2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 10 - Sentence and Punishment
Article 2 - Death Penalty Generally
§ 17-10-35. Review of Death Sentences by Supreme Court; Forwarding of Record and Transcript; Scope of Review; Written Briefs and Oral Argument; Similar Cases to Be Included in Decision; Direct Appeal to Be Consolidated With Sentence Review

1. Whenever the death penalty is imposed, upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the Supreme Court of Georgia. The clerk of the trial court, within ten days after receiving the transcript, shall transmit the entire record and transcript to the Supreme Court together with a notice prepared by the clerk and a report prepared by the trial judge. The notice shall set forth the title and docket number of the case, the name of the defendant and the name and address of his attorney, a narrative statement of the judgment, the offense, and the punishment prescribed. The report shall be in the form of a standard questionnaire prepared and supplied by the Supreme Court.
2. The Supreme Court shall consider the punishment as well as any errors enumerated by way of appeal.
3. With regard to the sentence, the court shall determine:
   1. Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;
   2. Whether, in cases other than treason or aircraft hijacking, the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in subsection (b) of Code Section 17-10-30; and
   3. Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
4. Both the defendant and the state shall have the right to submit briefs within the time provided by the court and to present oral argument to the court.
5. The court shall include in its decision a reference to those similar cases which it took into consideration. In addition to its authority regarding correction of errors, the court, with regard to review of death sentences, shall be authorized to:
   1. Affirm the sentence of death; or
   2. Set the sentence aside and remand the case for resentencing by the trial judge based on the record and argument of counsel. The records of those similar cases referred to by the Supreme Court in its decision and the extracts prepared as provided for in subsection (a) of Code Section 17-10-37 shall be provided to the resentencing judge for his consideration.
6. The sentence review shall be in addition to direct appeal, if taken, and the review and appeal shall be consolidated for consideration. The court shall render its decision on legal errors enumerated, the factual substantiation of the verdict, and the validity of the sentence.

(Code 1933, § 27-2537, enacted by Ga. L. 1973, p. 159, § 4.)

- Service of notice of appeal, enumeration of errors, briefs, and motions where capital crime involved, Rules of the Supreme Court of the State of Georgia, Rule 44.

Unified appeal, review proceedings, Uniform Superior Court Rules, Rule 34.5.

- For article, "Toward a Perspective on the Death Penalty Cases," see 27 Emory L.J. 469 (1978). For article surveying judicial developments in Georgia Criminal Law, see 31 Mercer L. Rev. 59 (1979). For article, "The Georgia Bill of Rights: Dead or Alive?," see 34 Emory L.J. 341 (1985). For article, "Death Penalty Law," see 53 Mercer L. Rev. 233 (2001). 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 annual survey of death penalty law, see 58 Mercer L. Rev. 111 (2006). For annual survey on death penalty, see 65 Mercer L. Rev. 93 (2013). For note, "Reviewing the Georgia Supreme Court's Efforts at Proportionality Review," see 39 Ga. L. Rev. 631 (2005). For note, "A Promise Unfulfilled: Challenges to Georgia's Death Penalty Statute Post Furman," see 33 Ga. St. U.L. Rev. 839 (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 criticizing inadequate standards and nebulous measurements for review under Georgia death penalty statute, in light of Colby v. State, 231 Ga. 829, 204 S.E.2d 612 (1974), see 26 Mercer L. Rev. 331 (1974).

ANALYSIS

• General Consideration
• Factors Reviewed by Court

General Consideration

Constitutionality.

- This section was not unconstitutional. Young v. State, 237 Ga. 852, 230 S.E.2d 287 (1976), cert. denied, 476 U.S. 1123, 106 S. Ct. 1991, 90 L. Ed. 2d 672 (1986).

This section 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).

As to constitutionality, see 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); 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); 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); McMichen v. State, 265 Ga. 598, 458 S.E.2d 833 (1995).

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

Habeas corpus petitioner failed to assert in the original petition, the amended petition, or the post-hearing brief a constitutional or statutory challenge to the Supreme Court of Georgia's method of proportionality review as provided in O.C.G.A. § 17-10-35(c); therefore, the petitioner's challenge was waived. Hall v. Lee, 286 Ga. 79, 684 S.E.2d 868 (2009).

- Although the defendant wrote to the trial court asking that the defendant's appeal "be stopped," the Supreme Court must review a death penalty case under O.C.G.A. § 17-10-35. Patillo v. State, 258 Ga. 255, 368 S.E.2d 493, cert. denied, 488 U.S. 948, 109 S. Ct. 378, 102 L. Ed. 2d 367 (1988).

- Georgia Supreme Court's new approach of not automatically considering sufficiency sua sponte in non-death penalty cases was held to begin with cases docketed to the term of court that begins in December 2020, and the Court's new approach did not preclude the Court from exercising the Court's discretion to consider sufficiency sua sponte when specific circumstances warrant such review. Davenport v. State, Ga. , 846 S.E.2d 83 (2020).

- This section did not relate to the alternatives available to a defendant when a defendant is called upon to enter a plea but instead concerns the standard to be used by the Supreme Court in reviewing the death sentence, regardless of whether the sentence was imposed after a guilty or not guilty plea. Ross v. State, 233 Ga. 361, 211 S.E.2d 356 (1974), cert. denied, 428 U.S. 910, 96 S. Ct. 3222, 49 L. Ed. 2d 1217 (1976).

- Supreme Court's statutory duty to ensure that the sentence of death has not been imposed due to passion, prejudice, or other arbitrary factor, a duty applicable only in the review of cases in which the death sentence has been imposed, is the basis for the court's decision to expressly limit to death penalty cases the exception to the appellate practice of declining to review improper argument contentions which were not brought to the attention of the trial court. Metts v. State, 270 Ga. 481, 511 S.E.2d 508 (1999).

Under the review required by O.C.G.A. § 17-10-35(c)(1) in death penalty cases, even if improper arguments have not been timely objected to at trial, reversal is required if there was a reasonable probability that the improper arguments changed the jury's exercise of discretion in choosing between life imprisonment or death. Ford v. Tate, 307 Ga. 383, 835 S.E.2d 198 (2019).

