dissenting in part.
When the state uses its machinery to put a person to death, it should ensure that the defendant has received a fair process. The majority violates that principle by holding today that the state may add a kidnapping charge and seek the death penalty when reindicting Michael David Griffin in a second county. Because its decision violates due process, double jeopardy, and fundamental fairness, I dissent to Divisions 2 and 3.
1. The Fourteenth Amendment’s guarantee of due process prohibits the state from punishing a defendant for exercising his legal rights.9 Relying on the due process clause, the Supreme Court has created a rebuttable presumption of vindictiveness when a trial judge imposes a more severe sentence on a defendant after a successful appeal.10 A defendant may show vindictive prosecution in two ways: by producing evidence of actual vindictiveness or showing that there is a sufficient likelihood of vindictiveness to justify a presumption.11 I would adopt this same analysis in interpreting the Georgia Constitution’s due process clause and hold that the state’s decision to seek the death penalty in Griffin’s retrial presents a realistic likelihood of vindictiveness that the state has failed to rebut.
The totality of the circumstances surrounding the state’s decision to seek the death penalty after Griffin’s mistrial and appeal demonstrates a reasonable likelihood of vindictiveness. In the first trial, the state sought to have Griffin imprisoned for life, but was unable to convince a majority of jurors even to convict Griffin. After reindicting Griffin, the state was met with a plea of former jeopardy, followed by *123an appeal of its denial. Unlike a routine pretrial motion, this exercise of Griffin’s rights introduced considerable delay in the McIntosh County prosecution. Frustrated, the state tried a new approach. Knowing that in McIntosh County it could do nothing until this Court decided the appeal, the state rushed to indict Griffin in a different county. The state began prosecuting Griffin in Thomas County with at least constructive knowledge that to do so during the pendency of the appeal was improper. Moreover, the state added the kidnapping count, perhaps easier to prove than the murder count, and substantially increased the potential penalty by announcing its intent to seek the death penalty.
The timing of the state’s change of course heightens the realistic likelihood of vindictiveness. The state determined to seek the death penalty only after Griffin’s first trial ended in a hung jury and he appealed the denial of his double jeopardy claim.
[0]nce a trial begins — and certainly by the time a conviction has been obtained — it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he should be prosecuted. Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision.12
Just as the United States Supreme Court has presumed prosecutorial vindictiveness when the government increases the severity of charges after a conviction and successful appeal, this Court should presume prosecutorial vindictiveness when the state seeks the death penalty following a mistrial and appeal. Under these circumstances, the state’s election to seek the enhanced punishment offends due process under the Georgia Constitution.
This conclusion is in accord with the decision of the Supreme Court of Missouri’s opinion in Patterson v. Randall.13 In that case, the court was confronted with an issue differing from ours only in that the defendant had successfully appealed a conviction and life sentence before a second prosecutor sought the death penalty. The only change between the two trials affecting the penalty sought was that one prosecutor believed in the death penalty and the other did *124not. The court held that the state’s explanation fell short of meeting the burden placed on the state. Because the state failed to meet its burden, the court presumed that the state might be retaliating against the accused. Therefore, the court held that the prosecutor’s election to seek the death penalty at the second trial violated due process.14
The state’s attempt to rebut the inference of vindictiveness — by stating that the prosecutors in Thomas County simply reviewed the same evidence as the prosecutors in McIntosh County and came to a different conclusion on the appropriate penalty — is similarly inadequate. The state as a single sovereign may not circumvent the rules of law and principles of fairness by acting in the guise of first one prosecutor and then another.15 More important, the state fails to identify any new fact developed prior to Griffin’s appeal that justifies increasing the penalty sought.16
Because the enhanced punishment here is a death sentence, this case is distinguishable from the federal cases on which the majority relies in rejecting the presumption. First, the possibility of execution may have far greater impact on the exercise of rights than the possibility of a longer prison term or a larger fine. Whereas a defendant may feel minimal pressure to plead guilty and forego a jury trial after a first jury is unable to reach a verdict on lesser charges, a defendant newly confronted with even a remote chance of execution may feel forced to plead guilty and accept a life sentence. Second, the decision to seek the death penalty on retrial lacks the logical underpinnings that may justify the addition of new charges. Based on the learning experience of trying the case once without success, the state might reasonably bring new charges as part of a strategy to present its evidence differently in the second trial.17 In contrast, seeking the death penalty in a second trial for the same crime would not likely contribute to a better presentation of the evidence of that crime. Finally, the state should exercise its discretion to seek the death penalty only in cases in which the evidence of guilt is overwhelming.18 After Griffin’s first trial ended with a majority of jurors prepared to acquit him of the murder, the state could not reasonably anticipate lack of residual *125doubt as to Griffin’s guilt on retrial.
