Zant v. Redd, 38069
| Decision Date | 06 April 1982 |
| Docket Number | No. 38069,38069 |
| Citation | 249 Ga. 211,290 S.E.2d 36 |
| Court | Georgia Supreme Court |
| Parties | ZANT, Supt. v. REDD. |
Michael J. Bowers, Atty. Gen., Daryl A. Robinson, Staff Asst. Atty. Gen., for Walter D. Zant, Supt.
Stanley C. House, Augusta, for Bob Redd.
1. Appellee's motion to dismiss is denied. Reed v. Hopper, 235 Ga. 298(5), 219 S.E.2d 409 (1975).
2. This case presents the issue of whether double jeopardy attaches to aggravating circumstances in a death penalty case.
The appellee was convicted of murder and kidnapping and was sentenced to die for the murder. On appeal Redd's conviction was affirmed, but his death sentence was reversed on technical grounds and a new sentencing trial was ordered. See, Redd v. State, 240 Ga. 753, 243 S.E.2d 16 (1978). On resentencing, the death penalty was again imposed. This sentence was affirmed on appeal to this Court. Redd v. State, 242 Ga. 876, 252 S.E.2d 383 (1979).
In June of 1981, Redd filed a habeas corpus petition in Butts County Superior Court alleging that on resentencing the consideration by the jury of certain statutory aggravating circumstances was in violation of the double jeopardy clause.
At Redd's first sentencing trial, three aggravating circumstances were submitted to the jury. The jury imposed the death sentence but only listed one aggravating circumstance in support thereof.
The second sentencing jury was authorized to consider four aggravating circumstances--the three submitted to the first jury plus an additional one the judge felt was supported by the evidence.
Redd, relying on Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), argued on habeas that the first jury, by not listing two of the three submitted statutory aggravating circumstances in support of the death penalty, essentially "acquitted him of those two;" thereby, making it a violation of the double jeopardy clause for the state to have offered proof on and for the second jury to have considered them on resentencing.
Redd did not contend that the state could not reseek the death penalty, for Bullington clearly allows for it where a death penalty which is first imposed is set aside on legal grounds. See, Godfrey v. State, 248 Ga. 616(1), 284 S.E.2d 422 (1981). Neither did Redd complain of the submission to the second sentencing jury of the one aggravating circumstance found by the first jury or of the one not submitted to that jury.
The habeas trial judge, also relying on Bullington v. Missouri, agreed with Redd's arguments and set aside his death sentence. The state appeals, and we reverse.
Redd argues that Bullington mandates that we affirm the reversal of his death sentence. Bullington is the first case in which the United States Supreme Court has held the double jeopardy clause to be applicable to the sentencing phase of a criminal trial. In Bullington, the court held that the imposition of a life sentence by the first jury was an "acquittal" of the death sentence. Therefore, the court held that for the state to seek the death penalty on resentencing would be in violation of the double jeopardy clause.
The basis of the Supreme Court's ruling in Bullington was that the procedure involved in sentencing under Missouri's death penalty statute closely resembled that of a trial on guilt or innocence. The court emphasized that the jury was presented with two alternatives, life or death, and that to impose death the jury had to find certain facts beyond a reasonable doubt. The court felt that this sentencing procedure required the jury to determine if the state had "proved its case" when seeking to impose the death penalty. Consequently, the court reasoned that a sentence of life amounted to an "acquittal" of the death penalty. In conclusion, the court ruled that an "acquittal" on sentencing should be accorded the same finality as an "acquittal" on guilt or innocence.
We find that this reasoning does not apply to aggravating circumstances and does not mandate a ruling that the failure of a jury to list certain aggravating circumstances in support of the death penalty amounts to an "acquittal" of those circumstances.
An alternative process is not involved in a jury's consideration of aggravating circumstances. The Georgia death penalty statute only requires a finding of one aggravating circumstance in order to impose the death penalty (Code Ann. § 27-2534.1(c)), and the jury in this case was so instructed. The jury's decision with regard to aggravating circumstances is not a mutually exclusive one as it is with regard to the choice of life or death. Consequently, we cannot say, as the Supreme Court did with regard to the choice of life or death, that the listing of only one of three aggravating circumstances in support of the death penalty is an "acquittal" of the other two. The procedural basis which led the court to its decision in Bullington does not exist in this case.
Even if the decision on aggravating circumstances involved an alternative process, we would refrain from applying the double jeopardy clause to aggravating circumstances as the principles involved in double jeopardy do not warrant its application to them.
In Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957) the United States Supreme Court noted that "the constitutional prohibition against 'double jeopardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense." In addition, the Supreme Court in Bullington, noting the values that underlie the double jeopardy rule, quoted the following language from the Green decision:
The Supreme Court in Bullington stated that the above principles applied equally to the question of whether the defendant deserved to die as it did to the question of guilt or innocence. The court essentially equated the question of life or death to an offense and found that a decision of life or death deserved the same finality as a decision on guilt or innocence. It noted that the defendant faces " 'embarrassment, expense and ordeal' " and " 'anxiety and insecurity' " when facing the death penalty.
We refrain from equating "aggravating circumstances" to an offense. See, Redd v. State, 242 Ga. 876, 885, 252 S.E.2d 383 (1979); Green v. State, 246 Ga. 598(8), 272 S.E.2d 475 (1980).
Aggravating circumstances are procedural standards designed to control a jury's discretion in capital cases in order to ensure against capricious and arbitrary enforcement of the death penalty. See, Gregg v. Georgia, 428 U.S. 153, 197-98 (1975) 96 S.Ct. 2909, 2936, 49 L.Ed.2d 859 (1975), reh. den., 429 U.S. 875, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976). Aggravating circumstances are not substantive "penalties" or "offenses"; they do not place the defendant's life in peril or subject him to a possible "conviction"; they are standards which guide a jury's decision on what does place the defendants life in jeopardy at the sentencing trial--the death penalty.
As we have determined that double jeopardy does not apply to aggravating circumstances we apply the established double jeopardy rule to the sentencing phase of Redd's trial, i.e., that on a trial on guilt or innocence, if a defendant is found guilty and convicted but overturns his conviction on legal grounds, the slate is wiped clean, the conviction nullified, and the state and the defense start anew. Godfrey v. State, ...
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