BRIGHT v. THE STATE.
S94P1617.
(265 Ga. 265)
(455 SE2d 37)
(1995)
SEARS, Justice.
Murder. Muscogee Superior Court. Before Judge McCombs, Senior Judge.
The appellant, Kenneth Bright, was convicted of
the murder of his two grandparents and of possession of a controlled
substance. The jury sentenced Bright to death for the murders, and
the trial court sentenced Bright to 15 years in prison on the
possession offense. 1 For the
reasons that follow, we affirm Bright's convictions but reverse his
sentence of death.
1. The evidence would have authorized a rational
trier of fact to conclude that Bright stabbed his grandmother twenty-one
times, with the fatal wound being a stab wound directly into the
heart sac, and that Bright stabbed his grandfather twelve times,
with the most severe and probably fatal wound being a stab wound
that fractured the tenth and eleventh ribs causing the ribs to tear
the spleen. The evidence was sufficient to satisfy Jackson v.
Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. In his first enumeration of error, Bright
contends that the trial court erred by failing to provide him
independent expert assistance at state expense for purposes of
preparing his defenses at the guilt and punishment phases of the
trial. We find no error as to the guilt phase of the trial, but find
that Bright made the required threshold showing to obtain assistance
at the punishment phase. We therefore reverse Bright's death
sentence.
(a) Before trial the defense filed a motion
requesting funds from the trial court to obtain expert assistance to
evaluate Bright's mental health at the time of the offense, to
assist the defense in preparing for trial, and to assist in
investigating and presenting evidence in mitigation at the penalty
phase.
Bright attached records showing that in February
1989 he had been a patient at the Columbus Department of Mental
Health and Substance Abuse. These records show that Bright sought
treatment as a result of his depression, use of crack cocaine, and
suicidal thoughts stemming from depression about past actions; that
Bright had completed high school and had an average ability to read
and write; that although Bright was depressed about past actions,
expressed suicidal plans, and had poor impulse control, he had no
perceptual disturbances (i.e., no "hallucinations," no "illusions,"
and no "depersonalization and derealization of ideas"); that he had
appropriate continuity of thought and no language impairment; that
his behavior was appropriate for the situation; that his memory was
good; and that he was aware of his substance abuse and verbalized
his need for help. On a form used to evaluate a patient's level of
need of treatment for mental illness, mental retardation, or
dependency on alcohol or drugs, the clinical worker who evaluated
Bright did not list any level of need for mental illness or mental
retardation but listed Bright as a patient most-in-need of treatment
for cocaine abuse. This classification meant that the substance
abuse had caused Bright "social, emotional, developmental, and/or
physical disabilities"; that Bright would be "unable to function"
without "state supported services"; that he had a long history of
dysfunction; that he needed long term treatment; and that he
presented a "[s]ubstantial risk of harm to self or others." Bright
was treated by social workers and prescribed an anti-depressant drug
by a physician.
In support of his motion for funds, Bright also
submitted the medical records of the Muscogee County Jail following
his booking for the murder of his grandparents. The report indicates
that Bright was biting his fingers until they bled; that he was
coming off crack cocaine; and that he might need referral to a local
psychiatric institute.
Bright further attached to his motion a copy of a
study published in the American Journal of Psychiatry that concluded
that, of 15 death row inmates chosen for evaluation because of their
impending execution dates and not because of evidence of "neuropsychopathology,"
all 15 had histories of severe head injuries and suffered from some
forms of neurological and psychological dysfunctions that could have
been significant for purposes of mitigation at their trials. By way
of affidavit, Bright stated he had been hit in the head with a brick
when he was eleven years old and still has a lump and a loss of hair
from that injury; that he ran into a car when he was eight years old
and injured his forehead and has a scar from that injury; and that
he was hit by a baseball bat on his left eyebrow when he was twelve
years old and has a scar from that injury as well. Bright contended
that the study appearing in the American Journal of Psychiatry,
coupled with the evidence of his head injuries, meant that he might
have undiagnosed, unrecognized neurological problems.
Bright also attached copies of two statements he
had made to police after the crimes. In both of those statements,
Bright stated that he went to his grandparents' house to borrow $20
to buy some crack cocaine. His grandmother would not give him the
money because she could tell he had been using drugs and drinking
alcohol. Bright got nervous because his grandmother said she was
going to call his mother and tell her of Bright's drug and alcohol
use and that he was driving her car. Bright contended that when his
grandmother started to call his mother, he lost control because of
his intoxication and started stabbing his grandparents. In his first
statement, Bright concluded that "I'm not no killer. [T]hings just
got out of hand. . . . Because of drugs I am guilty. I hope that
this world can have mercy on me because I'm sorry."
Finally, Bright stated in an affidavit that his
mother killed his father when he was six years old; that he was his
father's favorite child; that Bright then went to live with his
grandmother until his mother was cleared of charges; and that
throughout his life his mother accused him of being just like his
father. Bright alleged that he struggled with this accusation and
dealt with it by taking drugs in junior high school. Bright further
stated that he had no animosity toward his grandparents and had no
understanding of how he could have killed them.
Bright contended in his motion that his only
defense on the merits of the case was his mental condition at the
time of the killings and that he would ask for a verdict of not
guilty by reason of insanity or of guilty but mentally ill. Bright
further contended that the foregoing factors demonstrated that at
the death penalty phase of the trial he needed to present evidence
as to his mental condition, mental history, drug abuse, his social
history, and his neurological history as mitigating factors.
2 Bright contended that he needed
expert assistance at the guilt and penalty phases of his trial to
effectively defend his case.
In his motion, Bright named a neurologist who,
according to Bright, was available to give Bright a neurological
examination to investigate whether there was physical damage to
Bright's brain and that his fee was $120 for a preliminary
examination, $500 for a CT scan, and $200 for an EEG test. Bright
also named a toxicologist who would be available to testify
regarding the effect of crack cocaine on Bright's central nervous
system and his mental condition and who would charge $400 to review
records and $150 per hour to testify, with the testimony, including
travel time, to take approximately six hours. Bright also listed the
name of a clinical psychologist who, Bright stated, would conduct a
full examination of Bright's mental condition for $640 and testify
for $150 per hour, with the testimony to last about two hours.
Finally, Bright stated that, without experts in the areas of
neurology, psychology, and toxicology, he would not be able to
present a defense at the guilt or punishment phases of the trial.
(b) Pursuant to Brooks v. State,
259 Ga. 562, 563-566 (2) (385
SE2d 81) (1989), a defendant who contends that he or she is
entitled to obtain expert assistance at public expense is entitled
to have an ex parte hearing on the motion. The trial court held an
ex parte hearing on Bright's motion on May 18, 1990. Immediately
before the ex parte hearing, the trial court held a hearing pursuant
to Uniform Superior Court Rules 31.4 and 31.5. Those rules require,
among other things, that a defendant give a prosecutor notice of his
intent to raise an insanity defense at trial, which Bright did in
the instant case. In essence, as a result of the two hearings, the
trial court required Bright to submit to an evaluation by a state
employed psychiatrist pursuant to OCGA
17-7-130.13 (hereinafter
referred to as the "court expert" or "court psychiatrist"), but
denied Bright's motion to obtain expert assistance at public
expense. The court did, however, state that after the court
psychiatrist's report came back, the court would consider whether
that report contained any information indicating that Bright needed
expert assistance at public expense. The court's written order
pursuant to 17-7-130.1 ordered the
Department of Human Resources to conduct an examination of Bright
and to provide to the court, to Bright's lawyer, and to the District
Attorney a report regarding Bright's competency to stand trial and
his mental capacity to distinguish between right and wrong at the
time of the alleged crimes. 4
Bright refused to cooperate with the court expert
and never obtained expert assistance to assist him at trial.
