Death Penalty Law - Therese M. Day

• Publication year: 2006

Death Penalty Law by Therese M. Day^*

This Article provides a survey of death penalty case law in Georgia from June 1, 2005 through May 31, 2006. The cases include those that the Georgia Supreme Court heard on interim appeal, direct appeal, and on review of habeas corpus decisions. Two recent decisions of the United States Supreme Court are also included because of their relevance to Georgia death penalty law. While there have been recent significant statutory changes affecting capital litigation in Georgia, those changes are beyond the purview of this Article and therefore will not be discussed. Likewise, holdings in capital cases that are common to all criminal appeals will not be discussed in this Article.

I. Decisions of the Supreme Court of Georgia

A. Interim Review Case

In Miley v. State,¹ James Miley was indicted for murder and other crimes, and the State filed a notice of its intent to seek the death penalty.² The court granted Miley's application for interim appellate review to address the issue of whether the trial court erred in denying Miley's motion to suppress evidence obtained during a search of Miley's home.³

According to the record, Miley was questioned at the station house in connection with the death of Ashley Neves. One of the detectives asked Miley to accompany him to Miley's home to retrieve a book bag that a witness had seen Miley wearing near the crime scene. Miley agreed to retrieve the book bag with the detective but refused to sign a written consent. Because the detective did not want to proceed without written consent, he prepared an affidavit and presented it to a magistrate who issued a warrant to search Miley's home.⁴ The affidavit stated the following:

James Christopher Miley ws [sic] identified as the person who wa [sic] last seen with the victim on 5-20-00, at the place of her death. The person who killed the victim, Ashley Nicole Neeves [sic], removed some of her clothing from the scene. When I asked the subject, Mr. Miley[,] to sign a consent form so i could enter his house and retrieve his book bag, he refused. It is known that the subject had a book bag with him in the area of the murder. Mr. Miley was willing to bring a book bag out of the house, but not to let me accompany him inside to look at the bag.⁵

The affidavit also included the date of the alleged murder as May 20, 2000.⁶

The Georgia Supreme Court held that the affidavit failed to show probable cause to allow the police to search Miley's home and reversed the trial court's denial of Miley's motion to suppress.⁷ The court determined that in the affidavit, the State had improperly relied on Miley's refusal to provide written consent to enter his home and seize his book bag; Miley's refusal could not contribute to a finding of probable cause because it was a valid exercise of his constitutional rights.⁸ The court also determined that the remaining bases for the warrant, that Miley was seen with the victim on the date of her death and had a book bag with him, while valid, were insufficient to provide probable cause

because they failed to detail how close to the time of the murder's commission Miley had been seen with the victim, because they failed to describe the circumstances under which Miley and the victim had been seen together, and because an innocent person could have had a book bag at the unspecified scene of the murder.⁹

Accordingly, the case was remanded for further proceedings.¹⁰

B. Direct Appeal Cases

The Georgia Supreme Court reviewed three cases pursuant to the automatic review procedure in Georgia's death penalty statute.¹¹ None of these cases present new issues of law due to their posture, but certain portions are briefly mentioned to emphasize the court's reasoning which may be helpful in future cases where claims have not been waived by trial counsel or are adequately framed on appeal.

In Lewis v. State,¹² Gerald Patrick Lewis pleaded guilty in 2001 to malice murder and was sentenced to death in 2003 following his sentencing trial.¹³ On direct appeal, the court determined that there was no error and upheld his death sentence.¹⁴

The court applied Greene v. State¹⁵ to Lewis's claim that the trial court erred in denying his motions to excuse certain prospective jurors for cause due to their predisposition to the death penalty or bias against a life sentence with or without the possibility of parole.¹⁶ The court held that despite a leaning on the part of these prospective jurors for a particular sentence, "none of them were irrevocably committed to voting against one of the three possible sentences," and therefore, the trial court did not abuse its discretion by finding them qualified to serve.¹⁷

