2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 10 - Sentence and Punishment
Article 2 - Death Penalty Generally
§ 17-10-30. Procedure for Imposition of Death Penalty Generally

1. The death penalty may be imposed for the offenses of aircraft hijacking or treason in any case.
2. In all cases of other offenses for which the death penalty may be authorized, the judge shall consider, or he shall include in his instructions to the jury for it to consider, any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the following statutory aggravating circumstances which may be supported by the evidence:
   1. The offense of murder, rape, armed robbery, or kidnapping was committed by a person with a prior record of conviction for a capital felony;
   2. The offense of murder, rape, armed robbery, or kidnapping was committed while the offender was engaged in the commission of another capital felony or aggravated battery, or the offense of murder was committed while the offender was engaged in the commission of burglary in any degree or arson in the first degree;
   3. The offender, by his act of murder, armed robbery, or kidnapping, knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person;
   4. The offender committed the offense of murder for himself or another, for the purpose of receiving money or any other thing of monetary value;
   5. The murder of a judicial officer, former judicial officer, district attorney or solicitor-general, or former district attorney, solicitor, or solicitor-general was committed during or because of the exercise of his or her official duties;
   6. The offender caused or directed another to commit murder or committed murder as an agent or employee of another person;
   7. The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim;
   8. The offense of murder was committed against any peace officer, corrections employee, or firefighter while engaged in the performance of his official duties;
   9. The offense of murder was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement;
   10. The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself or another;
   11. The offense of murder, rape, or kidnapping was committed by a person previously convicted of rape, aggravated sodomy, aggravated child molestation, or aggravated sexual battery; or
   12. The murder was committed during an act of domestic terrorism.
3. The statutory instructions as determined by the trial judge to be warranted by the evidence shall be given in charge and in writing to the jury for its deliberation. The jury, if its verdict is a recommendation of death, shall designate in writing, signed by the foreman of the jury, the aggravating circumstance or circumstances which it found beyond a reasonable doubt. In nonjury cases the judge shall make such designation. Except in cases of treason or aircraft hijacking, unless at least one of the statutory aggravating circumstances enumerated in subsection (b) of this Code section is so found, the death penalty shall not be imposed.

(Code 1933, § 27-2534.1, enacted by Ga. L. 1973, p. 159, § 3; Ga. L. 1996, p. 748, § 15; Ga. L. 2002, p. 660, § 4; Ga. L. 2002, p. 1259, § 11; Ga. L. 2006, p. 379, § 22/HB 1059; Ga. L. 2012, p. 899, § 8-11/HB 1176; Ga. L. 2017, p. 536, § 4-1/HB 452.)

- Time limitation on prosecutions for crimes punishable by death, § 17-3-1.

Presentence hearings in death penalty cases, § 17-10-2.

- Pursuant to Code Section 28-9-5, in 2006, the period was deleted at the end of paragraph (b)(10).

- Ga. L. 1996, p. 748, § 27, not codified by the General Assembly, provides: "Notwithstanding any other provision of law, an Act approved February 11, 1854 (Ga. L. 1854, p. 281), which abolished the office of solicitor of the City Court of Savannah, now the State Court of Chatham County, and transferred responsibility for the prosecution of criminal cases in said court to the solicitor general (now the district attorney) for the Eastern Judicial Circuit is confirmed. It shall be the duty of said district attorney to prosecute all criminal actions in said state court until otherwise specifically provided by law."

Ga. L. 1996, p. 748, § 28, not codified by the General Assembly, provides: "The provisions of this Act shall not affect the powers, duties, or responsibilities of the district attorney as successor to the office of solicitor general under the constitution, statutes, and common law of this state as provided by Code Section 15-18-1."

Ga. L. 1996, p. 748, § 29, not codified by the General Assembly, provides: "Except as otherwise authorized in this Act, on and after July 1, 1996, any reference in general law or in any local Act to the solicitor of a state court shall mean and shall be deemed to mean the solicitor-general of such state court."

Ga. L. 1996, p. 748, § 30, not codified by the General Assembly, provides: "(b) The provisions of paragraph (3) of Code Section 15-18-62, relating to the qualifications for the office of solicitor-general of a state court, shall apply to any person elected or appointed to such office after July 1, 1996. Any person holding such office on July 1, 1996, may continue to hold such office for the remainder of the term to which such person was elected or appointed notwithstanding the fact that such person has not been a member of the State Bar of Georgia for three years if such person is otherwise qualified to hold the office of solicitor-general."

Ga. L. 2012, p. 899, § 9-1(a)/HB 1176, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense and shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction for the same type of offense, of whatever degree or level, pursuant to this Act."

- For article opposing capital punishment in Georgia, see 15 Ga. St. B.J. 159 (1979). For article supporting capital punishment in Georgia, see 16 Ga. St. B.J. 48 (1979). For article surveying Georgia cases in the area of evidence from June 1979 through May 1980, see 32 Mercer L. Rev. 63 (1980). For article, "Constitutional Criminal Litigation," see 32 Mercer L. Rev. 993 (1981). For article, "Executing Those Who Kill Blacks: An Unusual Case Study," see 37 Mercer L. Rev. 911 (1986). For survey of 1985 Eleventh Circuit cases on constitutional criminal procedure, see 37 Mercer L. Rev. 1275 (1986). For annual survey of criminal law, see 38 Mercer L. Rev. 129 (1986). For article, "The Search for a Consistent and Constitutional Death Penalty Law in Georgia," see 6 Ga. State U.L. Rev. 369 (1990). For article, "Defending the Death Penalty Case: What Makes Death Different?," see 42 Mercer L. Rev. 695 (1991). For article on resolving the conflict in the capital sentencing cases, see 26 Ga. L. Rev. 323 (1992). For annual survey article, "Georgia Death Penalty Law," see 52 Mercer L. Rev. 29 (2000). For survey article on death penalty decisions from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 175 (2003). For annual survey of death penalty law, see 56 Mercer L. Rev. 197 (2004). For annual survey of death penalty decisions, see 57 Mercer L. Rev. 139 (2005). For review of death penalty cases, see 57 Mercer L. Rev. 479 (2006). For annual survey of death penalty law, see 58 Mercer L. Rev. 111 (2006). For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 11 (2006). For survey article on death penalty law, see 60 Mercer L. Rev. 105 (2008). For annual survey on death penalty law, see 61 Mercer L. Rev. 99 (2009). For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 290 (2012). For annual survey on death penalty, see 65 Mercer L. Rev. 93 (2013). For article, "Death Penalty," see 66 Mercer L. Rev. 51 (2014). For article on the 2017 amendment of this Code section, see 34 Ga. St. U.L. Rev. 17 (2017). For note discussing statutory aggravating circumstances and the death penalty, see 35 Mercer L. Rev. 1443 (1984). For note "McCleskey v. Kemp: An Equal Protection Challenge to Capital Punishment," see 39 Mercer L. Rev. 675 (1988). For symposium on the death penalty, see 14 Ga. St. U.L. Rev. 329 (1998). For note, "Reviewing the Georgia Supreme Court's Efforts at Proportionality Review," see 39 Ga. L. Rev. 631 (2005). For note, "Uncertain Waters: Tennard v. Dretke Provides Swells of Protection for the Mentally Deficient But May Cause Rising Tides of Frivolous Claims," see 56 Mercer L. Rev. 1483 (2005). For note and comment, "Hope for the Best and Prepare for the Worst: The Capital Defender's Guide to Reciprocal Discovery in the Sentencing Phase of Georgia Death Penalty Trials," see 23 Ga. St. U.L. Rev. 995 (2007). For note, "A Promise Unfulfilled: Challenges to Georgia's Death Penalty Statute Post Furman," see 33 Ga. St. U.L. Rev. 839 (2017). For note, "Protecting Access to the Great Writ: Equitable Tolling, Attorney Negligence, and AEDPA," see 51 Ga. L. Rev. 647 (2017). For note, "Give It to Me, I'm Worth It: The Need to Amend Georgia's Record Restriction Statute to Provide Ex-Offenders with a Second Chance in the Employment Sector," see 52 Ga. L. Rev. 267 (2017). For comment analyzing and criticizing the 1973 capital punishment statute in light of Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), see 24 Mercer L. Rev. 891 (1973). For comment on Alderman v. State, 241 Ga. 496, 246 S.E.2d 642, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 666 (1978), see 31 Mercer L. Rev. 349 (1979). For case comment, "Booth v. Maryland: Admissibility of Victim Impact Statements During Sentencing Phase of Capital Murder Trials," see 21 Ga. L. Rev. 1191 (1987). For comment, "Capital Punishment: New Weapons in the Sentencing Process," see 24 Ga. L. Rev. 423 (1990).

ANALYSIS

• General Consideration
• Mitigating Circumstances
• Aggravating Circumstances

General Consideration

Constitutionality.

- This section was constitutional absent any contrary ruling by the United States Supreme Court. Spencer v. State, 236 Ga. 697, 224 S.E.2d 910, cert. denied, 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 302 (1976).

This section was not unconstitutional. Birt v. State, 236 Ga. 815, 225 S.E.2d 248, cert. denied, 429 U.S. 1029, 97 S. Ct. 654, 50 L. Ed. 2d 632 (1976); Young v. State, 237 Ga. 852, 230 S.E.2d 287 (1976); Willis v. State, 243 Ga. 185, 253 S.E.2d 70 (1979); Thomas v. State, 245 Ga. 688, 266 S.E.2d 499 (1980); Fair v. State, 245 Ga. 868, 268 S.E.2d 316 (1980), cert. denied, 449 U.S. 986, 101 S. Ct. 407, 66 L. Ed. 2d 250 (1980); Cromartie v. State, 270 Ga. 780, 514 S.E.2d 205 (1999), cert. denied, 528 U.S. 974, 120 S. Ct. 419, 145 L. Ed. 2d 327 (1999).

Constitutionality of this section was reaffirmed. Stephens v. State, 237 Ga. 259, 227 S.E.2d 261, cert. denied, 429 U.S. 986, 97 S. Ct. 508, 50 L. Ed. 2d 599 (1976).

As to constitutionality, see Floyd v. State, 233 Ga. 280, 210 S.E.2d 810 (1974), cert. denied, 431 U.S. 949, 97 S. Ct. 2667, 53 L. Ed. 2d 266 (1977); House v. State, 232 Ga. 140, 205 S.E.2d 217 (1974), cert. denied, 428 U.S. 910, 96 S. Ct. 3221, 49 L. Ed. 2d 1217 (1976); Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975).

Structure of the Georgia death penalty is constitutional. Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).

Georgia statutes relating to the imposition of the death penalty are constitutional. Mincey v. State, 251 Ga. 255, 304 S.E.2d 882 (1983), cert. denied, 464 U.S. 977, 104 S. Ct. 414, 78 L. Ed. 2d 352 (1983).

Georgia death penalty laws are not unconstitutional. Welch v. State, 254 Ga. 603, 331 S.E.2d 573 (1985).

Practice of death-qualification of jurors is not unconstitutional. Welch v. State, 254 Ga. 603, 331 S.E.2d 573 (1985).

Complex statistical study that indicated a risk that racial considerations enter into capital sentencing determinations did not prove that a particular defendant's capital sentence was unconstitutional under the Eighth Amendment or the equal protection clause of the Fourteenth Amendment. McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987).

O.C.G.A. § 16-5-1, the murder statute, and O.C.G.A. § 17-10-30, which authorizes a death sentence for murder, are not unconstitutional. Speed v. State, 270 Ga. 688, 512 S.E.2d 896 (1999).

O.C.G.A. § 17-10-30, enumerating the statutory aggravating factors in a death penalty case, was not unconstitutional under U.S. Const., amend. 6 and Ga. Const. 1983, Art. I, Sec. I, Para. XI as applied in the defendant's case; the jury found beyond a reasonable doubt the existence of the statutory aggravating circumstances, there was no requirement that the jury find non-statutory aggravating factors beyond a reasonable doubt, and the non-statutory aggravating evidence presented by the state was reliable and admissible. Lewis v. State, 279 Ga. 756, 620 S.E.2d 778 (2005), cert. denied, 547 U.S. 1116, 126 S. Ct. 1917, 164 L. Ed. 2d 671 (2006).

Georgia death penalty statutes were not unconstitutional under the Sixth Amendment as the jury had to find beyond a reasonable doubt the statutory aggravating circumstances necessary to make a defendant eligible for the death penalty, pursuant to O.C.G.A. § 17-10-30; there was no requirement that nonstatutory aggravating evidence be proven beyond a reasonable doubt. Nance v. State, 280 Ga. 125, 623 S.E.2d 470 (2005).

O.C.G.A. § 17-10-30(b)(8) bears a rational relationship to the legitimate state purposes of providing deterrence of possible harm to peace officers and, thus, of protecting officers. Accordingly, the statutory aggravating circumstance does not violate equal protection under U.S. Const., amend. XIV or Ga. Const. 1983, Art. I, Sec. I, Para. II. Fair v. State, 288 Ga. 244, 702 S.E.2d 420 (2010).

Defendants equal protection challenge under U.S. Const., amend. XIV and Ga. Const. 1983, Art. I, Sec. I, Para. II failed since the defendants were similarly situated to the defendants against whom the state sought the death penalty under one or more of the statutory aggravating circumstances as provided in O.C.G.A. § 17-10-30(b). The trial court did not err in refusing to apply strict scrutiny analysis in considering the defendants' equal protection challenge on the basis that the punishment prescribed by the criminal statute involves an interference with a fundamental right. The proper inquiry was whether the behavior involved a fundamental right, and the obvious answer was that the behavior did not. Fair v. State, 288 Ga. 244, 702 S.E.2d 420 (2010).

- Decision in Arnold v. State, 236 Ga. 534, 224 S.E.2d 386 (1976), holding unconstitutional that portion of O.C.G.A. § 17-10-30 which allowed for the death penalty if a murder is committed by a person with a substantial history of assaultive criminal convictions (deleted in 1981 codification), did not invalidate the defendant's death sentence since the jury listed the aggravating circumstances in both paragraphs (b)(1) and (b)(9) of § 17-10-30 as the basis for imposing the death penalty. Zant v. Stephens, 250 Ga. 97, 297 S.E.2d 1 (1982).

- State may urge the presence of O.C.G.A. § 17-10-30(b)(2) and (b)(7) aggravating circumstances even though aggravated battery is a fact supporting both circumstances. Tharpe v. State, 262 Ga. 110, 416 S.E.2d 78, cert. denied, 506 U.S. 942, 113 S. Ct. 383, 121 L. Ed. 2d 292 (1992).

- Record did not support the defendant's contention that the Georgia death penalty statute is being administered arbitrarily or discriminatorily. Castell v. State, 250 Ga. 776, 301 S.E.2d 234 (1983), aff'd, 252 Ga. 418, 314 S.E.2d 210 (1984).

- Georgia's death penalty procedure is not unconstitutional as a cruel and unusual mechanism for the award of the death penalty in violation of U.S. Const., amend. 8. Mulligan v. State, 245 Ga. 266, 264 S.E.2d 204, cert. denied, 449 U.S. 986, 101 S. Ct. 407, 66 L. Ed. 2d 250 (1980).

Death penalty is not cruel and inhuman punishment. Moore v. State, 233 Ga. 861, 213 S.E.2d 829 (1975), cert. denied, 428 U.S. 910, 96 S. Ct. 3222, 49 L. Ed. 2d 1218 (1976), execution of death sentence stayed pending action on rehearing petition, 497 U.S. 1048, 111 S. Ct. 11, 111 L. Ed. 2d 826 (1990).

Death penalty is not subject to constitutional attack under U.S. Const., amends. 8 and 14. Coley v. State, 231 Ga. 829, 204 S.E.2d 612 (1974).

- This section was not void for vagueness and for not providing a sufficiently clear and objective standard necessary to control the jury's discretion in imposing the death penalty. Lamb v. State, 241 Ga. 10, 243 S.E.2d 59 (1978).

This section was not unconstitutionally vague. Godfrey v. State, 243 Ga. 302, 253 S.E.2d 710 (1979), rev'd on other grounds, 446 U.S. 420, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980).

This section was not overbroad and vague in violation of the due process clauses of the federal and state constitutions. Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 611 (1980).

- Constitutional challenge of this section as a violation of equal protection was without merit. Moore v. State, 233 Ga. 861, 213 S.E.2d 829 (1975), cert. denied, 428 U.S. 910, 96 S. Ct. 3222, 49 L. Ed. 2d 1218 (1976), execution of death sentence stayed pending action on rehearing petition, 497 U.S. 1048, 111 S. Ct. 11, 111 L. Ed. 2d 826 (1990).

- Double jeopardy provisions of the federal and state constitutions (U.S. Const., amend. 5, and Ga. Const. 1976, Art. I, Sec. I, Para. XV [see Ga. Const. 1983, Art. I, Sec. I, Para. XVIII]) do not apply to sentence hearings in capital felony cases under O.C.G.A. § 17-10-30. Godfrey v. State, 248 Ga. 616, 284 S.E.2d 422 (1981), cert. denied, 456 U.S. 919, 102 S. Ct. 1778, 72 L. Ed. 2d 180 (1982).

- Statutory aggravating circumstances set forth in subsection (b) of this section were not offenses within the meaning of the double jeopardy clause, but are charged a jury in order to guide the jury in the jury's determination of whether a defendant should be given a life or a death sentence. Redd v. State, 242 Ga. 876, 252 S.E.2d 383, cert. denied, 442 U.S. 934, 99 S. Ct. 2870, 61 L. Ed. 2d 304 (1979).

- Defendant's argument that the statutory aggravating circumstances alleged by the state under O.C.G.A. § 17-10-30 to support a death sentence had to be included in the indictment failed. Lewis v. State, 279 Ga. 756, 620 S.E.2d 778 (2005), cert. denied, 547 U.S. 1116, 126 S. Ct. 1917, 164 L. Ed. 2d 671 (2006).

Applicability of § 17-10-2. - Sentencing proceedings in death penalty cases are governed not only by O.C.G.A. § 17-10-30, but also by O.C.G.A. § 17-10-2, which authorizes the factfinder to hear additional evidence in aggravation, including the record of any prior criminal convictions. Although a defendant's character is not an issue at the guilt phase of the trial, it is an issue at the sentencing phase. Lee v. State, 258 Ga. 82, 365 S.E.2d 99, cert. denied, 488 U.S. 879, 109 S. Ct. 195, 102 L. Ed. 2d 165 (1988).

- This section, providing for the imposition of the death penalty, deals with only one subject and is not violative of the Georgia Constitution. McCorquodale v. State, 233 Ga. 369, 211 S.E.2d 577 (1974), cert. denied, 428 U.S. 910, 96 S. Ct. 3223, 49 L. Ed. 2d 1218 (1976).

System of dispensation of the death penalty provided by the state does not offend the principles of decisions of the United States Supreme Court. Owens v. State, 233 Ga. 869, 214 S.E.2d 173 (1975).

Capital offenses occurring after March 28, 1973 not indicted under § 17-10-7. - If a capital crime occurs after March 28, 1973, the effective date of former Code 1933, § 27-2534.1 (see O.C.G.A. § 17-10-30), the accused should not be indicted under the general recidivist statute, former Code 1933, § 27-2511 (see O.C.G.A. § 17-10-7). Clemmons v. State, 233 Ga. 187, 210 S.E.2d 657 (1974).

- Death penalties imposed must conform to the standards set forth in this section to authorize affirmance. Moore v. State, 240 Ga. 807, 243 S.E.2d 1, cert. denied, 439 U.S. 903, 99 S. Ct. 268, 58 L. Ed. 2d 249 (1978).

- Because the state failed to substantiate the state's allegation that the defendant would likely kill a prison guard if sentenced to life in prison, the trial court erred in imposing the death sentence as such rationale amounted to mere conjecture. Henry v. State, 278 Ga. 617, 604 S.E.2d 826 (2004).