(c) Bright contends that he made the required
showing for funds to obtain expert assistance under Ake v. Oklahoma,
470 U. S. 68 (105 SC 1087, 84 LE2d 53) (1985), and Roseboro v. State,
258 Ga. 39 (365 SE2d 115) (1988), and
that the trial court erred by denying his motion.
We turn now to a discussion of the requirements
of Ake and Roseboro. In Ake, the Supreme Court held that when a
defendant carries his burden to show that his sanity
will be a significant factor at trial, the State
must, at a minimum, assure the defendant access to a competent
psychiatrist who will conduct an appropriate examination and assist
in evaluation, preparation, and presentation of the defense.
Ake, 470 U. S. at 83. Although the Court in Ake
stated that an indigent defendant does not have a right to a
psychiatrist of his own choosing or to receive funds to hire his own,
the Court made clear that the state had to provide access to a
psychiatrist that would satisfy the purposes set forth in the
opinion. Id. at 83. Those purposes entail the psychiatrist's
assistance in preparing all aspects of the defense relating to the
defendant's mental condition. The court also explained that the
right to expert assistance applies, when appropriate, to the
sentencing phase of capital proceedings. Id. at 83-84. Accord
Christenson v. State, 261 Ga. 80, 83 (402
SE2d 41) (1991). Similarly, Ake counsels that the appointment
of neutral psychiatrists whom either the state or the defense may
question does not satisfy the requirements of due process. Id. at
84-85.
In Roseboro, we held that
[a] motion on behalf of an indigent criminal
defendant for funds with which to obtain the services of a
scientific expert should disclose to the trial court, with a
reasonable degree of precision, why certain evidence is critical,
what type of scientific testimony is needed, what that expert
proposes to do regarding the evidence, and the anticipated costs for
services. Lacking this information, a trial court will find it
difficult to assess the need for assistance.
Roseboro, 258 Ga. at 41.
Roseboro dealt with a request for funds for non-psychiatric
expert assistance. However, this Court, as well as the federal cases
on which this Court relied for our holding in Roseboro, has noted
that the requirements of Roseboro are a corollary of the due process
principles of Ake. Tatum v. State, 259 Ga.
284, 286 (380 SE2d 253) (1989);
Moore v. Kemp, 809 F2d 702, 717-718 (11th Cir. 1987) (en banc), cert.
denied, 481 U. S. 1054 (107 SC 2192, 95 LE2d 847) (1987); Little v.
Armontrout, 835 F2d 1240, 1243-1244 (8th Cir. 1987) (en banc), cert.
denied, 487 U. S. 1210 (108 SC 2857, 101 LE2d 894) (1988). See also
Brooks, 259 Ga. at 565.
(d) Before evaluating the merits of Bright's
motion for expert assistance under the foregoing standards, we
address the state's contention that Bright's failure to cooperate
with the court psychiatrist waived his right to contend on appeal
that the trial court erred by denying his motion. We find no merit
to this position.
First, we note that
17-7-130.1 deals only with an insanity defense and thus does
not apply to Bright's motion for expert assistance for sentencing.
In addition, even if it did apply to sentencing,
there is no authority for denying a defendant's motion for funds
pursuant to Ake solely on the ground he did not cooperate with a
court expert appointed under 17-7-130.1.
First, 17-7-130.1 is simply
inapplicable to an Ake motion for funds. Ake concerns whether a
defendant is entitled to expert assistance at public expense to
assist him in preparing his defense. To obtain that assistance, the
defendant has the burden to make a preliminary showing that his
sanity will be a significant issue at trial. On the other hand,
17-7-130.1 is designed to give the
state a fair opportunity at trial to counteract the defendant's
expert testimony. See Motes v. State, 256 Ga.
831 (353 SE2d 348) (1987); Estelle v. Smith, 451 U. S. 454
(101 SC 1866, 68 LE2d 359) (1981). Thus, contrary to Justice
Carley's assertion in his dissent, p. 289,
17-7-130.1 is not designed to assist in making the
preliminary determination "whether sanity will be a significant
factor at trial."
Moreover, as Ake squarely places the burden on
the defendant to make a preliminary showing that his sanity will be
a significant factor at trial, the defendant has the concomitant
right to meet that preliminary burden in any manner he chooses. The
defendant may do so by presenting his own evidence that he believes
meets his preliminary burden under Ake. On the other hand, the
defendant may, if he chooses, submit to an examination by a court
expert. If a defendant chooses to have his motion stand or fall on
his own evidence, the trial court does not have the authority to
deny his Ake motion solely on the ground that he did not submit to a
court expert and without an evaluation of whether the defendant's
own evidence met his preliminary burden. If, however, the trial
court finds a defendant's evidence does not meet his preliminary
burden, there is nothing to preclude the trial court from
preliminarily denying the defendant's Ake motion, but informing the
defendant that the court will further consider the Ake motion if the
defendant cooperates with a court expert and that expert's report
indicates the defendant's sanity will be a significant issue at
trial.
Further, as Ake and Brooks v. State, 259 Ga. at
565, expressly provide that a hearing on a defendant's motion for
expert assistance must, as a matter of due process, be conducted in
secret, it is clear that trial courts may not condition a ruling on
a defendant's Ake motion on the defendant's cooperation with a court
expert appointed pursuant to 17-7-130.1.
5
This conclusion is also supported by our decision
in Motes v. State, 256 Ga. at 832-833, which concerns the effect of
a defendant's filing of a notice of intent to raise a defense of
insanity. In that case, this Court expressly held that "OCGA
17-7-130.1 does not provide for
sanctions against a defendant who refuses to cooperate with the
court's expert." We next addressed the holding of Estelle v. Smith,
451 U. S., supra, "that a defendant who introduces expert
psychiatric testimony in support of an insanity defense, waives his
right to remain silent to the extent that he must make himself
available to the state's psychiatric expert for examination." Motes,
256 Ga. at 832. We held "that Estelle in no way holds that the
assertion of an insanity defense will result automatically in the
absolute waiver of the right to remain silent." Id. Instead, we held
that Estelle stands for the proposition that "if a defendant wants
to introduce expert testimony," he must allow the state the same
opportunity by cooperating with a state expert. Motes, 256 Ga. at
833. Motes thus stands for the propositions that
17-7-130.1 does not provide for
sanctions against a defendant who refuses to cooperate with a court
expert, that the filing of a notice of intent does not automatically
result in the absolute waiver of the right to remain silent, but
that a defendant who desires to introduce expert testimony at trial
must cooperate with a court expert in order to give the state an
opportunity to rebut the defendant's expert testimony.
As the foregoing discussion illustrates, it is
clear that a defendant has the right to have his Ake motion decided
in secret based on the evidence he presents in support of it. The
question is when must a defendant who has filed an Ake motion for
funds and who has filed a notice of intent to raise the defense of
insanity be evaluated by a court expert under
17-7-130.1. Motes does not purport to answer this question;
it simply provides that a defendant who desires to introduce expert
testimony must cooperate with a state's expert. We must therefore
devise a solution that honors the competing interests of Ake and
17-7-130.1. In recognition of a
defendant's rights under Ake to have a fair opportunity to present a
defense of insanity and to initially prepare that defense in secret,
we conclude that a defendant who obtains expert assistance under Ake
need not submit to an examination of a state expert until he has had
an opportunity to decide whether to present expert assistance at
trial. However, in recognition of the state's interest under
17-7-130.1 to have an opportunity to
rebut a defendant's expert testimony at trial, the defendant must
cooperate with the court expert in time for the state to adequately
prepare its evidence in response to the defendant's expert testimony.
