Griffin v. StateGriffin v. State
Lead Opinion
Miсhael David Griffin was indicted in 1992 in McIntosh County for the murder of Jenny Rhames. The State did not seek the death penalty. After Griffin’s trial ended in a mistrial, he was reindicted for Rhames’ murder. The State again declined to seek the death penalty. The trial court denied Griffin’s plea of former jeopardy as to the second indictment and Griffin appealed to this Court. While that appeal was pending, Griffin was indicted in Thomas County in a two-count indictment charging Griffin with kidnapping with bodily injury and murder of Rhames. The State announced its intention to seek the death penalty in that case. We granted Griffin’s application for interim appeal pursuant to
1. Griffin first contends that the trial court erred by denying his motion to quash the Thomas County murder indictment. We agree.
Where two or more courts have concurrent jurisdiction of the same offense, the court which first acquires jurisdiction of the prosecution retains it to the exclusion of others while that case is pending, thereby preempting jurisdiction for all offenses оriginating in the same course of criminal conduct. See McAuliffe v. Outz,
Our holding is not affected by the fact that charges currently are pending against Griffin only in Thomas County. The appeal that was pending at the time Griffin was indicted in Thomas County was resolved in Griffin v. State,
The Thomas County indictment must be quashed for a further reason. The day before Griffin’s indictment in Thomas County, Griffin had filed an appeal with this Court of the denial by the McIntosh County Superior Court of his plea of former jeopardy. While that appeal was pending, the Stаte clearly could not continue to prosecute Griffin in McIntosh County. See Chambers v. State,
The rule we articulate today imposes no undue burden upon the State. Nothing bars the State from reindiсting Griffin for murder in Thomas County or in McIntosh County. If Griffin is reindicted for murder in Thomas County, either party may move to incorporate the pre-trial record accumulated under the present indictment.
2. Under the facts in this case, venue over the murder charge may lie in either Thomas or McIntosh Counties,
It is very rare that a situation arises in which venue over a criminal charge can be had in more than one county. Even under such rare circumstances, however, nothing in the plain language of
While the murder charge cannot be brought in both Thomas and McIntosh Counties, see Division 1, supra, insofar as
Finally, contrary to Griffin’s argument, prosecution of the kidnapping charge in Thomas County does not constitute vindictiveness of any kind. See Potts v. State, supra, 261 Ga. at (1), in which this Court upheld Potts’ death sentence in Cobb County for the kidnapping of Michael Priest even though Potts had also been sentenced to death in Forsyth County for Priest’s murder. Here, as in Potts, the kidnapping and murder charges are not the “same” for double jeopardy purposes;
3. Griffin contends the trial court erred by denying his plea in bar to prevent the State from seeking the death penalty in Thomas County, because the State specifically waived seeking the death penalty for the same murder charged here both in the original prosecution in McIntosh County and upon subsequent reindictment there. This issue is one of first impression.
Double jeopardy precludes the State from seeking the death penalty on retrial if there was insufficient evidence at the original trial to support the aggravating circumstances or if the jury voted to impose a life sentence. Brooks v. State,
Griffin next argues, relying upon Blackledge v. Perry,
The reasoning of Blackledge is inapplicable in the context of jury deadlock. Here, as the State points out, what provided the State an opportunity to “up the ante” was not a successful appeal of a conviction, but rather a mistrial. The appeal of the plea of former jeopardy, had it bеen successful, would have created no opportunity for enhancement of charges or penalty. A mistrial resulting from an inability of a jury to reach a verdict, especially when entered on the trial court’s own motion, is not subject to chilling as is the exercise of the right to appeal. Therefore, no presumption of prosecutorial vindictiveness arises. See United States v. Whaley, 830 F2d 1469, 1478-1479 (7th Cir. 1987) (courts have consistently held that no realistic likelihood of vindictiveness is found when a jury is deadlocked and both parties agree that a declaration of mistrial is a necessity); United States v. Khan, 787 F2d 28, 33 (1) (2nd Cir. 1986) (addition of charges after mistrial presents no realistic likelihood of vindictiveness and therеfore raises no presumption of vindictiveness); United States v. Mays, 738 F2d 1188, 1190 (11th Cir. 1984) (no presumption of vindictiveness when, after mistrial, government allegedly threatened defendant with additional charges if he refused to plead guilty; declaration of mistrial did not result from assertion of protected right and was not reasonably likely to engender a vindictive response); United States v. Ruppel, 724 F2d 507 (5th Cir. 1984) (declined to presume vindictiveness upon increase in charges after hung jury in absence of evidence of actual retaliation).
