a ‘serious potential for a post-trial claim of
ineffectiveness’ a trial court properly refused to allow the defendant to be
represented by counsel of his choice.” (citation omitted)). Second, and
21
similarly, it was clear that Martin’s original lawyers’ anticipated testimony
concerned a matter being contested by the State. Third and finally, the fact that
Martin would suffer some hardship by the disqualification of his original
lawyers was properly considered against the “countervailing considerations of
comparable weight” that would be involved without the application of the
general protection to Martin embodied in the ethical rule. Davis, 261 Ga. at
222; Martinez v. Hous. Auth. of DeKalb Cnty., 264 Ga. App. 282, 288 (5) (590
SE2d 245) (2003) (“In determining whether to disqualify counsel, the trial court
should consider the particular facts of the case, balancing the need to ensure
ethical conduct on the part of lawyers against the litigant’s right to freely chosen
counsel.”).
We next consider the circumstances in which Martin’s original lawyers
were expected to be necessary witnesses. This Court has stated: “[T]here is
‘conflict inherent in counsel’s dual role as advocate and witness,’ and for an
attorney to act as both witness and advocate is a circumstance to be avoided.
Rather, ‘[t]he practice of trial attorneys testifying is not approved by the courts
except where made necessary by the circumstances of the case.” McLaughlin
v. Payne, 295 Ga. 609, 611 (761 SE2d 289) (2014) (citations omitted). See also
22
Mobley v. State, 265 Ga. 292, 299 (18) (b) (455 SE2d 61) (1995) (holding that,
when counsel also serve as witnesses, they “are forced into ethical conflicts,
their credibility is improperly placed in issue, and advocacy roles are
impaired”); Castell v. Kemp, 254 Ga. 556, 557 (331 SE2d 528) (1985) (noting
that a lawyer who serves as both witness and advocate “‘becomes more easily
impeachable for interest and thus may be a less effective witness’” and “‘is in
the unseemly and ineffective position of arguing his [or her] own credibility’”
(citation omitted)); 81 Am. Jur. 2d § 220 (2015). One circumstance that must
be weighed in deciding whether a lawyer may ethically serve as both witness
and advocate is whether the matter is to be heard by a jury or a judge, and this
factor obviously weighed against the disqualification of Martin’s lawyers,
because their testimony was to be before the presiding judge. Cf. Clough, 274
Ga. App. at 137 (2) (“[T]here is great potential for juror confusion about which
role the lawyer is serving during trial.”). However, certain matters to be
considered by a judge rather than a jury are of such gravity and controversy that
disqualification of a lawyer who will serve as a witness may be justified. See
id. at 138 (2). This Court has recognized that a lawyer is more likely to act
ethically in serving as both a witness and an advocate if his or her testimony
23
relates to merely formal matters, but this factor clearly did not weigh in Martin’s
favor, because the lawyers’ anticipated testimony concerned a critical and
disputed matter. See Payne, 295 Ga. at 611. A lawyer is more likely to be
allowed to testify and remain as an advocate where the need for his or her
testimony is unexpected or occurs when a change in counsel would be disruptive
to the proceedings. See id. at 611 n.2; Pulte Home Corp. v. Simerly, 322 Ga.
App. 699, 702-703 (746 SE2d 173) (2013) (holding that the trial court did not
abuse its discretion by refusing to disqualify an attorney based on a matter not
raised by the opposing party until “only weeks prior to trial”). Cf. Clough, 274
Ga. App. at 137-138 (2) (noting that a lawyer who will serve as a witness at trial
may nevertheless continue to represent his or her client in pretrial proceedings);
Castell, 254 Ga. 556 (holding that it would be improper for original trial counsel
to raise the issue of his own alleged ineffectiveness in a post-trial habeas corpus
case). A lawyer is also more likely to be allowed to serve as a witness and an
advocate where his or her testimony concerns collateral matters heard outside
the main trial, such as rebuttal testimony regarding a deal allegedly made by a
prosecutor. See Lance v. State, 275 Ga. 11, 26 (36) (560 SE2d 663) (2002).
This case involved the extraordinary circumstance where the presiding
24
judge anticipated that he would have the duty to ensure the proper advocacy of
Martin’s original lawyers as they took turns questioning one another as
witnesses, to ensure the proper advocacy of those lawyers as they argued in
favor of their own credibility as witnesses on a crucial issue, and to assess the
credibility of those lawyers as witnesses against the credibility of a superior
court judge. In light of the foregoing discussion, we conclude that the presiding
judge did not abuse his discretion in ruling, as part of his multi-faceted and
somewhat disjointed order, that the relevant ethical rule justified the
disqualification of Martin’s original lawyers.10 Cf. Amadeo, 259 Ga. at 471 (2)
10
We note that the presiding judge, after invoking the purely ethical considerations that we
discuss above, also invoked a Georgia statute in force at the time, OCGA § 24-9-25 (effective until
Jan. 1, 2013), that the presiding judge viewed as prohibiting Martin’s original lawyers from serving
as witnesses under any circumstances, regardless of whether they continued to represent Martin.
This statute had no bearing on the State’s motion to disqualify Martin’s original counsel, as the
information that they had allegedly learned that was to be the subject of their testimony before the
presiding judge was not learned from Martin himself. See id. (effective until Jan. 1, 2013) (“No
attorney shall be competent or compellable to testify for or against his client to any matter or thing,
the knowledge of which he may have acquired from his client by virtue of his employment as
attorney or by reason of the anticipated employment of him as attorney.” (emphasis supplied));
Buffington v. McClelland, 130 Ga. App. 460, 465 (3) (203 SE2d 575) (1973). Furthermore, even
if the presiding judge had correctly concluded that the statute would have barred Martin’s original
counsel from serving as witnesses under any circumstances, we fail to see how that conclusion
should have led to their disqualification based on their not being allowed to serve as both witnesses
and advocates. We need not address this additional ruling in further detail, however, because we
conclude that the application of the ethical rule cited by the presiding judge, which necessarily
involved the exercise of the judge’s discretion in determining whether that rule should be applied
under Martin’s circumstances, is sufficient to sustain the judge’s final decision on the issue of the
disqualification of Martin’s original lawyers.
25
(“[U]nder the facts of this case, the considerations favoring the appointment of
Amadeo’s previous counsel clearly outweighed any opposing consideration,
including the desirability of involving local lawyers. Therefore the trial court’s
refusal to appoint them amounted to an abuse of discretion.” (emphasis
supplied)).
3. Martin claims that the trial court erred by failing to grant his motion to
declare Georgia’s death penalty statutes unconstitutional. Martin forfeited this
issue for ordinary appellate review by failing to obtain a ruling on his motion.
See Walker v. State, 282 Ga. 774, 775 (1) (653 SE2d 439) (2007) (addressing
the waiver arising from the failure to obtain a ruling in the trial court), overruled
on other grounds by Ledford v. State, 289 Ga. 70, 85 (14) (709 SE2d 239)
(2011). See also Division 6 (d) below. Furthermore, even pretermitting this
forfeiture, we hold that Martin’s arguments lack merit for the reasons set forth
below.
(a) Contrary to Martin’s argument, Georgia’s death penalty statutes,
particularly as applied under the proper jury instructions given in this case, do
not fail to provide sufficient guidance to the jury in considering aggravating and
mitigating circumstances and in considering a death sentence against a sentence
26
less than death. See Ellington v. State, 292 Ga. 109, 116 (3) (a) (735 SE2d 736)
(2012).
(b) Martin’s summary claim regarding “the discriminatory
application of the death penalty against certain classes of people” is without
merit, because he has not shown any invidious discrimination in his own case.
See Ledford, 289 Ga. at 75 (3) (a).
