dissenting.
A remand in this case is a waste of time and judicial resources and is not warranted for the following reasons.
First, there has been no enumeration of error alleging ineffective assistance of counsel. While the Unified Appeal Procedure empowers this Court to review the possibility of error on its own initiative, we are constrained to the record developed at trial. That record either reflects ineffective assistance of counsel or it does not. If the record shows such an error, we should reverse the judgment and return it to the trial court for a new trial. Obviously, it does not. Since it does not, we should affirm the verdict. This Court is setting a terrible precedent by remanding this case. We are inventing a ground of appeal and creating delay by directing the trial judge to go on a witch hunt.
Counsel in this case was retained by appellant. He filed numerous and timely motions and interposed objections throughout the trial. Just because he did not handle the case the way we as individuals might have, does not establish that his actions were ineffective. He was on the scene and trying the case and was in a better position to understand the flow of the trial as it progressed. Circumstances dictate trial strategy and I do not believe that the record shows that the appellant’s trial strategy constituted error.
Additionally, even if counsel was deficient, it is not established that his deficiency rose to the level of justifying a remand. To establish a valid claim of ineffective assistance of counsel, a party must show that counsel was deficient, and, “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). For the following reasons, I believe that even if any deficiency of counsel was brought to light, the result would have been the same.
First, let us look at appellant Hammond’s resume of criminal acts and violent behavior.
1. While still a juvenile, Hammond and another robbed a woman *601at gunpoint. She was kidnapped, driven in her car to an automated bank teller machine and raped twice.
2. On another occasion, while still a juvenile, Hammond and another robbed a man at gunpoint, kidnapped him and drove the victim around in his own car.
3. Later, Hammond robbed another woman at knifepoint, kidnapped her, raped and sodomized her, slit her throat, stabbed her five times in the chest and left her for dead in a pile of trash.
4. He accosted still another woman at knifepoint, took her car and drove her around, threatening to rape and kill her. She managed to escape before he could carry out his threats.
5. He broke into another woman’s home while she was in bed, asleep, woke her up and sexually fondled her. Before he left, he stole cash and a tape recorder.
6. In the present case, he was arrested after he tried to kill his girl friend, Janice Weldon, and while in jail he offered to pay another inmate $20,000 to kill her.
In light of all this, was Hammond’s attorney supposed to present voluminous good character evidence in a case where Hammond murdered his sixth woman victim in cold blood?
Second, there is the grisly story of the night of the murder of Julie Love. This story is one of a strong, able-bodied man, armed with a sawed-off shotgun, riding the streets looking for his sixth woman victim. The evidence presents a brutal picture in live action as follows:
1. Hammond, Porter and Weldon (Hammond’s girl friend, whom he later tried to hire someone to kill) were driving around in Hammond’s car.
2. Hammond spotted Julie Love walking by the side of the road.
3. Hammond ordered Porter to stop the car.
4. Hammond asked Ms. Love if she wanted a ride. She declined and they drove on.
5. Hammond watched and saw Ms. Love returning to the road from the driveway of the house she had claimed was her home.
6. Hammond ordered Porter to turn around and drive past Ms. Love again, with the car lights on bright.
7. Hammond exclaimed as they drove past Ms. Love and saw a car stopped by the side of the road: “I knew it! I knew it!”
8. Hammond told Porter he drove too slowly and ordered Weldon to drive. They returned to where Julie Love was walking.
9. Hammond jumped out of the car, armed with a sawed-off shotgun, grabbed Ms. Love, and threw her into the back of the car.
10. Hammond ordered Weldon to drive to Grove Park Elementary School which he had attended.
11. Hammond ordered Weldon to search Julie Love’s purse. He *602then ordered Weldon and Porter to take Ms. Love’s bank cards to an automated bank teller and get money using an access number provided by her.
12. Hammond remained at the school with Julie Love. Neither Porter nor Weldon could testify what happened at the school while they were gone. But while awaiting trial, Hammond bragged about raping Ms. Love. According to the testimony of a jailer, Hammond pulled his pants down to his knees and, holding his sex organ in his hands, told the jailer “that’s what [he] had gave [sic] to Julie Love.”
13. Hammond beat Ms. Love with his shotgun when Porter and Weldon returned without money.
14. Hammond stood by while Porter raped Julie Love.
15. Hammond, after Ms. Love pleaded with him not to hurt her anymore, directed the driver to proceed to her apartment complex to get more credit cards, but they did not enter because of the presence of a security guard.
16. Hammond and Porter, at Weldon’s request, dropped Weldon at her apartment, then took Julie Love back to the school.
17. Hammond got clothes hangers and a sheet from the trunk of the car.
18. Hammond bound Julie Love’s feet together, bound her hands behind her back, and wrapped a sheet around her body.
19. Hammond wound a coat hanger around Julie Love’s neck.
20. Hammond, telling Porter to hold one end, tried to strangle Julie Love with a coat hanger.
21. Hammond, after Ms. Love struggled free, got her under control and retied her hands.
22. Hammond ordered Porter to drive to nearby Grove Park.
23. Hammond told Porter to stay in the car and took Julie Love into the woods.
24. Hammond shot Julie Love in the head with his sawed-off shotgun, blowing “the side of her face off.”
25. Hammond hid her body in a trash pile by placing a board over it. This was the second woman he had left in a trash pile.
26. Hammond returned to the car, his face flecked with blood.
27. Hammond sold the shotgun after he killed Julie Love.
28. Hammond gave Ms. Love’s earrings to Weldon and told her to pawn them.
Consider this synopsis of Hammond’s life.
a. Hammond orchestrated, directed, or committed 27 of these 28 acts and stood by with his sawed-off shotgun, while Porter raped Julie Love in the 28th one.
b. Hammond, since a juvenile, has led a life of crime and violence.
c. Hammond has never respected the law or the rights of others.
