*1 dissent. Justice, Chief concurring specially.
Hill, I concur the judgment. Benson May, See Ga. (101 177) (1919). SE —
Decided November Reconsideration denied November 1985. Henson,
Henson & Henson, Kenneth M. Henson, Kenneth M. Jr., appellant. for
Grogan, Gunby, Jr., Hirsch, Rumer & R. Grogan, Lee Beil & Partin, L. Lynn Grogan, appellees. for
42713. v. THE SPRAGGINS STATE. 227) SE2d Presiding Justice. Marshall, This is a prolonged prosecution criminal pen- in which the death alty being sought against appellant. was initially He convicted rape, murder and and he was appeal, sentenced to death. On direct his death sentence set was aside court because of errors sentencing instructions After jury. proceedings, numerous other his convictions and sentences were overturned a federal district court because of retrial, ineffective of trial counsel. his assistance At again penalty. He filed pro- motions to denied, hibit this on double-jeopardy grounds. His motions were appeal this is his from the denial motions. history
The culminating in this proceedings appeal is as follows: appellant, Davis,1 Spraggins, along Eddie with Freddie was rape
convicted of the Coe. Upon murder Frances recom- jury, mendation he was sentenced to death. imposed upon
was
jury’s finding
sole
charged by
court,
submitted
the state and
the trial
which was that
the offense of murder was committed while the of-
felony,
fender
in the
capital
was
commission
another
(b) (2).
rape.
appeal,
OCGA
were
17-10-30
the convictions
af-
firmed,
rape
as was the
sentence
con-
imposed
life
which
State,
Spraggins
viction.
SE2d
240 Ga.
How-
(1978).
See Davis
However,
Supreme
granted
Court
United States
the
further con
sentence,
case for
remanded the
vacated
(100
1759,
SC
Georgia,
The then instituted stayed, and the fed- execution was Georgia. court in eral district ap- aside the setting an order subsequently entered eral district assistance because of ineffective and sentences pellant’s convictions state, Circuit Court the Eleventh appeal counsel. On (11th Cir. F2d 1190 Spraggins, v. affirmed. Francis Appeals Kemp 1983). certiorari. Supreme Court denied The United States (1985). S__(105 1776,_LE2d_) SC Spraggins,_U. Upon Court, return of the case to Superior the Meriwether state filed notice its intent to seek the death against appellant on the basis of the two appellant’s
advanced trial. The appellant pretrial second filed prohibit motions to prosecution from penalty. the death motions, In these appellant basically has advanced argu- three (1) First, ments: it is argued ap- evidence introduced at the pellant’s original trial was insufficient to establish aggravat- the sole ing alleged by i.e., circumstance jury, the state and found rape Therefore, appellant argues that it would violate the Double Clause allow the state to sub- mit this to jury again. circumstance re- authorities Missouri, lied on argument Bullington this are U. S. 430 Kemp, LE2d (11th F2d Second, Cir. argued it is proceeding rape aggravating circumstance as the sole cir- cumstance the state waived its right to assert outrageously-and-wantonly-vile aggravating circumstance at resen- tencing, the introduction of latter aggravating this at resentencing violated the rights Jeop- under the Double ardy Francis, Clause. In argument, Godfrey *3 (N. FSupp. 1985), D. Ga. upon, Bullington is relied as well as Missouri, Third, Kemp, supra. argued it is that, jury since the in the resentencing hearing did not find that the murder appellant occurred while the in the commission it, effect, rape, imposed a aggravat- life sentence based this circumstance; ing therefore, appellant contends that death might sentence which predicated now be on this aggravating circum- State, stance disproportionate. would be Ward v. Ga. 365) (1977), SE2d is cited here.
The trial judge denied the
The
foregoing
appellant
motions.
