Lead Opinion
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,
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 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.
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,
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
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 at 429. “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. See Hance v. State,
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 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 Ball v. United States,
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.
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,
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.
3. The appellant further contends that Code Ann. § 27-2534.1 (b) (2), as applied to the facts in this particular case, is unconstitutionally vague and overbroad in violation of the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. He argues that since both murders were separate in time, although only moments apart, and each was instantaneous, one could not have occurred while in the commission of another. However, this argument has been raised before and decided in a manner contrary to appellant’s position. Gilreath v. State,
4. In his second enumeration of error, the appellant contends the trial court had no jurisdiction to resentence in that he had filed a notice of appeal, thereby “suspending jurisdiction for further proceedings in the trial Court.” Prior to trial the appellant filed a motion to enjoin or prohibit the state from proceeding with the resentencing trial to seek the death penalty. The motion was overruled. A plea of former jeopardy and plea in bar against imposition of other than a life sentence were also denied. Thereafter appellant filed a notice of appeal of the denial of the injunction.
The state argues that the motion to enjoin the proceeding is not a final order which is subject to appeal. On the other hand, appellant contends that since the motion was for an injunction, Code Ann. § 6-701 (a) (3) controls and no trial court’s certificate was required. Appellant reasons that his notice of appeal of the order denying the motion to enjoin suspended the jurisdiction for further proceedings in the trial court. Ordinarily, the position taken by the state would prevail because the question raised in the motion to enjoin was raised in other motions filed by appellant. The motion was simply one of several attempts to have an issue determined, and it would be subjected to review after trial.
The problem with this reasoning arises from the holding of the United States Supreme Court in Abney v. United States,
The issue of double jeopardy raised by appellant has been fully reviewed and decided in Division 1 of this opinion. In view of that fact, there is no benefit to appellant which could have been realized from piecemeal determination of the double jeopardy issue. Since we have held that there is no double jeopardy, the most to be derived from an earlier adjudication of the same question would be the protraction of the litigation. We do not find that this defendant has been harmed by the trial court’s denial of the motion to enjoin the proceeding.
5. In his third enumeration of error the appellant urges that the trial court abused its discretion in improperly limiting inquiry during voir dire into the juror’s personal attitudes towards the death penalty in the crime of murder.
During voir dire defense counsel attempted to ask the veniremen what they thought the proper punishment would be for someone who had been convicted of murder. The state objected and was sustained. Thereafter, defense counsel attempted to question the veniremen on whether they agreed or disagreed with the option of the death penalty created by statute and whether they felt as a general proposition that the death sentence was appropriate for first degree murder. The state objected to each of these questions, and the trial court sustained the objection. Appellant now contends that the trial court abused its discretion in limiting voir dire. The conduct of the voir dire is within sound discretion of the trial court, and his rulings are proper absent some manifest abuse of discretion. Welch v. State,
6. In his fourth enumeration of error, appellant contends the trial court erred in allowing photographs of the victims to be entered into evidence. He argues first that the photographs were evidence in aggravation and therefore subject to the notice provisions of Code Ann. § 27-2503 (a). He further argues that the photographs were irrelevant in that they were not proof of the aggravating circumstances under which the death penalty was being sought, Code Ann. § 27-2534.1 (b) (2). However, these same photographs were introduced at the prior trial as part of the state’s proof and held to be admissible in Godfrey v. State,
7. Appellant offered in mitigation the testimony of Patsy Morris to the effect that death sentences in domestic cases are rare. The trial court did not allow the evidence, and the appellant urges error. Such evidence is not of a mitigating nature but, rather, addresses itself to an issue required under the statute to be decided upon appeal. The trial court did not err in excluding the evidence, and appellant’s enumeration of error 5 is without merit. Franklin v. State,
8. Appellant submitted nine requests to charge which the trial court declined. Appellant now asserts error, contending that the failure to give some if not all of the requested charges is error of constitutional proportions. Appellant’s first request to charge consisted of examples of mitigating circumstances. Examples of mitigating circumstances are not required to be charged during the sentencing phase of the trial. Collier v. State,
Appellant’s fifth request to charge, to wit: “The crime of murder, in terms of law, is completed upon the death of the victim,” under the facts of this case is an incorrect statement of law, and the trial court did not err in refusing to so charge. Gilreath v. State, supra; Hance v. State, supra. In view of the court’s full and extensive charge on mitigation, the court’s failure to give appellant’s request to charge number 7 to the effect that in determining aggravating circumstances beyond a reasonable doubt, character alone may create a doubt sufficient to cause a finding that the defendant is entitled to a life sentence, was not error. The trial court therefore did not err in failing to charge this request. Dick v. State, supra. Likewise, we have reviewed the remaining requests to charge and find that the trial court did not err in failing to charge these to the jury. Appellant cites no authority for his position as to these remaining requests.