If the defendant does not, then a trial court would be authorized to
preclude the defendant from presenting his own expert evidence.
For the foregoing reasons, Bright is not
procedurally barred from contending that the evidence he offered in
support of his motion was sufficient to meet the requirements of Ake
and Roseboro. In this regard, if Bright had obtained independent
expert assistance and still refused to cooperate with the state's
expert, the remedy would have been for the trial court to deny
Bright the right to present expert testimony at his trial. Motes,
256 Ga. at 832-833.
(e) We turn now to the issue whether Bright met
his preliminary burden of demonstrating his need for a psychiatrist,
a neurologist, and a toxicologist at the guilt and punishment phases
of his trial.
With respect to the guilt phase, we conclude that
Bright did not make an adequate showing. At the guilt phase of the
trial, Bright could possibly have used expert assistance to
establish an insanity defense or a voluntary intoxication defense.
To establish an insanity defense, Bright would have had to show that
he did not have the ability to distinguish between right and wrong
at the time of the alleged crimes.
To establish a voluntary intoxication defense,
Bright would have had to show that the intoxication had "resulted in
the alteration of brain function so as to negate intent. Even then,
the brain function alteration must be more than temporary." Horton
v. State, 258 Ga. 489, 491 (371
SE2d 384) (1988). Accord Hayes v. State,
262 Ga. 881, 883 (426
SE2d 886) (1993).
Although Bright offered evidence of a serious
history of drug abuse, of depression stemming from guilt over past
actions, of drug abuse on the night of the crimes, and of a troubled
family history, this evidence does not demonstrate by itself an
inability to distinguish between right and wrong or a permanent
brain function alteration.
Moreover, when considered with the evidence that
Bright is of average intelligence, has a good memory, suffers from
no hallucinations or illusions, has good continuity of thought, and
was aware of his substance abuse and expressed his desire for help,
we cannot conclude that the foregoing evidence adequately
demonstrated that Bright's mental condition, that is, his inability
to distinguish right from wrong or his inability to form the intent
necessary for the crime due to a permanent alteration of brain
function, would be a significant issue at the guilt phase of the
trial.
In addition, the evidence of head injuries that
Bright suffered as a child, coupled with the study published in the
American Journal of Psychiatry, does not demonstrate that any
neurological impairment of Bright would be a significant issue at
the guilt phase of the trial. To conclude that neurological
impairment would be a significant issue would amount to sheer
speculation in light of the evidence at the ex parte hearing of
Bright's cognitive abilities.
For these reasons, we conclude that the trial
court did not err by denying Bright's request for a psychiatrist,
neurologist, or toxicologist to assist at the guilt phase of the
trial.
We reach a different conclusion with regard to
the punishment phase. At the outset, we note that the determination
whether expert assistance is required at the penalty phase requires
consideration of a different set of factors than the determination
whether expert assistance is necessary at the guilt phase.
Regarding the evidence that is admissible in
mitigation at the sentencing phase of a death penalty case, this
Court has held as follows:
In this state, juries are not required to balance
aggravating circumstances against mitigating circumstances. Rather,
the death sentence may be considered only if the state establishes
beyond a reasonable doubt at least one of the statutory aggravating
circumstances set forth in OCGA 17-10-30,
and if such a circumstance is established, the jury nonetheless "may
withhold the death penalty for any reason, or without any reason."
Smith v. Francis, 253 Ga. 782, 787 (325
SE2d 362) (1985).
Ford v. State, 257 Ga. 461,
464 (360 SE2d 258) (1987).
This court . . . has consistently refused to
place unnecessary restrictions on the evidence that can be offered
in mitigation at the sentencing phase of a death penalty case. See,
e.g., Brooks v. State, 244 Ga. 574,
584 (261 SE2d 379) (1979); Cobb v.
State, 244 Ga. 344 (28) (260 SE2d 60) (1979);
Spivey v. State, 241 Ga. 477, 479 (246
SE2d 288) (1979); Brown v. State, 235
Ga. 644 (3) (220 SE2d 922) (1975). See also Lockett v. Ohio,
438 U. S. 586, 604 (98 SC 2954, 57 LE2d 973) (1978), which held that
"the Eighth and Fourteenth Amendments require that the sentencer, in
all but the rarest kind of capital case, not be precluded from
considering as a mitigating factor, any aspect of a defendant's
character or record and any of the circumstances of the offense that
the defendant proffers as a basis for a sentence less than death." (Emphasis
in original, footnotes omitted.) In Cofield v. State,
247 Ga. 98 (7) (274 SE2d 530) (1981),
we held that, whether or not Lockett v. Ohio, supra, required it, in
Georgia, a mother's testimony that she loved her son and did not
wish to see him executed was admissible in mitigation in a death
penalty case.
Romine v. State, 251 Ga.
208, 217 (305 SE2d 93) (1983).
In Romine, 251 Ga. at 217-218, we went on to conclude that a
grandfather's testimony of his desire not to see his grandson
executed should have been admitted into evidence at the sentencing
phase of the trial. Id. at 464.
In a similar vein, the United States Supreme
Court has stated that
[w]hile the prevailing practice of
individualizing sentencing determinations generally reflects simply
enlightened policy rather than a constitutional imperative, we
believe that in capital cases the fundamental respect for humanity
underlying the Eighth Amendment, [cit.], requires consideration of
the character and record of the individual offender and the
circumstances of the particular offense as a constitutionally
indispensable part of the process of inflicting the penalty of death.
Woodson v. North Carolina, 428 U. S. 280, 304 (96
SC 2978, 49 LE2d 944) (1976).
Thus, it has been held that even if a defendant
can distinguish between right and wrong, evidence of a diminished
capacity to fully appreciate the "cruelty and gravity of his acts,"
Starr, 23 F3d at 1293, is critical at the penalty phase of a capital
case "because in our system of criminal justice acts committed by a
morally mature person with full appreciation of all their
ramifications and eventualities are considered more culpable than
those committed by a person without that appreciation." Id. at 1290.
Several federal courts have held that evidence of
drug and alcohol abuse constitutes some evidence of impaired ability
so as to constitute mitigating evidence. Smith, 914 F2d at
1167-1168; Jeffers v. Lewis, 5 F3d 1199, 1204 (9th Cir. 1992);
Hargrave v. Dugger, 832 F2d 1528, 1534 (11th Cir. 1987). In fact,
the U. S. Supreme Court in Parker v. Dugger, 498 U. S. 308 (111 SC
731, 736-737, 112 LE2d 812) (1991), also stated that a defendant's
evidence of intoxication could serve as a mitigating factor
authorizing a life sentence.
