Death Penalty Law - Michael Mears

• Publication year: 2001

Death Penalty Lawby Michael Mears^*

This Article is an update on the status of death penalty law in Georgia since May 31, 2000.¹ This Article covers death penalty decisions from the Georgia Supreme Court for the period of June 1, 2000 through May 31, 2001. This Article discusses direct appeal decisions, as well as other cases that relate to death penalty law in Georgia. An attempt has been made to limit the scope of this Article only 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.²

I. Pre-Trial Issues

This section covers pretrial motions, discovery, pleas, and other matters prior to jury selection. In State v. Ray,³ defense counsel challenged the admissibility of the client's confession. In Ray the trial court held Scott Brandon Ray's confession to be inadmissible because the police officers who conducted the interrogation implied to Ray that he would avoid the death penalty if he confessed. On July 8, 1998, the police interviewed Ray regarding his involvement in the shotgun murder of Paulajayne Sprague. The police officers interrogating Ray implied that he could receive a life sentence rather than a death sentence if he confessed to the crime and described the other individual who was allegedly involved in the crime. The officers told Ray that he could get

"years of freedom" if he gave his partner up.⁴ One officer told Ray that they would find his accomplice and asked him to consider whether that person might turn on him if they were facing the prospect of getting their "ass strapped into a wooden chair and 2,000 volts run through" them.⁵ Under Georgia law, only statements that are voluntary can be admitted at trial.⁶ The State bears the burden of demonstrating the voluntariness of a confession by a preponderance of the evidence.⁷ The Georgia Supreme Court affirmed the exclusion of Ray's confession because Ray's admission was involuntary and therefore inadmissible.⁸

In Gissendaner v. State,⁹ defense counsel requested a change of venue.¹⁰ The supreme court upheld the trial court's decision to deny a change of venue motion stating: "[a] capital defendant seeking a change of venue must show that the trial setting was inherently prejudicial as a result of pretrial publicity or show actual bias on the part of the individual jurors."¹¹ The trial court acknowledged that some of the publicity "was potentially damaging to Gissendaner."¹² The supreme court likewise found the media coverage did not create '"an atmosphere of hostility'" and did not warrant a change of venue.¹³ Despite the fact that capital cases are inherently media events, the court found that the refusal to change venue did not cause any prejudice to Gissendaner.¹⁴ The supreme court further found that only 14 of 111 jurors were excused because of exposure to pretrial publicity, and this qualified as evidence that the environment was not "inherently prejudicial."¹⁵

In King v. State,¹⁶ defense counsel was not allowed to admit information regarding the lack of deterrence of the death penalty.¹⁷ The defense also tried, unsuccessfully, to introduce evidence that commented on the "alleged lingering doubt surrounding other persons' convictions and about life imprisonment in general."¹⁸ The supreme court affirmed.¹⁹

The majority also found no error in the trial court's order for King to disclose materials that were used by a defense expert to render an opinion on defendant's alleged mental retardation.²⁰ The court concluded that because it had previously "held that a defendant is entitled to discover expert reports and other forms of data relied upon by the State's experts in forming the opinions they will testify about, the State's reciprocal right of discovery would also include such materials."²¹

In Butts v. State,²² the supreme court found no error in the trial court's decision to deny defense's motion to bar prejudicial security measures in the courtroom.²³ The trial court ruled that four bailiffs would be present, two in uniform, and defendant could raise the issue again if he felt security became excessive.²⁴ Four uniformed officers were with the jury at night.²⁵

In Johnson v. State²⁶ Garry Deyon Johnson was charged with murder, and the State announced its intent to seek the death penalty.²⁷ Upon written demand from the prosecutor, Georgia law requires that the defense must serve a written notice of the defendant's intention to offer an alibi. The notice should include information regarding where the defendant claims to have been at the time of the alleged offense.²⁸ It should also include list of the witnesses that help establish the alibi.²⁹ The State served Johnson with a written demand for notice of any alibi defense, but Johnson refused to give information regarding his alibi because he was the only one that would give testimony as to his whereabouts.³⁰ The trial court ruled that "Johnson must give notice to the State of any alibi testimony he might give at trial on his own behalf."³¹ The supreme court held according to section 17-16-5(a) of the

