PRESNELL v. GEORGIA
No. 77-6885
Supreme Court of the United States
November 6, 1978
439 U.S. 14
Pеtitioner was indicted and found guilty by a jury of three capital offenses—rape, kidnaping with bodily injury, and murder with malice aforethought. Under Georgia law, a jury may impose the death penalty if it finds that the offender committed a capital felony under at least 1 of 10 statutorily enumerated aggravating circumstances.
“[t]he [capital] offense . . . was committed while thе offender was engaged in the commission of another capital felony. . . .”
§ 27-2534.1 (b) (2) .
At the penalty phase of petitioner‘s trial, the jury was instructed that it could impose the death penalty (1) for rape if that offense was committed while petitioner was engaged in the commission of murder, (2) for kidnaping with bodily injury if that offense was committed while petitioner was engaged in the commission of rape, or (3) for murder if that offense was committed while petitioner was engaged in the commission of “kidnapping with bodily harm, aggravated
On appeal, the Supreme Court of Georgia held that the first two death sentences imposed by the jury could not stand. 241 Ga. 49, 52, 64, 243 S. E. 2d 496, 501, 508 (1978). Both sentences depended upon petitioner‘s having committed forcible rape, and the court determined that the jury had not properly convicted petitioner of that offense.1
In addition, the Supreme Court of Georgia held that the State could not rely upon sodomy as constituting the bodily injury associated with the kidnaping.2 Nonetheless, despite the fact that the jury had been instructed that the death penalty for murder depended upon a finding that it was committed while petitioner was engaged in “kidnapping with bodily harm, aggravated sodomy” (emphasis added), the Georgia Supreme Court upheld the third death penalty imposed by the jury. It did so on the theory that, despite the
In Cole v. Arkansas, 333 U. S. 196 (1948), petitioners were cоnvicted at trial of one offense but their convictions were affirmed by the Supreme Court of Arkansas on the basis of evidence in the record indicating that they had committed another offense on which the jury had not been instructed. In reversing the convictions, Mr. Justice Black wrote for a unanimous Court:
“It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made. . . .
“To conform to due process of law, petitioners were entitled to have the validity of their convictions appraised on consideration of the case as it was tried and as the issues were determined in the trial court.” Id., at 201-202.3
These fundamental principles of procedural fairness apply with no less force at the penalty phase of a trial in a capital case than they do in the guilt-determining phase of any criminal trial. Cf. Gardner v. Florida, 430 U. S. 349 (1977).
Insofar as the petition for certiorari challenges the conviction for kidnaping with bodily injury4 and the imposition of the death sentence, it is granted along with petitioner‘s motion to proceed in forma pauperis. The judgment of the Supreme Court of Georgia affirming the conviction for kidnaping with bodily injury and the death sentence for murder is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. Insofar as the petition challenges the convictions for murder, kidnaping, and statutory rape, it is denied.
It is so ordered.
MR. JUSTICE BRENNAN, concurring.
I join the opinion of the Court. For the reasons stated in my dissenting opinion in Gregg v. Georgia, 428 U. S. 153, 227 (1976), I would in addition hold that the death penalty violates the Eighth and Fourteenth Amendments and that therefore petitioner may not be resentenced to death in any proceedings following remand from this Court.
MR. JUSTICE MARSHALL, concurring.
While I join the opinion of the Court, I again emphasize my opinion that the death penalty in any proceeding is unconstitutional.
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, dissenting.
