Death Penalty Law - Michael Mears

• Publication year: 2002

Death Penalty Lawby Michael Mears^*

This Article is a survey of death penalty decisions from the Georgia Supreme Court for the period of June 1, 2001 through May 31, 2002.¹ The discussion encompasses cases heard by the Georgia Supreme Court both on direct appeal and on review of habeas corpus decisions related to death penalty law in Georgia. The scope of this Article is limited to decisions that affect the trial and appeal of death penalty cases. Therefore, with a few exceptions, this Article does not discuss holdings in capital cases that are common to all criminal appeals. Because of their significant impact on Georgia's death penalty law, two recently decided U.S. Supreme Court decisions are included in the survey.

I. Pretrial Issues

This section covers prosecutorial discretion in seeking the death penalty, indictment, search and seizure, confessions and admissions, discovery, change of venue, and recusal of the district attorney.

A. Prosecutorial Discretion in Seeking the Death Penalty

Appellant in Lance v. State² was convicted of two counts of malice murder, burglary, and possession of a firearm during the commission of a crime. Appealing his death sentence, Lance sought review of a denied motion to quash the State's notice of intent to seek the death penalty.³ The Georgia Supreme Court affirmed the trial court's decision, finding that the evidence was sufficient to enable a rational trier of fact to find proof beyond a reasonable doubt that the statutory aggravating circumstance supported the death sentence for the murder.⁴ Referring to Speed v. State⁵ and Jenkins v. State,⁶ the court stated, "in order for the trial court to have granted appellant's motion, appellant would have had to prove that the State could not prove its case against him."⁷

The court, using the same reasoning, made a similar ruling in McPherson v. State.⁸ Appellant, convicted of malice murder, financial transaction card theft, and two counts of theft by taking, filed a motion to quash the State's notice of intent to seek the death penalty.⁹ As in Lance, the trial court denied the motion, and the decision was affirmed by the Georgia Supreme Court because it found sufficient evidence to prove beyond a reasonable doubt the aggravating circumstances that made appellant eligible for a death sentence.¹⁰

Further, the court in Brannan v. State¹¹ held that the trial court was correct in denying appellant's motion to exclude the death penalty on account of the arbitrary use of prosecutorial discretion in the plea bargaining process.¹² Brannan, convicted of malice murder, contended that the State had too much discretion in choosing either to seek the death penalty or to offer a plea bargain.¹³ Citing Gregg v. Georgia,¹⁴ the court found Brannan's contention without merit, noting, "Georgia law authorizes the death penalty for Brannan's crime, and he has failed to show that the prosecutor acted in an unconstitutional manner with respect to his case."¹⁵

B. Indictment

Appellant in Raheem v. State¹⁶ argued that the trial court erred in overruling his demurrer of the indictment that charged him with felony murder and possession by a convicted felon of a firearm, which caused the victims' deaths.¹⁷ Appellant argued that

because the contested counts of his indictment did not specify how or why the possession of the firearm was necessarily inherently dangerous to the victims, those counts failed to satisfy the requirement that a charge in an indictment be "wholly complete within itself, and plainly, fully, and distinctly set out the crime charged in that count."¹⁸ @@@

The court ruled appellant's argument was without merit because the indictment was "in the 'terms and language' of the Code and was fully sufficient to place him on notice of the issues to be decided and to allow him an opportunity to prepare his defense."¹⁹

The court similarly upheld the trial court's denial of a demurrer to the indictment in Lucas v. State²⁰ because the indictment "tracked the language of the Georgia Code, could be clearly and easily understood, and provided adequate notice of the crimes charged."²¹

C. Search and Seizure

In Raheem appellant Raheem appealed his death sentence for two counts of malice murder and four counts of felony murder, arguing that his arrest was unlawful because it was made in his residence without a warrant.²² Appellant was living with his girlfriend, the sole lessee of the apartment. The trial court found that because appellant's girlfriend gave valid consent for police entry into the apartment, the entry was lawful.²³ The Georgia Supreme Court noted that "[a] warrant is required for an arrest made inside the arrested person's residence, absent consent or exigent circumstances."²⁴ Here, the court concluded that Raheem's girlfriend's consent to search the apartment was valid, and obviated the need for an arrest warrant because the requirement for a warrant "does not apply where entry into the arrested person's residence is consented to by a third party who shares common authority over the residence."²⁵