(c) Georgia’s death penalty statutes are not unconstitutional because
they afford prosecutors the discretion to decide whether to seek the death
penalty. See Ellington, 292 Ga. at 116 (3) (b), 116 (3) (c); Perkins v. State, 269
Ga. 791, 794 (2) (505 SE2d 16) (1998). See also Crowe v. Terry, 426 FSupp.2d
1310, 1354-1356 (VI) (2) (N.D. Ga. 2005).
(d) This Court’s application of the proportionality review mandated
by OCGA § 17-10-35 (c) (3) is not unconstitutional. See Ellington, 292 Ga. at
117 (3) (e).
Jury Selection Issues
4. Martin argues that the trial court erred by excusing one prospective
juror and by refusing to excuse two prospective jurors based on their views on
the death penalty. We have summarized our review of a trial court’s decisions
27
regarding juror qualifications based on their sentencing views as follows:
Because a defendant is entitled to a full panel of qualified jurors at
the beginning of peremptory strikes, “the erroneous qualifying of a
single juror for the panel from which the jury was struck” would
require reversal. Lance v. State, 275 Ga. 11, 15 (8) (560 SE2d 663)
(2002). A juror who favors the death penalty must be excused for
cause if those views “would prevent or substantially impair the
performance of the juror’s duties as a juror in accordance with the
instructions given the juror and the oath taken by the juror.” Id.(citing Greene v. State, 268 Ga. 47, 48 (485 SE2d 741) (1997)).
We also apply this same standard where a juror is challenged based
on his or her willingness to consider life with the possibility of
parole and life without the possibility of parole. See id. at 16. In
reviewing challenges to jurors based on their views on sentencing,
we give deference to the trial court’s findings. See id. at 15-16.
Rice v. State, 292 Ga. 191, 194-195 (3) (733 SE2d 755) (2012).
(a) Juror Neidert confirmed in her voir dire that she had stated in
her jury questionnaire that, based on her Catholic faith, she did not believe that
it was right to send someone to death. She stated that she still felt that way, that
she “would feel much more comfortable” imposing a non-death sentence, that
she could not pick a death sentence and could not consider one, that she was
“struggl[ing]” in saying that she could impose a death sentence and did not
know if she could do so, that sitting in voir dire she “really c[ould not] make
that decision” to end someone’s life, that she was not sure whether she might
28
change her mind on the matter, and that she believed “very strongly” that she
could not change her views without changing her religious beliefs. She then
stated: “I would have to say I could consider all three options, but I could sit
here and also tell you I would struggle with that decision.” When asked if she
would keep an open mind and decide based on the facts of the case, she stated:
“And my belief tells me I don’t have the right to put someone to death. Now,
the Bible also tells us, too, that we have to obey the law and we have to do
what’s right. So, I can’t – I just can’t. I can’t sit here and tell you I will be able
to make that decision, based on the information I have.” When asked again if
she would decide based on the facts, she stated: “Facts and circumstances. But,
then, also too, based on my background and understanding of the law and, you
know, my religious beliefs. So, yes, all that is going to come into play. I don’t
separate them.” When asked if she could possibly consider all three options in
light of the facts, she stated, “Possibly.” The trial court did not abuse its
discretion by excusing her.
(b) Juror Powers stated that she would consider all three sentencing
options but would have difficulty imposing life with the possibility of parole.
After the process was explained to her, she stated repeatedly that she would
29
listen to all of the evidence and consider all three options. She stated that, upon
a conviction for murder, she would have “probably already decided” that death
was the most appropriate sentence. She volunteered that she “probably would”
have voted for a death sentence in a previous, high-profile case in Georgia that
she named. She then stated that she would not be closed to the other options in
Martin’s case but that it would “[p]robably” be extremely difficult for her to
consider the non-death options. When the trial court informed her that there
were many kinds of murder cases and asked if she could keep an open mind, she
stated: “I really don’t know. I mean, I would like to think I could, but I don’t
know.” Finally, after being reminded that she did not know any details about
the case yet and being asked if she could listen to all the evidence and “choose
one of those three options,” she stated: “Like I said, I would like to think I
could, yes. I would like to think that, yes, I could listen to the evidence and
choose get [sic] other than death.” The trial court did not abuse its discretion by
refusing to excuse her.
(c) Juror Bathael stated repeatedly that she would listen to all of the
evidence and consider all three sentencing options. Although she then stated
that she would automatically vote for a death sentence for a deliberate homicide,
30
she later stated that she would “have to hear the evidence” before giving a death
sentence based simply on guilt, that she did not already think that Martin should
be sentenced to death, that she would withhold judgment until hearing the
evidence, and that she would be willing to consider all three options. When
asked if she was having trouble understanding questions, she stated, “Not
really.” After a detailed question outlining the trial process, she confirmed that
she would wait to reach a decision until hearing all of the evidence and that she
could fairly consider all three options. Finally, when asked by defense counsel
again if she would automatically impose a death sentence, she stated, “No.” The
trial court did not abuse its discretion by refusing to excuse her.
5. Martin argues that the trial court erred in denying a motion to prevent
the excusing of prospective jurors for cause based on any of their death penalty
views that were derived from their religious convictions. This issue has been
forfeited for purposes of ordinary appellate review because it was never raised
or ruled upon below. See Walker, 282 Ga. at 775 (1) (addressing the waiver
arising from the failure to obtain a ruling in the trial court), overruled on other
grounds by Ledford, 289 Ga. at 85 (14); Earnest v. State, 262 Ga. 494, 495 (1)
(422 SE2d 188) (1992) (addressing the waiver arising from the failure to raise
31
an issue in the trial court). See also Division 6 (d) below. Furthermore, even
pretermitting this forfeiture, Martin’s claim lacks merit. See Brockman v. State,
292 Ga. 707, 719 (7) (d) (739 SE2d 332) (2013).
Guilt/Innocence Phase Issues
6. (a) Martin argues that the trial court’s charge on the verdict of
guilty but mentally ill was improper. The trial court gave the jury charge
mandated by statute:
I charge you that[,] should you find the defendant guilty but
mentally ill at the time of the crime, the defendant will be placed in
the custody of the Department of Corrections which will have the
responsibility for the evaluation and treatment of the mental health
needs of the defendant which may include, at the discretion of the
Department of Correction’s [sic], a referral for temporary
hospitalization at a facility operated by the Department of Human
Resources.
See OCGA § 17-7-131 (b) (3) (B). See also Ga. L. 2009, p. 453, §§ 3-2 and 4-1
(amending OCGA § 17-7-131, effective July 1, 2009, to replace “Department
of Human Resources” with “Department of Behavioral Health and
Developmental Disabilities”). This charge also tracked the pattern jury charge
in effect at the time. See Georgia Suggested Pattern Jury Instructions, Vol. II:
Criminal Cases § 3.80.40 (2007) (as updated in January of 2009). However, the
32
current pattern jury charge notes that the old charge “may be misleading in a
death penalty case” and provides the following additional language:
I charge you that should you find the defendant guilty but mentally
ill at the time of the crime, this case would still go forward to the
Penalty Phase where the jury would address the three possible
punishment options of life, life without parole, or the death penalty.
See Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases §
3.80.40 (2007) (as updated in July of 2015) (emphasis supplied).
(b) Because Martin did not object to the charge as given by the trial
court, the charge should be reviewed for purposes of ordinary appellate review
only under the “plain error” standard. See OCGA § 17-8-58 (b) (“Failure to
object [to a jury charge] shall preclude appellate review of such portion of the
jury charge, unless such portion of the jury charge constitutes plain error which
affects substantial rights of the parties.”).11 This Court has adopted the
following test for “plain error”:
11
A form of “plain error” review is also applied where a trial judge has expressed an opinion
on the evidence or guilt or innocence but no objection was raised at trial. See Ledford, 289 Ga. at
84-85 (14). But see Ga. L. 2015, p. 1050, § 1 (amending OCGA § 17-8-57). However, that form
of review is not at issue here. We also do not address here the form of “plain error” review that
would apply to evidentiary rulings under the new evidence code, which took effect on January 1,
2013. See Ross v. State, 296 Ga. 636, 639 n.6 (769 SE2d 43) (2015) (discussing OCGA § 24-1-103
(d) (“Nothing in this Code section [relating to rulings regarding the admission of evidence] shall
preclude a court from taking notice of plain errors affecting substantial rights although such errors
were not brought to the attention of the court.”)).
