Georgia Death Penalty Law - Mike Mears and Ken Driggs

• Publication year: 2000

Georgia Death Penalty Lawby Mike Mears^* and Ken Driggs

This Article covers death penalty decisions from the Georgia Supreme Court for the period from January 1, 1999 to May 31, 2000. It primarily discusses direct appeal decisions but reaches cases in a few other settings as well. This Article does not discuss holdings in capital cases that are common to all criminal appeals but is limited to death penalty law. Recent developments in Georgia death penalty law are considered in the order they would appear in a capital trial. In the period covered by this Article, the Georgia Supreme Court considered thirteen death sentences imposed in superior courts following a trial, one capital resentencing, one opinion following a remand on jury misconduct claims, and one interim appeal. On October 1, 2000, 135 men and one woman were on the Georgia death row.¹ On May 31, 2000, eighty-one cases were pending statewide in which the district attorney had filed a Notice of Intent to Seek Death.²

I. Pre-Trial Issues

This discussion includes pretrial motions, discovery, pleas, and other matters taking place before jury selection begins. James Ringo McDaniel was about to proceed with a Butts County jury trial for the murder of his grandparents and ten-year-old brother. After the preliminary voir dire of the jurors, the trial court called the parties in chambers for a conference. The judge restated earlier discussions with counsel in which he said that, as an individual or as a judge, he would be reluctant to impose a death sentence.³ He went on to say that if defendant entered a guilty plea and waived a jury at his sentencing hearing, the trial court was "'90 percent certain [to] impose a life without parole sentence.'"⁴ The prosecution would not agree to a negotiated plea of life without parole, insisting on the state's right to put up evidence and argue for a death sentence. Consequently, McDaniel entered a guilty plea and waived a jury. After a sentencing hearing, the trial court sentenced McDaniel to death for the murder of his brother.⁵

The Georgia Supreme Court held this exchange violated Uniform Superior Court Rule ("USCR") 33.5(A),⁶ prohibiting judicial participation in the plea negotiation process and reversed.⁷ A unanimous court wrote:

Due to the force and majesty of the judiciary, a trial court's participation in the plea negotiation may skew the defendant's decision-making and render the plea involuntary because a defendant may disregard proper considerations and waive rights based solely on the trial court's stated inclination as to sentence.

In this case, McDaniel heard the trial court repeatedly state its reluctance to impose a death sentence and give ninety percent odds on a sentence of life without parole if permitted to impose sentence. That participation by the trial court in the plea negotiation process rendered the resulting guilty plea involuntary.⁸

In Gulley v. State? the defense filed a motion requesting 120 days notice of the Dougherty County District Attorney's intention to rely upon '"other crimes or bad acts or similar transactions or occurrences in evidence against him.'"¹⁰ The motion was grounded in USCR 31, which governs the introduction of similar transactions evidence. Twenty-seven days before trial, the prosecutors notified the Gulley defense team of their intention to use testimony about an as yet unprosecuted East Point double murder during the sentencing phase. Defense counsel was previously aware of the East Point situation, and the trial court had ordered open file discovery.¹¹ The Georgia Supreme Court held that this was not the kind of evidence contemplated by USCR 31 and that the state had satisfied Offical Code of Georgia Annotated ("O.C.G.A.") section 17-10-2, which required pretrial notice of such testimony.¹²

In Johnson v. State,¹³ a Dougherty County defendant wished to question the district attorney and former district attorney regarding cases in which the prosecution did not seek death, which he alleged were more heinous than his crime.¹⁴ The trial court quashed the subpoenas, and the Georgia Supreme Court found no error.¹⁵ The court reasoned that district attorneys did "not have unfettered discretion to seek the death penalty" because a jury could always decline to find the necessary statutory aggravating circumstance.¹⁶ The court also found that policy considerations disfavored such a defense tactic.¹⁷ The court further pointed out that Johnson was invited to file a written proffer of more heinous cases in which the State declined to seek the death penalty, but he failed to do so.¹⁸