Here, we need not decide whether evidence of
isolated drug or alcohol abuse would entitle a defendant to
independent expert assistance at public expense, for we conclude
that Bright's evidence regarding his depression, suicidal thoughts,
poor impulse control, severe drug dependency, and severe intake of
drugs and alcohol on the night of the crimes is sufficient, in
combination with the fact that he contends that he impulsively
murdered two grandparents with whom he had a good relationship, to
meet his burden to show that his capacity to understand the cruelty
of the acts he committed on his grandparents would be a significant
issue at the penalty phase of the trial. 6
Moreover, we conclude that an expert would have
been of assistance to Bright in preparing evidence in mitigation. It
has been stated that "[i]f [a] witness has special knowledge in any
area so that his opinion could aid the jury, he should be qualified
as an expert," Rumsey, Agnor's Ga. Evid. (3rd ed.), 9-5, and that
the proper "subjects of expert testimony are too numerous to mention,"
id. In this case, the issue is whether the experts Bright sought
could have aided Bright by assisting lay jurors in making an
educated determination of Bright's capacity to control and
understand his actions at the time he committed the crimes.
We conclude that the toxicologist and the
psychiatrist could have provided valuable assistance to Bright. A
toxicologist could have scientifically evaluated the effects of a
history of cocaine abuse, as well as the severe abuse of drugs and
alcohol on the night of the murders, on Bright's mental condition.
Similarly, a psychiatrist could have evaluated, in terms beyond the
ability of the average juror, Bright's ability to control and fully
appreciate his actions in the context of the events that arose on
the night of the murders, given his severe intoxication, his history
of substance abuse, his troubled youth, and his emotional
instability. We reach a different conclusion, however, with regard
to Bright's request for a neurologist, finding that Bright has not
demonstrated how a neurologist would have been of assistance with
regard to the foregoing issues.
Finally, although at sentencing Bright did rely
on his own testimony from the guilt-innocence phase of the trial
regarding his intoxicated condition on the evening of the murders,
and although he possibly could have offered other non-expert
evidence regarding his history of drug abuse, his intoxication on
the evening of the crimes, his emotional troubles, and his troubled
youth, Bright's testimony, as would have any other non-expert
evidence he could have offered, only in artfully covered the issues
in question and did not provide Bright with the meaningful
scientific and psychiatric evidence that a defendant with money
could have offered in his defense.
For the foregoing reasons, we hold that the trial
court erred by failing either to grant Bright funds to hire the
experts he had contacted or to appoint equivalent experts of the
court's own choosing.
(f) As evidence of diminished capacity would have
provided perhaps Bright's sole defense at sentencing and as the
experts in question could have assisted Bright in that defense, we
conclude that the trial court committed harmful error in failing to
appoint a psychiatrist and toxicologist or to grant Bright funds to
hire ones of his own choosing. See Starr, 23 F3d at 1293.
3. In his second enumeration of error, Bright
contends the trial court's charge on voluntary intoxication
impermissibly relieved the state of the burden of proof on the
element of intent.
The trial court's charge on voluntary
intoxication was as follows:
Our law provides that voluntary intoxication
shall not be an excuse for any criminal act. It provides further
that if a person's mind, when unexcited by intoxicants, is capable
of distinguishing between right and wrong and reason and acting
rationally, and he voluntarily deprives himself of reason by
consuming intoxicants and while under the influence of such
intoxicants, he commits a criminal act, he is criminally responsible
for such act to the same extent as if he were sober. Whether or not
the defendant was voluntarily intoxicated at or during the time
alleged in this indictment is a matter solely for you, the jury, to
determine.
Relying on State v. Erwin, 848 SW2d 476 (Mo.
1993), Bright contends that this charge effectively instructed the
jury that if it found that Bright was voluntarily intoxicated, it
had to find that Bright intended his criminal conduct, regardless of
whether the state had otherwise met its burden of proving intent.
Bright contends the charge thus impermissibly relieved the state of
proving the element of intent. Although the four to three decision
in Erwin supports Bright's contention, we disagree with the
reasoning of the majority in Erwin.
We find nothing in the instruction from which a
juror could conclude that a defendant is criminally responsible for
his conduct simply as a result of his voluntary intoxication.
Instead, this instruction, coupled with the standard instruction on
the state's burden of proving the defendant acted with the requisite
intent, informs a jury that if the state has proven intent, the
defendant cannot be excused from his conduct based upon his
voluntary intoxication. See Erwin, 848 SW2d at 485
7(dissenting opinion).
For this reason, we find no merit to this
enumeration of error.
4. We find no merit to Bright's fourth
enumeration of error, in which he contends that the fact that he did
not have a preliminary hearing requires that we reverse his
conviction. State v. Middlebrooks, 236 Ga. 52,
54 (222 SE2d 343) (1976) ("in no event
will we overturn a conviction on direct appeal or on collateral
attack because a commitment hearing was denied appellant"); Cargill
v. State, 255 Ga. 616, 621-622 (1) (340
SE2d 891) (1986); Corn v. State, 142
Ga. App. 798 (2) (237 SE2d 203) (1977).
5. In his fifth, sixth, and seventh enumerations
of error, Bright contends that the court erred in denying his
motions to suppress evidence. We address each of these in turn.
(a) On the evening of the murders, after the
victims were discovered, one of the victims' neighbors told police
that she had seen a car matching the description of Bright's
mother's car at the scene of the murders, and that she had seen
there a man whom she believed to be the victims' grandson or nephew.
Bright's mother confirmed the description of her car and told police
that Bright had taken the car without permission. Bright's brother
told police that Bright could have hurt his grandparents. Based on
this information, the investigating officers issued a lookout for
Bright's mother's car, asking that Bright be stopped for questioning.
Later, an officer identified the car and called
for backup. After backup arrived, the officer stopped the car, and
Bright got out. The officer asked Bright for identification. Bright
reached under the seat of the car, whereupon the officer drew his
gun. The officer asked Bright to raise his hands, and upon seeing
that Bright was not holding a weapon, the officer put his gun away.
The officer then frisked Bright. Meanwhile, another officer
discovered on the window ledge outside the door of the car an object
which the officer recognized to be a crack pipe containing residue
of crack cocaine. The second officer placed Bright under arrest for
possession of a controlled substance.
After Bright was arrested, the police obtained
various physical items from Bright's body and car, including blood-stained
money and clothing. The police also obtained statements from Bright
following his arrest. Bright contends that the statements and
physical evidence should have been suppressed as the fruits of an
illegal seizure. Specifically, he argues that the initial stop and
seizure, before discovery of the alleged crack pipe, constituted an
arrest for which the police lacked probable cause. He further
contends that the subsequent discovery of alleged drug paraphernalia
did not justify arrest, solely or in combination with the police
officer's subjective assessment that residue on the pipe was crack
cocaine.
The court did not err in denying the motion to
suppress. The initial stop and brief detention of Bright was not
tantamount to an arrest. A stop pursuant to a lookout requires, not
probable cause, but only specific and articulable facts which,
together with rational inferences drawn therefrom, reasonably
warrant the intrusion. McGhee v. State, 253
Ga. 278, 279 (319 SE2d 836)
(1984); Brisbane v. State, 233 Ga. 339,
341-342 (211 SE2d 294) (1974). The
police, after speaking with Bright's family members and neighbors of
the victims, had ample specific and articulable facts to justify the
stop. That the officer called for backup and at one point drew his
gun does not transform the stop into an arrest under the
circumstances of this case. See State v. Grimes,
195 Ga. App. 773, 775 (395
SE2d 42) (1990); Walton v. State, 194
Ga. App. 490, 492 (390 SE2d 896)
(1990). The officer's subsequent observation of a crack pipe and of
crack cocaine residue on the pipe was probable cause for the arrest
for possession of a controlled substance. See Scott v. State,
201 Ga. App. 162, 164 (410
SE2d 362) (1991); Gibson v. State, 193
Ga. App. 450, 450-452 (388 SE2d 45)
(1989). The officer testified to his familiarity with such residue.
