Summary:

Hicks saw 28 year old Toni Strickland Rivers talking to her boyfriend on a pay phone at a rural grocery store, and he followed her as she left. Hicks did not know her, and tried to abduct her but she escaped.

He chased after her, caught her, stabbed her and nearly decapitated her with a knife. Rivers was not raped, but she was stripped naked from the waist down.

Hicks was picked up by a sheriff's deputy near the murder scene after his car ran out of gas. A bloody knife later determined to be the murder weapon was found in his pocket.

His pants, socks, and car seat were stained with the victim's blood. A pair of women's shorts, sandals and a key ring with the initials "T.R." were found in the car.

Hicks initially told authorities he killed Rivers, and he claimed at trial that he was insane. His doctor said he suffered from a disorder that prevented him from controlling his impulses. But recently, Hicks has said he was innocent and that a drug dealer and another man committed the murder.

Hicks was a convicted rapist who had been released just nine months before killing Rivers. He was granted parole after serving less than half of a 15-year sentence for raping a 16-year-old girl.

Citations:

Hicks v. State, 352 S.E.2d 762 (Ga.,1987) (Direct Appeal).
Hicks v. Head, 333 F.3d 1280 (11th Cir. 2003) (Habeas).

Final Meal:

Fish, shrimp, french fries, coleslaw, crescent rolls, chocolate cake, a vanilla milkshake and a soda.

Final Words:

"I would like to apologize for everything I did. I'm sorry. God forgive me. Come get me, Warden."

ClarkProsecutor.org

Georgia Department of Corrections

(Robert Karl Hicks)

Inmate #82092
DOB: 03/23/1957
RACE: WHITE
GENDER: MALE
HEIGHT: 5'07"
WEIGHT: 135
EYE COLOR: Brown
HAIR COLOR: Brown
COUNTY: Spalding County

Execution Date Set For Spalding County Murderer

Robert Karl Hicks to be executed on Wednesday, June 30, 2004

Atlanta - The Spalding County Superior Court has ordered the execution of convicted murderer Robert Karl Hicks, age 47. The Court ordered the Department to carry out the execution between noon on June 29, 2004 and ending seven days later at noon on July 6, 2004.

The execution is scheduled to take place at the Georgia Diagnostic and Classification Prison in Jackson at 7:00 p.m. on Wednesday, June 30, 2004.

Hicks was sentenced to death in January, 1986 for the July, 1985 murder of 28-year-old Toni Strickland Rivers. On July 13, 1985, Ms. Rivers was waiting for a friend in a public park when she disappeared. That night, two men driving down a country road heard a scream and saw a man making stabbing motions. Ms. Rivers bled to death.

If executed, Hicks will be the 12th inmate put to death by lethal injection.

Georgia Attorney General

Attorney General Baker Announces Execution Date for Robert Karl Hicks

(June 21, 2004)

Georgia Attorney General Thurbert E. Baker offers the following information in the case against Robert Karl Hicks, who is currently scheduled to be executed at 7:00 p.m. on June 30, 2004.

Scheduled Execution

On June 17, 2004, the Superior Court of Spalding County filed an order, setting the seven-day window in which the execution of Robert Karl Hicks may occur to begin at noon, June 29, 2004, and end seven days later at noon on July 6, 2004. The Commissioner of the Department of Corrections has set the specific date and time for the execution as 7:00 p.m., June 30, 2004, pursuant to the discretion given the Commissioner under state law. Robert Karl Hicks has concluded his direct appeal, as well as state and federal habeas corpus proceedings.

Hicks’ Crimes

The Supreme Court of Georgia summarized the facts of the Hicks’ case as follows:

Early in the evening of July 13, 1985, the victim, Toni Rivers, drove to an area on Rawls Road to meet a friend with whom she planned to visit Callaway Gardens. When the friend arrived, the victim's automobile was there, but the victim was not.

At about 8:00 p.m. that evening, a resident of Blanton Mill Road heard a loud scream from a nearby pasture area, and then a woman's voice saying, "Don't do that." He saw a car parked near the end of his driveway and walked to it. From there, he looked over a fence, through a gap in the woods, and into the pasture, where he saw someone lying on the ground and saw someone else "jump from the other side [and then] hunker down."

He flagged down two men driving by in a pickup and told them to call the police, that something was going on in the pasture. The two men, Robbie McCune and Charles Garner, heard screams themselves, and, looking toward the pasture, saw a shirtless man with blond hair and a black beard bending over and making stabbing motions.

