¶1dissenting as to Division 14 and the sentence.
¶2In my opinion the trial court erred in refusing to admit the testimony of defendant’s witness Thomas Pasby as a mitigating circumstance. Pasby had testified for the state in the trial of Carzell Moore that Moore had told him that he (Moore), and not the appellant, was the actual perpetrator of the murder. When the same testimony was offered in this case by Green as a mitigating circumstance, the state objected on the ground of hearsay and the trial court sustained the objection. Based upon the peculiar circumstances of this case, it is my opinion that the evidence should have been admitted. The normal rules of evidence should not be automatically applied to every aspect of the sentencing phase of the trial where the issue may be death or mercy. "Given that the imposition of death by public authority is so profoundly different from all other penalties, we cannot avoid the conclusion that an individualized decision is essential in capital cases. The need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in noncapital cases. A variety of flexible techniques — probation, parole, work furloughs, to name a few — and various post conviction remedies, may be available to modify an initial sentence of confinement in noncapital cases. The nonavailability of corrective or modifying mechanisms with respect to an executed capital sentence underscores the need for individualized consideration as a constitutional requirement in imposing the death sentence. There is no perfect procedure for deciding in which cases governmental authority should be used to impose death. *276But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant’s character and record and to circumstances of the offense profferred in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.” Lockett v. Ohio, — U. S. — (98 SC 2954, 57 LE2d 973) (1978). The court pointed out that in upholding the Georgia statute in Gregg v. Georgia, 428 U. S. 153 (1976) it "noted that the statute permitted the jury 'to consider any aggravating or mitigating circumstances,’ see Gregg, supra, at 206, . . . and that the Georgia Supreme Court had approved 'open and far ranging argument’ in presentence hearings, id., at 203 . . .” Lockett, supra, at 991. In footnote 14, it noted "that the Georgia Legislature had decided to permit 'the jury to dispense mercy on the basis of factors too intangible to write into a statute.’ Gregg, 428 U. S., at 222. . .” Lockett, supra, at 991. This interpretation was restated in a recent decision of this court where we held that the "conclusion is inescapable that the legislture meant to empower the jury to consider as mitigating anything they found to be mitigating, without limitation or definition.” Spivey v. State, 241 Ga. 477, 479 (246 SE2d 288) (1978).
¶3Pasby’s testimony is an aggravating circumstance when considered in the sentencing phase of Moore’s trial as well as a mitigating circumstance when considered in the sentencing phase of Green’s trial. The state introduced the evidence in Moore and objected to its admission in Green. I would not allow the state to take such inconsistent positions where the choice is between life and death.