Zant v. ReddZant v. Redd
Lead Opinion
1. Appellee’s motion to dismiss is denied. Reed v. Hopper,
2. This case presents the issue of whether double jeopardy attaches to aggravating circumstances in a death penalty case.
The appellee was convicted of murder and kidnapping and was sentenced to die for the murder. On appeal Redd’s conviction was affirmed, but his death sentence was reversed on technical grounds and a new sentencing trial was ordered. See Redd v. State,
In June of 1981, Redd filed a habeas corpus petition in Butts County Superior Court alleging that on resentencing the consideration by the jury of certain statutory aggravating circumstances was in violation of the double jeopardy clause.
At Redd’s first sentencing trial, three aggravating circumstances were submitted to the jury. The jury imposed the death sentence but only listed one aggravating circumstance in support thereof.
The second sentencing jury was authorized to consider four
Redd, relying on Bullington v. Missouri,- U. S. - (101 SC 1852, 68 LE2d 270) (1981), argued on habeas that the first jury, by not listing two of the three submitted statutory aggravating circumstances in support of the death penalty, essentially “acquitted him of those two,” thereby making it a violation of the double jeopardy clause for the state to have offered proof on and for the second jury to have considered them on resentencing.
Redd did not contend that the state could not reseek the death penalty, for Bullington clearly allows for it where a death penalty which is first imposed is set aside on legal grounds. See, Godfrey v. State,
Redd argues that Bullington mandates that we affirm the reversal of his death sentence. Bullington is the first case in which the United States Supreme Court has held the double jeopardy clause to be applicable to the sentencing phase of a criminal trial. In Bullington, the court held that the imposition of a life sentence by the first jury was an “acquittal” of the death sentence. Therefore, the court held that for the state to seek the death penalty on resentencing would be in violation of the double jeopardy clause.
The habeas trial judge, also relying on Bullington v. Missouri, agreed with Redd’s arguments and set aside his death sentence. The state appeals, and we reverse.
The basis of the Supreme Court’s ruling in Bullington was that the procedure involved in sentencing under Missouri’s death penalty statute closely resembled that of a trial on guilt or innocence. The court emphasized that the jury was presented with two alternatives, life or death, and that to impose death the jury had to find certain facts beyond a reasonable doubt. The court felt that this sentencing procedure required the jury to determine if the state had “proved its case” when seeking to impose the death penalty. Consequently, the court reasoned that a sentence of life amounted to an “acquittal” of the death penalty. In conclusion, the court ruled that an “acquittal” on sentencing should be accorded the same finality as an “acquittal” on guilt or innocence.
We find that this reasoning does not apply to aggravating circumstances and does not mandate a ruling that the failure of a jury to list certain aggravating circumstances in support of the death penalty amounts to an “acquittal” of those circumstances.
An alternative process is not involved in a jury’s consideration of
Even if the decision on aggravating circumstances involved an alternative process, we would refrain from applying the double jeopardy clause to aggravating circumstances as the principles involved in double jeopardy do not warrant its application to them.
In Green v. United States,
“ ‘The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.’ Green v. United States,355 U. S. 184 , 187-188 (1957).”
The Supreme Court in Bullington stated that the above principles applied equally to the question of whether the defendant deserved to die as it did to the question of guilt or innocence. The court essentially equated the question of life or death to an offense and found that a decision of life or death deserved the same finality as a decision on guilt or innocence. It noted that the defendant faces “ ‘embarrassment, expense and ordeal’ ” and “ ‘anxiety and insecurity’ ” when facing the dealth penalty.
We refrain from equating “aggravating circumstances” to an offense. See, Redd v. State,
Aggravating circumstances are procedural standards designed
As we have determined that double jeopardy does not apply to aggravating circumstances, we apply the established double jeopardy rule to the sentencing phase of Redd’s trial, i.e., that on a trial on guilt or innocence, if a defendant is found guilty and convicted but overturns his conviction on legal grounds, the slate is wiped clean, the conviction nullified, and the state and the defense start anew. Godfrey v. State,
Applying this principle to a sentencing hearing in a death penalty case, the following rule emerges: if a defendant overturns his death sentence on technical grounds, the sentence is nullified and the state and the defense start anew. Consequently, on resentencing the state may again seek the death penalty and may offer any evidence on aggravating circumstances in support thereof. Likewise, the defendant is entitled to bring to the jury any mitigating circumstances available to him, including those not known or utilized at the first sentencing trial. In accordance with that reasoning, we held in Godfrey that if a defendant overturns his death sentence on legal grounds, the death penalty may be sought on resentencing, and the state may offer proof of statutory aggravating circumstances not offered at the first trial. We take that reasoning one step further and hold that on resentencing in this case the state acted properly in offering proof of statutory aggravating circumstances submitted to the first jury but not listed by that jury in support of the death sentence.
Judgment reversed.
Concurrence Opinion
concurring specially.
In Redd’s first sentencing trial, three aggravating circumstances were submitted to the jury: (1) The offense of murder was committed while the defendant was engaged in the commission of the capital felony of kidnapping with bodily injury (Code Ann. § 27-2534.1 (b) (2)); (2) the offense of murder was outrageously or wantonly vile or inhuman in that it involved torture, or depravity of mind, or an aggravated battery (Code Ann. § 27-2534.1 (b) (7)); and (3) the offense of murder was committed while the offender was engaged in the commission of the capital felony of armed robbery (Code Ann. § 27-2534.1 (b) (2)). See Redd v. State,
In the resentencing trial, the jury was permitted to consider four aggravating circumstances, the same three charged in the original trial plus Code Ann. § 27-2534.1 (b) (4) (the offense of murder was committed for the purpose of receiving money). Redd v. State, supra,
I agree that because this is a case where the defendant’s first death sentence was reversed due to trial error, the resentencing jury was free to again recommend the death penalty. Cf., North Carolina v. Pearce,
The first sentencing jury returned the aggravating circumstance of kidnapping with bodily injury and this finding was not reversed due to insufficient evidence. It did not violate double jeopardy to resubmit this aggravating circumstance to the second jury or for them to impose the death penalty based upon it. Under our cases, when two