Warren E. Burger: We will hear arguments next in Godfrey against Georgia. o Mr. Holmes, I think you may proceed whenever you are ready.
J. Calloway Holmes, Jr.: Thank you Mr. Chief Justice, and may it please the Court. This is a death penalty case out of the State of Georgia. I represent Mr. Robert Franklin Godfrey, who was convicted of murder in the first degree in the killings of his wife and her mother, his mother-in-law. It is here by writ of certiorari from Georgia Supreme Court. The issue, as framed by this Court in this case, is whether in affirming the death sentence in this case, has the Georgia Supreme Court adopted such a broad and vague construction of Section 27-2534.1(b)(7) as to violate the Eighth and Fourteenth Amendments to the U.S. Constitution? Section (b)(7) is one of ten aggravating circumstances that are the statutory guides to jurors in posing the death sentence, the sentencing phase of the Georgia proceedings. Before getting into the merits of the construction of Section (b)(7) by the Georgia Court, I would not want to dwell too long, but I think it would be important to cover the facts in this case. This defendant, Mr. Godfrey, and his wife, the record shows, had had a stormy marriage. He had been committed by her on three previous occasions to the state mental hospital in Milledgeville, Georgia. They had had a violent argument early in September of 1977, and she had left the house after he had threatened her in a drunken rage. After about a week, the wife had filed divorce proceedings and had moved in with her mother, who was urging her to go ahead and finally put an end to this marriage. The defendant had worked for approximately 20 years at the Northwest Regional Hospital as a surgical nurse and a post-operative male nurse. He had been to work that day, and his mother-in-law had called him out of the hospital to tell him that his wife wanted to speak to him that evening. The defendant testified that that led him to expect that he was--or to hope that he was going to be able to reconcile the situation as he had been able to do in the past. His commitments to the state mental hospital in the past had been voluntary, part of which was the condition for reconciliation with his wife. When he got home, his wife did in fact call him. They had a rather violent argument, could not reach any kind of agreement on reconciliation or any of the divorce issues. She hung up, told him that she would call back later and see if they could discuss it further. He testified that that affected him deeply, that he was put into a very depressed state. After the second phone conversation, which was even more heated and she finally hung up on him, he testified at that point that he blanked out. He had had some--whatever history that is in the record--blackouts in the past. The record substantiates that he then proceeded to get a shotgun, go down the hill to where the mother-in-law's trailer was, about a hundred, two hundred yards away, came up behind the trailer, fired one shot through the back window, killing his wife instantly, came into the trailer, hit his daughter as she was going out, on the head, causing several stitches, went into the trailer, reloading his shotgun, and shot his mother-in-law in the head as well, creating a very gory scene inside the trailer, which the prosecutor in the case portrayed by color pictures even though he had black and white pictures of the same scenes in his file. The petitioner then called the sheriff's office, told them what he had done, told them to come get him. They asked him where he was. He explained where he was. He then goes outside the trailer, places the shotgun in the branches of an apple tree, and then sits down under a shade tree to await the arrival of the police. When the police get there, he tells them that they are dead, it is all over with, and shows one officer where he has placed the gun. He is taken into custody, taken downtown, is in the county police building. In the presence of one officer he has allegedly told him that he had done a heinous thing and had thought about it for a long time and would do it again. At the trial Dr. Davis, the psychiatrist from Atlanta with quite impressive credentials, testified in behalf of the defendant. He had seen the defendant twice pursuant to court order, had also treated the defendant back in the '60s in Rome where the defendant worked in the hospital there. The second session with Dr. Davis was for the purpose of a sodium anatol interview, truth serum, to aid the psychiatrist in his diagnosis of the mental state and I suppose also to determine the credibility of the defendant's story. The psychiatrist concluded that at the time of the second phone call and the blackout of the defendant, that the defendant had been impaled by the immense emotional provocation that he felt about the breakup of his marriage into what he described as a dissociative reaction and admitted on cross-examination that that state is an altered state of consciousness but that the defendant probably would have known right from wrong but would not have been able to consciously control his actions. There is a type of psychiatric condition where suppressed feelings are played out in sort of an automatic fashion without real conscious control over it. The state had psychiatric testimony from Milledgeville Hospital, with some--also the records of the defendant's previous incarceration down there.
