459 U.S. 891 (1982)

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U.S. Supreme Court

DAVIS v. GEORGIA , 459 U.S. 891 (1982)

459 U.S. 891

Freddie DAVIS, petitioner,
No. 81-6854

Leslie R. JONES, petitioner,
No. 81-6891

Supreme Court of the United States

October 4, 1982

On petition for writ of certiorari to the Supreme Court of Georgia.

On petition for writ of certiorari to the Supreme Court of Florida.

The petitions for writs of certiorari are denied.

Justice MARSHALL, with whom Justice BRENNAN joins, dissenting from denial of certiorari.

I continue to adhere to my view that the death penalty is unconstitutional in all circumstances. I would therefore grant certiorari and vacate the death sentences on this basis alone. However, even if I believed that the death penalty could constitutionally be imposed under certain circumstances, I would grant certiorari in these cases to resolve a substantial question left open by this Court's decision in Bullington v. Missouri, 451 U.S. 430 (1981): whether, on resentencing, the prosecution may be given a second chance to prove a statutory aggravating circumstance that it failed to prove in the prior capital sentencing proceeding.

We held in Bullington that the Double Jeopardy Clause is fully applicable to capital sentencing proceedings that are patterned after trials on the question of guilt or innocence.

Page 459 U.S. 891 , 892

The state law considered in Bullington, like the state law in each of these cases, provides that the death penalty may be imposed only after a trier of fact finds at least one statutory aggravating circumstance. The determination by the trier of fact is made at a separate sentencing hearing at which evidence is presented in aggravation and mitigation of punishment. To obtain a death sentence the prosecution must prove the existence of one or more aggravating circumstances beyond a reasonable doubt. The trier of fact is instructed to identify the aggravating circumstance or circumstances it finds applicable. We concluded in Bullington that "(b)ecause the sentencing proceeding at (Bullington's) first trial was like the trial on the question of guilt or innocence, the protection afforded by the Double Jeopardy Clause to one acquitted by a jury is also available to him, with respect to the death penalty, at his retrial." 451 U.S., at 446 (footnote omitted). Like an acquittal, a decision not to impose the death penalty is absolutely final. " Having received 'one fair opportunity to offer whatever proof it could assemble,' the State is not entitled to another." Ibid., quoting Burks v. United States, 437 U.S. 1, 16, 2150 (1978).

In the instant cases, petitioners were convicted of capital murder and were then sentenced to death following separate sentencing hearings authorized by state statutes similar to the one involved in Bullington. In each case, the prosecution failed to prove one or more statutory aggravating circumstances, 1 but the trier of fact found at least one other ag- [459 U.S. 891 , 893]

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