33
First, there must be an error or defect – some sort of “[d]eviation
from a legal rule” – that has not been intentionally relinquished or
abandoned, i.e., affirmatively waived, by the appellant. Second, the
legal error must be clear or obvious, rather than subject to
reasonable dispute. Third, the error must have affected the
appellant’s substantial rights, which in the ordinary case means he
must demonstrate that it “affected the outcome of the [trial] court
proceedings.” Fourth and finally, if the above three prongs are
satisfied, the [appellate court] has the discretion to remedy the error
– discretion which ought to be exercised only if the error “‘seriously
affect[s] the fairness, integrity or public reputation of judicial
proceedings.’”
State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011) (quoting Puckett
v. United States, 556 U. S. 129, 135 (II) (129 SCt 1423, 173 LE2d 266) (2009)
(citations omitted)).
This Court has held that the jury charge prescribed by OCGA § 17-7-131
(b) (3) (B) is designed “to ensure that the jury understands that a verdict of
guilty but mentally ill does not mean that the defendant will be released.”
Spraggins v. State, 258 Ga. 32, 34 (3) (364 SE2d 861) (1988). However, the
trial court gave the statutory charge, and the jury was clearly not misled into
thinking that a verdict of guilty but mentally ill would result in Martin’s release.
We approve of the additional language now included in the pattern jury charges,
34
but we conclude that the trial court’s failure to include it sua sponte was not
“clear or obvious” error and did not “affect[ Martin’s] substantial rights” such
that it “affected the outcome” of either phase of his trial. Kelly, 290 Ga. at 33(2) (a) (citation and punctuation omitted).
(c) This Court has also applied a form of “plain error” review in
direct appeals in death penalty cases. This review has been applied where an
objection was raised in the trial court but the issue was not timely raised on
appeal. See Lynd v. State, 262 Ga. 58, 61 n.2 (8) (414 SE2d 5) (1992). This
review of matters that were objected to at trial but that were not raised in a
timely fashion on appeal stems from the following portion of the Unified Appeal
Procedure:
The Supreme Court shall review each of the assertions of error
timely raised by the defendant during the proceedings in the trial
court regardless of whether an assertion of error was presented to
the trial court by motion for new trial and regardless of whether
error is enumerated in the Supreme Court. However, except in
cases of plain error, assertions of error not raised on appeal shall be
waived.
U.A.P. § IV (B) (2). See Lynd, 262 Ga. at 60 (8). We emphasize that this form
of “plain error” review, like the “plain error” review under OCGA § 17-8-58 (b)
discussed above, may result in appellate relief only in cases where an “error was
35
not affirmatively waived by the defendant, was obvious beyond reasonable
dispute, likely affected the outcome of the proceedings, and seriously affected
the fairness, integrity, or public reputation of judicial proceedings.” Wells v.
State, 295 Ga. 161, 167 n.4 (3) (758 SE2d 598) (2014).12 This test for harm
under plain error review is equivalent to the test in ineffective assistance of
counsel cases for whether an attorney’s deficient performance has resulted in
prejudice of constitutional proportions. See United States v. Rodriguez, 398 F3d
1291, 1299-1300 (IV) (11th Cir. 2005). That test requires a showing of “a
reasonable probability that . . . the result of the proceeding would have been
different,” which is “a probability sufficient to undermine confidence in the
outcome.” Strickland v. Washington, 466 U. S. 668, 694 (III) (B) (104 SCt
2052, 80 LE2d 674) (1984). However, this particular form of review does not
apply here, because Martin did not object to the trial court’s charge at trial.
(d) In death penalty cases, in addition to reviewing potential errors
that were objected to but that were not timely raised on appeal, this Court has
12
In Lynd, 262 Ga. at 61 n.2 (8), we adopted the federal plain error test set forth in an
Eleventh Circuit case, United States v. Fuentes-Coba, 738 F2d 1191, 1196 (III) (11th Cir. 1984), as
setting forth the elements of plain error review. In Kelly we explained that this federal plain error
test had been refined since Fuentes-Coba, and we now utilize that four-part test. See Kelly, 290 Ga.
at 32-33 (2) (a).
36
also reviewed on appeal at least some potential errors that were not objected to
at trial in order to determine if they affected the jury’s selection of a death
sentence. See Gissendaner v. State, 272 Ga. 704, 713-714 (10) (b) (532 SE2d
677) (2000). This form of review has been applied consistently to cases where
the prosecutor made allegedly improper closing arguments in the sentencing
phase that were not objected to at trial. In applying that form of review to a
prosecutor’s arguments, this Court has made clear that a similar review does not
apply to ordinary criminal cases and does not even apply to the review of a
jury’s finding of guilt in a death penalty case. See id. This Court has also stated
in several criminal appeals not involving the death penalty that this form of
“plain error” review will be applied in death penalty cases to other types of
alleged impropriety that have not been objected to at trial, and we re-affirm that
view here. See Durham v. State, 292 Ga. 239, 240 (2) (734 SE2d 377) (2012);
Collier v. State, 288 Ga. 756, 762-763 (1) (b) (707 SE2d 102) (2011); Sharp v.
State, 286 Ga. 799, 801 (2) (692 SE2d 325) (2010). 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
37
other arbitrary factor.” OCGA § 17-10-35 (c) (1). See Gissendaner, 272 Ga.
at 714 (10) (b). Although we have invoked this form of review specifically
regarding prosecutors’ arguments not objected to at trial, each of our decisions
affirming a death sentence has included a plenary review of the record for
“passion, prejudice, or any other arbitrary factor.” 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. In this regard, this form of review is the same as the
other forms of plain error review described above and therefore affords no basis
for relief based on Martin’s claim in this appeal regarding the trial court’s
charge on the effect of a verdict of guilty but mentally ill to which he failed to
object at trial.
7. Martin argues that the prosecutor made several improper closing
arguments in the guilt/innocence phase. As we discuss in detail below, Martin
has forfeited his right to ordinary appellate review regarding each of these
arguments. However, as explained above in Division 6 (d), we will consider the
arguments that were actually improper to determine whether there is a
reasonable probability that, had those improper arguments been addressed
38
adequately at trial, the jury would have returned a sentence less than death. See
Gissendaner, 272 Ga. at 713-714 (10) (b) (reviewing arguments by a prosecutor
that were not objected to at trial solely for the purpose of determining if a death
sentence was imposed under the influence of passion, prejudice, or any other
arbitrary factor in violation of OCGA § 17-10-35 (c) (1)). Applying this
standard as we explain below, we find no reversible error.
(a) Martin argues that the prosecutor improperly commented on
Martin’s exercising his right not to testify by stating to the jury:
I watched you taking notes during the trial. I watched you being
attentive. I watched you looking at the witnesses and judging their
credibility. I watched [you] looking at both parties and the
defendant in this case and judging credibility, and I want to thank
you for that attention that you paid.
(Emphasis supplied.) Because Martin did not object to this portion of the
prosecutor’s argument at trial, this claim has been forfeited for the purpose of
ordinary appellate review. Furthermore, we conclude that the jury would not
have perceived this as a comment on Martin’s failure to testify, and it therefore
was not improper. See LeMay v. State, 265 Ga. 73, 75 (4) (453 SE2d 737)
(1995) (“Reversal for improper comment by the prosecutor requires a finding
either that 1) the prosecutor’s manifest intention was to comment on the
39
accused’s failure to testify, or 2) the remark was of such a character that a jury
would naturally and necessarily take it to be a comment on the accused’s failure
to testify.”).
