Aggravating Circumstances and the Death Penalty

17-10-31 Requirement of jury finding of aggravating circumstance and recommendation of death penalty prior to imposition.

Where, upon a trial by jury, a person is convicted of an offence 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. This Code section shall not affect a sentence when the case is tried without a jury or when the judge accepts a plea of guilty.

Cases:

Hill v. State, 301 S.E.2d 269

In a murder prosecution, a new hearing was ordered after the jury returned a finding of the statutory aggravating circumstance but deadlocked ten to two in favor of recommending the death penalty. The Supreme Court held that the case was controlled by Miller v. State which holds that under Georgia's statutory death penalty provisions (OCGA 17-10-31), if the jury cannot reach unanimity as to whether to recommend life or death, the trial judge must impose the lesser sentence of life imprisonment. Since the sentence of death was not recommended by the jury, OCGA 17-10-31 requires the court to sentence the defendant to life imprisonment.

Westbrook v. State, 253 Ga. 776

Defendant was convicted of murder and kidnapping and sentenced to death. He appealed his sentence claiming that the jury's verdict should outweigh the judge's recommended sentence of the death penalty. The jury recommended a sentence of life imprisonment without possibility of parole. The Supreme Court held that the jury's verdict was in effect an "acquittal" on the question of the death sentence, which the trial court could not refuse to accept. "Where a sentence of death is not recommended by the jury, the court shall sentence the defendant to imprisonment as provided by the law." OCGA 17-10-31.

Suppose your client, Jim Jones, in the course of an armed robbery, shoots and fatally kills a security guard. Jim has already been in prison for various crimes including rape, burglary, drug possession, and aggravated assault and battery. Jim tells you that he's sorry, but he needed the money so he could buy his girlfriend a new watch for her birthday. However, he expresses no remorse about the robbery or murder and informs you that he's going to be "smarter" the next time he plans a robbery. In the course of your discussions with the district attorney, you learn that he is seeking the death penalty pursuant to OCGA 17-10-30 (1), (2), (3), and (4). You recall that one statutory aggravating circumstance and a recommendation of the death penalty is required before the judge can sentence your client to the death penalty. You know that finding one aggravating circumstance will be fairly easy, but the other requirement leaves room for creative lawyering.

1. How do you present Jim's case in the most favorable light to avoid the death penalty? In your case strategy, do you allow Jim to take the stand to reiterate his feelings about his crimes or do you galvanize support through extraneous sources? Remember you must try to elicit sympathy to the jury in hopes of obtaining the same outcome as in Hill v. State.

 

2. The jury bought your thief with a heart of gold story and recommended a sentence of ten years. The judge nullified the jury sentence and recommended a sentence of life imprisonment without the possibility of parole. In your appellate brief, what arguments do you make opposing the judge's sentence in light of Westbrook v. State?

Karen Jackson

Emory Law