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).

Section applies to sentencing hearing only.

- 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).

Indictment need not recite statutory aggravating circumstances.

- 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).

Discretion to consider mitigating circumstances.

- 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).

No need to balance aggravating, mitigating circumstances.

- 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).

Life sentence when aggravating circumstances exist.

- 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).

Life sentence absent jury recommendation of death.

- 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).

Judge must impose lesser punishment when jury cannot agree.

- 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).

Instruction as to requirements of section not impermissible expression of opinion.

- 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).

Evidence of parole eligibility.

- 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, U.S. , 131 S. Ct. 522, 178 L. Ed. 2d 385 (2010).

Retrial as to sentencing where sentence reversed for error.

- 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).

Death sentence prohibited on retrial if first jury sentenced defendant to life imprisonment.

- 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).

Life sentence not required if first jury did not reach penalty phase.

- 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).

Refusal to allow defense comment on death sentence not error.

- 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).

Death sentence upheld when each aggravating factor supported by other circumstances.

- 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).

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).

Am. Jur. 2d.

- 21A Am. Jur. 2d, Criminal Law, § 861 et seq.

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

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