Death Penalty Law - Therese Michelle Day

• Publication year: 2009

Death Penalty Lawby Therese Michelle Day^*

This Article provides a survey of death penalty case law in Georgia from June 1, 2008 through May 31, 2009.¹ The cases included in this Survey were decided by the Georgia Supreme Court on interim appeal and direct appeal,² and in one instance, on denial of certiorari by the United States Supreme Court. Discussion is limited to claims that present new issues of law, refine existing law, or are otherwise instructive.

I. Interim Review Cases

The Georgia Supreme Court reviewed five cases³ pursuant to interim appellate review of death penalty cases under the Unified Appeal Procedure.

In Fair v. State,⁴ Antron Dawayne Fair and Damon Antwon Jolly were charged with the murder of a Bibb County deputy, Joseph Whitehead; and the State filed notice of its intention to seek the death penalty.⁵ The supreme court granted the defendants' applications for interim review and directed the parties to address three issues.⁶

The court first addressed whether the trial court erred in denying the defendants' pretrial motions requesting immunity from prosecution pursuant to section 16-3-24.2 of the Official Code of Georgia Annotated (O.C.G.A.),⁷ which provides: "A person who uses threats or force [in defense of habitation or other personal or real property] shall be immune from criminal prosecution . . . ."⁸ Jolly and Fair filed motions to dismiss their indictments, arguing they were immune from prosecution pursuant to this code section. After considering the matter during a pretrial hearing, the trial court reserved its ruling until the conclusion of the evidence at trial and prior to the jury charge. Fair and Jolly argued that pursuant to the statute, the issue must be decided prior to trial. The State conceded this issue and both parties filed motions to reconsider. The trial court denied the motions.⁹

The supreme court noted that although the construction of O.C.G.A. Sec. 16-3-24.2 was an issue of first impression, the issue of immunity from prosecution had been correctly decided in Boggs v. State¹⁰ by the Georgia Court of Appeals.¹¹ In Boggs the court of appeals examined the plain language of the statute and held that criminal proceedings are barred against persons using force pursuant to the circumstances within O.C.G.A. Sec. 16-3-23 and O.C.G.A. Sec. 16-3-24.¹² The court of appeals also determined that because O.C.G.A. Sec. 16-3-24.2 provides that "such person[s] 'shall be immune from criminal prosecution,'" a trial court is required to make immunity determinations prior to trial.¹³ Deciding that the issue had been correctly analyzed in Boggs, the supreme court held that the trial court erred in refusing to make a pretrial determination of immunity from prosecution.¹⁴

The court next addressed whether, under O.C.G.A. Sec. 17-10-30(b)(8),¹⁵ the trial court erred in denying the defendants' motions to have the jury charged regarding an alleged scienter element within one of the statutory aggravating circumstances.¹⁶ This statute provides for an aggravating circumstance when "[t]he offense ofmurder was committed against any peace officer, corrections employee, or firefighter while engaged in the performance of his official duties."¹⁷

The supreme court noted that both Fair and Jolly were indicted on one count of malice murder and three counts of felony murder, predicated on, inter alia, the felony of aggravated assault.¹⁸ The court directed the parties to address whether the trial court erred in refusing to give the victim-status scienter instruction during the sentencing phase of the trial.¹⁹ However, Fair and Jolly made an additional argument. They argued that the State had to prove, during the merits phase of the trial and beyond a reasonable doubt, that they knew the victim was a police officer engaged in the performance of his duties at the time they shot him. Fair and Jolly's argument stemmed from the indictment, which included the victim's name and his title as a police officer.²⁰ Fair and Jolly made this argument even though they conceded the predicate offense for felony murder was aggravated assault pursuant to O.C.G.A. Sec. 16-5-21(a)²¹ and not aggravated assault upon a peace officer pursuant to O.C.G.A. Sec. 16-5-21(c).²² The court relied upon established law distinguishing between material and non-material information within an indictment, reasoning that "[t]he identification of the victim as a law enforcement officer by appending 'Bibb County Sheriff's Deputy' to his name describes neither the offenses charged nor the manner in which they were committed."²³ Therefore, the court held that the trial court properly denied the accused's motions requesting a jury instruction on scienter during the merits phase of the trial.²⁴