filed
7)
his notice of
appeal. See Patterson
1. the United States Court, by vote, a Jeopardy 5-to-4 for the time Double first found the Clause to be applicable phase to the of a criminal trial. sentencing statutory procedures. The case involved death-penalty Missouri’s Missouri, as in a Georgia, death-penalty trial is bifurcated into a guilt/innocence phase sentencing phase; penalty a if death is retry given days appellant, The been state avers that it has in which to 180-day period expires that this on December doubt, beyond reasonable a state must establish imposed, to be statutory aggra- find, of at least one existence jury and the must vating circumstance. imposition sought The of murder. state
Bullington was convicted cir- statutory aggravating penalty predicated upon two death punish- fixing Bullington’s verdict its jury cumstances. The returned granted Subsequently, Bullington was life. imprisonment ment at Missouri, Duren v. 439 U. S. new as a result of the decision a trial (1979), holding provisions 58 LE2d exemption from jury allowing claim automatic Missouri law women to requirement of the Sixth fair-cross-section service violated the Amendment, through the Fourteenth applicable made states as Amendment. retrial, imposition of the sought
Upon Bullington’s the state circum- two penalty on the basis of the statutory aggra- as another in the first well stances advanced certiorari, Supreme Court vating the United States seeking the state from held that Clause barred Double penalty Bullington’s at retrial. the death that, pro- Bullington sentencing under specific holding Missouri, where the employed are death-penalty cedures in cases as life imprisonment jury sentencing returns a verdict the defendant death, his under- if obtains reversal of rather than to the defendant error, Jeopardy Clause lying of trial the Double conviction because from of the death at precludes the state retrial. Bullington Supreme for the Court’s decision rationale
that,
phase
sentencing
death-penalty
trial
since
cir-
prove
had to
the existence of at least one
beyond
in order for the
cumstance
a reasonable doubt
returned,
sentencing
possessed
to be
the hallmarks of
phase
therefore,
innocence;
guilt
by sentencing
defendant
effect,
had,
acquitted
life
him of whatever
imprisonment,
necessary
impose
death sentence.
case
sentencing phase
death-penalty
These features of
of a
distinguish
sentencing procedures
were seen to
it from the
other
*4
cases,
a
is
re-
imposition
particular
criminal
wherein
of
sentence
im-
garded
acquittal
as an
more severe sentence that could be
(89
Pearce,
2072,
posed.
North
v.
U. S. 711
SC
23
See
Carolina
395
656) (1969).
DiFrancesco,
v.
449
S.
LE2d
See
United States
U.
also
(101
(1980);
426,
328)
Stynchcombe, 412
117
SC
66 LE2d
v.
Chaffin
(93
1977,
714)
States,
(1973);
v.
U. S.
SC
36 LE2d
Stroud
United
50,
251 U.
As
in North Caro-
S. 15
SC
64 LE2d
stated
Pearce,
S.,
721,
is
supra
general
lina v.
U.
rule that there
at
double-jeopardy
imposing
against
no
bar to
harsher sentence
ultimately
defendant
retrial
premise
“rests
that the origi-
has,
nal
behest,
conviction
wholly
defendant’s
been
nullified
wiped
slate
clean.”
However,
sentencing adjudication
in
death-penalty
was seen to
guilt/innocence determination,
be more similar
to a
thereby invoking
States,
the rule of Burks v. United
Although
Bullington’s
prosecution
retrial the
in-
announced its
tent to seek
of the death
on
statutory ag-
the two
gravating circumstances
in
advanced
the first trial as well as another
statutory
circumstance,
prosecution subsequently
an-
rely
nounced its
only upon
intention to
the same aggravating circum-
stances
in
Bullington,
advanced
the first trial. In
Supreme
Court
held
in
view of the
underlying
values
Double
Clause,
States,
as stated
Green United
2. In Young Kemp, 760 F2d en Cir. den. banc), the Young Georgia defendant had been convicted of murder in statutory and he was sentenced to death under two cir- cumstances: offense murder was committed while i.e., offender was capital felony, the commission of another robbery; armed that the offense of for murder was committed (b) (4). purpose receiving money. OCGA 17-10-30 In federal corpus proceedings, habeas the federal district court held that legally evidence was insufficient these two FSupp. circumstances. (M. 1980). D. Ga. appeal, Appeals the Eleventh Circuit Court of set aside the underlying grounds convictions of ineffective assis- (11th Young Zant, tance of trial counsel. 677 F2d 792 Cir. subsequent court, proceedings question in the appellate federal whether, retrial, Young’s decision was seek the the state could on the basis of the two circum- stances advanced as well as an additional *5 this court, Young Kemp, supra, answered in appellate The double-jeopardy ground that negative, in question Burks, Bullington, in forbid applied in and principles announced reviewing where penalty at retrial a seeking the death state from original at the adduced court determined that evidence has pena of the death imposition legally insufficient to was lty.3 pp. F2d at Young Kemp opinion, 760
3. In of footnote Green v. 1106-1107, agreement with expressed its the court Redd, (11th 1984), Zant v. 249 Ga. Cir. and F2dT529 to in- 36) (1982); however, Young were found be in these cases apposite.
