| [1] | SUPREME COURT OF GEORGIA |
| [2] | No. S89A0241 |
| [3] | 1989.GA.1935 <http://www.versuslaw.com>, 386
S.E.2d 339, 259 Ga. 687 |
| [4] | December 1, 1989 |
| [5] | FLEMING v. ZANT |
| [6] | . Butts Superior Court. Before Judge Craig. |
| [7] | Reconsideration Denied December 20, 1989. |
| [8] | Paul, Hastings, Janofsky & Walker, Kenneth Shapiro, Mark E. Olive,
Gary A. Alexion, Benna Kushlefsky, for appellant. |
| [9] | Michael J. Bowers, Attorney General, Mary Beth Westmoreland, Senior
Assistant Attorney General, for appellee. |
| [10] | Bondurant, Mixon & Elmore, Emmet J. Bondurant, amicus
curiae. |
| [11] | Clarke, Presiding Justice. All the Justices concur, except Marshall,
C. J., and Smith, J., who Dissent as to Divisions 3 and 4 and the reversal
and remand. |
| [12] | The opinion of the court was delivered by: Clarke |
| [13] | We granted this appeal from the denial of a petition for in order to
consider the impact of the 1988 amendment to OCGA § 17-7-131 on the
validity of Son Fleming's death sentence. *fn1 For the reasons that follow, we conclude that the
new statute reflects a societal consensus against the execution of
mentally retarded defendants. Executing a mentally retarded defendant
would therefore constitute cruel and unusual punishment prohibited by the
Georgia Constitution. We remand this case for a determination of whether
Fleming has presented sufficient evidence to warrant a jury trial on the
issue of mental retardation. |
| [14] | In 1977, Son Fleming and two other defendants were convicted of
murdering a police officer. Fleming was sentenced to death. In the action
below, he alleged that newly discovered evidence demonstrates that he is
mentally retarded. *fn2 This evidence
indicated that in 1966 Fleming suffered gunshot wounds and applied for
Social Security disability benefits. He was declared totally disabled and
awarded benefits. Documents from his Social Security file indicate that
the basis for the disability determination was not the gunshot wounds, but
rather the evidence that he was mentally retarded, organically brain
damaged and psychotic. Because he was unable to handle his financial
affairs, his wife was made the payee for his benefits. He continued to
receive benefits until he was incarcerated for murder. |
| [15] | In 1988 the legislature passed an amendment to OCGA § 17-7-131. Under
the amended statute, the jury in a capital trial must decide at the time
of the trial on guilt or innocence of the defendant whether the defendant
is "guilty but mentally retarded." OCGA § 17-7-131 (c) (3). If the
defendant is found to be guilty but mentally retarded, "the death penalty
shall not be imposed and the court shall sentence the defendant to
imprisonment for life." OCGA § 17-7-131 (j). The amendment is to be
effective "in the trial of any case in which the death penalty is sought
which commences on or after July 1, 1988." Id. On its face the statute
does not apply to Son Fleming, who was tried more than ten years
ago. |
| [16] | 1. Fleming contends that, in spite of the language in the statute
giving it prospective application, constitutional guarantees of due
process and equal protection require that the statute be given retroactive
effect. He argues that the distinction between those cases that have been
tried and those that have not is arbitrary and capricious: it
discriminates without rational basis between Fleming and other equally
culpable mentally retarded defendants in violation of due process and
equal protection. We disagree. |
| [17] | According to Fleming's argument, the legislature could never enact a
statute that would ameliorate or repeal a prior sentencing provision
unless the new law were given retroactive effect. The Constitution
contains no such requirement. See United States v. Sorondo, 845 F.2d 945
(11th Cir. 1988). Where a criminal statute does not discriminate on racial
grounds or against a suspect class, equal protection and due process
concerns are satisfied if the statute bears a "reasonable relation to a
proper legislative purpose" and is "neither arbitrary nor discriminatory."
United States v. Holmes. 838 F.2d 1175, 1177 (11th Cir. 1988) (quoting
Nebbia v. New York, 291 U.S. 502, 537 (54 S. Ct. 505, 78 L. Ed. 940)
(1934)). |
| [18] | The amendment to OCGA § 17-7-131 does not improperly discriminate
among classes of defendants. It distinguishes between cases that have been
tried and those that have not. This classification is neither arbitrary
nor discriminatory. The legislature had to choose some effective date.
