Miller v. State

229 S.E.2d 376, 237 Ga. 557, 1976 Ga. LEXIS 1304

• Court: Supreme Court of Georgia
• Decided: September 8, 1976
• Docket: 31156
• Status: Published

Opinions

Per curiam.

This appeal involves the issue of a hung jury during the sentencing phase of a murder case after the accused had been convicted of murder during the guilty-not guilty phase of the trial. After conviction for murder, only two sentences can be imposed: the death penalty or life imprisonment. After approximately ten hours of deliberation concerning the sentence to-be imposed in this case, the jury was deadlocked at 11-1. The trial judge then declared a mistrial as to the sentence to be imposed.

The state then filed a motion asserting that the death penalty had not been waived, and that the state still sought the imposition of the death penalty in this case. The state moved that a new jury be impaneled and that a new sentencing trial be conducted to determine the sentence.

Counsel for the accused then filed a written response to the state’s motion. In pertinent part it was: "Defendant objects to the Court’s order of October 2,1975, declaring a mistrial in the above-styled case. Defendant further objects to a new jury being impaneled and to the Court ordering a new trial in the above-styled case contending that the defendant was in jeopardy before the Court declared a mistrial and the defendant did not agree to the mistrial. Defendant contends that the only possible course of action the Court can take is to sentence the defendant to life imprisonment since the jury who considered his punishment did not recommend the death penalty.”

The trial judge then entered an order granting the state’s motion, he granted a certificate for immediate review of that order, and this court then granted an interlocutory appeal on the issue presented.

Code Ann. § 26-3102, enacted in 1973, provides: "Where, upon a trial by jury, a person is convicted of an offense which may be punishable by death, a sentence of death shall not be imposed unless the jury verdict includes a finding of at least one statutory aggravating circumstance and a recommendation that such sentence be imposed. Where a statutory aggravating circumstance is found and a recommendation of death is made, the court shall sentence the defendant to death. Where a sentence of death is not recommended by the jury, the court shall sentence the defendant to imprisonment as provided by law. Unless the jury trying the case makes a finding of at least one statutory aggravating circumstance and recommends the death sentence in its verdict, the court shall not sentence the defendant to death, provided that no such finding of statutory aggravating circumstance shall be necessary in offenses of treason or aircraft hijacking. The provisions of this section shall not affect a sentence when the case is tried without a jury or when the judge accepts a plea of guilty.”

Code Ann. § 27-2503 (b), enacted in 1974, provides: "In all cases in which the death penalty may be imposed and which are tried by a jury, upon a return of a verdict of guilty by the jury, the court shall resume the trial and conduct a presentence hearing before the jury. Such hearing shall be conducted in the same manner as presentence hearings conducted before the judge as provided in subsection (a) of this section. Upon the conclusion of the evidence and arguments, the judge shall give the jury appropriate instructions, and the jury shall retire to determine whether any mitigating or aggravating circumstances, as defined in section 27-2534.1, exist and whether to recommend mercy for the defendant. Upon the findings of the jury, the judge shall fix a sentence within the limits prescribed by law.”

Reading these two statutory provisions together, we conclude that "unless the jury trying the case makes a finding of at least one statutory aggravating circumstance and recommends the death sentence in its verdict, the court shall not. sentence the defendant to death.”

Argued June 16, 1976 Decided September 8, 1976 Rehearing denied September 27, 1976. J. W. Claxton, James R. Venable, for appellant. William H. Ison, District Attorney, James W. Bradley, Assistant District Attorney, Arthur K. Bolton, Attorney General, for appellee.

Both of these statutes apply only to the sentencing phase of a capital case after conviction. We interpret them to mean that the jury that convicted must also impose the sentence; and in a murder case, after conviction, where only two sentences can be imposed, life imprisonment or death, if the convicting jury is unable to agree on which of those two sentences to impose, the trial judge must impose the lesser, life imprisonment. However, we also hold that a new trial on the sentence can be held before a new jury where the jury that convicted the accused also sentenced him to death and the sentence was reversed on appeal because of some error that infected the sentence. In such a situation, there can be a remand for a new trial as to the sentence only.

The convicting jury in this case, because of its inability to agree upon the imposition of one of the two sentences provided by law, did not make a finding as to the existence of at least one statutory aggravating circumstance, and it further did not make a recommendation that the death penalty be imposed.

Without reaching the constitutional issue of double jeopardy, we conclude that these applicable statutes, in the situation herein described, require the trial judge to impose a sentence of life imprisonment.

The judgment is reversed and direction is given that a life sentence be imposed in this case.

Judgment reversed with direction.

All the Justices concur, except Gunter, J., who concurs specially, and Nichols, C. J., and Undercofler, P. J., who dissent.