Godfrey v. State, s. 37683

Decision Date24 November 1981
Docket NumberNos. 37683,37684,s. 37683
PartiesGODFREY v. The STATE.
CourtGeorgia Supreme Court

William A. Foster, III, Dist. Atty., Dallas, Arthur K. Bolton, Atty. Gen., Harrison Kohler, Mary Beth Westmoreland, Asst. Attys. Gen., for the State.

CLARKE, Justice.

Robert Franklin Godfrey, the appellant, was convicted and sentenced to death in Polk County for the murders of Chessie Wilkerson and Mildred Godfrey. The appellant was also convicted of committing an aggravated assault upon his daughter. The convictions and sentences were affirmed on appeal by this court. Godfrey v. State, 243 Ga. 302, 253 S.E.2d 710 (1979). The Supreme Court of the United States reversed as to sentence and remanded the case. Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). Upon remand to the Superior Court of Polk County, Godfrey v. State, 246 Ga. 359, 274 S.E.2d 339 (1980), a jury again returned a verdict for the death sentences. The case is presently before this court upon direct appeal and mandatory review of the death penalty. Code Ann. § 27-2537.

The facts surrounding the death of the victims and the aggravated assault committed upon the appellant's daughter are amply set out in Godfrey v. State, 243 Ga. 302, 253 S.E.2d 710, supra, and Godfrey v. Georgia, supra. They therefore will not be repeated here.

1. During the sentencing phase of the initial trial, the court charged the jury as to Code Ann. § 27-2534.1(b)(7). The jury found "that the offense of murder was outrageously or wantonly vile, horrible and inhuman." On remand, the jury was charged and found that the murders occurred while the offender was engaged in the commission of another capital felony pursuant to Code Ann. § 27-2534.1(b)(2), a different statutory aggravating circumstance from that charged in the first trial. The evidence presented during the resentencing trial was essentially the same as that presented during the first trial. Appellant in his first enumeration of error contends that his retrial and the subsequent imposition of a second death sentence violated Appellant argues that while ordinarily there is no double jeopardy bar to retrying a defendant who has overturned his conviction upon appeal, a defendant may not be retried if he obtains a reversal of his conviction on the ground that the evidence was insufficient to convict. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Appellant concedes that this court has held that the double jeopardy provisions of the United States Constitution and the Constitution of the State of Georgia do not apply to sentence hearings in capital felony cases under Code Ann. § 27-2534.1(b)(1-10), Redd v. State, 242 Ga. 876, 252 S.E.2d 383 (1979); Davis v. State, 242 Ga. 901, 252 S.E.2d 443 (1979); Spraggins v. State, 243 Ga. 73, 252 S.E.2d 620 (1979); Green v. State, 246 Ga. 598, 272 S.E.2d 475 (1980). However, he argues that the United States Supreme Court in the recent case of Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), extended the constitutional protection against double jeopardy to sentence hearings in all capital felony cases tried under the Georgia death penalty statute.

the double jeopardy provisions of the constitutions of the United States and the State of Georgia, and the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.

Bullington arose under a Missouri death penalty statute which is essentially identical to the Georgia statute. The question presented was whether jeopardy attaches when a defendant is subjected to a separate sentencing hearing under a statutory scheme whereby the jury, although not required to do so, may return the death penalty in the presence of certain statutory aggravating circumstances. The Supreme Court of the United States held in the affirmative, reasoning that since the state in a capital felony prosecution has the burden of proof beyond a reasonable doubt, a sentence hearing is for all intents and purposes a trial. Therefore, an initial finding of a life sentence is in effect an acquittal of whatever is necessary to impose the death penalty. See Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970). Such a finding, the Court reasoned, was tantamount to a finding that the evidence was insufficient to support the conviction. Under these circumstances, the Court held, a defendant may not be subjected to a new sentencing hearing wherein the state again seeks the death penalty. Of course, under this court's decisions, defendants who are sentenced to life imprisonment in a capital felony sentencing hearing cannot after reversal be sentenced to a death penalty for the same offense. Ward v. State, 239 Ga. 205, 236 S.E.2d 365 (1977). This has not been based on double jeopardy, however, but on the fact that the death sentence was disproportionate to the life sentence previously imposed.

