Livingston v. State

Sears-Collins, Justice.

This is a granted interim appeal in a case in which the state is seeking the death penalty against co-defendants Howard Kelly Livingston, John Mark Waldrip, and Tommy Lee Waldrip. OCGA § 17-10-35.1.

S94A0277. Howard Kelly Livingston

1. Livingston argues that the trial court erred in denying his motion to prohibit the state from offering victim impact evidence at the sentencing phase of trial, should the jury find him guilty of the crimes charged. Additionally, Livingston appeals the trial court’s denial of his constitutional attack and other related attacks on OCGA § 17-10-1.2, which governs the admissibility of victim impact evidence, as amended in the 1993 legislative session to apply to death penalty cases.

(a) In Booth v. Maryland, 482 U. S. 496 (107 SC 2529, 96 LE2d 440) (1987), the U. S. Supreme Court found “that because of the nature of the information contained in a [victim impact statement], it creates an impermissible risk that the capital sentencing decision will be made in an arbitrary manner.” Booth, 482 U. S. at 505. As the capital sentencing decision must be based on considerations of the defendant’s personal responsibility, moral guilt, and blameworthiness, the Court held the Eighth Amendment to the U. S. Constitution creates a per se bar to “the introduction of [victim impact evidence] at the sentencing phase of a capital murder trial.”¹ Booth, 482 U. S. at 509.

Four years after handing down its decision in Booth, the U. S. Supreme Court overruled Booth, in part,² in Payne v. Tennessee, 501 U. S. 808 (111 SC 2597, 115 LE2d 720) (1991). Apparently responding to a current “nationwide ‘victim’s rights’ movement,”³ Payne, 111 SC at 2613 (Scalia, J., concurring), the Payne Court held that the Eighth Amendment prohibition against cruel and unusual punishment does not erect a per se bar to the admission of victim impact evidence, and that a “State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed.”⁴ 111 SC at 2609.

(b) We agree with the United States Supreme Court’s assessment in Payne that the Eighth Amendment prohibition against cruel and unusual punishment does not erect a per se bar to the introduction of all victim impact evidence, see Sermons, 262 Ga. at 287, and with that Court’s determination that victim impact evidence can be admissible. However, we also recognize that under certain circumstances victim impact evidence could render a defendant’s trial fundamentally unfair and could lead to the arbitrary imposition of the death penalty. This concern was paramount to the United States Supreme Court’s decision in Booth, and in Payne that Court recognized that principles of due process prohibit the admission of victim impact evidence which renders a trial fundamentally unfair, Payne, 111 SC at 2608.

In Georgia, we have considered what will render a capital sentencing trial fundamentally unfair. The state may not offer evidence which would result in the imposition of the death penalty due to “passion, prejudice, or any other arbitrary factor.” OCGA § 17-10-35 (c) (1). This statutory provision supports the mandate of the Georgia Constitution that “[n]o person shall be deprived of life . . . without due process of law.” 1983 Ga. Const., Art. I, Sec. I, Par. I. Construing these provisions, this court has held that “the ‘passion’ proscribed by our law does not encompass all emotion, but only that engendered by prejudice, particularly racial prejudice ... or [prejudice towards] religious preference,” or other arbitrary factors. Conner v. State, 251 Ga. 113, 121 (303 SE2d 266) (1983). Additionally, we have held that it would be constitutionally impermissible for a jury to base its death penalty recommendation on the victim’s class or wealth. Ingram v. State, 253 Ga. 622, 634 (323 SE2d 801) (1984). See also 1983 Ga. Const., Art. I, Sec. I, Par. XXV.⁵ Clearly, some evidence which would fall within the broad parameters of OCGA § 17-10-1.2 could also reflect on those factors which this court and our state legislature have already found constitutionally irrelevant to death penalty sentencing. Indeed, even some legitimate victim impact evidence could inflame or unduly prejudice a jury if admitted in excess.