Garner testified that as the man straightened up, he wiped something off and put it into his pocket. Garner and McCune got the license number of the car parked by the side of the road and drove away to find a telephone. As they did, they saw the blond male exit the woods, get into his car, drive a few yards up the road, and stop. (The car had run out of gas.)

Garner and McCune found a telephone at the first house down the road, called the sheriff, and returned just in time to see the blond male climb into the back of a black pickup that had stopped to give him a ride. A deputy sheriff approached the area and McCune flagged him down. He told the deputy that the man he had called about was in the back of the other pickup. Meanwhile, Garner got out and ran to the pasture to find the woman.

Sheriff's deputy Chuck Hudson testified that Garner and McCune "flagged me down and told me that the guy sitting in the back of the [pickup] I had just passed was the one they had seen . . . in the wooded area where . . . all the screaming and all had taken place . . . [W]hen they told me that, I turned around and went back and stopped the black pickup truck." Hudson was informed by the driver, whom he knew, that the man in the back had asked for a ride to a gas station.

Hudson asked the man, whom he later identified as the defendant, if he knew anything about a girl or if he had heard anything in the area. The defendant answered negatively. Hudson offered to help the defendant with his car problems, and told him that if "everything was all right, I'd help him get some gas and get his car going."

Then, Hudson testified, "Mr. Hicks came down off the truck and started to get in the back of my patrol car, and I made him stop, and I searched him." Hudson found a "folding pocket knife" in the defendant's right front pocket, that was covered in a "dark red substance that appeared to be blood -- fresh blood."

Meanwhile, Garner had found the victim, nude from the waist down and covered with blood. She told him she was dying. When Hudson and another deputy arrived at the scene, she begged for help, saying she could not breathe. She clawed at the ground making choking noises until just before the EMT's arrived, when she stopped moving. She soon died.

The victim had "five large, gaping lacerations of the throat . . ., an open gash on the abdomen . . . and eight stab wounds." She died from a near-total loss of blood.

Inside the defendant's automobile, deputy Hudson discovered a pair of women's shorts, a bloody pair of men's socks, a pair of sandals, and a key ring with the initials "T. R." Blood on the seat of the car, and on the defendant's pants, socks and knife, was identified as being consistent with that of the victim.

Hicks v. State, 256 Ga. 715-716, 352 S.E.2d 762 (1987).

The Trial Proceedings

The Spalding County Grand Jury indicted Hicks for the murder of Toni Rivers during the October Term, 1985. Hicks was tried on January 13-16, 1986, and found guilty as charged in the indictment by a jury in the Superior Court of Spalding County, Georgia on January 16, 1986. On January 17, 1986, Hicks was sentenced to death for the murder.

The Direct Appeal Proceeding

The Supreme Court of Georgia affirmed Hicks’ conviction and sentence on February 13, 1987. Hicks v. State, 256 Ga. 715, 352 S.E.2d 762 (1987). Hicks’ motion for reconsideration was denied by the Supreme Court of Georgia on March 3, 1987. Hicks’ petition for writ of certiorari was denied by the United States Supreme Court on June 15, 1987. Hicks v. Georgia, 482 U.S. 931 (1987).

First State Habeas Corpus Petition

Hicks, represented by John Relman and George H. Kendall, filed his first petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia on September 4, 1987. Following an evidentiary hearing on December 12-13, 1988, the state habeas corpus court denied Hicks state habeas corpus relief on December 28, 1988. Hicks’ application for a certificate of probable cause to appeal filed in the Supreme Court of Georgia was denied on October 5, 1989. Hicks’ petition for writ of certiorari was denied by the United States Supreme Court on April 2, 1990 in Hicks v. Kemp, 494 U.S. 1074 (1990).

First Federal Habeas Corpus Petition

Hicks filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Georgia, Newnan Division, on December 11, 1990. The district court dismissed the petition without prejudice on February 22, 1991.

Second State Habeas Corpus Petition

Hicks filed his second petition for a writ of habeas corpus in the Superior Court of Butts County, Georgia, on May 31, 1991. Following a hearing conducted on November 23, 1992, the state habeas corpus court dismissed this petition as successive on March 3, 1994. Hicks then filed an application for a certificate of probable cause to appeal in the Supreme Court of Georgia which was denied on September 30, 1994. Hicks’ petition for a writ of certiorari was denied by the Supreme Court of United States on March 20, 1995.