(a) Redd, following situation: The de- Zant v. involved trial, original In his for murder. Redd was sentenced death fendant (1) The of- advanced: three circumstances were aggravating in engaged the defendant was fense of murder was committed while bodily felony kidnapping injury; with capital of the the commission (2) or wantonly vile inhu- outrageously of murder was or offense mind, torture, depravity aggra- an in that it involved or or man (3) committed while the battery; vated the offense of murder was felony capital in of the offender was the commission on the basis of robbery. armed The defendant was sentenced to death jury, that statutory aggravating circumstance found the one of the commission of the of- during the murder occurred the course bodily kidnapping injury. fense of with
On
because of defects
appeal, the death sentence was reversed
aggra-
jury charge
sentencing hearing.
resentencing,
at the
At
to the
vating
in the first trial were submitted
circumstances advanced
jury,
aggravating
a
also submitted. The
fourth
circumstance was
offense of murder
aggravating
additional
circumstance was that
jury
purpose
money.
was
for the
returned
receiving
committed
sentence,
on the basis
imposing
recommendation
favor of
death
bodily injury;
with
aggravating
kidnapping
two
circumstances:
vile,
outrageously
wantonly
that the murder was
horrible or
inhuman, etc.
Bullington,
Kemp, rejected
argument
As in
the court
the state’s
that even
respect
penalty
aggravating
if the
of the death
the two
circum
barred with
alleged
Young’s
stances
could still
on the basis
first
the state
seek
aggravating
of an
trial. 760 F2d at
n. 12.
submitted
However,
Poland,
183) (1985),
in Arizona v.
Arizona v. Po-
144 Ariz.
P2d
land,
207) (1985),
Supreme
double-jeop-
versed lack of sufficient evidence on sentenced to Supreme death on retrial new The United basis of circumstances. States Arizona, granted Poland v. Court has certiorari to review decision. Docket No. 85-5023 (October Arizona, (October 7, 1985); Poland Docket No. 85-2024 corpus proceedings, superior agreed habeas Bullington, it argument Redd’s that under was a violation of the Double Clause for the state to have submitted the jury the resentencing hearing the two circumstances not found jury original trial.4 reversed, appeal, we rejecting argument that the failure of list certain “acquittal” amounts to an of those circumstances. *6 reason for our rejection that, of this is argument since the Georgia death-penalty only requires finding statute aggravating of one cir- impose 17-10-31, cumstance order to penalty, death OCGA it cannot be said listing that the of of aggravating one several cir- in support cumstances of penalty “acquittal” the death is an of the addition, In offenses, others. aggravating are circumstances not but they rather are procedural designed jury’s standards to control a dis- capital cretion cases in against capricious order ensure and arbi- trary reasons, enforcement penalty. of death For these we found applicable Pearce, the rule of North Carolina v. supra, that “the slate wiped clean” where the defendant overturns his death sentence on grounds. is, nullified, technical That the sentence is and the state and anew; defense start resentencing hearing, may the state offer proof of aggravating circumstances not offered at the first aggravating well as circumstances offered at the first trial but not jury listed in support of the death sentence.
(b) In v. supra, Green sought penalty the state the death against Green on the of basis three circumstances: of offense murder was while committed the offender was engaged in the capital commission of the additional kidnapping felonies of the robbery victim; (2) and armed of the the defendant committed the of purpose offense murder for the of receiving money and other things value, car; namely, of the victim’s offense murder was outrageously wantonly vile, horrible and inhuman in that it in- volved depravity part torture to the victim and of mind jury defendant. The returned a finding death sentence based its that the first present. and third were How- ever, error, penalty because of trial the death was set aside and the Georgia, case for resentencing. remanded Green v. S. 95 U. (1979). 60 LE2d Redd, pointed p. 212, in Zant v. As out 249 Ga. at “Redd did contend not penalty, Bullington clearly state could reseek the for allows it where Godfrey imposed grounds. v. legal which is first set aside on See (1) (284 complain Ga. 616 Neither did Redd to the submission sentencing jury jury second of the one circumstance found jury.” one not submitted to that argued Green corpus proceedings, habeas subsequent In federal jeopardy was vio- double prohibition against “that the constitutional permitted judge the trial trial because resentencing at his lated rape petitioner’s alleged pertaining to introduce evidence Zant, supra, Green theft of her automobile.” the victim and the F2d at appeal argument, and rejected this
The federal district court rejection agreeing In with affirmed. appellate federal court have could court noted argument, appellate whether the crime determining rape into account alleged taken the part of mind on depravity the victim and demonstrated torture to addition, on to hold appellate court went of the defendant. misplaced for the reasons Bullington was reliance on that Green’s Redd, supra. Zant given by this ruled, in Francis, supra, district court 4. In the federal Godfrey that where Bullington, Young Kemp’s interpretation of line legally was insufficient original trial the evidence at the defendant’s advanced, only statutory aggravating from the death prohibited Clause the state Double resentencing hearing. aat required by the Godfrey judge the trial argued also on all charge pertinent Georgia death-penalty statute therefore, (b), and, Godfrey im- circumstances, 17-10-30 OCGA § *7 respect all pliedly acquitted with to other addition, state, by In that charged. argued not he circumstance at penalty under one penalty under seek the death right waived its to Contrary to the statement other decision, Godfrey v. Francis the court did not Headnote 3 of the by right state waived its to arguments holding resolve these that circumstance any statutory aggravating seek the death under p. n. FSupp. at other than that submitted at the first trial. 613 15. disagree appellant’s argument