(c) Having recognized that under some circumstances victim impact evidence has the potential to render a death penalty sentence constitutionally infirm, we nevertheless uphold the constitutionality of § 17-10-1.2. We do so because our legislature has employed sufficient safeguards within the statute to ensure that victim impact evidence will not be admitted which reflects on factors which this court has found constitutionally irrelevant to death penalty sentencing, and which could result in the arbitrary and unconstitutional imposition of the death penalty. As precautionary measures, for example, the statute gives a trial court the discretion to exclude victim impact evidence altogether, § 17-10-1.2 (a) (1), limits evidence related to the impact of the offense upon the victim’s family or community to that which is inquired of by the court, § 17-10-1.2 (b) (6), and states that victim impact evidence “shall be permitted only in such a manner and to such a degree as not to inflame or unduly prejudice the jury,” § 17-10-1.2 (a) (l).⁶ Obviously, victim impact evidence relating to constitutionally impermissible factors would “unduly prejudice” a jury. Thus, a trial court would abuse the unusually broad discretion granted by the statute by admitting such evidence. Because of the safeguards included in the statute, and because we presume that trial courts will follow the dictates of the statute in not admitting inflammatory or unduly prejudicial evidence, we affirm the trial court’s holding that the statute, as written,⁷ does not violate the Georgia Constitution.

(d) To help ensure that victim impact evidence does not result in the arbitrary imposition of the death penalty, we hold that the trial court must hear and rule prior to trial on the admissibility of victim impact evidence sought to be offered. This will, of course, necessitate that the state notify the defendant of victim impact evidence which it intends to offer, and will require the trial court to notify the defendant of the questions, if any, it intends to ask of the state’s prospective witnesses at least ten days prior to trial. At the conclusion of the guilt-innocence phase of the trial, the trial court may reconsider any pre-trial decision regarding the admissibility of victim impact evidence.

(e) Livingston argues that because the crimes with which he is charged were committed prior to the effective date of OCGA § 17-10-1.2, application of the statute to his case constitutes an ex post facto law in violation of 1983 Ga. Const., Art. I, Sec. I, Par. X. We do not agree. OCGA § 17-10-1.2 modified the scope of evidence which may be offered at a sentencing trial in a death penalty case. It did not affect the manner or degree of punishment, and, as construed by the court, did not alter any substantive rights conferred on Livingston by law. As such, it is not an unconstitutional ex post facto law. Todd v. State, 228 Ga. 746 (187 SE2d 831) (1972).

2. For the reasons expressed in Division 5 of this court’s opinion in Rower v. State, 264 Ga. 323 (443 SE2d 839) (1994), we affirm the trial court’s denial of the state’s discovery demand based on its decision that the state is not entitled to discover from the defendant that which the defendant would not be entitled to discover from the state, see OCGA § 17-7-211.

3. Livingston contends that the trial court erred in denying his motion for a separate trial, before his trial on guilt or innocence, to address his allegation that he is mentally retarded. However, we find no error because the legislature has provided that the jury in a capital trial determines “at the time of the trial on guilt or innocence” whether the defendant is mentally retarded. Fleming v. Zant, 259 Ga. 687, 688 (386 SE2d 339) (1989); OCGA § 17-7-131 (j).

Livingston argues that because the issue of mental retardation relates “solely” to his “eligibility for a death sentence,” it must be considered apart from issues and evidence relating to guilt or innocence to avoid prejudicing the jury. However, we have held that evidence relating to the crime charged “may be highly probative of [a defendant’s] mental abilities and materially relevant to the question of whether or not he is mentally retarded.” Zant v. Foster, 261 Ga. 450, 451-452 (406 SE2d 74) (1991) (overruled on other grounds in State v. Patillo, 262 Ga. 259, 261, n. 1 (417 SE2d 139) (1992)).

We find no merit in Livingston’s related attacks on OCGA § 17-7-131. While there may be advantages to a criminal defendant in having a trial apart from the guilt-innocence phase on the issue of mental retardation, such a change must come from the General Assembly.

S94A0279. John Mark Waldrip

4. John Mark Waldrip’s first two enumerations of error adopt the arguments of Howard Livingston with regard to the state’s right to discovery and the admission of victim impact evidence. These issues were decided in Divisions 1 and 2 of this opinion.

5. Waldrip also argues that the trial court erred in denying his motion to “enjoin” the victim’s family from showing emotion in the courtroom, and to require the victim’s family and friends to sit where the jury cannot see them.

