Death Penalty Law - Michael Mears and Holly Geerdes

• Publication year: 2003

Death Penalty Lawby Michael Mears*and

Holly Geerdes**

This Article surveys the death penalty decisions of the Georgia Supreme Court from June 1, 2002 through May 31, 2003.¹ 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 recent decisions of the Supreme Court of the United States are included in this survey because of their salience to Georgia death penalty law.

I. Pretrial Issues

This section covers issues involving indictment, grand juries, search and seizure, discovery, and change of venue.

A. Indictment

Appellant in Sallie v. State² was first indicted in 1990 by a Bacon County grand jury for murder and various other charges. Sallie was subsequently tried and convicted on all counts except armed robbery and theft by taking. The supreme court reversed appellant's convictions in

1998 and returned his case to Bacon County.³ At the State's request, appellant's indictment was nolle prossed, only to have a Bacon County grand jury reindict Sallie less than six months later on the same offenses (excluding theft by taking and armed robbery). Appellant filed a motion to quash the second indictment, arguing that the State was required to charge exceptions to the statute of limitations for all of the nonmurder charges due to the time lapsed since the commission of those crimes, but the trial court denied appellant's motion.⁴ Stating that section 17-3-3 of the Official Code of Georgia Annotated ("O.C.G.A")⁵ provides for a six-month extension when an indictment brought within the statute of limitations is later nolle prossed, not an exception to the statute of limitations that must be pleaded in the indictment,⁶ the court held that "the State may re-indict a defendant within six months after the first indictment is nolle prossed without running afoul of the statute of limitation even if the initial statute of limitation period has run."⁷

At trial, appellant in Braley v. State⁸ was found guilty of malice murder, felony murder, kidnapping with bodily injury, armed robbery, and aggravated battery, and was sentenced to death after a jury found beyond a reasonable doubt that the murder was committed while appellant was engaged in the commission of other statutory aggravators. Appealing this sentence, Braley argued that the trial court erred in denying each of his motions to quash various charges in his indictment.⁹ While the issue of error surrounding two of the specified charges was declared moot,¹⁰ the court found no error in the trial court's refusal to quash the remaining counts.¹¹ The court held that the count of kidnapping with bodily injury and the count of armed robbery each placed appellant on sufficient notice of the charges against him,¹² and that the Georgia statutes defining each of those crimes were not unconstitutionally vague.¹³ The court also held that O.C.G.A. section 16-5-40¹⁴ is not unconstitutional on the ground that it may serve as the basis for a death sentence in cases in which the kidnapping results in the death of the victim.¹⁵

Similarly, the court in Sallie upheld the trial court's denial of appellant's motions to dismiss various statutory aggravating circumstances from his indictment.¹⁶ Finding no error in the trial court's refusal to dismiss the statutory aggravating circumstance based on the commission of a burglary, the court explained that Sallie's claim of authority to enter the family home of his estranged wife was not supported by law.¹⁷ The court also upheld the trial court's determination that the count of the indictment alleging "an assault upon the person of [the victim] with a pistol, a deadly weapon, by shooting said [victim] with said pistol,"¹⁸ was sufficient to charge the elements of aggravated assault.¹⁹ Sallie argued that the trial court erred in not dismissing the two statutory aggravating circumstances related to his commission of murder while engaged in the commission of kidnappings with bodily injury to two victims distinct from the murder victim, claiming that the kidnappings with bodily injury occurred several hours after the murder.²⁰ Finding no error on the part of the trial court, the court stated, "[t]he O.C.G.A. [section] 17-10-30(b)(2) aggravating circumstance does not require simultaneity of action between the murder and the other capital felony or aggravated battery."²¹ Noting that the murder and kidnappings occurred within a "relatively short period of time,"²² the court held that these acts "can be fairly viewed as one continuous course of criminal conduct"²³ and stated that O.C.G.A. section 17-10-30(b)(2) does not require the victim of the murder and the kidnapping to be the same person.²⁴

