Fair v. State

Decision Date22 November 2010
Docket NumberNos. S10A1034, S10A1035.,s. S10A1034, S10A1035.
Citation10 FCDR 3811,288 Ga. 244,702 S.E.2d 420
PartiesFAIR v. The STATE. Jolly v. The State.
CourtGeorgia Supreme Court

Brian Steel, Elizabeth V. Rogan, Atlanta, for appellant (case No. S10A1034).

Jeffrey L. Grube, Warner Robins, James S. Stokes, Atlanta, for appellant (case no. S10A1035).

Howard Z. Simms, District Attorney, Kimberly S. Schwartz, Garrison A. Wood, Asst. Dist. Attys., Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Laura J. Murphree, Asst. Atty. Gen., for appellee.

MELTON, Justice.

This is the second interim appellate review of two related cases in which the State seeks the death penalty. See Fair v. State, 284 Ga. 165, 664 S.E.2d 227 (2008). Antron Dawayne Fair and Damon Antwon Jolly are co-indictees who were originally charged with one count of malice murder and three counts of felony murder in connection with the shooting death of Bibb County Deputy Joseph Whitehead while he was on assignment as an investigator with the Middle Georgia Drug Task Force. The State contends that 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 in the early morning hours of March 23, 2006.

After this Court decided certain issues in their cases on interim review, see id., Fair and Jolly were jointly re-indicted on a thirty-four-count indictment that includes one malice murder count and five felony murder counts. Pursuant to OCGA § 17-10-35.1, we granted their second applications for interim review to consider whether the trial court erred in denying their motions to declare unconstitutional the statutory aggravating circumstance describedin OCGA § 17-10-30(b)(8) and in ruling that the immunity from prosecution prescribed by OCGA § 16-3-24.2 could not apply to their cases because the officers' entry was in fact lawful. We also directed the parties in Fair's case to address whether the trial court erred in conducting hearings in Fair's absence and without obtaining a valid waiver from Fair and in denying Fair's motion regarding an alleged conflict of interest arising from the fact that both Fair and Jolly are represented by employees of the Office of the Georgia Capital Defender. For the reasons that follow, we affirm in part, reverse in part, vacate in part, and remand with direction.

1. In the defendants' first interim review, we directed the parties to address whether the trial court erred in denying the defendants' requests that the jury be charged in any sentencing phase 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 in order to prove the sole statutory aggravating circumstance alleged by the State in its notice of intent to seek the death penalty, namely, that " '[t]he offense of murder was committed against a peace officer while he was engaged in the performance of his official duties.' " Fair, 284 Ga. at 167(2)(b), 664 S.E.2d 227. See OCGA § 17-10-30(b)(8). The defendants' motions in the trial court focused on the question of whether the principles of statutory construction dictated a conclusion that the (b)(8) statutory aggravating circumstance required proof that the defendant knew that the victim was a police officer, and the trial court did not rule on the constitutionality of the statute.

In their briefs to this Court, the defendants also focused their arguments on statutory construction. Nevertheless, at oral arguments the defendants argued the constitutionality of the statute if this Court construed it so as not to require scienter. However, this Court will not pass upon the constitutionality of a statute "unless it clearly appears that the point was directly and properly made in the court below and distinctly passed on by the trial judge." In re Boult, 227 Ga. 564, 564, 181 S.E.2d 821 (1971) (citation and punctuation omitted). See also Alexander v. State, 239 Ga. 810, 810, 239 S.E.2d 18 (1977). Therefore, while noting that there was no constitutional issue before us, Fair, 284 Ga. at 169(2)(b), 664 S.E.2d 227, we applied principles of statutory construction to "construe the (b)(8) circumstance as not requiring knowledge on the part of the defendant that the victim was a peace officer or other designated official engaged in the performance of his duties." Id. at 170(2)(b), 664 S.E.2d 227. On remand, the defendants moved the trial court to declare OCGA § 17-10-30(b)(8) unconstitutional under the federal and state constitutions. The trial court denied the defendants' equal protection challenge and reservedruling on their challenge based on the ban on cruel and unusual punishments.