In October 1991, the trial court entered an order requiring the district attorney to notify the victim’s family that it must avoid “any visible or audible display of emotion that would be disruptive” to trial proceedings. The trial court concluded that should such disruptive behavior take place in the courtroom, the court would take appropriate measures. In December 1992, in response to additional defense motions, the trial court entered a second order denying requests to have the victim’s family sit where the jury cannot see them, and for the trial court to warn the family against disruptive courtroom behavior. The trial court reiterated that the district attorney would explain acceptable courtroom behavior to the victim’s family, and concluded that if the defendants became aware of any objectionable behavior on the part of court spectators, they could bring it to the attention of the court and curative action would be taken.

Waldrip points to nothing in the record which indicates that disruptive behavior is likely to occur at trial. Further, he cites no authority for the prophylactic measures he suggests should be imposed. We hold that, under the circumstances presented by this case, the action taken by the trial court is appropriate.

S94A0280. Tommy Lee Waldrip

6. In his only enumeration of error, Tommy Lee Waldrip contends that the trial court erred in denying his motion to suppress the discovery of the victim’s body.

Following Waldrip’s arrest, the Sheriff of Dawson County made an emotional plea to him for help in locating the victim. No Miranda warnings were given. Waldrip made no response and the sheriff left the room.

Early the next morning, Waldrip informed a jailer that he wished to speak to the sheriff. When the sheriff went to his jail cell, Waldrip stated that he needed to talk about “what had happened.” The sheriff replied that someone else would interview Waldrip at another time, and that he was only interested in locating the victim. Waldrip then described the general area in which the victim could be found. No Miranda warnings were given during this interview.

Approximately two hours later GBI agents interviewed Waldrip. They administered Miranda warnings and Waldrip signed a waiver of rights form. During this interview Waldrip agreed to take the agénts to the victim’s body. Waldrip made a tape-recorded statement that he was accompanying the agents freely and voluntarily, and then led them to where the victim was buried.

Waldrip argues that because his statement to the sheriff, made without benefit of Miranda warnings, provided information leading officers to the discovery of the victim’s body, evidence of this discovery must be suppressed. He additionally argues that his statement to the sheriff was not voluntary, and that the trial court erred in failing to consider evidence of his low; I.Q. and alleged mental illness in determining whether his statements were voluntary.

In a comprehensive order, the trial court ruled that because Waldrip’s statement to the sheriff was not preceded by Miranda warnings, it must be excluded. However, the trial court concluded that Waldrip’s statement to GBI agents, which was preceded by Miranda warnings, was voluntary and admissible at trial. Because this statement was voluntary, the trial court also denied Waldrip’s motion to suppress discovery of the victim’s body.

Where law enforcement officers conduct custodial interrogation of a suspect without the benefit of Miranda warnings, there is a presumption that the suspect’s answers are compelled, and Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), dictates that they be suppressed. However, where the suspect is later given Miranda warnings, the admissibility of any subsequent statement turns on whether, under all the circumstances, that statement was knowingly and voluntarily made. Oregon v. Elstad, 470 U. S. 298, 309 (105 SC 1285, 84 LE2d 222) (1985). Further if the suspect made the initial statement voluntarily, the fact that it was not preceded by Miranda warnings will not taint a subsequent voluntary statement which had the benefit of those warnings. Id. at 318.

Thus, the trial court correctly ruled that Waldrip’s initial statement to the sheriff must be excluded. Because the record supports the trial court’s finding that both Waldrip’s statement to the sheriff and his statement to the GBI were voluntarily made, the trial court did not err in ruling that Waldrip’s statement to the GBI agents could be admitted in evidence. Likewise, because the discovery of the victim’s body was the “fruit” of Waldrip’s voluntary statement, it need not be suppressed. Wilson v. Zant, 249 Ga. 373, 378 (290 SE2d 442) (1982).

The record shows that the trial court considered evidence of Waldrip’s I.Q. and alleged mental illness in determining whether his statements were voluntarily made. However, regardless of a suspect’s mental state, “coercive police activity is a necessary predicate to the finding that [his] confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.” Colorado v. Connelly, 479 U. S. 157, 167 (107 SC 515, 93 LE2d 473) (1986). As there is no evidence of coercive police activity in this case, Waldrip’s contention that his statements were not voluntary under the Fourteenth Amendment must fail.

Judgment affirmed.

All the Justices concur, except Carley, J., who concurs specially, and Benham, P. J., who dissents.