If, as the per curiam opinion for the Court states, the Supreme Court of Georgia had found petitioner guilty of kidnap
Petitioner was indicted for five offenses: murder of Lori Ann Smith; kidnaping of Lori Ann Smith; rape of Andrea Furlong; aggravated sodomy of Andrea Furlong; and the kidnaping of Andrea Furlong “with bodily injury.” The aggravated sodomy charge was not submitted to the jury, as the aggravated sodomy of Andrea was alleged to have supplied the bodily injury element of her kidnaping. The jury returned guilty verdicts on all four counts. It sentenced petitioner to death on three of the counts: (i) the murder of Lori Ann, with the kidnaping of Andrea with bodily injury as a specified aggravating circumstance; (ii) the rape of Andrea, with the murder of Lori Ann as a specified aggravating circumstance; and (iii) the kidnaping of Andrea with bodily injury, with the rape of Andrea as a specified aggravating circumstance. Petitioner also was sentenced to a term of years for the kidnaping of Lori Ann.
On appeal, the Georgia court vacated the death sentences for the rape of Andrea and the kidnaping of Andrea with bodily injury. With respect tо the rape of Andrea, the court noted that the jury was instructed on both forcible and statutory rape and returned a verdict that did not distinguish between the two crimes. As only forcible rape was a capital crime under Georgia law, petitioner had to be resentenced as
The Georgia court did affirm the sentence of death for the murder of Lori Ann, the kidnaping of Andrea with bodily injury being the aggravating circumstance. The validity of that kidnaping conviction is the matter in issue here. According to the Court, the court below ruled that even though as a matter of state law the aggravated sodomy of Andrea could not provide the bodily-injury element of the kidnaping, that element was supplied by the evidence of forcible rape. The Court then holds that the Georgia court could not constitutionally rely on evidence of forcible rape as bodily injury, because the jury may have convicted petitioner only of statutory rape, which requires no finding of force. Statutory rape would therefore be insufficient to provide the bodily-injury element associated with the kidnaping, which in turn would render that offense insufficient as an aggravating circumstance for the purpose of imposing the death penalty.2
Although the opinion of the Georgia court is not a model of clarity, a careful reading of the decision persuades me that the Court has misconstrued a critical part of what was held below. The Court is correct that the Georgia Supreme Court was not entitled to rely upon the evidence in the record of forcible rape
as establishing the bodily injury that converted simple kidnaping into a capital offense under Georgia law. On this point the opinion of the state court is hopelessly obscure. As the Court observes, portions of the opinion may be read as indicating that aggravated sodomy, a crime that has as an element a forcible assault upon the victim, сannot constitute “bodily injury” with respect to the crime of kidnaping with bodily injury. Ante, at 15 n. 2. An equally plausible reading of the opinion, however, is that once the court determined that the evidence of harm inflicted during the rape established bodily injury, it did not think it necessary to decide the question whether aggravated sodomy, considered alone, also could establish that еlement. Certainly that question was not necessarily decided by the court, as it believed that bodily injury was proved, at least in part, by the evidence of forcible rape.5 Moreover, the trial court expressly held that the sodomy did satisfy the bodily injury requirement, and the Georgia Supreme Court did not reverse that ruling.6
The validity of petitioner‘s conviction for kidnaping with bodily injury, and the use of that conviction as an aggravating circumstance for the purpose of sentencing, cannot be determined without resolution of this state-law question. If the court below meant to rule that as a matter of Georgia law evidence of forcible sodomy does not constitute proof of “bodily injury” for the purposes of the kidnaping offense, although proof of forcible rape would suffice, then the death sentence must be vacated and the conviction for kidnaping with bodily injury must be reversed. A criminal defendant is “entitled to have the validity of [his] convictio[n] appraised on consideration of the case as it was tried and as the issues were determined in the trial court.” Cole v. Arkansas, 333 U. S. 196, 202 (1948). Here, the jury wаs permitted to find petitioner guilty of kidnaping with bodily injury if he committed aggravated sodomy during the offense. The jury also was allowed to specify this kidnaping as an aggravating circumstance of the murder if it coincided with aggravated sodomy. If it was an error of state law so to instruct the jury, the court may not redeem the mistake by ruling that the jury could have believed other еvidence indicating petitioner had injured his victim in other ways. Cf. Duncan v. Louisiana, 391 U. S. 145 (1968). This is particularly true here, as the Georgia court ruled that
If, however, the aggravated sodomy, accomplished by force, did satisfy the bodily-injury element under state law, it would appear that the jury properly convicted petitioner of that crime and was pеrmitted to use that conviction as an aggravating circumstance with respect to the murder conviction. Because the question is substantial and was not resolved by the court below, I would remand the case for clarification.7
Notes
“The only evidence of bodily injury, to support the crime of the kidnapping with bodily injury of the older child, is the bodily injury which resulted from the rape of that child.” 241 Ga., at 52, 243 S. E. 2d, at 501. Second, after concluding that the evidence of forcible rape could supply the bodily injury element of the crime of kidnaping, the Georgia cоurt added:
“The state‘s attempted reliance upon sodomy as constituting the bodily injury associated with the kidnapping of the older child is not ground for retrial.” Ibid., 243 S. E. 2d, at 502. See n. 1, supra.
