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High court weighs 'emotional' testimony in death penalty cases

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POSTED: February 8, 2011 9:15 a.m.

ATLANTA — Just before a jury began debating how to punish the man convicted of killing her sister, Kellie Wiggins took the witness stand and urged them not to forget one thing about the victim: "No one gave compassion to her. No one fought for her life."

Emotional pleas like this are at the center of a death penalty case Monday before the Georgia Supreme Court that could shape how much leeway witnesses get in asking for strict punishments. A decision by the court, which did not immediately rule, will be closely watched because it could open up new avenues for death penalty appeals.

Nicholas Jason Bryant's attorneys contend that the trial court should not have allowed the raw testimony from Wiggins, whose sister Marie Richards was found shot in the head in May 2004 in a kudzu-covered ditch in Douglas County near the dead body of 68-year-old Billy Joe Kilgore.

Bryant's attorney John Harbin pointed out that his client was sentenced to death for Richards death but given life in prison for the fatal shooting of Kilgore, whose daughter made less strident statements during her turn on the stand.

"We had a carefully drafted early closing arguments against mercy and in favor of the death penalty," said Harbin. "We're not doubting the sincerity, but the statements exceed permissible bounds."

State attorneys countered that the testimony was a mere blip among the "overwhelming evidence" mounted against Bryant, who was convicted of shooting Kilgore in a drug deal that went sour and then turning the gun against Richards, who was 36, to eliminate a possible witness.

Prosecutor Emily Roselli said Wiggins never once uttered words like "death penalty" or "maximum sentence," which could have tainted the sentencing phase. She said there's no restrictions that bar witnesses from making inferences about the sentences.

"The test is what was actually in the victim's statement and whether that is so inflammatory that it would impact the sentence," she said. "And that is not the case here."

Bryant was riding in a car with Kilgore and Richards to buy drugs when prosecutors say the two men got into an argument, and one of them pulled out a revolver.

Bryant claimed that Kilgore leapt at him with a gun and that he acted in self-defense when he shot him, but prosecutors said ballistics evidence suggested otherwise. A jail inmate also testified that Bryant told him he killed Richards because "she was a liability, because she could identify him."

The case appears to be the first time the court has debated the issue, Harbin said. He urged the court to resolve the debate, or else the only emotional victim statements banned at sentencing trials would be the "naked plea 'Please sentence this defendant to death.'

 

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