On direct appeal, we concluded that the two statutory aggravating circumstances, the murders of the two women, were mutually supporting, vacated the death penalty for the murder of his wife Mildred Godfrey, and affirmed the sentence of death for the murder of Chessie Wilkerson, his mother-in-law. Godfrey v. State, 248 Ga. 616 ( 284 S.E.2d 422) (1981). Godfrey then filed for a writ of habeas corpus, which was denied.
Redd did not contend that the state could not reseek the death penalty, for Bullington clearly allows for it where a death penalty which is first imposed is set aside on legal grounds. See, Godfrey v. State, 248 Ga. 616 (1) ( 284 S.E.2d 422) (1981). Neither did Redd complain of the submission to the second sentencing jury of the one aggravating circumstance found by the first jury or of the one not submitted to that jury.
The Georgia trial court again sentenced Godfrey to death, and the Georgia Supreme Court again affirmed. Godfrey v. State, 248 Ga. 616, 284 S.E.2d 422 (1981). The U.S. Supreme Court declined to consider Godfrey's case again.
A defendant who procures the setting aside of a judgment against him generally "`may be tried anew . . . upon another indictment, for the same offense of which he had been convicted.' [Cit.]" Godfrey v. State, 248 Ga. 616, 618 (1) ( 284 SE2d 422) (1981) (quoting Ball v. United States, 163 U. S. 662 ( 16 SC 1192, 41 LE 300) (1896)). Ordinarily, where a "defendant was deprived of effective assistance of counsel but the evidence was nevertheless sufficient to convict, the proper remedy is to reverse defendant's conviction and remand the matter for a new trial.
Wilson v. State, 250 Ga. 630, 638 ( 300 S.E.2d 640) (1983). See, e.g., Burden v. State, 250 Ga. 313, 316 ( 297 S.E.2d 242) (1982), Godfrey v. State, 248 Ga. 616, 625 ( 284 S.E.2d 422) (1981); Waters v. State, 248 Ga. 355, 368 ( 283 S.E.2d 238) (1981). Because we find that each death sentence is supported by at least one statutory aggravating circumstance, we need not and do not reach the issue whether the evidence of McMichen's harassment of Luan throughout the ten or more months preceding her death was sufficient to support a finding of psychological torture under OCGA § 17-10-30 (b) (7).
However, this argument has been decided adversely to the defendant by the United States Supreme Court in Poland v. Arizona, supra, as well as by this court in Zant v. Redd, supra. See also Page v. State, 257 Ga. 538 ( 361 S.E.2d 153) (1987); Godfrey v. State, 248 Ga. 616, 618 ( 284 S.E.2d 422) (1981). It is uncontroverted that the jury found an aggravating circumstance and returned a verdict in favor of the death penalty.
However, it was clear that the jury intended to find an aggravating circumstance and to recommend the death penalty. Godfrey v. State, 248 Ga. 616, 618 ( 284 S.E.2d 422) (1981); Zant v. Redd, 249 Ga. 211 ( 290 S.E.2d 36) (1982). Furthermore, the evidence supported that verdict.
As pointed out in Zant v. Redd, supra, 249 Ga. at p. 212, "Redd did not contend that the state could not reseek the death penalty, for Bullington clearly allows for it where a death penalty which is first imposed is set aside on legal grounds. See Godfrey v. State, 248 Ga. 616 (1) ( 284 S.E.2d 422) (1981). Neither did Redd complain of the submission to the second sentencing jury of the one aggravating circumstance found by the first jury or of the one not submitted to that jury.
Consequently, a new jury has been impaneled in numerous subsequent Georgia cases when the original decision was remanded for a new penalty hearing. See, Godfrey v. State, Ga.Supr., 248 Ga. 616, 284 S.E.2d 422 (1981); Stevens v. State, Ga.Supr., 245 Ga. 583, 266 S.E.2d 194, 196 (1980); Burger v. State, Ga.Supr., 245 Ga. 458, 265 S.E.2d 796, 798 (1980); Sprouse v. State, Ga.Supr., 242 Ga. 831, 252 S.E.2d 173, 176 (1979); Fleming v. State, Ga.Supr., 243 Ga. 120, 252 S.E.2d 609, 611 (1979). A similar conclusion was reached in Messer v. State, Fla.Supr., 330 So.2d 137 (1976), where the Florida Supreme Court reasoned that a new jury should be impaneled even though it would "result in a hearing before a different jury from that which heard the evidence upon which the verdict of guilty was rendered".
[Cit.] Since the distinction between questions which ask jurors how they would decide issues of a case if and when such issues are presented and questions which merely inquire whether jurors can start the case without bias or prior inclination is not always crystal clear, the `control of the voir dire examination is vested in the sound legal discretion of the trial judge and will not be interfered with by this court unless the record clearly shows an abuse of that discretion.' Lamb v. State, 241 Ga. 10, 12 ( 243 S.E.2d 59) (1978)." See also, Godfrey v. State, 248 Ga. 616, 621 ( 284 S.E.2d 422) (1981). Under the circumstances of this case we cannot say the trial court abused its discretion.