Second Federal Habeas Corpus Petition

Hicks filed his second petition for a writ of habeas corpus in the United States District Court for the Northern District of Georgia, Newnan Division, on April 24, 1997. The district court denied relief to Hicks on September 5, 2000. The federal district court denied a motion to alter and amend judgment on February 23, 2001. On March 28, 2001, Hicks filed an application for certificate of appealability. On May 1, 2001, the United States District Court denied Hicks’ application for certificate of appealability.

Appeal to the Eleventh Circuit

State executes man for 1985 stabbing

AccesNorthGeorgia.com

AP July 2, 2004

Moments before his execution, Robert Karl Hicks apologized for his crimes and begged for God's mercy. "I would like to apologize for everything I did. I'm sorry. God forgive me," Hicks said as he was strapped to the gurney, ready to receive a lethal injection. His last words were, "Come get me," after a clergyman said a short prayer.

Hicks, 47, stabbed Toni Strickland Rivers eight times with a pocket knife, slit her throat and left her half-nude body in a field near Griffin, about 35 miles south of Atlanta, on July 13, 1985.

He was pronounced dead at 5 p.m. on Thursday, 22 hours after he was originally scheduled to die. The Georgia Supreme Court had put his death sentence on hold for a day but then allowed it to proceed Thursday afternoon. "The emotion that's overwhelming at this moment is relief," said Cary Grubbs, the victim's brother-in-law. "Forgiveness is a word that still sticks in the throat for us. However, we'll have to let go of the anger we have." Hicks took several deep, quivering breaths as the deadly chemicals entered his body. He closed his eyes and his breathing drew shallower until they stopped.

The prosecutor of Hicks' case at trial, David Fowler, said he was satisfied to finally hear Hicks express remorse over what he had done. Over the years, Hicks claimed he was insane and that drug dealers had set him up. "He very carefully tried to cover it up from the moment he did it," Fowler said. "That is not someone who's out of his mind. .. I'm just glad justice has finally been completed."

For his last meal, Hicks ate a few bites each of fish, shrimp, french fries, coleslaw, crescent rolls, chocolate cake, a vanilla milkshake and a soda. He did not finish eating any of the items. The execution was the first in Georgia this year and the state's 35th since the U.S. Supreme Court reinstated the death penalty in 1976.

Hicks, a construction worker, was a convicted rapist who had been released just nine months before killing Rivers. He was granted parole after serving less than half of a 15-year sentence for raping a 16-year-old girl. He saw Rivers talking to her boyfriend on a pay phone at a rural grocery store, and he followed her as she left, Fowler said. Hicks did not know her. Hicks tried to abduct Rivers but she escaped, Fowler said. Then he chased after her with the knife and nearly decapitated her. Rivers was not raped, but she was stripped naked from the waist down. "It was just a random act," Fowler said.

Hicks was picked up by a sheriff's deputy near the murder scene after his car ran out of gas. A bloody knife later determined to be the murder weapon was found in his pocket. His pants, socks, and car seat were stained with the victim's blood. A pair of women's shorts, sandals and a key ring with the initials "T.R." were found in the car, court records show.

ProDeathPenalty.com

A death row inmate apologized "for everything I did" before he was put to death Thursday for slitting a woman's throat in 1985. The slaying occurred nine months after Robert K. Hicks was released from prison on a rape conviction. "I would like to apologize for everything I did. I'm sorry. God forgive me," the 47-year-old Hicks said moments before the lethal injection was administered. His last words were, "Come get me," after a clergyman said a short prayer.

The Georgia Supreme Court had put the execution on hold for a day, then decided 5-2 Thursday to allow it to proceed. Also Thursday, the U.S. Supreme Court without comment denied a final appeal. Hicks allegedly stabbed Toni Strickland Rivers, 28, eight times with a pocket knife, slit her throat and left her body -- nude from the waist down -- in a field near Griffin, about 35 miles south of Atlanta. Hicks did not know the woman and had followed her from a rural grocery store where she was using a pay phone.

National Coalition to Abolish the Death Penalty

Robert Hicks, GA - June 30, 7 PM EST

The state of Georgia is scheduled to execute Robert Hicks, a white man, June 30 for the 1985 murder of Toni Strickland Rivers in Spalding County. Mr. Hicks suffers from organic brain damage, yet was not granted funds to hire a psychiatrist until one business day before his trial.