Likewise, the court in Presnell v. State²⁶ upheld the admission of a handgun and books of child pornography seized from appellant's residence during a warrantless police search.²⁷ There, a search warrant was not necessary because appellant's mother consented to the search of his bedroom.²⁸ Appellant lived with his mother in the apartment, but "his mother had common control and authority over his bedroom and . . . she could therefore consent to a search of that area."²⁹ Presnell also argued that a warrant issued later to search his vehicle was illegal because the magistrate was not neutral and had a pecuniary interest in issuing the warrant.³⁰ The court, without sharing its reasoning, dismissed this argument, stating instead that the search warrant was "facially valid and supported by probable cause."³¹

Appellant in Brannan contended that the hospital employee who took a blood sample, which was later used to test for marijuana, was acting as an agent of the State, thereby requiring the suppression of the evidence.³² However, the court, without explanation, stated there was not enough evidence to prove the allegation.³³ The court then summarily affirmed the trial court's ruling that the evidence was admissible and that the warrant used to obtain the blood sample was proper and based on probable cause.³⁴

Brannan also contended that two searches of his home were improper. Police had an arrest warrant, but when they came to the house, appellant was not there as he had run to the woods. Police seized two rifles that were leaning against the side of the house, one of which was the murder weapon.³⁵ Both the trial court and the Georgia Supreme Court admitted the evidence, stating that "a police officer inside a suspect's home pursuant to a valid arrest warrant may seize evidence in plain view."³⁶

In Lance appellant argued that evidence obtained during an unlawful arrest should have been suppressed. The search produced an empty shoebox that was of the size and type of shoe that matched the imprints found at the scene of the crime and an unspent shotgun shell that matched ammunition used in the murder.³⁷ The Georgia Supreme Court rejected the argument and affirmed the trial court's admission of the evidence, noting, "There is no merit in this argument since the consent form Lance signed clearly indicated the potentially extensive scope of the search to be conducted, Lance gave oral consent to the scope of the search actually conducted, and Lance attended the actual search and never withdrew his consent."³⁸ Appellant further complained that police improperly relied upon a confidential witness to show probable cause for a warrant. He maintained that several unnamed witnesses, who were not proved to be reliable, were described in the affidavit and used in the application for the warrant.³⁹ Although the court admitted this was true, the court continued by saying the witnesses were likely to have been "merely 'citizen informers' rather than the sort of 'informants' typically deemed suspect without a showing of reliability."⁴⁰ Additionally, sufficient facts "from named and reliable sources were presented in the affidavit to show probable cause," making the issued warrant legal.⁴¹

D. Confessions and Admissions

In Rhode v. State,⁴² appellant sought review of the trial court's refusal to suppress evidence and statements made in interviews at appellant's home, the County Sheriff's office, and later statements made after police had advised appellant of his Miranda⁴³ rights. In the interviews, appellant admitted he fired at the victims. Following the interviews, appellant led law enforcement officers to two locations where he and co-appellant had secreted weapons and other items.⁴⁴ The supreme court affirmed the lower court's decision, stating first that "Miranda warnings were not required to be given at any point before they actually were because Rhode was not then under arrest or confronted with circumstances that would have led a reasonable person in his position to believe he or she was under arrest."⁴⁵ Secondly, "Rhode's statements were voluntary[;] . . . he never requested an attorney or wished to remain silent."⁴⁶

The court ruled that videotaped confessions in both Lucas and Raheem were voluntarily made after appellants had been advised ofand waived their rights.⁴⁷ In Lucas appellant made a videotaped confession to investigators and testified regarding his inculpatory statement to a friend.⁴⁸ The Georgia Supreme Court found that, consistent with section 24-3-50 of the Official Code of Georgia Annotated ("O.C.G.A."), the statements were "not induced by 'the slightest hope of benefit or remotest fear of injury,'" and were therefore admissible.⁴⁹

In Raheem appellant argued, based on an inaudible section of a videotaped interview, that the previous consent to questioning was interrupted when he asked if the statement could be used in court and the...