*1 38069. ZANT v. REDD.
Per curiam. Appellee’s Hopper, 235 1. motion to dismiss is denied. Reed v. Ga. 298 presents
2.
This case
the issue whether double
in a
attaches
circumstances
appellee
kidnapping
The
of murder and
and was
was convicted
appeal
was
sentenced to die for the murder. On
Redd’s conviction
grounds
affirmed, but his death sentence was reversed on technical
State, 240Ga. 753
and a new
trial was ordered. See Redd v.
16) (1978).
again
resentencing,
On
imposed.
appeal
this Court. Redd v.
This sentence was affirmed on
State,
County Superior
alleging
con-
that on
statutory aggravating
by
circum-
certain
sideration
jeopardy clause.
of the double
violation
stances
sentencing trial,
At
three
circumstances
Redd’s first
imposed
jury.
sentence but
were submitted to the
thereof.
listed one
sentencing jury
consider four
was authorized to
second
—
submitted to the first
by
plus
judge
supported
one the
felt was
additional
the evidence.
U. S. - (101
relying
Redd,
Missouri,-
270) (1981), argued
jury,
1852, 68 LE2d
on habeas that the first
listing
statutory aggravating
two
the three submitted
penalty, essentially “acquitted
thereby making
two,”
him those
it a violation of the double
*2
jeopardy
proof
clause for the state to have
on and
the
offered
for
jury
resentencing.
them
second
to have considered
on
Redd did not contend that the state could not reseek the death
Bullington
penalty,
clearly
penalty
for
allows for it where a death
imposed
legal grounds.
See,
is first
which
set aside on
State,
The habeas trial also on agreed arguments with set aside The Redd’s and his death sentence. appeals, we state reverse. argues Bullington
Redd that mandates that we affirm the Bullington of his reversal United States be death sentence. is the first case in the which Supreme jeopardy Court held the to has double clause applicable sentencing phase In criminal a trial. Bullington, imposition the held court of a life sentence the jury “acquittal” Therefore, first was an of the death sentence. the penalty court held that for the state the to seek death on jeopardy be in would violation of the clause. Supreme ruling Bullington
The basis of the Court’s in was that procedure sentencing penalty the involved in under Missouri’s death closely guilt statute court life a resembled that of trial on The innocence. emphasized presented jury alternatives, that two with impose jury death, and that to death the had to find certain beyond facts a reasonable doubt. court felt that this procedure required “proved to if determine the state had its impose seeking penalty. Consequently, case” when court reasoned to “acquittal” life that sentence of an amounted to “acquittal” conclusion, In court that ruled an finality “acquittal” on be should accorded same as an guilt or innocence. reasoning apply aggravating
We find this that does not to ruling circumstances and does not mandate a the failure that of a aggravating to list certain
penalty “acquittal” amounts to an of those circumstances. process jury’s
An alternative is not involved in a consideration of only penalty Georgia aggravating requires statute death circumstances. The impose aggravating finding in order to of one (c)), (Code in this § Ann. 27-2534.1 regard jury’s to with decision was so instructed. case regard mutually one as it is with exclusive is not a circumstances say, Consequently, as the cannot we of life or death. the choice regard Supreme death, that the choice of life Court did listing circumstances one of procedural “acquittal” two. The of the other is an exist does not its decision which led the court to basis involved if circumstances Even the decision on applying process, the double from we would refrain alternative principles jeopardy as the clause application to them. its in double do not warrant involved 221, 2 States, In Green v. United 199) (1957) Supreme “[t]he Court noted United States designed prohibition against jeopardy’ ‘double constitutional protect being subjected of trial and to the hazards from an individual alleged possible offense.” more than once for an conviction noting Bullington, Supreme the values addition, the *3 language following quoted jeopardy rule, underlie the double from the Green decision: “ deeply ingrained underlying in at least idea, is ‘The one that system jurisprudence, Anglo-American is that the State repeated power make not be allowed to its resources and should all thereby alleged attempts offense, individual for an to convict an expense subjecting embarrassment, and and ordeal com- him to insecurity, anxiety continuing pelling and him live in a state of may though possibility enhancing he innocent that even as well as be found guilty.’ 184, States, 187-188 355 U. S. Green v. United (1957).” Supreme above that in stated question
principles applied equally
of whether the defendant
to the
question
guilt
innocence. The
it did to the
deserved to die as
court
essentially equated
question
to an offense
of life or death
finality as
the same
life or death deserved
that a decision of
and found
guilt
faces
the defendant
It noted that
a
“
on
or innocence.
decision
“
”
‘anxiety
expense
insecur-
and
‘embarrassment,
ordeal’ and
and
”
penalty.
ity’
facing the dealth
when
equating “aggravating
circumstances”
refrain from
supra;
State,
885,
876,
Green v.