The Supreme Court ruled in Ake v. Oklahoma that indigent defendants have a right to the “basic tools of defense” including expert witnesses. In this case, the trial judge repeatedly refused to grant requests for independent psychiatric assistance (in an effort to save county money) for months prior to Mr. Hicks’s capital murder trial, while simultaneously acknowledging that mental health issues would be a significant factor at trial. Funds were granted so late that the defense was forced to start trial, and argue a plea of “not guilty by reason of insanity” without time to meaningfully prepare or present a psychiatric defense.

Upon examining Mr. Hicks, defense psychiatrist Dr. Andrea Bradford stated that she saw evidence of severe neurological damage, and that a neurologist was needed to conduct further tests. The defense immediately informed the trial judge and requested funds for these tests. The defense was denied funds. The defense requested a continuance so that Dr. Bradford could further interview Mr. Hicks, review his medical records, interview family members, and consult on trial strategy. The request for a continuance was denied.

During trial, the prosecutor attacked Dr. Bradford’s testimony because she was not a neurologist. A state expert, Dr. Donald Grigsby, testified that while he was not a neurologist, his supervisor, Dr. Parekh – who was repeatedly referred to as a “board-certified neurologist” – had reviewed every detail of Mr. Hicks case and determined that he was not brain damaged and that no further testing was needed. This testimony later proved to be false. Dr. Parekh was not board-certified or a neurologist, and no neurological testing had been done.

In a post-trial affidavit, Dr. Jonathan Pinkus, the chair of the Department of Neurology at Georgetown University Hospital, and a board-certified neurologist, testified that Mr. Hicks suffered from organic brain damage, caused by fetal alcohol exposure and several head traumas including prolonged beatings by his stepfather. This evidence demonstrates that Mr. Hicks’s behaviors were the result of a medically proven, physiological condition of the brain that he had no control over.

If Mr. Hick had been in a higher income bracket, he and his family could have secured a psychiatrist soon after his arrest, not one day before trial; or, with advance notice his defense could have secured a neurologist to work on a reduced-fee or pro-bono basis. As it stands, the jury sentenced Mr. Hicks to death based on false evidence. Because Mr. Hicks was given late provision of expert psychiatric services, he was deprived of the ability to produce a defense based upon his mental condition.

This is a clear example of the sub-par justice administered to lower-income defendants. If the state is going to deal in the machinations of death, it must be ensured that equal justice is provided for all, regardless of race or class. Please take a moment to contact Gov. Sonny Perdue and the board of Pardons and Parole and urge them to stop the execution of Robert Hicks and recommend that he be granted a new trial.

Georgians for Alternatives to the Death Penalty

Background

Robert Karl Hicks, 47-year-old white male, has been on death row for 15 years. The Spalding County Superior Court has ordered the execution to take place at the Georgia Diagnostic and Classification Prison in Jackson at 7:00 p.m. on Wednesday, June 30, 2004.

Prior to Mr. Hicks’ trial, the judge refused to grant funds for a defense psychiatric expert (despite months of repeated requests and no dispute that psychiatric issues were a critical issue in the case) until the eve of trial, and therefore obtained an expert, rendered virtually useless to the defense. At trial the expert retained did, however, opine that Mr. Hicks showed signs of organic brain damage and required further assessment by a qualified neurologist to confirm the diagnosis. Thereafter, the judge refused the defense’s immediate request for time to complete the ongoing evaluation and to conduct a follow-up neurological evaluation.

The prosecution dismantled the defense relying upon the testimony of their own expert who falsely claimed that a “board certified” neurologist had conducted the appropriate neurological evaluation and concluded with certainty that Mr. Hicks was not brain damaged. That testimony was false in that no such evaluation had been done; no neurologist (board certified or otherwise) had assessed Mr. Hicks; and, Mr. Hicks is in fact brain damaged as proven in unchallenged, unrebutted post-trial testimony.

In short, the jury sentenced Mr. Hicks to death with the false belief that his violent conduct was the product of an “anti-social” personality, rather than the accurate understanding that it resulted from organic brain damage that was medically provable and morally exonerating in terms of Mr. Hicks’ personal responsibility for his condition and its impact on his conduct.

