S08A0426. FAIR v. THE STATE. S08A0427. JOLLY v. THE STATE.
S08A0426, S08A0427
Supreme Court of Georgia
July 14, 2008
284 Ga. 165 | 664 SE2d 227
CARLEY, Justice.
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
1. Both Fair and Jolly filed motions to dismiss the indictment against them on the ground that they are immune from prosecution under
[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 underOCGA § 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. See O‘Donnell v. Durham, 275 Ga. 860, 861 (3) (573 SE2d 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
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,
“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 SE2d 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 SE2d 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.”
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,
In connection with the imposition of the death penalty, this Court often says that “death is different.”
Death penalty cases do require closer examination and the additional safeguards provided by law. The citizens of this state should be, must be, appalled at the prospect of
executing ... a murderer undeserving of the ultimate punishment.... “Death is different” is a crucial reminder of the gravity of a sentence where the state seeks to punish a defendant by taking his life, and of the need for procedural safeguards in the determination and carrying out of such a sentence, but it should not be used to construct ... rights that do not exist, or to usurp the legislature‘s role in determining the structure of our criminal justice system .... (Emphasis in original.)
Gibson v. Turpin, 270 Ga. 855, 859-860 (1) (513 SE2d 186) (1999). Furthermore, the death of a human being as a result of a crime is different from an injury suffered because of a criminal act. It is logical to conclude that the General Assembly purposely made such a distinction. A contrary conclusion would in some cases prevent the imposition of the death penalty for the murder of an officer enforcing an unpopular law and would wholly preclude that punishment for the murder of an “agent acting under cover. ... The situation is not one where legitimate conduct becomes unlawful solely because of the identity of the individual or agency affected. In a case of this kind the offender takes his victim as he finds him.” United States v. Feola, 420 U. S. 671, 684-685 (II) (95 SC 1255, 43 LE2d 541) (1975) (involving a statute which prohibited assault on a federal officer and did not require proof of knowledge that the intended victims were federal officers).
The purpose of the inclusion of the statutory aggravating circumstances in the 1973 Act, which was introduced in the House as HB 12, was to ensure that it would withstand future constitutional attack. However, the issue before us today is not a constitutional one. Our General Assembly knew the importance and gravity of the bill it was considering. As revealed by a review of the House and Senate Journals, the vote in neither the House nor Senate on this bill was unanimous. In fact, after the Judiciary Committee recommended a “do pass” of HB 12 by committee substitute, the House recommitted the bill to the Judiciary Committee without passing it at that time. Georgia House Journal, Regular Session 1973, pp. 330-331. Later, the bill was passed by substitute after several amendments were proposed and defeated. Georgia House Journal, Regular Session 1973, pp. 606-607. The Senate finally passed the bill by a split vote after defeating several floor amendments. Georgia Senate Journal, Regular Session 1973, p. 505. The General Assembly fully followed the legislative process, enacted the law and has never amended the language setting forth the (b) (8) aggravating circumstance in any way. Bauerband v. Jackson County, supra; Inland Paperboard & Packaging v. Ga. Dept. of Revenue, supra.
3. On March 20, 2006, Deputy Whitehead was granted the no-knock warrant that the officers were executing at the time he was shot. Fair challenges the validity of the search warrant on several bases.
(a) The things to be seized. Fair initially contends that the warrant was void because it failed to state with sufficient particularity the things to be seized. The warrant authorized the executing officers to search “for evidence of the crime of Violation of Georgia Controlled Substance[s] Act.” (Emphasis in original.) The Act regulates the manufacture, delivery, distribution, possession, or sale of definite lists of drugs and their derivatives and certain other narcotics and illegal drugs. See
In evaluating the particularity of a warrant‘s description, we must determine “whether the description ... is sufficient to enable ‘a prudent officer executing the warrant to locate it definitely and with reasonable certainty.’ [Cit.]” Bishop v. State, 271 Ga. 291, 294 (6) (519 SE2d 206) (1999). Furthermore, “the degree of the description‘s specificity is flexible and will vary with the circumstances involved.” Dobbins v. State, 262 Ga. 161, 164 (3) (415 SE2d 168) (1992).