Although neither the principles of double jeopardy nor a presumption of vindictiveness will bar the State from seeking the death penalty on reindictment, we are unable on the present record to make a determination whether there was actual vindictiveness. Griffin may nevertheless attempt to prove to the trial court that any effort by the State to seek the death penalty following reindictment is motivated by actual vindictiveness. See United States v. Whaley, supra, 830 F2d at 1478-1479; United States v. Mays, supra, 738 F2d at 1190.
4. Griffin also contends that the trial court erred by ruling that evidence of 29 prior difficulties between Griffin and the victim is admissible. Because our holding in Division 1, supra, leaves no murder indictment pending against him and no notice of intent to seek the death penalty, the unified appeal procedure is not presently applicable to this case. See
Judgment affirmed in part and reversed in part.
Notes
If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution.
Compare State v. Sallie, supra (crimes committed in two separate counties could have been prosecuted in the separate counties, but for the unartful drawing of the indictment in one county which “used up” for substantive double jeopardy purposes all the facts that would have supported the prosecution in the other county of the crimes those facts represented); Powe v. State,
Although the charges must be prosecuted together, it is still within the trial court’s authority to sever the charges for separate trials in the interest of justice.
Because the indictment charging kidnapping with bodily injury recites an injury inflicted on the victim other than the injury that caused the victim’s death, the record before this Court does not establish that the kidnapping is an included offense as a matter of fact, see Potts v. State, supra, 261 Ga. at (1), and we have recognized that these crimes are not included as a matter of law. Potts v. State,
Our opinion in Dalton v. State,
The State in the present action alleged the following aggravating circumstances: (1) that the minder was committed while Griffin was engaged in the commission of another capital felony or aggravated battery,
The rule is analogous to that articulated in North Carolina v. Pearce,
Concurrence Opinion
concurring in part and dissenting in part.
I concur fully with Division 3 of the majority opinion. Because the trial court granted a mistrial on its own motion when
I also concur in Divisions 1 and 4. However, I dissent to Division 2 because the kidnapping charge is procedurally barred.
True, the cases which have considered
Acting on behalf of the State, the district attorney of McIntosh County waived the kidnapping charge in this case. The kidnapping and the murder arose out of the same course of conduct and they were within the jurisdiction of a single court — the Superior Court of Thomas County. Nevertheless, with full knowledge of the kidnapping charge, the district attorney of McIntosh County prosecuted defendant for murder. It follows that defendant cannot be reindicted for kidnapping.
Dissenting Opinion
dissenting in part.
When the state uses its machinery to put a person to death, it should ensure that the defendant has received a fair process. The majority violates that principle by holding today that the state may add a kidnapping charge and seek the death penalty when reindicting Michael David Griffin in a second county. Because its decision violatеs due process, double jeopardy, and fundamental fairness, I dissent to Divisions 2 and 3.
1. The Fourteenth Amendment’s guarantee of due process prohibits the state from punishing a defendant for exercising his legal rights.
The timing of the state’s change of course heightens the realistic likelihood of vindictiveness. The state determined to seek the death penalty only after Griffin’s first trial ended in a hung jury and he appealed the denial of his double jeopardy claim.
[0]nce a trial begins — and certainly by the time a conviction has been obtained — it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he should be prosecuted. Thus, a change in the charging decision made after an initial trial is completed is much more likely to be imprоperly motivated than is a pretrial decision.12
Just as the United States Supreme Court has presumed prosecutorial vindictiveness when the government increases the severity of charges after a conviction and successful appeal, this Court should presume prosecutorial vindictiveness when the state seeks the death penalty following a mistrial and appeal. Under these circumstances, the state’s election to seek the enhanced punishment offends due process under the Georgia Constitution.
This conclusion is in accord with the decision of the Supreme Court of Missouri’s opinion in Patterson v. Randall.
The state’s attempt to rebut the inference of vindictiveness — by stating that the prosecutors in Thomas County simply reviewed the same evidence as the prosecutors in McIntosh County and came to a different conclusion on the appropriate penalty — is similarly inadequate. The state as a single sovereign may not circumvent the rules of law and principles of fairness by acting in the guise of first one prosecutor and then another.
