dissenting.
I concur in Justice Weltner’s dissent as to Division 9 of the majority opinion and to that portion of the judgment vacating the sentence of death. His dissent was to the majority’s reversal of the jury’s verdict in the sentencing phase as to the aggravating circumstance set forth in OCGA § 17-10-30 (b)(6) (Code Ann. § 27-2534.1).
In addition, I dissent to the majority’s reversal of the jury’s verdict in the sentencing phase as to the aggravating circumstance set forth in OCGA § 17-10-30 (b)(7) (Code Ann. § 27-2534.1): “(b) In all cases of other offenses for which the death penalty may be authorized, the judge shall consider, or he shall include in his instructions to the jury for it to consider, any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the following statutory aggravating circumstances which may be supported by the evidence: ... (7) The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim;”. In my opinion the evidence amply authorized the jury to find torture and depravity of mind on the part of the appellant. The attempt to murder by the radio set, the first attempt at shooting, the return to the scene to ensure death, the rejection of the victim’s pleas for mercy, the second shooting, and, finally, the routine inquiry of Soto as to the death of the victim, all combine to constitute torture and demonstrate depravity of mind.
I do not agree that we should seek to evaluate torture, relative to this aggravating circumstance, subjectively. It is, or is not, torture, when viewed objectively as to what is done to the victim to cause the victim to suffer mentally and physically.
I respectfully dissent.
I am authorized to state that Justice Weltner and Justice Bell join in this dissent.