Official Code of Georgia ("O.C.G.A."): a witness is denned by O.C.G.A. section 17-16-1(3), which states that the term "'[wjitness' does not include the defendant.'"³² The majority found the trial court's ruling to be erroneous and stated Johnson could not be compelled to divulge his testimony.³³

II. Jury Selection

This section covers jury arrays and jury selection in capital cases. The death qualification of prospective jurors is not unconstitutional in the State of Georgia.³⁴ In order for a juror to be death qualified, his views must not "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath."³⁵ One of the duties of a juror in a capital case is to be able to consider and impose a death sentence.

In Zellmer v. State,³⁶ the trial court ruled, "[defendant] did not have the right to voir dire prospective jurors regarding their willingness to consider both of the non-death sentencing options, life without parole and life imprisonment."³⁷ The supreme court reversed and found "a statutory right to examine prospective jurors concerning their willingness to consider a life sentence with the possibility of parole and a life sentence with no parolef.]"³⁸ According to Zellmer, juries in capital cases must determine the parole eligibility of those defendants who do not receive a death sentence.³⁹ O.C.G.A. section 15-12-133 authorizes criminal defendants and the State to examine "any fact or circumstance indicating any inclination, leaning, or bias which the juror might have respecting the subject matter of the action."⁴⁰ Parol eligibility is part of the subject matter of the action. The supreme court held that counsel has a "statutory right to examine prospective jurors concerning their willingness to consider a life sentence with the possibility of parole and a life sentence with no parole."⁴¹ In regard to sentencing, the supreme court held that voir dire should be limited to the jurors' willingness to impose certain sentences and should not involve a questioning of their belief systems regarding the sentencing options.⁴² The majority detailed the following examples as permissible voir dire questions relating to sentencing:

(a) If the defendant is found guilty of murder, and it becomes your duty to choose and impose one of the three sentencing options of death, life without parole, and life with the possibility of parole, and you do not feel death is the appropriate sentence, would you automatically choose and impose life without parole, without giving any consideration to a sentence of life with the possibility of parole?

Are you conscientiously opposed to a sentence of life with the possibility of parole for one who has been found guilty of murder?

(b) If the defendant is found guilty of murder, and it becomes your duty to choose an impose one of the three sentencing options of death, life without parole, and life with the possibility of parole, and you do not feel death is the appropriate sentence, would you automatically choose and impose life with the possibility of parole, without giving any consideration to a sentence of life without parole?

Are you conscientiously opposed to a sentence of life without parole for one who has been found guilty of murder?⁴³

In Heidler v. State,⁴⁴ * the majority held it was permissible for the trial court to qualify a juror who has a leaning toward the death penalty.⁴⁵ Prospective juror Still stated she would not exclude life without parole but that "the possibility would be strong" she would vote for the death penalty.⁴⁶ The supreme court found "[a] prospective juror is not disqualified merely for expressing a leaning for or against the death penalty."⁴⁷ The supreme court agreed with the trial court's decision to qualify prospective juror Malcom who stated, "God didn't spare people to take other people's lives and that a person who takes a person's life ought to have his life taken."⁴⁸ The majority reasoned that the juror stated she would not automatically vote to impose death for a convicted murderer and would consider the sentencing options the court provided.⁴⁹ Prospective juror Howard was also not dismissed, despite the fact he stated he would not consider voting for life with the possibility of parole. Mr. Howard eventually changed his answer after further questioning and conceded that he could consider life without parole.⁵⁰ The supreme court held the lower court did not abuse its discretion in qualifying Mr. Howard.⁵¹

The trial court in Jones v. State⁵² did not strike a juror who stated he believed in an "eye for an eye and that he was leaning to a death sentence."⁵³ The supreme court found no error because the same juror later stated he would consider both life and death sentences and he would hear the evidence before deciding.⁵⁴

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