The United Nations Commission for Human Rights has repeatedly passed resolutions calling for an end to the use of the death penalty against anyone with any form of mental disorder. Amnesty International opposes the death penalty unconditionally. While 112 countries are abolitionist in law or practice, the USA has put 878 prisoners to death since resuming executions in 1977, including 58 this year.

Ga. board won't halt execution

by Harry R. Weber - News

Associated Press June 29, 2004

ATLANTA -- Georgia's parole board denied clemency yesterday for a death row inmate who argued that the prosecutor improperly suggested at trial that the Ten Commandments do not recognize insanity as a defense for murder. Parole board spokeswoman Heather Hedrick said the defense arguments were not compelling enough to stop the execution of Robert Karl Hicks, 47. Barring any successful last-minute appeals, Hicks will be put to death tomorrow for killing 28-year-old Toni Strickland Rivers in 1985.

At trial, Hicks had pleaded insanity, and a defense psychiatrist testified that Hicks had a disorder that rendered him unable to control his impulses. In asking for clemency or at least a 90-day stay, Hicks's lawyers said jurors followed the prosecutor's instructions to apply divine law, and spent part of their deliberations in group prayer.

The defense lawyers said prosecutor David Fowler told jurors that the Ten Commandments make no provision for mental illness. ''Does it say, `Thou shalt not kill, and be held accountable only if you know what you're doing?' No, it doesn't say that," the lawyers quoted the prosecutor as saying. Fowler dismissed the defense arguments. ''Obviously, when people are in desperate straits, they take desperate measures," he said.

Defense lawyers August Siemon and Robert McGlasson did not return several phone calls seeking comment on the parole board decision. The execution would be Georgia's first this year.

Robert Karl Hicks

The Atlanta Journal-Constitution

June 18, 2004

The Spalding County Superior Court has ordered the execution of convicted murderer Mr. Hicks Karl Hicks, age 47. The Court ordered the Department to carry out the execution between noon on June 29, 2004 and ending seven days later at noon on July 6, 2004.

The execution is scheduled to take place at the Georgia Diagnostic and Classification Prison in Jackson at 7:00 p.m. on Wednesday, June 30, 2004.

State executes man for 1985 stabbing

By Mark Niesse - Columbus Ledger Enquirer

AP July 2, 2004

JACKSON, Ga. - Moments before his execution, Robert Karl Hicks apologized for his crimes and begged for God's mercy. "I would like to apologize for everything I did. I'm sorry. God forgive me," Hicks said as he was strapped to the gurney, ready to receive a lethal injection. His last words were, "Come get me," after a clergyman said a short prayer.

Hicks, 47, stabbed Toni Strickland Rivers eight times with a pocket knife, slit her throat and left her half-nude body in a field near Griffin, about 35 miles south of Atlanta, on July 13, 1985. He was pronounced dead at 5 p.m. on Thursday, 22 hours after he was originally scheduled to die. The Georgia Supreme Court had put his death sentence on hold for a day but then allowed it to proceed Thursday afternoon.

"The emotion that's overwhelming at this moment is relief," said Cary Grubbs, the victim's brother-in-law. "Forgiveness is a word that still sticks in the throat for us. However, we'll have to let go of the anger we have." Hicks took several deep, quivering breaths as the deadly chemicals entered his body. He closed his eyes and his breathing drew shallower until they stopped.

The prosecutor of Hicks' case at trial, David Fowler, said he was satisfied to finally hear Hicks express remorse over what he had done. Over the years, Hicks claimed he was insane and that drug dealers had set him up. "He very carefully tried to cover it up from the moment he did it," Fowler said. "That is not someone who's out of his mind. .. I'm just glad justice has finally been completed."

For his last meal, Hicks ate a few bites each of fish, shrimp, french fries, coleslaw, crescent rolls, chocolate cake, a vanilla milkshake and a soda. He did not finish eating any of the items. The execution was the first in Georgia this year and the state's 35th since the U.S. Supreme Court reinstated the death penalty in 1976.

Hicks, a construction worker, was a convicted rapist who had been released just nine months before killing Rivers. He was granted parole after serving less than half of a 15-year sentence for raping a 16-year-old girl.

He saw Rivers talking to her boyfriend on a pay phone at a rural grocery store, and he followed her as she left, Fowler said. Hicks did not know her. Hicks tried to abduct Rivers but she escaped, Fowler said. Then he chased after her with the knife and nearly decapitated her. Rivers was not raped, but she was stripped naked from the waist down. "It was just a random act," Fowler said.