- Nothing in this section foreclosed the Supreme Court during the course of its independent review from examining nonappealed cases and cases in which the defendant pled guilty to a lesser offense. Ross v. State, 233 Ga. 361, 211 S.E.2d 356 (1974), cert. denied, 428 U.S. 910, 96 S. Ct. 3222, 49 L. Ed. 2d 1217 (1976).

- Questionnaire supplied by Supreme Court to superior court judges under this section, which called for subjective evaluation of the defendant's mental and physical state, and of the evidence was required to be completed by the trial court judge, not by the defense attorney. Greene v. State, 240 Ga. 804, 242 S.E.2d 587 (1978).

- Duty of the Supreme Court to review the record to determine whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor in no way relieves counsel of diligence on behalf of a client. 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).

- Duty of the state is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse the defendant's conviction, but only to assure the indigent defendant an adequate opportunity to present the defendant's claims fairly in the context of the state's appellate process. Ross v. State, 233 Ga. 361, 211 S.E.2d 356 (1974), cert. denied, 428 U.S. 910, 96 S. Ct. 3222, 49 L. Ed. 2d 1217 (1976).

For rationale behind reporting of voir dire in capital cases, see State v. Graham, 246 Ga. 341, 271 S.E.2d 627 (1980).

- 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 733 (1984).

- Federal habeas court should not undertake a review of the state Supreme Court's proportionality review and, in effect, "get out the record" to see if the state court's findings of fact, their conclusion based on a review of similar cases, was supported by the "evidence" in similar cases. Its review remains confined to whether the state sentencing procedure both on its face and as applied violates the Eighth and Fourteenth Amendments. 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 733 (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).

- See Jones v. State, 249 Ga. 605, 293 S.E.2d 708 (1982); 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); Johnson v. State, 271 Ga. 375, 519 S.E.2d 221 (1999), cert. denied, 528 U.S. 1172, 120 S. Ct. 1199, 145 L. Ed. 2d 1102 (2000); Gulley v. State, 271 Ga. 337, 519 S.E.2d 655 (1999), cert. denied, 528 U.S. 1172, 120 S. Ct. 1199, 145 L. Ed. 2d 1102 (2000); Drane v. State, 271 Ga. 849, 523 S.E.2d 301 (1999), cert. denied, 531 U.S. 853, 121 S. Ct. 131, 148 L. Ed. 2d 84 (2000); Pace v. State, 271 Ga. 829, 524 S.E.2d 490 (1999), cert. denied, 531 U.S. 890, 121 S. Ct. 101, 148 L. Ed. 2d 60 (2000); Holsey v. State, 271 Ga. 856, 524 S.E.2d 473 (1999), cert. denied, 530 U.S. 1246, 120 S. Ct. 2695, 147 L. Ed. 2d 966 (2000); Nance v. State, 272 Ga. 217, 526 S.E.2d 560, cert. denied, 531 U.S. 950, 121 S. Ct. 353, 148 L. Ed. 2d 284 (2000); King v. State, 273 Ga. 258, 539 S.E.2d 783 (2000), cert. denied, 536 U.S. 957, 122 S. Ct. 2659, 153 L. Ed. 2d 834 (2002); Esposito v. State, 273 Ga. 183, 538 S.E.2d 55 (2000), cert denied, 533 U.S. 935, 121 S. Ct. 2564, 150 L. Ed. 2d 728 (2001).

Trial court did not err in sentencing the defendant to death for murder because death was not excessive or disproportionate punishment within the meaning of Georgia law and was not unconstitutional; the sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor, the evidence presented at the defendant's sentencing trial was clearly sufficient to authorize a rational trier of fact to find beyond a reasonable doubt the existence of each of the statutory aggravating circumstances found in the defendant's case, the defendant's crimes could be called "premeditated" because the defendant already knew what the defendant was going to do when the defendant took the victim away from home. 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 was supported by the jury's finding beyond a reasonable doubt that the murders were committed during a burglary and were outrageously or wantonly vile, horrible, or inhuman in that they involved torture, depravity of mind, and an aggravated battery against the victims. Rice v. State, 292 Ga. 191, 733 S.E.2d 755 (2012), overruled on other grounds by Willis v. State, 304 Ga. 686, 820 S.E.2d 640 (2018), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).

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).

- State trial court's comment appearing in a standard post-conviction report that the defendant's nephew, represented by the same counsel as the defendant, testified against the defendant under a grant of immunity was not entitled to a presumption of correctness because this material fact was not adequately developed before the trial court. Burden v. Zant, 975 F.2d 771 (11th Cir. 1992), rev'd on other grounds, 510 U.S. 132, 114 S. Ct. 654, 126 L. Ed. 2d 611 (1994).

- Criminal defendant may waive the defendant's statutory right to appeal a conviction in return for the state's waiver of the right to seek the death penalty. Thomas v. State, 260 Ga. 262, 392 S.E.2d 520 (1990).

Absence of a notice of appeal was not fatal to the defendant's appeal in a case involving imposition of the death penalty. Lance v. State, 275 Ga. 11, 560 S.E.2d 663, cert. denied, 537 U.S. 1050, 123 S. Ct. 620, 154 L. Ed. 2d 525 (2002), overruled on other grounds by Willis v. State, 304 Ga. 686, 820 S.E.2d 640 (2018).

- 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).