Bright's reliance upon State v. Casey, 185 Ga.
App. 726, 727 (365 SE2d 878)
(1988), is misplaced, because that case involved suspected marijuana
residue on an ordinary tobacco pipe, not cocaine residue on a
distinctive crack pipe.
(b) Bright next contends that the court erred in
denying his motion to suppress several of his custodial statements
on the ground that his first inculpatory statement, taken 16 hours
after his arrest, was involuntary, and his subsequent statements
were the fruits of the original involuntary statement. Bright states
that he was incapable of giving a voluntary statement, or of waiving
his Miranda rights, because he had been awake for 34 hours; he was
subjected to unceasing interrogation from the time of his arrest;
the police had made misleading and coercive statements to him,
including threatening him with the possibility of a death sentence;
he had not consulted family, friends or an attorney; he was under
considerable stress and distraught; and he was suffering from the
effects of cocaine and alcohol withdrawal.
Bright also complains that, during the
interrogation, he was traumatized by being taken to the scene of the
murders, where he and the officers sat in an unmarked car at a
distance from the scene for one and one-half to two hours, waiting
for the media to leave. Bright argues that although mental
instability is not in itself sufficient to render a confession
involuntary, because of his mental instability, he was particularly
vulnerable to coercive police tactics.
The state bears the burden of demonstrating the
voluntariness of a confession by a preponderance of the evidence.
Lego v. Twomey, 404 U. S. 477, 489 (92 SC 619, 30 LE2d 618) (1972);
Maggard v. State, 259 Ga. 291, 292 (380
SE2d 259) (1989). The trial court's findings of fact and
credibility after a Jackson v. Denno hearing are to be accepted
unless clearly erroneous. Sanborn v. State,
251 Ga. 169, 170 (304 SE2d 377)
(1983). Evidence was presented in the Jackson v. Denno hearing that
there were many breaks in Bright's interrogation, that he did not
appear tired and said he was not tired, that he declined to make
telephone calls, that he was given food, drink and cigarettes, that
he did not appear to be under the influence of drugs or alcohol, and
that he appeared to be thinking clearly. Evidence was also presented
that the police officers made no coercive statements to Bright, that
Bright consented to go to the crime scene, and that the officers
left the scene with Bright at his request. Even if Bright had been
exhibiting symptoms of drug withdrawal, that fact does not render
his statements involuntary. See Holcomb v. State,
254 Ga. 124, 126-127 (326
SE2d 760) (1985); Fields v. State, 232
Ga. 723, 724 (208 SE2d 822)
(1974). Because the evidence supports the trial court's finding that
Bright's statement was voluntary, we find no error in the trial
court's ruling. See Head v. State, 262 Ga.
795, 797 (426 SE2d 547) (1993);
Blackwell v. State, 259 Ga. 810, 811 (388
SE2d 515) (1990).
(c) The court likewise did not err in denying the
motion to suppress two statements made by Bright outside the
presence of counsel after an attorney had been appointed to
represent him. The evidence presented to the trial court supported
the conclusion that on both occasions Bright initiated the contacts,
was advised of his rights and made a valid waiver of his rights. As
this Court stated in Roper v. State, 258 Ga.
847 (375 SE2d 600) (1989), cert. denied, Georgia v. Roper,
493 U. S. 923 (110 SC 290, 107 LE2d 270) (1989), once an accused in
custody invokes his right to counsel, he should not be interrogated
further without counsel present, "unless the accused himself
initiates further communication, exchanges or conversations with the
police." Id. at 849. Where, as here, the accused initiates further
discussions and knowingly and intelligently waives his Miranda
rights, he may be interrogated further even if he has made a
previous unequivocal request for counsel. Brockman v. State,
263 Ga. 637, 639 (436
SE2d 316) (1993); Guimond v. State,
259 Ga. 752, 754 (386 SE2d 158)
(1989); Housel v. State, 257 Ga. 115,
121-122 (355 SE2d 651) (1987).
6. Contrary to Bright's contention in his ninth
enumeration of error, the court did not err in denying the defense
the opportunity to review before trial photographs of the crime
scene, of Bright, and of the victims at the crime scene and during
autopsy; and in denying the defense use of the photographs during
the suppression hearing. There is no general right to discovery in a
criminal case. Pruitt v. State, 258 Ga. 583,
585 (373 SE2d 192) (1988), cert.
denied, 493 U. S. 1093 (110 SC 1170, 107 LE2d 1072) (1990). A
criminal defendant may not use a notice to produce to secure review,
in advance of a trial or evidentiary hearing, of the district
attorney's file. Gilstrap v. State, 256 Ga.
20, 21 (342 SE2d 667) (1986).
In a criminal case, a notice to produce pursuant to OCGA
24-10-26 may compel production of
evidence needed for use on behalf of the defendant. Id.; Sims v.
State, 251 Ga. 877, 879-880 (311
SE2d 161) (1984). Bright has made no showing that the
photographs would have helped his defense or that the outcome of
trial would have been any different had the photographs been
disclosed prior to trial. 8
7. The court did not abuse its discretion in
denying Bright's motion to sever the cocaine charge from the murder
charges. Two or more offenses may be joined in one charge when the
offenses are based on the same conduct or on a series of acts
connected together or constituting parts of a single scheme or plan
and where it would be almost impossible to present to a jury
evidence of one of the crimes without permitting evidence of the
other. Stewart v. State, 239 Ga. 588,
589 (238 SE2d 540) (1977); Dingler v.
State, 233 Ga. 462, 463 (211
SE2d 752) (1975). It is undisputed that Bright used crack
cocaine before and after the murders, that he spent the day of the
murders engaging in a series of acts to obtain money for drugs,
including selling his blood, clothing, and at least one item which
did not belong to him, and that he visited his grandparents for the
purpose of obtaining money to buy crack cocaine. Furthermore, Bright
blames the effects of crack cocaine for the murders. Therefore, the
trial court did not abuse its discretion in concluding that the
cocaine use and the murders were part of the same conduct and the
same continuous scheme to obtain more drugs. See Goughf v. State,
232 Ga. 178, 180-181 (205
SE2d 844) (1974).
For these reasons, we find no merit to Bright's
eighth enumeration of error.
8. In his tenth enumeration of error, Bright
contends that the trial court erred by failing to grant his motion
to excuse prospective juror Thompson for cause on the ground that
Thompson admitted having formed an opinion regarding Bright's guilt.
We find no error.
" 'When a prospective juror has formed an opinion
based on hearsay (as opposed to being based on his having seen the
crime committed or having heard the testimony under oath), to
disqualify such individual as a juror on the ground that he has
formed an opinion on the guilt or innocence of a defendant, the
opinion must be so fixed and definite that it would not be changed
by the evidence or charge of the court upon the trial of the case.'
[Cits.]" Waters v. State, 248 Ga. 355,
362 (283 S.E.2d 238) (1981).
Childs v. State, 257 Ga.
243, 250 (357 SE2d 48) (1987).
Accord Hall v. State, 261 Ga. 778, 781
(415 SE2d 158) (1991); Spivey v. State,
253 Ga. 187, 196-197 (319
SE2d 420) (1984).
As the prospective juror "testified that he could
set aside his opinion, accord the defendant his presumption of
innocence, and decide the case on the evidence presented at trial,"
Hall, 261 Ga. at 781, we hold that the trial court's ruling that the
juror was qualified is not clearly erroneous, see Hall, 261 Ga. at
781.