- The death penalty in a case must conform to the standards set forth if it is to pass the test of constitutionality. Gregg v. State, 233 Ga. 117, 210 S.E.2d 659 (1974), aff'd, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).

This section permitted use of some discretion. Coley v. State, 231 Ga. 829, 204 S.E.2d 612 (1974).

- In the defendant's trial for the murder of a bystander during a brawl at a teen party, the prosecutor had discretion under O.C.G.A. § 17-10-30 to pursue the death penalty, and the trial court did not have authority to evaluate any factual disputes regarding the alleged aggravating circumstances prior to trial. Franklin v. State, 303 Ga. 165, 810 S.E.2d 118 (2018).

- Trial court did not improperly seat six jurors in a death penalty case as: (1) the first juror testified that, despite the juror's acquaintance with the victim's family, the juror could act impartially, listen to the evidence, and decide the case based upon the facts and arguments placed before the juror; (2) a second juror stated that the juror's acquaintance with a family member of the victim would have no bearing on the juror's consideration of the case and that the juror would base the juror's decisions solely on the evidence placed before the juror at trial; and (3) four jurors testified that the jurors could fairly consider all possible punishments for the crime, not just the death penalty. Thomason v. State, 281 Ga. 429, 637 S.E.2d 639 (2006).

Juror who merely "leans" one way or the other with regard to imposition of the death penalty before hearing any evidence is not disqualified. This proposition applies with particular force to a juror who "leans" toward a life sentence before hearing any evidence since a death penalty cannot be imposed absent evidence to support a finding of at least one statutory aggravating circumstance. Jarrell v. State, 261 Ga. 880, 413 S.E.2d 710 (1992).

- Trial court properly instructed the jury in the sentencing phase that the jury's "verdict as to penalty (had to) be unanimous," and subsequently directed the jury to continue the jury's deliberations after the jury informed the trial court that the jury could not reach a unanimous verdict; the jury was expected to consider the evidence and to attempt to reach unanimity "one way or the other" on the issue of a sentence and, if possible, to unanimously recommend a sentence. Walker v. State, 281 Ga. 157, 635 S.E.2d 740 (2006), cert. denied, 552 U.S. 833, 128 S. Ct. 60, 169 L. Ed. 2d 50 (2007).

- Trial court did not err by excusing jurors who expressed a conscientious objection to the death penalty and, to the extent that this contention was not rendered moot because the defendant did not receive the death penalty, the contention lacked merit as a trial court did not abuse the court's discretion by excusing jurors in a death penalty case who indicated that the jurors were wholly opposed to the death penalty under any circumstances. Thomason v. State, 281 Ga. 429, 637 S.E.2d 639 (2006).

- This state's system for deciding whether a death sentence is to be given requires the jury to consider two issues in the sentencing phase. First, the jury must consider if the state has proven the existence of at least one statutory aggravating circumstance beyond a reasonable doubt. Second, if one of these circumstances is found, the jury must then consider the mitigating and aggravating circumstances relevant to the defendant and determine whether the death penalty is appropriate in this case. Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977), cert. denied, 444 U.S. 885, 100 S. Ct. 177, 62 L. Ed. 2d 115 (1979).

- Duty of the Supreme Court of Georgia is not to determine that less than a death sentence was never imposed in a case with some similar characteristics but rather to assure that no death sentence is affirmed unless in similar cases throughout the state the death penalty has been imposed generally and not wantonly and freakishly imposed. Moore v. State, 233 Ga. 861, 213 S.E.2d 829 (1975), cert. denied, 428 U.S. 910, 96 S. Ct. 3222, 49 L. Ed. 2d 1218 (1976), execution of death sentence stayed pending action on rehearing petition, 497 U.S. 1048, 111 S. Ct. 11, 111 L. Ed. 2d 826 (1990).

- Since a plea of guilty was entered in a capital felony case and the state sought the death penalty under former Code 1933, § 27-2534.1 (see O.C.G.A. § 17-10-30), plea bargaining was not involved nor could plea bargaining ever be involved. Therefore, former Code 1933, § 27-1404 (see O.C.G.A. § 17-7-93) would have no purpose under such a circumstance. Fair v. State, 245 Ga. 868, 268 S.E.2d 316, cert. denied, 449 U.S. 986, 101 S. Ct. 407, 66 L. Ed. 2d 250 (1980).

- Guilty plea, voluntarily and knowingly entered in a capital felony case other than treason or aircraft hijacking, wherein the state seeks the death penalty, may not be withdrawn as a matter of right. Fair v. State, 245 Ga. 868, 268 S.E.2d 316, cert. denied, 449 U.S. 986, 101 S. Ct. 407, 66 L. Ed. 2d 250 (1980).

- Supreme Court decision in Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982), does not require declaring unconstitutional any aggravating circumstance which, on its face, might allow a jury to impose a death sentence on someone who had no intent to kill. Castell v. State, 250 Ga. 776, 301 S.E.2d 234 (1983).

- Although lesser sentences than death are frequently imposed in domestic murder cases, it does not follow that the death penalty would not be authorized for the murder of one spouse by another under any circumstances. Gilreath v. State, 247 Ga. 814, 279 S.E.2d 650 (1981), cert. denied, 456 U.S. 984, 102 S. Ct. 2258, 72 L. Ed. 2d 862 (1982).

- Nothing in death penalty statute, O.C.G.A. § 17-10-30, requires that death penalty be set aside in every case unless the defendant can be characterized as "depraved." Horton v. State, 249 Ga. 871, 295 S.E.2d 281 (1982), cert. denied, 459 U.S. 1188, 103 S. Ct. 837, 74 L. Ed. 2d 1030 (1983).

- Capital punishment is possible only in a small number of explicitly defined subclasses of homicide cases; but as to such cases, the jury is allowed to give the case before the jury individualized consideration of circumstances of the crime and of the defendant. Horton v. State, 249 Ga. 871, 295 S.E.2d 281 (1982), cert. denied, 459 U.S. 1188, 103 S. Ct. 837, 74 L. Ed. 2d 1030 (1983).

Trial court does not err by refusing to direct verdict of life imprisonment simply because state presents no additional evidence at sentencing phase of the trial. Welch v. State, 254 Ga. 603, 331 S.E.2d 573 (1985).

- Failure to transcribe such things as argument, absent a showing of harm, does not amount to a constitutional violation sufficient to require vacating a death sentence. Jones v. Kemp, 706 F. Supp. 1534 (N.D. Ga. 1989).

Trial court's failure to transcribe the closing arguments at a sentencing hearing does not prevent reviewing courts from examining the imposition of a death sentence with full disclosure of the basis for the sentence when the record containing the transcript of the imposition of sentence does not refer to any undisclosed aspect of the proceeding on which the judge relied in imposing sentence. Moore v. Balkcom, 716 F.2d 1511 (11th Cir.), supplemented by, 722 F.2d 629 (11th Cir. 1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1456, 79 L. Ed. 2d 773 (1984).

- Any lawful evidence which tends to show the motive of the defendant, the defendant's lack of remorse, the defendant's general moral character, and the defendant's predisposition to commit other crimes is admissible in aggravation, subject to the notice provisions of the statute. Fair v. State, 245 Ga. 868, 268 S.E.2d 316, cert. denied, 449 U.S. 986, 101 S. Ct. 407, 66 L. Ed. 2d 250 (1980).

- In capital cases, it is constitutionally required that the sentencing authority have information sufficient to enable the authority to consider the character and individual circumstances of a defendant prior to imposition of a death sentence. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).

- Accurate sentencing information is an indispensable prerequisite to a reasoned determination of whether a defendant shall live or die by a jury of people who may never before have made a sentencing decision. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).

All aspects of defendant's crimes, defendant's character, and defendant's attitude are admissible, subject to the applicable rules of evidence regarding reliability, to guide the fact-finder in determining an appropriate sentence. Fair v. State, 245 Ga. 868, 268 S.E.2d 316, cert. denied, 449 U.S. 986, 101 S. Ct. 407, 66 L. Ed. 2d 250 (1980).

- Although four of the arguments made by the prosecutor in the sentencing phase of a capital murder trial were improper - an unsupported reference to oral sodomy upon the victim, a discussion of future parole, an attempt to place the burden of future danger solely upon the jury, and a discussion of the prosecutor's policy in regard to requesting the death penalty - the arguments did not render the sentencing fundamentally unfair, given the circumstances of the murder (involving the victim being kidnapped, robbed, and clubbed to death), the reasonable inference of rape, the defendant's previous conviction of a vicious capital crime, and testimony about the defendant's desire to kill again. Tucker v. Kemp, 762 F.2d 1496 (11th Cir. 1985), cert. denied, 478 U.S. 1022, 106 S. Ct. 3340, 92 L. Ed. 2d 743 (1986).

- In the sentencing phase of a capital murder prosecution in which the state's case against the defendant was made almost completely by the codefendant, the prosecutor's extremely improper use of century-old Georgia Supreme Court cases to suggest the impropriety of mercy rendered the sentencing proceeding fundamentally unfair. Drake v. Kemp, 762 F.2d 1449 (11th Cir. 1985), cert. denied, 478 U.S. 1020, 106 S. Ct. 3333, 92 L. Ed. 2d 738 (1986).

- Absent a specific showing that the prosecutor was motivated by race or some other factor in considering whether to seek the death penalty, it is presumed that the prosecutor acted constitutionally. Jenkins v. State, 269 Ga. 282, 498 S.E.2d 502, cert. denied, 525 U.S. 968, 119 S. Ct. 416, 142 L. Ed. 2d 338 (1998).

- Absent a showing that the district attorney acted in an unconstitutional manner with respect to the defendant's case, the defendant may not inquire into the prosecutor's exercise of discretion in seeking the death penalty against the defendant. Rower v. State, 264 Ga. 323, 443 S.E.2d 839 (1994).

Testimony from other district attorneys regarding the manner in which the death penalty is sought in their circuits, or the manner in which plea bargains are reached, would be insufficient to show that the district attorney acted in an unconstitutional manner in seeking the death penalty for defendant. Rower v. State, 264 Ga. 323, 443 S.E.2d 839 (1994).

- Prisoner's counsel was not ineffective in not developing mitigating circumstances after receiving notice that the state was seeking the death penalty under O.C.G.A. § 17-10-30(7) because the prisoner had requested that counsel not contact relatives and did not provide counsel with leads for such information. Further, counsel was not required under Ga. Unif. Super. Ct. R. 31.4 and Strickland to request an independent evaluation as to the prisoner's competency in that such a request would not have accomplished counsel's goal of a determination of whether there was a psychological or neurological explanation for the prisoner's behavior on the night of the murder. Newland v. Hall, 527 F.3d 1162 (11th Cir. 2008), cert. denied, 555 U.S. 1183, 129 S. Ct. 1336, 173 L. Ed. 2d 607 (2009).

- This section was not written so as to preclude the imposition of the death penalty if the evidence was circumstantial. Douthit v. State, 239 Ga. 81, 235 S.E.2d 493 (1977), cert. denied, 445 U.S. 938, 100 S. Ct. 1332, 63 L. Ed. 2d 772 (1980).

Section concerned notice of evidence admitted for first time at presentence hearing, and had absolutely nothing to do with the idea of giving notice of an attempt to prove aggravating circumstances during the guilt phase of trial. Bowden v. Zant, 244 Ga. 260, 260 S.E.2d 465 (1979), cert. denied, 444 U.S. 1103, 100 S. Ct. 1068, 62 L. Ed. 2d 788 (1980).

Evidence which was admissible in the guilt/innocence phase is admissible in resentencing trial. Hance v. State, 254 Ga. 575, 332 S.E.2d 287, cert. denied, 474 U.S. 1038, 106 S. Ct. 606, 88 L. Ed. 2d 584 (1985).

- See Jones v. State, 249 Ga. 605, 293 S.E.2d 708 (1982); Hittson v. State, 264 Ga. 682, 449 S.E.2d 586 (1994), cert. denied, 514 U.S. 1129, 115 S. Ct. 2005, 131 L. Ed. 2d 1005 (1995); Gissendaner v. State, 272 Ga. 704, 532 S.E.2d 677 (2000); Jones v. State, 273 Ga. 231, 539 S.E.2d 154 (2000), cert. denied, 534 U.S. 839, 122 S. Ct. 94, 151 L. Ed. 2d 54 (2001), recons. denied, overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).

Federal habeas court, in assessing the proportionality review of the state supreme court, did not think that it "shocked the conscience" to impose the death sentence for the shotgun slayings of a man's wife and mother-in-law. Godfrey v. Francis, 613 F. Supp. 747 (N.D. Ga. 1985), aff'd, 836 F.2d 1557 (11th Cir.), cert. dismissed, 487 U.S. 1264, 109 S. Ct. 27, 101 L. Ed. 2d 977 (1988).

Juries are not required to balance aggravating circumstances against mitigating circumstances. Ford v. State, 257 Ga. 461, 360 S.E.2d 258 (1987), cert. denied, 485 U.S. 943, 108 S. Ct. 1124, 99 L. Ed. 2d 284 (1988).

Georgia's post-Furman capital punishment statute does not provide for the balancing of aggravating and mitigating circumstances. Once a single aggravating circumstance is shown, all aggravating and mitigating circumstances are relevant and considered by the jury, but those circumstances are not weighed against each other. Waters v. Thomas, 46 F.3d 1506 (11th Cir. 1995).

- It is reversible error for the prosecutor to mention to the jury in the prosecutor's arguments during the death penalty phase that any sentence of death will be reviewed by the trial judge and the Supreme Court, and that the sentence can be set aside. Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977), cert. denied, 444 U.S. 885, 100 S. Ct. 177, 62 L. Ed. 2d 115 (1979).

- If the jury is exposed to comments about appellate review of the death penalty, the trial court should explain to the jury that it is the responsibility of each juror to decide whether the defendant will be executed, and that the jury cannot pass that responsibility on to anyone else. The jury should be told to decide on the penalty as if there was no possibility of any review of the sentence. Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977), cert. denied, 444 U.S. 885, 100 S. Ct. 177, 62 L. Ed. 2d 115 (1979).

- Jury is given the heavy burden of making the decision of whether the defendant will live or die. Comments about appellate safeguards on the death penalty suggest to the jury that the jury can pass the responsibility for the death sentence on to the Georgia Supreme Court. Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977), cert. denied, 444 U.S. 885, 100 S. Ct. 177, 62 L. Ed. 2d 115 (1979).

- Prosecuting attorney can lawfully argue the rules and regulations of the Board of Pardons and Paroles and the possibility of a pardon or parole. Bland v. State, 211 Ga. 178, 84 S.E.2d 369 (1954).

- If the court, at the special request of the jury, read and instructed the jury as to the published rules and regulations of the Board of Pardons and Paroles concerning paroles and pardons without objection from the accused, it was not error to thus give the law concerning paroles and pardons. Bland v. State, 211 Ga. 178, 84 S.E.2d 369 (1954).

- It was constitutional error for the court to permit the Christian Bible to go into the jury room at the request of the jurors apparently for consultation in connection with the jury's deliberations after a murder trial. Jones v. Kemp, 706 F. Supp. 1534 (N.D. Ga. 1989).

- If state's witness was assigned to guard the jury and in the performance of this duty rode with jury to the jury's lodgings, dined with the jury, and associated extensively with the jury at the jury's lodgings, conviction required reversal and remand for retrial. Radford v. State, 263 Ga. 47, 426 S.E.2d 868 (1993).

- Defendant in a capital case stands before the trial court or jury in a presentence trial a convicted felon with no presumption of innocence. Fair v. State, 245 Ga. 868, 268 S.E.2d 316, cert. denied, 449 U.S. 986, 101 S. Ct. 407, 66 L. Ed. 2d 250 (1980).

- In considering the adequacy of a jury charge on the sentencing phase of the trial, the ultimate test is whether a reasonable juror, considering the charge as a whole, would know that the juror should consider all the facts and circumstances of the case as presented during both phases of the trial, which necessarily include any mitigating and aggravating facts, and then, even though the juror might find one or more of the statutory aggravating circumstances to exist, would know that the juror might recommend life imprisonment. Spivey v. State, 241 Ga. 477, 246 S.E.2d 288, cert. denied, 439 U.S. 1039, 99 S. Ct. 642, 58 L. Ed. 2d 699 (1978).

- Death penalty must be set aside if the trial judge fails to make clear in the charge to the jury that the jury can recommend a life sentence even if the jury finds the existence of a statutory aggravating circumstance. Hawes v. State, 240 Ga. 327, 240 S.E.2d 833 (1977), but see Stewart v. State, 232 Ga. App. 565, 502 S.E.2d 502 (1998).

If a court fails to make clear to the jury that the jury could recommend a life sentence even if the jury found the existence of a statutory aggravating circumstance, the ultimate test is whether a reasonable juror, considering the charge as a whole, would know that the juror should consider all the facts and circumstances of the case as presented during both phases of the trial, and then, even though the juror might find one or more of the statutory aggravating circumstances to exist, would know that the juror might recommend life imprisonment. Bowen v. State, 241 Ga. 492, 246 S.E.2d 322 (1978).

Capital sentencing instructions which do not clearly guide a jury in the jury's understanding of mitigating circumstances and their purpose, and of the option to recommend a life sentence although aggravating circumstances are found, violate the Eighth Amendment. Goodwin v. Balkcom, 684 F.2d 794 (11th Cir. 1982), cert. denied, 460 U.S. 1098, 103 S. Ct. 1798, 76 L. Ed. 2d 364 (1983).

Initial finding of life sentence is in effect acquittal of whatever is necessary to impose death penalty. Godfrey v. State, 248 Ga. 616, 284 S.E.2d 422 (1981), cert. denied, 456 U.S. 919, 102 S. Ct. 1778, 72 L. Ed. 2d 180 (1982).

- Defendants who are sentenced to life imprisonment in capital felony sentencing hearing cannot after reversal be sentenced to death for same offense. Godfrey v. State, 248 Ga. 616, 284 S.E.2d 422 (1981), cert. denied, 456 U.S. 919, 102 S. Ct. 1778, 72 L. Ed. 2d 180 (1982).

- Jury verdict needs only to have a finding of circumstances and ultimate issues, not facts. Nor is there error by the jury in repeating the same wording given to the jury in the written charge. If the wording stated is what the jury found, and there is no contrary indication in the transcript of trial, the jury did not err in the jury's finding. Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2642, 53 L. Ed. 2d 251 (1977), modified on other grounds, 243 Ga. 244, 253 S.E.2d 707 (1979).

Although the jury's verdict did not specify the supporting capital felony, the only one charged was kidnapping with bodily injury and absent objection to the form of the verdict, the jury's finding was sufficiently clear to allow the Supreme Court to rationally review the verdict. Ward v. State, 262 Ga. 293, 417 S.E.2d 130 (1992), cert. denied, 506 U.S. 1084, 113 S. Ct. 1061, 122 L. Ed. 2d 366 (1993).

- Although the verdict's word order did not track the statute exactly, the verdict includes all the essential elements of the circumstances and therefore is a valid finding of a O.C.G.A. § 17-10-30(b)(7) circumstance. Hall v. State, 261 Ga. 778, 415 S.E.2d 158 (1991).

Jury verdict which quoted verbatim the state's notice of intent to seek the death penalty failed to satisfy the standards of O.C.G.A. § 17-10-30(c) requiring that the sentence of death imposed in the case be reversed. Page v. State, 256 Ga. 191, 345 S.E.2d 600 (1986), cert. denied, 485 U.S. 907, 108 S. Ct. 1082, 99 L. Ed. 2d 240 (1988).

- Convictions of rape, armed robbery, and kidnapping with bodily injury if no death results are not capital felonies for appellate jurisdictional purposes and appeals in such cases go to the Court of Appeals. Cook v. State, 242 Ga. 657, 251 S.E.2d 230 (1978).

Conviction for armed robbery standing alone will not authorize the death penalty, and for appellate jurisdictional purposes, armed robbery is no longer a capital felony. Simmons v. State, 149 Ga. App. 830, 256 S.E.2d 79 (1979).