Cited in Coley v. State, 231 Ga. 829, 204 S.E.2d 612 (1974); House v. State, 232 Ga. 140, 205 S.E.2d 217 (1974); Hooks v. State, 233 Ga. 149, 210 S.E.2d 668 (1974); McCorquodale v. State, 233 Ga. 369, 211 S.E.2d 577 (1974); Moore v. State, 233 Ga. 861, 213 S.E.2d 829 (1975); Owens v. State, 233 Ga. 869, 214 S.E.2d 173 (1975); 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); Berryhill v. State, 235 Ga. 549, 221 S.E.2d 185 (1975); Tamplin v. State, 235 Ga. 774, 221 S.E.2d 455 (1975); Mason v. State, 236 Ga. 46, 222 S.E.2d 339 (1976); Goodwin v. State, 236 Ga. 339, 223 S.E.2d 703 (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); Birt v. State, 236 Ga. 815, 225 S.E.2d 248 (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); Dungee v. State, 237 Ga. 218, 227 S.E.2d 746 (1976); Hill v. State, 237 Ga. 794, 229 S.E.2d 737 (1976); Dix v. State, 238 Ga. 209, 232 S.E.2d 47 (1977); Douthit v. State, 239 Ga. 81, 235 S.E.2d 493 (1977); Young v. State, 239 Ga. 53, 236 S.E.2d 1 (1977); Meeks v. State, 142 Ga. App. 452, 236 S.E.2d 119 (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); Peek v. State, 239 Ga. 422, 238 S.E.2d 12 (1977); Bowden v. State, 239 Ga. 821, 238 S.E.2d 905 (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); Stanley v. State, 240 Ga. 341, 241 S.E.2d 173 (1977); Thomas v. State, 240 Ga. 393, 242 S.E.2d 1 (1977); Gibson v. Jackson, 443 F. Supp. 239 (M.D. Ga. 1977); Moore v. State, 240 Ga. 807, 243 S.E.2d 1 (1978); Spraggins v. State, 240 Ga. 759, 243 S.E.2d 20 (1978); Lamb v. State, 241 Ga. 10, 243 S.E.2d 59 (1978); Presnell v. State, 241 Ga. 49, 243 S.E.2d 496 (1978); Dungee v. Hopper, 241 Ga. 236, 244 S.E.2d 849 (1978); Morgan v. State, 241 Ga. 485, 246 S.E.2d 198 (1978); Spivey v. State, 241 Ga. 477, 246 S.E.2d 288 (1978); Bowen v. State, 241 Ga. 492, 246 S.E.2d 322 (1978); Alderman v. State, 241 Ga. 496, 246 S.E.2d 642 (1978); Davis v. State, 241 Ga. 376, 247 S.E.2d 45 (1978); Westbrook v. State, 242 Ga. 151, 249 S.E.2d 524 (1978); Sprouse v. State, 242 Ga. 831, 252 S.E.2d 173 (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); Willis v. State, 243 Ga. 185, 253 S.E.2d 70 (1979); Godfrey v. State, 243 Ga. 302, 253 S.E.2d 710 (1979); Collins v. State, 243 Ga. 291, 253 S.E.2d 729 (1979); Amadeo v. State, 243 Ga. 627, 255 S.E.2d 718 (1979); Jones v. State, 243 Ga. 820, 256 S.E.2d 907 (1979); Legare v. State, 243 Ga. 744, 257 S.E.2d 247 (1979); Hamilton v. State, 244 Ga. 145, 259 S.E.2d 81 (1979); Bowden v. Zant, 244 Ga. 260, 260 S.E.2d 465 (1979); Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979); Brooks v. State, 244 Ga. 574, 261 S.E.2d 379 (1979); Tucker v. State, 344 Ga. 721, 261 S.E.2d 635 (1979); Tucker v. State, 245 Ga. 68, 263 S.E.2d 109 (1980); Franklin v. State, 245 Ga. 141, 263 S.E.2d 666 (1980); Hardy v. State, 245 Ga. 272, 264 S.E.2d 209 (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); Thomas v. State, 245 Ga. 688, 266 S.E.2d 499 (1980); Fair v. State, 245 Ga. 868, 268 S.E.2d 316 (1980); Hance v. State, 245 Ga. 856, 268 S.E.2d 339; Wilson v. State, 246 Ga. 62, 268 S.E.2d 895 (1980); Lewis v. State, 246 Ga. 101, 268 S.E.2d 915 (1980); State v. Graham, 246 Ga. 341, 271 S.E.2d 627 (1980); Alderman v. Austin, 498 F. Supp. 1134 (S.D. Ga. 1980); Stevens v. State, 247 Ga. 698, 278 S.E.2d 398 (1981); Dean v. State, 247 Ga. 724, 279 S.E.2d 217 (1981); Waters v. State, 248 Ga. 355, 283 S.E.2d 238 (1981); Cunningham v. State, 248 Ga. 558, 284 S.E.2d 390 (1981); Godfrey v. State, 248 Ga. 616, 284 S.E.2d 422 (1981); Smith v. Balkcom, 660 F.2d 573 (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); Krier v. State, 249 Ga. 80, 287 S.E.2d 531 (1982); Smith v. State, 249 Ga. 228, 290 S.E.2d 43 (1982); Wilson v. Zant, 249 Ga. 373, 290 S.E.2d 442 (1982); Mathis v. State, 249 Ga. 454, 291 S.E.2d 489 (1982); Berryhill v. State, 249 Ga. 442, 291 S.E.2d 685 (1982); Buttrum v. State, 249 Ga. 652, 293 S.E.2d 334 (1982); Horton v. State, 249 Ga. 871, 295 S.E.2d 281 (1982); Hill v. State, 250 Ga. 277, 295 S.E.2d 518 (1982); Sprouse v. State, 250 Ga. 174, 296 S.E.2d 584 (1982); Zant v. Stephens, 250 Ga. 97, 297 S.E.2d 1 (1982); Goodwin v. Balkcom, 684 F.2d 794 (11th Cir. 1982); Hance v. Zant, 696 F.2d 940 (11th Cir. 1983); Williams v. State, 250 Ga. 553, 300 S.E.2d 301 (1983), overruled on other grounds by Venturino v. State, 830 S.E.2d 110, 2019 Ga. LEXIS 435 (Ga. 2019); Wilson v. State, 250 Ga. 630, 300 S.E.2d 640 (1983); Westbrook v. Zant, 704 F.2d 1487 (11th Cir. 1983); Cape v. Francis, 558 F. Supp. 1207 (M.D. Ga. 1983); Felker v. State, 252 Ga. 351, 314 S.E.2d 621 (1984); Allen v. State, 253 Ga. 390, 321 S.E.2d 710 (1984); Devier v. State, 253 Ga. 604, 323 S.E.2d 150 (1984); Ross v. State, 254 Ga. 22, 326 S.E.2d 194 (1985); Alderman v. State, 254 Ga. 206, 327 S.E.2d 168 (1985); Walker v. State, 254 Ga. 149, 327 S.E.2d 475 (1985); Blanks v. State, 254 Ga. 420, 330 S.E.2d 575 (1985); Conklin v. State, 254 Ga. 558, 331 S.E.2d 532 (1985); Baxter v. State, 254 Ga. 538, 331 S.E.2d 561; Cook v. State, 255 Ga. 565, 340 S.E.2d 843 (1986); Davis v. State, 255 Ga. 588, 340 S.E.2d 862 (1986); Davis v. State, 255 Ga. 598, 340 S.E.2d 869 (1986); Rogers v. State, 256 Ga. 139, 344 S.E.2d 644 (1986); Romine v. State, 256 Ga. 521, 350 S.E.2d 446 (1986); Fugitt v. State, 256 Ga. 292, 348 S.E.2d 451 (1986); Parker v. State, 256 Ga. 543, 350 S.E.2d 570 (1986); Moore v. Kemp, 809 F.2d 702 (11th Cir. 1987); McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987); Harrison v. State, 257 Ga. 528, 361 S.E.2d 149 (1987); Crawford v. State, 257 Ga. 681, 362 S.E.2d 201 (1987); Blankenship v. State, 258 Ga. 43, 365 S.E.2d 265 (1988); Lee v. State, 258 Ga. 82, 365 S.E.2d 99 (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); Morrison v. State, 258 Ga. 683, 373 S.E.2d 506 (1988); Lee v. State, 258 Ga. 762, 374 S.E.2d 199 (1988); Jarrells v. State, 258 Ga. 833, 375 S.E.2d 842 (1989); Potts v. State, 259 Ga. 96, 376 S.E.2d 851 (1989); Miller v. State, 259 Ga. 296, 380 S.E.2d 690 (1989); Hall v. State, 259 Ga. 412, 383 S.E.2d 128 (1989); Gary v. State, 260 Ga. 38, 389 S.E.2d 218 (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); Stripling v. State, 261 Ga. 1, 401 S.E.2d 500 (1991); Wade v. State, 261 Ga. 105, 401 S.E.2d 701 (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); Burden v. Zant, 498 U.S. 433, 111 S. Ct. 862, 112 L. Ed. 2d 962 (1991); Taylor v. State, 261 Ga. 287, 404 S.E.2d 255; 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); Hall v. State, 261 Ga. 778, 415 S.E.2d 158 (1991); Meders v. State, 261 Ga. 806, 411 S.E.2d 491 (1992); Tharpe v. State, 262 Ga. 110, 416 S.E.2d 78 (1992); Hill v. State, 263 Ga. 37, 427 S.E.2d 770 (1993); Osborne v. State, 263 Ga. 214, 430 S.E.2d 576 (1993); Burgess v. State, 264 Ga. 777, 450 S.E.2d 680 (1994); Wellons v. State, 266 Ga. 77, 463 S.E.2d 868 (1995); Waldrip v. State, 267 Ga. 739, 482 S.E.2d 299 (1997); Bishop v. State, 268 Ga. 286, 486 S.E.2d 887 (1997); Raulerson v. State, 268 Ga. 623, 491 S.E.2d 791 (1997); Jenkins v. State, 269 Ga. 282, 498 S.E.2d 502 (1998)

