Death Penalty Law - Therese M. Day

• Publication year: 2007

Death Penalty Law by Therese M. Day^*

This Article provides a survey of death penalty case law in Georgia from June 1, 2006 through May 31, 2007. The cases include those that were heard by the Georgia Supreme Court on interim appeal and direct appeal,¹ and discussion is limited to claims which present new issues of law, refine existing law, or are otherwise instructive. This Article does not discuss holdings in capital cases that are common to all criminal appeals because these are discussed elsewhere in this Survey.

I. Decisions of the Georgia Supreme Court

A. Interim Review Cases

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

In Bailey v. State,³ Phillip Ray Bailey was indicted for murder and other crimes, and the State filed its notice to seek the death penalty. The court granted Bailey's application for interim review and directed the parties to address whether the trial court erred in denying Bailey's motion to quash his indictment when a clerical error resulted in the misspelling of the first name of a grand juror.⁴

According to the record, "A man named Harvey D. Giddens was summoned for grand jury service and served as one of the grand jurors who indicted Bailey."⁵ Subsequently, Mr. Giddens's name was mistyped as "Henry D. Giddens" when the list of grand jurors was transcribed to Bailey's new indictment.⁶ Bailey filed a special demurrer, asserting that he was entitled to an indictment perfect in form and substance, and he requested his indictment to be quashed based on the misspelling.⁷ The court recognized that the standard requiring a perfect indictment reflects the goal of providing trials free from harmful defects.⁸ However, the court also noted that under the current version of the Official Code of Georgia Annotated ("O.C.G.A.") regarding the required elements of an indictment, if the form substantially complies with the requirements of the statute, the court must give full effect to any case when "a defendant's right to a fair trial will not be adversely affected."⁹ The court concluded that "[i]n Bailey's case, defense counsel [could] have easily determined the identity of the grand juror whose name was misspelled on Bailey's indictment."¹⁰ Therefore, the court held that because the misspelling of the grand juror's name was not material and because it was clear that Bailey would not suffer prejudice, the trial court did not err in overruling Bailey's special demurrer.¹¹ Accordingly, the Georgia Supreme Court affirmed the lower court's judgment.¹²

In Rice v. State,¹³ Lawrence Rice was charged with the murder of two victims and related crimes, and the State announced its intent to seek the death penalty.¹⁴ The court granted Rice's application for interim review and directed the parties to address three issues:

[1] whether the trial court erred in denying Rice's motion concerning the composition of the grand and traverse jury lists; [2] whether the trial court erred in ruling that the pretrial deposition testimony of Trevor Mincher would be admissible at trial; and [3] whether the trial

court erred in refusing to allow a second pretrial deposition of Lillian Heaton.¹⁵

Rice first alleged that the lists from which his grand jury was drawn and from which his traverse jury would be drawn were unconstitutional because they reflected an underrepresentation of Hispanic persons.¹⁶ The court ruled that Rice failed to demonstrate that Hispanics were underrepresented.¹⁷ In fact, according to the court, Rice's own expert and evidence at the hearing supported a determination that there was a slight overrepresentation of Hispanics in Cobb County.¹⁸ Therefore, the court held that the trial court did not err in denying Rice's claim.¹⁹

In Rice's second claim, he alleged that the trial court erred in admitting the pretrial deposition testimony of Trevor Mincher in violation of Crawford v. Washington²⁰ because Mincher died prior to the trial and Rice did not have an adequate opportunity to cross-examine him.²¹ According to the record, the State filed a motion on March 9, 2005, seeking to take the pretrial deposition of Mincher, the husband of the female victim and the father of the young male victim.²² At the hearing on March 16, 2005, Mincher testified that he had been diagnosed with esophageal cancer which had metastasized.²³ He further testified that while his doctors did not tell him there was no hope of recovery, it was his belief that they would not "express a complete lack of hope to him, even if no hope really existed."²⁴ The trial court found that Mincher's medical condition satisfied the requirements for taking pretrial depositions to preserve testimony in criminal proceedings and allowed the State to proceed with direct examination; however, the court acknowledged the defense's need for "'adequate time to prepare for cross-examination'" and scheduled the cross-examination portion of the deposition for March 31, 2005.²⁵ Despite this ruling, the State requested Rice to begin cross-examination following its direct examination. Before Rice could respond, the trial court interjected and reiterated its prior ruling, noting the lack of notice and need for preparation prior to cross-examination. Rice did not object to the trial court's ruling.²⁶

