# Griffin v. State

> Supreme Court of Georgia · December 4, 1995 · 266 Ga. 115

URL: https://www.frixlaw.com/law-library/cases/9851378

## Case

- **Full name:** Griffin v. the State
- **Court:** Supreme Court of Georgia
- **Decided:** December 4, 1995
- **Citations:** 266 Ga. 115; 464 S.E.2d 371
- **Precedential status:** Published
- **Opinion:** Dissent by Sears
- **Judges:** Hunstein, Fletcher, Sears, Divisions, Thompson
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Disapproved in part, on other grounds by Washington v. State, 276 Ga. 655 (2003).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9851378

## Opinion text

Sears, Justice,
dissenting.
Presiding Justice Fletcher presents compelling reasons why the state is barred from trying Griffin for the death penalty and for kidnapping. I, therefore, join his dissent. I write separately to explain an additional reason why the majority errs in holding that the state may now seek the death penalty against Griffin after the state has already tried Griffin for murder.
For the reasons given by Presiding Justice Fletcher, due process bars the state from seeking the death penalty against Griffin. I also conclude that double jeopardy bars the state from seeking the death penalty. In holding that double jeopardy bars a state from seeking the death penalty on a retrial when the first jury had “acquitted” the defendant of the grounds necessary to impose the death penalty, the United States Supreme Court found that the same double jeopardy principles that applied to successive prosecutions for an offense applied to successive prosecutions for the death penalty.
The “embarrassment, expense and ordeal” and the “anxiety and insecurity” faced by a defendant at the penalty phase of a . . . capital murder trial are at least equivalent to that faced by any defendant at the guilt phase of a criminal trial. 27
The United States Supreme Court in Bullington was thus effectively equating the death penalty with an offense for double jeopardy purposes. Similarly, I would equate the two for purposes of our procedural double jeopardy statute. OCGA § 16-1-7 (b). I would thus hold that because the state chose to try Griffin for murder without seeking the death penalty, § 16-1-7 (b) bars the state from putting Griffin through the anxiety and insecurity of a death penalty trial after the state has put him through the expense and anxiety of a first trial in *128 which the state likely gained tactical advantages.
Decided December 4, 1995 —
Reconsideration denied December 20, 1995.
Kirbo & McCalley, Thomas L. Kirbo III, Jon V. Forehand, for appellant.
H. Lamar Cole, District Attorney, James E. Hardy, Mark E. Mitchell, Assistant District Attorneys, for appellee.
Bullington v. Missouri, 451 U. S. 430, 445 (101 SC 1852, 68 LE2d 270) (1981).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9851378. Public record. Not legal advice.