Bright also contends that four other jurors
should have been excused for cause because they had formed opinions
regarding Bright's guilt or made other statements indicating that
they could not fairly and impartially judge Bright's case. We
conclude that the record does not support these assertions of bias,
and that, in any event, Bright is procedurally barred from raising
this issue because he did not object to the qualification of these
jurors, see Blankenship v. State, 258 Ga. 43
(2) (365 SE2d 265) (1988); Whittington v. State,
252 Ga. 168, 173-174 (313
SE2d 73) (1984).
9. We find no merit to the contention, contained
in Bright's eleventh enumeration of error, that the trial court
improperly restricted Bright's voir dire of several jurors
concerning their ability to view gruesome photographs and his voir
dire of one juror regarding her ability to be impartial. See Spencer
v. State, 260 Ga. 640, 641 (398
SE2d 179) (1990); Baxter v. State, 254
Ga. 538, 543-544 (7) (331 SE2d 561)
(1985).
10. After the state and the defense had finished
with the third juror in the jury selection process, the defense made
an objection pursuant to Batson v. Kentucky, 476 U. S. 79 (106 SC
1712, 90 LE2d 69) (1986). The trial court informed defense counsel
that the proper time to make the challenge was after the selection
of the jurors was completed and that the court would hear any Batson
issue at that point. However, after the jury was selected, the trial
court asked defense counsel if there were any motions that he wished
to present. Defense counsel responded that there were not. The court
then specifically asked defense counsel if he had "anything on what
you said?" The defense counsel stated that he did not. The defense
did not subsequently make any Batson challenge. Under these
circumstances, we conclude that Bright's present Batson claim is not
timely made. See Brantley v. State, 262 Ga.
786, 789 (4) (427 SE2d 758)
(1993); State v. Sparks, 257 Ga. 97 (355 SE2d
658) (1987).
11. Contrary to Bright's assertion in his
fifteenth enumeration of error, we cannot conclude that the alleged
leading and conclusory questions asked by the prosecutor during voir
dire impaired the selection of an impartial jury. See Thornton v.
State, 264 Ga. 563, 573 (13) (c) (449
SE2d 98) (1994).
12. Bright filed a challenge to the jury pool on
the ground that young persons age 18 to 30 were underrepresented. In
his sixteenth enumeration of error, Bright contends that the trial
court erred by denying this challenge. We find no error, as the
record shows that Bright failed to prove both that young persons are
a cognizable group in Muscogee County at the present time and that
they have been consistently underrepresented. Potts v. State,
259 Ga. 812, 813 (1) (388
SE2d 678) (1990).
13. In Bright's seventeenth enumeration of error,
he contends that the evidence is insufficient to support his
conviction of possession of cocaine. When Bright was arrested he was
in possession of a pipe used to smoke crack cocaine. The state
offered evidence that showed that, although no useable cocaine was
in the pipe, the residue in the pipe was cocaine. The state also
offered evidence that Bright had smoked cocaine on the evening in
question. Bright contends that as there was no evidence of a useable
amount of cocaine, he may not be convicted of the possession thereof.
The law in this state is to the contrary. Partain v. State,
139 Ga. App. 325 (228 SE2d 292) (1976);
Lush v. State, 168 Ga. App. 740, 743
(6) (310 SE2d 287) (1983). Moreover,
contrary to Bright's contention, we conclude that there was
sufficient evidence of possession. See Griggs v. State,
198 Ga. App. 522, 523 (402
SE2d 118) (1991); Pittman v. State,
208 Ga. App. 211, 214 (430 SE2d 141)
(1993). This evidence is sufficient to support Bright's conviction
for possession of cocaine. Jackson v. Virginia, supra.
14. As Bright failed to object to the trial
court's admission of certain physical evidence on the ground that
the state failed to establish a chain of custody, Bright is
procedurally barred from raising that issue now. See Earnest v.
State, 262 Ga. 494, 495 (422
SE2d 188) (1992). Moreover, Bright failed to object to a
police detective's testimony that there was blood on the physical
evidence in question. He therefore may not raise this issue on
appeal. Id. Accordingly, we find no merit to Bright's eighteenth
enumeration of error.
15. In his nineteenth enumeration of error,
Bright contends that the state impermissibly placed his character
into evidence on three occasions. The first concerns the testimony
of the state's fingerprint expert that he compared a fingerprint
taken from the crime scene with a fingerprint card on Bright on file
at the police department from a previous arrest. Bright, however,
failed to object to this testimony and is procedurally barred from
raising this issue on appeal. Earnest, 262 Ga. at 495. Bright also
contends that the trial court erred by admitting the previous
fingerprint card into evidence and sending it out with the jury.
However, as any information regarding prior criminal activity was
redacted from the card, there was no error. See Williams v. State,
184 Ga. App. 124, 125 (361
SE2d 15) (1987); McGuire v. State, 200
Ga. App. 509, 510 (2) (408 SE2d 506)
(1991). Finally, Bright contends that the trial court erred by
admitting one of his statements into evidence without redacting a
part of the statement in which Bright mentioned that he was on
parole at the time of the crimes in this case. Again, however,
Bright failed to object to this testimony at trial and is thus
procedurally barred from raising the issue on appeal. Earnest, 262
Ga. at 495.
16. We find that the trial court did not abuse
its discretion in admitting into evidence allegedly cumulative,
gruesome photographs of the deceased victims. Osborne v. State,
263 Ga. 214, 215 (2) (430
SE2d 576) (1993); Isaac v. State, 263
Ga. 872, 873 (440 SE2d 175)
(1994); Brantley v. State, 262 Ga. 786,
792 (427 SE2d 758) (1993). Contrary to
Bright's contention, none of the photographs were autopsy
photographs depicting alterations of the victims' bodies by the
state. See Brown v. State, 250 Ga. 862,
866 (5) (302 SE2d 347) (1983). For
these reasons, we find no merit to Bright's twentieth enumeration of
error.
17. Contrary to Bright's twenty-first enumeration
of error, we conclude that Bright was not denied a fair trial by
appearing at trial in allegedly wrinkled civilian clothing. Compare
Estelle v. Williams, 425 U. S. 501 (96 SC 1691, 48 LE2d 126) (1976)
(state cannot force accused to stand trial in identifiable prison
clothing).
18. In his twenty-second enumeration, Bright
contends that he was denied the right to a fair and impartial judge.
The trial judge's law clerk had been an assistant district attorney
at the time of the murders through the pendency of this case, was
employed by the court less than two months before trial, and had
accepted an offer to return to the district attorney's office while
the motion for new trial was still pending. Bright contends that
these facts give rise to an appearance of impropriety, and that
therefore, the trial judge should have been disqualified from
presiding over the trial or, at the very least, from presiding over
the motion for a new trial.
In a hearing on this issue before a separate
judge, the uncontradicted evidence showed that the law clerk never
worked on Bright's case as an assistant district attorney or as a
law clerk. Therefore, this issue is controlled by Todd v. State,
261 Ga. 766, 773 (410
SE2d 725) (1991), cert. denied, ---- U. S. ---- (113 SC 117,
121 LE2d 73) (1992), and we find no error.
19. Bright contends that the prosecution's
closing arguments in both phases of trial were inflammatory,
misleading and prejudicial. Because we reverse the sentence on other
grounds, issues relating to the sentencing phase argument are moot.
Therefore, we address only those issues relating to the
prosecution's argument in the guilt-innocence phase of trial.