(b) Martin complains that the prosecutor vouched for the credibility
of the State’s case by directing the jury’s attention to the members of the
prosecution team and stating:
Their job is to seek the truth. I would be committing malpractice if
I let you forget these people. I would turn my badge in if I let you
forget these people. I would turn my badge in if I let you forget
Savion Wright, if I let you forget Ila Ivery, if I let you forget Travis
Ivery.
Martin raised this same objection at trial, and the trial court sustained it.
Because Martin did not thereafter seek any further relief, the issue of the lack of
any further action by the trial court has been forfeited for the purpose of
ordinary appellate review.
Martin further argues that the argument quoted above was improper
because it invoked sympathy for the victims in a manner that was inappropriate
during the guilt/innocence phase. This claim has also been forfeited for the
purpose of ordinary appellate review, because Martin did not raise it at trial.
40
Furthermore, we do not find the claim to have any merit. See Davis v. State,
285 Ga. 343, 344 (2) (676 SE2d 215) (2009).
Finally, Martin argues that the argument quoted above amounted to a
violation of the “Golden Rule,” which forbids any argument “that, regardless of
the nomenclature used, asks the jurors to place themselves in a victim’s
position.” Braithwaite v. State, 275 Ga. 884, 885 (2) (b) (572 SE2d 612)
(2002). We find no violation of that rule here.
(c) Martin also complains regarding the following argument by the
prosecutor:
When you go back to that jury room, you are going to have – you
are going to have this feeling in your stomach, right, because this is
serious. That feeling you are having is compassion, okay. I don’t
want you to ignore it. I want you to embrace, feel it, and realize you
are human, you have compassion. Then I want you to stop and
think, that’s what [Martin] didn’t have on October 1st.
Even accepting Martin’s argument that the “compassion” spoken of here
referred to compassion for the victims and not for him, we nevertheless disagree
with Martin’s contention that this argument amounted to a violation of the
“Golden Rule,” because we do not find that it urged the jurors to “place
themselves in a victim’s position.” Id. However, we do agree that it was
41
inappropriate in the guilt/innocence phase, because “compassion” for the
victims should have played no part in the jury’s decision regarding whether
Martin was guilty of committing crimes against them. Cf. Davis, 285 Ga. at 344
(2). However, because Martin raised no objection to this argument at trial, it has
been forfeited for the purpose of ordinary appellate review.
(d) Martin argues that the prosecutor’s closing argument repeatedly
misled the jury regarding the effect of a sentence of guilty but mentally ill.
While it was not improper for the prosecutor to state that it would not be justice
for the jury to impose a sentence of guilty but mentally ill if it was not supported
by the evidence, we agree that it was improper to refer to such a verdict using
the phrases, “a break” and “a pass,” and by making similar arguments. We note,
however, that such language would have been permissible in the sentencing
phase where, regardless of whether the jury had found Martin guilty or guilty
but mentally ill, the jury would be choosing between imposing a death sentence
or granting mercy. See Lewis v. State, 279 Ga. 756, 764 (12) (620 SE2d 778)
(2005) (holding that “the statute that provides for a verdict of guilty but
mentally ill does not preclude a death sentence as the result of such a verdict”).
Because Martin did not object to this line of argument at trial, he has forfeited
42
his right to ordinary review of the matter on appeal.
(e) Upon our review of each of the arguments described above that
we have not explicitly held to have been proper, we conclude, particularly in
light of the overwhelming evidence and the nature of Martin’s crimes, that the
absence of those arguments would not in reasonable probability have resulted
in a different sentencing verdict and therefore do not warrant relief under our
special review of death sentences. See Division 6 (d) above.
Sentencing Phase Issues
8. Martin claims that the trial court erred by allowing victim impact
testimony from Tymika Wright at his retrial in 2009 that was false, unsworn,
and hearsay. For the reasons set forth below, we find no reversible error.
(a) During Martin’s bench trial in 2005, the State presented to the
trial court a typewritten document indicating Ms. Wright’s anticipated victim
impact testimony, and Martin indicated on the document what portions of that
testimony he was objecting to by underlining them. At this point, the document
and Martin’s objections were being considered by the trial court as part of the
pretrial hearing approved of in Turner v. State, 268 Ga. 213, 214-215 (2) (a)
(486 SE2d 839) (1997) (commending a procedure whereby objections to victim
43
impact testimony can be raised pretrial). The trial court deferred ruling on
Martin’s objections. Ms. Wright then read from her written statement, omitting
most but not all of the underlined portions. Any error committed in the
procedure followed at this 2005 bench trial is obviously moot in light of
Martin’s obtaining a new trial.
At Martin’s retrial before a jury in 2009, which was after Ms. Wright’s
death, the State presented Ms. Wright’s victim impact testimony by having the
State’s document containing her proposed testimony from 2005 read to the jury
by her aunt rather than by having her prior testimony read from the official
transcript of the 2005 trial or by playing an audio recording of that prior
testimony. In reading from the document, Ms. Wright’s aunt omitted much of
the material that had been marked as objectionable in 2005. Martin raised no
objection to the testimony as it was read or afterward. On appeal, however,
Martin argues that it was reversible error for the testimony at the 2009 trial to
include two statements that had been marked on the document as objectionable
by the defense during the 2005 trial but had never been ruled on. The first
statement was as follows: “A person that would do this to people who loved
him, would have to be a cold-hearted piece of waste of life with no soul.”
44
However, we note that this first statement was followed by the following
language, which had been read by Ms. Wright during her live testimony in
2005: “It is hard for me to think of Kelvin in that way, so I have to believe that
if he had a second chance that night and did not use drugs or decide to stay
where he was or if he was sober, we would not be here today. I have to believe
that Kelvin loved us the best that he could, and I believe Kelvin is sorry for what
he did because I just can’t believe a human being could kill and have no reason.”
The second statement that Martin argues warrants reversal of his 2009 death
sentences followed immediately afterward and was as follows: “My personal
feelings are just that. Our family is destroyed and just scattered amongst the
ruins. My beautiful Savion and our parents are the only precious memories that
I can tell you, if they were here, they would only ask you to please, please not
let this happen to another family.”
(b) Martin first argues that the two statements quoted above that
were read at his 2009 trial by Ms. Wright’s aunt but were not read by Ms.
Wright in her live testimony in 2005 amount to testimony that the prosecutor
knew or should have known to be false. Specifically, Martin argues that the
State incorrectly stated to the trial court in front of the jury that it was going to
45
have Ms. Wright’s aunt “read [Ms. Wright’s] statement” and that stating that
falsely led the jury to believe that the statements actually read by Ms. Wright’s
aunt were truthful statements from Ms. Wright. Pretermitting Martin’s
argument that his failure to raise this particular claim at trial should not be
deemed to have forfeited the claim for ordinary appellate purposes because the
State misled the defense, we hold that the claim cannot prevail, because Martin
has not shown that the written statements, which apparently were approved by
Ms. Wright while she was alive, were actually false. See Hall v. Lance, 286 Ga.
365, 377 (III) (A) (687 SE2d 809) (2010) (citing United States v. Agurs, 427 U.
S. 97, 103 (II) (96 SCt 2392, 49 LE2d 342)) (1976), and rejecting a claim where
the trial testimony at issue was never shown to have been false).
