Griffin v. State

464 S.E.2d 371, 266 Ga. 115

Opinions

Hunstein, Justice.

Michael David Griffin was indicted in 1992 in McIntosh County for the murder of Jenny Rhames. The State did not seek the death penalty. After Griffin’s trial ended in a mistrial, he was reindicted for Rhames’ murder. The State again declined to seek the death penalty. The trial court denied Griffin’s plea of former jeopardy as to the second indictment and Griffin appealed to this Court. While that appeal was pending, Griffin was indicted in Thomas County in a two-count indictment charging Griffin with kidnapping with bodily injury and murder of Rhames. The State announced its intention to seek the death penalty in that case. We granted Griffin’s application for interim appeal pursuant to OCGA § 17-10-35.1. We hold that the murder count of the Thomas County indictment must be quashed because at the time of his indictment in Thomas County, that county lacked the right to exercise jurisdiction. We uphold the indictment for kidnapping in Thomas County. We further hold that the State may reindict Griffin for the murder of Rhames in Thomas or McIntosh County and may seek to have Griffin sentenced to death.

1. Griffin first contends that the trial court erred by denying his motion to quash the Thomas County murder indictment. We agree.

Where two or more courts have concurrent jurisdiction of the same offense, the court which first acquires jurisdiction of the prosecution retains it to the exclusion of others while that case is pending, thereby preempting jurisdiction for all offenses originating in the same course of criminal conduct. See McAuliffe v. Outz, 139 Ga. App. 62, 64 (227 SE2d 807) (1976); Nobles v. State, 81 Ga. App. 229, 230 (58 SE2d 496) (1950). McIntosh County held exclusive jurisdiction of the offense at issue when the State indicted Griffin in Thomas County. Therefore, when Griffin was indicted for murder in Thomas County, that county had no authority to exercise jurisdiction, and the murder count of that indictment must be quashed.

Our holding is not affected by the fact that charges currently are pending against Griffin only in Thomas County. The appeal that was pending at the time Griffin was indicted in Thomas County was resolved in Griffin v. State, 264 Ga. 232 (443 SE2d 612) (1994), in which we held that the McIntosh County Superior Court did not abuse its discretion in declaring a mistrial and that jeopardy did not attach so as to bar a retrial. After this Court remitted the case to the McIntosh County Superior Court, the McIntosh County indictment was dismissed through nolle prosequi. Hence, because McIntosh County Superior Court, the court first acquiring jurisdiction, has voluntarily and legally dismissed the prosecution, the Thomas County Superior Court now has the opportunity to obtain for the first time the right to exercise its jurisdiction as to the murder charge, since an accused has no vested rights to be tried in any particular court. Nobles, supra. However, the Thomas County Superior Court lacked the right to exercise jurisdiction at the time this case began due to the pendency of proceedings on the same offense in McIntosh County. The error of proceeding initially without the right to exercise jurisdiction is not cured by the subsequent dismissed of the McIntosh County case. See 22 CJS 215, Criminal Law, § 176 (“jurisdiction of a court depends on the state of facts existing at the time it is invoked”). To permit this action to proceed under the present indictment would erode the protection of criminal defendants from having to defend themselves simultaneously in two State courts for the same alleged offense.

The Thomas County indictment must be quashed for a further reason. The day before Griffin’s indictment in Thomas County, Griffin had filed an appeal with this Court of the denial by the McIntosh County Superior Court of his plea of former jeopardy. While that appeal was pending, the State clearly could not continue to prosecute Griffin in McIntosh County. See Chambers v. State, 262 Ga. 200, 202 (415 SE2d 643) (1992). To do so would deny Griffin protection from being forced to “run the gauntlet” a second time before his claim of double jeopardy could be reviewed. See Abney v. United States, 431 U. S. 651, 662 (97 SC 2034, 52 LE2d 651) (1977); Patterson v. State, 248 Ga. 875, 876 (287 SE2d 7) (1982). Prosecutions of the same defendant in different counties of the same state “must be viewed as the acts of a single sovereign under the Double Jeopardy Clause.” Brown v. Ohio, 432 U. S. 161, 164, n. 4 (97 SC 2221, 53 LE2d 187) (1977). Therefore, the State as one sovereign may not circumvent the clear rule barring it from proceeding in one county by simply reindicting Griffin in another.