(a) In closing argument in the guilt-innocence
phase, the prosecutor made the following statements:
[I]t's easy to tell that this is an important
case. It's a case that we get few of down here, and it's one of the
most horrible cases we've ever had down here in this courtroom; . .
. This case is the most horrible situation that I submit we've had
down here in my time.
Bright failed to raise any objections at trial to
this portion of the closing argument. Therefore, the test for
reversible error is whether the argument, even if improper, in
reasonable probability changed the result of trial. Thornton v.
State, 264 Ga. at 568; Todd v. State, 261 Ga. at 767. Because of the
overwhelming evidence of guilt that was presented at trial,
including Bright's own testimony, we conclude that, even assuming
the argument was objectionable, there is no reversible error.
(b) The record does not support Bright's
contention that the prosecutor attempted to inflame the jurors'
emotions by calling attention to photographs of the victims' bodies.
The state's use of the photographs as evidence of the number and
location of wounds was proper. Isaac v. State, 263 Ga. at 873.
(c) Bright contends that the state improperly
attempted to shift the burden of proof by repeatedly referring in
the guilt-innocence phase argument to the failure of the defense to
offer evidence of innocence. However, the state may properly draw
inferences in argument from the nonproduction of witnesses. Isaac,
263 Ga. at 874; McGee v. State, 260 Ga. 178,
179 (391 SE2d 400) (1990). Bright made
no attempt at trial to rebut the state's evidence of guilt; on the
contrary, he admitted guilt. Therefore, we find no error.
Bright further contends that the prosecutor
misstated the law by arguing that "it's impossible to stab somebody
without having the intent to do it. . . . [T]he mere fact that he
did it shows he had the intent." The defense did not object to this
portion of the argument at trial, and we find no reasonable
probability that the comment changed the outcome of the trial.
20. The court did not err in admitting, at the
sentencing phase of trial, evidence of Bright's prior convictions.
It is true that "once the defendant raises the issue of intelligent
and voluntary waiver with respect to prior guilty pleas, the burden
is on the state to establish a valid waiver." Pope v. State,
256 Ga. 195, 209-210 (345
SE2d 831) (1986). However, Bright's prior convictions were
admitted without objection or motion to exclude. Therefore, the
issue whether his guilty pleas underlying the convictions were valid
was never raised, and it was not incumbent upon the state to offer
evidence that the pleas were entered intelligently, knowingly and
voluntarily.
21. Bright complains that the court erred in
denying certain requests to charge the jury in the sentencing phase.
The primary basis of Bright's claim of error is that certain charges
which were given in the guilt-innocence phase, but which would not
apply in the sentencing phase, may have left the jury with
misimpressions regarding the law to be applied in the sentencing
phase. Bright sought to correct any misimpressions with the offered
charges. Because we reverse the sentence, and a new jury will sit
for retrial of the sentencing phase, these issues are moot.
22. As the evidence supports the jury's finding
of statutory aggravating circumstances, OCGA
17-10-30 (b) (2) and (b) (7), 9
the state may again seek the death penalty. See Moore v. State,
263 Ga. 11, 14 (9) (427
SE2d 766) (1993). Because of the reversal of Bright's
sentence of death as set forth in Division 2 of this opinion, we
need not address Bright's remaining enumerations of error concerning
the sentencing phase of his trial.
CARLEY, Justice, concurring in part and
dissenting in part.
The majority affirms Bright's convictions, but
concludes that his death sentences must be reversed because the
trial court refused to grant the motion seeking funds for
psychiatric assistance pursuant to Ake v. Oklahoma, 470 U. S. 68
(105 SC 1087, 84 LE2d 53) (1985). I concur in the affirmance of
Bright's convictions, but must respectfully dissent to the reversal
of his death sentences.
Under Ake, supra at 83, funds for expert
psychiatric assistance are available only to a defendant who has
made a preliminary showing in the trial court that his sanity will
"be a significant factor at trial. . . ." To facilitate this
determination, "[t]he trial court is authorized to order a
psychiatrist, or perhaps some other competent mental health expert,
to examine the defendant. . . ." Lindsey v. State,
254 Ga. 444, 449 (330
SE2d 563) (1985) (Addendum). In addition to his motion
seeking funds for expert assistance pursuant to Ake, Bright also
filed notice of his intent to raise an insanity defense. Thus,
pursuant to OCGA 17-7-130.1, the trial
court appointed a psychiatrist "to examine [him] and to testify at
the trial." Tolbert v. State, 260 Ga. 527,
528 (2) (b) (397 SE2d 439) (1990).
Despite the majority's reasoning, there is no authority which would
preclude the trial court from ordering that the psychiatrist
appointed to examine Bright pursuant to his notice under OCGA
17-7-130.1 also address the additional
issue of whether Bright's sanity was likely to be a significant
factor in his defense pursuant to his Ake motion. See Lindsey v.
State, supra at 449 (Addendum). It necessarily follows that it was
not error for the trial court to deny Bright's Ake motion until such
time as the court-appointed psychiatrist had addressed the issue of
whether Bright's sanity was likely to be a significant factor in his
defense. State v. Grant, 257 Ga. 123,
126 (2) (355 SE2d 646) (1987).
Thus, Bright's subsequent refusal to cooperate
with the psychiatrist appointed pursuant to OCGA
17-7-130.1 frustrated the trial
court's effort to make the preliminary determination whether the Ake
motion should be granted and was, in effect, a voluntary waiver of
that motion. Had the court-appointed psychiatrist been allowed to
examine Bright, the trial court presumably would have used the
psychiatric report in making the determination whether sanity was
likely to be a significant factor in Bright's defense. If, after
considering the psychiatric report and all the other evidence, the
trial court concluded that Bright's sanity was likely to be a
significant factor, it then would have been required to appoint, or
provide Bright with funds for, an expert who would work for and
report to the defense alone. If, however, the trial court concluded
that sanity was not likely to be a significant factor, Bright's
motion would then have been denied and that ruling would be subject
to review by this court. Brown v. State, 260
Ga. 153, 158 (7) (391 SE2d 108)
(1990).
Citing no authority whatsoever, the majority
nevertheless concludes that a defendant who seeks funds for expert
assistance under Ake need not submit to an examination of a court-appointed
expert until he has had an opportunity to decide whether to present
expert testimony at trial. As the majority implicitly acknowledges,
however, this conclusion is not required by any existing authority.
Indeed, the majority's conclusion is in direct conflict with a prior
decision of this court. In State v. Grant, supra at 126 (2), the
trial court denied a motion seeking funds for expert assistance in
the guilt-innocence and sentencing phases of a death penalty case,
after the defendant refused to submit to evaluation at Central State
Hospital to determine whether his sanity would likely be a
significant factor at trial. On appeal, this court affirmed the
denial of the motion without examination, or even mention, of the
evidence or lack of ex parte evidence presented by the defendant in
support of his motion. Thus, what was dispositive in Grant was the
defendant's refusal to submit to an independent psychiatric
examination so as to facilitate the trial court's preliminary
determination of whether sanity would likely be a significant factor
at trial. Likewise, Bright's refusal to submit to an independent
examination so as to facilitate the trial court's preliminary
determination of whether sanity would likely be a significant factor
at trial should be dispositive here.
Moreover, even assuming that Bright's refusal to
cooperate with the court-appointed psychiatrist was not a voluntary
waiver of his Ake motion, the holding in Ake only requires that the
State
provide a defendant with "psychiatric assistance
in presenting mitigating evidence at his sentencing proceeding,
where the [S]tate presents psychiatric evidence against the
defendant." Bowden v. Kemp, 767 F2d 761, 763 (11th Cir. 1985).