Warren E. Burger: All these things you are telling us, Mr. Holmes, were advanced to persuade the jury to a contrary conclusion, I take it. The jury did not accept this defense, did they?
J. Calloway Holmes, Jr.: They did not accept the defense of temporary insanity. They were advanced for two purposes, to try to establish the lack of criminal intent and also for purposes of mitigation. We felt that we were--this was a case that ought to be--ought to get a light sentence, felt that the prosecutor should not have requested the death sentence. But that testimony was really going more to the mitigation. Our psychiatric witness admitted that it was a non-psychotic condition, and they equated a psychotic condition with insanity. So, I think the jury by that concession concluded that there was no real insanity defense. When the prosecutor argued during the sentencing phase to the jury, under Section (b)(7), which was the only aggravating circumstance submitted to the jury, which is as follows. That the offense of murder was outrageously or wantonly vile, horrible, or inhuman in that it involves torture, depravity of mind, or an aggravated battery to the victim--
Byron R. White: Mr. Holmes, you are back to the statute. I have been waiting for you to get to it.
J. Calloway Holmes, Jr.: Yes, sir.
Byron R. White: And where are the soft words in the statute that you feel are improper? Is it depravity of mind or is it outrageously or wantonly vile, horrible, or inhuman, or both?
J. Calloway Holmes, Jr.: I think it is both, Your Honor. Depravity of mind is not involved in this case. As a matter of fact, there is a case decided at the same time as Godfrey, Holton v. State, in which the Georgia Supreme Court expressed the opinion and dicta that if a circumstance was only composed of depravity of mind, that that would probably be insufficient under the Furman decision.
Byron R. White: There were some factors here, were there not? I take it they were not argued. But the fact that the killing was before the young child, the fact that there were two murders, not one, two, and the fact that--at least I think it is a fact--that he forced the second victim to anticipate being killed.
J. Calloway Holmes, Jr.: That is true.
Byron R. White: Are those argued at all?
J. Calloway Holmes, Jr.: The first killing was in the presence of the child. She ran out. The second killing did--there would have had to have been a few seconds. There was anticipation. There was anticipation of death as far as the mother-in-law was concerned. But I believe that if you--I think what you are getting at is whether or not that, as one Georgia case has held, is sufficient to find torture. I do not think momentary anticipation of death is what is contemplated by the word "torture." The Georgia Supreme Court has not specifically held that. They have held one case that is similar to that--
Byron R. White: At least these are not specifically in the statute, this kind of thing, killing somebody in front of a young child.
J. Calloway Holmes, Jr.: Yes, that--
John Paul Stevens: Suppose this were listed as an aggravating circumstance in the statute, would it be constitutional?
J. Calloway Holmes, Jr.: Your Honor, they are non-statutory aggravating circumstances at present and could not be the basis for a death sentence. Whether or not--if there was an aggravating circumstance number eleven that said, "If you commit two first degree murders in the same transaction, then that permits the imposition of the death sentence, " I would think, without a chance to analyze it, that that would probably be specific enough. It would certainly be as specific as some of the other--
William H. Rehnquist: Do you not get to a certain point where you have to use general language just because of the instances mentioned by Mr. Justice Blackmun? It is simply impossible to foresee all the manners in which killings can take place, and you have to use some fairly general rubric in order to express what you mean over and above murder in the first degree.
J. Calloway Holmes, Jr.: I think that that is of course true. The goal of perfection in this type instance would be very difficult to reach. But the prosecutor in this case told the jury that torture was not involved and that aggravated battery was not involved in this case. And the jury only found a partial finding of (b)(7). They found it was outrageously or wantonly vile, horrible, and inhuman. Those terms--and the court approved that. There is another case cited in the brief where a jury found under Section (b)(7) that the offense was both horrible and inhuman. So, our argument is that the authoritative construction of Section (b)(7) by the Georgia Supreme Court is that that language, standing alone, is sufficient. In other words, they have construed this to the effect that (b)(7) is really only composed of vile, horrible, and inhuman. And we feel strongly that that is no standard at all. That is totally subjective. It certainly has no objective component in it to make review rational.
William H. Rehnquist: What if the Georgia legislation, instead of saying vile, wanton and inhuman, had said committed in front of a small child or committed on a second person ten seconds after it was committed on the first person; what you say, would not comprise torture. Would that satisfy your objections?
