Death Penalty Law - Holly Geerdes and David Lawless

• Jurisdiction: United States,Federal,Georgia
• Publication year: 2004
• Citation: Vol. 56 No. 1

Death Penalty Lawby Holly Geerdes^* and David Lawless^**

This Article surveys the death penalty decisions of the Georgia Supreme Court from June 1, 2003, through May 31, 2004.¹ The cases discussed include those heard by the supreme court on interim appeal, on direct appeal, and on review of habeas corpus decisions. Focusing on the court's decisions that affect the trial and appeal of death penalty cases, this Article, with some exceptions, does not discuss holdings in capital cases that are common to all criminal appeals. Four United States Supreme Court decisions are included in this survey because of their salience to Georgia death penalty law.

I. Pretrial Issues

This section covers issues involving grand juries, discovery, custodial statements, and speedy trial.

A. Grand Jury

In Sealey v. State,² appellant contended that his indictment was invalid because the jury commissioners, in an attempt to comply with section 15-12-40(a)(1) of the Official Code of Georgia Annotated ("O.C.G.A."),³ excluded some prospective grand jurors because they did not have a high school education.⁴ Testimony established, however, that the commissioners had required "a third grade education or something" and that each disqualified juror was replaced by a person of the same race and gender.⁵ Under these facts the court held that challenges to the array based on statutory procedures, rather than constitutional requirements, cannot be sustained because statutory procedures are "merely directory."⁶

Additionally, Sealey claimed that Hispanics were under-represented on the source lists from which his petit and grand jury arrays were drawn.⁷ The Georgia Supreme Court rejected this contention because Sealey did not present evidence showing actual under-representation, the degree of under-representation, or that Hispanics constitute a cognizable group within the county.⁸ Further, no error arose out of the jury commissioners' use of the most recently available census information to create the source lists.⁹

B. Discovery

Appellant in Tubbs v. State¹⁰ was indicted for two counts of malice murder and four counts of felony murder. The alleged murders, involving two victims, occurred between 9:00 and 9:30 p.m. in Midway, Georgia, on May 12, 1998. Appellant gave written notice of his intent to offer an alibi defense in response to the State's demand pursuant to O.C.G.A. section 17-16-5(a).¹¹ Tubbs listed two witnesses with whom he was traveling in Louisiana at the time of the murders. During opening statement, defense counsel referred to other witnesses who could place Tubbs in Louisiana during the month of May and within hours of the crime but not at the exact time the crimes occurred. The State argued that these witnesses should have been listed as alibi witnesses. On the State's motion, the trial court granted a continuance and subsequently declared a mistrial sua sponte.¹² On appeal the court held that the trial court did not err in finding that defendant's alibi notice did not comply with O.C.G.A. section 17-16-5(a).¹³ The court concluded that all witnesses who would make it impossible for defendant to be at the crime scene at the time of the crime must be listed as alibi witnesses.¹⁴

The court also held that the trial court did not abuse its discretion in granting a mistrial sua sponte.¹⁵ The court stated that a showing of bad faith and prejudice is only necessary to justify the exclusion of alibi evidence under O.C.G.A. section 17-16-6;¹⁶ such a showing is not necessary to justify a mistrial.¹⁷ When defense counsel fails to give a required notice or make a preliminary showing before mentioning evidence in opening statement, the trial court does not abuse its discretion in granting a mistrial.¹⁸

In Head v. Stripling,¹⁹ the court affirmed the habeas court's finding that the suppression of Stripling's parole file, which contained exculpatory evidence supporting his mental retardation claim, constituted a Brady²⁰ violation.²¹ At trial defense counsel attempted to obtain a copy of the parole file. The trial court reviewed the file in camera pursuant to Pope v. State²² but did not release the files because it found that the evidence it contained, while relevant, was cumulative to the testimony of the defense expert who testified at the competency hearing. It was not until Stripling's habeas counsel secured the file that it was discovered to contain information relevant to Stripling's mental retardation claim, which was not available elsewhere.²³

