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Rogers v. State

The defendant, who was tried for a capital crime prior to July 1, 1988, could not waive his request for a hearing to determine whether he is mentally retarded after a court found sufficient credible evidence of mental retardation to create an issue for the jury.

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Appellant James Rogers challenges the trial court’s order finding that he waived his request for a jury trial on the issue of mental retardation pursuant to Fleming v. Zant, 259 Ga. 687 386 SE2d 339 1989. Because we hold that a defendant who was tried for a capital crime prior to July 1, 1988 cannot waive his request for a hearing to determine whether he is mentally retarded once a court finds sufficient credible evidence of mental retardation to create an issue for a jury, we reverse and remand to the trial court.

1. Rogers was convicted and sentenced to death for the murder of Grace Perry.1 His convictions and sentence were affirmed by this Court on direct appeal. See Rogers v. State, 256 Ga. 139 344 SE2d 644 1986. Following the procedure outlined by this Court in Fleming, in 1994 Rogers initiated state habeas corpus proceedings by filing a petition seeking a jury trial on the issue of mental retardation. At a hearing on his petition, Rogers presented evidence of mental retardation, including affidavits of mental health experts who diagnosed him as mentally retarded and suffering from significant neurological impairment.2 In a May 1995 order the habeas corpus court concluded that a genuine issue of fact existed regarding Rogers’ mental retardation and granted the writ for the purpose of conducting a Fleming trial.

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