(c) Martin further claims that the statements at issue constituted
inadmissible hearsay and violated his rights to due process and his right to
confront witnesses against him under the constitutions of Georgia and the
United States. These claims were forfeited for ordinary appellate review by his
failure to object at trial. Furthermore, applying the “plain error” review that we
discuss in Division 6 (d) and that is applicable only to the review of death
sentences, we conclude that the claim must fail because, particularly in light of
46
the overwhelming evidence and the nature of Martin’s crimes, the absence of the
contested statement would not in reasonable probability have changed the jury’s
decision to impose a death sentence. See Gissendaner, 272 Ga. at 713-714 (10)
(b) (reviewing alleged impropriety that was not objected to at trial solely for the
purpose of determining if a death sentence was imposed under the influence of
passion, prejudice, or any other arbitrary factor in violation of OCGA § 17-10-
35 (c) (1)).
9. In addition to his claim above regarding unsworn and allegedly false
testimony, Martin argues that the trial court erred by permitting victim impact
testimony that was improper in other ways. Because Martin failed to both raise
objections and obtain rulings on them regarding any of the allegedly
objectionable statements, he has forfeited his right to appeal under ordinary
appellate review standards. See Smith, 287 Ga. at 30 (3) (holding that a party
must “obtain a distinct ruling” on an issue in order to raise it on appeal).
Furthermore, we conclude under the “plain error” review, which we discuss in
Division 6 (d) and which we apply only to the review of death sentences, that
none of the allegedly improper statements, even if assumed to have been
objectionable, in reasonable probability led to the jury’s imposition of the death
47
penalty. See Gissendaner, 272 Ga. at 713-714 (10) (b) (reviewing alleged
impropriety that was not objected to at trial solely for the purpose of determining
if a death sentence was imposed under the influence of passion, prejudice, or
any other arbitrary factor in violation of OCGA § 17-10-35 (c) (1)).
We have long and consistently held that victim impact testimony in
Georgia must not include witnesses’ “characterizations and opinions about the
crime, the defendant, and the appropriate sentence.” Sermons v. State, 262 Ga.
286, 287 (1) (417 SE2d 144) (1992) (punctuation and citation omitted).
Explaining this holding, we have rejected an argument by the State that a
victim’s family members in a death penalty case may make personal comments
on the nature of the defendant’s crimes based on the evidence presented at trial.
See Bryant v. State, 288 Ga. 876, 896-897 (15) (a) (708 SE2d 362) (2011).
However, in Martin’s case, one of the victim’s family members who gave victim
impact testimony, Tymika Wright, was a victim herself and an eyewitness to
Martin’s crimes. Under such circumstances, limited testimony regarding the
witness’s personal knowledge of the crimes is admissible under the following
statute:
48
(b) In presenting such evidence, the victim, the family of the
victim, or such other witness having personal knowledge of the
impact of the crime on the victim, the victim’s family, or the
community shall, if applicable:
(1) Describe the nature of the offense.
OCGA § 17-10-1.2 (b). Nevertheless, we caution the trial courts that the statute,
even aside from constitutional concerns, also provides that such testimony “shall
be in the sole discretion of the judge and in any event shall be permitted only in
such a manner and to such a degree as not to inflame or unduly prejudice the
jury.” OCGA § 17-10-1.2 (a) (2).
Applying the standards described above, we easily conclude, as the State
should have itself before presenting such testimony, that it was improper for
Rashidah Ivery to testify regarding the victims, who had allowed Martin into
their home, that “this is the thanks they get, stabbed in the heart, chest, removal
of a spleen, throats cut, plus leaving a knife in one of them.” While all of this
testimony, except for her slight exaggeration of the testimony of Ila Ivery’s
surgeon regarding her spleen, was supported by admissible evidence, the
witness had no personal knowledge regarding these details of Martin’s crimes
and should not have testified regarding them. We further note, although not
49
raised by Martin in his brief, that it was improper for this witness to address one
of her statements directly to Martin.
We take a different view of the victim impact testimony of Tymika
Wright, who was both a victim and an eyewitness. Her victim impact testimony,
as repeated from Martin’s first trial with essential accuracy, contained the
following:
My mind is fully plagued with visions of Kelvin repeatedly
stabbing mama, and she begged for Kelvin to stop and just let her
die. And granddaddy’s body just lying there as Kelvin pounces on
top of him constantly mutilating his body, checking to see if there
were any signs of life before stabbing him again. And the look of
horror on Savion’s face, and his cries of fear as he tried to get away
from Kelvin. And Christian lying over his brother’s body as Kelvin
stands over them with a knife raised above his head.
This testimony largely paralleled Ms. Wright’s testimony in the guilt innocence
phase, and we find that the trial court, if asked to render a ruling on the matter,
would not have abused its discretion by admitting it as victim impact testimony.
We do agree with Martin, however, that it was improper for Ms. Wright to
characterize the defendant by referring to him as “ a cold-hearted piece of waste
of life with no soul,” by giving a personal opinion about Martin’s state of mind
by stating that he “made all those decisions that night,” and by giving a personal
50
characterization of Martin’s crimes by stating that he “declare[d] war” on her
family.
Finally, we agree with Martin that some of the victim impact statements
by Anicia Ivery-Tucker were improper in that they strayed from the core of
proper victim impact testimony and, instead, referred to the family’s desire for
“justice,” attempted to describe Martin’s motive by stating that he exercised
“poor judgment and character,” and described Martin as having given “no
mercy” to the victims.
Although, as we have explained, some of the testimony described above
was objectionable, we hold, particularly in light of the overwhelming evidence
and the nature of Martin’s crimes, that there is no reasonable probability that the
objectionable portions of the testimony led to the jury’s decision to impose a
death sentence. See Division 6 (d) above.
10. Martin claims that the prosecutor made two improper closing
arguments in the sentencing phase. If we found either of the arguments
improper, we would consider only whether there is a reasonable probability that
they led to the jury’s decision to impose a death sentence, because Martin failed
to object to the arguments at trial. See Gissendaner, 272 Ga. at 713-714 (10) (b)
51
(reviewing arguments by a prosecutor that were not objected to at trial solely for
the purpose of determining if a death sentence was imposed under the influence
of passion, prejudice, or any other arbitrary factor in violation of OCGA § 17-
10-35 (c) (1)). However, we conclude that the arguments were not actually
improper.
(a) Martin first complains regarding the following argument:
You know that the sentencing options that you have here today
before you are life with the possibility of parole. Actually, that’s
kind of insulting. Because you know that, based upon the
defendant’s actions and the defendant’s activities through a course
of years, that life with the possibility of parole is unacceptable.
Even his own attorney told you when we started this on yesterday
that it is really not even about life with the possibility of parole.
What you really are considering is life without the possibility of
parole and death. I submit to you, ladies and gentlemen of the jury,
that life without the possibility of parole is not even an option for
you.
Specifically, Martin argues that this argument would have misled the jurors into
believing that there was only one option available for them to consider under the
law. We find that this argument simply urged the jury to conclude that the other
options available to them under the law were “unacceptable” in light of the
evidence and, therefore, that the argument could not have misled the jury,
52
particularly in light of the trial court’s clear instructions to the jury on the matter
that followed the parties’ closing arguments. Cf. Spraggins, 258 Ga. at 34 (3).
(b) Martin next complains, quoting selectively from the transcript,
regarding the following argument:
You see, because you will hear, I anticipate, some evidence of
remorse. I submit to you that during the course of this trial and
during the course of all these proceedings and even from the
witnesses, that this defendant has not shown any remorse. I
anticipate that the defense might say something like, well, you
heard Detective Daniel say when he first came in that he was sorry.
Based upon the defendant’s own actions and own words, I tell you
to really look at that ‘sorry’ because his actions show you that he is
not.
We find that the jury would have perceived this as a comment on the evidence
that was presented at trial rather than as a comment on Martin’s failure to testify,
and, therefore, we conclude that the argument was not improper. See LeMay,
265 Ga. at 75 (4) (“Reversal for improper comment by the prosecutor requires
a finding either that 1) the prosecutor’s manifest intention was to comment on
the accused’s failure to testify, or 2) the remark was of such a character that a
jury would naturally and necessarily take it to be a comment on the accused’s
failure to testify.”).