The rule we articulate today imposes no undue burden upon the State. Nothing bars the State from reindicting Griffin for murder in Thomas County or in McIntosh County. If Griffin is reindicted for murder in Thomas County, either party may move to incorporate the pre-trial record accumulated under the present indictment.

2. Under the facts in this case, venue over the murder charge may lie in either Thomas or McIntosh Counties, OCGA § 17-2-2, but venue over the kidnapping charge lies solely in Thomas County. See Potts v. State, 261 Ga. 716, 720 (2) (410 SE2d 89) (1991); Krist v. State, 227 Ga. 85 (4) (179 SE2d 56) (1970). Based on these facts, Griffin argues that the State violated the “single prosecution” requirement in OCGA § 16-1-7 (b) when it initially brought the murder charge alone in McIntosh County rather than bringing the murder charge together with the kidnapping charge in Thomas County. Hence, Griffin contends that Count Two of the present indictment, charging him with kidnapping with bodily injury, is procedurally barred by OCGA § 16-1-7 (b). We do not agree.

OCGA § 16-1-7 (b) (formerly Code Ann. § 26-506) requires sill crimes arising from the same conduct to be prosecuted in a “single prosecution” provided they are in the same jurisdiction and are known to the prosecutor, unless the court in the interest of justice orders separate trials.¹ State v. Estevez, 232 Ga. 316, 318-319 (206 SE2d 475) (1974). OCGA § 16-1-7 expands the proscription of double jeopardy beyond that provided for in the United States and Georgia Constitutions, State v. Estevez, supra, because it “protects a defendant from multiple prosecutions arising from the same conduct in situations where constitutional double jeopardy would not be a defense.” McCannon v. State, 252 Ga. 515, 516-517 (315 SE2d 413) (1984). We have recognized that OCGA § 16-1-7 (b) embodies the procedural aspect of double jeopardy,² State v. Estevez, supra, in that it “prevent^] an accused from being unduly harassed by or threatened by successive criminal prosecutions.” Id. at 319.

It is very rare that a situation arises in which venue over a criminal charge can be had in more than one county. Even under such rare circumstances, however, nothing in the plain language of OCGA § 16-1-7 (b) and the case law interpreting it³ requires that prosecution of a “dual venue” criminal charge must occur in that one county where other criminal charges arising out of the same multi-county crime spree must be prosecuted. As recognized in Henderson v. State, 227 Ga. 68, 75 (179 SE2d 76) (1970), “the legislature used language in subsection (b) making the prosecution together of multiple charges mandatory where rules relating to venue permit and the crimes are known to the proper prosecuting officer.” (Emphasis supplied.) OCGA § 16-1-7 (b) is a “single venue” rule which expanded procedural due process in this state to bar multiple prosecutions only within the same jurisdiction. We will not construe it as an expansion of procedural due process that unduly restricts the State’s method of prosecuting multicounty crime sprees involving these rare, “dual venue” crimes.

While the murder charge cannot be brought in both Thomas and McIntosh Counties, see Division 1, supra, insofar as OCGA § 16-1-7 (b) is concerned, the kidnapping charge in Thomas County is not affected by the fact that the State sought to prosecute Griffin on the murder charge initially in McIntosh County because McIntosh County is a separate jurisdiction. Should the State decide to proceed with the murder charge in Thomas County, there is, statutorily speaking, no procedural double jeopardy bar to Thomas County also prosecuting Griffin for the kidnapping charge, so long as Thomas County comports with the requirement that there be a “single prosecution.” ⁴

Finally, contrary to Griffin’s argument, prosecution of the kidnapping charge in Thomas County does not constitute vindictiveness of any kind. See Potts v. State, supra, 261 Ga. at (1), in which this Court upheld Potts’ death sentence in Cobb County for the kidnapping of Michael Priest even though Potts had also been sentenced to death in Forsyth County for Priest’s murder. Here, as in Potts, the kidnapping and murder charges are not the “same” for double jeopardy purposes;⁵ hence, absent any unartfulness in the drawing of the McIntosh murder indictment, there is no statutory or constitutional bar to the Thomas County prosecution for the kidnapping of Jenny Rhames.