J. Calloway Holmes, Jr.: That would be a wholly different case, Your Honor. But if they chose to get that specific and they described a particular type mother and the facts of the case fit that description, then the question here is whether the aggravating circumstance can provide any guidance to channel the discretion of jurors. Under that standard, by describing the crime very specifically and the facts meet that crime very specifically, you have a standard that can be reasonably followed by a jury.
William H. Rehnquist: My point is that just the range of human experience suggests that you are not going to have a whole catalog before you of the circumstances over and above first degree murder, which may lead to a permissible capital offense and that some generalization is necessary.
J. Calloway Holmes, Jr.: It may be, Your Honor, but I think it has to be qualified by some objective portion. If you take this Section (b)(7) as a whole, leaving torture and aggravated battery in it, that is something that you can point to that can be proved beyond a reasonable doubt. And the standard in the sentencing phase is beyond a reasonable doubt.
Warren E. Burger: Are you telling us that shooting at about a five or six foot range with a shotgun, blowing the head off of a victim in the presence of two other potential victims, one of whom became a victim, is not an aggravated battery?
J. Calloway Holmes, Jr.: Your Honor, to the extent that it--under the Georgia statute, an aggravated battery is the depriving of a member. And if the top of the head is a member of the body, then that just fits the description.
Warren E. Burger: That just deprived two people of their heads.
J. Calloway Holmes, Jr.: Yes, sir.
Warren E. Burger: That certainly is at least as bad as chopping off an arm or a leg, is it not?
J. Calloway Holmes, Jr.: Certainly, Your Honor, because you can live if you just lost an arm. But that gets into some close questions of definition.
Warren E. Burger: What I was trying to get at, do you say that the phrase in the statute "aggravated battery" does not embrace what took place here?
J. Calloway Holmes, Jr.: I am saying, Your Honor, that it could conceivably embrace it. But the jury did not find it, and the Georgia Supreme Court upheld the partial finding and, in effect, said that the jury's phraseology in finding it vile, horrible, and inhuman only was not objectionable.
Byron R. White: Suppose this, instead of being a shotgun murder, had been just a clean single-shot pistol through the heart. Would you not be here making this same argument?
J. Calloway Holmes, Jr.: If the jury had made the same partial finding and under the entire circumstances and yet the judge, the court, had held that that was a sufficient standard or that was a sufficient finding, in effect saying that that composes the standard, yes, sir.
Byron R. White: The implication of my inquiry of course is whether any first degree murder under the Georgia theory would fit (b)(7), any one.
J. Calloway Holmes, Jr.: Certainly as it has been construed in this case, any first degree murder and any loss of life under the common definitions is going to be vile, horrible, and inhuman. It encompasses the range entirely of first degree murder. I do not know how it could not be found to be.
Warren E. Burger: Can we not assume reasonably that a jury could have reasonably thought it fit these adjectives because it was in effect an execution committed in the presence of the next victim and even a possible third victim? Apart from the manner, whether it was injection of some drug or shooting with the shotgun or a clean rifle bullet, the very nature of the staging of it, an execution style murder--does that not fall within the language "vile, outrageous, wanton"?
J. Calloway Holmes, Jr.: Yes, sir, it is horrible and it is inhuman as well. But every other murder is. Every other murder is.
Warren E. Burger: But this statute apparently reaches out for something that is a little more than just an ordinary killing, as was suggested by a clean bullet shot through the heart. Is that not what this statute is trying to reach?
J. Calloway Holmes, Jr.: I think that was the intent of the statute, Your Honor. But I think it has been construed in a totally open-ended fashion. It has not been narrowed by definition as the--
Warren E. Burger: Whether it is construed somewhere else that way is not relevant to this case. How it was applied in this case is all we're are concerned with, is it not?
J. Calloway Holmes, Jr.: Your Honor, I think the issue is in this case as to whether or not Section (b)(7) has been unconstitutionally construed on its face as well as the issue of whether it just simply been unconstitutionally applied in this case.
Warren E. Burger: But I thought you had just agreed that this was outrageous, vile, horrible, and inhuman. You did not agree on the aggravated battery part, but you have agreed that as to these parts, it fits the statute, the events of this case. Did I misunderstand you?
