Death Penalty Law - Therese M. Day

• Publication year: 2008

Death Penalty Law by Therese M. Day^*

This Article provides a survey of death penalty caselaw in Georgia from June 1, 2007 through May 31, 2008. The cases included in this Survey were heard by the Georgia Supreme Court on interim appeal and direct appeal.¹ Discussion is limited to claims that present new issues of law, refine existing law, or are otherwise instructive.

I. Georgia Supreme Court Decisions

A. Interim Review Cases

The Georgia Supreme Court reviewed five cases pursuant to interim appellate review of death penalty cases under the Unified Appeal Procedure.²

In Wagner v. State,³ Crystal Mae Wagner was indicted for murder, felony murder, and concealment of death, and the State filed its notice to seek the death penalty.⁴ The court granted Wagner's application for interim review and directed the parties to address five issues; Wagner raised two additional issues.⁵

The court first addressed whether the trial court erred in denying Wagner's motion to quash her indictment when the State charged her with felony murder.⁶ Count Two of Wagner's indictment contained the phrase "intentionally and with malice aforethought," language applicable to malice murder and not felony murder.⁷ The court held that the charge mixed the elements of the two offenses rather than charging them in the alternative.⁸ The court noted that "where a special demurrer points out an immaterial defect, the trial court should strike out or otherwise correct the immaterial defect."⁹ However, when a special demurrer identifies a material defect, the trial court "must quash the defective count of the indictment."¹⁰ The court held that the mixing of the elements of malice murder and felony murder in the indictment constituted a material defect, requiring that Count Two of Wagner's indictment be quashed.¹¹ in reaching this conclusion, the court reconsidered its prior decision in Bailey v. State,¹² in which it held "that a trial court does not err by denying a special demurrer 'where the defect in an indictment is not material and does not prejudice the defendant's rights.'"¹³ The court noted that while "questions of materiality and prejudice may be coextensive," a court should only employ harmless error review after a conviction has resulted and not in pretrial proceedings or a pretrial appeal.¹⁴ Therefore, the court disapproved of the language in Bailey to the extent that it could be construed to hold that a material defect that is not prejudicial to the defendant does not require the indictment to be quashed.¹⁵

The court next addressed whether the trial court erred in denying Wagner's motion to quash the indictment for the State's failure to allege in the malice murder count that the murder victim was a "human being."¹⁶ The court held that the failure to state that a specifically named victim was a human being was not a material defect, and therefore, the trial court did not err by refusing to quash the malice murder count of the indictment.¹⁷ in reviewing Wagner's third claim, the court addressed whether the trial court erred in denying Wagner's motion to quash the indictment because the State listed the wrong code section for the "Concealment of a Death" charge even though the elements of the offense were properly charged.¹⁸ The court held that the name of a code section in an indictment is "mere surplusage," and any misnaming is not a material defect.¹⁹ Therefore, it was not error for the trial court to refuse to quash this count of the indictment.²⁰ The court then directed the trial court to strike the incorrect code section from the indictment.²¹

In response to Wagner's fourth claim, the court addressed whether the trial court erred in denying Wagner's motion to have challenges for cause heard outside the presence of prospective jurors.²² The court held that while it is better for some matters to be raised outside the presence of the jurors, the trial court has discretion to control voir dire and, therefore, did not err when it refused to require that all challenges for cause be heard outside the presence of prospective jurors.²³

The final issue the court directed the parties to address was whether the trial court erred in denying Wagner's motion to compel the district attorney to testify about his decision to seek the death penalty.²⁴ The court noted that a prosecutor's discretion to seek the death penalty is limited by the code section enumerating statutory aggravating circum-stances²⁵ as well as by the strength of the evidence of the case and the jury's verdict.²⁶ The court then stated that policy considerations require a defendant to raise a prima facie case of unconstitutional conduct before a prosecutor will be required to testify regarding a decision to seek the death penalty.²⁷ The court held that because Wagner had been charged with a crime for which the federal and state constitutions permit the imposition of the death penalty, the trial court did not err by refusing to require the district attorney to testify about his decision to seek the death penalty in Wagner's case.²⁸