Mize v. State, 269 Ga. 646, 501 S.E.2d 219 (1998); Palmer v. State, 271 Ga. 234, 517 S.E.2d 502 (1999); Morrow v. State, 272 Ga. 691, 532 S.E.2d 78 (2000); Gissendaner v. State, 272 Ga. 704, 532 S.E.2d 677 (2000); Heidler v. State, 273 Ga. 54, 537 S.E.2d 44 (2000); Colwell v. State, 273 Ga. 634, 544 S.E.2d 120 (2001); Butts v. State, 273 Ga. 760, 546 S.E.2d 472 (2001); Fults v. State, 274 Ga. 82, 548 S.E.2d 315 (2001); McPherson v. State, 274 Ga. 444, 553 S.E.2d 569 (2001); Lucas v. State, 274 Ga. 640, 555 S.E.2d 440 (2001); Ford v. Schofield, 488 F. Supp. 2d 1258 (N.D. Ga. 2007); Sharp v. State, 286 Ga. 799, 692 S.E.2d 325 (2010); Barrett v. State, 292 Ga. 160, 733 S.E.2d 304 (2012).

Factors Reviewed by Court

1. Passion, Prejudice, or Other Arbitrary Factor

- Testimony of a former district attorney in rebuttal to the defendant's evidence presented in mitigation at the sentencing phase of the defendant's trial, i.e., that the defendant offered to plead guilty to all charges in exchange for the state's agreement not to seek the death penalty, was not inflammatory or highly prejudicial requiring reversal of the sentence; however, in the future, offers by the defendants to plead guilty and testimony of prosecutors regarding such offers are no longer admissible. Mobley v. State, 265 Ga. 292, 455 S.E.2d 61 (1995).

- Arguments of the prosecutor during the sentencing phase of a murder trial does not influence the jury to impose the death sentence through passion and prejudice, as those terms were used in this section, if the prosecutor argues for the death penalty and offers plausible reasons for the prosecutor's position. 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).

- If the evidence in a murder and rape trial shows that the defendant raped a 13-year-old girl in a vacant house and then murdered her by inflicting multiple stab wounds to her face, chest, and abdomen, the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor, even though the prosecuting attorney, in closing argument, paraphrased to the jury sentiments on imposition of the death penalty and attributed these sentiments to a noted justice as the evidence against the defendant is so overwhelming. Bowen v. State, 244 Ga. 495, 260 S.E.2d 855 (1979).

- Prosecutor may read dicta from other cases when used not for the purpose of persuading the jury to impose the death penalty, but when addressing the court, though it is preferable that such arguments are conducted outside of the jury's presence. Drake v. State, 241 Ga. 583, 247 S.E.2d 57 (1978), cert. denied, 440 U.S. 928, 99 S. Ct. 1265, 59 L. Ed. 2d 485 (1979).