J. Calloway Holmes, Jr.: No, Your Honor, but I did qualify that answer by saying that if you asked me that question about any murder, I would agree.
Warren E. Burger: It is not a question of whether we agree here. It is a question of what a jury could reasonably conclude.
J. Calloway Holmes, Jr.: Your Honor, I think one reason--one problem that is pointed out by this is that the standard, as construed by the Georgia Court here, is so vague and over-broad that it is not capable of rational and objective review. Of course, it could fit this circumstance. It could fit any number of other circumstances across the range of first degree murder. And factors in this case that are non-statutory aggravating circumstances cannot under the statute be sufficient to impose the death penalty. If there are no further questions, I would like to reserve five minutes.
Warren E. Burger: Very well, Mr. Holmes. Mr. Dunsmore.
John W. Dunsmore, Jr.: Mr. Chief Justice, and may it please the Court. In 1973 the General Assembly of Georgia, in response to this Court's decision in Furman, felt that the states could still inflict a death penalty, providing the manner in which they did so set forth certain articulate standards. In March of 1978 a jury in Polk County found that one of these standards had been complied with, based upon the state's case, and imposed the death penalty under the seventh aggravating circumstance. This is a case of premeditated murder. The district attorney on that basis sought the death penalty. I would like to briefly discuss some of the facts in light of counsel's going over those facts. While there was an altercation between the petitioner and his wife some three weeks prior to the fatal shootings, that altercation also involved violence, and it also involved a weapon capable of producing death, a knife. On two occasions, on the 5th of September, the petitioner drew a knife on his wife the first time to make her remain seated at a couch in their house, and the second time, actually used that knife on his wife in the bathroom in which he cut her clothes to and through some of her underclothing, although there was no apparent physical injury as a result of that.
Warren E. Burger: That might bear on whether he should have been acquitted or found guilty by reason of insanity or in mitigation; but what has it got to do with the issues now?
John W. Dunsmore, Jr.: All right, I think it has to do with the issues in this matter in that it shows a predisposition on behalf of the petitioner, in view of his later statement, following the shootings, when he said, "I've done a hideous crime. I've thought about it for eight years. And I'd do it again. Or I was glad that I did it." We need to take into consideration the fact that even though there had been some phone conversations between the petitioner and his wife, there appears to be a sufficient interval, which the jury considered, where there would have been a cooling off of any passions. The killing takes place at night. The petitioner is able to lurk in the back of this trailer, has the advantage of lights on so that he can silhouette, pick out his target. He used what was called an over and under shotgun combination rifle. That means he could have use the rifle, but he chose instead to use the shotgun. And it is pretty hard at five or six feet to miss with broad pattern of a shotgun.
William H. Rehnquist: What gauge was it?
John W. Dunsmore, Jr.: I am not too sure. I think it was a 20 gauge. I believe that is a 20 gauge over and under. But he had that option.
Harry A. Blackmun: Do you think that option made all the difference in the world in this case under your statute?
John W. Dunsmore, Jr.: Mr. Justice Blackmun, no, I am not too sure. But I think it is an essential fact because I think what makes this case outrageously and wantonly vile and inhuman is the cold-blooded, calculated course of action which the petitioner embarked in from the beginning with an avowed purpose to cause death. The type of weapon he used is evidence of his intention of inflicting a fatal injury.
Harry A. Blackmun: You can say about the same thing of any pre-meditated murder, can you not?
John W. Dunsmore, Jr.: Yes, but the statute, the seventh aggravating statute, as defined by our court in Harris, looks to, as they said, the core--not the core, but the core cases like Pitlis, like they used in State v. Dixon in Florida. We are not looking at a common killing, as Mr. Chief Justice Burger suggested. We are looking at a killing where there was an avowed, a conscientious decision made some time even before he arrived at the trailer to inflict grievous bodily harm. Now--
Thurgood Marshall: Is not this always in first degree murder?
John W. Dunsmore, Jr.: That is true, but this seventh aggravating circumstance looks at the more heinous aspects of it. Now, there can be some overlapping--
Thurgood Marshall: Will you give me a motive that is not heinous?
John W. Dunsmore, Jr.: I think that they are all--the taking of any life would be--
Thurgood Marshall: No, I mean first degree murder.
John W. Dunsmore, Jr.: No. They are senseless killings, but some are more senseless than others, particularly when there is no avenue of escape; that is, there is no right to defend, no opportunity to defend against this course of action at all.