Because the state’s actions pose a realistic likelihood of vindictiveness and the state has failed to rebut the inference of vindictiveness, the State Constitution’s due process clause prohibits it from seeking the death penalty against Griffin on retrial. Therefore, the state should not be able to seek to have Griffin sentenced to death for the murder of Jenny Rhames in any county.
2. The Georgia Criminal Code also bars the kidnapping with bodily injury count of the Thomas County indictment. State law limits multiple prosecutions for crimes arising from the same criminal conduct.19 OCGA § 16-1-7 (b) requires the state to bring a single prosecution if “the several crimes [1] arising from the same conduct [2] are known to the proper prosecuting officer at the time of commencing the prosecution and [3] are within the jurisdiction of a single court.”
All three prongs of the statute are satisfied here. First, the kidnapping clearly arose out of the same course of conduct as the murder.20 The state alleges that both crimes occurred on the same day in the same county involving the same defendant and victim. Second, the kidnapping was known to the proper prosecuting officer — the McIntosh County district attorney — at the time of the original indictment.21 The parties stipulated that when Griffin was first indicted for murder in McIntosh County, the district attorney knew about the potential kidnapping charge. At oral argument, the state conceded that the prosecutors of the two counties communicated about the potential charges from the outset. Griffin was not indicted for kidnapping, however, because the state chose to indict him in McIntosh County and the prosecutors believed that venue for the kidnapping charge was proper only in Thomas County. Finally, the kidnapping and murder charges were “within the jurisdiction of a single court,” specifically the Superior Court of Thomas County.22 Therefore, the state waived the kidnapping charge when it chose to prosecute Griffin for murder in McIntosh County.
In reaching its conclusion that Griffin can now be prosecuted for kidnapping, the majority ignores precedent, plain statutory language, and the purpose of § 16-1-7 (b). In Potts v. State,23 we addressed whether § 16-1-7 (b) barred Potts’s prosecution for murder in Forsyth County when he had been prosecuted for kidnapping the same victim *126in Cobb County. We held that
it is undisputed that the murder of Michael Priest took place in Forsyth County and that the kidnapping with bodily injury took place in Cobb County. As a matter of law, the two offenses were not within a single court’s jurisdiction, and could not have been tried together. Therefore, we find no procedural bar to the appellant’s subsequent prosecution for the murder of Michael Priest in Forsyth County.24
This holding was predicated on the fact that the crimes could not have been tried within a single court’s jurisdiction. Conversely, if the kidnapping and murder could have been tried within a single court’s jurisdiction, the second prosecution would have been barred. This case presents that logical extension of Potts. Before indicting Griffin, the state was aware that it could prosecute him for murder and kidnapping in Thomas County, but the state elected not to do so, instead proceeding with the murder charge alone in McIntosh County. Under the rationale of Potts, the state may not now try Griffin for the kidnapping in Thomas County.
