2021 Georgia Code
Title 17 - Criminal Procedure
Chapter 10 - Sentence and Punishment
Article 2 - Death Penalty Generally
§ 17-10-31. Requirement of Jury Finding of Aggravating Circumstance and Recommendation of Death Penalty Prior to Imposition; Arguments of Counsel During Sentencing Phase; Jury Instructions; Actions of Judge in Event of Failure to Reach Unanimous Verdict

1. Where, upon a trial by jury, a person is convicted of an offense which may be punishable by death, a sentence of death shall not be imposed unless the jury verdict includes a finding of at least one statutory aggravating circumstance and a recommendation that such sentence be imposed. Where a statutory aggravating circumstance is found and a recommendation of death is made, the court shall sentence the accused to death. Where a statutory aggravating circumstance is not found or where a statutory circumstance is found but a recommendation of death is not made, the jury shall decide whether to recommend a sentence of life imprisonment without parole or life imprisonment with the possibility of parole. Unless the jury trying the case makes a finding of at least one statutory aggravating circumstance and recommends the death sentence in its verdict, the court shall not sentence the accused to death, provided that no such finding of statutory aggravating circumstance shall be necessary in offenses of treason or aircraft hijacking. This Code section shall not affect a sentence when the case is tried without a jury or when the judge accepts a plea of guilty.
2. During the sentencing phase before a jury, counsel for the state and the accused may present argument and the trial judge may instruct the jury:
   1. That "life without parole" means that the accused shall be incarcerated for the remainder of his or her natural life and shall not be eligible for parole unless such person is subsequently adjudicated to be not guilty of the offense for which he or she was sentenced; and
   2. That "life imprisonment" means that the accused will be incarcerated for the remainder of his or her natural life but will be eligible for parole during the term of such sentence.
3. If the jury is unable to reach a unanimous verdict as to sentence, the judge shall dismiss the jury and shall impose a sentence of either life imprisonment or imprisonment for life without parole.

(Code 1933, § 26-3102, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1969, p. 809, § 1; Ga. L. 1973, p. 159, § 7; Ga. L. 2009, p. 223, § 5/SB 13.)

- Provisions regarding recommendations for imposition of death sentence, § 17-9-3.

- Ga. L. 2009, p. 223, § 8/SB 13, not codified by the General Assembly, provides that: "Except as provided in this section, the provisions of this Act shall apply only to those offenses committed after the effective date of this Act. With express written consent of the state, an accused whose offense was committed prior to the effective date of this Act may elect in writing to be sentenced under the provisions of this Act, provided that: (1) jeopardy for the offense charged has not attached or (2) the accused has been sentenced to death but the conviction or sentence has been reversed on appeal and the state is not barred from seeking prosecution after the remand." This Act became effective April 29, 2009.

Ga. L. 2009, p. 223, § 9/SB 13, not codified by the General Assembly, provides that: "Except as provided in Section 8 of this Act, the amendment or repeal of a Code section by this Act shall not affect any sentence imposed by any court of this state prior to the effective date of this Act."

Ga. L. 2009, p. 223, § 10/SB 13, not codified by the General Assembly, provides that: "A person may be sentenced to life without parole without the prosecutor seeking the death penalty under the laws of this state." Ga. L. 2011, p. 752, § 17(3) codified these provisions at Code Section 17-10-16.1.

Ga. L. 2009, p. 223, § 11(a)/SB 13, not codified by the General Assembly, provides that the law as set forth in this Code section as it existed prior to April 29, 2009, shall apply to all offenses committed on and before April 29, 2009, and the amendments by this Act shall apply to all crimes committed on and after April 29, 2009.

Ga. L. 2009, p. 223, § 11(b)/SB 13, not codified by the General Assembly, provides that: "The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment."

- For article, "Jury Sentencing in Georgia - Time for a Change?," see 5 Ga. St. B.J. 421 (1969). For survey of 1986 Eleventh Circuit cases on constitutional criminal procedure, see 38 Mercer L. Rev. 1141 (1987). For article, "Death Penalty," see 66 Mercer L. Rev. 51 (2014). For note raising chilling effect on defendant's constitutional rights posed by this section prior to its 1973 amendment, in light of United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968), see 20 Mercer L. Rev. 309 (1969). For note, "Evaluating the Constitutionality of Proposals to Allow Non-Unanimous Juries to Impose the Death Penalty in Georgia," see 29 Ga. St. U.L. Rev. 1003 (2010). For note, "A Promise Unfulfilled: Challenges to Georgia's Death Penalty Statute Post Furman," see 33 Ga. St. U.L. Rev. 839 (2017).

JUDICIAL DECISIONS

Constitutionality generally.

- 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).

- Both former Code 1933, §§ 26-3102 and27-2-503 (see O.C.G.A. §§ 17-10-2 and17-10-31) applied only to the sentencing phase of a capital case after conviction. Miller v. State, 237 Ga. 557, 229 S.E.2d 376 (1976).

- Death penalty was not unfairly assessed against the defendant because no aggravating circumstances charged to or considered by the jury were alleged in the indictment as there is no requirement that statutory aggravating circumstances be alleged in an indictment against the accused. Dix v. Newsome, 584 F. Supp. 1052 (N.D. Ga. 1984).

- Sentencing authority 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 733 (1984).

- 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).

- Whether sentencing be by judge or jury, life imprisonment may be imposed even though statutory aggravating circumstances are found to exist. 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).

Jury need not find any mitigating circumstance in order to make 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).

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).

In jury cases, trial judge is bound by jury's recommended sentence. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).

