Opinion
35378.
June 24, 1980
ADDENDUM TO 245 Ga. 427.
Subsequent to our decision in this case, but prior to transmittal of the remittitur to the trial court, the Supreme Court of the United States has decided Godfrey v. Georgia, 48 USLW 4541 (May 19, 1980). In that the appellant's sentence of death rests partially upon Code § 27-2534.1 (b) (7), his sentence must be reviewed in light of Godfrey.
The jury returned a finding of two statutory aggravating circumstances, Code Ann. §§ 27-2534.1 (b) (2) and 27-2534.1 (b) (7). In Godfrey, the court was concerned with a sentence of death resting exclusively on § 27-2534.1 (b) (7). Godfrey v. Georgia, 48 USLW 4541, n. 15. The other statutory aggravating circumstances are more specific and measurable. Godfrey v. Georgia, 48 USLW 4541, 4542, n. 2. Therefore, under our decisions, the death penalty, infra, may be upheld upon § 27-2534.1 (b) (2). Gates v. State, 244 Ga. 587 ( 261 S.E.2d 349) (1979); Burger v. State, 245 Ga. 458 ( 245 S.E.2d 796) (1980).
Code Ann. § 27-2534.1 (b) (7) provides in pertinent part: "The offense of murder . . . was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." In Godfrey, the court found that § (b) (7) was unconstitutionally applied in that case. We find material differences between Godfrey and the case under review, which distinguish this murder from the murder in Godfrey and from other "ordinary" murders for which the death penalty is not appropriate.
In our opinion in this case, we held that the jury's finding beyond a reasonable doubt that the "murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or aggravated battery to the victim," was supported by the evidence. The evidence in this case clearly establishes that the appellant planned to kill his victim in advance as part of an armed robbery, the sole purpose of which was to obtain funds to buy drugs. The victim was forced at gunpoint to drive his own vehicle to the chosen execution site. Once at the area, the victim dropped to his knees, wrapping his hands around his head; he begged for his life for a full five minutes; during this time, he was listening to the co-defendant encourage the appellant to kill him. The victim was also facing a large-bore shotgun pointed at his face.
While the death of a victim who dies instantaneously with little or no forewarning does not involve torture or aggravated battery, evidence of psychological abuse by the defendant to the victim prior to death, where it is shown to have resulted in severe mental anguish to the victim in anticipation of physical harm, may amount to serious physical abuse (i.e., torture of the victim), and will support a finding of depravity of mind of the defendant. Furthermore, while the death itself was relatively instantaneous, the victim was not a member of the appellant's family, nor was the victim threatening or causing any emotional trauma to the appellant. The murder was a cold-blooded, execution-style killing, perpetrated for no other reason than to eliminate a witness to an armed robbery. The appellant did not acknowledge his responsibility for his crimes, but fled the state and had to be captured at gunpoint. Cf., Godfrey v. Georgia, supra.
Under the facts of this case, we find that the murder was a type universally condemned by civilized society as wantonly vile, horrible or inhuman, as it involved depravity of mind of the defendant and torture to the victim, as set forth above. See generally, Hance v. State, 245 Ga. 856 (1980).
Judgment of affirmance of the death penalty adhered to. All the Justices concur.