A. Equal Protection Challenge. The defendants contend that the trial court erred in denying their equal protection challenge to the OCGA § 17-10-30(b)(8) statutory aggravating circumstance. While the defendants make their challenge under the equal protection clauses of both the federal and state constitutions, " '[b]ecause the protection provided in the Equal Protection Clause of the United States Constitution is coextensive with that provided in Art. I, Sec. I, Par. II of the Georgia Constitution of 1983, we apply them as one.' " Favorito v. Handel, 285 Ga. 795, 797(1)(b), 684 S.E.2d 257 (2009) (citation omitted).

In order to mount a successful equal protection challenge to a statute, a claimant must initially establish that he is similarly situated to members of the class who are treated differently from him. Reed v. State, 264 Ga. 466, 466, 448 S.E.2d 189 (1994). The trial court correctly found that Fair and Jolly are similarly situated to defendants against whom the State seeks the death penalty under one or more of the statutory aggravating circumstances as provided in OCGA § 17-10-30(b). See Woodard v. State, 269 Ga. 317, 321-322(2), 496 S.E.2d 896 (1998) (stating that criminal defendants are similarly situated for equal protection purposes only if they are charged with the same crime). Assuming, without deciding, that the trial court was also correct in finding that the (b)(8) circumstance results in different treatment for similarly-situated individuals because it does not require scienter, see Fair, 284 Ga. at 179, 664 S.E.2d 227 (Hunstein, P.J., dissenting) (stating that "the other ten statutory aggravating circumstances ... all appear to require an element in addition to murder of which the defendant, either expressly or impliedly, must have had knowledge"), we conclude that the trial court properly denied the defendants' challenge under the second prong of the evaluation. See Reed, 264 Ga. at 467, 448 S.E.2d 189 (explaining that there are two prongs to an evaluation of legislation under an equal protection claim).

If a claimant has established that he is similarly situated to members of the class who are treated differently from him, the statute must next be assessed to determine under what analysis it is tested.

When assessing equal protection challenges, a statute is tested under a standard of strict scrutiny if it either operates to the disadvantage of a suspect class or interferes with the exercise of a fundamental right.... If neither a suspect class nor a fundamental right is affected by the statute, the statute need only bear a rational relationship to some legitimate state purpose.

Barnett v. State, 270 Ga. 472, 472, 510 S.E.2d 527 (1999) (citations and punctuation omitted).

The defendants do not contend that they are members of a suspect class. Both defendants do contend, however, that the (b)(8) circumstance interferes with a fundamental right, the right to life, because if a defendant is convicted of murder and in the sentencing phase the jury trying his case finds beyond a reasonable doubt the presence of the (b)(8) circumstance with regard to his case, the jury is authorized to recommend a death sentence for that defendant. See OCGA § 17-10-30(b)(8), (c). Therefore, Fair and Jolly maintain that strict scrutiny analysis is applicable and, accordingly, that the trial court erred in applying rational basis analysis instead. The defendants further contend that the trial court's alleged error resulted from its reliance on case law involving equal protection challenges by defendants who, unlike them, had already been convicted and sentenced to death and who, therefore, no longer possessed a fundamental right to life.

The trial court did not err, however, in refusing to apply strict scrutiny analysis in considering the defendants' equal protection challenge on the basis that the punishment prescribed by the criminal statute involves an interference with a fundamental right. The relevant inquiry in deciding whether strict scrutiny analysis or rational basis analysis applies to determine whether a criminal statute violates equal protection rights is not whether the punishment the criminal statute prescribes interferes with a fundamental right, but whether the behavior proscribed or regulated by the statute itself involves a fundamental right. See Barnett, 270 Ga. at 472, 510 S.E.2d 527 (holding that the DUI statute setting forth a blood alcohol concentration standard different for persons under age 21 than for persons above age 21 where there exists a statutory presumption that persons are deemed not to be under the influence of alcohol was subject to rational basis analysis, because "[d]riving a vehicle under the influence of any amount of alcohol is not a fundamental right").

Furthermore, as to any argument that a higher level of scrutiny is required simply because a defendant's potential punishment is the death penalty, we find persuasive the Fifth Circuit's reasoning that Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), teaches otherwise. As the Fifth Circuit explained:

In Gregg, the Supreme Court stressed, in the context of the death penalty, the deference which a court should
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