Coley v. State

• Citation: 231 Ga. 829,204 S.E.2d 612
• Decision Date: 08 March 1974
• Docket Number: No. 28131,28131
• Parties: Jesse Lee COLEY v. The STATE.
• Court: Supreme Court of Georgia

Page 612

204 S.E.2d 612

231 Ga. 829

Jesse Lee COLEY v. The STATE.

No. 28131.

Supreme Court of Georgia.

March 8, 1974.

[231 Ga. 837] Hill, Jones & Farrington, John D. Mattox, Jesup, Bobby L. Hill, Savannah, for appellant.

W. Glenn Thomas, Jr., Dist. Atty., Jesup, Arthur K. Bolton, Atty. Gen., Courtney Wilder Stanton, Asst. Atty. Gen., David J. Bailey, Deputy Asst. Atty. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

[231 Ga. 829] PER CURIAM.

We decide in this case the constitutionality of Ga.L.1973, p. 159 et seq. (Code Ann. § 27-2534.1 et seq.) authorizing the

imposition of the death penalty in Georgia under certain circumstances for specified crimes. The appeal represents an attack upon Georgia's death penalty revived by the 1973 General Assembly following its demise by virtue of the decision of the Supreme Court of the United States, in Furman v. Georgia and Jackson v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346

The revival statute passed by the General Assembly became effective March 28, 1973. Ga.L.1973, p. 159. The crimes with which the appellant in this case was charged occurred on April 5, 1973; indictments were returned against him on April 17, 1973; his trial began on April 24, 1973; and sentences were imposed on April 27, 1973.

The appellant was convicted for rape and the sentence imposed was death; he was convicted for armed robbery and the sentence imposed was twenty years; he was convicted on a second charge of armed robbery and the sentence imposed was twenty years; and he was convicted for kidnapping and the sentence imposed was twenty years.

I

The fourth enumerated error attacks Georgia's new death penalty statute as being unconstitutional in the light of Furman v. Georgia and Jackson v. Georgia, supra.

The Georgia statute involved in Jackson was as follows: 'The crime of rape shall be punished by death, unless the jury recommends mercy, in which event punishment shall be imprisonment for life: provided, however, the jury in all cases may fix the punishment by imprisonment and labor in the penitentiary for not less than one year nor more than twenty years.' Code § 26-1302. This statute was in effect prior to July 1, 1969, when it was superseded by the Criminal Code of Georgia. Jackson had been convicted pursuant to this statute and sentenced to death. The Supreme Court of the United States said: 'The Court holds that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. The judgment in each case is therefore reversed insofar as it leaves undisturbed the death sentence imposed, and the cases are remanded for further proceedings.' 408 U.S. 238, 239, 92 S.Ct. 2726, 2727.

The present Georgia statute, a part of the Criminal Code of Georgia effective July 1, 1969, provides in part as follows: 'A person convicted of rape shall be punished by death or by imprisonment for life, or by imprisonment for not less than one nor more than 20 years.' In 1973, the General Assembly of Georgia, presumably because it believed that the Furman and Jackson decisions had nullified the death penalty as contained in Code Ann. § 26-2001, enacted a new criminal procedure statute (Code Ann. § 27-2534.1) which established ten statutory aggravating circumstances withrespect to the crime of rape and other enumerated crimes; and this stances with respect to the crime of rape unless the fact-finder determined that at least one of these enumerated statutory aggravating circumstances existed, then 'the death penalty shall not be imposed.' The new Georgia statute also added a new Code section, reading in pertinent parts as follows:

'27-2537. Review of death sentences.-(a) Whenever the death penalty is imposed, and upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the Supreme Court of Georgia. The clerk of the trial court, within ten days after receiving the transcript, shall transmit the entire record and transcript to the Supreme Court of Georgia together with a notice prepared by the clerk and report prepared by the trial judge. The notice shall set forth the title and docket number of the case, the name of the defendant and the name and address of his attorney, a narrative statement of '(b) The Supreme Court of Georgia shall consider the punishment as well as any errors enumerated by way of appeal.

the judgment, the offense, and the punishment prescribed. The report shall be in the form of a standard questionnaire prepared and supplied by the Supreme Court of Georgia.