5. that evidence We (b) (2) aggravating rape support as to the was insufficient to § at his first trial. In the evi- appellant’s original appeal, acknowledged we that i.e., of the female rape, penetration dence second as element of (a)), (see 16-6-1 was circum- organ organ sex the male sex OCGA § however, circumstances, stantial; considering all of the facts and we support jury’s sufficient verdict. held that the evidence was State, v. Spraggins supra, 240 Ga. at in light Godfrey reaffirming appellant’s death sentence Georgia, supra,
v. we observed: part killed raped and as
“The evidence shows that the victim was a robbery scheme. The victim died from loss of blood. She had been beaten stabbed, about the face and had been repeatedly slashed and cut. Her throat was cut and the trachea was almost severed. She partially had been disembowelled. Death was not instantaneous but prolonged. Spraggins was v. (supra, State 240 Ga.
“The victim was
open,
slip,
found with her
her
pulled up
sweater
and her pantyhose and panties pulled down. Forensic evidence estab-
lished that
there could have been manipulation of the victim’s sexual
organs.
present
Bruises were
thigh
vaginal open-
on her
and near the
ing. There was a tear in
vaginal
hemorrhaging
wall and
around
pp.
the urethra.”
Under Jackson
U.
S. 307
LE2d
560) (1979),
holding
we reaffirm our
sufficiency
of the evi-
dence to
finding
rape
concerning
of the victim.
argument,
that
the evidence
insufficient
the jury’s finding
appellant
victim,
raped the
re-
solves itself into the
proof
contention that
of emission is an essential
element of the crime
rape.
is not
Although
This
the law.
at one
may
time this
State,
have been the rule in
v.
Georgia, Brown
76 Ga.
(1886),
it is
longer
State,
no
the rule.
Bonner
This supra, pre- from the case, sent and it also distinguishes our decision in Ward v. supra, Bullington. There, which antedated we held where the de- originally imprisonment, fendant life may sentenced to he not be sentenced to death retrial of his original after reversal convic- tion, death sentence the circumstances would violate statutory requirement that the sentence not be “ex- disproportionate cases, cessive or to the imposed similar considering (c) both the crime and the defendant.” OCGA 17-10-35 (3).
And, as observed in Green v. finding that *8 wantonly vile, inhuman, etc., murder was outrageously and or horrible the jury may well have rape taken the of the victim into con- sideration. reasons,
For these appellant we conclude that is incorrect in (b) (2) his argument the jury’s aggravating failure to find the § at appellant’s circumstance tuted, sentencing hearing second consti- effect, acquittal an charge. of this finding support jury’s sufficient Since the evidence was trial, first (b) (2) appellant’s at the circumstance of the § jury’s support sufficient the evidence was likewise and since trial, it (b) (7) his second circumstance at finding of the § state preclude the Jeopardy Clause does not the Double follows that appellant proceed- in this against from Redd, Green v. Young Kemp, supra; supra; ing. Zant supra. Hill, J., concur, C. except All the Justices
Judgment affirmed. J., Gregory, specially. who concur and Justice, specially. concurring
Gregory, much I reached in this case and agree with the result I specially result. concur be- of that majority said contentions fully I prefer to address more cause (7) at b circumstance (1) charge the when the trial court failed to § statu- trial, acquitted appellant of this the court effect (2) circumstance, failed to assert when the state tory aggravating and trial, (7) first circumstance presence b § future retrial existence at right the state waived its to contend its Brief, 21-24. pp. Appellant’s of the case. See sufficiency If, fact, of the evidence judge passed the trial (7) first determined that b and as to the circumstance § it, very might well such a determination the evidence did not (7) in any subse- preclude on the b the state’s reliance § case, not- quent of nullification and clean slates retrial of the theories (11th Cir. withstanding. Kemp, Cf. 760 F2d A trial shows that original review of the record Record, Case request charge b did § 2-3, 25, 1977, February pp. Transcript Hearing No. then, mere pp. question, Trial is whether the Transcript 159-160. is tantamount to a charged fact that b was not the first trial § sufficiency b ruling of the evidence as by the trial court on the § (7). This, turn, required depends upon whether the evidentiary sufficiency possible all examine circumstances, or those asserted the state. every aggravating must review
Appellant judge contends the trial (b) charge must all that circumstance listed in OCGA 17-10-30 § however, statute, clearly does not are warranted the evidence. review,1 has never held that the trial require such a this court (b) (c). one, “any” every Although the can mean it See OCGA 17-10-30 word one, Dictionary commonly possibly means at least more. Webster’s New World more Language, American 2nd Edition 1970. *9 duty.2 court has that
Typically, adversary system only a our judge addresses parties.3 case, by issues that are raised In the first trial this (7) by applicability parties. b circumstance was not raised § Thus, jury the mere fact that the trial court not instruct did (7) not, view, b in my circumstance did involve a determination § (7) supported by trial court that b was not the evidence. § agree
Nor can I
by failing
assertion that
to assert
(7)
trial,
b
circumstance
first
right
at the
state waived its
§
pursue
this circumstance
retrial
subsequent
case.