Because the enhanced punishment here is a deаth sentence, this case is distinguishable from the federal cases on which the majority relies in rejecting the presumption. First, the possibility of execution may have far greater impact on the exercise of rights than the possibility of a longer prison term or a larger fine. Whereas a defendant may feel minimal pressure to plead guilty and forego a jury trial after a first jury is unable to reach a verdict on lesser charges, a defendant newly confronted with even a remote chance of execution may feel forced to plead guilty and accept a life sentence. Second, the decision to seek the death penalty оn retrial lacks the logical underpinnings that may justify the addition of new charges. Based on the learning experience of trying the case once without success, the state might reasonably bring new charges as part of a strategy to present its evidence differently in the second trial.
Because the state’s actions pose a realistic likelihood of vindictiveness and the state has failed to rebut the inference of vindictiveness, the State Constitution’s due process clause prohibits it from seeking the death penalty against Griffin on retrial. Therefore, the state should not be able to seek to have Griffin sentenced to death for the murder of Jenny Rhames in any county.
2. The Georgia Criminal Code also bars the kidnapping with bodily injury count of the Thomas County indictment. State law limits multiple prosecutions for crimes arising from the same criminal сonduct.
All three prongs of the statute are satisfied here. First, the kidnapping clearly arose out of the same course of conduct as the murder.
In reaching its conclusion that Griffin can now be prosecuted for kidnapping, the majority ignores precedent, plain statutory language, and the purpose of
it is undisputed that the murder of Michael Priest took place in Forsyth County and that the kidnapping with bodily injury took place in Cobb County. As a matter of law, the two offenses were not within a single court’s jurisdiction, and could not have been tried together. Therefore, we find no procedural bar to the appellant’s subsеquent prosecution for the murder of Michael Priest in Forsyth County.24
This holding was predicated on the fact that the crimes could not have been tried within a single court’s jurisdiction. Conversely, if the kidnapping and murder could have been tried within a single court’s jurisdiction, the second prosecution would have been barred. This case presents that logical extension of Potts. Before indicting Griffin, the state was aware that it could prosecute him for murder and kidnapping in Thomas County, but the state elected not to do so, instead proceeding with the murder charge alone in McIntosh County. Under the rationale of Potts, the state may not now try Griffin for the kidnapping in Thomas County.
Further, the statutory language completely refutes the majority’s interpretation of
Finally, this case illustrates the situation that
I am authorized to state that Justice Sears joins in this dissent.
United States v. Goodwin,
North Carolina v. Pearce,
United States v. Marrapese, 826 F2d 145, 147 (1st Cir.), cert. denied,
United, States v. Goodwin,
Id. at 19; see also Murphy v. State,
Thigpen v. Roberts,
See Wasman v. United States,
United States v. Mays, 738 F2d 1188, 1190 (11th Cir. 1984).
Gregg v. Georgia,
State v. Estevez,
See McCannon v. State,
See Baker v. State,
See Brock v. State,
Id. at 77-78. (Emphasis supplied.)
Majority opinion at 118.
Brown v. Ohio,
Dissenting Opinion
dissenting.
Presiding Justice Fletcher presents compelling reasons why the state is barred from trying Griffin for the death penalty and for kidnapping. I, therefore, join his dissent. I write separately to explain an additional reason
For the reasons given by Presiding Justice Fletcher, due process bars the state from seeking the death penalty against Griffin. I alsо conclude that double jeopardy bars the state from seeking the death penalty. In holding that double jeopardy bars a state from seeking the death penalty on a retrial when the first jury had “acquitted” the defendant of the grounds necessary to impose the death penalty, the United States Supreme Court found that the same double jeopardy principles that applied to successive prosecutions for an offense applied to successive prosecutions for the death penalty.
The “embarrassment, expense and ordeal” and the “anxiety and insecurity” faced by a defendant at the penalty phase of a . . . capital murder trial are at least equivalent to that faced by any defendant at the guilt phase of a criminal trial.27
The United States Supreme Court in Bullington was thus effectively equating the death penalty with an offense for double jeopardy purposes. Similarly, I would equate the two for purposes of our procedural double jeopardy statute.
Bullington v. Missouri,