And, although the legislature certainly could have selected another
effective date, such as the date of the offense or the date of sentencing,
our responsibility is not to determine whether the legislature selected
the best of possible alternatives, but rather to decide whether the
legislative decision is a rational one. Holmes, supra, at 1178. We
conclude that it is. The classification bears a reasonable relationship to
a legitimate legislative concern for the finality of criminal convictions.
Thus, we conclude that Fleming's equal protection and due process claims
are without merit. |
| [19] | 2. Fleming next argues that the passage of the amended statute renders
his death sentence disproportionate under OCGA § 17-10-35 (c) (3). He
argues that no case will again come before this Court for direct review of
a death sentence imposed on a mentally retarded person. He says that his
sentence is therefore disproportionate to that imposed against similar
defendants in similar cases in Georgia. |
| [20] | OCGA § 17-10-35 (c) (3) does not require this Court to undertake a de
novo proportionality review whenever new information about the defendant
is discovered or whenever a new legislative enactment changes the
penological landscape. We do not reach the issue of whether there may be
some circumstances under which a second proportionality review would be
appropriate. It clearly would not be proper, however, to undertake a
proportionality review of Fleming's case at this time. This is true
because there has been no judicial determination that Fleming is mentally
retarded. If he is not, there is no reason to conduct a second
proportionality review. If he is retarded, our holding in Div. 3, below,
is sufficient to correct any proportionality problem. |
| [21] | 3. Fleming next argues that his sentence violates the guarantee
against cruel and unusual punishment found in the Eighth Amendment to the
U.S. Constitution and in Art. I, Sec. I, Par. XVII of the Constitution of
Georgia of 1983. |
| [22] | Both the Georgia and the federal constitutions categorically prohibit
inflicting cruel and unusual punishments. A punishment is cruel and
unusual if it" `(1) makes no measurable contribution to accepted goals of
punishment and hence is nothing more than the purposeless and needless
imposition of pain and suffering; or (2) is grossly out of proportion to
the severity of the crime.'" Wyatt v. State, 259 Ga. 208, 209 (378 S.E.2d
690) (1989) (quoting Coker v. Georgia, 433 U.S. 584 (97 S. Ct. 2861, 53 L.
Ed. 2d 982) (1977)). Further, the constitutional standard reflects
society's view of what punishments are cruel, and prohibits those that
"disgraced the civilizations of former ages,... mak one shudder with
horror to read them." Dutton v. Smart, 222 Ga. 35 (148 S.E.2d 396) (1966);
Whitten v. State, 47 Ga. 297 (1872). In other words, whether a particular
punishment is cruel and unusual is not a static concept, but instead
changes in recognition of the" `evolving standards of decency that mark
the progress of a maturing society.'" Penry v. Lynaugh, 492 U.S. , at (109
S. Ct. 2934, at 2953, 106 L. Ed. 2d 256) (1989) (quoting Trop v. Dulles,
356 U.S. 86, 101 (78 S. Ct. 590, 2 L. Ed. 2d 630) (1958) (plurality
opinion)). |
| [23] | To ascertain how society currently views a particular punishment, this
court, like the U.S. Supreme Court, considers objective evidence. Such
evidence may include information gathered from polls or studies, data
concerning the actions of sentencing juries, etc. See, id., 109 S. Ct. at
2953. However, legislative enactments constitute the clearest and most
objective evidence of how contemporary society views a particular
punishment. Id. Those enactments may change from time to time and as they
do those changes amount to evidence of the shifting or evolution of the
societal consensus. |
| [24] | In Penry v. Lynaugh, supra, the United States Supreme Court decided
that the execution of mentally retarded people is not "at present"
prohibited by the Eighth Amendment to the U.S. Constitution. Penry, 109 S.
Ct. at 2955. This decision was based in great part on the absence of any
"national consensus" against executing the mentally retarded. In contrast,
the objective evidence indicates that a consensus against execution of the
mentally retarded does exist among Georgians. |
| [25] | Recently, the Georgia Senate passed a resolution urging the Board of
Pardons and Paroles to give special consideration to commuting the
sentences of mentally retarded offenders that had been sentenced to death,
citing the poll and stating, "... executing a retarded offender destroys
public confidence in the criminal Justice system." Senate Resolution 388.
Further, this state's elected representatives, voicing the will of the
electorate, have spoken on the subject and have declared that if a
defendant is found to be mentally retarded, "the death penalty shall not
be imposed and the court shall sentence the defendant to imprisonment for
life." OCGA § 17-7-131 (j). The legislative enactment reflects a decision
by the people of Georgia that the execution of mentally retarded offenders
makes no measurable contribution to acceptable goals of punishment. *fn3 Thus, although there may be no
"national consensus" against executing the mentally retarded, this state's
consensus is clear. |
| [26] | The "standard of decency" that is relevant to the interpretation of
the prohibition against cruel and unusual punishment found in the Georgia
Constitution is the standard of the people of Georgia, not the national
standard. Federal constitutional standards represent the minimum, not the
maximum, protection that this state must afford its citizens. Harris v.