*603d. Hammond has failed to exhibit one iota of simple human decency.
e. Hammond has committed one or more of the following crimes to six different women.
Here’s the roll call:
A. Terrorized — six women, including Julie Love.
B. Kidnapped — four, including Julie Love.
C. Raped — three, including Julie Love.
D. Threatened to rape — one.
E. Sodomized — one.
F. Assaulted either physically or by using knife or gun — five, including Julie Love.
G. Cut — one.
H. Stabbed — one.
I. Slit the throat — one.
J. Robbed — four, including Julie Love.
K. Threatened or tried to kill — three.
L. Attempted automatic bank teller and credit card theft — two, including Julie Love.
M. Falsely imprisoned in an automobile — four, including Julie Love.
N. Left in trash pile, either dead or thought to be dead — two, including Julie Love.
O. Sexually assaulted (fondled a woman after breaking into her house) — one.
P. Solicited murder — one.
Q. Murdered — one, Julie Love.
Out of the above 17 criminal acts, Julie Love was forced to suffer through nine.
Hammond’s criminal record includes an attack on one man, but his modus operandi was the same. He and another felon kidnapped and drove the victim around in the victim’s car and robbed him at gunpoint.
In light of the above, it is clear that a remand of this case to the trial court to look into possible ineffective assistance of counsel is a travesty of justice, a waste of judicial resources, and an insult to the victims that he has raped, robbed, assaulted, terrorized, and murdered, as well as to their families.
In Ford v. State, 257 Ga. 461, 463 (360 SE2d 258) (1987), this Court held, “[t]he factors normally considered in sentencing are (1) the character of the defendant, including his previous criminal activity, if any, and (2) the circumstances of the crime on trial.” See also Clemons v. Mississippi, _ U. S. _ (110 SC 1441, -LE2d _) (1990).
Matching the appellant to these two criteria, what do you find? *604As to character, the record shows Hammond to be without a shred of human decency, and totally lacking a single, socially redeeming trait of character. This has been true since he was a juvenile.
His criminal activity has been limitless and legion as may be seen elsewhere in this dissent.
As to the circumstances of this crime, there are no words that can fully describe the 28 acts or actions the appellant was involved in up to and including blowing “the side of her [Julie Love’s] face off.”
The two acts that appellant pulled off in jail awaiting trial speak eloquently about his character and how he feels about the murder of Julie Love. Those acts demonstrated a complete absence of any remorse and an utter disdain for the victim, society and the law.
They were: 1) his attempt to hire an inmate to kill his girl friend, Janice Weldon, to prevent her from testifying against him, and 2) the act of showing his private parts to an officer and stating what he did to Julie Love.
All of these crimes follow a pattern which shows that they were premeditated, planned with a purpose, and evidence of a callous and indifferent view toward the life, rights and well being of his fellowman.
I do not think the appellant’s attorney was ineffective at either the guilt-innocence phase or the sentencing phase of the trial. Ineffective assistance of counsel can only be established by showing deficient attorney performance and actual prejudice. Strickland v. Washington, 466 U. S., supra at 687. It was Hammond’s burden to show that mitigating evidence existed which reasonably could have led the jury to spare his life.
The appellant’s attorney attempted in good faith to do so. He cannot be faulted for failing to present that which did not exist. I think one example is enough to show this. The appellant’s grandfather testified for him. His testimony in mitigation covered approximately one page. If his grandfather could tell all the good he knew about him in one page, it is clear that the appellant could not find anyone else that could supply greater mitigating evidence.
Appellant could not even help himself by going on the stand. What explanation could he give for his criminal behavior? The appellant’s counsel knew this. He was in a catch 22. He was damned if he did and damned if he didn’t.
Harm as well as error must be shown to warrant a retrial, even in a death penalty case. Clemons, supra at 1450-52.
Furthermore, as the United States Supreme Court stated in Boyde v. California, _ U. S __ (_ SC _, __ LE2d -) (1990):
There is, of course, a strong policy in favor of accurate deter*605mination of the appropriate sentence in a capital case, but there is an equally strong policy against retrials . . . where the claimed error amounts to no more than speculation.Decided November 8, 1990 — Reconsideration denied December 4, 1990. William A. Wehunt, for appellant. Lewis R. Slaton, District Attorney, Richard E. Hicks, Assistant District Attorney, Michael J. Bowers, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, for appellee.
I stress again, there is no claimed error in this case, and the remand is based on mere speculation.
Assuming, for the sake of argument, that counsel was deficient, the deficiency was harmless. If there is enough evidence to envision a possible issue of ineffectiveness, there is enough evidence for this Court to determine if it was harmless. The holding in Clemons, supra, supports the proposition that a State Supreme Court can make a determination that the deficiency of counsel does not rise to the level of constitutionally harmful error. We should do likewise, and not set a new precedent of remanding to the trial court because we perceive the mere remote possibility of a trial court finding ineffective assistance of counsel.
It is difficult to understand how any defect in representation could have deprived this appellant of mitigating circumstances. The evidence of aggravation in this case is so strong, this appellant is so dangerous, his criminal history is so lengthy, his crime is so monstrous, and his own grandfather’s testimony only covered one page.
Those responsible for rendering an opinion as to the legality of the trial in February 1586 of Mary Queen of Scots made the following statement:
“For this trial, let this proposition be delivered in known terms, and say thus, every man that breaks any law is to be punished because he was willing to bear the penalty of his offense.”
I would affirm the conviction and the death sentence of Emmanuel Fitzgerald Hammond.