Miller v. State, 31156
| Decision Date | 08 September 1976 |
| Docket Number | No. 31156,31156 |
| Citation | 237 Ga. 557,229 S.E.2d 376 |
| Parties | Everett Taft MILLER v. The STATE. |
| Court | Georgia Supreme Court |
J. W. Claxton, James R. Venable, Decatur, for appellant.
William H. Ison, Dist. Atty., James W. Bradley, Asst. Dist. Atty., Jonesboro, Arthur K. Bolton, Atty. Gen., Atlanta, for appellee.
This appeal involves the issue of a hung jury during the sentencing phase of a murder case after the accused had been convicted of murder during the guilty-not guilty phase of the trial. After conviction for murder, only two sentences can be imposed: the death penalty or life imprisonment. After approximately ten hours of deliberation concerning the sentence to be imposed in this case, the jury was deadlocked at 11-1. The trial judge then declared a mistrial as to the sentence to be imposed.
The State then filed a motion asserting that the death penalty had not been waived, and that the State still sought the imposition of the death penalty in this case. The State moved that a new jury be impaneled and that a new sentencing trial be conducted to determine the sentence.
Counsel for the accused then filed a written response to the State's motion. In pertinent part it was:
The trial judge then entered an order granting the State's motion, he granted a certificate for immediate review of that order, and this court then granted an interlocutory appeal on the issue presented.
Code Ann. Sec. 26-3102, enacted in 1973, provides:
Code Ann. Sec. 27-2503(b), enacted in 1974, provides:
Reading these two statutory provisions together, we conclude that 'unless the jury trying the case makes a finding of at least one statutory aggravating circumstance and recommends the death sentence in its verdict, the court shall not sentence the defendant to death.'
Both of these statutes apply only to the sentencing phase of a capital case after conviction. We interpret them to mean that the jury that convicted must also impose the sentence; and in a murder case, after conviction, where only two sentences can be imposed, life imprisonment or death, if the convicting jury is unable to agree on which of those two sentences to impose, the trial judge must impose the lesser, life imprisonment. However, we also hold that a new trial on the sentence can be held before a new jury where the jury that convicted the accused also sentenced him to death and the sentence was reversed on appeal because of some error that infected the sentence. In such a situation, there can be a remand for a new trial as to the sentence only.
The convicting jury in this case, because of its inability to agree upon the imposition of one of the two sentences provided by law, did not make a finding as to the existence of at least one statutory aggravating circumstance, and it further did not make a recommendation that the death penalty be imposed.
Without reaching the constitutional issue of double jeopardy, we conclude that these applicable statutes, in the situation herein described, require the trial judge to impose a sentence of life imprisonment.
The judgment is reversed and direction is given that a life sentence be imposed in this case.
Judgment reversed with direction.
All the Justices concur, except GUNTER, J., who concurs specially, and NICHOLS, C.J., and UNDERCOFLER, P.J., who dissent.
I concur in the opinion and judgment of the court and in the denial of the motion for rehearing. I wish to add a short explanation in response to the District Attorney's motion for rehearing.
The District Attorney argues that the result in this case is contrary to our decision in Orvis v. State, 237 Ga. 6, 226 S.E.2d 570 (1976), in which we found no double jeopardy bar following two mistrials which resulted from hung juries. In Orvis (237 Ga. at 8, 226 SE.2d at 572) we...
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