Under Georgia law, the jury's sentencing recommendation is binding on the trial court which actually sentences the defendant. 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).

Although a habeas corpus petitioner contended that the prosecution misled the jury into believing that the jury's role with regard to the death penalty was merely advisory, no due process violation was shown. The prosecution accurately characterized the jury's death penalty finding as a recommendation in accordance with O.C.G.A. § 17-10-2(c), and the jury was properly advised that the recommendation was binding on the sentencing court in accordance with O.C.G.A. § 17-10-31. Carr v. Schofield, 364 F.3d 1246 (11th Cir. 2004).

- If a sentence of death was not recommended by the jury, O.C.G.A. § 17-10-31 required the court to sentence the defendant to life imprisonment. Hill v. State, 250 Ga. 821, 301 S.E.2d 269 (1983).

- Jury that convicted must also impose the sentence. Because only two sentences can be imposed, life imprisonment or death, if the convicting jury is unable to agree on which of those two sentences to impose, the trial judge must impose the lesser, life imprisonment. Miller v. State, 237 Ga. 557, 229 S.E.2d 376 (1976); Hill v. State, 250 Ga. 821, 301 S.E.2d 269 (1983).

Although the jury did return a finding of a statutory aggravating circumstance, but the jury deadlocked on the question of whether the defendant should be given the death penalty, under Georgia's statutory death-penalty provisions, pretermitting any constitutional question of double jeopardy, the trial judge must impose the lesser sentence of life imprisonment. Hill v. State, 250 Ga. 821, 301 S.E.2d 269 (1983).

- There is no impermissible expression of opinion if the trial court instructs the jury that the defendant cannot be sentenced to death unless the jury finds at least one statutory aggravating circumstance to exist beyond a reasonable doubt and recommends that the death penalty be imposed. 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).

- Trial court did not err by refusing to allow the defendant to present evidence and arguments about the likely date of parole eligibility if the defendant was sentenced to life with the possibility of parole for the murders because such evidence and argument was generally not permitted prior to the addition of life without parole as a sentencing option. 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).

- A new trial on the sentence can be held before a new jury if the jury that convicted the accused also sentenced the accused to death and the sentence was reversed on appeal because of some error that infected the sentence. In such a situation, there can be a remand for a new trial as to the sentence only. Miller v. State, 237 Ga. 557, 229 S.E.2d 376 (1976); Hill v. State, 250 Ga. 821, 301 S.E.2d 269 (1983).

- If the convicting jury sentences the defendant to life imprisonment, this constitutes an acquittal of the charge that the evidence supports a finding of a statutory aggravating circumstance, and in any retrial the double-jeopardy clause prohibits the defendant's being given the death sentence. Hill v. State, 250 Ga. 821, 301 S.E.2d 269 (1983).

- Trial court was not required to impose life imprisonment under O.C.G.A. § 17-10-31 since the first jury did not reach the penalty phase and thus was not called on to decide the defendant's sentence under the death penalty statute. 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).

Trial court did not err in giving an Allen charge to a jury considering the death penalty, overruling Legare v. State, 250 Ga. 875 (1983), because the statement that a unanimous verdict was required was technically correct, although it would be better practice to omit that phrase when giving an Allen charge in the penalty phase of a capital case. 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).

- It is difficult to imagine how a court might commit reversible error by refusing to allow defense counsel to comment on a death sentence that, once the jury has rendered the jury's verdict, is mandatory. 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).

- 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).

Cited in Pass v. State, 227 Ga. 730, 182 S.E.2d 779 (1971); Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977); House v. Stynchcombe, 239 Ga. 222, 236 S.E.2d 353 (1977); Thomas v. State, 240 Ga. 393, 242 S.E.2d 1 (1977); Mendenhall v. Hopper, 453 F. Supp. 977 (S.D. Ga. 1978); Bowen v. State, 244 Ga. 495, 260 S.E.2d 855 (1979); McCorquodale v. Balkcom, 525 F. Supp. 408 (N.D. Ga. 1981); Hance v. Zant, 696 F.2d 940 (11th Cir. 1983); Godfrey v. Francis, 251 Ga. 652, 308 S.E.2d 806 (1983); Westbrook v. Zant, 704 F.2d 1487 (11th Cir. 1983); Corn v. Zant, 708 F.2d 549 (11th Cir. 1983); Tucker v. Zant, 724 F.2d 882 (11th Cir. 1984); Spivey v. State, 253 Ga. 187, 319 S.E.2d 420 (1984); Green v. Zant, 738 F.2d 1529 (11th Cir. 1984); Young v. Kemp, 760 F.2d 1097 (11th Cir. 1985); Rogers v. State, 256 Ga. 139, 344 S.E.2d 644 (1986); Jones v. State, 282 Ga. 784, 653 S.E.2d 456 (2007); Ellington v. State, 292 Ga. 109, 735 S.E.2d 736 (2012), overruled in part by Willis v. State, 304 Ga. 686, 820 S.E.2d 640 (2018).

RESEARCH REFERENCES

ALR.

- Racial discrimination in punishment for crime, 40 A.L.R.3d 227.

Propriety of imposition of death sentence by state court following jury's recommendation of life imprisonment or lesser sentence, 8 A.L.R.4th 1028.

Validity, construction, and application of pattern and nonpattern jury instructions in state death penalty proceedings, 83 A.L.R.6th 255.

Validity, construction, and application of aggravating and mitigating provisions of death penalty statutes - Supreme Court cases, 21 A.L.R. Fed. 2d 1.