53
11. Martin claims that the trial court’s sentencing phase jury instructions
and the sentencing phase jury verdict form allowed the jury to find statutory
aggravating circumstances without necessarily finding their existence
unanimously. This Court has long held that a “jury may not impose a death
sentence unless it unanimously agrees upon at least one statutory aggravating
circumstance beyond a reasonable doubt, and expresses this finding in writing.”
Fugate v. State, 263 Ga. 260, 263 (5) (c) (431 SE2d 104) (1993). See also
Ellington, 292 Ga. at 117-118 (3) (d) (noting that Georgia law “require[s] the
jury to find the existence of at least one statutory aggravating circumstance
unanimously and beyond a reasonable doubt before a death sentence may be
considered”). This time-honored holding now is also buttressed by the
Constitution of the United States under Ring v. Arizona, 536 U. S. 584 (122 SCt
2428, 153 LE2d 556) (2002). However, as set forth below in more detail, we
have no doubt, considering both the sentencing phase jury instructions and the
sentencing phase verdict form, that the jury concluded unanimously regarding
the existence of each of the statutory aggravating circumstances marked in its
verdict. Accordingly, pretermitting the issues related to Martin’s failure to
54
object at trial to the jury instructions, the verdict form itself, or the ultimate form
of the jury’s verdict, we hold that Martin’s claim must fail.
In its sentencing phase jury instructions, the trial court stated:
Under Georgia law, a sentence of death or life imprisonment
without parole13 shall not be imposed unless the jury finds beyond
a reasonable doubt and designates in its verdict in writing at least
one or more statutory aggravating circumstances. It may then fix
the sentence of death or life imprisonment without parole in its
verdict. It may also and always fix the sentence as life in prison
with the possibility of parole.
The trial court later instructed the jury:
If you decide to impose the sentence of death, you would return a
verdict that reads: We, the jury, find beyond a reasonable doubt
that statutory aggravating circumstances or a circumstance do exist
in this case. Then, you would set out in writing such aggravating
circumstance or circumstances that you may find from the evidence
in this case to exist beyond a reasonable doubt and upon which I
have instructed you. Then, you would fix the sentence at death. If
this were your verdict, then the defendant would be sentenced to be
put to death in the manner provided by law.
The trial court continued later: “Your verdict as to the penalty must be
unanimous and it must be in writing, dated, and signed by your foreperson and
returned and read in open court.” In concert, these three jury instructions made
13
The requirement of a jury’s finding a statutory aggravating circumstance in order to
authorize a sentence of life without parole was removed on April 4, 2009. See Ga. Laws 2009, §§
4 and 11.
55
sufficiently clear to the jury that it could only consider a death sentence if it
reached a unanimous verdict that included a finding of one or more particular
statutory aggravating circumstances. See Sallie v. State, 276 Ga. 506, 512 (9)
(b) (578 SE2d 444) (2003) (“The trial court did not commit reversible error by
not charging that a finding of a statutory aggravating circumstance must be
unanimous since it did charge that the jury’s verdict as to sentence must be
unanimous.”); Lance, 275 Ga. at 23 (24).
We also disagree with Martin’s contention that the sentencing phase
verdict form casts doubt on whether the jurors agreed unanimously regarding
each of the particular statutory aggravating circumstances indicated in the
verdict. At the beginning of the section of the verdict form that addresses
statutory aggravating circumstances, the form reads: “We, the jury,
unanimously find the existence of the following aggravating circumstance(s).”
Regardless of the fact that the blank line next to this introductory phrase was left
blank by the jury, we conclude that the jury’s placing check marks on the blank
lines next to the individual statutory aggravating circumstances listed after the
introductory phrase, particularly in light of the trial court’s instructions, clearly
56
indicated that a unanimous finding of each of those statutory aggravating
circumstances was part of the jury’s overall verdict.
12. Martin claims that the trial court erred by failing to instruct the jury
in the sentencing phase that the instructions on voluntary intoxication that the
trial court had given in the guilt/innocence phase did not apply in the sentencing
phase. Pretermitting the issues related to Martin’s failure to raise this objection
at trial, we hold that the jurors would not have been misled regarding the proper
role of Martin’s evidence related to his intoxication as mitigating evidence. See
Palmer v. State, 271 Ga. 234, 238 (6) (517 SE2d 502) (1999) (examining a
challenged sentencing phase jury instruction in light of the charge as a whole
and concluding that jury was not misled).
The relevant instructions in the guilt/innocence phase were as follows:
Alcoholism is not involuntary and is no defense to any criminal act.
A person who knows that he suffers a chronic alcohol drinking
problem or knows that he suffers from alcoholism may not
intentionally and voluntarily induce or bring on a state of
intoxication and then be excused from the commission of a criminal
act during the voluntarily induced intoxicated state. Chronic drug
use or drug abuse, like chronic alcoholism, is not involuntary under
Georgia law. Voluntary intoxication which produces the onset of
a mental illness, whether caused either by alcohol or drugs or both,
can allow a jury to consider a possible verdict of guilty but mentally
ill if the jury is satisfied that the defendant was in fact rendered
57
mentally ill at the time of the offense.
The instruction highlighted that alcoholism and chronic drug abuse do not
negate the voluntariness of one’s choosing to drink or take a drug, but it said
nothing regarding whether that choice might be much more difficult for an
alcoholic or a drug addict. The instruction next indicated that voluntary
intoxication is not a “defense” to a crime. The instruction then ended with a
reference to the specific guilt/innocence phase verdict of guilty but mentally ill,
which we find irrelevant to our analysis here of any impact on the sentencing
phase.
In the sentencing phase, the trial court instructed the jury as follows:
Mitigating or extenuating facts or circumstances are those that you,
the jury, find do not constitute a justification or excuse for the
offense in question but that, in fairness and mercy, may be
considered as extenuating or reducing the degree of moral
culpability or blame.
This instruction, unlike the guilt/innocence phase instruction addressing
voluntary intoxication as an alleged “defense” to a criminal charge, clearly
assumes that one is guilty of the criminal charge of murder. The instruction then
makes clear that there may be “facts or circumstances” falling short of a defense,
justification, or excuse warranting an acquittal that nevertheless might reduce
58
the “degree of moral blame” appropriately attached to that murder conviction,
which is exactly what mitigating evidence is. The jury was further instructed to
consider such mitigating evidence and that it could impose a life sentence in
light of or even in the complete absence of such mitigating evidence. Thus, we
conclude that the jury was well informed of its proper role in the sentencing
phase and the proper role that mitigating evidence should serve.
13. Martin contends that the trial court erred by allowing the jury to
consider the statutory aggravating circumstances concerning the commission of
a rape during the commission of a murder. See OCGA § 17-10-30 (b) (2). As
we have discussed in detail above in Division 1, the evidence presented in the
guilt/innocence phase was sufficient to authorize a rational trier of fact to find
beyond a reasonable doubt that Martin was guilty of raping Tymika Wright.
Because the evidence presented at the guilt/innocence phase is properly
considered by the jury in its sentencing deliberations, this same evidence was
also sufficient to authorize the jury to find beyond a reasonable doubt the
existence of the statutory aggravating circumstances concerning the commission
of rape during the murders. See Berryhill v. State, 249 Ga. 442, 450-451 (11)
(291 SE2d 685) (1982) (noting that the jury properly reconsiders all of the
59
evidence from the guilt/innocence phase in the sentencing phase). This same
standard, which concerns the sufficiency of the evidence when reviewed on
appeal, applies to Martin’s claim here, which is essentially a claim that the trial
court erred by not granting a directed verdict regarding the statutory aggravating
circumstance at issue. See Miller v. State, 270 Ga. 741, 742 (1) (512 SE2d 272)
(1999) (holding that the standard of review for the sufficiency of the evidence
is the same as the standard for denying a motion for a directed verdict).