In 1994 the General Assembly enacted the Criminal Procedure Discovery Act, which provides for extensive reciprocal discovery for those defendants who elect to take advantage of it.¹⁹ By opting in, the defendant receives extensive materials from the State, some of which previously had been unavailable.²⁰ At the same time, reciprocal discovery requires the defense to disclose things it otherwise could keep confidential.²¹ The defendant who does not opt in receives minimal discovery under the Act.²² The Act is silent as to its application in capital cases. The multicounty public defender challenged the constitutionality of the Act through an interim appeal in the Clayton County death penalty prosecution of John Lucious.²³

In State v. Lucious,²⁴ the Georgia Supreme Court held the Act was constitutional in a 4-3 decision.²⁵ In a short one-paragraph discussion, the majority held that the Act did not apply to presentence hearings in capital and noncapital cases.²⁶ Death penalty defendants could safely opt in without having to give away their sentencing phase strategy in advance. Justice Fletcher, concurring in part and dissenting in part, set out a list of thirteen types of information available to the defense through federal and state constitutional law or other statutory authority without opting in.²⁷ These include but are not limited to exculpatory evidence;²⁸ evidence of an understanding, agreement, or promise of leniency;²⁹ victim impact testimony;³⁰ and notice of similar transaction evidence.³¹

In another case, the court affirmed that "[i]t is not incumbent upon the state to notify a defendant prior to trial of every statutory aggravating circumstance that it might seek to prove."³²

II. Jury Selection

This section concerns jury arrays and jury selection in capital cases. Death penalty juries differ from other criminal juries in that they must be "death qualified."³³ This means they can consider and impose a death sentence. Individuals who object to the death penalty on religious, moral, or any other grounds can be excluded from jury service. In some communities these individuals constitute a substantial part of the venire and are more likely to be racial minorities. "The death qualification of prospective jurors is not unconstitutional."³⁴

The most striking jury selection decision was Nance v. State,³⁵ in which a Gwinnett County capital defendant secured a new sentencing proceeding because the trial court failed to remove a juror for cause. The juror stated three times that she would automatically vote for death upon a conviction for murder and a finding of a statutory aggravating circumstance.³⁶ A unanimous Georgia Supreme Court wrote that "the trial court erred by failing to excuse prospective juror Johnson for cause because her views in favor of capital punishment would prevent or substantially impair the performance of her duties as a juror in accordance with her instructions and oath."³⁷

The standard of review when a trial court denies a challenge to a prospective juror for cause is "some manifest abuse of discretion," which on appeal required giving "deference [to] the trial court's resolution of any equivocations or conflicts in the prospective juror's responses on voir dire" based upon a review of the record as a whole.³⁸

In Terrell v. State,³⁹ a Newton County conviction and death sentence was reversed on another jury error.⁴⁰ A military policeman for the Georgia National Guard who had arrest powers was allowed to sit on the capital jury of defendant Brian Keith Terrell. Defendant moved to strike him for cause, but the trial court denied the motion. After being convicted, defendant moved for a new trial. The motion was denied, and defendant appealed. Reversing the trial court, the supreme court observed that

[i]t is well-settled that full-time police officers with arrest powers must be excused if challenged for cause, because it "is inherent in the nature of police duties and the closeness with which such officers are identified with criminal procedures that questions regarding possible bias, fairness, prejudice or impermissible influence upon jury deliberations inevitably arise."⁴¹

In Pace v. State⁴² the supreme court distinguished a corrections officer and a private security guard, neither of whom had arrest powers, from a police officer.⁴³ The trial court refused to strike both jurors for cause.⁴⁴ The supreme court affirmed.⁴⁵

In Wilson v. State,⁴⁶ defendant Marion Wilson, Jr. was prosecuted for the 1996 murder of a correctional officer in a county where many people were employed by the Department of Corrections. The defense moved for a blanket disqualification of all venirepersons so employed and was denied by the trial court.⁴⁷ The supreme court affirmed, commenting that "the trial court adequately considered the potential bias of individual jurors connected to the Department of Corrections, and, accordingly, we conclude that the trial court did not err in denying Wilson's blanket motion."⁴⁸

In Cromartie v. State,⁴⁹ the victim, a convenience store clerk, posed a similar jury selection issue. When two prospective jurors who had business connections with the convenience store industry were questioned about their ability to judge the case without bias, they gave what the court called "some equivocal responses."⁵⁰ On appeal the supreme court declined to second guess the trial...