Duncan, 208 Ga. 561 (67 S.E.2d 692) (1951). Thus, although the rest of the
nation might not agree, under the Georgia Constitution, the execution of
the mentally retarded constitutes cruel and unusual
punishment. |
| [27] | This holding does not mean that the Georgia Constitution prohibits
execution of retarded persons per se. We merely hold that it prohibits
cruel and unusual punishment. Our Conclusion that the societal consensus
in Georgia opposes execution of retarded persons does not mean that such
consensus may not change thus altering what comes within the meaning of
cruel and unusual punishment. |
| [28] | 4. Having so decided, we must now apply the Georgia constitutional
standard to the case at hand. As noted above, there has been no judicial
determination that Fleming is mentally retarded. We must therefore decide
by what procedure that determination will be made. |
| [29] | When a defendant who was tried before the effective date of the OCGA §
17-7-131 (j) alleges in a petition for that he or she is mentally
retarded, the court must first determine whether the petitioner has
presented sufficient credible evidence, which must include at least one
expert diagnosis of mental retardation, to create a genuine issue
regarding petitioner's retardation. *fn4 The court, in its discretion, may hold a hearing on
the issue, or may make the determination based on affidavits, depositions,
documents, etc. If, after examining the evidence, the court finds that
there is a genuine issue, a writ shall be granted for the limited purpose
of conducting a trial on the issue of retardation only. This trial shall
be held in the court in which the original trial was conducted. Petitioner
shall be entitled to a full evidentiary hearing on the issue of
retardation. The determination shall be made by a jury using the
definition of retardation enunciated in the statute. See OCGA § 17-7-131
(a) (3). The petitioner will bear the burden of proving retardation by a
preponderance of the evidence. The jury shall not be bound by the opinion
testimony of expert witnesses or by test results, but may weigh and
consider all evidence bearing on the issue of mental retardation. If the
jury returns a verdict that the petitioner is mentally retarded, the
petitioner's sentence shall be vacated and he shall be sentenced to life
imprisonment. |
| [30] | In summary, we conclude that the execution of mentally retarded
offenders violates the Georgia constitutional guarantee against cruel and
unusual punishment. We reverse the judgment of the court below to the
extent that it held otherwise. In all other respects the judgment below is
affirmed. |
| [31] | Judgment affirmed in part, reversed in part and
remanded. |
| [32] | Smith, Justice, Dissenting. |
| [33] | I Dissent for several reasons. First, I believe that the legislature
intended for OCGA § 17-7-131 to be prospective only. Second, I do not
believe that there is a consensus among the people of Georgia that all
mentally retarded criminal defendants under all circumstances should be
excused from the death penalty. Moreover, I do not believe that the
legislature intended for the Georgia Constitution to be used to excuse all
mentally retarded criminal defendants from the death penalty regardless of
the degree of their retardation, blameworthiness, or involvement in crimes
past, present, or future. *fn1 |
| [34] | When we granted Son Fleming's application, we directed the parties to
address "The impact of the 1988 amendment (Ga. Laws 1988, p. 1003 et seq.)
to O.C.G.A. § 17-7-131 on the validity of Fleming's sentence of death."
For the reasons below, I agree with the habeas court that OCGA § 17-7-131
has prospective application only and has no direct application to Mr.
Fleming's death sentence for the murder of Ray City Police Chief James E.
