dissenting.
I would grant the petition for certiorari in No. 79-6615, vacate the judgment insofar as it approved the imposition of the death sentence, and remand the case for reconsideration. See Martin v. Louisiana, ante, p. 998 (Stewart, J., dissenting).
I would vacate the judgment of the Supreme Court of Georgia in No. 79-6704, insofar as it left undisturbed the death penalty, and remand the case to that court for further consideration in light of Godfrey v. Georgia, 446 U. S. 420 (1980).
The sentence of death was imposed in No. 79-6704 upon the basis of the statutory aggravating circumstance involved in the Godfrey case (Ga. Code § 27-2534.1 (b)(7) (1978)), and an additional statutory aggravating circumstance. If, after Godfrey, the Supreme Court of Georgia should decide that the § (b)(7) aggravating circumstance could not constitutionally justify the death sentence, Georgia law would prohibit a further finding that the error was harmless simply because of the existence of the other aggravating circumstance. Under Georgia’s capital sentencing scheme, the trial court is the sentencing authority. Ga. Code §§ 27-2503 (b), 27-2534.1 (b) (1978). In addition, the sentencer has the power to decline to impose the death penalty even if it finds that one or more statutory aggravating circumstances are present in the case. See Fleming v. State, 240 Ga. 142, 146-147, 240 S. E. 2d 37, 40-41 (1977); Hawes v. State, 240 Ga. 327, 334-335, 240 S. E. 2d 833, 839 (1977). See also Gregg v. Georgia, 428 U. S. 153, 203. Thus, under Georgia’s capital punishment scheme, only the trial judge or jury can know and determine what to do when upon appellate review it has been concluded that a particular aggravating circumstance should not have been considered in sentencing the defendant to death.
*1002I had thought that it was on the basis of precisely this reasoning that the Court only months ago unanimously acted as it did with respect to four cases which were, in all relevant respects, indistinguishable from this one. See Davis v. Georgia, 446 U. S. 961; Collins v. Georgia, 446 U. S. 961; Baker v. Georgia, 446 U. S. 961; Hamilton v. Georgia, 446 U. S. 961.