Young v. State

Hill, Chief Justice,

concurring in part and dissenting in part. At Young’s trial, the state introduced evidence from which the jury was authorized to find the following facts: Mr. Reuben Flynt, vice president of the Farmer’s Bank in Union Point, Georgia, was shot and killed in his home on December 15,1975. At approximately 11:30 a.m. December 15, Young and his nephew drove from Atlanta to Union Point (a distance of about 75 miles). Young was carrying a .22 caliber pistol. Arriving in Union Point, Young and his nephew drove to the Farmer’s Bank looking for Mr. Flynt’s car, then to Mr Flynt’s home, returned to the bank, and then returned to Mr. Flynt’s home where they saw Flynt’s car.

Young entered Flynt’s home, shot him four times at close range, removed Flynt’s billfold from his rear pocket, and hit the victim several times with the pistol.

Young and his nephew'then returned to the bank where Young sent the nephew inside with the victim’s wallet. The nephew said: “The man that gave me this billfold said for you to give me $60,000 or he will kill Reuben Flynt in 15 minutes.” The nephew was given about $10,000, and police arrested him as he was leaving the bank. Young fled.

When Young was arrested, the .22 pistol was found in the car. Ballistics evidence showed that pistol to be the murder weapon. The *159victim died from loss of blood.

The jury was authorized not to believe the following self-serving statements made by Young: That Young went to the victim’s home to discuss overdue bank loans; that Young did not carry the pistol with him when he first went to the victim’s door; that Young and the victim argued over the unpaid loans; and that the idea to get money from the bank did not occur to Young until after the victim had been shot.

The jury found Young guilty of murder, armed robbery and robbery by intimidation, and it imposed the death penalty for the murder based on two statutory aggravating circumstances, that the murder was committed while the offender was engaged in the commission of an armed robbery, OCGA § 17-10-30 (b) (2) (formerly Ga. Code Ann. § 27-2534.1 (b) (2)), and that the offender committed the murder for the purpose of receiving money, OCGA § 17-10-30 (b) (4) (formerly Ga. Code Ann. § 27-2534.1 (b) (4)).

After his convictions and death sentence were affirmed by this court, Young v. State, 237 Ga. 852 (230 SE2d 287) (1976), and the denial of his petition for habeas corpus was affirmed, Young v. Ricketts, 242 Ga. 559 (250 SE2d 404) (1978), cert. denied sub nom. Young v. Zant, 442 U. S. 934 (1979), Young sought habeas relief in the federal district court urging, among other grounds, that his trial counsel rendered ineffective assistance and that the evidence did not support the statutory aggravating circumstances. The district court found the evidence insufficient to support those aggravating circumstances and vacated the death penalty for that reason as well as for ineffective assistance of counsel during the sentencing phase of trial. Young v. Zant, 506 FSupp. 274, 280-281 (M.D. Ga. 1980).

Young and the state appealed. The circuit court in its opinion dealt with the question of ineffective assistance of counsel. The circuit court noted the district court’s finding that the evidence as to armed robbery was insufficient to support the first aggravating circumstance and said: “This deficiency in the evidence should have been sufficiently clear to [defense counsel] to suggest a strong argument that Young did not rob Flynt by use of an offensive weapon and thus could not be guilty of armed robbery____” Young v. Zant, 677 F2d 792, 799 (11th Cir. 1982). The circuit court granted habeas relief as to the guilt phase of Young’s trial based on ineffective assistance of counsel.

Based on the foregoing, Young contends first that double jeopardy prevents his being retried for armed robbery and robbery by intimidation, and he sirgues next that double jeopardy prevents the state from seeking the death penalty on the two statutory aggravating circumstances referred to above. Young argues that the evidence as to *160the crimes of armed robbery and robbery by intimidation has been found to be insufficient and hence that retrial on those charges is barred, as is the imposition of the death penalty based on the corresponding aggravating circumstances. I will deal first with the crimes themselves and then with the aggravating circumstances. Regarding the crime of robbery by intimidation, the evidence is undisputed that Young and his accomplice drove from the murder victim’s home to the bank, that the accomplice presented the victim’s wallet to a teller and said “The man that gave me this billfold said for you to give me $60,000 or he will kill [the victim] in fifteen minutes,” that the accomplice received about $10,000, and that the idea for this crime was Young’s.