“On motion for rehearing the defendant urges, among other things, that he was not on notice that evidence as to the older child‘s injuries which resulted from her being raped would provide the evidence of her bodily injury tо convict him of her kidnapping with bodily injury. He was on notice, however, that he was charged with forcible rape as well as kidnapping with bodily injury of the older child.
“Motion for rehearing denied.” Id., at 67, 243 S. E. 2d, at 510. The court bеlow actually identified two problems with the rape conviction, a state-law double jeopardy violation as well as the ambiguity of the jury verdict discussed in the text. This is made clear by a close reading of the opinion. It begins by observing:
“The only evidence of bodily injury, to support the crime of the kidnapping with bodily injury of the older child, is the bodily injury which resulted from the rаpe of that child. Thus, the convictions for both kidnapping with bodily injury and forcible rape cannot be upheld.” 241 Ga. 49, 52, 243 S. E. 2d 496, 501 (1978).
This Court apparently believes that “both” convictions could not be upheld because of the failure of the jury to distinguish in both instances between forcible and statutory rape. Immediately after this sentence, however, the Georgia court citеd its decision in State v. Estevez, 232 Ga. 316, 206 S. E. 2d 475 (1974). That decision involves the protection against double jeopardy provided by the Georgia Constitution, a protection of substantially broader scope than that provided by the Federal Constitution. Under the Georgia Constitution, a defendant cannot be convicted and punished for separate crimes arising from the same criminal conduct. Ibid. It is plain that the Georgia court was concerned that separate punishments for both the kidnaping of Andrea with bodily harm and the forcible rape would violate this protection in a situation where rape was the only bodily harm involved. It had ruled that double jeopardy applied to similar facts in Allen v. State, 233 Ga. 200, 203, 210 S. E. 2d 680, 682 (1974). When the Georgia court stated that “both” cоnvictions could not stand, it therefore meant not that each was invalid, but that petitioner could be punished only for one. It is in this context that the court determined that petitioner had not been punished for forcible rape and, “[a]s a consequence of the foregoing, there is evidence of bodily injury, not a part of the crime of statutory rape, to support the crime of kidnapping with bodily injury.” 241 Ga., at 52, 243 S. E. 2d, at 502.
Similarly, during the sentencing stage the jury was instructed that in order to impose death for the murder of Lori Ann, it had to find that petitioner was “engaged in the commission of another capital felony, to-wit: The kidnapping with bodily harm, aggravated sodomy, of Andrea Furlong.”
“I will give you a precise ruling so that you will have the advantage of your motion. I will hold specifically that thе act of aggravated sodomy committed upon her person was such harm that aggravated the kidnapping and made it a higher crime. I hold that it does not require, the law does not require, a physical bruising injury or battery, but that the act of sodomy itself is as vile and as gross as anything can be as an act of harm against a ten year old child, and I don‘t have any problem with it.” Record 990-991.
Nowhere in its opinion does the Georgia court state that this view of the law was incorrect.