Giddens. See Fleming v. State, 240 Ga. 142 (240 S.E.2d 37) (1977), and
Fleming v. State, 243 Ga. 120 (252 S.E.2d 609) (1979). |
| [35] | THE LEGISLATURE ACTS WITH KNOWLEDGE OF THE EXISTING LAWS |
| [36] | The legislature is presumed to act with knowledge of the laws and the
holdings of the appellate courts of this State. The pertinent laws and
holdings are as follows: "Laws prescribe only for the future; they
cannot... have a retrospective operation." OCGA § 1-3-5. |
| [37] | It is a general rule, in the interpretation of statutes, that they are
to be so interpreted, that they shall not affect any case that was in
existence before their passage, unless they expressly, or, by necessary
implication, mention that case. [ Bond v. Munro, 28 Ga. 597, 601
(1859).] |
| [38] | Kingsbery v. Ryan, 92 Ga. 108 (17 S.E. 689) (1893). With knowledge of
the above, the legislature specifically limited the applicability of the
statute to "the trial of any case in which the death penalty is sought
which commences on or after July 1, 1988...." OCGA § 17-7-131 (j). The
legislative intent was expressly stated. The statute was intended to apply
only to those cases tried after July 1, 1988. |
| [39] | The legislature articulates the will of the people when it enacts
laws. The judiciary interprets the laws articulated. Attempts by the
judiciary to articulate the will of the people are attempts to usurp
legislative power. As stated by the majority, "legislative enactments
constitute the clearest and most objective evidence of how contemporary
society views a particular punishment." The "clearest and most objective
evidence" of the people's will is the express limitation in the statute.
The statute does not apply to cases in which the accused was found guilty
and sentenced to death prior to July 1, 1988. |
| [40] | The majority found that the legislative decision is a rational one
that is neither arbitrary nor discriminatory. That decision expresses the
will of the people. It expresses the people's legitimate concern for
finality. It is not this Court's prerogative to determine social policies;
the power to determine policy questions rests in the legislative branch,
not the judicial branch. Today's holding not only usurps the legislative
power, it also ties the hands of the General Assembly. Despite the
majority's insistence in Division 1 of its opinion that this
Court's |
| [41] | responsibility is not to determine whether the legislature selected
the best of possible alternatives, but rather to decide whether the
legislative decision is a rational one[,] |
| [42] | it has determined that the legislature has not selected the best
alternative. Not only has the majority selected what it determines to be
the best alternative, it has held that the "best alternative" must be a
"constitutional alternative." |
| [43] | SENATE RESOLUTIONS ARE NOT THE WILL OF THE PEOPLE |
| [44] | Senate Resolution 388 does not express the will of the people.
Hundreds of Senate resolutions are passed each session to provide
commendations to specific people, groups, and entities. For example, some
of the Senate resolutions passed in 1988, closest in number to S. R. 388,
included the following: S. R. 385 commended a high school wrestling team;
S. R. 387 expressed regret at the passing of a citizen; S. R. 389
commended a citizen for long and distinguished service to the state; S. R.
390 expressed sympathy at the passing of a citizen. These types of Senate
resolutions are political. Often only the captions are read to the Senate
for a vote, and many times they are passed without a vote. When there is a
vote, only the Senate votes. Senate resolutions do not express the will of
the majority of the citizens of this State; they express the will of the
Senator or Senators who introduced them. |
| [45] | The highest and best expression of the people's will is a statutory
enactment. The majority's reliance on Senate Resolution 388 to determine
the will of the people is an attempt to nullify and overrule the expressed
legislative intent to limit the statute to only those cases tried after
July 1, 1988. |
| [46] | SURVEYS DO NOT SPEAK FOR THE CITIZENS |
| [47] | Surveys or public opinion polls do not speak for the citizens of this
State; only the legislature has that power. Survey responses reflect waves
of emotion. They often change as quickly in one direction as the other. *fn2 Polls may have a place in the
political arena, but they prove nothing more than the mood of the
respondents at a particular moment in time. |
| [48] | THE LIMITATION EXPRESSES THE CONSENSUS OF THE PEOPLE |
| [49] | Faced with the express limitation in OCGA § 17-7-131 (j), the majority
looked to Senate Resolution 388 (and by footnote to a survey) to find that
there is "a consensus against execution of the mentally retarded" in
Georgia. If there really is a consensus, then the General Assembly would
have sought to amend the constitution to protect all mentally retarded
criminal defendants. At the very least, it would have expressly stated
that the statute was intended to apply to all mentally retarded criminal
defendants, not only those tried after July 1, 1988. The decision to limit
the statute to those tried after July 1, 1988 expresses the consensus of
the people. The people's will has been nullified and overruled by the
majority's reliance on Senate Resolution 388 and the survey. |
| [50] | THE FIRST LEGISLATIVE ENACTMENT SHOULD NOT BE USED AS A SPRINGBOARD TO
EXCUSE ALL MENTALLY RETARDED CRIMINAL DEFENDANTS |
| [51] | Our statute was amended in an emotional response to the execution of a
mildly retarded defendant. *fn3 This is
a new area of law. We are just beginning to understand mental retardation;
we should not tie the hands of the legislature. Without a clear mandate
from the people, the majority has jumped over the very first legislative
enactment in this area and declared that all mentally retarded criminal
defendants, past, present, and future, are relieved from the death penalty
under the Georgia Constitution. |
| [52] | The majority opinion prevents the General Assembly from amending the
statute. The interpretation placed upon the statute by the majority of
this Court is an "integral part of the statute[,]" Gulf C. & S. F. R.