'(c) With regard to the sentence, the court shall determine:

'(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and

'(2) Whether, in cases other than treason or aircraft hijacking, the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in section 27-2534.1(b), and

'(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and defendants.

'(d) Both the defendant and the State shall have the right to submit briefs within the time provided by the court, and to present oral argument to the court.

'(e) The court shall include in its decision a reference to those similar cases which ti took into consideration. In addition to its authority regarding correction of errors, the court, with regard to review of death sentence, shall be authorized to:

'(1) Affirm the sentence of death; or

'(2) Set the sentence aside and remand the case for resentencing by the trial judge based on the record and argument of counsel. The records of those similar cases referred to by the Supreme Court of Georgia in its decision, and the extracts prepared as hereinafter provided for, shall be provided to the resentencing judge for his consideration.'

The question that we are now called upon to answer is this: Can the death penalty be imposed in Georgia pursuant to Code Ann. § 26-2001 and Code Ann. § 27-2534.1 in face of the Eighth and Fourteenth Amendments to the Constitution of the United States as those Amendments have been construed and applied by the Supreme Court of the United States in the Furman and Jackson cases, supra?

Prior to the Furman and Jackson decisions by the Supreme Court of the United States this court had consistently held that the imposition of the death penalty, even under a discretionary statute which allowed the jury to impose the death sentence or impose a lesser sentence, was not violative of the Eighth and Fourteenth Amendments to the United States Constitution. See Abrams v. State, 223 Ga. 216, 154 S.E.2d 443, and Sims v. Balkcom, 220 Ga. 7, 136 S.E.2d 766. However, this court is bound by the Constitution of the United States as its provisions are construed and applied by the Supreme Court of the United States. Code Ann. § 2-8001, Const. art. 12, § 1, par. 1, and annotations thereunder.

As our decision necessarily involves the decision of the U.S. Supreme Court in Furman and Jackson, we must look first to these cases for guidance in our decisional process. The dissenting opinion written by Mr. Chief Justice Burger in Furman and Jackson, with whom Mr. Justice Blackmun, Mr. Justice Powell and Mr. Justice Rehnquist joined, observes: 'that only two members of the Court, Mr. Justice Brennan and Mr. Justice Marshall, have concluded that the Eighth Amendment prohibits capital punishment for all crimes and under all circumstances.' 408 U.S. 375, 92 S.Ct. 2796.

What single grievance is common to the concurring opinions in these two cases? Perhaps none can be isolated with certainty, but at least one common concern is inferred from reading the concurring opinions. Mr. Justice White, for example, took exception to 'the recurring practice of delegating sentencing authority to the jury and the fact that a jury, in its own discretion and without violating its trust or any Although opinions may differ as to the parameters of the Court's holding in Furman, it is evident the court did not hold 'capital punishment is per se violative of the Eighth Amendment; nor has it ruled that the punishment is barred for any particular class or classes of crimes.' 408 U.S. 396, 92 S.Ct. 2807 (Burger dissenting). And, as the Chief Justice's dissent points out: 'The decisive grievance of the (concurring) opinions . . . is that the present system of discretionary sentencing in capital cases has failed to produce evenhanded justice.' (Emphasis supplied.) 408 U.S. 398, 92 S.Ct. 2808.

statutory policy, may refuse to impose the death penalty no matter what the circumstances of the crime.' (Emphasis supplied.) 408 U.S. 314, 92 S.Ct. 2764. Mr. Justice Douglas touched the same 'Achilles heel' in speaking of 'a system of law and of justice that leaves to the uncontrolled discretion of . . . juries the determination whether defendants committing these crimes should die or be imprisoned. Under these laws no standards govern the selection of the penalty. [231 Ga. 833] People live or die, dependent on the whim of . . . (the jury).' 408 U.S. 253, 92 S.Ct. 2734. And, Mr. Justice Brennan noted, 'There is a strong probability that (death) is inflicted arbitrarily.' 408 U.S. 305, 92 S.Ct. 2760. It is, also, evident that the arbitrary imposition of the death penalty, under the pre-existing law in Georgia, was a main concern of Mr. Justice Stewart as he observed 'these death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual . . . I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.' 408 U.S. 309, 310, 92 S.Ct. 2763. Finally, Mr. Justice Marshall found the court had some complicity in previously allowing arbitrary...