Fair v. State

• Decision Date: 14 July 2008
• Docket Number: No. S08A0427.,No. S08A0426.,S08A0426.,S08A0427.
• Parties: FAIR v. The STATE. Jolly v. The State.
• Court: Georgia Supreme Court

664 S.E.2d 227

284 Ga. 165

FAIR v. The STATE.

Jolly v. The State.

No. S08A0426.

No. S08A0427.

Supreme Court of Georgia.

July 14, 2008.

Douglas Anthony Ramseur, Aren Kevork Adjoian, Office of the Capital Defender, Brian Steel, The Steel Law Firm, P.C., Atlanta, Jeffrey L. Grube, Warner Robins, for appellant (case no. S08A0426).

Howard Zachary Simms, Dist. Atty., Kimberly S. Schwartz, Asst. Dist. Atty., Graham A. Thorpe, Chief Asst. Dist. Attty., Thurbert E. Baker, Atty. Gen., Sabrina Dawn Graham, Asst. Atty. Gen., Laura Joan Murphree, Prosecuting Attorneys' Council, for appellee.

Jeffrey L. Grube, Warner Robins, for appellant (case no. S08A0427).

CARLEY, Justice.

This is an interim appellate review of two related cases in which the State seeks the death penalty. Antron Dawayne Fair and Damon Antwon Jolly allegedly killed Bibb County Deputy Joseph Whitehead, who was on assignment as an investigator with the Middle Georgia Drug Task Force. The State contends that in the early morning hours of March 23, 2006, both defendants opened fire on Deputy Whitehead as he and other members of the Task Force and the Bibb County Drug Unit were executing a "no-knock" warrant at 3135 Atherton Street within the City of Macon in Bibb County. Pursuant to OCGA § 17-10-35.1, we granted their applications for interim review to consider the following issues: (1) whether the trial court erred in denying the defendants' motions for a pre-trial determination of whether they are entitled to immunity from prosecution under OCGA § 16-3-24.2; (2) whether the trial court erred in denying the defendants' motions regarding an alleged scienter element in the OCGA § 17-10-30(b)(8) statutory aggravating circumstance; and (3) in Fair's case, whether the trial court erred regarding his motion to suppress evidence seized during a search with a warrant.

1. Both Fair and Jolly filed motions to dismiss the indictment against them on the ground that they are immune from prosecution under OCGA § 16-3-24.2, which provides in relevant part that "[a] person who uses threats or force in accordance with Code Section ... 16-3-23 or ... 16-3-24 shall be immune from criminal prosecution...." OCGA § 16-3-23 governs the use of force in defense of a habitation, and OCGA § 16-3-24 governs its use in defense of personal property or real property other than a habitation. After conducting hearings on the defendants' motions, the trial court reserved its ruling in both defendants' cases until trial, stating that "[w]hether [the defendants] can avail [themselves] of a defense of habitation will be decided by the court at the conclusion of the evidence and prior to any jury charge." The defendants contend that, under OCGA § 16-3-24.2, the issue of immunity is to be determined by the trial court pre-trial, and we note that the State is in agreement and in fact filed motions in the trial court in both cases requesting that the trial court reconsider its orders reserving its ruling on the defendants' motions to dismiss.

The construction of OCGA § 16-3-24.2 is an issue of first impression in this Court. However, the defendants cite and rely upon Boggs v. State, 261 Ga.App. 104, 106, 581 S.E.2d 722 (2003). There, the Court of Appeals focused on the plain language of the statute, see Sizemore v. State, 262 Ga. 214, 216, 416 S.E.2d 500 (1992), and held that

[a]ccording to Black's Law Dictionary, one who is immune is exempt or free from duty or penalty, [cit.] and prosecution is defined as "(a) criminal action; a proceeding instituted and carried on by due course of law, before a competent tribunal, for the purpose of determining the guilt or innocence of a person charged with crime." Therefore, by the plain meaning of [immune from prosecution] and the other language in the statute, the statute must be construed to bar criminal proceedings against persons who use force under the circumstances set forth in OCGA § 16-3-23 or § 16-3-24. Further, as the statute provides that such person "shall be immune from criminal prosecution," the decision as to whether a person is immune under OCGA § 16-3-24.2 must be determined by the trial court [as a matter of law] before the trial of that person commences. (Emphasis supplied.)