9. The use of jury verdict forms in capital felony cases has been upheld by this court. Appellant’s last enumeration of error is without merit. Tucker v. State,
Sentence Review
As required by Georgia Law, 1973, p. 159, et seq., (Code Ann. § 27-2537 (c) (1-3)), we have reviewed the death sentence in this case. We have considered the aggravating circumstances found by the jury and the evidence concerning the crime and the defendant pursuant to the mandate of the statute. We conclude that the sentence of death imposed in this case was not imposed under the influence of passion, prejudice, or any arbitrary factor.
The jury found the following aggravating circumstance as to each of the two counts of murder with which appellant was charged: (a) as to Count 1, the murder of Mildred Godfrey: that the offense of murder was committed while the offender was engaged in the commission of another capital felony, viz., the murder of Chessie C. Wilkerson, Code Ann. § 27-2534.1 (b) (2); and (b) as to Count 2, the murder of Chessie C. Wilkerson: that the offense of murder was committed while the offender was engaged in the commission of another capital felony, viz., the murder of Mildred Godfrey. Code Ann. § 27-2534.1 (b) (2).
During the guilt-innocence phase of the trial, Godfrey v. State,
We have reviewed the instructions of the trial court and find that the charge is not subject to the defects dealt with in Fleming v. State,
Appellant in his sixth enumeration of error argues that the death penalty in domestic cases is such a rarity that, considering the mitigation, i.e., lack of prior criminal record and psychiatric history, the death penalty as . applied to appellant is disproportionate and is also “unusual” and therefore violates the Eighth and Fourteenth Amendments of the United States Constitution. In reviewing the death penalties in this case we have considered the cases appealed to this court since January 1,1970, in which a death or life sentence was imposed. Cases selected for comparison included those involving a death sentence or those involving a life sentence for domestic homicides, that is where the victim was a girl friend, spouse, or ex-spouse of the perpetrator, or a relative of the girl friend, spouse, or ex-spouse. As we noted in Tyler v. State,
We find that the similar cases listed in the appendix in the appellant’s first appeal, Godfrey v. State,
While it is not enumerated as error, as part of our independent sentence review we note that the sentence of death for the murder of Mildred Godfrey is supported by the aggravating circumstance that
Judgment affirmed in part; reversed in part and case remanded.
Appendix.
Sirmans v. State;
Dissenting Opinion
dissenting.
As Justice Rehnquist has suggested, courts should frequently (if not always) examine the actual text of the Constitution.
The double jeopardy clause of the Fifth Amendment provides: “... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb. ...” As the majority recognizes, this
Reading the double jeopardy clause, Godfrey has been “subject for the same offense to be twice put in jeopardy of life.” There is, of course, an exception where the defendant obtains a retrial based upon trial error (as opposed to insufficiency of the evidence). The majority sees the defect in the defendant’s first trial as an incomplete verdict. That incomplete verdict resulted from the jury’s failure to find depravity of mind of the defendant.
If further analysis is necessary, Code Ann. § 27-2534.1 (c) provides: “The statutory instructions as determined by the trial judge to be warranted by the evidence shall be given in charge and in writing to the jury for its deliberation.” At the first trial, the judge determined that aggravating circumstance (b) (7) was warranted by the evidence. Although erroneous, the judge determined that aggravating circumstance (b) (2) was not warranted by the evidence. “Having received ‘one fair opportunity to offer whatever proof it could assemble,’ [cit.] the State is not entitled to another.” Bullington v. Missouri, supra, 68 LE2d 283. In light of Bullington, I must retract my concurring opinion in Davis v. State,
Because I dissent to division one of the majority opinion, I must also dissent to division four. See Abney v. United States,
For the forego ing reasons, I respectfully dissent to divisions one
Notes
Snead v. Stringer, - U. S. - (50 US LW 3345) (1981) (Justice Rehnquist, joined by the Chief Justice and Justice O’Connor, dissenting to the denial of certiorari.)
Aggravating circumstance (b)(7) requires the jury to find that “(I) The offense of murder was outrageously or wantonly vile, horrible or inhuman (II) in that it involved (A) aggravated battery to the victim, (B) torture to the victim, or (C) depravity of mind of the defendant.” Hance v. State,