See,
Redd v.
offense.
(272
475) (1980).
(8)
Judgment except All concur, Hill, reversed. the Justices P. J., *4 specially. who concurs April 6, 1982.
Decided Attorney Daryl Bowers, General, Robinson, Michael J. A. Attorney appellant. General, Assistant for Stanley appellee. House, C. for
215
Justice, concurring specially.
Hill, Presiding
trial,
In
first
three
aggravating
Redd’s
(1)
jury:
The offense of murder was committed
were submitted to
capital
was
in the commission of the
engaged
while the defendant
(Code
(b)
Ann.
27-2534.1
felony
kidnapping
bodily injury
of
with
§
(2)
(2));
wantonly
or
outrageously
of
was
vile
the offense murder
torture,
mind,
of
or an
depravity
inhuman in that
it involved
(Code
(b) (7));
(3)
battery
Ann.
27-2534.1
aggravated
§
engaged
was committed while the offender was
offense of murder
(Code Ann.
capital felony
robbery
of the
of
the commission
armed
§
State,
(252
v.
876,
Redd
242
SE2d
(b) (2)).
883
See
Ga.
27-2534.1
383)
denied,
jury
442
S. 934. The
returned
(1979),
U.
cert.
cir
aggravating
on the
of death based
recommendation
Redd was
committed while
the murder was
cumstance
bodily
engaged
capital felony
injury.
in the
of
with
kidnapping
jury
adequately
death sentence because the
was not
reversed this
concerning
option
imprisonment
their
to recommend life
instructed
they
statutory
aggravating
even if
found
of a
presence
State,
v.
16)
circumstance. Redd
(1978).
SE2d
240 Ga.
Fleming
State,
See also Hawes v.
883) (1977);
aggravating charged original the same (4) (the (b) plus Ann. of trial Code 27-2534.1 offense murder was § v. Redd receiving supra, purpose money). committed for the penalty, 242 Ga. n. 2. The found jury again at 883 favor kidnapping this on both time based circumstance ((b) (2)) bodily injury with circumstance that the and the vile, outrageously wantonly murder horrible or inhuman torture, battery it mind depravity aggravated involved or an ((b) (7)).
I because case first agree that this where defendant’s error, resentencing jury death sentence was reversed due to trial Cf., North Carolina again was free to recommend the 656) 711, Pearce, 719-20 616, 625-26 (284 (1981) Compare (Hill, reason, J., following agree I also dissenting). P. For the imposed by habeas setting court erred aside sentence in this resentencing jury returned the circumstance
The first this was not reversed kidnapping bodily injury finding It did not due insufficient evidence. violate or for them to the second resubmit cases, impose upon it. our when two based Under *5 are returned more sentence, one the failure of recommending a circumstance other not invalidate the does circumstance 698, 708-09 Stevens v. 247 Ga. sentence. or the death 296) (1980), Burger (1981); 245 Ga. court therefore erred denied, Because habeas S. 988. 446 U. cert. sentence, it was regardless whether setting aside Redd’s (b) (7) to submit error length in the majority at I reach the issue discussed would not jury, opinion.
38074. FIRST NATIONAL BANK OF DeKALB COUNTY OF et
NATIONAL BANK GEORGIA al. Justice
Gregory, (First DeKalb) County First National Bank DeKalb filed against suit (NBG), The National Bank of Georgia Centennial Equities (CEC) Corporation and two individuals seeking specific performance sale together declaratory contract injunctive NBG, relief. The trial granted summary court judgment holding that a condition performance not had occurred. reverse. This is appearance the second of this case before this court. First Nat. Bank v. Centennial Corp., Equities
Qn April 21, 1978 NBG entered into a contract with First DeKalb agreed wherein NBG buy to sell and First DeKalb agreed to bank building and its contents located on premises of Perimeter Shopping County. Mall DeKalb provided sale contract subject sale was to the terms
and conditions of existing ground lease between CEC as lessor and NBG as ground lessee. The lease created a leasehold interest in the upon land which building provided was constructed. It (NBG) lessee could not assign its interest under lease without prior written (CEC). consent of the lessor Consent was not be unreasonably withheld.1 The sale required contract that First may assign any “Lessee any this lease or interest hereunder nor sublet prior interest Lessor, hereunder prior without written consent of the which may unreasonably withheld; written consent provided, however, not be Lessor agrees may assign premises corporation Lessee any sublet the which owns more than voting Any 50% the Lessee’s assignee stock interest. such shall power, authority, rights, duties, thereafter have all of the obligations and liabilities Lessee hereunder.”