Boggs, supra at 106, 581 S.E.2d 722. See O'Donnell v. Durham, 275 Ga. 860, 861(3), 573 S.E.2d 23 (2002) ("`Shall' is generally construed as a word of mandatory import."). Because we are of the opinion that the Court of Appeals correctly construed and applied OCGA § 16-3-24.2 in Boggs, we hold that the trial court erred in refusing to rule pre-trial on the defendants' motions, and we therefore remand for a pre-trial determination of whether the defendants are entitled to immunity from prosecution under OCGA § 16-3-24.2.

2. The indictment in this case charges Fair and Jolly with one count of malice murder and three counts of felony murder. The felony murder charges are predicated on the felonies of aggravated assault, possession of marijuana with the intent to distribute, and possession of cocaine with the intent to distribute. The trial court denied the defendants' requests to have the jury charged in both the guilt/innocence phase and in the sentencing phase, if necessary, that the State bears the burden to prove beyond a reasonable doubt that the defendants knew that the victim was a peace officer engaged in the performance of his duties at the time of the shooting.

(a) The defendants do not contend that the felony murder charge predicated on aggravated assault alleges the crime of aggravated assault on a peace officer, OCGA § 16-5-21(c), and the record shows that, at a pre-trial hearing, the State and the defendants agreed that the felony underlying that charge is aggravated assault and not the crime of aggravated assault on a peace officer, which would require proof of knowledge that the victim was an officer. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, Third Ed., § 2.05.25. Despite this, the defendants contend that because the indictment charges them with four counts of murder against "Bibb County Sheriff's Deputy Joseph Whitehead," the allegation that the victim was a sheriff's deputy has become an essential element of each count. Therefore, although not directed by this Court to address on interim review the issue of victim status scienter in the guilt/innocence phase, the defendants argue that the State must prove beyond a reasonable doubt in the guilt/innocence phase that they were aware at the time of the shooting that Deputy Whitehead was a peace officer engaged in the performance of his official duties.

"An allegation in an indictment that is wholly unnecessary to constitute the offense[s] charged is mere surplusage." Wood v. State, 69 Ga.App. 450, 450, 26 S.E.2d 140 (1943). The 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. Therefore, it is not a material averment and need not be proven, see McBride v. State, 202 Ga.App. 556, 557-558, 415 S.E.2d 13 (1992), and the trial court properly denied the defendants' motions for a jury instruction to the contrary in the guilt/innocence phase.

(b) The defendants requested this same instruction in the sentencing phase, if necessary, based on the fact that, in the State's notice of intent to seek the death penalty, it identified as the sole statutory aggravating circumstance with respect to all counts the fact that "[t]he offense of murder was committed against a peace officer while he was engaged in the performance of his official duties." The code section which describes that aggravating circumstance reads as follows: "The offense of murder was committed against any peace officer, corrections employee, or firefighter while engaged in the performance of his official duties." OCGA § 17-10-30(b)(8). That code section is silent regarding the defendant's knowledge of the officer's status, and this Court has not previously addressed whether victim status scienter is required in order for the jury to find the (b)(8) statutory aggravating circumstance beyond a reasonable doubt. The determination of what mental state is required in those criminal statutes where no culpable mental state is expressly designated is a matter of statutory construction. See State v. Miller, 260 Ga. 669(2), 398 S.E.2d 547 (1990). See also Daniels v. State, 264 Ga. 460, 461(2), 448 S.E.2d 185 (1994). "In construing a statute, the cardinal rule is to glean the intent of the legislature. [Cits.]" Alford v. Public Service Comm., 262 Ga. 386, 387(1)(a), 418 S.E.2d 13 (1992). See also Stephens v. Hopper, 241 Ga. 596, 602-603(4), 247 S.E.2d 92 (1978) (analyzing intent of legislature in construing (b)(1) statutory aggravating circumstance).

The State maintains that, because the language of the (b)(8) statutory aggravating circumstance does not contain the word "knowingly," it should not be construed to require knowledge that the victim was a peace officer. Contending that this Court should consider the statutory construction given to similar statutes in Georgia, the State correctly points out that the word "knowingly" appears in the criminal statute defining aggravated assault against a peace officer, OCGA § 16-5-21(c), and in the criminal statute defining aggravated battery against a peace officer, OCGA § 16-5-24(c), and that both crimes have been construed by our appellate courts as requiring knowledge of the victim's status as a police officer as an element of the crime. Bundren v. State, 247 Ga. 180, 181(2), 274 S.E.2d 455 (1981). See also Chandler v. State, 204 Ga.App. 816, 821(3), 421 S.E.2d 288 (1992) (applying Bundren, supra, to aggravated battery on a peace officer). These separate crimes against police officers were the subject of legislation enacted subsequent to the 1973 adoption of our revised death penalty statute and its inclusion of the (b)(8)...