449 U.S. 999 (1980), 79-6615, Drake v. Zant

Docket Nº:No. 79-6615
Citation:449 U.S. 999, 101 S.Ct. 541, 66 L.Ed.2d 297, 66 L.Ed.2d 298
Party Name:Henry Arthur DRAKE v. Walter ZANT, Warden. Johnny Mack WESTBROOK v. Charles BALKCOM, Warden No.79-6704
Case Date:November 17, 1980
Court:United States Supreme Court
 
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Page 999

449 U.S. 999 (1980)

101 S.Ct. 541, 66 L.Ed.2d 297, 66 L.Ed.2d 298

Henry Arthur DRAKE

v.

Walter ZANT, Warden.

Johnny Mack WESTBROOK

v.

Charles BALKCOM, Warden

No.79-6704

No. 79-6615

United States Supreme Court.

November 17, 1980

Jan. 19, 1981.

OPINION

[101 S.Ct. 541] On petition for writ of certiorari to the Superior Court of Butts County, Georgia.

On petition for writ of certiorari to the Supreme Court of Georgia.

The petitions for writs of certiorari are denied.

Page 1000

Justice BRENNAN and Justice MARSHALL, dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428

Page 1001

U.S. 153, 227, 231, 96 S.Ct. 2909, 2971, 2973, 49 L.Ed.2d 859 (1976), we would grant certiorari and vacate the death sentences in these cases.

Justice STEWART, dissenting.

I would grant the petition for certiorari in No. 79-6615, vacate the judgment insofar as it approved the imposition of the death sentence, and remand the case for reconsideration. See Martin v. Louisiana, 449 U.S. 998, 101 S.Ct. 540, 66 L.Ed.2d 297 (STEWART, J., dissenting).

I would vacate the judgment of the Supreme Court of Georgia in No. 79-6704, insofar as it left undisturbed the death penalty, and remand the case to that court for further consideration in light of Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).

The sentence of death was imposed in No. 79-6704 upon the basis of the statutory aggravating circumstance involved in the Godfrey case (Ga.Code§ 27-2534.1(b)(7) (1978)), and an additional statutory aggravating circumstance. If, after Godfrey, the Supreme Court of Georgia should decide that the § (b)(7) aggravating circumstance could not constitutionally justify the death sentence, Georgia law would prohibit a further finding that the error was harmless simply because of the existence of the other aggravating circumstance. Under Georgia's capital sentencing scheme, the trial court is the sentencing authority. Ga.Code §§ 27-2503(b), 27-2534.1(b) (1978). In addition, the sentencer has the power to decline to impose the death penalty even if it finds that one or more statutory aggravating circumstances are present in the case. See Fleming v. State, 240 Ga. 142, 146-147, 240...

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