Warren E. Burger: Do you not make your point when you say he planned it for a year in advance and after the event said that he would do it again if he had the chance?
John W. Dunsmore, Jr.: I believe that goes a far way in making our point, sir. I really do.
Warren E. Burger: All murders are not accompanied by that kind of before and after sequence, are they?
John W. Dunsmore, Jr.: That is correct. And I think that is what makes this case so outrageously and wantonly vile. For example, the outrageous nature of the case is the fact that it is heinous and atrocious and it offends human standards on the basis that an individual--these individuals-- had no opportunity to defend themselves. We have the wantonness, that is, the aspect of the merciless killing where he comes in a trailer, a small area. We certainly do have torture in the terms of the anticipation of death, as we argued in our brief, which is a mental torture; I think the statute could include that. And our supreme court in the Floyd case, involving an armed robbery, double execution style killing, where the mother and daughter were separated for the purposes of determining where the money was in the house, paraded the individuals around the house, and then before the second killing the daughter witnesses her mother being killed, knowing that she is next on the list, so to speak. And in this case the evidence shows that when the wife was shot in the head--and I think that is another point that shows premeditation. Both victims were shot in the head, not like trying to get them out of the way or just to do some injury to them. In intent--
John Paul Stevens: Mr. Dunsmore, could I ask two questions, one on the deliberate character of it? That is essential element of the offense itself, is it not?
John W. Dunsmore, Jr.: That is correct.
John Paul Stevens: The second question I had is the charge of the court directed the jury to designate in writing the aggravating circumstances, the circumstances which you found beyond reasonable doubt. And the next page of the record shows the form of verdict they returned, and it says that the offense of murder was outrageously or wantonly vile, horrible, and inhuman, and does not go on and say it involved depravity of mind and the like. The question I am unclear on is, Is this the jury's language or is this a form that the judge gave to them, that was pretyped and they just signed?
John W. Dunsmore, Jr.: I believe that this was the form that was given to them by the--and prepared by the prosecutor.
John Paul Stevens: Is that a proper form? I wonder why it did not track the language of the statute and the language of the instruction then.
John W. Dunsmore, Jr.: I do not know. But on page 79 the judge instructs--
William H. Rehnquist: Seventy-nine of what?
John W. Dunsmore, Jr.: Of the appendix--instructed the complete language of the statute.
John Paul Stevens: That was given orally, but the instruction did not go to the jury in writing, did it?
John W. Dunsmore, Jr.: It usually does.
John Paul Stevens: Does it? I see.
John W. Dunsmore, Jr.: And that is the proceeding that usually goes out in writing because they must designate. And it is a possibility, for example, in some cases more than one statutory aggravating circumstance may be submitted to the jury. For example, it is conceivable under the facts in this case that they could have found in the course of one of the murders.
John Paul Stevens: The other question, just so I will get it all out and you have the time to comment on it, at the top of page 86, which is the part of the judge's form, which apparently accompanies the record on appeal, the defense of murder--and he strikes--the things that he instructed the jury on. It says, "The offense of murder"-- then he strikes some language out--"was outrageously or wantonly vile, horrible"-- and he changes "or" to "and inhuman in that it involved torture" and so forth. So you see that first one under the "g" there?
John W. Dunsmore, Jr.: Yes, sir.
John Paul Stevens: And then there are brackets around the first part of it, and the brackets correspond with the jury's verdict, and the remainder corresponds with the instruction. Is it fair to infer that those brackets were inserted by the judge?
John W. Dunsmore, Jr.: I think that is the only thing that we could infer.
John Paul Stevens: Do you attach any significance to that?
John W. Dunsmore, Jr.: The only significance that--I do not attach any significance to it other than the fact--and I cannot explain why he may have put those there--other than maybe it was a mental exercise, and he was trying to parrot the jury's finding, as appears on page 80 of the appendix. In examining this case as to the--
Harry A. Blackmun: Could I just interrupt you one more--in connection with Mr. Justice Stevens' inquiry, certainly on pages 80 and 81 the presence of the alternative at the top on each page, to fix the punishment at life, would indicate that this is a printed form of some kind or at least a typed form submitted to the jury. And what is your Georgia law when he instructs that they shall designate in writing the aggravating circumstances and they do not other than to use the form?