- If the defendant was not given the death penalty, the trial court's refusal to prohibit the state from seeking the death penalty, and all issues with respect thereto, have become moot. Cash v. State, 258 Ga. 460, 368 S.E.2d 756 (1988).

- State's failure to provide death penalty notice prior to the original arraignment does not preclude the state from seeking the death penalty through rearraignment. State v. Terry, 257 Ga. 473, 360 S.E.2d 588 (1987).

- Upon certiorari review before the Supreme Court of Georgia, the Court of Appeals of Georgia properly vacated a rape sentence entered by the trial court, holding that the defendant was incorrectly sentenced to a term of life in prison without the possibility of parole, as the state failed to give notice that the state intended to seek the death penalty, and the trial court failed to find that any aggravating circumstance under O.C.G.A. § 17-10-30 existed, pursuant to O.C.G.A. § 17-10-32.1 (repealed); thus, the trial court was not authorized to sentence the defendant to life in prison without the possibility of parole. State v. Velazquez, 283 Ga. 206, 657 S.E.2d 838 (2008).

- If the jury imposes the death penalty, and the death penalty is vacated on legal grounds as opposed to grounds that the evidence is insufficient to support the verdict, the state may seek the death penalty on resentencing. Zant v. Redd, 249 Ga. 211, 290 S.E.2d 36 (1982), cert. denied, 463 U.S. 1213, 103 S. Ct. 3552, 77 L. Ed. 2d 1398 (1983); Patrick v. State, 249 Ga. 708, 293 S.E.2d 329, cert. denied, 459 U.S. 1089, 103 S. Ct. 575, 74 L. Ed. 2d 936 (1982).

- Sentencing phase of a death penalty trial is a "criminal matter" and therefore the defendant is entitled to make an opening statement and the trial court erred in refusing to honor defense counsel's choice as to when to make the statement; however the error was harmless in light of the straightforward mitigation theory. O'Kelley v. State, 284 Ga. 758, 670 S.E.2d 388 (2008).

Cited in Echols v. State, 231 Ga. 633, 203 S.E.2d 165 (1974); Ford v. State, 232 Ga. 511, 207 S.E.2d 494 (1974); Ross v. State, 233 Ga. 361, 211 S.E.2d 356 (1974); Mitchell v. State, 234 Ga. 160, 214 S.E.2d 900 (1975); Chenault v. State, 234 Ga. 216, 215 S.E.2d 223 (1975); Brown v. State, 235 Ga. 644, 220 S.E.2d 922 (1975); Barrow v. State, 235 Ga. 635, 221 S.E.2d 416 (1975); Mason v. State, 236 Ga. 46, 222 S.E.2d 339 (1976); Dobbs v. State, 236 Ga. 427, 224 S.E.2d 3 (1976); Pulliam v. State, 236 Ga. 460, 224 S.E.2d 8 (1976); Coleman v. State, 237 Ga. 84, 226 S.E.2d 911 (1976); Banks v. State, 237 Ga. 325, 227 S.E.2d 380 (1976); Street v. State, 237 Ga. 307, 227 S.E.2d 750 (1976); Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977); Young v. State, 239 Ga. 53, 236 S.E.2d 1 (1977); Ward v. State, 239 Ga. 205, 236 S.E.2d 365 (1977); Gaddis v. State, 239 Ga. 238, 236 S.E.2d 594 (1977); Corn v. State, 240 Ga. 130, 240 S.E.2d 694 (1977); Campbell v. State, 240 Ga. 352, 240 S.E.2d 828 (1977); Thomas v. State, 240 Ga. 393, 242 S.E.2d 1 (1977); Gibson v. Jackson, 443 F. Supp. 239 (M.D. Ga. 1977); Presnell v. Georgia, 439 U.S. 14, 99 S. Ct. 235, 58 L. Ed. 2d 207 (1978); Redd v. State, 240 Ga. 753, 243 S.E.2d 16 (1978); Spraggins v. State, 240 Ga. 759, 243 S.E.2d 20 (1978); Griggs v. State, 241 Ga. 317, 245 S.E.2d 269 (1978); Morgan v. State, 241 Ga. 485, 246 S.E.2d 198 (1978); Alderman v. State, 241 Ga. 496, 246 S.E.2d 642 (1978); Drake v. State, 241 Ga. 583, 247 S.E.2d 57 (1978); Westbrook v. State, 242 Ga. 151, 249 S.E.2d 524 (1978); Godfrey v. Georgia, 444 U.S. 897, 100 S. Ct. 204, 62 L. Ed. 2d 133 (1979); Davis v. State, 242 Ga. 901, 252 S.E.2d 443 (1979); Ruffin v. State, 242 Ga. 95, 252 S.E.2d 472 (1979); Fleming v. State, 243 Ga. 120, 252 S.E.2d 609 (1979); Spraggins v. State, 243 Ga. 73, 252 S.E.2d 620 (1979); Collins v. State, 243 Ga. 291, 253 S.E.2d 729 (1979); Holton v. State, 243 Ga. 312, 253 S.E.2d 736 (1979); Baker v. State, 243 Ga. 710, 257 S.E.2d 192 (1979); Legare v. State, 243 Ga. 744, 257 S.E.2d 247 (1979); Bowen v. State, 244 Ga. 495, 260 S.E.2d 855 (1979); Gibson v. Ricketts, 244 Ga. 482, 260 S.E.2d 877 (1979); Tucker v. State, 244 Ga. 721, 261 S.E.2d 635 (1979); Tucker v. State, 245 Ga. 68, 263 S.E.2d 109 (1980); McClesky v. State, 245 Ga. 108, 263 S.E.2d 146 (1980); Patrick v. State, 245 Ga. 417, 265 S.E.2d 553 (1980); Dampier v. State, 245 Ga. 427, 265 S.E.2d 565 (1980); Stevens v. State, 245 Ga. 583, 266 S.E.2d 194 (1980); Hance v. State, 245 Ga. 856, 268 S.E.2d 339; Dampier v. State, 245 Ga. 882, 268 S.E.2d 349 (1980); Alderman v. Austin, 498 F. Supp. 1134 (S.D. Ga. 1980); Thomas v. State, 247 Ga. 233, 275 S.E.2d 318 (1981); Messer v. State, 247 Ga. 316, 276 S.E.2d 15 (1981); Cervi v. State, 248 Ga. 325, 282 S.E.2d 629 (1981); Waters v. State, 248 Ga. 355, 283 S.E.2d 238 (1981); Smith v. Balkcom, 660 F.2d 573 (5th Cir. 1981); Alderman v. Austin, 663 F.2d 558 (5th Cir. 1981); Blake v. Zant, 513 F. Supp. 772 (S.D. Ga. 1981); McCorquodale v. Balkcom, 525 F. Supp. 408 (N.D. Ga. 1981); Zant v. Stephens, 456 U.S. 410, 102 S. Ct. 1856, 72 L. Ed. 2d 222 (1982); Krier v. State, 249 Ga. 80, 287 S.E.2d 531 (1982); Smith v. State, 249 Ga. 228, 290 S.E.2d 43 (1982); Brown v. State, 250 Ga. 66, 295 S.E.2d 727 (1982); Chappell v. State, 164 Ga. App. 77, 296 S.E.2d 629 (1982), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020); Young v. Zant, 677 F.2d 792 (11th Cir. 1982); Mitchell v. Hopper, 538 F. Supp. 77 (S.D. Ga. 1982); Hance v. Zant, 696 F.2d 940 (11th Cir. 1983); High v. Zant, 250 Ga. 693, 300 S.E.2d 654 (1983); Hill v. State, 250 Ga. 821, 301 S.E.2d 269 (1983); Chambers v. State, 250 Ga. 856, 302 S.E.2d 86 (1983); McCorquodale v. Balkcom, 705 F.2d 1553 (11th Cir. 1983); Corn v. Zant, 708 F.2d 549 (11th Cir. 1983); Brooks v. Francis, 716 F.2d 780 (11th Cir. 1983); Moore v. Zant, 722 F.2d 640 (11th Cir. 1983); Cape v. Francis, 558 F. Supp. 1207 (M.D. Ga. 1983); Fleming v. Zant, 560 F. Supp. 525 (M.D. Ga. 1983); Mitchell v. Hopper, 564 F. Supp. 780 (S.D. Ga. 1983); Potts v. Zant, 575 F. Supp. 374 (N.D. Ga. 1983); Felker v. State, 252 Ga. 351, 314 S.E.2d 621 (1984); Spivey v. State, 253 Ga. 187, 319 S.E.2d 420 (1984); Finney v. State, 253 Ga. 346, 320 S.E.2d 147 (1984); Drake v. Francis, 727 F.2d 990 (11th Cir. 1984); Dix v. Newsome, 584 F. Supp. 1052 (N.D. Ga. 1984); Johnson v. Kemp, 585 F. Supp. 1496 (S.D. Ga. 1984); Devier v. State, 253 Ga. 604, 323 S.E.2d 150 (1984); Ingram v. State, 253 Ga. 622, 323 S.E.2d 801 (1984); Walker v. State, 254 Ga. 149, 327 S.E.2d 475 (1985); Tyler v. Kemp, 755 F.2d 741 (11th Cir. 1985); Bowden v. Kemp, 767 F.2d 761 (11th Cir. 1985); Butler v. State, 254 Ga. 637, 332 S.E.2d 654 (1985); Cook v. State, 255 Ga. 565, 340 S.E.2d 843 (1986); Rogers v. State, 256 Ga. 139, 344 S.E.2d 644 (1986); Parker v. State, 256 Ga. 543, 350 S.E.2d 570 (1986); Page v. State, 257 Ga. 538, 361 S.E.2d 153 (1987); Cohen v. State, 257 Ga. 544, 361 S.E.2d 373 (1987); Frazier v. State, 257 Ga. 690, 362 S.E.2d 351 (1987); Skipper v. State, 257 Ga. 802, 364 S.E.2d 835 (1988); Lipham v. State, 257 Ga. 808, 364 S.E.2d 840 (1988); Hughes v. State, 258 Ga. 10, 364 S.E.2d 864 (1988); Blankenship v. State, 258 Ga. 43, 365 S.E.2d 265 (1988); Newland v. State, 258 Ga. 172, 366 S.E.2d 689 (1988); Williams v. State, 258 Ga. 281, 368 S.E.2d 742 (1988); Lonchar v. State, 258 Ga. 447, 369 S.E.2d 749 (1988); Williams v. Kemp, 846 F.2d 1276 (11th Cir. 1988); Morrison v. State, 258 Ga. 683, 373 S.E.2d 506 (1988); Foster v. State, 258 Ga. 736, 374 S.E.2d 188 (1988); Jarrells v. State, 258 Ga. 833, 375 S.E.2d 842 (1989); Leach v. State, 259 Ga. 33, 376 S.E.2d 667 (1989); Kinsman v. State, 259 Ga. 89, 376 S.E.2d 845 (1989); Potts v. State, 259 Ga. 96, 376 S.E.2d 851 (1989); Hatcher v. State, 259 Ga. 274, 379 S.E.2d 775 (1989); Miller v. State, 259 Ga. 296, 380 S.E.2d 690 (1989); Pitts v. State, 259 Ga. 745, 386 S.E.2d 351 (1989); Baxter v. Kemp, 260 Ga. 184, 391 S.E.2d 754 (1990); Spencer v. State, 260 Ga. 640, 398 S.E.2d 179 (1990); Brown v. State, 261 Ga. 66, 401 S.E.2d 492 (1991); Ferrell v. State, 261 Ga. 115, 401 S.E.2d 741 (1991); Christenson v. State, 261 Ga. 80, 402 S.E.2d 41 (1991); Gibson v. State, 261 Ga. 313, 404 S.E.2d 781 (1991); Potts v. State, 261 Ga. 716, 410 S.E.2d 89 (1991); Todd v. State, 261 Ga. 766, 410 S.E.2d 725 (1991); Bennett v. State, 262 Ga. 149, 414 S.E.2d 218 (1992); Hance v. Zant, 981 F.2d 1180 (11th Cir.); Osborne v. State, 263 Ga. 214, 430 S.E.2d 576 (1993); Burgess v. State, 264 Ga. 777, 450 S.E.2d 680 (1994); Jones v. State, 267 Ga. 592, 481 S.E.2d 821 (1997); High v. Turpin, 14 F. Supp. 2d 1358 (S.D. Ga. 1998); Stephens v. State, 270 Ga. 354, 509 S.E.2d 605 (1998); Jackson v. State, 270 Ga. 494, 512 S.E.2d 241 (1999); Gulley v. State, 271 Ga. 337, 519 S.E.2d 655 (1999); Morrow v. State, 272 Ga. 691, 532 S.E.2d 78 (2000); Heidler v. State, 273 Ga. 54, 537 S.E.2d 44 (2000); King v. State, 273 Ga. 258, 539 S.E.2d 783 (2000); Colwell v. State, 273 Ga. 634, 544 S.E.2d 120 (2001); Esposito v. State, 273 Ga. 183, 538 S.E.2d 55 (2000); Fults v. State, 274 Ga. 82, 548 S.E.2d 315 (2001); Rhode v. State, 274 Ga. 377, 552 S.E.2d 855 (2001); Lewis v. State, 275 Ga. 194, 563 S.E.2d 839 (2002); White v. State, 275 Ga. 678, 571 S.E.2d 786 (2002); Farmer v. State, 268 Ga. App. 831, 603 S.E.2d 16 (2004); Buttram v. State, 280 Ga. 595, 631 S.E.2d 642 (2006); Jones v. State, 282 Ga. 784, 653 S.E.2d 456 (2007); Hall v. Terrell, 285 Ga. 448, 679 S.E.2d 17 (2009); Ellington v. State, 292 Ga. 109, 735 S.E.2d 736 (2012), overruled in part by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018); Humphrey v. Nance, 293 Ga. 189, 744 S.E.2d 706 (2013); Edenfield v. State, 293 Ga. 370, 744 S.E.2d 738 (2013), overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018);.

Mitigating Circumstances

Discretion of sentencing authority.

- Sentencing authority possesses unbridled discretion to consider any perceived mitigating circumstances. The sentencing authority then can assign what the sentencing authority deems the appropriate weight to particular mitigating circumstances. Moreover, with unbridled consideration of mitigating circumstances the sentencing authority may consider something to be mitigating that others might consider aggravating. Moore v. Balkcom, 716 F.2d 1511 (11th Cir.), supplemented by, 722 F.2d 629 (11th Cir. 1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1456, 79 L. Ed. 2d 773 (1984).

It is not necessary that the court identify mitigating circumstances offered by the defendant. Davis v. State, 255 Ga. 598, 340 S.E.2d 869, cert. denied, 479 U.S. 871, 107 S. Ct. 245, 93 L. Ed. 2d 170 (1986); Clark v. State, 275 Ga. 220, 563 S.E.2d 865 (2002).

- When juries are instructed in sentencing to consider all the facts and circumstances which have appeared at both phases of the trial, this necessarily includes any mitigating circumstances which the defendant has shown, or argued, or both; therefore, the trial court does not err in failing to use the talismanic words, "mitigating circumstances," nor does the court err in failing to charge specifically that certain evidence is to be deemed mitigating. Stevens v. State, 247 Ga. 698, 278 S.E.2d 398 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3551, 77 L. Ed. 2d 1398 (1982).

- General Assembly in this section meant to empower jurors to consider as mitigating anything the jurors find to be mitigating, without limitation or definition. Sprivey v. State, 241 Ga. 477, 246 S.E.2d 288, cert. denied, 439 U.S. 1039, 99 S. Ct. 642, 58 L. Ed. 2d 699 (1978).

Mitigating circumstances are referred to in former Code 1933, §§ 27-2503 and 27-2534.1 (see O.C.G.A. §§ 17-10-2 and17-10-30), which are wholly silent on what mitigating circumstances shall be. The conclusion is thus inescapable that the legislature meant to empower the jury to consider as mitigating anything the jury found to be mitigating, without limitation or definition. This is a constitutionally valid procedure. Redd v. State, 242 Ga. 876, 252 S.E.2d 383, cert. denied, 442 U.S. 934, 99 S. Ct. 2870, 61 L. Ed. 2d 304 (1979).

Mitigating circumstances are not required to be singled out in the charge to the jury, because the law of this state nowhere defines mitigating circumstances. Redd v. State, 242 Ga. 876, 252 S.E.2d 383, cert. denied, 442 U.S. 934, 99 S. Ct. 2870, 61 L. Ed. 2d 304 (1979).

In the sentencing trial, it is not required that specific mitigating circumstances be singled out by the court in giving instructions to the jury. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).

- Evidence of "extenuating or mitigating circumstances" allowed by former Code 1933, §§ 27-252503 and 27-2534.1 (see O.C.G.A. §§ 17-10-2 and17-10-30) relates to evidence about the particular defendant and does not include evidence involving the death penalty in general. Franklin v. State, 245 Ga. 141, 263 S.E.2d 666, cert. denied, 447 U.S. 930, 100 S. Ct. 3029, 65 L. Ed. 2d 1124 (1980).

- United States Const., amends. 8 and 14 require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering as a mitigating factor any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. Franklin v. State, 245 Ga. 141, 263 S.E.2d 666, cert. denied, 447 U.S. 930, 100 S. Ct. 3029, 65 L. Ed. 2d 1124 (1980).

Evidence which is inadmissible under the rules of evidence is admissible in some instances if offered as mitigation in the sentencing phase of a capital felony trial. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).

Constitution requires that evidence which would be inadmissible under an evidentiary rule must not automatically be excluded if tendered in a capital case in mitigation of punishment; rather, the potentially mitigating influence of the testimony must be weighed against the harm resulting from the violation of the evidentiary rule and in close cases the doubt should be resolved in favor of admissibility. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).

- Trial court does not err in failing to specifically instruct the jury that as to mitigating circumstances the jury can consider "anything, without limitation or definition," if the court's instruction conveys to the jury that the jury's authority to recommend mercy is unlimited and not circumscribed by the court's definition of mitigating circumstances. Romine v. State, 251 Ga. 208, 305 S.E.2d 93 (1983), cert. denied, 481 U.S. 1024, 107 S. Ct. 1912, 95 L. Ed. 2d 517 (1987).

Mitigating circumstances to be presented to a jury in a Georgia death penalty case include circumstances surrounding the commission of the crime as contrasted with the life history of the petitioner preceding the period of time possibly relevant to the commission of the offense in question. Fleming v. Zant, 560 F. Supp. 525 (M.D. Ga. 1983), aff'd, 748 F.2d 1435 (11th Cir. 1984), cert. denied, 475 U.S. 1058, 106 S. Ct. 1286, 89 L. Ed. 2d 593 (1986).

Georgia law instructs the judge and jury in a capital case to consider any mitigating circumstances in determining whether to impose the death penalty. Ferrell v. Hall, 640 F.3d 1199 (11th Cir. 2011).

- Rule that the results of a polygraph examination were not admissible in a Georgia criminal trial absent a stipulation of the parties was not to be inflexibly applied to the sentencing phase of a capital case to preclude a defendant from introducing the favorable results of such an examination as mitigation evidence, but this did not require the admission of favorable polygraph test results in the sentencing phase of every Georgia capital case, as the trial court was to exercise the court's discretion to determine if the results were sufficiently reliable to be admitted. Height v. State, 278 Ga. 592, 604 S.E.2d 796 (2004).

- Trial court properly refused to allow the defendant in a death penalty case to present to the jury evidence of penalties imposed in other cases. Wilson v. State, 250 Ga. 630, 300 S.E.2d 640, cert. denied, 464 U.S. 865, 104 S. Ct. 199, 78 L. Ed. 2d 174 (1983).

Defendant in a capital murder trial must be allowed to proffer any evidence of mitigation submitted as a basis for a sentence less than death. Westbrook v. Zant, 704 F.2d 1487 (11th Cir. 1983), overruled on other grounds, Peek v. Kemp, 784 F.2d 1479 (11th Cir.), cert. denied, 479 U.S. 939, 107 S. Ct. 421, 90 L. Ed. 2d 371 (1986).