(2)
If
only
theory
had
travelled
a b
and the jury
§
sentence,
had recommended a life
the state could not thereafter have
(for
crime)
sought
(7)
a death sentence
b
theory.
same
on a §
(236
365)
State,
(1977). And,
Ward v.
However, when a case is reversed than for reasons other an insuf- ficiency evidence, state is presenting not restricted to retrial presented that evidence guilt- the first instance. At the (and phase retrial, innocence or at sentencing phase of a the state well) may defense as to or from previous presen- add subtract its tation, may verdict, rely upon new in support theories of the desired may theories, or to rely upon previous may continue present new evi- (whether discovered) dence or newly may not old delete evidence. In short, wiped case, slate is clean. In this the state is not precluded (7) from alleging the existence of both b b sim- § § ply because b was not asserted at the first trial.
I am authorized to state that Hill spe- Chief Justice joins cial concurrence. — 8, Decided November denied
Reconsideration
November
Martin,
Kennedy McIntyre,
Michael
& Young,
Martin
John R.
appellant.
State,
806)
Williams v.
There
is dicta
this effect.
See
Ga.
SE2d
(1976). It should not be followed.
guilt-innocence phase
may charge
At the
of a
trial court
lesser included offenses
indictment,
party requests
charge. Charg
of the crimes set
in the
if
forth
even
neither
such a
ing statutory
state,
timely
however, presents
asserted
McCrary
problems.
constitutional notice
Cf.
Arthur Gen- Westmoreland, Attorney Assistant General, torney Mary Beth eral, for appellee. M. OF FREDERICK SCHERMA.
IN THE MATTER Disciplinary 378) No. (Supreme Court Per curiam. *10 found Georgia of the State Bar of Disciplinary Board State Scherma, R. violated Standards respondent, had Frederick Bar Rule 4-102.
65 of complaint with by formal withhold- charged The respondent was more than the compensation client in a workers’ case from his ing fees, depositing to attorney endorsing amount as agreed forged power of using payable checks to client his own account attorney. following findings Board entered Disciplinary State law:
fact and conclusions of for bi- directly indirectly endorsed checks “2. Respondent deposited Mr. Elder and payable to weekly benefits which were made Respondent’s account. the checks Attorney Power sign purported Elder not
“3. Mr. did January dated At- Power of purported
“4. notarized the Although Respondent Respondent did signature not nor torney, Respondent did witness signature that the appear acknowledge him to have Mr. Elder before that Mr. Elder. authority to endorse give Respondent did not “5. That Mr. Elder Respon- deposit those checks into bi-weekly benefit checks and dent’s account. stipula- signed Compensation the Worker’s
“6. That Mr. Elder date, August same statement preliminary tion settlement 12, 1983. 4- Rule Standard of Bar Respondent
‘T. has violated That checks to his account Attorney deposit using a Power Elder. signed by Mr. which were of Bar and 65 Respondent
“2. has violated Standards That accounting appropriate promptly 4-102 render an by failing Rule settle- copy preliminary of a Elder in that Mr. Elder received Mr. Compensa- signed same time he Worker’s ment statement ac- did not settlement statement stipulation. preliminary This tion was made money which curately reflect' the distribution Respondent.”