Davis v. State ( 1979 )

Hill, Justice,

concurring.

At defendant’s first trial, only one aggravating circumstance was submitted to the jury for its consideration, and the jury imposed the death penalty on that ground, namely that the murder was committed while the defendant was engaged in the commission of another capital felony. On appeal, that death penalty was set aside due to insufficient jury instructions. Davis v. State, 240 Ga. 763 (243 SE2d 12) (1978).

At the resentencing trial, two aggravating circumstances were submitted to the jury and they found both, namely that the murder was committed while the defendant was engaged in the commission of another capital felony and that the murder was outrageously and wantonly vile, horrible and inhumane in that it involved torture, depravity of mind on the part of the defendant, or an aggravated battery to the victim.

In reviewing the death penalty as provided by statute, Code Ann. § 27-2537 (a) (b) (i), we must determine whether it is permissible to add an aggravating circumstance at the resentencing trial as was done here and as was done in Redd v. State, 242 Ga. 876 (1979) (see footnote 2).

I conclude that it is permissible to add previously omitted aggravating circumstances at a resentencing trial. We impliedly approved such procedure, without discussion, in Arnold v. State, 236 Ga. 534 (224 SE2d 386) (1976), when we authorized a retrial on the issue of punishment (236 Ga. at 542). A retrial as to punishment in Arnold could only have been based upon a previously omitted aggravating circumstance. It is because of cases like Arnold that I find the use of previously omitted aggravating circumstances to be permissible.

In Arnold, the defendant was sentenced to death based upon one aggravating circumstance which was found on appeal to be unconstitutionally vague. Under those circumstances it would be necessary to permit the use at retrial of previously omitted aggravating circumstances, or else simply to impose a life sentence. Under such circumstances the use of previously omitted aggravating circumstances does not offend fundamental fairness and the other alternative (automatic life sentence) would be an unwarranted reward which could have an adverse impact. See North Carolina v. Pearce, 395 U. S. 711, fn. 18 (89 SC 2072, 23 LE2d 656) (1969).

I therefore find that previously omitted aggravating circumstances may be used at a resentencing trial and I concur in the judgment affirming the imposition of the death penalty in this case.