Co. v. Moser, 275 U.S. 133, 136 (48 S. Ct. 49, 72 L. Ed. 200) (1927), and
the majority's interpretation "puts the words in the statute as definitely
as if it had been amended by the legislature." Winters v. New York, 333
U.S. 507, 514 (68 S. Ct. 665, 92 L. Ed. 840) (1948). See also Jones v.
Swett, 244 Ga. 715, 717 (261 S.E.2d 610) (1979), citing with approval
Walker v. Walker, 122 Ga. App. 545, 546 (178 S.E.2d 46) (1970), citing
with approval Gulf C. & S. F. R. Co. v. Moser, supra, and Winters v.
New York, supra. Because of the majority's holding, the statute has now
been amended to state: "Executing a mentally retarded defendant cruel and
unusual punishment prohibited by the Georgia Constitution." Majority p.
687. |
| [53] | The statute relieves any criminal defendant from the death penalty if
he fits within the "medically accepted" definition of mental retardation
adopted by the statute. Mental retardation per se should not be the
determining factor in relieving a criminal defendant from the death
penalty. Over time, the "medically accepted" definition might have proven
to be unworkable or undesirable as it relieves all those who fit within
the definition. The degree of retardation is not relevant, and there is no
requirement that the defendant be unable to appreciate the nature and
quality or the wrongfulness of his conduct. |
| [54] | Prior to the majority interpretation, the legislature could have
amended the statute (to provide protection, for example, to only those
mentally retarded criminal defendants who need protection, rather than
blanket protection for every mentally retarded criminal defendant) with a
vote of the legislative body; however, after today there can be no valid
statutory amendment. Because of the statute's constitutional eminence, a
constitutional amendment is required. |
| [55] | If a majority of the people in Georgia inform their representatives in
the General Assembly that they do not want the Georgia Constitution to be
used to relieve all mentally retarded criminal defendants from the death
penalty, the General Assembly can only do one of two things, both of which
involve long time commitments. First, the General Assembly can propose an
amendment to the Georgia Constitution; or second, it can attempt to enact
a new statute exempting only certain mentally retarded criminal defendants
(for example, those whose retardation prevents them from being able to
appreciate the nature and quality or the wrongfulness of their conduct, or
those whose involvement in the crime was limited or coerced because of
their retardation) from the death penalty. The new statute will be
challenged by the first mentally retarded criminal defendant who is no
longer relieved from the death penalty. Because "egislative acts in
violation of Constitution... are void, and the judiciary shall so declare
them[,]" Art. I, Sec. II, Par. V of the Constitution of Georgia of 1983,
this Court will have to declare the newly enacted statute void; it will
conflict with the cruel and unusual provision of the Georgia Constitution.
Once the statute has been declared void, a majority of this Court, relying
on today's majority opinion, will look to the void statute, a senate
resolution, and public opinion polls and declare that the consensus has
changed. |
| [56] | The majority should not have found a consensus without a very clear
message from the legislature. The message is not clear today, and there
are far less drastic methods which could have provided adequate protection
to Mr. Fleming and others who may be mentally retarded. |
| [57] | THE BREADTH OF THE HOLDING |
| [58] | Today's constitutional holding may extend protection to those who
neither need nor deserve protection. The majority opinion presumes that no
mentally retarded criminal defendant, regardless of the degree of
retardation, could ever act with that degree of blameworthiness associated
with the death penalty. |
| [59] | In Georgia, a criminal defendant is mentally retarded if he
has: |
| [60] | ignificantly subaverage general intellectual functioning resulting in
or associated with impairments in adaptive behavior which manifested
during the developmental period. [OCGA § 17-7-131 (3).] |
| [61] | According to Ellis and Luckasson: |
| [62] | General intellectual functioning is a phenomenon measured, and thus
defined, by intelligence tests. It is, therefore, quantifiable as an
intelligence quotient (IQ) score. The AAMD's definition sets the upper
boundary of mental retardation at an IQ level of 70, which is
approximately two standard deviations from the mean score of 100. [Cit.]
