Lead Opinion
This is the second interim appellate review of two related cases in which the State seeks the death penalty. See Fair v. State,
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 described
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,
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,
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,
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,
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.
*246 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.
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,
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,
In Gregg, the Supreme Court stressed, in the context of the death penalty, the deference which a court should give a legislature’s judgment. [Cit.] ... Because of the complexity of determining the need for the death penalty, the Court found that the decision to authorize capital punishment for some classes of crimes was one that was best left to the*248 legislature unless “clearly wrong.” [Cit.] Although the issue in Gregg was whether the legislature’s decision to impose the death penalty violated the eighth amendment because of the severity of the punishment, the degree of deference which the Court’s “clearly wrong” test accorded the legislative judgment convinces us that the . .. equal protection clause[ ] do[es] not require a higher level of scrutiny for legislative classifications that may result in the death penalty.
Gray v. Lucas, 677 F2d 1086, 1104 (V) (5th Cir. 1982) (holding that a defendant’s equal protection challenge to Mississippi’s death penalty statute was properly assessed under a rational basis analysis).
Because the relevant inquiry in determining what analysis to apply is not whether the punishment resulting from a violation of the statute interferes with a fundamental right, the defendants’ contention that the fact that they have not been convicted and sentenced to death and, thus, still possess a fully-intact fundamental right to life is irrelevant to determining what analysis applies. What is relevant is the behavior that the (b) (8) circumstance proscribes, which is the murder of “any peace officer, corrections employee, or firefighter while engaged in the performance of his official duties.” OCGA § 17-10-30 (b) (8). Therefore, the proper inquiry is whether that behavior involves a fundamental right. The obvious answer is that it does not.
“ ‘Since the statute does not disadvantage a suspect class or interfere with the exercise of a fundamental right, it need only bear a reasonable relationship to a legitimate state purpose. (Cits.)’ [Cit.]” Barnett,
The legislative intent behind omitting a knowledge requirement from OCGA § 17-10-30 (b) (8) was to protect peace officers by providing as a sentencing option the severest form of punishment for anyone who murders a peace officer or other designated official while in the performance of his official duties. See Fair,
The United States Supreme Court has recognized that “the life of a police officer is a dangerous one,” Roberts v. Louisiana,
The only surviving witness to the murder of a plain-clothes or undercover officer could well be the perpetrator himself. In such a case, the murdered officer would not be available to testify that he identified himself as an officer to the defendant, who would be unlikely to admit that he knew that he was killing an officer. Because the (b) (8) circumstance does not require scienter, however, a defendant may face a possible death sentence if he kills a peace officer regardless of whether there is anyone to testify that the officer identified himself to the defendant before the killing. The awareness of that possibility will serve to deter at least some prospective offenders. See Cheeley v. Henderson,
B. Ban on Cruel and Unusual Punishments Challenge. The defendants argue that not requiring scienter in the (b) (8) statutory aggravating circumstance also violates the ban on cruel and unusual punishments under the state and federal constitutions. See U. S. Const., Amend. VIII; Ga. Const, of 1983, Art. I, Sec. I, Par. XVII. See also Fleming v. Zant,
C. The Trial Court’s Proposed Submission of a Special Interrogatory. Because the (b) (8) statutory aggravating circumstance does not require knowledge on the part of the defendant that the victim was a peace officer or other designated official engaged in the performance of his official duties, see Fair,
2. Both Fair and Jolly filed motions to dismiss their murder prosecutions under OCGA § 16-3-24.2, which creates a criminal immunity from prosecution for persons using threats or force in accordance with the statutes defining justification in the use of force
After the return of jurisdiction from this Court, the trial court ruled on the defendants’ motions.
In addition, [in] interpreting a statute, we must presume that the General Assembly had full knowledge of the existing state of the law and enacted the statute with reference to it. We construe statutes “in connection and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence,” and “their meaning and effect is to be determined in connection, not only with the common law and the constitution, but also with reference to other statutes and decisions of the courts.”
Chase v. State,
With those principles in mind, we turn first to the text of the statute, which provides the following:
A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other’s unlawful entry into or attack upon a habitation; however, such person is justified in the use of force which is intended or likely to cause death or great bodily harm only if:
(1) The entry is made or attempted in a violent and tumultuous manner and he or she reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person dwelling or being therein and that such force is necessary to prevent the assault or offer of personal violence;
(2) That force is used against another person who is not a member of the family or household and who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using such force knew or had reason to believe that an unlawful and forcible entry occurred; or
*253 (3) The person using such force reasonably believes that the entry is made or attempted for the purpose of committing a felony therein and that such force is necessary to prevent the commission of the felony.
OCGA § 16-3-23.
Under the trial court’s interpretation of the statute, the term “reasonably believes” and, thus, the reasonable belief standard,
A. Fair’s Argument. While both defendants contend that the trial court erred in interpreting the statute, their arguments differ. Fair maintains that, under a natural reading of the statute, the “reasonable belief” standard also applies with respect to the unlawful entry or attack element in the introductory clause. Specifically, Fair contends that the language in subsection (2) requiring that an intruder “unlawfully and forcibly entered the residence” evidences the Legislature’s clear intent that a reasonable belief standard apply to the unlawful entry or attack element in the introductory clause of the statute and, thus, that the entry or attack need not actually be unlawful in order for subsections (1) or (3) to apply. Fair argues that, if the Legislature had intended to include a requirement that the entry must in fact be unlawful in the introductory clause, there would have been no need for the limiting language in subsection (2) that the deadly force must be used against a person who “has unlawfully and forcibly entered the residence,” in which case that language in subsection (2) would be mere surplusage.