At some time prior to the scheduled date for the cross-examination of Mincher's deposition testimony, the State contacted Rice to inform him that Mincher's health was failing and that he had been hospitalized. Several hours later, Mincher died.²⁷ Rice moved to exclude Mincher's deposition testimony under Crawford based on the fact that the defense did not have the opportunity to cross-examine Mincher.²⁸ The trial court denied Rice's motion and stated:

"There was an opportunity to cross-examine Mr. Mincher. There was notice. The Defense chose not to cross-examine him. ... It was clear when he was sitting here that the man wasn't well. I don't expect anybody anticipated his demise before we finished the deposition. I certainly didn't. I would have scheduled it sooner if I had."²⁹

The court held that the trial court was correct in ruling that Rice waived his opportunity to cross-examine Mincher.³⁰ The court determined that under statutory law, Rice had notice that the trial court could order "the deposition [to] occur at any time within 30 days of the hearing."³¹ The court acknowledged that while the opportunity to cross-examine Mincher was not ideal given the lack of more than six days notice of the hearing, Rice was "afforded a sufficient opportunity for cross-examination and . . . the lack of cross-examination . . . [was] the result of his waiving that opportunity."³² Accordingly, the court held that the trial court did not err in ruling that Mincher's testimony was admissible at trial.³³

In Rice's third claim, he alleged error based on the trial court's denial of his request for a second deposition of a State witness in order to conduct further cross-examination. The State initially requested the deposition of Lillian Heaton, the next door neighbor of the victims, and her deposition was taken with the consent of Rice. During this deposition, Rice learned that Heaton took several medications, including Neurontin.³⁴ When asked by defense counsel whether this drug affected her memory, Heaton responded, "'No.'"³⁵ Following her testimony, the trial court "repeatedly directed defense counsel to consult with his client and with co-counsel before finally accepting counsel's statement that he had no further cross-examination."³⁶ Ten months following the deposition, Rice filed a motion for a second deposition, stating that he had learned that Neurontin could have affected her memory. The trial court denied the motion.³⁷

The court noted that there was no case law on point regarding when or whether a trial court is required to permit a second pretrial deposition; however, the court determined that case law governing when a trial court may allow a witness to be recalled at trial was instructive.³⁸ Based on this line of cases, the court held that because Rice had the opportunity to question Heaton about her medications and their effects, the trial court did not err in denying a second deposition.³⁹ Accordingly, the court affirmed the lower court's judgment.⁴⁰

In Edwards v. State,⁴¹ Joseph Alan Edwards was indicted for murder and related crimes, and the State filed its notice of intent to seek the death penalty.⁴² The court granted interim review and directed the parties to address whether the trial court erred in denying Edwards's motion to quash the indictment when the grand jury that returned the indictment was selected from a list that reflected a 6.04% underrepresentation of white persons, a cognizable group.⁴³

The claim arose when Edwards filed a pretrial motion challenging the composition of the grand jury and traverse jury lists of Hall County.⁴⁴ During the pendency of Edwards's case, Hispanic persons were found to be a cognizable group in Hall County, and the trial court held in another death penalty case that Hispanic persons were underrepresented on Hall County's jury lists.⁴⁵ In an effort to construct a grand jury list that represented a fair cross-section of the county's residents who were eligible to serve as jurors, the jury commission took measures to ensure that it used the proper number of Hispanic citizens in its calculations. However, it failed to make other adjustments including adjusting the total population of all persons based on citizenship, resulting in an underrepresentation of white persons on the grand jury by 6.04 percentage points.⁴⁶

The court held that the trial court correctly found that an underre-presentation of a cognizable group by 6.04 percentage points was generally not unconstitutional; however, the court held that it exceeded the acceptable limit specified under the Unified Appeal Procedure,⁴⁷ which requires significant...