The court also held that the trial court did not abuse its discretion by excusing three prospective jurors for cause due to the jurors' inability to consider a death sentence.¹⁸ First, the court observed that "[p]rospec-tive juror Atwater wavered with virtually all of her answers on the death penalty" and that "[s]he was reluctant to answer questions about the death penalty and did not think she could vote for a death sen-tence."¹⁹ Atwater also stated that she would not consider evidence supporting the death penalty.²⁰ Second, the court determined that prospective juror Baulding "was opposed to the death penalty, would not consider it as a possible sentence, and would not wait to hear if the State had proved its case."²¹ Finally, the court determined that "[p]rospective juror Bigby was morally opposed to the death penalty and would never vote for a death sentence."²²

In addition to denying a number of other claims,²³ the court also held that the State is not required to include in the indictment the statutory aggravating circumstances it relies on to impose a death sentence.²⁴ Further, the State is not required to prove nonstatutory aggravating circumstances beyond a reasonable doubt.²⁵ Accordingly, the Georgia Supreme Court affirmed the lower court's judgment.²⁶

In Tollette v. State,²⁷ Leon Tollette pleaded guilty to malice murder and felony murder and was sentenced to death.²⁸ On direct appeal, the court affirmed his sentence after noting that a number of Tollette's claims were waived due to trial counsel's failure to object during the trial proceedings.²⁹

In one enumeration of error, Tollette claimed that the prosecutor made improper references during his closing argument when he stated, "'[T]he just punishment under a lot of religions would be death for what

[Tollette did].'"³⁰ The court agreed with Tollette and held that the argument was improper.³¹ But the court also noted that trial counsel failed to object to this argument at trial.³² As a result, the error was reviewed only to determine "whether it in reasonable probability led to the jury's selection of a death sentence."³³ The court held that the argument did not and denied Tollette's claim.³⁴

The court also concluded that there was error in the prosecutor's argument that referred to parole.³⁵ The prosecutor stated, "[P]rison is too good for this defendant. Prison for the rest of his life, prison for seven years and re-paroled, prison for whatever."³⁶ The court held that "[t]he likelihood of parole is an improper subject matter for argument by counsel," except in limited circumstances, which was inapplicable in the case before the court.³⁷ As a result, the court concluded that the trial court erred in overruling Tollette's objection.³⁸ However, the court held that the error was harmless because the jury was charged that a sentence of life without parole would make Tollette ineligible for parole.³⁹ The court rejected all of Tollette's other claims and affirmed his sentence.⁴⁰

In Nance v. State,⁴¹ Michael Nance was convicted by a jury for malice murder and was sentenced to death in 1997. In 2000 the Georgia Supreme Court affirmed his convictions but reversed his death sentence because a prospective juror was not properly qualified to serve on the jury. Following Nance's second sentencing trial in 2002, a jury again recommended a death sentence.⁴² On review, the court held that there was no error and affirmed his sentence.⁴³

The court held that the State is not required to prove nonstatutory aggravating circumstances beyond a reasonable doubt.⁴⁴ The court also held that the trial court did not err by failing to hold a second hearing to determine whether extraordinary measures were required to prevent dangerous and disruptive behavior on the part of Nance during trial.⁴⁵ In 1997 the trial court granted the State's request to require Nance to wear a stun belt in court during the trial of the case after holding a hearing in which evidence was presented that Nance "had threatened to 'bite the nose off' the prosecuting attorney during the trial."⁴⁶ The court held that despite the passage of several years, it was not an abuse of the trial court's discretion to rely on its prior holding, and thus, the trial court was not required to conduct a new hearing on the issue in 2002.⁴⁷

Applying the standard from Greene,⁴⁸ the court denied Nance's claim that five prospective jurors were erroneously qualified to serve and held that the trial court did not abuse its discretion in qualifying them.⁴⁹ First, Nance claimed that prospective juror Kenerly was not qualified to serve (1) because Kenerly's mother had been murdered in 1979, (2) because he "regularly banked at the bank branch robbed by Nance," and (3) because he said that he "could not consider parole for someone convicted of murder and other crimes."⁵⁰ The court held that despite these facts, the trial court did not abuse its discretion in qualifying prospective juror Kenerly because he later said that he could vote for all three possible sentences.⁵¹

Second, Nance claimed that prospective juror Barrett was erroneously qualified because Barrett was opposed to a sentence of life with the possibility of parole for someone convicted of malice murder.⁵² During voir dire, Barrett stated that he...