For an individual to be classified as mentally retarded, the deficit in
intellectual functioning must be accompanied by impairments in adaptive
behavior defined as "significant limitations in an individual's
effectiveness in meeting the standards of maturation, learning, personal
independence, and/or social responsibility that are expected from his or
her age level and cultural group, as determined by clinical assessment
and, usually standardized scales." Thus adaptive behavior is a term of
art, which is not synonymous with maladaptive behavior. The inclusion of
adaptive behavior in the definition of mental retardation requires that
intellectual impairment, measured by an intelligence test, have some
practical impact on the individual's life. [Cit.] |
| [63] | Ellis, J., and Luckasson, R., Mentally Retarded Criminal Defendants,
53 Geo. Wash. L. Rev. 414, 422 (1985). Given our statute and the
majority's constitutional holding, all that is needed to relieve any
criminal defendant from the death penalty is the following: an IQ test
score of 70 or lower and an expert to testify that the defendant is
mentally retarded. There is no requirement that the mentally retarded
criminal defendant's retardation prevented him from appreciating the
nature and quality or the wrongfulness of his conduct. There is no value
attached to any experience in life, i.e., military or other training, jobs
held, independent living, family reared, ability to read or write,
educational background, licenses held, ability to drive a car and obey the
rules of the road, or ability to obey laws generally. |
| [64] | MENTALLY RETARDED INDIVIDUALS VARY IN THEIR ABILITIES |
| [65] | Mentally retarded people are not a homogenous group; they vary
considerably in their abilities. Their experiences also vary, and mildly
retarded individuals are often able to function successfully in society. A
person who is mentally retarded can be any where on a continuum from
independent to dependent. "Mentally retarded people are individuals. Any
attempt to describe them as a group risks false stereotyping and therefore
demands the greatest of caution." Mentally Retarded Criminal Defendants,
supra, 53 Geo. Wash. at 427. According to the Diagnostic and Statistical
Manual of Mental Disorders (DSM-III-R) Third Edition-Revised at p.
32: |
| [66] | There are four degrees of severity, reflecting the degree of
intellectual impairment: Mild, Moderate, Severe, and Profound. IQ levels
to be used as guides in distinguishing the four degrees of severity
are: |
| [67] | Degree of Severity IQ |
| [68] | Mild 50-55 to approx. 70 |
| [69] | Moderate 35-40 to 50-55 |
| [70] | Severe 20-25 to 35-40 |
| [71] | Profound Below 20 or 25 |
| [72] | 317.00 Mild Mental Retardation |
| [73] | Mild Mental Retardation is roughly equivalent to what used to be
referred to as the educational category of "educable." This group
constitutes the largest segment of those with the disorder -- about 85%.
People with this level of Mental Retardation typically develop social and
communication skills during the preschool years (ages 0-5), have minimal
impairment in the sensorimotor area, and often are not distinguishable
from normal children until a later age. By their late teens they can
acquire academic skills up to approximately sixth-grade level; during
their adult years, they usually achieve social and vocational skills
adequate for minimum self-support, but may need guidance and assistance
when under unusual social or economic stress. At the present time,
virtually all people with Mild Mental Retardation can live successfully in
the community, independently or in supervised apartments or group homes
(unless there is an associated disorder that makes this
impossible). |
| [74] | Mildly mentally retarded individuals, about 85% of the retarded
population, can live successfully in the community. Id. Those who are
mildly retarded should not be excused from the death penalty under all
circumstances. |
| [75] | EXPERT WITNESSES WILL DETERMINE THE ULTIMATE ISSUE |
| [76] | Professionals with specialized training in psychiatry or psychology
will have to determine whether the defendant is mentally retarded
according to the "medically accepted" definition. A person with an IQ test
score of 70 or below is classified as mentally retarded. Id. The experts
will be called upon to testify, and according to our rules of
evidence: |
| [77] | Expert opinion testimony on issues to be decided by the jury, even the
ultimate issue, is admissible where the Conclusion of the expert is one
which jurors would not ordinarily be able to draw for themselves; i.e.,
the Conclusion is beyond the ken of the average layman. [Cits.] [ Smith v.
State, 247 Ga. 612, 619 (277 S.E.2d 678) (1981).] |
| [78] | Because the "Conclusion is beyond the ken of the average layman[,]"
Id. experts will determine the ultimate issue. Once it is shown that the
criminal defendant's IQ test score is 70 or below and the expert has
testified that the defendant is mentally retarded, the accused has made a
prima facie case and the burden shifts to the State to refute it. However,
there is nothing to refute. Once it is established that the IQ test score
is 70 or below and the expert testifies that one with an IQ of 70 or below
is mentally retarded there is nothing that the State can do. The
defendant's counsel, at this juncture, can make a motion for a directed
verdict as to the defendant's retardation. The fact thatthe expert could
and might wish, in some cases, to also testify that the defendant's mental
retardation did not prevent him from being able to appreciate the nature
and quality or the wrongfulness of his conduct is irrelevant and will not
be allowed. Once the expert states that the defendant is mentally
retarded, the inquiry ends. |
| [79] | THERE ARE FAR LESS DRASTIC METHODS AVAILABLE |
| [80] | The majority could call upon less extreme methods to protect Mr.