(Emphasis supplied.) Christenson v. State,
261 Ga. 80, 83 (2) (c) (402
SE2d 41) (1991). Here, the State "presented no psychiatric (or
expert psychological) testimony at the sentencing phase of the trial.
[Cit.]" Christenson v. State, supra at 83 (2) (c). See also Walker
v. State, 254 Ga. 149, 154-155 (5) (327
SE2d 475) (1985).
Ake only guarantees a defendant the right to a
psychiatrist at the sentencing phase to oppose the government's
psychiatric testimony. . . . In Bowden [v. Kemp, 767 F2d 761 (11th
Cir. 1985)], the court stated that "unlike the sentencing situation
in Ake, Bowden's prosecutor had no need to present psychiatric
evidence to show an aggravating factor, and he presented none. The
dangers and inequities which concerned the Court in Ake consequently
did not exist." [Cit.] Nor do those dangers and inequities exist in
this appeal. The [S]tate presented no psychiatric experts at the
sentencing phase. . . . As such, appellant was not constitutionally
entitled to a state-funded psychiatrist under Ake.
[T]his is not a case in which the defendant might
be entitled to psychiatric assistance at the sentencing phase even
where the [S]tate does not present psychiatric testimony. [Cit.]
Christenson v. State, supra at 83 (2) (c).
Contrary to the majority's holding, Bright presented no ex parte
evidence from which the trial court could reasonably have inferred
that the question of his sanity would be a significant mitigating
factor at the sentencing phase of the trial. Bright's ex parte
evidence did "not show that [he] suffers from any serious mental
disorder." (Emphasis supplied.) Christenson v. State, supra at 83
(2) (c). To the extent that Bright's ex parte evidence might have
been mitigating, he was deprived of no constitutional right by
virtue of the fact that he was not afforded public funds so as to
present that evidence through the testimony of a psychiatrist.
Accordingly, I believe that Division 2 of the
majority opinion misapplies Grant, supra, and Christenson, supra,
and that the holding therein is, therefore, in conflict with
existing Georgia law. By departing from that existing Georgia law,
the effect of today's holding is to insure that criminal defendants
who assert the defense of insanity will have little, if any,
motivation to cooperate with court-appointed psychiatrists in the
preliminary determination of whether sanity will be a significant
factor at trial. Accordingly, I must respectfully dissent to the
reversal of Bright's sentences.
HUNSTEIN, Justice, dissenting.
The record in this case reveals that appellant
filed both a notice of intent to assert insanity as a defense, see
OCGA 17-7-130.1; USCR 31.4, and a
motion for funds for experts in neurology, toxicology, and
psychiatry, pursuant to Ake v. Oklahoma, 470 U. S. 68 (105 SC 1087,
84 LE2d 53) (1985), to assist the defense in both the guilt-innocence
and penalty phases of the trial. The motion comported with Roseboro
v. State, 258 Ga. 39 (365 SE2d 115) (1988).
The trial court conducted the ex parte hearing required by Brooks v.
State, 259 Ga. 562 (2) (385 SE2d 81) (1989)
and denied the motion for funds, although the court stated that it
would reconsider the motion upon the return of the results in the
court-ordered psychiatric examination (referencing appellant's
notice of intent per OCGA 17-7-130.1).
Appellant subsequently refused to cooperate in that examination.
The Fourteenth Amendment's due process guarantee
of fundamental fairness requires that an indigent defendant be given
"meaningful access to justice," e.g., access to a competent expert
necessary to an effective defense. Ake v. Oklahoma, 470 U. S., supra
at 77; McNeal v. State, 263 Ga. 397 (3) (435
SE2d 47) (1993). However, "due process does not require the
government automatically to provide indigent defendants with expert
assistance upon demand." Moore v. Kemp, 809 F2d 702, 712 (11th Cir.
1987). Rather, the constitutional requirement that a state provide
an indigent defendant access to an expert's assistance applies only
when a defendant has made a "preliminary showing" that the subject-matter
of the expert's specialization is likely to be a significant factor
at trial. Id. Whether or not a defendant has made this showing lies
within the sound discretion of the trial court. McNeal, supra.
Furthermore, while this Court has recognized that Ake applies to
expert assistance in presenting mitigating evidence at his
sentencing proceeding, Christenson v. State,
261 Ga. 80 (2) (c) (402 SE2d 41)
(1991), we did not find it necessary to apply a different standard
for an Ake request based on which phase of the trial in which the
expert was deemed necessary. Id. at 83 (2) (c).
Applying these principles, I can concur
completely in the majority's conclusion that appellant was not
entitled to funds for any of the three experts for use in the guilt-innocence
phase or for the neurologist as to the penalty phase. I must
respectfully dissent to the majority's holding that the denial of
funds for the psychiatrist and toxicologist for use in the penalty
phase was reversible error.
As to the psychiatric expert, I would affirm the
trial court's ruling because this case is indistinguishable from
Christenson, supra. In both cases, the defendants presented evidence
that they had undergone psychological evaluation in the year prior
to the crimes which indicated they suffered from no serious mental
disorders. Although there are variations between the cases,
10 the salient fact remains that
neither appellant nor Christenson adduced evidence showing a serious
mental disorder. Because of the absence of any evidence of a serious
mental disorder, we found no abuse of the trial court's discretion
in denying the request for court-funded independent psychiatric
assistance in Christenson, supra at 83 (2) (c). Likewise, because
appellant has not made a preliminary showing that his "mental
condition [at the time of the offense was] seriously in question,"
Ake, 470 U. S., supra at 82, I would find no abuse of the trial
court's discretion in denying appellant the funds he sought for
psychiatric assistance.
As to the toxicological expert, there is no
question that appellant's usage of crack cocaine was a pivotal
factor in his defense. In this Court's review of the trial court's
denial of funds for a toxicologist, however, the question is not
whether the defense could have made use of such an expert. Rather,
it is whether access to a toxicological expert was "necessary to an
effective defense" such that denial of funds to hire the expert
violated the Fourteenth Amendment's due process guarantee of
fundamental fairness. Accord Messer v. Kemp, 831 F2d 946, 960 (11th
Cir. 1987); Moore, supra. When viewed from that perspective, it is
apparent that the trial court did not abuse its discretion denying
appellant funds for a toxicologist.
In support of his motion
11 appellant attached his medical
record from the Columbus substance abuse program where he had
received treatment eight months before the crimes in issue. This
record contained the observations of health care professionals who
had previously evaluated appellant and diagnosed his cocaine
dependency, who were personally familiar with appellant, and who
possessed information regarding appellant's drug usage and
considered such usage to pose a "[s]ubstantial risk of harm" to
appellant and others.
Appellant made no showing why it was necessary
that a toxicologist present evidence of the effect of cocaine on
appellant's mentation or how much help this type of defense expert
could have given. See Little v. Armontrout, 835 F2d 1240, 1243 (8th
Cir. 1987); see also Bowden v. Kemp, 767 F2d 761, 765 (11th Cir.
1985). While a toxicologist's assistance in this regard would
undoubtedly have been beneficial, in light of the presentation to
the trial court of this pre-existing information and resources
available to the defense, I do not agree that the denial of funds
for a toxicologist deprived appellant of his ability to present an
effective defense and rendered the trial fundamentally unfair. Hence,
I find no abuse of the trial court's discretion in denying the
motion for funds for a toxicological expert.
I am authorized to state that Justice Thompson
joins in this dissent.