The warrant at issue here was targeted at evidence relating to the violation of a specific statute directed at illegal drug possession and trafficking, crimes which, because of their nature, generate distinctive evidence and inherently limit the items to be sought. Indeed, several jurisdictions have held that “[m]ore specificity is not required by the Constitution” where “items to be seized [are] limited to those relating to ‘the smuggling, packing, distribution and use of controlled substances.’ ” United States v. Ladd, 704 F2d 134, 136 (4th Cir. 1983). See United States v. Calisto, 838 F2d 711, 716 (III) (3d Cir. 1988) (” ‘items used in the manufacture, sale, use, etc. of controlled substances’ ” sufficient and covered guns); United States v. Hayes, 794 F2d 1348, 1355 (III) (B) (9th Cir. 1986) (“‘correspondence concerning the procuring, transferring, administering, prescribing or dispensing of controlled substances by [defendant] ... which constitute[s] evidence of possible violations of 21 USC 841 (a) (1) and 21 USC 843 (a) (3)’ ‘“); Carlton v. State, 449 S2d 250, 250 (Fla. 1984) (” ‘all controlled substances and other matters of [sic] things pertaining or relating to said possessions and sale of controlled
(b) Probable cause. Fair also contends that the affidavit upon which the search warrant was issued did not establish probable cause for the warrant‘s issuance. In determining whether probable cause exists, the magistrate‘s task is
“simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” [Cit.]
DeYoung v. State, 268 Ga. 780, 787 (7) (493 SE2d 157) (1997). On review, this Court is limited to “determin[ing] if the magistrate had a ‘substantial basis’ for concluding that probable cause existed to issue the search warrant[,]” and must afford substantial deference to the magistrate‘s decision. DeYoung, supra.
In Fair‘s case, the affidavit contained information from a “concerned citizen” and two informants designated as “Source one” and “Source two.” The trial court relied on information from Source one, the concerned citizen, and Deputy Whitehead‘s corroboration in holding that the magistrate correctly found probable cause on which to issue the warrant. Pretermitting whether the trial court was correct in disregarding the information from Source two as unreliable and stale, we conclude that the affidavit still provided the magistrate with a substantial basis for finding probable cause.
As to the report from the concerned citizen that narcotics were being sold from the subject address, “[t]he magistrate was given nothing other than the affiant‘s conclusory statement that the tipster was a concerned citizen.” State v. Brown, 186 Ga. App. 155, 158 (2) (366 SE2d 816) (1988). See also 2 LaFave, supra at § 3.4 (a), pp. 238-239 (“[I]t should not be deemed sufficient that the police have alleged in a rather conclusory fashion that the person was a ‘concerned citizen. . . .’ “). Thus, that informant is not entitled to a preferred status, and the information he or she provided is relegated “to the status of rumor.” Brown, supra. Moreover, we fail to see how any of the facts gathered from Deputy Whitehead‘s independent investigation corroborate the information supplied by the informant to establish sufficiently his or her credibility. Shivers v. State, 258 Ga. App. 253, 255 (573 SE2d 494) (2002) (holding that meaningful corroboration requires that information include details relating to future actions of third parties not easily predicted or similar information not available to general public). Nevertheless, “because [Source one]‘s veracity, reliability, and basis of knowledge were sufficiently established, corroboration was not required.” Sanders v. State, 252 Ga. App. 609, 612 (1) (556 SE2d 505) (2001). Therefore, even after excising the unreliable information, the affidavit still provided the magistrate with a substantial basis for concluding that a fair probability existed that evidence of a crime would be found at the premises. See State v. Hunter, 282 Ga. 278, 280 (646 SE2d 465) (2007).
(c) Execution. Although the trial court found that, once the unreliable information from Source two was excised, the remaining information was insufficient to authorize the “no-knock” provision in the warrant, it held that the officers’ entry was justified by exigent circumstances. “Exigent circumstances exist where the police have ‘reasonable grounds to believe that forewarning would either greatly increase their peril or lead to the immediate destruction of the evidence.’ [Cit.]” Poole v. State, 266 Ga. App. 113, 115 (1) (596 SE2d 420) (2004). In order to meet the reasonableness standard for a
The evidence at the suppression hearing showed that Deputy Whitehead briefed the officers before their entry that there was a surveillance camera at the front door of the premises, that drugs and weapons were suspected to be inside, and that there was a metal gate barring the front door, which would both delay the officers’ entry and create a disturbance that could forewarn the occupants of the officers’ presence. Officers who participated in the warrant‘s execution also testified that, as they approached the house, they became concerned that the occupants had been alerted to their presence because several dogs started barking from the rear of the house. A “reasonable officer” could surmise that, if the occupants were alerted, they would be able to identify the officers through the surveillance system at the front door, giving the officers reasonable grounds to believe that knocking could increase their peril or lead to the immediate destruction of evidence. Accordingly, we conclude that the officers’ manner of entry was justified under the exigent circumstance doctrine. See Alvarado v. State, 271 Ga. App. 714, 715-716 (1) (610 SE2d 675) (2005) (noting that ” ‘the need for the exigent circumstance doctrine is particularly compelling in narcotics cases’ “). Although we find that the officers’ manner of entry was authorized here, we note that the Supreme Court of the United States has held that the Fourth Amendment does not require the suppression of all evidence found in a search in which the “knock-and-announce” rule was violated. Hudson v. Michigan, 547 U. S. 586 (III) (126 SC 2159, 165 LE2d 56) (2006).