Fleming. Mr. Fleming has presented "newly discovered" evidence of his
retardation which raises an issue as to his mental capacity, his ability
to understand the nature of the proceedings against him, and his ability
to provide assistance to his counsel to aid in his defense. See Curry v.
Zant, 258 Ga. 527 (371 S.E.2d 647) (1988). The majority need not declare
all mentally retarded criminal defendants freed from the death penalty in
order to protect Mr. Fleming. |
| [81] | DO GEORGIANS WANT ALL MENTALLY RETARDED CRIMINAL DEFENDANTS RELIEVED
FROM THE DEATH PENALTY WITHOUT REGARD TO ANY OTHER FACTORS? |
| [82] | Today there may be a criminal defendant who has been tried, convicted,
and sentenced to death for a heinous crime. He may fit within the
"medically accepted" definition of mental retardation although he may have
functioned in society and, in fact, may have been integrated into society
to such an extent that no one considers him unable to act with the degree
of blameworthiness associated with the death penalty. His mental
retardation may not have prevented him from being able to appreciate the
nature and quality or the wrongfulness of his conduct. This criminal
defendant may have worked for a living and supported himself, may have a
driver's license, may understand and obey the rules of the road, may have
a family, may know the difference between right and wrong, may understand
and obey the law generally, and may have planned and carried out a heinous
crime that warrants the death penalty. That criminal defendant will not
receive the death penalty if he can find "newly discovered" evidence that
he is mentally retarded. His degree of mental retardation,
blameworthiness, or involvement in the crimes will be of no significance;
he will be relieved from the ultimate penalty based solely upon the
expert's testimony that the defendant is mentally retarded. |
| [83] | Conclusion |
| [84] | I do not believe that there is a consensus in this State that all
mentally retarded criminal defendants, regardless of their degree of
retardation, blameworthiness, and involvement in capital crimes should be
excused from the death penalty. I do not agree with the majority that "the
people of Georgia [have decided] that the execution of mentally retarded
offenders makes no measurable contribution to acceptable goals of
punishment." Mental retardation per se does not prevent a person from
being capable of acting with the degree of blameworthiness that is
associated with the death penalty. I do not agree that we should use the
Georgia Constitution to relieve all mentally retarded criminal defendants
from the death penalty under all circumstances. |
| [85] | The majority quotes Senate Resolution 388 as follows: "executing a
retarded offender destroys public confidence in the criminal Justice
system." I believe that excusing all mentally retarded criminal defendants
from the ultimate punishment, regardless of the degree of retardation,
blameworthiness, and involvement in the crimes, destroys public confidence
in the criminal Justice system. *fn4
For this reason and those stated above, I Dissent. |
| [86] | I am authorized to state that Chief Justice Marshall joins in this
Dissent. |
|
| |
| Opinion Footnotes | |
|
| |
| [87] | *fn1 Fleming attempts to raise
several other issues in this petition. We limit our review to an
examination of the impact of the newly amended statute on the validity of
Fleming's death sentence because this is the only issue that has not been
previously decided and could not reasonably have been raised in Fleming's
previous petitions for . See OCGA § 9-14-51; Smith v. Zant, 250 Ga. 645
(301 S.E.2d 32), cert. denied 464 U.S. 807 (1983). |
| [88] | *fn2 The documents declaring
Fleming to be mentally retarded, etc., were not discovered by his
attorneys until recently. They had been in his Social Security file
labeled as follows: |
| [89] | This communication should be made part of the patient's file. Under no
circumstances should the report be read or given to the
patient. |
| [90] | *fn3 Because opinion polls may
produce widely varying results, we do not rely on polls to establish a
societal consensus. We note, however, that a Georgia poll found that while
75% of Georgians favor capital punishment, 66% oppose the death penalty
for the retarded, 17% favor the death penalty for the retarded, and 16%
feel that their answer would depend on how retarded the person is. See
Penry, 109 S. Ct. at 2955. |
| [91] | *fn4 The procedure is remedial in
nature and will not apply to defendants tried after the effective date of
the statute. |
| [92] | 1 It is important to note that the death penalty in Georgia is
reserved for only those who kill other humans and who also engage in acts
that the people of this state find the most repugnant. Except in cases of
aircraft hijacking or treason the jury must find at least one aggravating
circumstance. See OCGA § 17-10-30. |
| [93] | 2 The timing of the poll can create differences in the attitudes of
those who respond. According to the amicus, the survey was made after the
highly publicized execution of an allegedly mildly retarded criminal
defendant. Would the survey produce different results if taken after the
public becomes aware of the amicus' assertion that three mentally retarded
defendants have been successful in invoking the statute and have been
spared the ultimate penalty? See note 4, infra. Would it make a difference
if the respondents knew that the majority of this Court has ruled that all
mentally retarded criminal defendants are excused from the death penalty
by the Georgia Constitution? Would it make a difference if the question
asked was: "Should all mentally retarded criminal defendants, regardless
of the degree of retardation, blameworthiness, or involvement in the
crimes, be excused from the death penalty?" |
| [94] | 3 Five years after being convicted and sentenced to death for murder,
armed robbery, aggravated assault, and burglary, Bowden v. State, 239 Ga.