- Practice of influencing a jury to impose the death penalty by implying that justices of the Georgia Supreme Court would approve such a sentence is error, though sometimes harmless, under the due process clause of U.S. Const., amend. 14. Zant v. Campbell, 245 Ga. 368, 265 S.E.2d 22, cert. denied, 449 U.S. 891, 101 S. Ct. 252, 66 L. Ed. 2d 118 (1980).

- 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).

- 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 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).

- If one of the jury's functions is to impose punishment for crime, a reference by the prosecutor to the defendant's right to appeal is more likely to be considered reversible error if a death penalty is subsequently imposed, for the reason that in the weighing of imponderables it cannot be concluded that the jury was not influenced by such statements to impose more severe punishment than their unbiased judgment would have given. Prevatte v. State, 233 Ga. 929, 214 S.E.2d 365 (1975).

- 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).

- Even if a defendant did not make any motion for a continuance or change of venue at the trial because of unfavorable publicity, this matter still must be considered pursuant to the court's duty in a death case to consider the punishment as well as any errors enumerated by way of appeal. 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).

- Since the part of the video taped confession in which the defendant was seen handcuffed was only a brief part of the tape, and the tape was only a brief part of the trial, and the jury had the opportunity to observe the defendant at trial, the video tape recording did not create passion, prejudice, or other arbitrary factor such as would influence the jury to impose the penalty of death. 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).

- If a suspect was being transported away from the jail where the suspect was being held, it was natural for the police to have the suspect handcuffed for security reasons and the jury would not have been shocked to see it, and it was not error to deny a motion for mistrial. 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).

- Procedure requiring the defendant to prove the defendant's mental retardation by a preponderance of the evidence in a jury trial was not unconstitutional merely because it was accomplished by appellate judges rather than a jury. Morrison v. State, 276 Ga. 829, 583 S.E.2d 873 (2003), cert. denied, 541 U.S. 940, 124 S. Ct. 1662, 158 L. Ed. 2d 363 (2004), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).

- When the state's exhibit included a copy of a prior six-count indictment, the first five counts charging four defendants, including the present defendant, with three counts of armed robbery, one count of receiving stolen property, a .45 pistol, and one count of possession of LSD, and the last count charging one of the present defendant's codefendants with being a repeat offender, and the exhibit showed on its face that the grand jury no-billed the possession of LSD count (Count 5), Counts 5 and 6 should have been deleted, but absent a proper objection, there was no reversible error. Showing the jury one count plainly marked "no-billed" and another count not even charging the present defendant with a crime did not result in a death sentence imposed as the result of passion, prejudice, or other arbitrary factor. 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).

- It was reversible error for the trial court to charge the jury that the jury was not to base the jury's verdict on sympathy for the defendant. Legare v. State, 250 Ga. 875, 302 S.E.2d 351 (1983), overruled in part, Humphreys v. State, No. 2010 Ga. LEXIS 227, 2010 Ga. LEXIS 227 (Ga. 2010).

- Prosecutor's closing argument at the sentencing phase that if the jury returned a verdict recommending death, the jury would not be responsible for the defendant's execution did not introduce "passion, prejudice or any other arbitrary factor," nor did the argument tend to diminish the jury's sense of responsibility or deny the defendant fundamental fairness. 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).

When the prosecutor in closing argument in the guilt/innocence phase referred to a Bible verse that "the wicked flee when no man pursueth," asked the jurors not to decide to "let the Lord handle it," and stated that the jury might be "the Lord's fisherman to handle" the defendant's accountability, these arguments did not result in the imposition of the death penalty through the influence of passion, prejudice, or any other arbitrary factor; the arguments simply urged the jury to accept the jury's legal duty to pass judgment rather than abdicating that role. Walker v. State, 282 Ga. 774, 653 S.E.2d 439 (2007), cert. denied, 129 S. Ct. 481, 172 L. Ed. 2d 344 (2008), overruled on other grounds, No. S10P1859, 2011 Ga. LEXIS 267 (Ga. 2011).

- Prosecutor's remark that the defendant's conviction "would say enough to this dual killer," in conjunction with the state's demonstrative aid indicating that the defendant was a "mass killer," did not constitute an improper future dangerousness argument at the guilt/innocence phase of the trial because the remark was not an argument that the defendant posed a threat of future dangerousness if not found guilty but was a reasonable inference from the evidence; even assuming that the prosecutor's comment was improper, there is no reasonable probability that it affected the jury's exercise of discretion in determining the defendant's death sentence. 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).

Testimony that the defendant spoke of leaving no witnesses, following a prior armed robbery, if the defendant ever committed another such robbery, added nothing inflammatory to a record that included testimony from a codefendant that, on the night of the armed robbery in question, the defendant stated that the defendant did not intend to leave any witnesses. 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).

- Testimony of the spouse of a murder victim, who sobbed while testifying, was not improper because the passion shown was not the product of any arbitrary factor but was the direct result of the defendant's own actions. Jones v. State, 267 Ga. 592, 481 S.E.2d 821, cert. denied, 522 U.S. 953, 118 S. Ct. 376, 139 L. Ed. 2d 293 (1997).

Crying by jurors during sentencing does not indicate that the death penalty was imposed under the influence of passion or prejudice. 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).

- Review by the Supreme Court under O.C.G.A. § 17-10-35 includes review of closing arguments. 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).

Death penalty need not be reversed simply because some portion of the closing argument might have been subject to some objection never made. 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).

- Defendant's right to due process as secured by O.C.G.A. § 17-10-35, the Georgia Constitution, and the Constitution of the United States was abridged when the trial court allowed the inappropriate arguments from the Bible over objection. 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).

Defendant's death sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor under O.C.G.A. § 17-10-35(c)(1) and was not excessive or disproportionate to the penalty imposed in other similar cases, considering both the crimes and the defendant under § 17-10-35(c)(3) since the defendant: (1) planned the crimes and was armed with a gun and handcuffs; (2) broke into the defendant's in-laws' house after severing their phone line; (3) shot and killed the defendant's father-in-law and wounded the defendant's mother-in-law while they lay in bed; (4) handcuffed the defendant's bleeding mother-in-law to her nine-year-old son and left them tethered to a bed rail in a room with her dead husband and the defendant's two-year-old son; and (5) abducted the defendant's estranged wife and her 17-year-old sister to a mobile home where the defendant made them take showers while the defendant watched, and then raped them both. 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).