Fair also contends that, because the warrant was executed in a residential neighborhood at 1:15 a.m., its execution was unreasonable and thus in violation of
In this case, the officers’ testimony at the suppression hearing established that Deputy Whitehead drove by the house just prior to executing the warrant and then reported to the other officers that there appeared to be activity inside. The officers also testified that it was not unusual for the drug unit to execute warrants regarding drug trafficking in the early morning hours, because the officers knew from experience that the peak time for drug dealers to conduct business was after midnight when the dealers thought the drug investigators had ceased operations for the night. Under these circumstances, we find that the time of the warrant‘s execution was not unreasonable. See 41 ALR 5th 171, § 16 (a)-(f) (1996) (citing numerous cases in which courts have upheld nighttime execution of warrants based on affidavits averring that informants had observed the sale of illegal drugs on the premises).
(d) Those items seized incident to arrest and in plain view. The trial court also found admissible those items seized incident to the defendants’ arrest for the shooting of Deputy Whitehead and those items seized in plain view during the processing of the crime scene.
Fair contends that “the uncontroverted evidence is that [he and Jolly] had no idea who was entering the house, that they believed their lives were in danger, [that] their actions were reasonable, [and] thus [that] their arrests were invalid,” necessitating the suppression of all evidence seized pursuant thereto. See
In addition, given the facts that one officer had been shot and mortally wounded, that the officers were still presented with a dangerous situation, that contraband was believed to be in the home and in immediate danger of destruction, that it was approximately 1:15 a.m. when the shooting occurred and a magistrate was not likely to be readily available, and that the armed suspects were likely to flee if given the opportunity, the defendants’ arrests within the house were authorized by the presence of exigent circumstances. See
Moreover, once the officers arrested Fair and Jolly, they were also authorized
to ensure their own safety and prevent the destruction of evidence by conducting a limited search of the entire house for other occupants; they were also authorized to seize [any items of contraband or evidence of a crime] they found in plain view during this “securing” of the house. [Cit.]
Jenkins v. State, 223 Ga. App. 486, 488 (2) (477 SE2d 910) (1996). See also 3 LaFave, supra at § 6.5 (e), pp. 447-449 (noting that seizure of evidence seen in plain view during the securing of the residence is permissible).
For evidence to be admissible under [the plain view] doctrine, the officer collecting the evidence must not have violated the Fourth Amendment in arriving at the place from which he or she sees the evidence. [Cit.] Moreover, the incriminating nature of the object must be ” ‘immediately apparent.’ ” [Cit.] This requirement means that the officer must have probable cause “to believe that the item in question is evidence of a crime or is contraband.” [Cit.]
Moss v. State, 275 Ga. 96, 104 (14) (561 SE2d 382) (2002).
Our review of the approximately 15-minute video recording of the premises, which was viewed by the trial court, supports the officers’ testimony that guns, shell casings, significant amounts of cash, and items appearing to be crack cocaine, all of which, under the circumstances, would present probable cause as being contraband or evidence of the crime of Deputy Whitehead‘s shooting, were in plain view. As the examination of the crime scene by the officers did not exceed constitutional bounds, the trial court‘s order limiting admissibility to items seized incident to Fair‘s arrest and in plain view during the processing of the crime scene was not error. See Hatten v. State, 253 Ga. 24, 25 (2) (315 SE2d 893) (1984) (finding constitu-
Fair further argues that, even if the search was valid, the seizures were illegal because they were made by Sgt. Gatlin, an investigator with the Macon Police Department who was called to process the crime scene. The testimony at the suppression hearing shows that, once the shooting occurred and the defendants were searched prior to being taken into custody, Sgt. Gatlin was called because a homicide had occurred within the jurisdiction of the Macon Police Department. The record shows that, with the assistance of crime scene investigators from the Bibb County Sheriff‘s Office, Sgt. Gatlin gathered and processed the evidence over the course of a four to five hour period. The fact that Sgt. Gatlin, who had training in processing crime scenes, physically collected the evidence that the executing officers had discovered earlier did not diminish the lawfulness of the seizures. Phillips v. State, 269 Ga. App. 619, 623 (2) (604 SE2d 520) (2004).