The court rejected Stripling's claim that failure to release the file was error during his direct appeal.²⁴ The court, however, ruled that because Stripling had claimed error under Pope and did not, and could not have, claimed error under Brady, his current claim was not procedurally barred from habeas review.²⁵ The court concluded that the attorney general's office, which possessed the file before trial, became part of the prosecution team through its involvement in litigation over the defense's efforts to obtain the file.²⁶ Therefore, the State possessed evidence favorable to Stripling's defense. Stripling did not possess the evidence contained in the file and was unable to obtain it despite his diligent efforts to do so. Also, the State's proper motive in suppressing the file, O.C.G.A. section 42-9-53,²⁷ was irrelevant. Lastly, the evidence contained in the file was material: the evidence, which was generated by state officials, characterized Stripling as mentally retarded and refuted prosecution evidence.²⁸ The court directed that a bifurcated jury re-trial occur with mental retardation to be determined in the first phase and sentencing in the second phase of the trial.²⁹

C. Speedy Trial

In Williams v. State,³⁰ the Georgia Supreme Court remanded the trial court's denial of appellant's constitutional speedy trial claim with regard to a burglary charge and two felony murder charges predicated on the burglary.³¹ The trial court referred to Williams's 1998 indictment for the burglary rather than a 1997 indictment that charged him with committing the same crime.³²

The court affirmed the trial court's dismissal of appellant's constitutional speedy trial claim with regard to other charges alleged in the 1998 indictment.³³ The primary reasons for delay were the defense's lack of preparation and extensive medical treatments that Williams required for a mass in his brain.³⁴ The court also weighed his previous failure to assert his right to a speedy trial against him.³⁵ The court declared, however, that the trial court was in error to the extent that it weighed heavily Williams's failure to make a particularized showing of the oppressiveness of his pre-trial incarceration and decreased ability to present a defense, because of the extreme delay in bringing his case to trial.³⁶

II. Jury Selection

This section covers the permissible scope of examination and the improper excusal of jurors.

In Sealey v. State,³⁷ the Georgia Supreme Court held that it was not an abuse of discretion for the trial court to limit questions regarding jurors' knowledge of legal terminology that, according to the court, seemed "to seek a prejudgment of the case."³⁸ Nor did the trial court abuse its discretion in disallowing questions unrelated to possible juror bias regarding the manner in which jurors would conduct themselves during deliberation.³⁹ The court also held that Sealey abandoned his claim that he was denied a qualified jury panel when he failed to name the jurors at issue or to provide citation to the record.⁴⁰ Additionally, the trial court did not err in excusing several jurors for reasons of personal hardship.⁴¹ The court explained that trial courts, in addition to their statutory duty to dismiss jurors in certain circumstances, also possess a discretionary ability to dismiss jurors for reasons of personal hardship.⁴²

III. Guilt and Innocence

This section discusses custodial statements, sufficiency ofthe evidence of guilt, improper communications between judge and jury, the admissibility of polygraph evidence, and closing argument.

A. Custodial Statements

Appellant in McDougal v. State⁴³ voluntarily accompanied detectives to a police station where the detectives interviewed him in connection with an armed robbery and murder. McDougal did not match an initial description of the murder suspect in the case. A handgun, said to be his and matching the caliber of the murder weapon, was found in a dumpster within feet of his work station. McDougal was not handcuffed, searched, or advised of his Miranda⁴⁴ rights. On arrival at the police station, he was led through two sets of locked doors and was questioned =====

37. 277 Ga. 617, 593 S.E.2d 335 (2004).

38. Id. at 619, 593 S.E.2d at 338.

39. Id. at 620, 593 S.E.2d at 338.

40. Id.

41. Id., 593 S.E.2d at 338-39.

42. Id. (citations omitted).

43. 277 Ga. 493, 591 S.E.2d 788 (2004).

44. Id. at 493-94, 591 S.E.2d at 790-91 (citing Miranda v. Arizona, 384 U.S. 436 (1966)). in a secure interview room. He attempted to avoid answering a question regarding the gun by repeating his prior statement that he was a convicted felon. Detectives repeatedly informed McDougal that they had enough information to arrest him for possession of a firearm but did not tell him whether or not they intended to do so. Further, one of the detectives told him that he would not be released in time for an appointment.⁴⁵

The court rejected the State's contention that McDougal was not in custody at the time of this initial questioning because at that point he was not suspected of having committed the murder.⁴⁶ The court determined "the subjective intentions of the interrogators are irrelevant to a determination of whether a suspect is in custody."⁴⁷ The court also determined the fact that McDougal was repeatedly told that he was not under arrest was inconclusive because the detectives' words and actions indicated that he was in custody.⁴⁸ The court held that the statement that McDougal made prior to being...