Hicks was picked up by a sheriff's deputy near the murder scene after his car ran out of gas. A bloody knife later determined to be the murder weapon was found in his pocket. His pants, socks, and car seat were stained with the victim's blood. A pair of women's shorts, sandals and a key ring with the initials "T.R." were found in the car, court records show.

Georgia parole board denies clemency for death row inmate who said Bible references tainted trial

AccessNorthGeorgia.com

(AP) - Georgia's parole board denied clemency Monday for a death row inmate whose lawyers argued the prosecutor improperly suggested at trial that the Ten Commandments do not recognize insanity as a defense for murder. Robert Karl Hicks' lawyers said in their clemency petition that jurors followed the prosecutor's instructions to apply divine law and spent the early part of their deliberations "in group prayer."

His lawyers had asked the state parole board to commute the death sentence or at least grant a 90-day stay. The parole board rejected the petition. Spokeswoman Heather Hedrick said nothing the lawyers argued was compelling enough to stop the execution.

Barring any successful last-minute appeals, the 47-year-old Hicks will die by injection Wednesday for killing 28-year-old Toni Strickland Rivers on July 13, 1985. Defense lawyers August Siemon and Robert McGlasson did not return several phone calls seeking comment on the parole board decision. The lawyers argued that the prosecutor's repeated references to the Bible during the trial were improper and Hicks' recent statements that someone else committed the slaying should be investigated.

The man who handled the prosecution, David Fowler, said there's no merit to the arguments. "Obviously, when people are in desperate straits, they take desperate measures and that's what he's apparently doing," said Fowler, who now works for a support group for state prosecutors. Hicks had used an insanity defense at his trial for Rivers' murder. A defense psychiatrist who met with Hicks diagnosed him with "intermittent explosive disorder," which the doctor said rendered Hicks unable to control his impulses.

In their petition, Hicks' lawyers said Fowler told jurors that the Ten Commandments make no provision for differing mental states. "Thou shalt not kill, He said in the Ten Commandments," the lawyers quoted the prosecutor as saying. "Does it say, thou shalt not kill, and be held accountable only if you know what you're doing? No, it doesn't say that."

Hicks' lawyers wrote: "The prosecutor thus told the jury that God forbids their consideration of Mr. Hicks' sole defense at trial." Fowler said he doesn't recall making those specific comments, but he doesn't dispute them. "The only way I would have brought up the Biblical response is if the defense said something in their closing about the Bible," Fowler said.

The lawyers also cited a statement by Hicks to the parole board last week in which he claimed that a drug dealer and another man were responsible for the murder. Hicks said he never mentioned the claims before because a fellow inmate approached him in jail and told him that if he wanted to prevent his family from being harmed he would "keep his mouth shut" and "take the fall." But Fowler noted that the murder weapon was found in Hicks' possession and his clothes were covered in the victim's blood when he was arrested. "The man was caught red-handed and now he's trying to pass it off on somebody else," Fowler said.

Authorities say Hicks never knew Rivers, but followed her after seeing her at a rural pay phone. They say Hicks stabbed Rivers eight times with a pocket knife, slit her throat and left her body in a field near Griffin, 35 miles south of Atlanta. Hicks was previously convicted of raping a 16-year-old girl. He was released from prison nine months before the murder, after serving only six years of a 15-year sentence.

Rivers' brother-in-law, Cary Grubbs, said the execution should go forward. "We don't have any misgivings at all that the trial was fair and just, that the sentence was fair and just and that when the sentence is carried out on Wednesday that justice will be served," Grubbs said.

The execution would be Georgia's first this year and 35th since the U.S. Supreme Court reinstated the death penalty in 1976. For his last meal, Hicks requested fish, shrimp, french fries, cole slaw, crescent roles, chocolate cake, a vanilla milkshake and a soda.

Hicks v. State, 352 S.E.2d 762 (Ga.,1987) (Direct Appeal).

Defendant was convicted in the Superior Court, Spalding County, Andrew J. Whalen, J., of malice murder and sentenced to death, and he appealed. The Supreme Court, Smith, J., held that: (1) shackling of defendant was justified and did not deny him fair trial; (2) regardless of whether defendant was advised of his Miranda rights by state's psychologist, admission of testimony of psychologist did not violate Fifth Amendment; and (3) insanity laws that did not provide for impulse-control disorder insanity defense were not constitutionally inadequate. Affirmed.