1 This court recognized in Moon v. State, 258 Ga. 748 (375 SE2d 442) (1988), that Booth concerns victim impact evidence introduced at the sentencing phase of the trial, not the guilt phase, and that

[t]he fact that there is a victim, and facts about the victim properly developed during the course of the trial, are not so far outside the realm of “circumstances of the crime” that mere mention will always be problematic.

Id. at 756 (quoting Brooks v. Kemp, 762 F2d 1383, 1409 (11th Cir. 1985)).

2 Payne left undisturbed Booth’s holding that the state could not use information or testimony concerning “a victim’s family members’ characterizations and opinions about the crime, the defendant, and the appropriate sentence.”

Sermons v. State, 262 Ga. 286, 287 (417 SE2d 144) (1992) (quoting Payne, 111 SC at. 2611, n. 2).

3 In support of its decision to depart from Booth, the Supreme Court in Payne explained that

while virtually no limits are placed on the relevant mitigating evidence a capital defendant may introduce concerning his own circumstances, the State is barred from either offering “a glimpse of the life” which a defendant “chose to extinguish,” or demonstrating the loss to the victim’s family and to society which have resulted from the defendant’s homicide.

(Citation omitted.) Payne, 111 SC at 2607. Faced with this perceived inequity, the Court, in order “to keep the balance true,” 111 SC at 2609, held that it is not unconstitutional for the state to proffer evidence of the uniqueness of the victim as an individual in order to show the “specific harm caused by the [defendant],” 111 SC at 2608. As it is the defendant who is on trial in a capital murder case and who is, therefore, subject to the imposition of the death penalty, we cannot agree that Georgia courts are required to maintain some sort of “balance” between the victim and the defendant in a death penalty prosecution. This rationale would be inconsistent with long-standing Georgia law, which has never embraced a “tit-for-tat” doctrine with respect to defendants’ and victims’ rights. In point of fact, it has been a fundamental legal tenet since the founding of this country that a criminal defendant must be proved guilty beyond a reasonable doubt based on evidence establishing his guilt. “[T]he Constitution grants certain rights to the criminal defendant and imposes special limitations on the State designed to protect the individual from overreaching by the disproportionately powerful State.” Payne, 111 SC 2627 (Stevens, J., dissenting). Furthermore, a great many “[r]ules of evidence are also weighted in the defendant’s favor.” Id. We find that in Georgia the rationale for admitting victim impact evidence in the sentencing phase of a death penalty prosecution is that the evidence may reflect on the defendant’s culpability, and may therefore be relevant to the sentencing decision. See Godfrey v. Francis, 251 Ga. 652, 664 (308 SE2d 806) (1983); Alderman v. State, 254 Ga. 206, 210 (327 SE2d 168) (1985).

4 Prior to the 1993 legislative amendment allowing the admission of victim impact evidence in death penalty cases, this court recognized the decision in Payne, but held that Georgia case law

precludes the introduction of testimony at the sentencing trial [of a death penalty case] for the specific purpose of demonstrating the personal characteristics of the victim and the psychological, emotional, and physical impact of the crime on the victims’ families and community.

Sermons, 262 Ga. at 288. We reaffirmed the holding of Sermons in Moore v. State, 263 Ga. 11 (427 SE2d 766) (1993).

5 The Bill of Rights of the Georgia Constitution proclaims that “[t]he social status of a citizen shall never be the subject of legislation.” 1983 Ga. Const., Art. I, Sec. I, Par. XXV. This provision was added to the Georgia Constitution in 1868 to promote equality in the eyes of the law amongst people of all races and classes, see McElreath, The Constitution of Georgia, §§ 107-116; Journal of the Georgia Constitutional Convention of 1867-68, pp. 10-13, and has been included in every constitution adopted in Georgia since that time. The principle underlying Par. XXV is that an individual’s social status is not relevant to the evenhanded administration of justice. See Scott v. State, 39 Ga. 321, 324-327 (1869).

6 While the trial court’s order in this case dealt only with OCGA § 17-10-1.2, the reasoning in this opinion applies equally to OCGA § 17-10-1.1.

7 We recognize some of the concerns raised in Justice Fletcher’s concurrence and Presiding Justice Benham’s dissent regarding the application of the victim impact statute; however, this appeal and this opinion concern only the constitutionality of the statute as written.