OCGA § 16-8-40 (formerly Ga. Code Ann. § 26-1901) provides: “(a) A person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another:... (2) By intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another— ” The evidence in this case is sufficient to prove robbery by intimidation and neither the district court nor the circuit court of appeals has found to the contrary. The district court found only that Young did not contemplate taking money from the bank until after the shots had been fired and the blows struck, Young v. Zant, supra, 506 FSupp. at 280, and thus that the evidence as to the second aggravating circumstance — murder for the purpose of receiving money — was insufficient. The court below did not err in overruling Young’s plea of double jeopardy as to the crime of robbery by intimidation.

Regarding the crime of armed robbery, the evidence shows that Young drove from Atlanta to Union Point, Georgia, taking a .22 caliber pistol with him, that Young shot the victim four times at close range, and that Young then took the victim’s billfold from his rear pocket and then hit the victim, who was still alive, with the pistol.

OCGA § 16-8-41 (a) (formerly Ga. Code Ann. § 26-1902) provides: “A person commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon____” The jury was authorized to find Young guilty of armed robbery regardless of when the intent to take the victim’s billfold arose, regardless of whether the victim was incapacitated and even if the victim had been killed instantly. See Moore v. State, 233 Ga. 861 (2b) (213 SE2d 829) (1975), cert denied, 428 U. S.910 (1976). A person is guilty of armed robbery under OCGA § 16-8-41 (a) (Code Ann. § 26-1902), supra, when the victim is shot before the taking as well as when the victim is shot after the taking, or is not shot at all. See Moore *161v. State, supra.

In my view, the evidence is sufficient to prove armed robbery in this case and neither the district court nor the circuit court of appeals has found to the contrary. That issue was not before either court. See Young v. Zant, supra, 677 F2d at 799, n. 12. The district court found that the jury could only speculate that Young intended to rob the victim before committing the murder, Young v. Zant, supra, 506 FSupp. at 280-281, and thus that the evidence as to the first aggravating circumstance — murder committed in the course of an armed robbery — was insufficient (emphasis in the district court opinion, Young v. Zant, supra, 506 FSupp. at 280).

As for the armed robbery, the circuit court merely observed that Young’s attorney could have made an “argument that Young did not rob [the victim] by use of an offensive weapon and thus could not be guilty of armed robbery----” Young v. Zant, supra, 677 F2d at 799. That a lawyer was ineffective because he could have made an argument is not a finding that the evidence was insufficient. The court below did not err in overruling Young’s plea of double jeopardy as to the crime of armed robbery.

Regarding the sufficiency of the evidence as to murder committed in the commission of an armed robbery and as to murder committed for the purpose of receiving money, the district court, whether right of wrong, found the evidence as to both these aggravating circumstances to be insufficient. Young v. Zant, supra, 506 FSupp. at 280-281.

The state appealed, Young v. Zant, supra, 677 F2d at 794, and the circuit court did not reverse the district court’s finding and conclusions as to the sufficiency of the evidence as to either aggravating circumstance.

Under Bullington v Missouri, 451 U. S. 430, 442-446 (101 SC 1852, 68 LE2d 270) (1981), and Burks v. United States, 437 U. S. 1 (98 SC 2141, 57 LE2d 1) (1978), double jeopardy prevents Young from being retried and sentenced to death for either of these aggravating circumstances regardless of our view of the sufficiency of the evidence to support those aggravating circumstances and notwithstanding the trial jury’s findings that Young murdered Mr. Flynt while engaged in the commission of an armed robbery and that Young murdered Flynt for the purpose of receiving money. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

I therefore concur in the majority opinion insofar as it affirms the overruling of Young’s plea of double jeopardy as to the crimes of armed robbery and robbery by intimidation, but I am bound to dissent insofar as the majority affirms the overruling of Young’s plea of double jeopardy as to the two aggravating circumstances. Thus, I *162am forced to conclude that Young cannot be resentenced to death. Godfrey v. State, 248 Ga. 616, 625 (dissenting opinion by Hill, P. J.) (284 SE2d 422) (1981), cert. denied 456 U. S. 919 (1982).