B. Grand Jury

In Smith v. State,²⁵ the defendant was charged with malice murder and other crimes.²⁶ The supreme court granted defendant's application for interim review to address the trial court's ruling on defendant's Sixth Amendment fair cross-section challenges to the Hall County grand and traverse jury lists.²⁷ The trial court ruled against defendant on his challenge to the grand jury list and in favor of defendant on his challenge to the traverse jury list.²⁸ Applying the three-part test it established in Morrow v. State²⁹ for determining the existence of a prima facie Sixth Amendment fair cross-section violation, the court upheld the lower court's ruling on the grand jury list challenge, condoning the use of 1990 census numbers to create the 2000 grand jury list, and reversed its ruling on the traverse jury list challenge.³⁰ While the court held that defendant had satisfied his burden under the first prong of the Morrow test by establishing that Hispanics are a cognizable class for Sixth Amendment challenges,³¹ the court also held that Smith had not met his burden on the second prong because Smith failed to show an actionable disparity between the percentage of Hispanics on the traverse jury list and the percentage of jury-eligible, not just resident, Hispanics in the county.³² The court held that Smith established no "inherent exclusion" in Hall County's jury selection process, thereby failing the third prong of the Morrow test.³³ The jury commissioners had attempted sporadically to recruit eligible Hispanics, albeit unsuc-cessfully.³⁴

Appellant in Ramirez v. State³⁵ was indicted in DeKalb County on one count of malice murder, one count of felony murder, two counts of aggravated assault, two counts of aggravated battery, and one count of carrying a concealed weapon.³⁶ On interim review, the supreme court denied Ramirez's motion to quash his indictment based on underrepre-sentation of African Americans and Hispanics on the grand jury.³⁷ Citing its decision in Smith,³⁸ the court held that Ramirez's Fourteenth Amendment equal protection claim regarding the underrepresentation of African Americans failed because DeKalb County complied with the Unified Appeal Procedure and because Ramirez failed to show that the grand jury selection procedure was "susceptible of abuse or was not racially neutral."³⁹ The court held that Ramirez established a prima facie case of a Sixth Amendment fair cross-section violation by showing an 11.9 percent underrepresentation of African Americans on the grand jury source list.⁴⁰ However, the court found that Ramirez's showing was successfully rebutted by the State.⁴¹ Complying with the Unified Appeal Procedure by using the most recent census data to obtain "comprehensiveness and objectivity in the DeKalb County jury selection process" was a strong enough state interest to defeat Ramirez's claim of underrepresentation of African Americans.⁴² Because the burden was on Ramirez to prove "actual under-representation of Hispanic per-sons,"⁴³ the court held that Ramirez's showing of inadequate tracking of Hispanics by the county jury commissioners did not itself suffice to present a prima facie case of either an equal protection or fair cross-section violation.⁴⁴

Ruling against the appellant's Sixth Amendment challenge, the supreme court in Lawler v. State⁴⁵ held that Lawler failed to establish a fair cross-section violation regarding the Fulton County grand and traverse jury lists used in his case.⁴⁶ The court emphasized that there is no constitutional guarantee that an impaneled jury will be a representative cross-section of the community and that, rather, such an inquiry focuses on whether the procedures for compiling the jury lists are fair.⁴⁷

The court in Sallie held that appellant failed to prove the systematic exclusion of disabled persons from the Bacon County grand jury.⁴⁸ Stating that Sallie's use of anecdotal evidence to establish exclusion was insufficient, the court also held that Sallie failed to prove that the physically disabled are a cognizable group for Sixth Amendment analysis.⁴⁹ The court found no legitimate equal protection claim because "[u]nlike race or gender, disability may legitimately affect a person's ability to serve as a juror."⁵⁰

The court also dealt with the issue of grand juror qualification in Sallie.⁵¹ Appellant protested that some of the grand jurors who indicted him were aware of his previous trial and convictions.⁵² The supreme court noted that a person is not disqualified to serve on a grand jury because they have "heard or read about the case under investigation or ha[ve] even formed or expressed an opinion as to the guilt of the accused."⁵³ The court held that any such possible error in Sallie's indictment was harmless as the "trial jury's verdict of guilt beyond a reasonable doubt demonstrates that there was probable cause to charge the defendant."⁵⁴

C. Search and Seizure

In Lawler appellant sought to suppress evidence allegedly obtained through an illegal stop and multiple illegal searches.⁵⁵ The...