Interpretations by various courts throughout the nation give effect to this limitation, ultimately by construing the entire provision in a manner that results in the second portion being the essential finding. See Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. den., 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 611 (1980); Turner v. Commonwealth, 221 Va. 513, 273 S.E.2d 36, 44-45 (1980), cert. den., 451 U.S. 1011, 101 S.Ct. 2347,68 L.Ed.2d 863 (1981). In effect, although these courts do require two independent findings (that the offense (1) is "outrageously or wantonly vile, horrible or inhuman," and (2) involves torture, depravity or aggravated battery), in applying the construction, the first part of the provision is rendered nugatory.
The conviction and sentence were affirmed on direct appeal. Hance v. State, 245 Ga. 856 ( 268 S.E.2d 339) (1980), cert. denied, 449 U.S. 1067 (1980). After exhausting his state habeas remedies, Hance filed a petition for habeas corpus in the U.S. District Court for the Middle District of Georgia which was denied.
This clearly constitutes torture. See Hill v. State, 246 Ga. 402, 409-410 ( 271 S.E.2d 802) (1980); Hance v. State, 245 Ga. 856, 861 ( 268 S.E.2d 339) (1980). 9.
These are words of common understanding having essentially the same meaning and are intended to help distinguish non-capital murders from those in which a death sentence may be appropriate. Hance v. State, 245 Ga. 856, 861 ( 268 S.E.2d 339) (1980). Second, the offense of murder must involve either torture, depravity of mind, or an aggravated battery to the victim (or a combination of these three elements).
"Torture occurs when the victim is subjected to serious physical abuse before death." Hance v. State, 245 Ga. 856, 861 (3) ( 268 S.E.2d 339) (1980). "An aggravated battery occurs when `[a] person . . . maliciously causes bodily harm to another by . . . seriously disfiguring his body or a member thereof.' [OCGA ยง 16-5-24 (a) (Code Ann. ยง 26-1305)]."
See Gilreath v. State, supra, 247 Ga. at 836. As can be seen, the evidence is sufficient to allow a rational trier of fact to find torture or aggravated battery as well as depravity of mind.Hance v. State, 245 Ga. 856 (3) ( 268 S.E.2d 339) (1980). Defendant points out that the jury was charged incorrectly in the following language: "In that it involved torture and depravity of mind, or an aggravated battery."
Notwithstanding the minor inconsistency referred to above, the evidence presented to the issuing magistrate was such as would lead a reasonably cautious person to believe that appellant had committed the offense. Hance v. State, 245 Ga. 856 ( 268 S.E.2d 339) (1980). 2.
Id. at 428. See Hance v. State, 245 Ga. 856 ( 268 S.E.2d 339) (1980); Cape v. State, 246 Ga. 520 ( 272 S.E.2d 487) (1980). The prosecution in the original case against the appellant proved beyond a reasonable doubt facts sufficient to support a sentence of death upon a finding of an aggravating circumstance under Code Ann. ยง 27-2534.
The defendant having chosen to waive his rights (and there being no misconduct on the part of the investigating officers), the trial court did not err in admitting these statements. Hance v. State, 245 Ga. 856 (2) ( 268 S.E.2d 339) (1980). 8.
The appellant contends that the trial court erred in imposing the sentence of death in that under the Georgia statute as applied, there is a substantial risk that the death penalty will be inflicted in an arbitrary and capricious manner. This argument has been raised before and decided adversely to the appellant's position. Gregg v. Georgia, 428 U.S. 153 ( 96 S.C. 2909, 49 L.Ed.2d 859) (1976); Hance v. State, 245 Ga. 856 ( 268 S.E.2d 339) (1980); Cape v. State, 246 Ga. 520 ( 272 S.E.2d 487) (1980). 12.