- Defendant's death sentence for malice murder was not imposed under the influence of passion, prejudice, or any other arbitrary factor and the evidence was clearly sufficient to authorize the jury to find the statutory aggravating circumstances beyond a reasonable doubt. 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).

Death sentence for the killing of a police officer in the performance of the officer's duties was not disproportionate since the death sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor, and the evidence was sufficient to authorize the jury to find beyond a reasonable doubt three statutory aggravating circumstances that supported the death sentence for the murder. Brannan v. State, 275 Ga. 70, 561 S.E.2d 414, cert. denied, 537 U.S. 1021, 123 S. Ct. 541, 154 L. Ed. 2d 429 (2002).

2. Aggravating Circumstances

Failure of one aggravating circumstance does not invalidate others.

- If two or more statutory aggravating circumstances are found by the jury, the failure of one circumstance, or more, does not taint the proceedings so as to invalidate the other aggravating circumstance found and the sentence of death based thereon. 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).

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).

- 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 subsection (c)(3) of this section, 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. If the rape offense serves as the aggravating circumstance 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).

- 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).

- 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).

- Considering both defendant and the clearly egregious facts of the torture and double murder case, the defendant's death sentences were not excessive or disproportionate punishment as compared to the penalty imposed in similar cases. Sealey v. State, 277 Ga. 617, 593 S.E.2d 335 (2004), overruled on other grounds by Willis v. State, 304 Ga. 686, 820 S.E.2d 640 (2018).

- If the court errs in failing to adequately charge on mitigating circumstances and in failing to make clear to the jury that the jury could recommend a life sentence even though the jury found a statutory aggravating circumstance, the sentences of death for murder must be set aside, and a new trial allowed on the issue of punishment. Holton v. State, 243 Ga. 312, 253 S.E.2d 736, cert. denied, 444 U.S. 925, 100 S. Ct. 263, 62 L. Ed. 2d 181 (1979).

- Defendant's prior record is a factor properly taken into consideration by juries. Castell v. State, 250 Ga. 776, 301 S.E.2d 234 (1983).

Statutory aggravating circumstances found by jury supported by evidence beyond a reasonable doubt. 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).

Because the defendant admitted that, while the children were sleeping and to scare a girlfriend, the defendant used a cigarette lighter to set fire to the bedding on the corner of the defendant's son's bed, causing a fire in a trailer that killed the son and two daughters, the evidence was sufficient to enable a rational trier of fact to find that the defendant was, beyond a reasonable doubt, guilty of three counts of malice murder, three counts of felony murder, and two counts of arson in the first degree; thus, the evidence was sufficient to authorize the jury to find beyond a reasonable doubt the existence of statutory aggravating circumstances that support death sentences for the malice murders under O.C.G.A. § 17-10-35(c)(2). Riley v. State, 278 Ga. 677, 604 S.E.2d 488 (2004).

Because the evidence showed that the defendant was the gunman and apparent leader in the carjacking, kidnapping, and execution-style murder of one victim and the attempted execution-style murder of a second victim, the evidence was sufficient to enable the jury to find proof beyond a reasonable doubt of the defendant's guilt of malice murder, felony murder, aggravated battery, aggravated assault, false imprisonment, theft by taking, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon and to authorize the jury to find three statutory aggravating circumstances beyond a reasonable doubt. 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).

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).

Evidence, including testimony by a codefendant and eyewitness testimony by the victim's spouse, was sufficient to support a finding of the aggravating circumstances that the murder was committed while the defendant was engaged in an armed robbery, that the murder was committed for the purpose of receiving money or a thing of monetary value, and that the murder was outrageously or wantonly vile, horrible, or inhuman in that the murder involved depravity of mind. Walker v. State, 282 Ga. 774, 653 S.E.2d 439 (2007), cert. denied, 129 S. Ct. 481, 172 L. Ed. 2d 344 (2008), overruled on other grounds, No. S10P1859, 2011 Ga. LEXIS 267 (Ga. 2011).

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).

- 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).

Evidence supported Supreme Court's conclusions concerning aggravating circumstance. See 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, Peek v. Kemp, 784 F.2d 1479 (11th Cir.), cert. denied, 478 U.S. 939, 107 S. Ct. 421, 93 L. Ed. 2d 371, 479 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).

- See Patillo v. State, 258 Ga. 255, 368 S.E.2d 493, cert. denied, 488 U.S. 948, 109 S. Ct. 378, 102 L. Ed. 2d 367 (1988); 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); Lynd v. State, 262 Ga. 58, 414 S.E.2d 5 (1992); Terrell v. State, 271 Ga. 783, 523 S.E.2d 294 (1999), recons. denied, overruled on other grounds by Willis v. State, 304 Ga. 686, 820 S.E.2d 640 (2018).

Evidence was sufficient to enable the jury to find the existence of the following statutory aggravating circumstances beyond a reasonable doubt under O.C.G.A. § 17-10-35(c)(2): (1) the offense of murder was committed while the defendant was engaged in the commission of a burglary; and (2) the offense of murder was committed while the defendant was engaged in the commission of the kidnappings with bodily injury of the murder victim's two daughters. 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).

Defendant was properly sentenced to death for murder and arson in the first degree because the evidence adduced at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt the existence of the statutory aggravating circumstances found in the case; the death sentences were not disproportionate punishment within the meaning of Georgia law. 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).

3. Excessive or Disproportionate Sentences

Whether sentence is excessive or disproportionate not a jury question.

- Decision whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases is not one to be made as such by the jury. Blake v. State, 239 Ga. 292, 236 S.E.2d 637, cert. denied, 434 U.S. 960, 98 S. Ct. 492, 54 L. Ed. 2d 320 (1977).

Whether sentence is one of cruel and unusual punishment is for court to decide. Blake v. State, 239 Ga. 292, 236 S.E.2d 637, cert. denied, 434 U.S. 960, 98 S. Ct. 492, 54 L. Ed. 2d 320 (1977).