- Grandfather's testimony that the grandfather does not wish to see a grandson die is admissible in mitigation at the sentencing phase of a death penalty case. Romine v. State, 251 Ga. 208, 305 S.E.2d 93 (1983), cert. denied, 481 U.S. 1024, 107 S. Ct. 1912, 95 L. Ed. 2d 517 (1987).

- Jury is not required to find any mitigating circumstance in order to make a recommendation of mercy that is binding on the trial court. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).

Age (youth) is a mitigating circumstance. Lewis v. State, 246 Ga. 101, 268 S.E.2d 915 (1980).

- Portion of this section that required the trial court to give in writing to the jury the statutory instructions does not violate due process and equal protection under U.S. Const., amends. 5 and 14, and without a concurrent right to send written instructions to the jury as to mitigating circumstances, the aggravating circumstances are not prejudicially emphasized, because the written material furnished to the jury is purely of a procedural nature and amounts to nothing more than a written formulation of the jury's potential verdicts. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).

- If the trial court fails to charge the jury, in the absence of a request, on the law and existence of mitigating circumstances during the sentencing phase of the trial, the death penalty must be set aside. Hawes v. State, 240 Ga. 327, 240 S.E.2d 833 (1977), but see Stewart v. State, 232 Ga. App. 565, 502 S.E.2d 502 (1998).

- Under Georgia's death sentencing scheme, the Eighth and Fourteenth Amendments require that the trial judge clearly and explicitly instruct the jury about mitigating circumstances and the option to recommend against death. When the instruction, taken as a whole, at best was contradictory and confusing as to the jury's function if the jury determined that an aggravating circumstance was present, as the jury was told that upon finding an aggravating circumstance the jury's verdict would be death, but it is possible to lift isolated phrases from the jury instruction and find in those phrases an indication that a death sentence need not have inexorably flowed from a finding of an aggravated circumstance, on the whole, the instruction falls far short of providing clear and explicit information to the jury that the jury had the option not to recommend a sentence of death and the defendant's death sentence must therefore be set aside. Moore v. Kemp, 809 F.2d 702 (11th Cir.), cert. denied, 481 U.S. 1054, 107 S. Ct. 2192, 95 L. Ed. 2d 847 (1987), aff'd, 972 F.2d 319 (11th Cir. 1992).

- Capital defendant's right to present evidence in mitigation places an affirmative duty on the state to provide the funds necessary for production of that evidence. Westbrook v. Zant, 704 F.2d 1487 (11th Cir. 1983), overruled on other grounds, Peek v. Kemp, 784 F.2d 1479 (11th Cir.), cert. denied, 479 U.S. 939, 107 S. Ct. 421, 90 L. Ed. 2d 371 (1986).

State must furnish the services of a psychologist or psychiatrist in those capital cases deemed appropriate by the state trial court. Westbrook v. Zant, 704 F.2d 1487 (11th Cir. 1983), overruled on other grounds, Peek v. Kemp, 784 F.2d 1479 (11th Cir.), cert. denied, 479 U.S. 939, 107 S. Ct. 421, 90 L. Ed. 2d 371 (1986).

- Trial court erred in excluding mitigating evidence consisting of the defendant's love poem written for the defendant's spouse, the childhood photographs, and photographs of the defendant's child and stepchildren. Barnes v. State, 269 Ga. 345, 496 S.E.2d 674 (1998), cert. denied, 525 U.S. 969, 119 S. Ct. 419, 142 L. Ed. 2d 341 (1998).

- Trial court is not required to instruct the jury that there is no requirement that evidence of mitigating circumstances must be established beyond a reasonable doubt. Parker v. Turpin, 60 F. Supp. 2d 1332 (N.D. Ga. 1999), aff'd sub nom. Parker v. Head, 244 F.3d 831 (11th Cir. 2001).

Aggravating Circumstances

1. In General

Jury must find statutory aggravating circumstance before recommending sentence of death. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).

- Each statutory aggravating circumstance under the death penalty statute must satisfy a constitutional standard derived from the principles of Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), itself, for a system could have standards so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman, supra, could occur. To avoid this constitutional flaw, an aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder. Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).

- Aggravating circumstances found in O.C.G.A. § 17-10-30(b)(2) and (b)(7) may both be found by a jury within the same case involving the same victim and facts. Waldrip v. State, 267 Ga. 739, 482 S.E.2d 299, cert. denied, 522 U.S. 917, 118 S. Ct. 305, 139 L. Ed. 2d 235 (1997).

- Aggravating circumstances, such as O.C.G.A. § 17-10-30(b)(4) and (b)(6), are not invalid because the circumstances might overlap to some extent. Castell v. State, 250 Ga. 776, 301 S.E.2d 234 (1983), aff'd, 252 Ga. 418, 314 S.E.2d 210 (1984).

- Trial court properly convicted and sentenced the defendant on charges of armed robbery and burglary because the fact that those acts served as aggravating circumstances in relation to the defendant's murder charge pursuant to O.C.G.A. § 17-10-30(b) did not trigger double jeopardy. Jones v. State, 279 Ga. 854, 622 S.E.2d 1 (2005).

- Because any rational factfinder, given the evidence as presented, could have found the O.C.G.A. § 17-10-30(b)(4) aggravating factor present, there was sufficient evidence to allow a jury to find the defendant committed the murder for the purpose of receiving things of monetary value. Baxter v. Thomas, 45 F.3d 1501 (11th Cir.), cert. denied, 516 U.S. 946, 116 S. Ct. 385, 133 L. Ed. 2d 307 (1995).

- Jury instruction based on O.C.G.A. § 17-10-30(b)(7) and requiring a finding of both depravity of mind and torture to the victim did not justify federal habeas corpus relief. Stanley v. Zant, 697 F.2d 955 (11th Cir. 1983), cert. denied, 467 U.S. 1219, 104 S. Ct. 2667, 81 L. Ed. 2d 372 (1984).

- O.C.G.A. § 17-10-30(b)(7) jury findings should be returned in the conjunctive to ensure unanimity concerning the necessary elements of this paragraph's circumstances. Hill v. State, 263 Ga. 37, 427 S.E.2d 770, reh'g denied, 510 U.S. 1066, 114 S. Ct. 745, 126 L. Ed. 2d 708(1994); habeas corpus proceeding, remanded, Turpin v. Hill, 269 Ga. 302, 498 S.E.2d 52 (1998), cert. denied, 510 U.S. 950, 114 S. Ct. 396, 126 L. Ed. 2d 344 (1993).

- Trial court properly instructed the jury on the relationship of the clauses in paragraph (b)(7) of O.C.G.A. § 17-10-30. Moreover, the verdict form accurately reflected the language of the statute; and the jury marked the form in such a way as to indicate that the jury found the existence of all of the (b)(7) factors beyond a reasonable doubt. It cannot be said that the verdict form was erroneous simply because the form set forth the (b) (7) factors in the form of a checklist. Sears v. State, 270 Ga. 834, 514 S.E.2d 426 (1999).

Evidence presented at the guilt phase of the trial is properly considered by the jury in establishing the existence of statutory aggravating circumstances. Welch v. State, 254 Ga. 603, 331 S.E.2d 573 (1985).

- Once the jury finds at least one statutory aggravating circumstance beyond a reasonable doubt, the jury may consider all the evidence that has been presented in both phases of the case. Ross v. State, 254 Ga. 22, 326 S.E.2d 194, cert. denied, 472 U.S. 1022, 105 S. Ct. 3490, 87 L. Ed. 2d 623 (1985).

Finding of any statutory aggravating circumstance makes the defendant eligible for a sentence of death, and the jury must, considering all the evidence, determine whether to impose such a sentence or to impose a life sentence instead. Moore v. Kemp, 809 F.2d 702 (11th Cir.), cert. denied, 481 U.S. 1054, 107 S. Ct. 2192, 95 L. Ed. 2d 847 (1987), aff'd, 972 F.2d 319 (11th Cir. 1992).

- Autopsy photographs of the victim's body were admissible to show aggravated battery in conjunction with the aggravating circumstances in O.C.G.A. § 17-10-30(b)(2) and (b)(7). Waldrip v. State, 267 Ga. 739, 482 S.E.2d 299, cert. denied, 522 U.S. 917, 118 S. Ct. 305, 139 L. Ed. 2d 235 (1997).

- In a capital felony presentence trial, the state is not limited to the introduction of evidence to support the particular statutory aggravating circumstances the state is relying upon. Fair v. State, 245 Ga. 868, 268 S.E.2d 316, cert. denied, 449 U.S. 986, 101 S. Ct. 407, 66 L. Ed. 2d 250 (1980).

State is not limited to presenting evidence of statutory aggravating circumstances. Hightower v. State, 259 Ga. 770, 386 S.E.2d 509 (1989), cert. denied, 498 U.S. 882, 111 S. Ct. 230, 112 L. Ed. 2d 184 (1990).

- When two or more statutory aggravating circumstances are found by the jury, the failure of one circumstance does not so taint the proceedings as to invalidate the other aggravating circumstance found and the sentence of death based thereon. Gates v. State, 244 Ga. 587, 261 S.E.2d 349 (1979), cert. denied, 445 U.S. 938, 100 S. Ct. 1332, 63 L. Ed. 2d 772 (1980); Brooks v. State, 246 Ga. 262, 271 S.E.2d 172 (1980); Stevens v. State, 247 Ga. 698, 278 S.E.2d 398 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3551, 77 L. Ed. 2d 1398 (1982); Cervi v. State, 248 Ga. 325, 282 S.E.2d 629 (1981), cert. denied, 456 U.S. 938, 102 S. Ct. 1995, 72 L. Ed. 2d 457 (1982); Mathis v. State, 249 Ga. 454, 291 S.E.2d 489 (1982), cert. denied, 463 U.S. 1214, 103 S. Ct. 3552, 77 L. Ed. 2d 1399 (1983).

If several aggravating factors are considered in arriving at a sentencing determination and one of those factors is improper, the improper factor is likely to be harmless error in instances when no mitigating factors are shown. Davis v. Zant, 721 F.2d 1478 (11th Cir. 1983), modified, 752 F.2d 1515 (11th Cir.), cert. denied, 471 U.S. 1143, 105 S. Ct. 2689, 86 L. Ed. 2d 707 (1985).

The O.C.G.A. § 17-10-30(b)(10) statutory aggravating circumstance found as to each of two murder victims was not supported by the evidence based on the state's argument that killing a witness to a crime was a means of avoiding, interfering with, or preventing lawful arrest, and that once a defendant obtained the victims' ATM cards and PINs, the defendant murdered the victims because the defendant knew that the defendant would be apprehended if the victims were left alive. However, the invalidation of this statutory aggravating circumstance did not affect the death sentences imposed. Humphreys v. State, 287 Ga. 63, 694 S.E.2d 316, cert. denied, 131 S. Ct. 599, 178 L. Ed. 2d 438 (2010), overruled in part by Willis v. State, 304 Ga. 686, 820 S.E.2d 640 (2018).

- Only one aggravating factor was presented to and considered by the jury which imposed the death sentence in the defendant's first trial for murder. Since the ground failed, on appeal, for constitutional insufficiency of the evidence, the state could not, should the state choose to try the defendant again, seek to reimpose the death penalty. Godfrey v. Francis, 613 F. Supp. 747 (N.D. Ga. 1985), aff'd, 836 F.2d 1557 (11th Cir.), cert. dismissed, 487 U.S. 1264, 109 S. Ct. 27, 101 L. Ed. 2d 977 (1988).

- If multiple aggravating circumstances are submitted to the jury, a finding by the jury of less than all of the aggravating circumstances does not constitute an acquittal of the aggravating circumstances not listed by the jury. Spraggins v. State, 255 Ga. 195, 336 S.E.2d 227 (1985), cert. denied, 476 U.S. 1120, 106 S. Ct. 1982, 90 L. Ed. 2d 664 (1986).

- As long as one valid statutory aggravating circumstance exists in a death penalty case, a federal habeas court should not grant relief unless the evidence or factor in question was constitutionally inappropriate. Collins v. Francis, 728 F.2d 1322 (11th Cir.), cert. denied, 469 U.S. 963, 105 S. Ct. 361, 83 L. Ed. 2d 297 (1984).

- Giving of instructions on murder committed during an armed robbery, O.C.G.A. § 17-10-30(b)(2), and murder committed for pecuniary gain, § 17-10-30(b)(4), was proper because the aggravating circumstances referred to were separate and distinct. Simpkins v. State, 268 Ga. 219, 486 S.E.2d 833 (1997); Jenkins v. State, 269 Ga. 282, 498 S.E.2d 502, cert. denied, 525 U.S. 968, 119 S. Ct. 416, 142 L. Ed. 2d 338 (1998).

Trial court properly discharged the court's duty at sentencing of providing the jury with a list of the statutory aggravating circumstances authorized by the evidence. Clark v. State, 275 Ga. 220, 563 S.E.2d 865 (2002).

Petitioner death row inmate failed to establish that no fairminded jurist could conclude that the inmate was not prejudiced by the inmate's trial lawyers' failure at the sentencing phase to present additional evidence of the petitioner's limited intelligence and the inmate's troubled, abusive childhood because, in addition to four statutory aggravating circumstances - (1) the inmate murdered a deputy sheriff, O.C.G.A. § 17-10-30(b)(8); (2) the inmate murdered the deputy sheriff while trying to avoid arrest, O.C.G.A. § 17-10-30(b)(10); (3) the inmate murdered the deputy sheriff while committing armed robbery, O.C.G.A. § 17-10-30(b)(2); and (4) the inmate murdered the deputy sheriff after the inmate had already been convicted of a capital felony, O.C.G.A. § 17-10-30(b)(1) - the jury heard evidence about the inmate's long history of violence against others. Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230 (11th Cir. 2012).

- Death sentence was not impaired because the judge instructed the jury with regard to an invalid statutory aggravating circumstance, a "substantial history of serious assaultive criminal convictions," for the underlying evidence was nevertheless fully admissible at the sentencing phase under O.C.G.A. § 17-10-2(a), the instructions did not place particular emphasis on the role of statutory aggravating circumstances in the jury's ultimate decision, and any possible impact could not fairly be regarded as a constitutional defect in the sentencing process, as nothing in the United States Constitution prohibits a trial judge from instructing a jury that it would be appropriate to take account of a defendant's prior criminal record in making a jury's sentencing determination, even though the defendant's prior history of noncapital convictions could not by itself provide sufficient justification for imposing the death sentence. Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).

Rule that a general verdict must be set aside if the jury was instructed that the jury could rely on any of two or more independent grounds, and one of those grounds is insufficient, because the verdict may have rested exclusively on the insufficient ground, does not require that a death sentence be vacated, when the jury did not merely return a general verdict stating that the jury had found at least one aggravating circumstance, but expressly found aggravating circumstances that were valid and legally sufficient to support the death penalty. Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).

- Although the court erroneously stated to the jury that kidnapping is a capital felony, when kidnapping with bodily injury is a capital felony but kidnapping is not, the erroneous instruction did not amount to reversible error. Ward v. State, 262 Ga. 293, 417 S.E.2d 130 (1992), cert. denied, 506 U.S. 1084, 113 S. Ct. 1061, 122 L. Ed. 2d 366 (1993).

Because O.C.G.A. § 17-10-30(b)(2) sets forth only one statutory aggravating circumstance, the trial court erred by using a verdict that suggested otherwise; however, the error was harmless because the death penalty would still have been authorized if the several overlapping findings had been merged, and the jury was not instructed to weigh the number of statutory aggravating circumstances but, instead, was properly charged that the jury could impose a sentence less than death for any or no reason. Stinski v. State, 286 Ga. 839, 691 S.E.2d 854, cert. denied, 562 U.S. 1011, 131 S. Ct. 522, 178 L. Ed. 2d 385 (2010).

- Trial judge did not err by permitting the state to introduce court records of prior convictions for burglary and assault since the jury based the death sentence on other proper, specified statutory aggravating circumstances. Green v. Zant, 738 F.2d 1529 (11th Cir.), cert. denied, 469 U.S. 1098, 105 S. Ct. 607, 83 L. Ed. 2d 716 (1984).

- Death sentence based on O.C.G.A. § 17-10-30(b)(2), (b)(4), (b)(7), and O.C.G.A. § 17-10-35(c)(1), (c)(3) aggravators for malice murder was supported by sufficient evidence, was not the result of ineffective counsel or an improperly selected jury, and was not disproportionate to other depraved, wantonly vile, and tortuous murders. Defendant's counsel's withholding of alleged mitigating evidence (by presenting the evidence to the trial court under seal) so that the state could not use that evidence against the defendant in the event of a new trial could not be used to assess whether counsel was ineffective for withholding the evidence. Franks v. State, 278 Ga. 246, 599 S.E.2d 134 (2004), cert. denied, 543 U.S. 1058, 125 S. Ct. 870, 160 L. Ed. 2d 784 (2005).

- Because a judge found the statutory aggravating circumstance of armed robbery, then considered the nonstatutory aggravating circumstance of the murder being committed in the victim's home, coming to the conclusion that the statutory aggravating circumstance and the location of the murder and robbery so aggravated the crime as to outweigh all mitigating circumstances involved in the case, such an evaluation comported with the constitutional requirement of an individualized sentencing decision, and thus the judge did not commit constitutional error in imposing the death sentence. Moore v. Balkcom, 716 F.2d 1511 (11th Cir.), supplemented by, 722 F.2d 629 (11th Cir. 1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1456, 79 L. Ed. 2d 773 (1984).

Evidence is not inadmissible in aggravation simply because the evidence does not pertain to a specific statutory aggravating circumstance. Although the death penalty cannot be imposed unless the jury finds at least one of the statutory aggravating circumstances enumerated in O.C.G.A. § 17-10-30(b), the state is not limited to proof only of the enumerated statutory aggravating circumstances. Hicks v. State, 256 Ga. 715, 352 S.E.2d 762, cert. denied, 482 U.S. 931, 107 S. Ct. 3220, 96 L. Ed. 2d 706 (1987).

If the O.C.G.A. § 17-10-30(b)(4) statutory aggravating circumstance was the only statutory aggravating circumstance contended for by the state, but the state offered, as additional evidence in aggravation, proof that the defendant had a prior record of conviction for assault with intent to murder and for burglary, and the defendant contended the jury improperly considered the two noncapital felony convictions as statutory aggravating circumstances, thereby giving undue emphasis to this prior record in making the jury's determination as to sentence, in view of the court's specific instructions that the defendant's prior record did not constitute statutory aggravating circumstances, and the jury's subsequent return of a verdict showing that the jury understood these supplemental instructions, the mere fact that some of the aggravating circumstances were improperly designated "statutory" in the jury's initial verdict clearly had an inconsequential impact on the jury's decision regarding the death penalty. Quick v. State, 256 Ga. 780, 353 S.E.2d 497 (1987).

Reasonable doubt is essential test in finding of existence of aggravating circumstance. Burger v. State, 245 Ga. 458, 265 S.E.2d 796, cert. denied, 446 U.S. 988, 100 S. Ct. 2975, 64 L. Ed. 2d 847 (1980).

- Requirement that the jury find the existence of at least one statutory aggravating circumstance beyond a reasonable doubt before imposing the death penalty is sufficient to ensure that the death penalty is administered in a constitutional manner. Finney v. State, 242 Ga. 582, 250 S.E.2d 388 (1978), cert. denied, 441 U.S. 916, 99 S. Ct. 2017, 60 L. Ed. 2d 388 (1979).

- Judge does not err in furnishing the jury multiple copies of the judge's instruction pursuant to the statutory requirement that the instructions be given in charge and in writing to the jury for the jury's deliberation. Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2642, 53 L. Ed. 2d 251 (1977).

This section demanded no more than a written list of the statutory aggravating circumstances which the trial court had orally charged. Mulligan v. State, 245 Ga. 266, 264 S.E.2d 204, cert. denied, 449 U.S. 986, 101 S. Ct. 407, 66 L. Ed. 2d 250 (1980).

