451 U.S. 926 (1981)

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U.S. Supreme Court

WILLIS v. BALKCOM , 451 U.S. 926 (1981)

451 U.S. 926

Henry WILLIS, III v. Charles R. BALKCOM, Warden No. 80-6030

Supreme Court of the United States

April 20, 1981

Rehearing Denied June 8, 1981. See 452 U.S. 932.

On petition for writ of certiorari to the Superior Court of Tattnall County, Georgia.

The petition for a writ of certiorari is denied.

Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.

Petitioner was convicted of murder and the jury returned a sentence of death. On direct appeal, the Georgia Supreme Court affirmed the conviction and death sentence. Adhering to my view that the death penalty is under all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, I would grant the petition for a writ of certiorari and vacate the judgment below insofar as it left the death sentence undisturbed. But even assuming, arguendo, that there are circumstances in which the death penalty may constitutionally be imposed, I believe those circumstances are not present in this case.

Under Georgia law, the jury is responsible for sentencing in death penalty cases. In imposing the death sentence in this case, the jury found three statutory aggravating circumstances: (1) the offense of murder was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"; 1 (2) the "offense of murder was committed against any peace officer . . . while engaged in the performance of his official duties";2 and (3) 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

Page 451 U.S. 926 , 927

or another." 3 In seeking review of the death sentence imposed in this case, petitioner does not challenge the validity of the findings concerning the latter two aggravating circumstances. He does argue, however, that the trial court's charge to the jury on the first aggravating circumstance was constitutionally defective.

This provision, Ga.Code 27-2534.1(b)(7) (1978) (hereafter (b)(7)), was the same one involved in this Court's decision last Term in Godfrey v. Georgia, 446 U.S. 420 (1980). In that case, the trial judge instructed the jury about this aggravating circumstance simply by reading the text of the statute. A plurality of this Court found that practice unconstitutional. It reasoned that the language of (b)(7) does not impose "any inherent restraint on the arbitrary and capricious infliction of the death sentence" since "[a] person of ordinary sensibility could fairly characterize almost every murder" as falling within the language of (b)(7). Id., at 428-429. The plurality explained that to be constitutionally valid, a State's capital punishment scheme "must channel the sentencer's discretion by 'clear and objective standards' that provide 'specific and detailed guidance,' and that 'make rationally reviewable the process for imposing a sentence of death.' " Id., at 428 ( footnotes omitted) (quoting Gregg v. Georgia, 428 U.S. 153, 198, 2937 (1976) (opinion of STEWART, POWELL and STEVENS, JJ.); Proffitt v. Florida, 428 U.S. 242, 253, 2967, 49 L. Ed.2d 913 (1976) (opinion of STEWART, POWELL, and STEVENS, JJ.); Woodson v. North Carolina, 428 U.S. 280, 303, 2990 ( 1976) (opinion of STEWART, POWELL, and STEVENS, JJ.)). Because the trial court had failed to provide adequate guidance to the jury, the death sentence imposed in that case was vacated.

In the instant case, as in Godfrey, the trial court's instruction to the jury on (b)(7) consisted of simply reciting the statutory language. Although both the trial and direct appeal in this case predated Godfrey, petitioner challenged the [451 U.S. 926 , 928]

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