Due process does not require jury determination of the excessive or disproportionate penalty question. Blake v. State, 239 Ga. 292, 236 S.E.2d 637, cert. denied, 434 U.S. 960, 98 S. Ct. 492, 54 L. Ed. 2d 320 (1977).

- If prior cases indicate that the past practice among juries faced with similar factual situations to that being reviewed and like aggravating circumstances has been to impose only the sentence of life imprisonment for an offense, rather than death, the Supreme Court has no alternative, under the language of this section, except to set aside the sentence of death. Coley v. State, 231 Ga. 829, 204 S.E.2d 612 (1974).

- Under O.C.G.A. § 17-10-35(c)(3), the appellate court will set aside a sentence of death that is "substantially out of line" with sentences imposed for similar crimes, focusing on how prior sentencers have responded to acts similar to those committed by the defendant whose case is being reviewed; because the jury in the defendant's first trial never considered what sentence should be imposed, the jury's actions in the first trial were not considered in determining whether the defendant's current death sentence was disproportionate to sentences for other similar crimes involving a similar defendant. 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).

- Proportionality review conducted by the Georgia Supreme Court was not constitutionally defective because it allegedly did not consider those appellate decisions in which life sentences were imposed. 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).

When reaction is substantially out of line with reactions of prior sentences, then the Supreme Court must set aside the death penalty as excessive. Ross v. State, 233 Ga. 361, 211 S.E.2d 356 (1974), cert. denied, 428 U.S. 910, 96 S. Ct. 3222, 49 L. Ed. 2d 1217 (1976).

- As to propriety of death sentence if not imposed upon all participants in same transaction, see Hall v. State, 241 Ga. 252, 244 S.E.2d 833 (1978).

There is no simplistic rule that a codefendant may not be sentenced to death when another defendant receives a lesser sentence. McClesky v. State, 245 Ga. 108, 263 S.E.2d 146 (1980), cert. denied, 449 U.S. 891, 101 S. Ct. 253, 66 L. Ed. 2d 119 (1980).

In view of the extent of the defendant's participation in a homicide, and the defendant's culpability, the defendant's death sentence was not disproportionate to the life sentence that a codefendant received only because the state didn't have as strong a case against the codefendant as the state did against the defendant. 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).

Given the defendant's degree of participation in the crimes and the defendant's apparent lack of remorse, a death sentence was not disproportionate to the life sentence of the codefendant. Carr v. State, 267 Ga. 547, 480 S.E.2d 583, cert. denied, 522 U.S. 921, 118 S. Ct. 313, 139 L. Ed. 2d 242 (1997).

Defendant's death sentence was not impermissibly disproportionate to the sentence of a coindictee as the coindictee obeyed the defendant out of fear of what the defendant would do to the coindictee and did not participate in finding out where the victim lived, in forcing the victim into the car, in removing the victim from the car, or in shooting the victim, nor was the coindictee present when the victim was shot; the defendant was the prime mover in the planning and execution of the victim's murder and then sought to conceal the defendant's part in the crime, and the fact that an accomplice had not been tried and might not be sentenced to death did not make the defendant's death sentence disproportionate. 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 same defendant was tried previously on the same charges and the jury imposed a life sentence, the death sentence in the case under review was obviously disproportionate to the life sentence previously imposed against the same defendant in the same case. Ward v. State, 239 Ga. 205, 236 S.E.2d 365 (1977).

In a capital case, if a defendant is sentenced to life on the first trial and later retried, a death sentence cannot be imposed at the conclusion of the second trial. 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).

- Under the test provided by paragraph (c)(3) of this section, 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); 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).

If the Supreme Court has previously reviewed a death sentence on direct appeal in order to determine whether the sentence was excessive or disproportionate to the sentences imposed in similar cases, it will decline to take it up again in a habeas corpus appeal. 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).

- It is not the role of the federal courts to dictate to the state courts the method of conducting a proportionality review in a death penalty case so long as the state supreme court's review and result do not rise to the level of unconstitutional action. 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).

- Since proportionality reviews are not required by the constitution in death penalty cases, it is difficult to see actual and substantial prejudice caused by counsel's failure to review and correct mistakes in the trial judge's post-trial sentencing report, even if such failure would constitute ineffective assistance of counsel. McCleskey v. Zant, 580 F. Supp. 338 (N.D. Ga. 1984), rev'd on other grounds sub nom. McCleskey v. Kemp, 753 F.2d 877 (11th Cir. 1985), aff'd, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987), cert. denied, 501 U.S. 1282, 112 S. Ct. 38, 115 L. Ed. 2d 1118 (1991).

- Sentences of death imposed for the murder of three people unknown to the defendant, including two children, one of whom was sexually assaulted, were neither excessive nor disproportionate. Rivers v. State, 250 Ga. 303, 298 S.E.2d 1 (1982).

Sentence of death imposed in a murder for hire case was not excessive or disproportionate to sentences imposed in similar cases, considering both the crime and the defendant, since, although the defendants who were hired to commit murder have been given life sentences, other cases show that juries find the death penalty to be appropriate punishment in contract murder cases. Castell v. State, 250 Ga. 776, 301 S.E.2d 234 (1983).

Sentence of death for a murder committed during an armed robbery was not excessive or disproportionate to sentences imposed in similar cases when the defendant stated before the robbery began that the defendant intended to leave no witnesses and the defendant thereafter shot unresisting, unarmed victims and, in addition, the defendant had been convicted previously of armed robbery. Mincey v. State, 251 Ga. 255, 304 S.E.2d 882, cert. denied, 464 U.S. 977, 104 S. Ct. 414, 78 L. Ed. 2d 352 (1983).

Review of cases shows that juries find the death penalty to be appropriate when an adult defendant commits murder during the commission of an armed robbery. 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).

Death penalty was held appropriate punishment since the defendant committed murder during the armed robbery. Ingram v. State, 253 Ga. 622, 323 S.E.2d 801 (1984), cert. denied, 473 U.S. 911, 105 S. Ct. 3538, 87 L. Ed. 2d 661 (1985).