- Under this section, the judge was required to charge the jury in a capital punishment case on any of the statutory aggravating circumstances which are supported by the evidence. Williams v. State, 237 Ga. 399, 228 S.E.2d 806 (1976).

If the indictment fails to allege aggravating circumstances upon which the state would rely in seeking the death penalty, the state may nevertheless impose the death penalty if the state has notified the defendant of the state's intention to seek such penalty. Blankenship v. State, 247 Ga. 590, 277 S.E.2d 505 (1981), cert. denied, 488 U.S. 871, 109 S. Ct. 183, 102 L. Ed. 2d 152 (1988), overruled on other grounds, Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993) and, overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).

- Evidence supported the court's charges on, and the jury's findings of, the following aggravating circumstances: that the defendant committed murder while engaged in the commission of other capital felonies, rape and kidnapping with bodily injury; and that the murder was wantonly vile and horrible in that the murder involved torture and depravity of mind. Wellons v. State, 266 Ga. 77, 463 S.E.2d 868 (1995).

Trial court did not err by denying a defendant's motion to quash an indictment based on Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002), because the face of the indictment did not contain the statutory aggravators for the death penalty; the state was not required to list the statutory aggravators in the indictment. Thomason v. State, 281 Ga. 429, 637 S.E.2d 639 (2006).

- See Young v. State, 251 Ga. 153, 303 S.E.2d 431 (1983), cert. denied, 464 U.S. 1057, 104 S. Ct. 740, 79 L. Ed. 2d 198 (1984); Holiday v. State, 258 Ga. 393, 369 S.E.2d 241 (1988); Pruitt v. State, 258 Ga. 583, 373 S.E.2d 192 (1988), cert. denied, 493 U.S. 1093, 110 S. Ct. 1170, 107 L. Ed. 2d 1072 (1990).

Evidence was sufficient to find O.C.G.A. § 17-10-30(b)(2), (4), and (7) murder aggravators of commission while engaged in aggravated battery on the victim for the purpose of receiving monetary value, murder involving depravity and an aggravated battery to the victim since the victim, who was defendant's close friend, was beaten to death with a hammer and choked, followed by the defendant taking the victim's car, phone, and money. McPherson v. State, 274 Ga. 444, 553 S.E.2d 569 (2001), cert. denied, 537 U.S. 870, 123 S. Ct. 277, 154 L. Ed. 2d 118 (2002).

Because the jury's recommendation of death for the defendant's murder conviction was sufficiently based on other valid statutory aggravating factors, the fact that the jury returned a disjunctive finding of torture, depravity of mind, or an aggravated battery to the victim, whereas this finding should have been returned in the conjunctive to ensure unanimity concerning the necessary elements of the circumstances under O.C.G.A. § 17-10-30(b)(7), no reversal was required. Rivera v. State, 282 Ga. 355, 647 S.E.2d 70 (2007).

Evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that the defendant's motive in murdering the victims was to avoid the defendant's own unlawful arrest as the evidence showed that the defendant failed to report to the defendant's probation officer, left the area after the murder, and had no intention of complying with the terms of probation. Hulett v. State, 296 Ga. 49, 766 S.E.2d 1 (2014), cert. denied, 135 S. Ct. 2358, 192 L. Ed. 2d 153 (U.S. 2015).

When a jury recommends a death sentence, the jury must designate in writing the aggravating circumstance or circumstances which the jury has found beyond a reasonable doubt. This written finding should recite all the essential, pertinent elements of the statutory aggravating circumstances found by the jury. At a minimum, the jury's intent must be shown with sufficient clarity that the Supreme Court can rationally review the jury's finding. Romine v. State, 251 Ga. 208, 305 S.E.2d 93 (1983), cert. denied, 481 U.S. 1024, 107 S. Ct. 1912, 95 L. Ed. 2d 517 (1987).

Verdict which completely omits an essential element of a statutory aggravating circumstance does not suffice as a finding of that statutory aggravating circumstance. Black v. State, 261 Ga. 791, 410 S.E.2d 740 (1991), cert. denied, 506 U.S. 839, 113 S. Ct. 118, 121 L. Ed. 2d 74 (1992).

Defendant's death sentence could not stand since the jury's verdict omitted an essential element of the O.C.G.A. § 17-10-30(b)(7) aggravating circumstance. However, since the evidence was sufficient to support a proper § 17-10-30(b)(7) finding, the state could seek anew the death penalty. Black v. State, 261 Ga. 791, 410 S.E.2d 740 (1991), cert. denied, 506 U.S. 839, 113 S. Ct. 118, 121 L. Ed. 2d 74 (1992).

Failure to submit aggravating circumstances which are raised by evidence is not an implied directed verdict of acquittal on these aggravating circumstances. Godfrey v. State, 248 Ga. 616, 284 S.E.2d 422 (1981), cert. denied, 456 U.S. 919, 102 S. Ct. 1778, 72 L. Ed. 2d 180 (1982).

- Trial court did not err by refusing a defendant's request to dismiss the statutory aggravating circumstance of committing murder for the purpose of receiving money since the facts supported a possibility that the accomplice was the person who committed the murder for that purpose; however, the remedy was to merely have the state re-notify the defendant regarding the statutory aggravating circumstance using the language of the code, not dismissal of the statutory aggravating circumstance. Wagner v. State, 282 Ga. 149, 646 S.E.2d 676 (2007).

Poll of the jury may clarify the jury's written finding of aggravating circumstances. Romine v. State, 251 Ga. 208, 305 S.E.2d 93 (1983), cert. denied, 481 U.S. 1024, 107 S. Ct. 1912, 95 L. Ed. 2d 517 (1987).

In double murder case in which two death sentences were imposed on the defendant, the fact that each murder was a statutory circumstance supporting the death penalty for the other did not require reversal since several additional aggravating circumstances sounding in torture were present. Blanks v. State, 254 Ga. 420, 330 S.E.2d 575 (1985), cert. denied, 475 U.S. 1090, 106 S. Ct. 1479, 89 L. Ed. 2d 733 (1986).

- When the trial court instructed the jury that the offense of aggravated battery is committed when the defendant causes the specified injuries "maliciously, that is to say, with intent . . . ," this instruction was erroneous. A person acts "maliciously" when the person acts intentionally and without justification or serious provocation. What the court should have said was: "Maliciously, that is to say, intentionally and without justification or serious provocation. . . . ". The instruction given, by its incompleteness, removed from the prosecution the burden of proving every element of the crime of aggravated battery beyond a reasonable doubt. Wade v. State, 258 Ga. 324, 368 S.E.2d 482 (1988), cert. denied, 502 U.S. 1060, 112 S. Ct. 941, 117 L. Ed. 2d 111 (1992).

- Superior court improperly denied the defendant's motion to vacate the void sentences of life without the possibility of parole because the plea court did not specify an aggravating circumstance at the time of sentencing. Cordova v. State, 297 Ga. 26, 771 S.E.2d 884 (2015).

- On resentencing after the defendant's death penalty was overturned on technical grounds, the state may offer proof of statutory aggravating circumstances submitted to the first jury but not listed by that jury in support of the death sentence. Zant v. Redd, 249 Ga. 211, 290 S.E.2d 36 (1982), cert. denied, 463 U.S. 1213, 103 S. Ct. 3552, 77 L. Ed. 2d 1398 (1983).

Federal district court's initial judgment holding that there was insufficient evidence to support a death sentence, i.e., insufficient evidence to prove the alleged statutory aggravating factors beyond a reasonable doubt, as required by O.C.G.A. § 17-10-30(c), which decision was left undisturbed by the federal appellate court, which reversed the district court's denial of the writ of habeas corpus with respect to the guilt phase of the trial, barred the state under the double jeopardy clause from attempting to impose the death penalty on the defendant in the defendant's retrial. Young v. Kemp, 760 F.2d 1097 (11th Cir. 1985), cert. denied, 476 U.S. 1123, 106 S. Ct. 1991, 90 L. Ed. 2d 672 (1986).

2. Prior Convictions

Evidence of prior record or other criminal acts.

- During the presentence hearing, the state, subject to notice limitations, is allowed to place the defendant's character in issue through the defendant's prior record or other criminal acts. Fair v. State, 245 Ga. 868, 268 S.E.2d 316, cert. denied, 449 U.S. 986, 101 S. Ct. 407, 66 L. Ed. 2d 250 (1980).

Evidence supported a jury's determination that there were statutory aggravating circumstances to support the death penalty for a defendant's murder of a fellow inmate in that the murder was committed by a person in a place of lawful confinement and the murder was committed by a person with a prior record of conviction for a capital felony as: (1) the defendant and the deceased inmate were confined in a county detention center; (2) the defendant had been convicted of an armed robbery and two other murders; (3) the defendant had struck a defense attorney repeatedly during a jailhouse interview; (4) the defendant had slashed a prison guard's face and throat with a razor blade; and (5) in one day, the defendant had murdered one prison inmate, repeatedly stabbed another with an improvised weapon, and planned to kill a third inmate. Williams v. State, 281 Ga. 87, 635 S.E.2d 146 (2006), cert. denied, 553 U.S. 1004, 128 S. Ct. 2046, 170 L. Ed. 2d 793 (2008).

Aggravating circumstance may be established by proof of out-of-state convictions that clearly are comparable to Georgia capital felony offenses. Moon v. State, 258 Ga. 748, 375 S.E.2d 442 (1988), cert. denied, 499 U.S. 982, 111 S. Ct. 1638, 113 L. Ed. 2d 733 (1991), rev'd on other grounds sub nom. Zant v. Moon, 264 Ga. 93, 440 S.E.2d 657 (1994).

- 1976 murder conviction was not too old to use in aggravation at a trial in 1987. The age of a conviction is a matter which the defense may argue in mitigation, but the age of the conviction is no ground for the exclusion of the evidence. Kinsman v. State, 259 Ga. 89, 376 S.E.2d 845, cert. denied, 493 U.S. 874, 110 S. Ct. 210, 107 L. Ed. 2d 163 (1989).

- When a defendant in a capital case is not charged during the guilt-innocence phase with the capital felony designated as an aggravating circumstance, the trial court would be required to charge the definition of that capital felony as part of the court's instruction to the jury during the sentencing phase of the trial, unless such charge has been waived. Burger v. State, 245 Ga. 458, 265 S.E.2d 796, cert. denied, 446 U.S. 988, 100 S. Ct. 2975, 64 L. Ed. 2d 847 (1980).

Even if statutory aggravating circumstance is found, death penalty need not be imposed. Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2642, 53 L. Ed. 2d 251 (1977).

- Portion of paragraph (b)(1) of this section which allowed for the death penalty if a murder was committed by a person who had a substantial history of serious assaultive criminal convictions (deleted in 1981 codification) was unconstitutional and, thereby, unenforceable. Arnold v. State, 236 Ga. 534, 224 S.E.2d 386 (1976); Hill v. State, 237 Ga. 794, 229 S.E.2d 737 (1976).

Prior noncapital felonies are admissible but not as statutory aggravating circumstances to authorize the imposition of the death penalty. Hughes v. State, 239 Ga. 393, 236 S.E.2d 829 (1977); Davis v. State, 241 Ga. 376, 247 S.E.2d 45, cert. denied, 439 U.S. 947, 99 S. Ct. 341, 58 L. Ed. 2d 338 (1978).

- In deciding if a defendant has a prior record of conviction for a capital felony, the jury should consider the defendant's record as of the time of sentencing rather than at the moment of the crime. Stephens v. Hopper, 241 Ga. 596, 247 S.E.2d 92, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 667 (1978).

Supreme Court of Georgia has interpreted O.C.G.A. § 17-10-30(b)(1) as referring to the defendant's record at the time of sentencing. Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983).

At issue for sentencing purposes is the status of the defendant at the time of sentencing, not the defendant's status at the moment the defendant committed the crimes for which the defendant was tried. State v. Terry, 257 Ga. 473, 360 S.E.2d 588 (1987).

- Prior crime may be proven in aggravation despite the lack of a conviction so long as there has not been a previous acquittal. Jefferson v. State, 256 Ga. 821, 353 S.E.2d 468, cert. denied, 484 U.S. 872, 108 S. Ct. 203, 98 L. Ed. 2d 154 (1987), 511 U.S. 1046, 114 S. Ct. 1577, 128 L. Ed. 2d 220 (1994).

- When the defendant has been tried for two murders jointly, it is not improper to use the conviction for the murder of one victim as the sole statutory aggravating circumstance supporting the sentence for the murder of the other. Childs v. State, 257 Ga. 243, 357 S.E.2d 48 (1987), cert. denied, 484 U.S. 970, 108 S. Ct. 467, 98 L. Ed. 2d 406 (1988).

- Conviction introduced as non-statutory aggravating evidence does not differ from a conviction introduced to form the basis of a statutory aggravating circumstance on the basis that a statutory aggravating circumstance must be found before the jury can impose a death sentence. Evidence introduced by the state in the penalty phase, whether it is offered to prove a statutory aggravating circumstance or whether it is non-statutory aggravating evidence, is intended to influence the trier of fact to impose a death sentence. Tharpe v. Head, 272 Ga. 596, 533 S.E.2d 368 (2000).

This section did not require conviction of crime forming basis of aggravating circumstance in order to allow a jury to find such an aggravating circumstance for sentencing purposes. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).

It is not required that a defendant be convicted of the crime introduced as an aggravating circumstance. Fair v. State, 245 Ga. 868, 268 S.E.2d 316, cert. denied, 449 U.S. 986, 101 S. Ct. 407, 66 L. Ed. 2d 250 (1980).

- The "while . . . engaged in the commission of" requirement of paragraph (b)(2) of this section did not require that the subject felony shall have been completed or that the offender shall have been charged with or convicted of the felony. Amadeo v. State, 243 Ga. 627, 255 S.E.2d 718, cert. denied, 444 U.S. 974, 100 S. Ct. 469, 62 L. Ed. 2d 389 (1979); Roberts v. State, 252 Ga. 227, 314 S.E.2d 83, cert. denied, 469 U.S. 873, 105 S. Ct. 228, 83 L. Ed. 2d 157 (1984).

Defendant's argument that the death penalty was not appropriate punishment in the defendant's case because the defendant did not complete the armed robbery was rejected. The fact that the robbery was not completed does not diminish the defendant's culpability in the murder and the appropriateness of the death sentence in the defendant's case. Brockman v. State, 292 Ga. 707, 739 S.E.2d 332 (2013).

- If armed robberies are held to be aggravating circumstances authorizing death penalties as to murders, the murders cannot then be used in aggravation of the armed robberies. Gregg v. State, 233 Ga. 117, 210 S.E.2d 659 (1974), aff'd, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).

Although under the test provided for comparison by Ga. L. 1973, p. 159, § 4 (see O.C.G.A. § 17-10-35), two sentences of death for murder and rape are not excessive or disproportionate to the penalties imposed in similar cases, the actual imposition of the two death sentences on the basis of mutually aggravating circumstances cannot be upheld since if the rape offense serves as the aggravating circumstances authorizing the death penalties as to the murder, the murder cannot then be used in aggravation of the rape. Gibson v. State, 236 Ga. 874, 226 S.E.2d 63, cert. denied, 429 U.S. 986, 97 S. Ct. 507, 50 L. Ed. 2d 598 (1976).

If one crime, such as robbery, is used as the statutory aggravating circumstances to support imposition of the death penalty for another crime, such as murder, then the murder cannot then be used as the statutory aggravating circumstances to support imposition of the death penalty for the armed robbery. Johnson v. State, 242 Ga. 649, 250 S.E.2d 394 (1978).

When the murders of three children occurred while the defendant was engaged in the commission of another capital felony, the murder of an adult, the imposition of the death penalty for each of the murders of the three children could be supported by the aggravating circumstance that each was committed during the murder of the adult; but the doctrine of "mutually supporting aggravating circumstances" precluded reciprocal use of the murders of the three children as aggravating circumstances to support the imposition of the death penalty for the murder of the adult. Burden v. State, 250 Ga. 313, 297 S.E.2d 242 (1982), cert. denied, 460 U.S. 1103, 103 S. Ct. 1803, 76 L. Ed. 2d 367 (1983).

Doctrine of "mutually supporting aggravating circumstances" precludes simultaneous use of the murder of one victim to support the death penalty for murder of a second victim and use of the murder of the latter victim to support the death penalty for the murder of the first victim. Wilson v. State, 250 Ga. 630, 300 S.E.2d 640, cert. denied, 464 U.S. 865, 104 S. Ct. 199, 78 L. Ed. 2d 174 (1983).

- Imposition of two death sentences on the basis of mutually aggravating circumstances cannot be upheld. However, if the death sentences are legally and factually supported by additional aggravating circumstances, no violation is present. Potts v. State, 241 Ga. 67, 243 S.E.2d 510 (1978), cert. denied, 475 U.S. 1068, 106 S. Ct. 1386, 89 L. Ed. 2d 610 (1986), 493 U.S. 876, 110 S. Ct. 214, 107 L. Ed. 2d 166 (1989).

Doctrine of "mutually supporting aggravating circumstances" precludes imposition of two death sentences if the sole statutory aggravating circumstance is that the defendant has committed a double murder. Nonetheless, if each murder conviction is supported by an independent statutory aggravating circumstance (e.g., armed robbery), the jury may impose the death penalty for each murder. In such cases, the fact that the jury has designated each murder as a statutory aggravating circumstance supporting the death penalty for the other does not require the reversal of either death sentence. Putman v. State, 251 Ga. 605, 308 S.E.2d 145 (1983), cert. denied, 466 U.S. 954, 104 S. Ct. 2161, 80 L. Ed. 2d 546 (1984).

Doctrine of "mutually supporting aggravating circumstances" precludes imposition of two death sentences when the sole statutory aggravating circumstance is that the defendant has committed a double murder. However, the jury may impose a death sentence for each murder in a multiple-murder case if each murder is supported by an independent statutory aggravating circumstance. Isaacs v. State, 259 Ga. 717, 386 S.E.2d 316 (1989), cert. denied, 497 U.S. 1031, 110 S. Ct. 3297, 111 L. Ed. 2d 805 (1990).

Defendant's sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor because two statutory aggravating circumstances were found; namely, the murder was committed while engaged in the capital felony of kidnapping with bodily injury and while engaged in the offense of burglary, and an insufficiency of the evidence to support one or more statutory aggravating circumstances found by the jury did not require reversal if supported by at least one. Spears v. State, 296 Ga. 598, 769 S.E.2d 337 (2015), overruled on other grounds by Willis v. State, 304 Ga. 686, 820 S.E.2d 640 (2018).

If death to victim does not result, death penalty must be set aside. Thomas v. State, 145 Ga. App. 69, 243 S.E.2d 250 (1978).

O.C.G.A. § 17-10-30(b)(2) is applicable to multiple murders. Romine v. State, 251 Ga. 208, 305 S.E.2d 93 (1983), cert. denied, 481 U.S. 1024, 107 S. Ct. 1912, 95 L. Ed. 2d 517 (1987).

Murder of one victim could be used as the aggravating circumstance supporting imposition of the death penalty for murder of another victim in the same crime. Cargill v. State, 255 Ga. 616, 340 S.E.2d 891 (1986), cert. denied, 479 U.S. 1101, 107 S. Ct. 1328, 94 L. Ed. 2d 180 (1987); overruled on other grounds, Manzano v. State, 282 Ga. 557, 651 S.E.2d 661 (2007).

Even though the doctrine of "mutually supporting circumstances" precludes simultaneous use of the murder of one victim to support the death penalty for murder of the second victim and use of the murder of the second to support the death penalty for murder of the first, it is appropriate to select one of the two as the basis for affirming a death sentence. McMichen v. State, 265 Ga. 598, 458 S.E.2d 833 (1995).