Appellant urges that the United States Supreme Court's reversal of his death sentence was in effect a finding that the prosecution had not proven sufficient facts to convict. We do not agree. The reversal in Godfrey v. Georgia, supra, was based on the premise that the Supreme Court of Georgia, in affirming a death sentence based on no more than a finding that the offense was outrageously or wantonly vile, horrible and inhuman, had allowed a standardless and unchanneled imposition of the death penalty "in the uncontrolled discretion of a basically uninstructed jury." Godfrey v. Georgia, supra 446 U.S. at 429, 100 S.Ct. at 1765. "There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence." Id. at 428, 100 S.Ct. at 1764. See Hance v. State, 245 Ga. 856, 268 S.E.2d 339 (1980); Cape v. State, 246 Ga. 520, 272 S.E.2d 487 (1980).

The prosecution in the original case against the appellant proved beyond a reasonable doubt facts sufficient to support a sentence of death upon a finding of an Aside from the fact the Bullington case involved a sufficiency of the evidence problem and the present case does not, Bullington is distinguishable upon its facts from the case at bar in that in Bullington there was a life sentence imposed at the first sentencing procedure whereas in the instant case a death penalty was imposed. Therefore, the danger of repeated attempts by the state to wear a defendant down and obtain the desired result is not present. Green v. State, supra; Spraggins v. State, supra; Davis v. State, supra; Redd v. State, supra.

                aggravating circumstance under Code Ann. § 27-2534.1(b)(2).  The reversal here being solely upon legal grounds, Godfrey v. Georgia, supra, a retrial would not be for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster at the first proceeding.  The situation is analogous to that in U. S. v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), where it was held that "... a defendant, who procures a judgment against him upon an indictment to be set aside, may be tried anew upon the same indictment, or upon another indictment, for the same offense of which he had been convicted."  Id. at 672, 16 S.Ct. at 1195.   This court has previously held that in determining whether jeopardy attached under the Burks rule at a guilt-innocence trial, the court could consider competent evidence admitted at trial but later found inadmissible in determining [248 Ga. 619] whether the evidence supported a conviction.  Hall v. State, 244 Ga. 86, 259 S.E.2d 41 (1979).  In Hall we said that reversal for trial error on improperly admitted evidence differs from reversal for insufficiency of the evidence because it indicates nothing with respect to guilt or innocence of the defendant.  "Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e. g., incorrect receipt or rejection of evidence, incorrect instructions or prosecutorial misconduct."  Hall v. State, supra at 94, 259 S.E.2d 41.   In this case the trial defect was an incomplete verdict.  Burks v. U. S., supra;  Bullington v. Missouri, supra
                

Appellant further argues that since the state limited its case to the single aggravating circumstance (Code Ann. § 27-2534.1(b)(7)) at the initial trial, it is barred from seeking a death penalty on any other aggravating circumstance. We do not agree. Double jeopardy not attaching under these circumstances, the original sentence, at the appellant's behest, has been nullified. The state and defense start anew. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Bullington v. Missouri, supra; Redd v. State, supra. Therefore, the state is not limited to the aggravating circumstances relied upon at the first hearing. Spraggins v. State, supra; Davis v. State, supra; Green v. State, supra. We do not agree that failure to submit aggravating circumstances which are raised by the evidence is an implied directed verdict of acquittal on these aggravating circumstances.

Appellant's reliance upon Code Ann. § 26-506 and Code Ann. § 26-507 is misplaced in that these statutes by their terms apply only to crimes, not punishment. See Price v. Georgia, supra.

2. Appellant contends that no statutory authority exists for remand of this defendant for a resentencing trial. He argues that there was no error by the trial court which would trigger the provisions of Code Ann. § 27-2503(a), but, rather, a sentence review error by this court of constitutional proportions. However, in capital felony cases, the authority for remand is implicit in the mandate of Code Ann. § 27-2537(c)(2) that this court review the death sentence. See Code Ann. § 27-2503(b). Appellant's argument is without merit.

3. The appellant further...

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