Further, the statutory language completely refutes the majority’s interpretation of § 16-1-7 (b) as creating “a ‘single venue’ rule . . . bar [ring] multiple prosecutions only within the same jurisdiction.”25 In a linguistic sleight of hand, the majority has transformed the third phrase, “within the jurisdiction of a single court,” to the phrase “within a single venue.” But, as we recognized in Potts, the phrase, “are within the jurisdiction of a single court,” includes crimes that occur within different counties or venues so long as those crimes can be tried in a single court of one of those counties or venues. This plain language is consistent with the fundamental notion, which goes unaddressed in the majority opinion, that each county in the state is not a separate sovereign. The state cannot be carved into separate jurisdictions in evaluating a double jeopardy claim for it is the state, as a single sovereign, that the statute prohibits from seeking successive prosecutions.26
Finally, this case illustrates the situation that § 16-1-7 (b) was designed to prevent. As the majority acknowledges, § 16-1-7 (b) prevents an accused from being unduly harassed or threatened by successive criminal prosecutions. Although Griffin could have been tried for murder and kidnapping in Thomas County in a single prosecution, *127the state first tried him for murder in McIntosh County. Because both crimes could have been disposed of in one prosecution, the second prosecution is fundamentally unfair, unnecessary, and “unduly harasses” Griffin. The majority fails to recognize that a defendant suffers the same harassment from unnecessary successive prosecutions whether they are in one venue or in multiple jurisdictions. The majority opinion, instead, treats similarly situated defendants disparately, granting protection to a defendant who fortuitously happens to be charged with committing crimes in one county, and denying it to a defendant charged with committing his crimes in multiple counties.
I am authorized to state that Justice Sears joins in this dissent.
United States v. Goodwin, 457 U. S. 368, 371 (102 SC 2485, 73 LE2d 74) (1982).
North Carolina v. Pearce, 395 U. S. 711, 723-726 (89 SC 2072, 23 LE2d 656) (1969); see also Blackledge v. Perry, 417 U. S. 21 (94 SC 2098, 40 LE2d 628) (1974) (applying same rule when the defendant received an increased sentence for a felony conviction after appealing a misdemeanor conviction for the same conduct).
United States v. Marrapese, 826 F2d 145, 147 (1st Cir.), cert. denied, 484 U. S. 944 (108 SC 331, 98 LE2d 358) (1987).
United, States v. Goodwin, 457 U. S. at 381; see also United States v. Doran, 882 F2d 1511, 1520 (10th Cir. 1989) (adopting totality of circumstances approach in assessing the realistic likelihood of vindictiveness when prosecutor adds enhanced charges following a mistrial and defendant’s assertion of right to a speedy trial).
637 SW2d 16 (Mo. 1982).
Id. at 19; see also Murphy v. State, 453 NE2d 219, 227 (Ind. 1983) (finding presumption of vindictiveness when state sought enhanced penalty at retrial after foregoing its right to seek the penalty in first trial which ended in a mistrial).
Thigpen v. Roberts, 468 U. S. 27, 30 (104 SC 2916, 82 LE2d 23) (1984); Patterson v. Randall, 637 SW2d at 19.
See Wasman v. United States, 468 U. S. 559, 572 (104 SC 3217, 82 LE2d 424) (1984).
United States v. Mays, 738 F2d 1188, 1190 (11th Cir. 1984).
Gregg v. Georgia, 428 U. S. 153, 225 (96 SC 2909, 49 LE2d 859) (1976) (White, J., concurring) (prosecutors are presumed to base their charging decisions on the strength of their case as well as the likelihood a jury would impose the death penalty).
State v. Estevez, 232 Ga. 316, 317 (206 SE2d 475) (1974).
See McCannon v. State, 252 Ga. 515 (315 SE2d 413) (1984); see also Henderson v. State, 227 Ga. 68, 76 (179 SE2d 76) (1970) (kidnapping and murder counts properly tried together because they were “part of one continuous transaction covering a period of 18 to 20 hours”).
See Baker v. State, 257 Ga. 567, 568-569 (361 SE2d 808) (1987).
See Brock v. State, 146 Ga. App. 78, 80 (245 SE2d 442) (1978).
241 Ga. 67 (243 SE2d 510) (1978).
Id. at 77-78. (Emphasis supplied.)
Majority opinion at 118.
Brown v. Ohio, 432 U. S. 161, 164, n. 4 (97 SC 2221, 53 LE2d 187) (1977) (prosecutions in two separate counties are acts of a single sovereign under double jeopardy clause).