821 (238 S.E.2d 905) (1977), the defendant offered "newly discovered"
evidence of his "mild retardation." Bowden v. State, 250 Ga. 185 (296
S.E.2d 576) (1982). |
| [95] | 4 The amicus states: "hree mentally retarded defendants who were
convicted of murders... have already successfully invoked the provisions
of the 1988 statute...." The three cited are: |
| [96] | 1) Jerome Holloway, convicted and sentenced to death for malice murder
and armed robbery. Holloway v. State, 257 Ga. 620 (361 S.E.2d 794) (1987).
"Holloway gained entry to the home of his mother's friend, Corabelle
Berry, on the pretext of needing to borrow a cup of sugar, and proceeded
to beat her to death with a stick and a kerosene lamp and to take from her
residence several hundred dollars, which he used to buy stereo
equipment." |
| [97] | 2) George Elder Dungee, convicted and sentenced to death on six counts
of murder for the deaths of the Alday family in Donalsonville. Five
members of the family were killed as they returned to their home. "Mary
Alday was then raped by two or more of the men.... She was then taken
bound and blindfolded, in her car about six miles to a wooded area where
she was raped by two of the men, was beaten when she refused to commit
oral sodomy, and her breasts mutilated. She was then killed with two
shots. Her watch was then removed from her nude body." Coleman v. State,
237 Ga. 84, 85 (226 S.E.2d 911) (1976). "he evidence showed that
participated in all the crimes and that he personally caused the death of
Mary Alday." Dungee v. State, 237 Ga. 218 (227 S.E.2d 746)
(1976). |
| [98] | 3) Eddie Spraggins, found guilty and sentenced to death for rape and
murder. The evidence showed the following: "On the afternoon of January
31, 1977, the semi-nude body of Frances Coe, age about 55, was found in
her home in Manchester, Georgia. She had been repeatedly stabbed, slashed
and cut, including having her throat cut. There were several wounds to the
body which caused the victim to bleed heavily, with the most severe stab
wounds being in the upper abdomen and lower chest, including two in the
upper abdomen which penetrated the heart. She had been partially
disembowelled. Death was attributed to a loss of blood." There was also
evidence of sexual abuse. Spraggins v. State, 240 Ga. 759 (243 S.E.2d 20)
(1978). |
| [99] | Today this Court, in reliance on the majority opinion, has remanded
Eli Beck's case to the trial court for a jury trial on the issue of mental
retardation. Eli Beck was convicted and sentenced to death for malice
murder, armed robbery, and burglary. Beck and his co-defendant went to the
house of their former employer and shot and killed him. "It is clear,
however, that Beck... entered the victims' home intending to kill. Not
only were they armed, but, significantly, they wore socks on their hands
so there would be no fingerprints, but they did not wear masks,
notwithstanding that both victims knew Beck...." Beck v. State, 255 Ga.
483, 486 (340 S.E.2d 9) (1986). Because of today's holding, the fact that
the murder was planned and that Beck attempted to conceal the crime by
wearing socks on his hands so that there would be no fingerprints would
have no significance if Beck can produce an IQ test score of 70 or
less. |
| [100] | I cannot believe that the people of Georgia intended for the Georgia
Constitution to prevent all of those criminal defendants who have been
sentenced to death to be excused from the death penalty based upon an IQ
test score of 70 or below. |