Accordingly, we conclude that the trial court did not err by presenting the
question to the jury of whether the murders of Savion Wright and Travis Ivery
were committed during a rape.
14. Among the other statutory aggravating circumstances alleged in his
case, Martin’s jury was charged that it should consider whether the State had
proven the statutory aggravating circumstances involving the fact that Savion
Wright’s murder was committed during the commission of Travis Ivery’s
murder and the fact that Travis Ivery’s murder was committed during the
commission of Savion Wright’s murder. Martin argues that the trial court erred
by allowing the jury to consider these two related statutory aggravating
circumstances, which this Court has referred to as “mutually supporting
60
aggravating circumstances.” The trial court did not err by submitting both of
these statutory aggravating circumstances to the jury, and, even under this
Court’s rule that one of them should be set aside on appeal, Martin’s two death
sentences remain unaffected, because each death sentence remains supported by
at least one remaining statutory aggravating circumstance. See Tate v. State,
287 Ga. 364, 368 (7) (695 SE2d 591) (2010) (citing Zant v. Stephens, 462 U. S.
862 (103 SCt 2733, 77 LE2d 235) (1983)); Lance, 275 Ga. at 23 (25).
15. Martin argues that the trial court’s sentencing phase jury instructions
on mitigating circumstances were improper in several ways. This matter has
been waived for ordinary appellate purposes, because Martin requested these
jury instructions, which were drawn from the pattern jury charges. See OCGA
§ 17-8-58 (applicable to trials occurring on or after July 1, 2007, and providing
for “plain error” review where a jury charge was not objected to at trial); Pena
v. State, 297 Ga. 418, 424 (6) (a) (774 SE2d 652) (2012) (holding that the “plain
error” review provided for in OCGA § 17-8-58 is waived where the defendant
“requested the charge in question and made no objection to the charge at trial”).
However, pretermitting the question of the exact limits under these procedural
circumstances of our special review of a jury’s decision to impose a death
61
sentence, we have reviewed the sentencing phase instructions at issue here and
conclude for the reasons set forth below that none of them was improper. See
Division 6 (d) above. See also Head v. Ferrell, 274 Ga. 399, 403 (IV) (554
SE2d 155) (2001) (holding on habeas corpus that “[c]laims regarding
sentencing phase jury charges in a death penalty case are never barred by
procedural default”); Tucker v. Kemp, 256 Ga. 571, 573-574 (351 SE2d 196)
(1987) (describing this Court review on habeas corpus of claims regarding
sentencing phase jury instructions that were forfeited at trial); Gissendaner, 272
Ga. at 713-714 (10) (b) (reviewing arguments by a prosecutor that were not
objected to at trial solely for the purpose of determining if a death sentence was
imposed under the influence of passion, prejudice, or any other arbitrary factor
in violation of OCGA § 17-10-35 (c) (1)).
(a) It was not improper to instruct the jury that it should consider
both “mitigating” and “extenuating” circumstances, because those terms are
“essentially synonymous” and because the jury is instructed to consider both of
them together in determining a sentence. Ellington, 292 Ga. at 145 (11) (a).
(b) In light of the specific definition provided for mitigating and
extenuating facts in the sentencing phase, the jury instruction would not have
62
been misleading when compared to the instruction on malice murder given in
the guilt/innocence phase. See Palmer, 271 Ga. at 238 (6) (noting that a
sentencing phase jury charge should be evaluated as a whole).
(c) The jury would not have been misled into believing that it could
choose not to consider mitigating circumstances. Instead, the jury instructions
clearly stated, “You shall consider the facts and circumstances, if any, in
extenuation, mitigation, or aggravation of punishment.” See id. (noting that a
sentencing phase jury charge should be evaluated as a whole).
(d) The jury instruction regarding mitigating circumstances “d[id]
not improperly require the jury to find that any mitigating evidence must be
connected directly to the crime itself in order to be considered.” Id. at 145-146
(b).
(e) The jury instructions would not have led any jurors to believe
that they could consider any given mitigating circumstance only if the jury first
found unanimously that that mitigating circumstance existed. Instead, the jury
was instructed that it could impose a life sentence in its verdict even if it found
no mitigating circumstances and that it could impose a life sentence for any
reason or without any reason. See id. at 146 (11) (c).
63
16. Martin argues that his death sentences must be overturned based on
the actions of a juror during the jury’s sentencing phase deliberations. On her
jury questionnaire, Juror Lemmond indicated that she had been employed by the
Department of Corrections for 27 years. During her voir dire, she confirmed
that she had been employed by the Department of Corrections, but the parties’
questioning of her regarding that topic was limited to the impact that her past
employment had had on her views regarding the death penalty. During her
testimony at the hearing held on Martin’s motion for a new trial, she testified
that she had served in a number of positions with the Department of Corrections
over the span of at least 27 years and that she had visited Georgia prisons
frequently and was familiar with the layout of each of them. According to her
testimony and the testimony of several other jurors, Juror Lemmond answered
other jurors’ questions during the jury’s deliberations regarding the conditions
that Martin might encounter if sentenced to imprisonment for life, such as
whether Martin would be free to leave his cell, would be able to go outside, and
would have exercise equipment, and she described what the cafeteria and
medical facilities would be like. She told the other jurors that Martin would be
housed in the general population, could eventually be moved to a dormitory, and
64
would be free to move among the various buildings for things such as food,
medical care, and exercise. She also drew a diagram to illustrate the general
layout of a particular high-security prison. Although it is not necessary to our
resolution of this claim, we note that our review of the record does not support
Martin’s contention that Juror Lemmond’s statements to the other jurors
contradicted the testimony, given notably only under questioning by the State,
from Martin’s expert on prison life.
Martin argues that, by providing this information learned from her past
employment, Juror Lemmond served as an unsworn witness, injecting
extrajudicial information into the jury’s deliberations. See Turner v. Louisiana,
379 U. S. 466, 472-473 (85 SCt 546, 13 LE2d 424) (1965) (“In the
constitutional sense, trial by jury in a criminal case necessarily implies at the
very least that the ‘evidence developed’ against a defendant shall come from the
witness stand in a public courtroom where there is full judicial protection of the
defendant’s right of confrontation, of cross-examination, and of counsel.”).
However, there is a distinction between a juror who provides actual evidence
specifically about the defendant or his or her crime that was learned outside the
courtroom and a juror whose past experiences and learning provide context and
65
insight that allow for the evidence and arguments made at trial to be thoroughly
examined. We have held that it is improper for a juror to obtain information
relevant to the defendant’s case during the defendant’s trial, but we have also
held that jurors properly bring to deliberations knowledge that they obtained
prior to the trial that facilitates the jury’s assessment of the evidence presented
at trial, such as knowledge regarding how the slide on a handgun works that
allowed the jurors to assess the defendant’s explanation of how the handgun in
his case was fired. See Watkins v. State, 285 Ga. 355, 356-357 (1) (676 SE2d
196) (2009) (“This belief, however, was based on Juror Sivley’s past experience
with handguns, not any extra-judicial experimentation.”). See also Grotemeyer
v. Hickman, 393 F3d 871, 878-881 (9th Cir. 2004) (finding no impropriety
where “the jury foreman, referring to her experience as a medical doctor, opined
that [the defendant’s] mental disorders caused him to commit his crime, and that
he would receive treatment as part of a sentence”); Meyer v. State, 80 P3d 447,
459 (Nev. 2003) (“A juror who has specialized knowledge or expertise may
convey their opinion based upon such knowledge to fellow jurors. The opinion,
even if based upon information not admitted into evidence, is not extrinsic
evidence and does not constitute juror misconduct.”); State v. Mann, 39 P3d
66
124, 132 (II) (A) (2) (N.M. 2002) (“[J]urors may properly rely on their
background, including professional and educational experience, in order to
inform their deliberations.”). Indeed, most jurors in most cases bring some
previous knowledge to jury deliberations that helps the other jurors understand
and evaluate the evidence and arguments presented by the parties at trial, and we
find this to be part of the very nature of the constitutionally mandated trial by
jury. Voir dire provides an appropriate forum to explore jurors’ knowledge
drawn from their past experiences, and, in fact, Martin became aware of Juror
Lemmond’s past employment through that process but apparently found her to
be a satisfactory juror nevertheless. See Grotemeyer, 393 F3d at 878 (“Counsel
ordinarily learn during voir dire what a veniremember does for a living, and use
peremptory challenges to avoid jurors whose experience would give them
excessive influence.”). 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.