O.C.G.A. § 17-10-30(b)(2) does not require that the underlying felony be one other than murder. Godfrey v. Francis, 613 F. Supp. 747 (N.D. Ga. 1985), aff'd sub nom. 836 F.2d 1557 (11th Cir. 1988), cert. dismissed sub nom. Zant v. Godfrey, 487 U.S. 1264, 109 S. Ct. 27, 101 L. Ed. 2d 977 (1988).

O.C.G.A. § 17-10-30(b)(2) does not require simultaneity of action with regard to multiple offenses if there is one continuous course of criminal conduct in a relatively short period of time. Romine v. State, 251 Ga. 208, 305 S.E.2d 93 (1983), cert. denied, 481 U.S. 1024, 107 S. Ct. 1912, 95 L. Ed. 2d 517 (1987).

O.C.G.A. § 17-10-30(b)(2) aggravating circumstance does not require simultaneity of action between the murder and the other capital felony or aggravated battery; § 17-10-30(b)(2) does not require that the murder victim and the kidnapping with bodily injury victim be the same person. Sallie v. State, 276 Ga. 506, 578 S.E.2d 444, cert. denied, 540 U.S. 902, 124 S. Ct. 251, 157 L. Ed. 2d 185 (2003).

- Jury may find the defendant guilty of armed robbery and find that the armed robbery is a statutory aggravating circumstance supporting the death penalty for the victim's murder regardless of whether the defendant's intent to take the victim's property arose before or after the murder. Romine v. State, 251 Ga. 208, 305 S.E.2d 93 (1983), cert. denied, 481 U.S. 1024, 107 S. Ct. 1912, 95 L. Ed. 2d 517 (1987).

Evidence was sufficient for application of the aggravating circumstance that murders were committed while the defendant was engaged in the commission of kidnapping, even if the kidnapping was an afterthought to the shootings. Raulerson v. State, 268 Ga. 623, 491 S.E.2d 791 (1997), cert. denied, 523 U.S. 1127, 118 S. Ct. 1815, 140 L. Ed. 2d 953 (1998).

- If there was no indication in the jury's verdict that the offense of armed robbery was committed contemporaneously with the murder, as the statute requires, and if the jury was not polled as to the aggravating circumstances, the jury's O.C.G.A. § 17-10-30(b)(2) finding was insufficient. Jarrell v. State, 261 Ga. 880, 413 S.E.2d 710 (1992).

- When the defendant argued that it was unconstitutional to allow the defendant's armed robbery to serve both as a basis for a conviction of felony murder and as a statutory aggravating circumstance, for in these circumstances the finding of a statutory aggravating circumstance failed to serve the narrowing function described in Zant v. Stephen, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983); the fact that the prerequisites of a possible death sentence could be satisfied by proof offered at the guilt-innocence phase of the trial was no bar to the imposition of a death sentence, nor an indication that a statutorily-defined aggravating circumstance was not helping to distinguish cases in which the death penalty was imposed from the many cases in which the death penalty was not. Jefferson v. State, 256 Ga. 821, 353 S.E.2d 468, cert. denied, 484 U.S. 872, 108 S. Ct. 203, 98 L. Ed. 2d 154 (1987), 511 U.S. 1046, 114 S. Ct. 1577, 128 L. Ed. 2d 220 (1994).

- If the jury did not specify the supporting capital felony, but the only one charged was armed robbery, absent any objection to the form of the verdict, the jury's finding was sufficiently clear to allow the appellate court to rationally review the verdict. Jefferson v. State, 256 Ga. 821, 353 S.E.2d 468, cert. denied, 484 U.S. 872, 108 S. Ct. 203, 98 L. Ed. 2d 154 (1987), 511 U.S. 1046, 114 S. Ct. 1577, 128 L. Ed. 2d 220 (1994).

- Jury was properly instructed that the jury could find the O.C.G.A. § 17-10-30(b)(2) circumstance with the underlying predicate crime of aiding and abetting rape as the jury could properly find that the defendant, a female, committed murder during the commission of a rape by her husband. Buttrum v. Black, 721 F. Supp. 1268 (N.D. Ga. 1989), aff'd, 908 F.2d 695 (11th Cir. 1990).

- Since the appellant was discovered while still at the scene of the burglary and since the appellant fired at two people in the appellant's attempt to get away, killing one, the court concluded that the murder occurred during the commission of the burglary and that the evidence supported the jury's finding of a statutory aggravating circumstance under O.C.G.A. § 17-10-30(b)(2). Horton v. State, 249 Ga. 871, 295 S.E.2d 281 (1982), cert. denied, 459 U.S. 1188, 103 S. Ct. 837, 74 L. Ed. 2d 1030 (1983).

Imposition of the death penalty for a murder occurring during the commission of a burglary is not rendered constitutionally infirm by reason of the fact that the murder is the burglary conviction's predicate offense. Cash v. State, 258 Ga. 460, 368 S.E.2d 756 (1988).

Jury was authorized to conclude that the defendant burst through the door of the defendant's mother-in-law's home "without authority" and with the intent to commit the felony of murder, and thus that the defendant committed the offense of burglary, which could properly count in aggravation for imposition of the death penalty. Brantley v. State, 262 Ga. 786, 427 S.E.2d 758 (1993).

Evidence was sufficient to prove that defendant lacked authority to enter the victims' house and that the defendant intended to commit the specified felonies once inside under O.C.G.A. § 16-7-1(a), and the defendant's argument that the defendant had authority to enter due to the defendant's marriage to one of the victims was not supported by the law; the trial court did not err by refusing to grant the defendant's motion to dismiss the statutory aggravating circumstance based on the defendant's commission of a burglary under O.C.G.A. § 17-10-30(b)(2). Sallie v. State, 276 Ga. 506, 578 S.E.2d 444, cert. denied, 540 U.S. 902, 124 S. Ct. 251, 157 L. Ed. 2d 185 (2003).

Considering the two murders committed by the defendant, the Supreme Court of Georgia determined that the sentences of death were not excessive or disproportionate to the penalty imposed in similar cases as the defendant murdered a parent and a young child for the purpose of robbing a home; the defendant made the child turn the power back on so that the defendant could see the parent since the parent was still indicating signs of life and the defendant wanted to see to complete the murder; the defendant boasted of raping the child before cutting the child's throat; and, knowing that the child was still alive, the defendant set the house on fire, leaving the pair to burn. O'Kelley v. State, 284 Ga. 758, 670 S.E.2d 388 (2008).

- Evidence supported the jury's O.C.G.A. § 17-10-30(b)(2) findings that the murder of the defendant's spouse was committed while the defendant was engaged in the commission of the offenses of rape, kidnapping with bodily injury, and burglary. Childs v. State, 257 Ga. 243, 357 S.E.2d 48, cert. denied, 484 U.S. 970, 108 S. Ct. 467, 98 L. Ed. 2d 406 (1987).

Evidence was sufficient to prove that a murder was committed while the defendant was engaged in the kidnapping and bodily injury of the victim, an aggravating circumstance under O.C.G.A. § 17-10-30(b)(2); the evidence established that the victim was taken from the victim's home and held at gunpoint by the defendant, that the defendant refused to allow the victim to leave, and that instead the defendant drove the victim to a home where the defendant shot the victim. Dalton v. State, 282 Ga. 300, 647 S.E.2d 580 (2007).

There were sufficient aggravating circumstances to support the defendant's sentencing to life imprisonment without the possibility of parole based on the evidence establishing that the defendant and a codefendant shot and killed a convenience store clerk while the pair were robbing the store. McDougal v. State, 284 Ga. 427, 667 S.E.2d 592 (2008).

- Evidence that the defendant sold the victim's ring, stripped the victim's car and attempted to sell various parts of the car, and took the victim's pistol after murdering the victim was sufficient to support a finding of the aggravating circumstance in O.C.G.A. § 17-10-30(b)(4). Baxter v. State, 254 Ga. 538, 331 S.E.2d 561, cert. denied, 474 U.S. 935, 106 S. Ct. 269, 88 L. Ed. 2d 275 (1985).

- State is not precluded from urging the presence of both O.C.G.A. § 17-10-30(b)(2) and (b)(7) simply because rape is a fact supporting both circumstances. Parks v. State, 254 Ga. 403, 330 S.E.2d 686 (1985).

When an aggravated battery is alleged to have been committed upon the person who is also the murder victim, the same limitations should apply to O.C.G.A. § 17-10-30(b)(2) circumstance as to O.C.G.A. § 17-10-30(b)(7) circumstance. That is, insofar as aggravated battery is concerned, only facts occurring prior to death may be considered; i.e., only facts showing aggravated battery, which are separate from the act causing instantaneous death, will support a finding of aggravated battery. Davis v. State, 255 Ga. 588, 340 S.E.2d 862, cert. denied, 479 U.S. 871, 107 S. Ct. 243, 93 L. Ed. 2d 168 (1986).

Evidence supported a defendant's conviction for aggravated battery as there was evidence supporting an inference that the victim's first wound was non-fatal as the victim managed to flee a short distance into a neighbor's yard before succumbing to the gunfire; the trial court was not required to grant the defendant's motion for a directed verdict on the aggravated battery charge and the trial court did not err by allowing the jury to consider the crime of aggravated battery as an aggravating circumstance of the murder. Thomason v. State, 281 Ga. 429, 637 S.E.2d 639 (2006).

Death penalty for kidnapping with bodily injury is not unconstitutional if the victim is killed. Potts v. State, 241 Ga. 67, 243 S.E.2d 510 (1978), cert. denied, 475 U.S. 1068, 106 S. Ct. 1386, 89 L. Ed. 2d 610 (1986), 493 U.S. 876, 110 S. Ct. 214, 107 L. Ed. 2d 166 (1989).

Although the state obtained an order of nolle prosequi regarding a kidnapping with bodily injury charge before trial, the offense was sufficiently part of the same criminal transaction to permit the jury to find the statutory aggravating circumstance that the murder was committed while the defendant was engaged in the commission of kidnapping with bodily injury. Walker v. State, 281 Ga. 157, 635 S.E.2d 740 (2006), cert. denied, 552 U.S. 833, 128 S. Ct. 60, 169 L. Ed. 2d 50 (2007).

- If the victim of the kidnapping is killed, kidnapping with bodily injury is a capital felony for purposes of the statutory aggravating circumstances. Wilson v. State, 246 Ga. 62, 268 S.E.2d 895 (1980), cert. denied, 449 U.S. 1103, 101 S. Ct. 901, 66 L. Ed. 2d 830 (1981).

Death penalty for rape is not unconstitutional if the victim is killed. Moore v. State, 240 Ga. 807, 243 S.E.2d 1, cert. denied, 439 U.S. 903, 99 S. Ct. 268, 58 L. Ed. 2d 249 (1978), overruled on other grounds, Sabel v. State, 248 Ga. 10, 282 S.E.2d 61 (1981).

- This section did not forbid imposition of the death penalty upon marital murderers. It merely requires that statutory aggravating circumstances exist. Dix v. State, 238 Ga. 209, 232 S.E.2d 47 (1977), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980).

- Under the test provided by former Code 1933, § 27-2537 (see O.C.G.A. § 17-10-35), a death sentence imposed for armed robbery must be considered to be excessive or disproportionate to the penalties imposed in similar cases. Gregg v. State, 233 Ga. 117, 210 S.E.2d 659 (1974), aff'd, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).

Death sentence for armed robbery must be considered to be excessive or disproportionate to the penalties imposed in similar cases. Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975), cert. denied, 428 U.S. 910, 96 S. Ct. 3223, 49 L. Ed. 2d 1218 (1976).

- Even if there is no indication that the death sentence was imposed for an armed robbery offense under the influence of passion, prejudice, or any other arbitrary factor, since it has rarely been imposed for that offense, it must be considered to be excessive or disproportionate to the penalties imposed in similar cases. Floyd v. State, 233 Ga. 280, 210 S.E.2d 810 (1974), cert. denied, 431 U.S. 949, 97 S. Ct. 2667, 53 L. Ed. 2d 266 (1977).

- "Capital felony" was used in this section in a generic sense to include those felonies which were capital crimes in this state at the time this section was enacted. Thus, armed robbery remains a viable aggravating circumstance. Bowden v. State, 239 Ga. 821, 238 S.E.2d 905 (1977), cert. denied, 435 U.S. 937, 98 S. Ct. 1513, 55 L. Ed. 2d 533 (1978).

Armed robbery is still a capital felony for purposes of aggravating circumstances under this section, even though the death penalty cannot be imposed for armed robbery. Davis v. State, 241 Ga. 376, 247 S.E.2d 45, cert. denied, 439 U.S. 947, 99 S. Ct. 341, 58 L. Ed. 2d 338 (1978); Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); Thompson v. State, 263 Ga. 23, 426 S.E.2d 895 (1993), overruled on other grounds, McClellan v. State, 274 Ga. 819, 561 S.E.2d 82 (2002).

Even though the death penalty may no longer be imposed for armed robbery alone, armed robbery is still a capital felony under the aggravating circumstance provisions of this section. Jones v. State, 243 Ga. 820, 256 S.E.2d 907, cert. denied, 444 U.S. 957, 100 S. Ct. 437, 62 L. Ed. 2d 329 (1979).

Armed robbery was still considered a capital offense under paragraph (b)(2) of this section. Simmons v. State, 149 Ga. App. 830, 256 S.E.2d 79 (1979).

Charge on statutory aggravating circumstances was proper, when even if the defendant decided to take the victim's money only after having twice shot the victim in the head, the jury was authorized to find that the offense of murder was committed while the defendant was engaged in the commission of the offense of armed robbery. Davis v. State, 255 Ga. 588, 340 S.E.2d 862, cert. denied, 479 U.S. 871, 107 S. Ct. 243, 93 L. Ed. 2d 168 (1986).

Defendant's death sentence was not disproportionate since the defendant's two victims were deliberately killed during the commission of an armed robbery and were shot in the back of the head. Arevalo v. State, 275 Ga. 392, 567 S.E.2d 303 (2002), cert. denied, 538 U.S. 962, 123 S. Ct. 1749, 155 L. Ed. 2d 515 (2003).

- Crime, such as kidnapping with bodily injury, on which the death penalty cannot be imposed is nevertheless another capital felony for purposes of aggravating circumstances under this section. Cook v. State, 242 Ga. 657, 251 S.E.2d 230 (1978).

Although the death penalty may not be imposed for the offense of kidnapping with bodily injury unless the victim is killed, kidnapping with bodily injury is a capital felony that may be considered by the jury as a O.C.G.A. § 17-10-30(b)(2) statutory aggravating circumstance supporting a death sentence for the offense of murder. Tharpe v. State, 262 Ga. 110, 416 S.E.2d 78, cert. denied, 506 U.S. 942, 113 S. Ct. 383, 121 L. Ed. 2d 292 (1992).

Even though the trial court directed a verdict of acquittal of kidnapping with bodily injury because the kidnapping occurred in a different county, the jury was authorized to find the statutory aggravating circumstance that the murder was committed while the defendant was engaged in the commission of kidnapping with bodily injury; the offense of kidnapping with bodily injury was sufficiently part of the same criminal transaction to be considered as and found to be a O.C.G.A. § 17-10-30(b)(2) aggravating circumstance of the murder. Lee v. State, 270 Ga. 798, 514 S.E.2d 1, cert. denied, 528 U.S. 1006, 120 S. Ct. 503, 145 L. Ed. 2d 388 (1999).

Trial court properly denied the defendant's motion to dismiss the two statutory aggravating circumstances under O.C.G.A. § 17-10-30(b)(2) that involved the defendant's commission of the murder while engaged in the commission of the kidnappings with bodily injury of two victims even though the defendant alleged that the kidnappings with bodily injury occurred after the murder, and that the "bodily injury" elements, the rapes, occurred several hours after the murder. Sallie v. State, 276 Ga. 506, 578 S.E.2d 444, cert. denied, 540 U.S. 902, 124 S. Ct. 251, 157 L. Ed. 2d 185 (2003).

Trial court did not err in sentencing the defendant to death for murder because the evidence was sufficient to support the trial court's finding of the existence of a statutory aggravating circumstance based on kidnapping with bodily injury beyond a reasonable doubt under O.C.G.A. § 17-10-30(b)(2) since the stab wound to the victim's thigh and the victim's strangulation constituted bodily injuries sufficient to complete this statutory aggravating circumstance; the defendant pled guilty to the offense of kidnapping with bodily injury, and the evidence presented at the sentencing trial correlated with the definition of kidnapping. Loyd v. State, 288 Ga. 481, 705 S.E.2d 616, cert. dismissed, 565 U.S. 971, 132 S. Ct. 474, 181 L. Ed. 2d 309 (U.S. 2011).

- Evidence was sufficient for conviction for murder committed during kidnapping, O.C.G.A. § 17-10-30(b)(2), as the evidence showed that the defendant had stalked children, possessed a gun and child pornography, had taken two children and taped their mouths shut, and led police to a body, even though the second kidnapping victim in the same incident was not killed. Presnell v. State, 274 Ga. 246, 551 S.E.2d 723 (2001), cert. denied, 535 U.S. 1059, 122 S. Ct. 1921, 152 L. Ed. 2d 829 (2002).

Kidnapping alone is not a statutory aggravating circumstance. Crawford v. State, 256 Ga. 57, 344 S.E.2d 215, cert. denied, 479 U.S. 989, 107 S. Ct. 583, 93 L. Ed. 2d 585 (1986).

- Since kidnapping when no bodily injury occurs was not a capital crime at the time O.C.G.A. § 17-10-30 was enacted, such an offense cannot serve as a statutory aggravating circumstance. Crawford v. State, 254 Ga. 435, 330 S.E.2d 567 (1985), cert. denied, 489 U.S. 1040, 109 S. Ct. 1098, 103 L. Ed. 2d 239 (1989).

Evidence was sufficient to support finding that murder occurred while defendant was committing rape when the victim was found with her sweater open, her slip pulled up and her pantyhose and panties pulled down, evidence established that there could have been manipulation of the victim's sexual organs, bruises were present on her thigh and there was a tear in the vaginal wall and hemorrhaging around the urethra. Spraggins v. State, 255 Ga. 195, 336 S.E.2d 227 (1985), cert. denied, 476 U.S. 1120, 106 S. Ct. 1982, 90 L. Ed. 2d 664 (1986).

- When the state contended at trial that the offense of murder was committed while the offender was engaged in the commission of the offense of aggravated battery, the evidence showed that the victim was struck twice in the head with a heavy stick and then strangled to death with a ligature, one blow to the head left a severe bruise on the victim's left cheek and ear, and the other blow lacerated the victim's scalp and fractured the victim's skull, the evidence was sufficient to establish the commission of an aggravated battery, and to establish that the aggravated battery preceded the killing and was a separate and distinct act from the act causing death. Wade v. State, 258 Ga. 324, 368 S.E.2d 482 (1988), cert. denied, 502 U.S. 1060, 112 S. Ct. 941, 117 L. Ed. 2d 111 (1992); Wade v. State, 261 Ga. 105, 401 S.E.2d 701 (1991).

Evidence was sufficient to support a finding of aggravated battery as the defendant invited the victim to the defendant's apartment, attacked the victim without provocation, chased the victim through the apartment, and continued inflicting wounds until the victim died. Perkins v. State, 269 Ga. 791, 505 S.E.2d 16 (1998), cert. denied, 526 U.S. 1118, 119 S. Ct. 1768, 143 L. Ed. 2d 798 (1999).

Testimony of a state psychiatrist who examined the defendant is not irrelevant to the statutory aggravating circumstance of murder committed while the offender was engaged in the commission of another capital felony because the psychiatrist testifies in rebuttal to a defense witness who has previously testified as to the defendant's mental condition. Godfrey v. Francis, 251 Ga. 652, 308 S.E.2d 806 (1983), cert. denied, 466 U.S. 945, 104 S. Ct. 1930, 80 L. Ed. 2d 475 (1984), cert. dismissed, 487 U.S. 1264, 109 S. Ct. 27, 101 L. Ed. 2d 977 (1988).