John W. Dunsmore, Jr.: I am not too sure I understand your question, Mr. Justice Blackmun.
Harry A. Blackmun: Do you feel the jury in returning that form in each case complied with the instructions that you shall designate in writing the aggravating circumstances which you found beyond a reasonable doubt? I do not see any circumstances designated other than stating that the offense of murder was outrageously or wantonly vile.
John W. Dunsmore, Jr.: I think they did comply with it. And the reason I say they complied with it, in that they found or the instruction was submitted to them in this form--I think there are two reasons why or basically one reason perhaps why they should designate in writing and why the court also submits for them, for their guidance. And that probably is that when jurors are given instructions, there is a lot that they have to remember. In a death case, we want to make sure that the jury's discretion is channeled and that they find within the terms of whatever aggravating circumstance or circumstances are are given to them. And I believe that is generally the reason why the prosecutors prepare the--a form ahead of time for the juries. It is to assist in arriving at their--to make sure they use the language of the statute.
Warren E. Burger: They did not use all of the language of the statute though. The original record is lodged in the Court here, I take it.
John W. Dunsmore, Jr.: That is correct.
Warren E. Burger: Will that include the two sheets of paper that were signed by the jury foreman and to which Mr. Justice Blackmun was referring?
John W. Dunsmore, Jr.: That would, Mr. Chief Justice. That would be--
Warren E. Burger: Will you tell us whether those were typed up at the direction of the jurors, the foreman, or how they happened to be prepared.
John W. Dunsmore, Jr.: I do not believe it would tell us how they were prepared; that is, whether they were typed up at the direction of the judge, the state's attorney, or by the jurors. I believe that if they are in writing--and my memory escapes because I have been reading from the appendix--if they were in writing, more than likely--
Warren E. Burger: In longhand, you mean?
John W. Dunsmore, Jr.: Longhand, probably by the jury. And if they were typed out ahead of time, most likely prepared by the district attorney who presided over the case.
Thurgood Marshall: Just looking at pages 80 and 81, there are two verdicts. Would you tell me whether the jury found that the conduct was outrageously or that the conduct was wantonly? Which was it according to this?
John W. Dunsmore, Jr.: Well, they found--
Thurgood Marshall: Which was it, according to this? They found it was one or the other. Were they satisfied that something is one or the other?
John W. Dunsmore, Jr.: They found all of all of it--I know it is used in the word--
Thurgood Marshall: They did not say outrageously and wantonly. They said outrageously or want only.
John W. Dunsmore, Jr.: I believe the words "outrageously" or "wantonly" are somewhat synonymous.
Thurgood Marshall: And that is the normal language used in Americus, Georgia?
John W. Dunsmore, Jr.: This was not in Americus. This was in Cedartown. But--
Thurgood Marshall: In Cedartown. Is that normal, that something is outrageously and wantonly?
John W. Dunsmore, Jr.: Outrageous or wanton?
Thurgood Marshall: Or did this come straight from the judge's charge?
John W. Dunsmore, Jr.: The judge's charge uses those words. The state prosecutor uses those words.
Thurgood Marshall: So, the finding that and/or is a sufficient finding under charge of law, that the man is either guilty or not guilty or what? Where do you have a finding that uses "or"?
John W. Dunsmore, Jr.: I am not too sure I understand your question, Mr. Justice Marshall.
Thurgood Marshall: I asked you whether it was outrageously or wantonly, and you cannot answer.
Warren E. Burger: The terms "outrageously" and "wantonly," both in the statute and in that form, are adjectives to the terms, the words "vile," "horrible," or "inhuman," are they not?
John W. Dunsmore, Jr.: That is correct.
Thurgood Marshall: Now, I ask you, is it one or the other?
John W. Dunsmore, Jr.: I think it is all of them, although it could be one or the other. But I think it is all of them.
Thurgood Marshall: And it is sufficient to take a man's life?
John W. Dunsmore, Jr.: Well, it is sufficient to take a man's life when the facts support that beyond a reasonable doubt, which we contend they do support beyond a reasonable doubt.
Potter Stewart: The Court in Gregg rejected a constitutional attack on the seventh aggravating circumstance per se, did it not?