The court next addressed whether the O.C.G.A. Sec. 17-10-30(b)(8) aggravating circumstance required the State to prove beyond a reasonable doubt that Fair and Jolly knew the victim was a peace officer engaged in his official duties.²⁵ Fair and Jolly argued that a scienter element is implicit in the statute despite the fact that the statute is silent regarding the accused's knowledge of the officer's status. The

State countered, arguing that because the statute fails to include the word knowingly, there should be no requirement that the defendants knew the victim was a peace officer.²⁶ The court noted that the matter was an issue of statutory construction, which required the court "to glean the intent of the legislature."²⁷

The court acknowledged that the word knowingly is included in the criminal statute defining aggravated assault against a peace officer as well as in the criminal statute defining aggravated battery against a peace officer.²⁸ Furthermore, both crimes have been construed by the state appellate courts to require a scienter element including the victim's status as a police officer.²⁹ The court also emphasized the significance of the fact that the Georgia General Assembly adopted these statutes subsequent to the adoption of the revised death penalty statute, which included the O.C.G.A. Sec. 17-10-30(b)(8) aggravating circumstance without a knowledge requirement.³⁰ Moreover, the court noted that the O.C.G.A. Sec. 17-10-30(b)(3)³¹ aggravating circumstance, which was enacted simultaneously with O.C.G.A. Sec. 17-10-30(b)(8),³² has a scienter requirement.³³ The court reasoned that the statutory history indicated the General Assembly knew how to apply the scienter element, and the court concluded that it "'must presume that its failure to do so was a matter of considered choice.'"³⁴ The court also recognized the distinction between a crime resulting in injury and a crime resulting in death and reasoned that it was "logical to conclude that the General Assembly purposely made such a distinction."³⁵ The court noted that in cases like the present one, "'the offender takes his victim as he finds him.'"³⁶ Accordingly, the court held that the O.C.G.A. Sec. 17-10-30(b)(8) statutory aggravating circumstance does not require the defendant to know "that the victim was a peace officer or other designated official engaged in the performance of his duties."³⁷ Therefore, the supreme court held that the trial court did not err when it denied the defendants' requests for a jury instruction on scienter during the penalty phase of the trial.³⁸

The final issue the court reviewed related solely to Fair and addressed whether the trial court erred when it denied his motion to suppress evidence.³⁹ The evidence produced at trial was the product of a no-knock search warrant that authorized a search "for evidence of the crime of Violation of Georgia Controlled Substance[s] Act."⁴⁰ Fair first contended that the warrant was void for failing "to state with sufficient particularity the things to be seized."⁴¹ The court stated that for a warrant to be valid, it must provide a description of items that "is sufficient to enable a prudent officer executing the warrant to locate it definitely and with reasonable certainty."⁴² The court noted that "'the degree of the description's specificity is flexible and will vary with the circumstances involved.'"⁴³ Moreover, the court reasoned that "several jurisdictions have held that [m]ore specificity is not required by the Constitution where items to be seized [are] limited to those relating to the smuggling, packing, distribution and use of controlled substanc-es."⁴⁴ Accordingly, the court held that the evidence to be seized in Fair's case was "sufficiently described" such that the officers could locate the evidence "'definitely and with reasonable certainty.'"⁴⁵

Fair next argued that the warrant lacked probable cause because the warrant's affidavit relied upon information from a concerned citizen as well as two sources that were of questionable reliability and veracity.⁴⁶ The court noted that although the trial court disregarded the information from Source Two as unreliable and stale, the information provided by the concerned citizen and Source One "still provided the magistrate with a substantial basis for finding probable cause."⁴⁷ The court reasoned that Source One "'kn[ew] what [m]arijuana look[ed] like and how it is packaged for sale,' had in the preceding [seventy-two] hours been on the premises at 3135 Atherton Street[,] and had witnessed at least two individuals therein package marijuana for distribution."⁴⁸ Moreover, the court noted that Deputy Whitehead averred in the warrant that "he had known Source [O]ne for approximately three years and that he or she had provided information leading to drug seizures and approximately ten felony arrests."⁴⁹ The court, therefore, held that this was sufficient to establish Source One's reliability and veracity.⁵⁰

Although the court rejected the validity of the information from the concerned citizen because it was conclusory and unverified by Deputy Whitehead, it nonetheless held that the warrant affidavit provided "a substantial basis for concluding that a fair probability existed...