17. Martin claims that the verdict form used by the jury in imposing his
death sentences improperly presented the elements of the statutory aggravating
67
circumstance concerning a murder that is “outrageously or wantonly vile,
horrible, or inhuman in that it involved torture, depravity of mind, or an
aggravated battery to the victim.” OCGA § 17-10-30 (b) (7). We find no
reversible error.
Martin correctly argues that the (b) (7) statutory aggravating circumstance
is a single circumstance comprised of two components, with the second
component capable of being established in three ways. See Carruthers v. State,
272 Ga. 306, 311 (3) (b) (528 SE2d 217) (2000), overruled on other grounds by
Vergara v. State, 283 Ga. 175, 177 (1) (657 SE2d 863) (2008). The first
component is that a murder must be “outrageously or wantonly vile, horrible, or
inhuman.” The second component is that a murder must have “involved torture,
depravity of mind, or an aggravated battery to the victim.” The two components
are joined into one circumstance by the phrase, “in that.”
On Martin’s sentencing phase verdict form, each of the statutory
aggravating circumstances alleged was listed next to a blank line on which the
jury could place a check mark to indicate that it had found that circumstance’s
existence. Among the other statutory aggravating circumstances alleged, the (b)
(7) statutory circumstance was listed in its two component parts, one right after
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the other. Each of the two component parts followed its own blank line, and the
conjoining phrase, “in that,” was omitted. Martin argues that this suggested to
the jury that, by finding the existence of both of these component parts, they had
actually found two separate statutory aggravating circumstance and that the jury
would therefore give undue weight to statutory aggravating circumstances in its
deliberations.
Pretermitting the issues related to Martin’s failure to object to the jury
form at trial, we hold that Martin’s claim must fail because it misrepresents the
role of statutory aggravating circumstances in Georgia law. In Georgia, unlike
in other states commonly referred to as “weighing states,” the statutory
aggravating circumstances serve to limit and guide the jury’s discretion in
sentencing by allowing the jury to exercise that discretion only in cases where
certain enumerated circumstances are first found to exist. Nevertheless, once at
least one statutory aggravating circumstance is found, the jury may impose a
death sentence or, for any or no reason, may impose a life sentence, and the
addition of one or more additional statutory aggravating circumstances would
have no impact on the jury’s absolute discretion to impose a life sentence. Thus,
although we agree with Martin that the two components of the (b) (7) statutory
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aggravating circumstance were presented and found in two separate pieces
rather than, more properly, as two parts of a unified whole joined together with
the phrase, “in that,” we find that the error was harmless.
Sentence Review
18. Upon our review of the record, we conclude that Martin’s sentences
of death were not imposed under the influence of passion, prejudice, or any
other arbitrary factor. See OCGA § 17-10-35 (c) (1).
19. In its sentencing verdict, the jury found beyond a reasonable doubt
that Savion Wright’s murder was committed while Martin was engaged in the
commission of the rape of Tymika Wright, that it was committed while Martin
was engaged in the aggravated battery of Ila Ivery, that it was committed while
Martin was engaged in the murder of Travis Ivery, and that it was outrageously
or wantonly vile, horrible, or inhuman in that it involved the torture of Savion
Wright, depravity of mind, and the aggravated battery of Savion Wright. See
OCGA § 17-10-30 (b) (2) and (b) (7). The jury found beyond a reasonable
doubt that the murder of Travis Ivery was committed while Martin was engaged
in the commission of the rape of Tymika Wright, that it was committed while
Martin was engaged in the commission of the murder of Savion Wright, and that
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it was committed while Martin was engaged in the aggravated battery of Ila
Ivery. See OCGA § 17-10-30 (b) (2). Upon our review of the record, including
the evidence of rape discussed above in Division 1, we conclude that the
evidence at Martin’s trial was sufficient to support the statutory aggravating
circumstances found as to both murders. See OCGA § 17-10-35 (c) (2)
(requiring a review of the statutory aggravating circumstances found by the
jury); U.A.P. § IV (B) (2) (providing that, in all death penalty cases, this Court
will determine whether the verdicts are supported by the evidence). See also
Ring, 536 U. S. 584; Jackson, 443 U. S. 307.
20. Considering both the murders for which Martin has been sentenced
to death and Martin as a defendant, we find that the death sentences imposed in
his case were not disproportionate punishment within the meaning of Georgia
law. See OCGA § 17-10-35 (c) (3); Gissendaner, 272 Ga. at 716-717 (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 this conclusion, because each shows a
jury’s willingness to impose a death sentence for the commission of multiple
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murders, whether committed in one or more than one transaction. See OCGA
§ 17-10-35 (e).
Judgment affirmed. All the Justices concur, except Hunstein and
Nahmias, JJ., who concur in judgment only as to Division 2.
APPENDIX
Rice v. State, 292 Ga. 191 (733 SE2d 755) (2012); Tate v. State, 287 Ga. 364(695 SE2d 591) (2010); Humphreys v. State, 287 Ga. 63 (694 SE2d 316) (2010);
Stinski v. State, 286 Ga. 839 (691 SE2d 854) (2010); O’Kelley v. State, 284 Ga.
758 (670 SE2d 388) (2008); Rivera v. State, 282 Ga. 355 (647 SE2d 70) (2007);
Williams v. State, 281 Ga. 87 (635 SE2d 146) (2006); Lewis v. State, 279 Ga.
756 (620 SE2d 778) (2005); Riley v. State, 278 Ga. 677 (604 SE2d 488) (2004);
Franks v. State, 278 Ga. 246 (599 SE2d 134) (2004); Sealey v. State, 277 Ga.
617 (593 SE2d 335) (2004); Raheem v. State, 275 Ga. 87 (560 SE2d 680)
(2002), disapproved on unrelated grounds by Patel v. State, 282 Ga. 412, 413
n. 2 (651 SE2d 55) (2007); Lance v. State, 275 Ga. 11 (560 SE2d 663) (2002);
Lucas v. State, 274 Ga. 640 (555 SE2d 440) (2001); Rhode v. State, 274 Ga. 377(552 SE2d 855) (2001); Colwell v. State, 273 Ga. 634 (544 SE2d 120) (2001);
Esposito v. State, 273 Ga. 183 (538 SE2d 55) (2000); Heidler v. State, 273 Ga.
54 (537 SE2d 44) (2000); Morrow v. State, 272 Ga. 691 (532 SE2d 78) (2000);
Pace v. State, 271 Ga. 829 (524 SE2d 490) (1999); Cook v. State, 270 Ga. 820(514 SE2d 657) (1999); DeYoung v. State, 268 Ga. 780 (493 SE2d 157) (1997);
Raulerson v. State, 268 Ga. 623 (491 SE2d 791) (1997); McMichen v. State, 265
Ga. 598 (458 SE2d 833) (1995).
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