SMITH, Justice.

Appellant, Robert Karl Hicks, was convicted by a Spalding County jury of malice murder and sentenced to death. We affirm.

Early in the evening of July 13, 1985, the victim, Toni Rivers, drove to an area on Rawls Road to meet a friend with whom she planned to visit Callaway Gardens. When the friend arrived, the victim's automobile was there, but the victim was not. At about 8:00 p.m. that evening, a resident of Blanton Mill Road heard a loud scream from a nearby pasture area, and then a woman's voice saying, "Don't do that." He saw a car parked near the end of his driveway and walked to it. From there, he looked over a fence, through a gap in the woods, and into the pasture, where he saw someone lying on the ground and saw someone else "jump from the other side [and then] hunker down."

He flagged down two men driving by in a pickup and told them to call the police, that something was going on in the pasture. The two men, Robbie McCune and Charles Garner, heard screams themselves, and, looking toward the pasture, saw a shirtless man with blond hair and a black beard bending over and making stabbing motions. Garner testified that as the man straightened up, he wiped something off and put it into his pocket.

Garner and McCune got the license number of the car parked by the side of the road and drove away to find a telephone. As they did, they saw the blond male exit the woods, get into his car, drive a few yards up the road, and stop. (The car had run out of gas.)

Garner and McCune found a telephone at the first house down the road, called the sheriff, and returned just in time to see the blond male climb into the back of a black pickup that had stopped to give him a ride. A deputy sheriff approached the area and McCune flagged him down. He told the deputy that the man he had called about was in the back of the other pickup. Meanwhile, Garner got out and ran to the pasture to find the woman.

Sheriff's deputy Chuck Hudson testified that Garner and McCune "flagged me down and told me that the guy sitting in the back of the [pickup] I had just passed was the one they had seen ... in the wooded area where ... all the screaming and all had taken place ... [W]hen they told me that, I turned around and went back and stopped the black pickup truck." Hudson was informed by the driver, whom he knew, that the man in the back had asked for a ride to a gas station.

Hudson asked the man, whom he later identified as the defendant, if he knew anything about a girl or if he had heard anything in the area. The defendant answered negatively. Hudson offered to help the defendant with his car problems, and told him that if "everything was all right, I'd help him get some gas and get his car going."

Then, Hudson testified, "Mr. Hicks came down off the truck and started to get in the back of my patrol car, and I made him stop, and I searched him." Hudson found a "folding pocket knife" in the defendant's right front pocket, that was covered in a "dark red substance that appeared to be blood--fresh blood."

Meanwhile, Garner had found the victim, nude from the waist down and covered with blood. She told him she was dying. When Hudson and another deputy arrived at the scene, she begged for help, saying she could not breathe. She clawed at the ground making choking noises until just before the EMT's arrived, when she stopped moving. She soon died. The victim had "five large, gaping lacerations of the throat ..., an open gash on the abdomen ... and eight stab wounds." She died from a near-total loss of blood.

Inside the defendant's automobile, deputy Hudson discovered a pair of women's shorts, a bloody pair of men's socks, a pair of sandals, and a key ring with the initials "T.R." Blood on the seat of the car, and on the defendant's pants, socks and knife, was identified as being consistent with that of the victim.

1. In enumerations one through four and 24, Hicks argues that the evidence does not support the conviction and that his motion for directed verdict and his motion for new trial on this ground should have been granted. We disagree, and find the evidence sufficient under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and Brown v. State, 250 Ga. 66(2), 295 S.E.2d 727 (1982).

2. In his 5th enumeration, Hicks argues that his motion to suppress should have been granted on the ground that the arrest and the searches and seizures were unsupported by probable cause. We find no error. Deputy Hudson was fully authorized by the circumstances to conduct a pat-down search of the defendant for weapons. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)

Aside from the knife discovered on the defendant's person, the only items seized came from the defendant's car. After finding the victim in the area from where Garner and McCune had heard the screams and had seen the defendant making stabbing motions before emerging from the woods, and after discovering on the person of the defendant a bloody knife, deputy Hudson looked into the defendant's car and observed items of women's clothing. The subsequent entry into the automobile was supported by probable cause.