Defendant's sentence of death was not disproportionate to the life sentence given a codefendant as the defendant admitted striking the victim with a baseball bat, taking a gun offered by a codefendant and shooting the victim in the head, assisting in dismembering and burying the body, and concealing the crime. 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).

Death sentence was not imposed as the result of impermissible passion, prejudice, or any other arbitrary factor, and it was not disproportionate, where the defendant shot and killed a police officer during the performance of the officer's official duties and in order to avoid arrest. 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).

Upon examination of the entire trial record, the Georgia Supreme Court concluded that the absence of the prosecuting attorney's violation of the Golden Rule, which was a marginal one whose impropriety was not obvious from prior case law, would not in reasonable probability have changed the jury's sentencing verdict. 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).

Death sentences imposed were not disproportionate punishment within the meaning of Georgia law. 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).

- See Pye v. State, 269 Ga. 779, 505 S.E.2d 4 (1998), cert. denied, 526 U.S. 1118, 119 S. Ct. 1767, 143 L. Ed. 2d 797 (1999); 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).

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).

In a capital murder case, because the evidence showed that the defendant carefully planned the crime of robbing an armored truck and killed a guard without mercy and for monetary gain, the death sentence imposed against the defendant for the murder in the case was neither excessive nor disproportionate to the penalties imposed in similar cases in the State of Georgia and was upheld. Tollette v. State, 280 Ga. 100, 621 S.E.2d 742 (2005).

Defendant's death sentence for the killing of a driver while the defendant was trying to escape after robbing a bank was not excessive or disproportionate to the penalty imposed in similar cases based on the Georgia Supreme Court's proportionality review under O.C.G.A. § 17-10-35(c)(1); the defendant had previously robbed two banks and had threatened to kill bank employees, had other convictions, and similar cases supported imposition of the death penalty in the defendant's murder conviction. Nance v. State, 280 Ga. 125, 623 S.E.2d 470 (2005).

Attack on the death sentence citing numerous other murder cases where the defendant did not receive a death sentence was unsuccessful because the state supreme court, as required by O.C.G.A. § 17-10-35(c)(3), had already determined that the inmate's death sentence was not excessive or disproportionate to penalties imposed in similar cases, and the federal habeas court deferred to that factual determination because the inmate had not put forth clear and convincing evidence to show the state court was incorrect. Crowe v. Terry, 426 F. Supp. 2d 1310 (N.D. Ga. 2005).

Defendant's death sentence for malice murder was affirmed as the sentence was neither excessive nor disproportionate to the penalties imposed in similar cases in Georgia as the defendant murdered at least four persons and attempted or planned to murder several other people; the defendant's death sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor. 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).

Death sentence for malice murder was not disproportionate or excessive where although a codefendant had been sentenced only to life, the evidence showed that the defendant was the more culpable party, and the codefendant was mentally retarded; furthermore, other cases cited by the court involved a deliberate plan to kill and killing for the purpose of receiving something of monetary value. Walker v. State, 282 Ga. 774, 653 S.E.2d 439 (2007), cert. denied, 129 S. Ct. 481, 172 L. Ed. 2d 344 (2008), overruled on other grounds, No. S10P1859, 2011 Ga. LEXIS 267 (Ga. 2011).

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).

Following the defendant's convictions of malice murder, aggravated sodomy, kidnapping with bodily injury, and aggravated assault after the defendant grabbed a woman who was riding a bike, dragged her to a concealed area, and sexually assaulted, beat, stomped, and killed her, the jury's imposition of a death sentence was not disproportionate punishment in light of the shocking details of the murder and in light of the defendant's long history of criminal acts against numerous women, including rape, several attempted rapes, and sexually-deviant behavior directed toward women including a 14-year-old female relative. 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).

Death penalty is appropriate punishment after a defendant is found to have been the actual perpetrator of, or active participant in, double murders committed upon victims who are unrelated to the defendant, such as the robbery and murder of vacationing couples asleep in their cars. 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).

Death sentence was not disproportionate under O.C.G.A. § 17-10-35(c)(3) since the defendant: (1) used the mother's relationship with a sick, elderly individual to gain access to the individual's house and belongings, steal the individual's checkbook, and forge the individual'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 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).

- Sentence of death was not excessive or disproportionate to sentences imposed in similar cases since the defendant had an extensive, serious prior record and committed an armed robbery during the course of which the defendant killed one person, seriously wounded another, shot another, and kidnapped still another. Spivey v. State, 253 Ga. 187, 319 S.E.2d 420 (1984), cert. denied, 469 U.S. 1132, 105 S. Ct. 816, 83 L. Ed. 2d 809 (1985).

- See Solomon v. Kemp, 735 F.2d 395 (11th Cir. 1984), cert. denied, 469 U.S. 1181, 105 S. Ct. 940, 83 L. Ed. 2d 952 (1985).

- Sentence of death was not excessive or disproportionate punishment for a vicious and brutal murder committed by a defendant with a prior conviction of a capital felony. 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).

Death sentence upon conviction on three counts of murder was neither excessive nor disproportionate to sentences imposed in similar cases as the jury found that each offense was outrageously and wantonly vile, horrible and inhuman in that the offense involved torture and an aggravated battery to the victim. Lonchar v. State, 258 Ga. 447, 369 S.E.2d 749 (1988), cert. denied, 488 U.S. 1019, 109 S. Ct. 818, 102 L. Ed. 2d 808 (1989).

In a malice murder trial, a sentence of death was held to be neither excessive nor disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Patillo v. State, 258 Ga. 255, 368 S.E.2d 493, cert. denied, 488 U.S. 948, 109 S. Ct. 378, 102 L. Ed. 2d 367 (1988).

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review, §§ 485 et seq., 846 et seq. 21A Am. Jur. 2d, Criminal Law, §§ 718 et seq., 831 et seq.

- 24 C.J.S., Criminal Procedure and the Rights of the Accused, § 2521 et seq.

- Claims of ineffective assistance of counsel in death penalty proceedings - United States Supreme Court cases, 31 A.L.R. Fed. 2d 1.

Adequacy of defense counsel's representation of criminal client regarding entrapment defense - federal cases, 42 A.L.R. Fed. 2d 145.