Wagner raised two issues in addition to the issues the court directed the parties to address.²⁹ The first issue was whether the trial court erred when it refused to dismiss one of the statutory aggravating circumstances listed in the State's death notice when the language stated, "'[t]he offense of murder in this case was committed for the purpose of receiving money' rather than . . . '[t]he offender' committed the murder for the purpose of receiving money,"³⁰ as provided for in section 17-10-30(b)(4) of the Official Code of Georgia Annotated (O.C.G.A.).³¹ The court recognized that because two defendants were charged with murder in this case, it was conceivable that while Wagner's codefendant committed the murder for pecuniary gain, Wagner's own participation was not for that purpose.³² Nonetheless, the court held that any confusion raised by the language in the notice could be cured by an instruction from the judge to the jurors and that the notice fulfilled its purpose of notifying Wagner of what she must defend against at trial.³³ Therefore, the court held that the trial court did not err when it refused to dismiss the statutory aggravating circumstance.³⁴

The second issue raised by Wagner was whether the State's notice to seek the death penalty was defective for failing to list which aspects of the murder involved "depravity of mind."³⁵ The court again ruled that the State's notice was sufficient to place Wagner on notice of the charges that she would have to defend against at trial and, therefore, found no error.³⁶ Accordingly, the court affirmed the lower court's decision in part, affirmed with direction in part, and reversed in part.³⁷

In Muhammad v. State,³⁸ Anjail Durriyyah Muhammad was indicted for malice murder, felony murder, and related charges, and the State filed its notice to seek the death penalty.³⁹ After granting Muhammad's application for interim review, the court instructed the parties to address whether the trial court erred by denying Muhammad's motions that challenged Georgia's amended criminal discovery statute.⁴⁰

Two months following her indictment, Muhammad elected to participate in the Criminal Procedure Discovery Act (the Act).⁴¹ However, following Muhammad's decision to participate, the Act was amended by the Criminal Justice Act of 2005 (the 2005 Act).⁴² The

2005 Act applies "'to all trials which commence on or after July 1, 2005.'"⁴³ Because Muhammad's trial had not yet commenced, the trial court ruled that the 2005 Act applied to her case. Muhammad challenged the validity of the 2005 Act and its applicability to her case on several bases.⁴⁴

The supreme court initially noted that several of Muhammad's claims had already been decided adversely to her in Stinski v. State.⁴⁵ The court applied its holding in Stinski, concluding that the 2005 Act did not constitute an ex post facto law or bill of attainder, did not violate due process because it imposed reciprocal discovery on the State, and did not prevent Muhammad from presenting mitigating evidence.⁴⁶ Furthermore, the court held that any additional discovery duties did not arise through an invalid waiver of the defendant's right not to participate, as Muhammad's earlier election remained valid.⁴⁷

Muhammad also alleged that the 2005 Act violated her constitutionally guaranteed right to effective assistance of counsel under the Sixth Amendment to the United States Constitution⁴⁸ and article I, section I, paragraph XIV of the Georgia constitution.⁴⁹ Muhammad argued that the 2005 Act interfered with the defense counsel's ability to perform the constitutionally mandated penalty phase investigation when there was a possibility that counsel's efforts may result in the discovery of harmful evidence that must be disclosed to the State.⁵⁰

The court noted that the relevant portions of the 2005 Act require the defendant "'to produce, at or before the announcement of a guilt/innocence verdict,'" certain items of tangible and documentary evidence to the State for inspection if the defendant intends to introduce them as evidence during the penalty phase of the trial.⁵¹ The court also acknowledged that the 2005 Act requires the defendant to disclose "'at or before the guilt/innocence verdict,'" reports relating to mental health evaluations or scientific tests that the defendant intends to introduce during the penalty phase.⁵² Finally, the court recognized that the 2005 Act requires the defendant to "'disclose five days before trial the identity of witnesses the defendant intends to call'" during the penalty phase, as well as nonprivileged witness statements "'at or before the guilt/innocence verdict.'"⁵³

The court ruled that apart from the list of witnesses the defendant intends to call at the penalty phase of the trial, the defendant "has until the announcement of the jury's verdict or the publication of the court's judgment" to comply with the 2005 Act's requirements.⁵⁴...