Bryant v. the State.

• Court: Georgia Supreme Court
• Writing for the Court: MELTON, Justice.
• Citation: Bryant v. the State., 288 Ga. 876, 708 S.E.2d 362 (Ga. 2011)
• Decision Date: 18 March 2011
• Docket Number: No. S10P1689.,S10P1689.
• Parties: BRYANTv.The STATE.

288 Ga. 876

708 S.E.2d 362

11 FCDR 794

BRYANT

v.The STATE.

No. S10P1689.

Supreme Court of Georgia.

March 18, 2011.

Carl P. Greenberg, Josh David Moore, Office of the Georgia Capital Defender, Damien Curtis Moore, Victoria Marie Calvert, William E. Hoffmann, Jr., Jessica Joan-Marie Hagen, John W. Harbin, King & Spalding LLP, Atlanta, Brian Stull, Wyatt Feeler, American Civil Liberties Union, Durham, NC, Gerald P. Word, Georgia Capital Defender, for Appellant.Thurbert E. Baker, Attorney General, Department of Law, James David McDade, District Attorney, Patricia B. Attaway Burton, Senior Assistant Attorney General, Department of Law, James Alan Dooley, Asst. Dist. Atty., Theresa Marie Schiefer, Assistant Attorney General, Department of Law, Susan V. Boleyn, Asst. Dist. Atty., Emily Richardson Roselli, Atlanta, for Appellee.Richard A. Malone, Prosecuting Attorneys' Council, Brian Kammer, Georgia Resource Center, Atlanta, for the Other Party.MELTON, Justice.

Nicholas Jason “JJ” Bryant was convicted of the murders of Billy Joe Kilgore and Marie Richards and the armed robbery of Richards.¹ AFTER FINDING BEYOnd a reasonable doubt the existence of multiple statutory aggravating circumstances in each murder, the jury recommended a life sentence without the possibility of parole for Kilgore's murder and a death sentence for Richards' murder. Finding no reversible error in the guilt/innocence phase of Bryant's trial, we affirm the jury's verdict of guilt on all charges. However, because we conclude that the trial court erred in allowing the State to introduce unconstitutional victim impact testimony in the sentencing phase, we reverse the sentences of death and life without parole and remand the case for another jury to consider the proper sentences for the murders.

Sufficiency of the Evidence

1. The evidence adduced at trial showed the following. In the spring of 2004, Bryant was recently paroled, unemployed, and involved in drugs. On May 21, 2004, a “really broke” Bryant got a ride to Kilgore's home, ostensibly for the purpose of earning some money by assisting Kilgore, who was 68 years old and suffering from various health problems that affected his mobility. After Bryant accompanied Kilgore while he ran some errands, the two men returned to Kilgore's home. Then Bryant got into another of Kilgore's automobiles and waited while Kilgore went into his home. A teenager doing chores for Kilgore saw Kilgore take approximately $2,200 and a .44–magnum revolver from his safe. When Kilgore came out of his home, he was accompanied by Richards, whom Bryant had never met. Richards and Kilgore got into the automobile with Bryant, and they left Kilgore's residence with Kilgore driving.

The following day, teenagers discovered Kilgore's body in the brush after noticing his automobile in a ditch off the roadway, almost completely hidden among kudzu vines. After the teens called 911, police discovered Richards' body, also in the brush. Kilgore's pockets were turned inside out. A few coins were found on the ground near his body, but neither his wallet nor any cash was ever found. As a result of their investigation, police arrested Bryant on May 24, 2004, in North Carolina, where he had fled after the shooting.

The State presented testimony showing that, at approximately 5:00 p.m. on the day of the murders, Bryant called his girlfriend and his sister to pick him up from the crime scene and that, when they did so, a bloody Bryant said that he had had a fight with Kilgore and that “he had shot [Kilgore] and a girl that was there.” Evidence also showed that Bryant purchased a hotel room and a weed pipe and went “clubbing” in Buckhead on the night following the murders, although he had no money before the crimes. An acquaintance of Bryant testified that on the morning after the murders he drove Bryant to a dumpster, where Bryant disposed of a purse, and that Bryant told him that there was a gun inside the purse. The acquaintance led police to the dumpster, where police recovered Richards' purse with Kilgore's revolver inside.

Bryant testified that he and the victims were en route to complete a drug deal when he and Kilgore argued, that Kilgore drove 30 to 50 feet down an abandoned, kudzu-covered driveway, and that he then turned around in his seat and pulled a gun on Bryant, who was sitting in the rear passenger seat behind Richards. Bryant claimed that he acted in self-defense after taking the gun from Kilgore, that he was in the rear seat area pushing against the headrest of the front passenger seat when he shot Kilgore in the head, and that he was coming out of the automobile when he shot Richards in the back and in the head. However, the State's ballistics expert, Kelly Fite, testified that the bullet that killed Kilgore and one of the bullets that struck Richards could not have been fired from inside the backseat of the automobile but were fired, instead, “from the passenger side of the vehicle probably outside the front door or right at the door.”