3. Griffin contends the trial court erred by denying his plea in bar to prevent the State from seeking the death penalty in Thomas County, because the State specifically waived seeking the death penalty for the same murder charged here both in the original prosecution in McIntosh County and upon subsequent reindictment there. This issue is one of first impression.⁶

Double jeopardy precludes the State from seeking the death penalty on retrial if there was insufficient evidence at the original trial to support the aggravating circumstances or if the jury voted to impose a life sentence. Brooks v. State, 259 Ga. 562 (1) (385 SE2d 81) (1989). See Ward v. State, 239 Ga. 205 (5) (236 SE2d 365) (1977). Griffin argues that by failing to introduce aggravating circumstances at the original trial, the State conceded their absence and thus fixed at life imprisonment the maximum sentence which can be imposed on Griffin for the murder of Jenny Rhames. However, we have held that where a death sentence has been reversed and there was no finding of insufficient evidence to support the aggravating circumstances, the State may introduce evidence of aggravating circumstances not presented to the first jury. Crawford v. State, 256 Ga. 57 (2) (344 SE2d 215) (1986); Spraggins v. State, 255 Ga. 195 (336 SE2d 227) (1985). In keeping with our prior decisions, we decline to hold that the State conceded the absence of any aggravating circumstances by failing to present them as such in the first trial.⁷

Griffin next argues, relying upon Blackledge v. Perry, 417 U. S. 21 (I) (94 SC 2098, 40 LE2d 628) (1974), that an inference of vindictiveness is created by the State’s conduct in seeking the death penalty after mistrial, reindictment, and appeal of the denial of the plea of former jeopardy. We disagree. In Blackledge, after the defendant successfully appealed his misdemeanor conviction, the prosecutor re-indicted him on a felony charge for the same conduct and, as a result, the defendant received a harsher sentence than he had originally received. Id. 417 U. S. at 22-23. The U. S. Supreme Court concluded as was done earlier that the opportunity for prosecutorial vindictiveness after a successful appeal is such that due process requires application of a rule⁸ creating a rebuttable presumption of vindictiveness when a judge subjects a criminal defendant to greater punishment after a successful appeal. Id. 417 U. S. at 27. In elaborating on the need to employ a presumption of prosecutorial vindictiveness, the Blackledge court did not focus on the prosecutor’s mere motivation to penalize the individual defendant for the inconvenience or embarrassment involved in a second trial, but instead focused on the prosecutor’s motivation to discourage other defendants from appealing. Id. 417 U. S. at 27-28. Furthermore, the U. S. Supreme Court stressed that regardless of actual motivation, the fear of vindictiveness spawned by a rule permitting prosecutors to “up the ante” after a successful appeal would chill defendants’ exercise of the right to appeal. Id. 417 U. S. at 28.

The reasoning of Blackledge is inapplicable in the context of jury deadlock. Here, as the State points out, what provided the State an opportunity to “up the ante” was not a successful appeal of a conviction, but rather a mistrial. The appeal of the plea of former jeopardy, had it been successful, would have created no opportunity for enhancement of charges or penalty. A mistrial resulting from an inability of a jury to reach a verdict, especially when entered on the trial court’s own motion, is not subject to chilling as is the exercise of the right to appeal. Therefore, no presumption of prosecutorial vindictiveness arises. See United States v. Whaley, 830 F2d 1469, 1478-1479 (7th Cir. 1987) (courts have consistently held that no realistic likelihood of vindictiveness is found when a jury is deadlocked and both parties agree that a declaration of mistrial is a necessity); United States v. Khan, 787 F2d 28, 33 (1) (2nd Cir. 1986) (addition of charges after mistrial presents no realistic likelihood of vindictiveness and therefore raises no presumption of vindictiveness); United States v. Mays, 738 F2d 1188, 1190 (11th Cir. 1984) (no presumption of vindictiveness when, after mistrial, government allegedly threatened defendant with additional charges if he refused to plead guilty; declaration of mistrial did not result from assertion of protected right and was not reasonably likely to engender a vindictive response); United States v. Ruppel, 724 F2d 507 (5th Cir. 1984) (declined to presume vindictiveness upon increase in charges after hung jury in absence of evidence of actual retaliation).