Evidence supported death penalty for defendant found guilty of being the actual perpetrator of the murder of two unarmed, elderly men during the armed robbery of a convenience store. Wilson v. State, 250 Ga. 630, 300 S.E.2d 640, cert. denied, 464 U.S. 865, 104 S. Ct. 199, 78 L. Ed. 2d 174 (1983).

- Evidence supported findings that murder was committed while the defendant was engaged in commission of armed robbery and burglary. Beck v. State, 255 Ga. 483, 340 S.E.2d 9, cert. denied, 479 U.S. 871, 107 S. Ct. 242, 93 L. Ed. 2d 167 (1986), 495 U.S. 940, 110 S. Ct. 2194, 109 L. Ed. 2d 521 (1990).

Petitioner, a death row inmate, in a federal habeas petition argued the death sentence was unconstitutionally imposed because there was insufficient evidence to establish that the murder occurred during the commission of an armed robbery under O.C.G.A. § 16-8-41 for purposes of O.C.G.A. § 17-10-30(b)(2), but this argument was rejected because while the victim's wallet was never found, the wallet was missing, the petitioner had not yet cashed the petitioner's paycheck but nevertheless was in possession of a large sum of cash the night the murder occurred, the petitioner was in possession of an ATM card later determined to belong to the victim, and the petitioner attempted to use the ATM card to withdraw money while wearing a straw hat and sunglasses. Jefferson v. Terry, 490 F. Supp. 2d 1261 (N.D. Ga. 2007), aff'd in part and rev'd in part, 570 F.3d 1283 (11th Cir. Ga. 2009).

- Evidence was sufficient under O.C.G.A. § 17-10-35(c)(2) to find the statutory aggravating circumstances in order to impose the death sentence on the defendant after finding that the defendant committed, inter alia, malice murder and the jury found that the offense was committed by a person with a prior record of conviction for a capital felony and that the murder was committed while the defendant was engaged in the commission of another capital felony, pursuant to O.C.G.A. § 17-10-30(b)(1), (3), because the defendant stole a car, robbed a bank at gunpoint, shot a driver while trying to escape, and eventually surrendered. Nance v. State, 280 Ga. 125, 623 S.E.2d 470 (2005).

4. Outrageously or Wantonly Vile, Horrible, or Inhuman Circumstances

Paragraph (b)(7) constitutional.

- Structure of the Georgia death penalty is constitutional including the statutory aggravating circumstance established by O.C.G.A. § 17-10-30(b)(7). Mathis v. Zant, 744 F. Supp. 272 (N.D. Ga. 1990), vacated in part on other grounds, 975 F.2d 1493 (11th Cir. 1992).

Defendant abandoned the defendant's claim raised solely in an enumeration of error that the phrases "outrageously or wantonly vile, horrible or inhuman" and "depravity of mind" in O.C.G.A. § 17-10-30(b)(7) were facially unconstitutional because the defendant completely failed to support that claim with any argument or citation of authority in the defendant's brief; further, the claim was without merit as the United States Supreme Court and the Georgia Supreme Court rejected a facial challenge to the constitutionality of the statutory aggravating circumstance set forth in § 17-10-30(b)(7). Walker v. State, 281 Ga. 157, 635 S.E.2d 740 (2006), cert. denied, 552 U.S. 833, 128 S. Ct. 60, 169 L. Ed. 2d 50 (2007).

Aggravating circumstance described in O.C.G.A. § 17-10-30(b)(7) is not per se unconstitutional. Morgan v. Zant, 582 F. Supp. 1026 (S.D. Ga.), aff'd in part, rev'd in part on other grounds, 743 F.2d 775 (11th Cir. 1984), overruled on other grounds, 784 F.2d 1479 (11th Cir.), cert. denied, 478 U.S. 939, 107 S. Ct. 421, 93 L. Ed. 2d 371 (1986), 486 U.S. 1009, 108 S. Ct. 1739, 100 L. Ed. 2d 202 (1988).

Paragraph (b)(7) of this section was not unconstitutionally vague. Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2642, 53 L. Ed. 2d 251 (1977); Crowe v. State, 265 Ga. 582, 458 S.E.2d 799 (1995), cert. denied, 516 U.S. 1148, 116 S. Ct. 1021, 134 L. Ed. 2d 100 (1996).

Paragraph (b)(7) of O.C.G.A. § 17-10-30 was not inherently overbroad or vague and the court acted properly in reading this provision to the jury and instructing the jury that the jury "may consider that one aggravated factor if it is supported by the evidence." Cape v. Francis, 741 F.2d 1287 (11th Cir. 1984), cert. denied, 474 U.S. 911, 106 S. Ct. 281, 88 L. Ed. 2d 245 (1985).

O.C.G.A. § 17-10-30(b)(7) circumstance was not unconstitutionally vague or overbroad as applied to a defendant who viciously attacked the defendant's spouse with a knife, cutting the spouse five times in the spouse's face, once on the spouse's hand, another six times in the spouse's chest and back, and slashing the spouse's throat at least seven times so deeply as to nearly decapitate the spouse. Taylor v. State, 261 Ga. 287, 404 S.E.2d 255, cert. denied, 502 U.S. 947, 112 S. Ct. 393, 116 L. Ed. 2d 343 (1991).

O.C.G.A. § 17-10-30(b)(7) has two parts. First, the murder must be "outrageously or wantonly vile, horrible or inhuman." Second, the offense of murder must involve either torture, depravity of mind, or an aggravated battery to the victim (or a combination of these three elements). Black v. State, 261 Ga. 791, 410 S.E.2d 740 (1991), cert. denied, 506 U.S. 839, 113 S. Ct. 118, 121 L. Ed. 2d 74 (1992).

- Because the jury did not make a finding that the murder committed by the defendant was outrageously or wantonly vile, horrible, or inhuman, in compliance with the first component of the aggravating circumstance set forth in O.C.G.A. § 17-10-30(b)(7), the statutory aggravating circumstance imposed required vacating that factor; however, the defendant's death sentence was unaffected because the death sentence was supported by the jury's finding of three other statutory aggravating circumstances. Perkinson v. State, 279 Ga. 232, 610 S.E.2d 533, cert. denied, 546 U.S. 896, 126 S. Ct. 229, 163 L. Ed. 2d 214 (2005).

- Words "outrageous or wantonly vile, horrible or inhuman" are subject to common understanding and need no clarification. Conklin v. State, 254 Ga. 558, 331 S.E.2d 532, cert. denied, 474 U.S. 1038, 106 S. Ct. 606, 88 L. Ed. 2d 584 (1985).

All terms in O.C.G.A. § 17-10-30(b)(7) are words of ordinary significance which require no explication with the exception of "aggravated battery" which is a crime defined by statute. Gilreath v. State, 247 Ga. 814, 279 S.E.2d 650 (1981), cert. denied, 456 U.S. 984, 102 S. Ct. 2258, 72 L. Ed. 2d 862 (1982).

- Trial judge need not define any O.C.G.A. § 17-10-30(b)(7) term other than the phrase "aggravated battery." Morgan v. Zant, 582 F. Supp. 1026 (S.D. Ga.), aff'd in part, rev'd in part on other grounds, 743 F.2d 775 (11th Cir. 1984), overruled on other grounds, 784 F.2d 1479 (11th Cir.), cert. denied, 478 U.S. 939, 107 S. Ct. 421, 93 L. Ed. 2d 371 (1986), 486 U.S. 1009, 108 S. Ct. 1739, 100 L. Ed. 2d 202 (1988).

- Absent a request, depravity of mind need not be defined in the court's charge to the jury; however, if the court undertakes to do so the court should do so correctly. West v. State, 252 Ga. 156, 313 S.E.2d 67 (1984).

"Depravity of mind" is not catchall for cases when no other statutory aggravating circumstance is raised by the evidence. Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2642, 53 L. Ed. 2d 251 (1977); Johnson v. State, 242 Ga. 649, 250 S.E.2d 394 (1978).

"Depravity of mind" will not be permitted to become a catchall. Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 611 (1980).

- In defendant's capital murder trial, counsel was not ineffective for failing to call a forensic pathologist to counter the state's pathologist's testimony that the victim was alive from a gunshot wound when the victim was severely beaten, which supported two aggravating circumstances for the death penalty under O.C.G.A. § 17-10-30(b)(2), and (b)(7), because even if the victim was dead when beaten, that evidence would have supported a finding of depravity of mind. Terrell v. GDCP Warden, 744 F.3d 1255 (11th Cir. 2014).

Death penalty is restricted to those cases that lie at the core of statutory aggravating circumstances. Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2642, 53 L. Ed. 2d 251 (1977).

Upon sentence review, affirmance will be restricted to those cases which lie at the very core of this section. Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 611 (1980).

- Aggravating circumstance of paragraph (b)(7) of this section involved both the effect on the victim, viz., torture, or an aggravated battery; and the offender, viz., depravity of mind. As to both parties the test is that the acts were outrageously or wantonly vile, horrible, or inhuman. Harris v. State, 237 Ga. 718, 230 S.E.2d 1 (1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2642, 53 L. Ed. 2d 251 (1977).

It is not required that a trier of fact find the existence of each disjunctive phrase of the statute, only that at least one phrase of the first clause of the statute exists due to the existence of at least one phrase of the second clause of the statute. Fair v. State, 245 Ga. 868, 268 S.E.2d 316, cert. denied, 449 U.S. 986, 101 S. Ct. 407, 66 L. Ed. 2d 250 (1980).

- In determining whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance, the evidence must be sufficient to satisfy the first major component of the statutory aggravating circumstance and at least one subpart of the second component. Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 611 (1980); Ledford v. State, 264 Ga. 60, 439 S.E.2d 917 (1994), cert. denied, 513 U.S. 1085, 115 S. Ct. 740, 130 L. Ed. 2d 641 (1995).

Finding that a murder involved torture, depravity of mind, an aggravated battery, or some combination of those three involved only one aggravating circumstance. Carruthers v. State, 272 Ga. 306, 528 S.E.2d 217, cert. denied, 531 U.S. 934, 121 S. Ct. 321, 148 L. Ed. 2d 258 (2000), overruled on other grounds, Vergara v. State, 283 Ga. 175, 657 S.E.2d 863 (2008).

Trial court erred by merely reading the language of O.C.G.A. § 17-10-30(b)(7) to the jury without explaining the meaning of "aggravated battery", when a reasonable juror, if properly instructed, could very well have concluded that there was no aggravated battery in the case. Jones v. Kemp, 706 F. Supp. 1534 (N.D. Ga. 1989).

- Improper instruction telling the jury that the jury could find the O.C.G.A. § 17-10-30(b)(7) circumstance merely on a finding of "deficiency in moral sense and rectitude" rather than a finding of "utterly corrupt, perverted or immoral" did not require reversal, when the instructions on the other aggravating circumstances were proper, and the defendant did not show that the evidence was insufficient to find those circumstances. Buttrum v. Black, 721 F. Supp. 1268 (N.D. Ga. 1989), aff'd, 908 F.2d 695 (11th Cir. 1990).

Trial court's failure to instruct jury on element of armed robbery permitted the jury to exercise an impermissible "open-ended discretion", as a reasonable juror could have believed that although the defendant intended to take property from a store, the defendant did not intend to take property from the person of the murder victim. Jones v. Kemp, 706 F. Supp. 1534 (N.D. Ga. 1989).

- Since a jury's O.C.G.A. § 17-10-30(b)(7) verdict cannot be sustained if the verdict completely omits an essential element of the statutory aggravating circumstance, a jury's verdict, failing to find that the murder was "outrageously or wantonly vile, horrible, or inhuman," was insufficient, even though the jury did find depravity of mind and torture. Jarrell v. State, 261 Ga. 880, 413 S.E.2d 710 (1992).

- There is no requirement that the jury make a specific finding as to how the facts support O.C.G.A. § 17-10-30(b)(7). Rather, it is only required that the form of the verdict set forth the applicable statutory language. Jones v. Kemp, 706 F. Supp. 1534 (N.D. Ga. 1989).

Execution-style murder of unarmed and already wounded innocent man provided an adequate factual basis for a jury's finding an aggravating circumstance under O.C.G.A. § 17-10-30(b)(7). Jones v. Kemp, 706 F. Supp. 1534 (N.D. Ga. 1989).

Execution-style murder of security guard, an off-duty police officer investigating a disturbance, was an outrageously or wantonly vile, horrible, and inhuman murder. Davis v. State, 263 Ga. 5, 426 S.E.2d 844, cert. denied, 510 U.S. 950, 114 S. Ct. 396, 126 L. Ed. 2d 344 (1993).

- Imposition of the death penalty pursuant to this section does not constitute cruel and unusual punishment even though neither the court nor the jury is given standards to determine whether the offense for which the death penalty is being given is outrageously or wantonly vile, horrible, or inhuman in that the offense involved torture, depravity of mind, or an aggravated battery to the victim. Johnson v. State, 242 Ga. 649, 250 S.E.2d 394 (1978).

In determining whether the evidence shows depravity of mind, the age, and the physical characteristics of the victim may be considered. Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 611 (1980); Rivers v. State, 250 Ga. 303, 298 S.E.2d 1 (1982).

- When only facts occurring prior to death are relied upon to support a finding of torture or aggravated battery, the fact that the victim was tortured or was the victim of an aggravated battery will also support a finding of depravity of mind of the defendant. That is, a defendant who tortures the victim or subjects the victim to an aggravated battery before killing the victim can be found to have a depraved mind. Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 611 (1980).

- Defendant who mutilates or seriously disfigures the victim's body after death, or who commits a sex act upon the victim's body after death may be found to have a depraved mind, and such acts would be sufficient to show depravity of mind of the defendant within the meaning of this section. Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 611 (1980).

- If it cannot be determined whether the victim was subjected to an aggravated battery or torture before death, or to mutilation or disfigurement after death, because the exact time of death or the precise act causing death cannot be ascertained, the penalty of death nevertheless may be sustained on the basis of aggravated battery, serious physical abuse before death, or depravity of mind demonstrated after death. Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 611 (1980).

Even though the testimony was inconclusive as to whether the victim, who was shot, was alive when the victim's throat was cut, there was sufficient evidence to support a finding of aggravating circumstances under O.C.G.A. § 17-10-30(b)(2) and (b)(7). Drane v. State, 265 Ga. 255, 455 S.E.2d 27 (1995).

In order to constitute aggravated battery, bodily harm must occur before death. Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 611 (1980).

- Torture occurs when the victim is subjected to serious physical abuse before death. Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 611 (1980); Collins v. State, 246 Ga. 261, 271 S.E.2d 352 (1980), cert. denied, 449 U.S. 1103, 101 S. Ct. 990, 66 L. Ed. 2d 829 (1981); Cervi v. State, 248 Ga. 325, 282 S.E.2d 629 (1981), cert. denied, 456 U.S. 938, 102 S. Ct. 1995, 72 L. Ed. 2d 457 (1982); Cunningham v. State, 248 Ga. 558, 284 S.E.2d 390 (1981), cert. denied, 455 U.S. 1038, 102 S. Ct. 1741, 72 L. Ed. 2d 155 (1982); Mathis v. State, 249 Ga. 454, 291 S.E.2d 489 (1982); Jones v. State, 249 Ga. 605, 293 S.E.2d 708 (1982).

Torture also occurs when the victim is subjected to an aggravated battery. Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 611 (1980); Cunningham v. State, 248 Ga. 558, 284 S.E.2d 390 (1981), cert. denied, 455 U.S. 1038, 102 S. Ct. 1741, 72 L. Ed. 2d 155 (1982).

Torture occurs when the victim is subjected to serious physical abuse before death as when the victim dies from a slow but steady loss of blood a full two hours after being shot in the neck and abandoned by the defendant. Brooks v. State, 246 Ga. 262, 271 S.E.2d 172 (1980), cert. denied, 451 U.S. 921, 101 S. Ct. 2000, 68 L. Ed. 2d 312 (1981).

Because the victim, whose hands had been bound with wire, was raped and then shot at point blank range, the evidence supported the finding of depravity of mind on the part of the defendant and that the murder involved torture to the victim and was outrageously and wantonly vile. Johnson v. Zant, 249 Ga. 812, 295 S.E.2d 63 (1982), cert. denied, 459 U.S. 1228, 103 S. Ct. 1236, 75 L. Ed. 2d 469 (1983).

Defendant who tortures a victim before killing the victim can be found to have a depraved mind. Collins v. State, 246 Ga. 261, 271 S.E.2d 352 (1980), cert. denied, 449 U.S. 1103, 101 S. Ct. 900, 66 L. Ed. 2d 829 (1981); Jones v. State, 249 Ga. 605, 293 S.E.2d 708 (1982), cert. denied, 502 U.S. 832, 112 S. Ct. 107, 116 L. Ed. 2d 77 (1991).

Evidence for O.C.G.A. § 17-10-30(b)(7) depraved mind murder was sufficient as the defendant was shown to have stalked elementary school children; planned the defendant's crimes; abducted the eight-year-old victim as the victim was walking home from school; taped the victim's mouth shut; threatened to kill the victim; took the victim to a remote area; made the victim strip naked; forced the victim to watch as the defendant raped and forced other sex acts on the victim's friend; chased the victim as the victim tried to escape; and held the victim's head underwater where the victim struggled for several minutes before dying. Presnell v. State, 274 Ga. 246, 551 S.E.2d 723 (2001), cert. denied, 535 U.S. 1059, 122 S. Ct. 1921, 152 L. Ed. 2d 829 (2002).

Death penalty was properly imposed under O.C.G.A. § 17-10-30(b)(2), (7) after the defendant: (1) used the defendant's parent's relationship with a sick, elderly victim to gain access to the victim's house and belongings, steal the victim's checkbook, and forge the victim's checks; (2) plotted the victim's murder when the victim threatened to report the crime; (3) ambushed the victim in the victim's driveway, shot and wounded the victim, chased the victim, knocked the victim down, and shot the victim three more times while standing over the victim; (4) dragged the victim into the bushes, beat, and robbed the victim; and (5) had been convicted of prior crimes involving a calculated, planned murder and an armed robbery, an aggravated battery to the victim before death, or depravity of mind. Terrell v. State, 276 Ga. 34, 572 S.E.2d 595 (2002), cert. denied, 540 U.S. 835, 124 S. Ct. 88, 157 L. Ed. 2d 64 (2003).

Although the defendant could not be convicted of both malice murder and three counts of aggravated battery when the same actions by the defendant served as the basis for both the murder and the battery offenses, the jury was nevertheless authorized to find the statutory aggravating circumstances set forth in O.C.G.A. § 17-10-30(b)(2) and the aggravated battery portion of the (b)(7) circumstance because the victim's death was not instantaneous; likewise, the jury's finding of torture was supported by the evidence that the victim's death was not instantaneous but was preceded by serious sexual abuse, as well as the serious physical abuse that constituted the aggravated batteries. Furthermore, the shocking and vicious nature of the victim's murder by stomping and kicking authorized the jury to find that the murder was outrageously or wantonly vile, horrible, or inhuman; thus, the evidence was sufficient to support the jury's findings beyond a reasonable doubt of both the paragraph (b)(2) and (b)(7) statutory aggravating circumstances. Ledford v. State, 289 Ga. 70, 709 S.E.2d 239, cert. denied, 565 U.S. 1017, 132 S. Ct. 556, 181 L. Ed. 2d 401 (2011), overruled on other grounds by Willis v. State, 394 Ga. 686, 820 S.E.2d 640 (2018).

Physical abuse includes psychological abuse resulting in mental anguish to the victim in anticipation of physical harm. Brooks v. State, 246 Ga. 262, 271 S.E.2d 172 (1980), cert. denied, 451 U.S. 921, 101 S. Ct. 2000, 68 L. Ed. 2d 312 (1981); Brown v. Francis, 254 Ga. 83, 326 S.E.2d 735, cert. denied, 474 U.S. 865, 106 S. Ct. 186, 88 L. Ed. 2d 155 (1985).