An inmate testified that, while incarcerated with Bryant, Bryant told him that he shot Richards once in the back or side and once in the back of the head because “she was a liability, she could identify him.” Also while incarcerated, Bryant wrote letters to his girlfriend attempting to persuade her to say that she was in the automobile at the time of the murders and that Bryant shot Kilgore after Kilgore shot Richards, and he wrote to family members asking their help in persuading his girlfriend to lie for him.

We find that the evidence, construed most favorably to the jury's verdicts, was sufficient to authorize a rational trier of fact to find Bryant guilty of the crimes charged beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Unified Appeal Procedure IV(B)(2) (providing that, in all death penalty cases, this Court shall determine whether the verdicts are supported by the evidence).

Pre–Trial Issues

2. Bryant contends that the trial court erred in failing to quash the indictment against him, because the manner in which the grand jury was selected violated constitutional and statutory law. Evidence presented at a pre-trial hearing showed that the voter registration list and the drivers' license list were merged to form the master grand jury source list from which the grand jury pool in this case was summoned, and Bryant does not challenge the composition of that master grand jury source list. Rather, he claims that African–American persons who were age 55 years old or older and Hispanic persons were under-represented in the composition of the grand jury pool in violation of the Sixth and Fourteenth Amendments and OCGA § 15–12–40 as a result of the county's forced balancing system. Bryant has the burden of proving a prima facie case of constitutional error in the composition of the grand jury pool. See Morrow v. State, 272 Ga. 691, 693(1), 532 S.E.2d 78 (2000). In order to prove a prima facie jury pool composition violation under either the Sixth Amendment, the Fourteenth Amendment, or OCGA § 15–12–40, Bryant was required to show that the allegedly excluded group was a cognizable group in the community and that such persons were actually under-represented. See Rice v. State, 281 Ga. 149, 149(1), 635 S.E.2d 707 (2006).

(a) African–American persons age 55 years old or older. While African–American persons are a cognizable group as a matter of law, see Spivey v. State, 253 Ga. 187, 199(7)(a), 319 S.E.2d 420 (1984), the question “[w]hether an age group is a cognizable group depends on the time and location of the trial. [Cit.]” Jackson v. State, 270 Ga. 494, 497(4), 512 S.E.2d 241 (1999) (emphasis supplied). As Bryant presented no evidence that African–American persons who were age 55 years or older comprise a separate cognizable group in Douglas County, it follows that his claims here must fail. See Potts v. State, 259 Ga. 812, 813(1), 388 S.E.2d 678 (1990) (listing the factors required to establish that a group is cognizable).

(b) Hispanic persons. While Bryant alleges that there were no Hispanic persons in the grand jury pool from which his grand jury was summoned because no persons from the “Other” racial group were selected from the master list to be placed on the list from which grand jurors were summoned, Bryant's expert testified at a pre-trial hearing that the term “Hispanic” is not a racial designation but, instead, usually refers to national origin, as is the case in the Census report. As a result, Hispanic persons would not only be represented in the “Other” racial group as Bryant contends. Indeed, Bryant's expert also testified that there “absolutely” would be Hispanics on the master grand jury list who were designated as being in one of the race categories (i.e. “Black,” “White,” and “Other”), as long as there had been no deliberate effort to screen such persons out, and Bryant failed to show that such an effort was made. Bryant presented no evidence regarding the actual percentage of Hispanic persons on the master grand jury source list. Because Bryant failed to show any actual under-representation of Hispanic persons, his claim here fails. See Rice, supra, 281 Ga. at 149(1), 635 S.E.2d 707.

Jury Selection Issues

3. Bryant contends that the trial court erroneously excused for cause two potential jurors and erroneously qualified three potential jurors based upon their views on sentencing. However, any erroneous failure to qualify or excuse for cause a prospective juror based on his or her responses during death qualification voir dire would entitle Bryant to a new sentencing trial only, as such error “would have related to the issue of sentence, not to guilt or innocence.” Skipper v. State, 257 Ga. 802, 806(8), 364 S.E.2d 835 (1988). See also Nance v. State, 272 Ga. 217, 224(6), 526 S.E.2d 560 (2000); Pope v. State, 256 Ga. 195, 202(7)(e), 345 S.E.2d 831 (1986), overruled on other grounds by Nash v....