John W. Dunsmore, Jr.: Mr. Justice Stewart, if I were called in the opinion and the Court said we find no reason to believe that it would be applied too broadly or too vague--
Potter Stewart: And, therefore, we rejected the prosecutor's whole attack upon it.
John W. Dunsmore, Jr.: That is correct.
Potter Stewart: Per se on its language, which would include the--
John W. Dunsmore, Jr.: Per se, I would say, because the jury in Gregg did not even return that aggravating circumstances.
Potter Stewart: But you would include the disjunctive that Mr. Justice Marshall has just called to your attention--
John W. Dunsmore, Jr.: I do not believe that--
Thurgood Marshall: That was not the question that was presented in this case.
Potter Stewart: That is what the statute says, outrageously or wantonly.
Thurgood Marshall: Then I would wonder why we grant cert in this case.
William H. Rehnquist: General Dunsmore, I take it that the typical sentencing, the charging form in a capital case in Georgia the judge is not obligated--in fact, it would probably be error to charge on all of the ten statutory aggravating circumstances. For instance, I know Section 1 says it is an aggravating circumstance if the murder was committed by a person who has a substantial history of serious assault, of criminal convictions. If the defendant who is being tried did not have such a history, the judge would not submit that to the jury, would he?
John W. Dunsmore, Jr.: That is correct, Mr. Justice Rehnquist. He only submits those aggravating circumstances which the prosecutor has put the defendant on notice that he would seek the death penalty on, only those. It may be one, it may be two. And I suppose in some instances it could be three. But I think--
Byron R. White: I take it that in this case, the prosecutor, at least in his closing argument, said that this does not involve torture or an aggravated battery within the definition of the statute, but only outrageously or wantonly vile in that it displayed some depravity of mind. That was the argument?
John W. Dunsmore, Jr.: That is correct. And that was what--those are the words, and it is in the appendix. That is what he--that is what--that is how he phrased it. But I think it is important to keep in mind--
Byron R. White: You say the prosecutor gives notice to the defendant as to the aggravating circumstance?
John W. Dunsmore, Jr.: That is correct.
Byron R. White: But he just says like seven?
John W. Dunsmore, Jr.: Generally I would say--
Byron R. White: He did not give formal notice to the defendant as precisely as he argued to the jury?
John W. Dunsmore, Jr.: That I do not know. But I would not say he would have to set out word for word. I think it is sufficient to put him on notice that I am seeking the death penalty under the second aggravating circumstance, the seventh aggravating circumstance. And I cannot conceive of any incident where any lawyer appointed would not, if he did not know it, number two or number seven, would not go and look at the statute in Title XXVII to see just exactly what it was, what it involved.
Harry A. Blackmun: Let me interrupt you again. I take it this report or this form of the trial judge, is this made out and it goes to the appellate court in your state?
John W. Dunsmore, Jr.: That is correct, Mr. Justice Blackmun.
Harry A. Blackmun: One thing that is of interest to me, and I have not noticed it before, was this--this is question, I think it was 21. Was the victim physically harmed or tortured? Answer - No. And if yes, state extent of harm or torture. And he answers that saying, "Excluding the actual murdering of the two victims." I do not know whether that is a formal finding, which would exclude your argument--insinuation anyway--of torture here.
John W. Dunsmore, Jr.: I do not think it would because I think this is the judge's--how he puts it in his own terms. He makes a--it is sort of like an evaluation to go along. And this goes with the record for the Georgia Supreme Court--
Harry A. Blackmun: He obviously used it in forming his charge obviously because of that bracket that is on page 86.
John W. Dunsmore, Jr.: That is correct. And there may be--and there probably is some inconsistency because I think the facts would show that there is some torture, at least the anticipation of death as to the mother-in-law. And perhaps the judge at that time--many of us think of torture in the terms of the McCorquodale sense or the Dix sense where they are taking a knife or cutting a person.
Byron R. White: Here is what the prosecutor said. You know what the prosecutor said in his closing argument on page 75 of the appendix - "Of course you cannot find there was torture. There wasn't any torture." That is his argument to the jury. Are you suggesting that the jury nevertheless thought there might be torture here?
John W. Dunsmore, Jr.: It could be because the jury the law not from the district attorney and his argument, but from the judge.
Byron R. White: I understand that.
Warren E. Burger: We will resume there at 1:00 o'clock, counsel.