* * * *

The sentence of death is not excessive or disproportionate punishment for a vicious and brutal murder committed by a defendant with a prior conviction of a capital felony.

Hicks v. Head, 333 F.3d 1280 (11th Cir. 2003) (Habeas).

State prisoner whose capital murder conviction was affirmed on appeal, 352 S.E.2d 762, petitioned for writ of habeas corpus. The United States District Court for the Northern District of Georgia, No. 97-00051-CV-3-JTC, Jack T. Camp, J., denied the petition, and petitioner appealed. The Court of Appeals, Dubina, Circuit Judge, held that: (1) in a matter of first impression in the Eleventh Circuit, an Ake error is trial error, and is therefore subject to harmless error analysis, and (2) any Ake error that occurred in petitioner's murder trial was harmless. Affirmed.

DUBINA, Circuit Judge:

Petitioner Robert Karl Hicks ("Hicks"), a death row inmate, appeals the district court's order denying him federal habeas relief pursuant to 28 U.S.C. § 2254>. We granted Hicks's motion for a Certificate of Appealability ("COA") [FN1] on a question of first impression for our circuit: whether violations of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), are subject to harmless error analysis and, if so, whether the trial court's denial of psychiatric assistance until a few days before trial, in violation of Ake, constitutes harmless error. Joining several other circuits, we hold that Ake violations are amenable to harmless error analysis, and we conclude that the Ake violation in this case was harmless. Accordingly, we affirm the judgment of the district court denying habeas relief.

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On June 13, 1985, a jury in Spalding County, Georgia, found Hicks guilty of the malice murder of Toni Rivers and recommended that the court impose a death sentence. The jury found three statutory aggravating circumstances: the offense of murder was committed by a person with a prior record of conviction for a capital felony, rape; the offense was committed while the offender was engaged in the commission of the offense of aggravated battery; and the offense of murder was outrageously or wantonly vile, horrible, or inhuman in that it involved an aggravated battery to the victim. See Ga.Code Ann. § 17-10-30(b)(1), (b)(2) and (b)(7) (1997). The Supreme Court of Georgia affirmed Hicks's conviction and sentence. Hicks, 352 S.E.2d at 779. The United States Supreme Court denied certiorari on June 15, 1987. Hicks v. State, 482 U.S. 931, 107 S.Ct. 3220, 96 L.Ed.2d 706 (1987).

Hicks filed his first state habeas petition in the Superior Court of Butts County, Georgia. Following an evidentiary hearing, the state court denied relief. The Supreme Court of Georgia denied Hicks's application for a certificate of probable cause to appeal, and the United States Supreme Court denied certiorari. Hicks v. Kemp, 494 U.S. 1074, 110 S.Ct. 1797, 108 L.Ed.2d 798 (1990).

Hicks then filed a federal habeas petition, and the State moved to dismiss the petition for lack of exhaustion. The district court entered judgment dismissing the petition without prejudice. Hicks filed a second state habeas petition, and the State moved to dismiss the petition as successive under state procedural rules. After conducting a hearing on the motion to dismiss, the state court dismissed the petition. The Georgia Supreme Court denied Hicks's application for probable cause to appeal, and the United States Supreme Court denied certiorari review.

Hicks filed his second federal habeas petition on April 24, 1997, and filed an amended petition on June 8, 1998. The district court denied him any relief on the claims he raised. The district court specifically found that Hicks's Ake claim was subject to harmless error analysis and that under the Brecht v. Abrahamson harmless error standard, the constitutional violation did not have a " 'substantial and injurious effect or influence in determining the jury's verdict.' " 507 U.S. 619, 637-38, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946) ).

The district court denied Hicks's motion to alter or amend the judgment, stating that Hicks had failed to make a substantial showing of the denial of a constitutional right. In a separate order, the district court specifically denied Hicks's application for a COA. Hicks filed a notice of appeal and application for a COA in this court. We granted the COA on the sole issue of whether Ake violations are subject to harmless error analysis and, if so, whether the trial court's denial of a mental health expert until shortly before trial constitutes harmless error.

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We join several of our sister circuits and hold that Ake violations are subject to harmless error analysis under the Brecht harmless error standard. Applying the Brecht standard to the present case, we conclude that the alleged Ake error did not have a "substantial and injurious effect" on the outcome of Hicks's trial and sentencing. Accordingly, we affirm the judgment of the district court denying Hicks habeas relief. AFFIRMED.