Godfrey v. State

284 S.E.2d 422, 248 Ga. 616, 1981 Ga. LEXIS 1133
CourtSupreme Court of Georgia
DecidedNovember 24, 1981
Docket37683, 37684
StatusPublished
Cited by43 cases

This text of 284 S.E.2d 422 (Godfrey v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Godfrey v. State, 284 S.E.2d 422, 248 Ga. 616, 1981 Ga. LEXIS 1133 (Ga. 1981).

Opinions

Clarke, Justice.

Robert Franklin Godfrey, the appellant, was convicted and sentenced to death in Polk County for the murders of Chessie Wilkerson and Mildred Godfrey. The appellant was also convicted of committing an aggravated assault upon his daughter. The convictions and sentences were affirmed on appeal by this court. Godfrey v. State, 243 Ga. 302 (253 SE2d 710) (1979). The Supreme Court of the United States reversed as to sentence and remanded the case. Godfrey v. Georgia, 446 U. S. 420 (100 SC 1759, 64 LE2d 398) (1980). Upon remand to the Superior Court of Polk County, Godfrey v. State, 246 Ga. 359 (274 SE2d 339) (1980), a jury again returned a verdict for the death sentences. The case is presently before this court upon direct appeal and mandatory review of the death penalty. Code Ann. § 27-2537.

[617]*617The facts surrounding the death of the victims and the aggravated assault committed upon the appellant’s daughter are amply set out in Godfrey v. State, 243 Ga. 302, supra, and Godfrey v. Georgia, supra. They therefore will not be repeated here.

1. During the sentencing phase of the initial trial, the court charged the jury as to Code Ann. § 27-2534.1 (b) (7). The jury found “that the offense of murder was outrageously or wantonly vile, horrible and inhuman.” On remand, the jury was charged and found that the murders occurred while the offender was engaged in the commission of another capital felony pursuant to Code Ann. § 27-2534.1 (b) (2), a different statutory aggravating circumstance from that charged in the first trial. The evidence presented during the resentencing trial was essentially the same as that presented during the first trial. Appellant in his first enumeration of error contends that his retrial and the subsequent imposition of a second death sentence violated the double jeopardy provisions of the constitutions of the United States and the State of Georgia, and the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.

Appellant argues that while ordinarily there is no double jeopardy bar to retrying a defendant who has overturned his conviction upon appeal, a defendant may not be retried if he obtains a reversal of his conviction on the ground that the evidence was insufficient to convict. Burks v. United States, 437 U. S. 1 (98 SC 2141, 57 LE2d 1) (1978). Appellant concedes that this court has held that the double jeopardy provisions of the United States Constitution and the Constitution of the State of Georgia do not apply to sentence hearings in capital felony cases under Code Ann. § 27-2534.1 (b) (1-10). Redd v. State, 242 Ga. 876 (252 SE2d 383) (1979); Davis v. State, 242 Ga. 901 (252 SE2d 443) (1979); Spraggins v. State, 243 Ga. 73 (252 SE2d 620) (1979); Green v. State, 246 Ga. 598 (272 SE2d 475) (1980). However, he argues that the United States Supreme Court in the recent case of Bullington v. Missouri, - U. S. - (101 SC 1852, 68 LE2d 270) (1981), extended the constitutional protection against double jeopardy to sentence hearings in all capital felony cases tried under the Georgia death penalty statute.

Bullington arose under a Missouri death penalty statute which is essentially identical to the Georgia statute. The question presented was whether jeopardy attaches when a defendant is subjected to a separate sentencing hearing under a statutory scheme whereby the jury, although not required to do so, may return the death penalty in the presence of certain statutory aggravating circumstances. The Supreme Court of the United States held in the affirmative, reasoning that since the state in a capital felony prosecution has the burden of proof beyond a reasonable doubt, a sentence hearing is for [618]*618all intents and purposes a trial. Therefore, an initial finding of a life sentence is in effect an acquittal of whatever is necessary to impose the death penalty. See Price v. Georgia, 398 U. S. 323 (90 SC 1757, 26 LE2d 300) (1970). Such a finding, the Court reasoned, was tantamount to a finding that the evidence was insufficient to support the conviction. Under these circumstances, the Court held, a defendant may not be subjected to a new sentencing hearing wherein the State again seeks the death penalty. Of course, under this court’s decisions, defendants who are sentenced to life imprisonment in a capital felony sentencing hearing cannot after reversal be sentenced to a death penalty for the same offense. Ward v. State, 239 Ga. 205 (236 SE2d 365) (1977). This has not been based on double jeopardy, however, but on the fact that the death sentence was disproportionate to the life sentence previously imposed.

Appellant urges that the United States Supreme Court’s reversal of his death sentence was in effect a finding that the prosecution had not proven sufficient facts to convict. We do not agree. The reversal in Godfrey v. Georgia, supra, was based on the premise that the Supreme Court of Georgia, in affirming a death sentence based on no more than a finding that the offense was outrageously or wantonly vile, horrible and inhuman, had allowed a standardless and unchanneled imposition of the death penalty “in the uncontrolled discretion of a basically uninstructed jury”’ Godfrey v. Georgia, supra at 429. “There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence.” Id. at 428. See Hance v. State, 245 Ga. 856 (268 SE2d 339) (1980); Cape v. State, 246 Ga. 520 (272 SE2d 487) (1980).

The prosecution in the original case against the appellant proved beyond a reasonable doubt facts sufficient to support a sentence of death upon a finding of an aggravating circumstance under Code Ann. § 27-2534.1 (b) (2). The reversal here being solely upon legal grounds, Godfrey v. Georgia, supra, a retrial would not be for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster at the first proceeding. The situation is analogous to that in Ball v. United States, 163 U. S. 662 (16 SC 1192, 41 LE 300) (1896), where it was held that “. . . a defendant, who procures a judgment against him upon an indictment to be set aside, may be tried anew upon the same indictment, or upon another indictment, for the same offense of which he had been convicted.” Id. at 672. This court has previously held that in determining whether, jeopardy attached under the Burks rule at a guilt-innocence trial, the court could consider competent evidence admitted at trial but later found inadmissible in determining [619]*619whether the evidence supported a conviction. Hall v. State, 244 Ga. 86 (259 SE2d 41) (1979). In Hall we said that reversal for trial error on improperly admitted evidence differs from reversal for insufficiency of the evidence because it indicates nothing with respect to guilt or innocence of the defendant. “Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions or prosecutorial misconduct.” Hall v. State, supra at 94. In this case the trial defect was an incomplete verdict. Burks v. United States, supra; Bullington v. Missouri, supra.

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Bluebook (online)
284 S.E.2d 422, 248 Ga. 616, 1981 Ga. LEXIS 1133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/godfrey-v-state-ga-1981.