Although neither the principles of double jeopardy nor a pre sumption of vindictiveness will bar the State from seeking the death penalty on reindictment, we are unable on the present record to make a determination whether there was actual vindictiveness. Griffin may nevertheless attempt to prove to the trial court that any effort by the State to seek the death penalty following reindictment is motivated by actual vindictiveness. See United States v. Whaley, supra, 830 F2d at 1478-1479; United States v. Mays, supra, 738 F2d at 1190.

4. Griffin also contends that the trial court erred by ruling that evidence of 29 prior difficulties between Griffin and the victim is admissible. Because our holding in Division 1, supra, leaves no murder indictment pending against him and no notice of intent to seek the death penalty, the unified appeal procedure is not presently applicable to this case. See OCGA § 17-10-35.1 (a). Therefore, we decline to review the trial court’s evidentiary rulings thereunder.

Judgment affirmed in part and reversed in part.

All the Justices concur, except Fletcher, P. J., and Sears, J., who dissent as to Divisions 2 and 3, and Thompson, J., who dissents as to Division 2.

Footnotes

1

OCGA § 16-1-7 (b) provides:

If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution.

2

OCGA § 16-1-7 (a) embodies the substantive aspect of double jeopardy: it limits multiple convictions that may be imposed for such crimes. State v. Estevez, supra. The substantive aspect thus calls into question whether one crime is included, by law or by fact, in another charged crime. Although two or more crimes may “arise from the same conduct,” that does not mean a defendant cannot be convicted of each crime. This Court in Potts v. State, supra, set forth the applicable constitutional tests to determine if the crimes are included. State v. Sallie, 206 Ga. App. 732 (427 SE2d 11) (1992) represents another method in which crimes may have to be deemed included, i.e., where the defendant is convicted under an indictment or accusation drawn in such a manner as to bar further convictions.

3

Compare State v. Sallie, supra (crimes committed in two separate counties could have been prosecuted in the separate counties, but for the unartful drawing of the indictment in one county which “used up” for substantive double jeopardy purposes all the facts that would have supported the prosecution in the other county of the crimes those facts represented); Powe v. State, 257 Ga. 563 (361 SE2d 811) (1987) (multiple crimes arose out of the same conduct in the same jurisdiction, but the prosecutor in one court of that jurisdiction had no knowledge of charges pending in another court within that same jurisdiction).

4

Although the charges must be prosecuted together, it is still within the trial court’s authority to sever the charges for separate trials in the interest of justice. OCGA § 16-1-7 (c).

5

Because the indictment charging kidnapping with bodily injury recites an injury inflicted on the victim other than the injury that caused the victim’s death, the record before this Court does not establish that the kidnapping is an included offense as a matter of fact, see Potts v. State, supra, 261 Ga. at (1), and we have recognized that these crimes are not included as a matter of law. Potts v. State, 241 Ga. 67 (11) (243 SE2d 510) (1978).

6

Our opinion in Dalton v. State, 263 Ga. 138, 140 (429 SE2d 89) (1993), is not on point. In Dalton we merely held that, where the State had unintentionally failed to provide timely notice of its intent to seek the death penalty and where trial had not yet commenced, the State could seek the death penalty on reindictment.

7

The State in the present action alleged the following aggravating circumstances: (1) that the minder was committed while Griffin was engaged in the commission of another capital felony or aggravated battery, OCGA § 17-10-30 (b) (2); (2) that Griffin committed the murder for the purpose of receiving a thing of monetary value, id. at (b) (4); and (3) that the murder was outrageously vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim. Id. at (b) (7).

8

The rule is analogous to that articulated in North Carolina v. Pearce, 395 U. S. 711 (89 SC 2072, 23 LE2d 656) (1969), later limited in Alabama v. Smith, 490 U. S. 794 (109 SC 2201, 104 LE2d 865) (1989).