(e) Right of confrontation. Finally, there is no merit to Fair‘s claim that, because Deputy Whitehead was unavailable for cross-examination and the confidential informants’ identities were not disclosed at the suppression hearing, evidence should be suppressed as a result of a violation of Fair‘s Sixth Amendment right to confrontation. Because Deputy Whitehead‘s partner testified from his personal knowledge that neither confidential informant was present at the time the search warrant was executed, the State has established that they were neither witnesses nor participants in the crimes charged and, thus, their identities did not need to be disclosed at the motion to suppress hearing.
(f) Standing. In light of the foregoing, it is unnecessary for us to address the State‘s claim that Fair lacked standing to contest the warrant.
Judgment affirmed in part, reversed in part, and case remanded with direction in Case Number S08A0426. Judgment affirmed in
HUNSTEIN, Presiding Justice, concurring in part and dissenting in part.
While I concur fully in the majority‘s opinion herein as to Divisions 1, 2 (a), and 3, I cannot agree with the majority‘s determination that the statutory aggravating circumstance set forth in
As the majority observes, “[t]he 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. [Cit.]” Maj. Op. at 167. In its effort to glean the Legislature‘s intent in enacting
In determining the Legislature‘s intent with respect to the (b) (8) statutory aggravating circumstance, ” ‘it is appropriate for the court to look to the old law and the evil which the legislature sought
[i]n the wake of Furman, Georgia[‘s legislature] amended its capital punishment statute... to narrow the class of murderers subject to capital punishment by specifying 10 [now 11] statutory aggravating circumstances, one of which must be found by the jury to exist beyond a reasonable doubt before a death sentence can ever be imposed.
(Citations and footnote omitted.) Gregg v. Georgia, 428 U. S. 153, 196-197 (IV) (B) (96 SC 2909, 49 LE2d 859) (1976). Thus, the legislative intent was to focus the death penalty with greater precision in order to, as the majority puts it, “ensure that [the revised death penalty statute] would withstand future constitutional attack.” Maj. Op. at 169.3
Part of the method of narrowing the death penalty statute was to explicitly “require the jury to consider the circumstances of the crime and the criminal before it recommend[ed] sentence.” (Emphasis supplied.) Gregg, supra, 428 U. S. at 197 (IV) (B). Indeed, in recognition of the oft-quoted maxim that “death is different,” see Maj. Op. at 168, “the Georgia death penalty statute is crafted to narrow the class of murderers who may receive the death penalty to the most culpable.” (Emphasis supplied.) Gibson v. Turpin, 270 Ga. 855, 859, n. 3 (1) (513 SE2d 186) (1999). See also Atkins v. Virginia, 536 U. S. 304, 319 (IV) (122 SC 2242, 153 LE2d 335) (2002) (death penalty must be limited to offenders who commit “a narrow category of the most serious crimes” and whose extreme culpability makes
Bearing in mind the legislative purpose of winnowing the class of death penalty-eligible offenders to that subset thereof who exhibit enhanced culpability, such enhanced culpability could be manifested in (b) (8) only through the inclusion of a knowledge element. Clearly, a defendant who knowingly murders a peace officer or other public servant designated in the (b) (8) statutory aggravating circumstance is more culpable than one who does not know the status of his victim. Without such knowledge, there is nothing to distinguish the defendant who murders a victim who by happenstance was such a public servant from the defendant who murders any other victim, and thus nothing to specifically justify imposition of the ultimate punishment. See Livingston v. State, 264 Ga. 402, 404 (1) (b) & n. 5 (444 SE2d 748) (1994) (recognizing that “it would be constitutionally impermissible for a jury to base its death penalty recommendation [solely] on the victim‘s class or wealth” and that a victim‘s “social status is not relevant to the evenhanded administration of justice“). This notion is further supported by the fact that the other ten statutory aggravating circumstances set forth in
Finally, but no less significantly,
[i]t has always been the law that criminal statutes must be strictly construed against the state ... [and that], where a statute imposing the penalty for commission of a criminal offense is capable of two constructions, such statute should be construed as imposing the lesser penalty.
(Citations and punctuation omitted.) Bankston v. State, 258 Ga. 188, 190 (367 SE2d 36) (1988). Even accepting arguendo the majority‘s conclusion that the mere omission of the word “knowingly” is dispositive proof of the Legislature‘s intent not to require victim status scienter in
For the foregoing reasons, I respectfully dissent to the majority‘s holding in Division 2 (b).
I am authorized to state that Chief Justice Sears joins in this concurrence in part and dissent in part.
DECIDED JULY 14, 2008.
Jeffrey L. Grube, for appellant (case no. S08A0427).
Howard Z. Simms, District Attorney, Graham A. Thorpe, Kimberly S. Schwartz, Laura J. Murphree, Thurbert E. Baker, Attorney General, Sabrina D. Graham, Assistant Attorney General, for appellee.