Evidence of psychological abuse by the defendant to the victim before death if it is shown to have resulted in severe mental anguish to the victim in anticipation of physical harm may amount to serious physical abuse, that is, torture of the victim, and also will support a finding of depravity of mind of the defendant. Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 611 (1980); Rivers v. State, 250 Ga. 303, 298 S.E.2d 1 (1982).

- While the death of a victim who dies instantaneously with little or no forewarning does not involve torture or aggravated battery, evidence of psychological abuse by the defendant to the victim prior to death, if it is shown to have resulted in severe mental anguish to the victim in anticipation of physical harm, may amount to serious physical abuse, that is, torture of the victim, and will support a finding of depravity of mind of the defendant. Dampier v. State, 245 Ga. 882, 268 S.E.2d 349, cert. denied, 449 U.S. 938, 101 S. Ct. 337, 66 L. Ed. 2d 161 (1980).

- Evidence that the defendant, having shot and killed his estranged wife and her boyfriend, walked his five-year-old child through her mother's blood and left her screaming in a truck overlooking the murder scene while he drank beer at a neighbor's house, was sufficient to support the finding of depravity of mind. McMichen v. State, 265 Ga. 598, 458 S.E.2d 833 (1995).

Physical abuse includes sexual abuse for purposes of proving torture under this section. Brooks v. State, 246 Ga. 262, 271 S.E.2d 172 (1980), cert. denied, 451 U.S. 921, 101 S. Ct. 2000, 68 L. Ed. 2d 312 (1981).

Serious sexual abuse may be found to constitute serious physical abuse. Hance v. State, 245 Ga. 856, 268 S.E.2d 339, cert. denied, 449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 611 (1980); Collins v. State, 246 Ga. 261, 271 S.E.2d 352 (1980), cert. denied, 449 U.S. 1103, 101 S. Ct. 900, 66 L. Ed. 2d 829 (1981), 449 U.S. 1103, 101 S. Ct. 990, 66 L. Ed. 2d 829 (1981); Rivers v. State, 250 Ga. 303, 298 S.E.2d 1 (1982).

- When only facts occurring prior to death are relied upon, the fact that the victim was tortured will support a finding of depravity of mind. Brooks v. State, 246 Ga. 262, 271 S.E.2d 172 (1980), cert. denied, 451 U.S. 921, 101 S. Ct. 2000, 68 L. Ed. 2d 312 (1981).

Evidence amply supported the statutory aggravating circumstance of torture and depravity of mind as the victim, an elderly woman weighing less than 100 pounds, was raped so forcefully that she received potentially fatal injuries to her vaginal tract, was brutally beaten on the head so hard that she suffered a potentially fatal brain hemorrhage, and kicked in the chest hard enough to break her sternum and several ribs and to cause potentially fatal internal bleeding, and was then strangled to death. Allen v. State, 253 Ga. 390, 321 S.E.2d 710 (1984), cert. denied, 470 U.S. 1059, 105 S. Ct. 1774, 84 L. Ed. 2d 834 (1985).

Defendant convicted of two capital felonies can receive death penalty for both under this section. Johnson v. State, 242 Ga. 649, 250 S.E.2d 394 (1978).

After raping, robbing, and binding victim, defendant put a bullet through victim's head, the sentence of death imposed is not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Gates v. State, 244 Ga. 587, 261 S.E.2d 349 (1979), cert. denied, 445 U.S. 938, 100 S. Ct. 1332, 63 L. Ed. 2d 772 (1980).

Execution-style murder of unarmed and wounded armed robbery victim was an outrageously or wantonly vile, horrible, and inhuman murder. Jones v. State, 249 Ga. 605, 293 S.E.2d 708 (1982), cert. denied, 502 U.S. 832, 112 S. Ct. 107, 116 L. Ed. 2d 77 (1991).

- Finding of strangulation alone does not, as a matter of law, establish torture of the victim or depravity of mind on the part of the defendant so as to constitute an aggravating circumstance under O.C.G.A. § 17-10-30(b)(7). Baxter v. State, 254 Ga. 538, 331 S.E.2d 561, cert. denied, 474 U.S. 935, 106 S. Ct. 269, 88 L. Ed. 2d 275 (1985), reh'g. denied, 498 U.S. 1041, 111 S. Ct. 714, 112 L. Ed. 2d 703 (1991).

Post-mortem mutilation of the victim's body may show depravity of mind sufficient to support a finding that the "offense of murder" was "outrageously or wantonly vile, horrible or inhuman." Conklin v. State, 254 Ga. 558, 331 S.E.2d 532, cert. denied, 474 U.S. 1038, 106 S. Ct. 606, 88 L. Ed. 2d 584 (1985).

Verdict of "torture, depravity of mind, or aggravated battery" was not insufficiently definitive as, under the circumstances, each of the three components of the finding described essentially the same conduct. Alderman v. State, 254 Ga. 206, 327 S.E.2d 168, cert. denied, 474 U.S. 911, 106 S. Ct. 282, 88 L. Ed. 2d 245 (1985), rehrg. denied, 498 U.S. 1041, 111 S. Ct. 714, 112 L. Ed. 2d 703 (1991).

- O.C.G.A. § 17-10-30(b)(7) was not applied to the defendant, who raped his victim before murdering her, in violation of his Eighth Amendment rights. Johnson v. Kemp, 759 F.2d 1503 (11th Cir. 1985).

- See Conklin v. State, 254 Ga. 558, 331 S.E.2d 532, cert. denied, 474 U.S. 1038, 106 S. Ct. 606, 88 L. Ed. 2d 584 (1985); Perkins v. State, 269 Ga. 791, 505 S.E.2d 16 (1998), cert. denied, 526 U.S. 1118, 119 S. Ct. 1768, 143 L. Ed. 2d 798 (1999).

Evidence showed that the defendant severely beat the victim in the face with a heavy stick, and then killed the victim by crushing the victim's skull with a log after the victim had fallen to the ground, thus, the evidence supported the jury's finding that the offense of murder was outrageously or wantonly vile, horrible, or inhuman in that it involved an aggravated battery to the victim. Jefferson v. State, 256 Ga. 821, 353 S.E.2d 468, cert. denied, 484 U.S. 872, 108 S. Ct. 203, 98 L. Ed. 2d 154 (1987), 511 U.S. 1046, 114 S. Ct. 1577, 128 L. Ed. 2d 220 (1994).

Evidence supported the jury's O.C.G.A. § 17-10-30(b)(7) finding. Childs v. State, 257 Ga. 243, 357 S.E.2d 48, cert. denied, 484 U.S. 970, 108 S. Ct. 467, 98 L. Ed. 2d 406 (1987).

Application of O.C.G.A. § 17-10-30(b)(7) aggravating circumstance held not unconstitutional in view of Georgia Supreme Court's analysis in review of death sentence. Davis v. Kemp, 829 F.2d 1522 (11th Cir. 1987), cert. denied, 485 U.S. 929, 108 S. Ct. 1099, 99 L. Ed. 2d 262 (1988).

There was sufficient evidence to support a finding of the statutory aggravating circumstances in O.C.G.A. § 17-10-30(b)(7), namely that the offense was outrageously or wantonly vile, horrible, or inhumane in that it involved torture, depravity of mind, or an aggravated battery to the victim. Alderman v. Zant, 22 F.3d 1541 (11th Cir.), cert. denied, 513 U.S. 1061, 115 S. Ct. 673, 130 L. Ed. 2d 606 (1994).

Defendant committed an aggravated battery against the victim by inflicting a non-fatal gunshot wound to the victim's arm and shoulder, leading the victim into a back bedroom as the victim's sister approached the house, holding the victim alive as the victim's sister asked where the victim was and then murdered the victim, fatally shooting the victim four more times, and finally obtaining another weapon from the codefendant's automobile and shooting the victim again; those facts authorized the jury's finding of the O.C.G.A. § 17-10-30(b)(7) statutory aggravating circumstance regarding the victim's murder and the imposition of the death penalty under Georgia law and under the Constitution of the United States. Lucas v. State, 274 Ga. 640, 555 S.E.2d 440 (2001), cert. denied, 537 U.S. 840, 123 S. Ct. 163, 154 L. Ed. 2d 62 (2002).

Defendant's life without parole sentences for two murders were supported by the existence of the aggravating circumstance set out in O.C.G.A. § 17-10-30(b)(7) because: (1) the defendant murdered one victim for the specific purpose of causing emotional distress to the defendant's former wife; (2) the defendant shot a stranger, shot into the home of two other strangers, and murdered another stranger; and (3) the defendant left notes at all the scenes for the purpose of establishing the illusion of an unknown killer working in the area so that when the defendant achieved the ultimate goal of shooting the former wife, suspicion would be diverted from the defendant. Lewis v. State, 279 Ga. 464, 614 S.E.2d 779 (2005).

Evidence supported the jury's finding of an aggravated battery for purposes of the death penalty under O.C.G.A. § 17-10-30(b)(7) after finding petitioner inmate guilty of felony murder because the evidence showed that the petitioner severely beat the victim in the face with a heavy stick, and then finished the victim off by crushing the victim's skull with a log after the victim fell to the ground. Jefferson v. Terry, 490 F. Supp. 2d 1261 (N.D. Ga. 2007), aff'd in part and rev'd in part, 570 F.3d 1283 (11th Cir. Ga. 2009).

Kidnapping of a murder victim's ten-year-old child along with the victim, the fact that the child witnessed the victim plead for the victim's life, and the fact that the child witnessed the murder, was sufficient to enable the jury to find beyond a reasonable doubt that the murder was outrageously or wantonly vile, horrible, or inhuman. Dalton v. State, 282 Ga. 300, 647 S.E.2d 580 (2007).

Evidence adduced at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt the existence of statutory aggravating circumstances because the jury found the existence of the following statutory aggravating circumstances beyond a reasonable doubt; the murder was committed while the defendant was engaged in the commission of the capital felony of armed robbery, and the murder was outrageously or wantonly vile, horrible, or inhuman in that the murder involved depravity of mind: (1) the defendant initially attacked the victim, who was disabled, in the confined area of a bathroom, where the defendant struck the victim multiple times shortly after the victim emerged from the shower; (2) the defendant continued the attack on the victim even as the victim fell to the floor; (3) the evidence showed that the defendant struck the victim in the head with a hammer and a metal stool at least 12 to 14 times; and (4) the defendant acted for the purpose of obtaining money the victim had just received from cashing the victim's disability check. Arrington v. State, 286 Ga. 335, 687 S.E.2d 438 (2009), cert. denied, 131 S. Ct. 112, 178 L. Ed. 2d 69 (U.S. 2010).

Trial court did not err in sentencing the defendant to death for murder because the evidence supported the trial court's finding beyond a reasonable doubt that the murder was outrageously or wantonly vile, horrible, or inhuman in that the murder involved torture to the victim and the depravity of mind of the defendant; the defendant pled guilty to the offenses of cruelty to children, aggravated sodomy, and enticing a child for indecent purposes, and the state presented evidence that the defendant took the three-year-old victim from the defendant's home to an abandoned trailer late at night for the purpose of having sex with the defendant. Loyd v. State, 288 Ga. 481, 705 S.E.2d 616, cert. dismissed, 565 U.S. 971, 132 S. Ct. 474, 181 L. Ed. 2d 309 (U.S. 2011).

- Death sentence imposed on the defendant was not the result of passion, prejudice, or any other arbitrary factor in violation of O.C.G.A. § 17-10-35(c)(1), nor was the death sentence excessive or disproportionate under § 17-10-35(c)(3); considering the evidence that the defendant choked and stabbed four female victims to death, that the defendant attempted to kill four other female victims, and that the murder in the instant case involved the O.C.G.A. § 17-10-30(b)(7) aggravating factor relating to the fact that the murder was vile and involved a kidnapping, the sentence was proportional to similar cases and was not the result of any arbitrary factor. Lewis v. State, 279 Ga. 756, 620 S.E.2d 778 (2005), cert. denied, 547 U.S. 1116, 126 S. Ct. 1917, 164 L. Ed. 2d 671 (2006).

- Because the O.C.G.A. § 17-10-30(b)(7) statutory aggravating circumstance was not used as an unlawful "catchall" justification for the death penalty, the trial court properly gave an instruction regarding that statutory aggravating circumstance recommended by the supreme court. Stinski v. State, 286 Ga. 839, 691 S.E.2d 854, cert. denied, 562 U.S. 1011, 131 S. Ct. 522, 178 L. Ed. 2d 385 (2010).

5. Murder of Peace Officer, Corrections Employee, or Fireman for Purpose of Avoiding, Arrest or Custody

Knowledge that victim was peace officer or other official.

- O.C.G.A. § 17-10-30(b)(8) statutory aggravating circumstance does not require knowledge on the part of the defendant that the victim was a peace officer or other designated official engaged in the performance of official duties. Fair v. State, 284 Ga. 165, 664 S.E.2d 227 (2008).

- Murder committed for the purpose of preventing a lawful arrest and murder committed against a peace officer while engaged in the performance of the officer's official duties were not necessarily identical, and therefore did not fall within the inclusion provisions of former Code 1933, §§ 26-505 and 26-506 (see O.C.G.A. §§ 16-1-6 and16-1-7), as these sections did not apply to aggravating circumstances but to crimes. Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1346, 63 L. Ed. 2d 781 (1980), overruled on other grounds, Satterfield v. State, 248 Ga. 538, 285 S.E.2d 3 (1981); City of Atlanta v. First Nat'l Bank, 246 Ga. 424, 271 S.E.2d 821 (1980).

- Death penalty was warranted after the jury found the following statutory aggravating circumstances to exist beyond a reasonable doubt: (1) the offense of murder was committed against a peace officer while engaged in the performance of the officer's official duties; and (2) the offense of murder was committed by a person in the lawful custody of a peace officer. Wallace v. State, 248 Ga. 255, 282 S.E.2d 325 (1981), cert. denied, 455 U.S. 927, 102 S. Ct. 1291, 71 L. Ed. 2d 471 (1982).

- Death penalty was warranted under O.C.G.A. § 17-10-30 since the defendant shot execution-style an off-duty police officer in the official performance of the officer's duties as a security guard. Davis v. State, 263 Ga. 5, 426 S.E.2d 844, cert. denied, 510 U.S. 950, 114 S. Ct. 396, 126 L. Ed. 2d 344 (1993).

- Imposition of the death sentence and the jury's finding of the aggravators that the offense was committed against a police officer in the performance of the officer's official duties and that the offense was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest were supported by evidence that the defendant shot and killed a police officer during an investigatory stop to prevent the officer from discovering that the defendant was a convicted felon in possession of a weapon, as well as by the defendant's admissions that the defendant shot the officer in the face and again in the back of the head when the defendant heard the officer moan. Henry v. State, 269 Ga. 851, 507 S.E.2d 419 (1998), cert. denied, 526 U.S. 1118, 119 S. Ct. 1768, 143 L. Ed. 2d 798 (1999).

Defendant's death sentence was upheld since the committed crimes of malice murder and aggravated battery on a peace officer were committed while the defendant was engaged in the commission of an aggravated battery and the murder was committed against a peace officer while the officer was engaged in the performance of official duties. Lawler v. State, 276 Ga. 229, 576 S.E.2d 841, cert. denied, 540 U.S. 934, 124 S. Ct. 356, 157 L. Ed. 2d 243 (2003).

O.C.G.A. § 17-10-30(b)(6) is not unconstitutionally vague. Castell v. State, 250 Ga. 776, 301 S.E.2d 234 (1983).

- If the defendant was not hired by another person, i.e., was not that person's agent, the death penalty cannot be upheld based on O.C.G.A. § 17-10-30(b)(6). Whittington v. State, 252 Ga. 168, 313 S.E.2d 73 (1984).

Terms "agent" and "employee," as used in O.C.G.A. § 17-10-30(b)(6), should be given their common, everyday meanings; an "employee" is one who is hired by another and an "agent" is one who acts for another. Castell v. State, 250 Ga. 776, 301 S.E.2d 234 (1983).

- Legislature intended that O.C.G.A. § 17-10-30(b)(6) be applicable to murders for hire and that the statute be applicable to both the hirer and the one hired. Castell v. State, 250 Ga. 776, 301 S.E.2d 234 (1983).

Defendant who caused or directed a follower or lackey to commit murder was subject to the application of O.C.G.A. § 17-10-30(b)(6), even if the murder was not for hire. Mize v. State, 269 Ga. 646, 501 S.E.2d 219 (1998), cert. denied, 525 U.S. 1078, 119 S. Ct. 817, 142 L. Ed. 2d 676 (1999).

7. Great Risk of Death to More than One Person

Defining terms for jury instruction.

- Defining the terms "knowingly" and "great risk" in an instruction on the O.C.G.A. § 17-10-30(b)(3) circumstance was not required. Philpot v. State, 268 Ga. 168, 486 S.E.2d 158 (1997), cert. denied, 522 U.S. 1054, 118 S. Ct. 706, 139 L. Ed. 2d 648 (1998).

- O.C.G.A. § 17-10-30(b)(3) aggravating circumstance was not meant to apply to a case where the defendant used a shotgun to shoot the victim, who was lying face down on the ground, in the head. Harrison v. State, 257 Ga. 528, 361 S.E.2d 149 (1987), cert. denied, 485 U.S. 982, 108 S. Ct. 1281, 99 L. Ed. 2d 492 (1988).

- Evidence that the defendant fired several shots into a crowded night club was sufficient to show that the defendant knowingly created a great risk of death to more than one person in a public place. Philpot v. State, 268 Ga. 168, 486 S.E.2d 158 (1997), cert. denied, 522 U.S. 1054, 118 S. Ct. 706, 139 L. Ed. 2d 648 (1998).

RESEARCH REFERENCES

Am. Jur. 2d.

- 21A Am. Jur. 2d, Criminal Law, §§ 856 et seq., 864 et seq.

- 24 C.J.S., Criminal Procedure and Rights of the Accused, § 2324 et seq.

- Constitutionality of statute which makes specified punishment or penalty mandatory and permits no exercise of discretion on part of court or jury, 83 A.L.R. 1362.

Furnishing or reading instructions to jury, in jury room, after retirement, as error, 96 A.L.R. 899.

Propriety and prejudicial effect of sending written instructions with retiring jury in criminal case, 91 A.L.R.3d 382.

Sufficiency of allegations or evidence of serious bodily injury to support charge of aggravated degree of rape, sodomy, or other sexual abuse, 25 A.L.R.4th 1213.

Admissibility of expert testimony as to appropriate punishment for convicted defendant, 47 A.L.R.4th 1069.

Sufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that murder was heinous, cruel, depraved, or the like - post-Gregg cases, 63 A.L.R.4th 478.

Sufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that murder was committed to avoid arrest or prosecution, to effect escape from custody, to hinder governmental function or enforcement of law, and the like - post-Gregg cases, 64 A.L.R.4th 755.

Sufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that in committing murder, defendant created risk of death or injury to more than one person, to many persons, and the like - post-Gregg cases, 64 A.L.R.4th 837.

Sufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that defendant was previously convicted of or committed other violent offense, had history of violent conduct, posed continuing threat to society, and the like - post-Gregg cases, 65 A.L.R.4th 838.

Sufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that murder was committed for pecuniary gain, as consideration or in expectation of receiving something of monetary value, and the like - post-Gregg cases, 66 A.L.R.4th 417.

Sufficiency of evidence, for death penalty purposes, to establish statutory aggravating circumstance that murder was committed in course of committing, attempting, or fleeing from other offense, and the like - post-Gregg cases, 67 A.L.R.4th 887.

Sufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that defendant committed murder while under sentence of imprisonment, in confinement or correctional custody, and the like - post-Gregg cases, 67 A.L.R.4th 942.

Application of death penalty to nonhomicide cases, 62 A.L.R.5th 121.

Application of fair warning requirement of due process clause to state death penalty proceedings premised upon retroactive application of case law, 93 A.L.R.6th 391.

Validity, construction, and operation of Federal Death Penalty Act, 18 U.S.C.A. § 3591 et seq., 195 A.L.R. Fed. 1