Pye v. State

Fletcher, Presiding Justice,

concurring specially.

Because the prosecutor’s closing arguments in the sentencing phase included statements about Pye’s future dangerousness that were not based on evidence in the record, I cannot agree with Division 19 of the majority opinion.

While a defendant’s future dangerousness may be the subject of proper argument in the sentencing phase, this argument is only proper so long as it is “based on evidence adduced at trial.”2 The requirement that a prosecutor’s argument in the sentencing phase of a death penalty trial be based upon facts of record is long-standing. *790In Conner v. State,3 this Court held that the prosecutor’s statement that Conner was the first defendant against whom he had sought the death penalty was improper because it was not based on facts in evidence. Similarly, this Court stated in Horton v. State4 that, even though it was common knowledge that the death penalty had seldom been imposed in recent years, the prosecutor should not have referred to this fact since it was not in evidence.

The prosecutor’s argument that Pye would kill a prison guard was not a reasonable inference from any evidence in the record. Although the state claims in its brief that such statements are supported by the record, the state has failed to provide a single citation to the record. That Pye had been convicted in this case of the murder, rape, and kidnapping of his former girlfriend does not make the murder of a prison guard “probable future behavior.”5 Although the murder was heinous, its facts are not suggestive of Pye’s behavior in prison. This case is unlike Spencer v. State,6 in which this Court upheld the prosecutor’s argument that the death penalty was appropriate because Spencer was an escape risk. In that case, the facts showed that Spencer had committed the murder for which he was on trial in an attempt to escape from law-enforcement officers.

The majority’s ruling will have dramatic impact not just on arguments, but also on evidence in the sentencing phase. In Skipper v. South Carolina,7 the United States Supreme Court unanimously agreed that where the prosecution relies on the defendant’s future dangerousness to argue for the imposition of the death penalty, elemental due process requires that the defendant be offered an opportunity to introduce evidence on this point. Therefore, if the state is permitted to speculate wildly in closing argument about the defendant’s threat to prison guards, the defendant is constitutionally entitled to reopen the evidence to rebut this argument. Thus, sentencing trials will now routinely include witnesses to testify about the defendant’s current behavior in prison,8 expert witnesses to testify about the defendant’s probable behavior in prison, and corrections personnel to testify about security in prisons holding inmates serving sentences of life or life without parole.9 Thus, this opinion will fur*791ther the expenditure of time, resources, and testimony on issues not related directly to the particular defendant, the crime committed, or the appropriate punishment for that crime.

Decided September 21, 1998. Johnny B. Mostiler, for appellant. William T. McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, Thurbert E. Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Wesley S. Homey, Beth Attaway, Assistant Attorneys General, for appellee.

I farther disagree with the conclusion that the statements that Pye wished he had killed Freeman and would have killed his own lawyer are reasonable inferences from the record. The state has pointed to no evidence in the record of any threats Pye made against Freeman or Pye’s lawyer. Additionally, the majority’s reliance on Philmore v. State10 to justify such latitude in the argument is unpersuasive because that case was not a death penalty case.

Although the speculative arguments made by the prosecutor in this case are objectionable and should not be permitted, the defendant raised his objections only on appeal. Therefore, reversible error may be found only if there is a reasonable probability that the improper argument changed the result in the sentencing phase.11 I concur in the majority’s conclusion that Pye has not satisfied this high standard.

Ross v. State, 254 Ga. 22, 34 (7) (326 SE2d 194), cert. denied, 472 U.S. 1022 (105 SC 3490, 87 LE2d 623) (1985).

251 Ga. 113, 122-123 (6) (303 SE2d 266), cert. denied, 464 U.S. 865 (104 SC 203, 78 LE2d 177) (1983).

249 Ga. 871, 876 (295 SE2d 281) (1982), cert. denied, 459 U.S. 1188 (103 SC 837, 74 LE2d 1030) (1983).

See Ross, 254 Ga. at 34 (7).

260 Ga. 640, 653 (398 SE2d 179) (1990), cert. denied, 500 U.S. 960 (111 SC 2276, 114 LE2d 727) (1991).

476 U.S. 1, 5, n.l, 10-11 (106 SC 1669, 90 LE2d 1) (1986).

Skipper, 476 U.S. 1 (reversing death sentence where trial court excluded testimony of jailers and a visitor regarding defendant’s good behavior in jail).

Childs v. State, 257 Ga. 243, 249, 255 (357 SE2d 48) (psychologist testified in sentenc*791ing phase that in prison setting Childs would not be a problem; warden testified that Childs would be sent to maximum security prison), cert. denied, 484 U.S. 970 (108 SC 467, 98 LE2d 406) (1987).

263 Ga. 67, 69 (3) (428 SE2d 329) (1993).

Todd v. State, 261 Ga. 766, 767 (2) (a) (410 SE2d 725) (1991), cert. denied, 506 U.S. 838 (113 SC 117, 121 LE2d 73) (1992).