The introductory clause, when read in isolation, might be construed to apply a reasonable belief standard with respect to the unlawful entry or attack element. We reject that interpretation, however, because we conclude that it is not supported by a reading of the statute as a whole, would thwart the Legislature’s purpose in enacting the statute, and would alter both the well-established
(1) History of OCGA § 16-3-23. “[T]he early common law rule [of defense of habitation] ... allowed for deadly force to be used to prevent an imminent and unlawful entry of the dwelling[.]” Catherine L. Carpenter, Of the Enemy Within, the Castle Doctrine, and Self-Defense, 86 Marq. L. Rev. 653, 665, n. 42 (2003) (citing Joshua Dressier, Understanding Criminal Law, § 20.03 [B] (3d ed. 2001)). See also Daniel Michael, Florida’s Protection of Persons Bill, 43 Harv. J. on Legis. 199, 206 (2006) (stating that at common law “deadly force is justified only if the ‘breaking and entry [of an unlawful intruder is] . . . with a felonious intent. . . .’ ”) (quoting 4 William Blackstone, Commentaries on the Laws of England 178 (Wayne Morrison ed., Cavendish Publishing 2001) (1822)). On February 25, 1784, “the Common Laws of England” as they applied to Georgia on May 14, 1776, with certain qualifications, were declared to be of force in this State. Cobb’s Digest, p. 721. Georgia’s Penal Code of 1833 codified the defense of habitation and the doctrine of reasonable fears in the section defining justifiable homicide. See Laws 1833, Cobb’s 1851 Digest, pp. 784-785. “The Penal Code . .. made no change in the Common Law of homicide, except . . . that ‘excusable homicide’ at Common Law [became] ‘justifiable’ by the Statute.” Monroe v. State,
Under the law as codified, “a forcible attack and invasion on the property or habitation of another” were required to invoke the defense. Cobb’s Digest, p. 785. The circumstances were also required to be “sufficient to excite the fears of a reasonable man,” and the actor must have “really acted under the influence of those fears, and not in the spirit of revenge.” Id. at 784. A review of this Court’s case law indicates that, as at common law, the defense was construed as requiring an unlawful entry. See Rushing v. State,
Although a new criminal code was enacted in 1933, the language of the statutes pertaining to the defense of habitation and the doctrine of reasonable fears remained virtually unchanged for well over a century. See Ga. Code of 1933, §§ 26-1011 through 26-1013. In 1968, the statutes setting forth defenses to criminal liability were rewritten as a part of an act to provide a new Georgia Criminal Code. See Ga. L. 1968, pp. 1249, 1272-1274, enacting Chapter 26-9, “Defenses to Criminal Liability,” composed of Code Ann. §§ 26-901 through 26-907. Code Ann. § 26-903 defining when a person is justified in the use of threats or force against another in defense of habitation became OCGA § 16-3-23 with the enactment of the Official Code of Georgia Annotated in 1981. Nevertheless, its provisions remained unchanged until 2001, when the General Assembly amended the statute’s language where appropriate to reflect that it was gender neutral, inserted a new subsection (2), and re-labeled the previous subsection (2) as subsection (3). See Ga. L. 2001, p. 1247, § 2. In other words, subsection (2) containing the language Fair relies on to support the interpretation he urges was added to the statute over 30 years after the original statute was passed.
(2) Prior Case Law. During the decades prior to the 2001 amendment, decisions of our appellate courts repeatedly held that the defense of habitation statute required an unlawful entry into or attack on the habitation in order for its provisions to apply. See, e.g., Stobbart v. State,
“The General Assembly is presumed to enact all statutes with full knowledge of the existing condition of the law and with reference to it. [Cit.]” Summerlin v. Georgia Pines Community Svc. Bd.,
(3) Comparison with Other Provisions. This conclusion is supported by another elementary rule of statutory construction. In construing a statute so as to give effect to the legislative intent, we are constrained to construe the language that Fair points to in support of his position in its context and in “consideration of all the other parts of the statute.” City of Jesup v. Bennett,
Although Fair contends that, under the trial court’s interpretation, the introductory clause and subsection (2) both contain the same unlawful entry element, subsection (2) actually requires that the entry be both unlawful and forcible, while the introductory clause by its plain language requires only that the entry be unlawful. Comparing subsection (2) to the other subsections shows further distinctions. Only “[sjubsection (2) . . . expressly excludes application of the defense between members of the ‘same family or household.’ ” Hammock v. State,
However, the plain language of the provision also evidences the General Assembly’s intent to balance the fact that subsection (2) omits the reasonable belief standard with respect to the intruder’s purpose and the amount of force necessary to thwart that purpose by limiting the justification of the use of deadly force to those situations
In enacting subsection (2), the Legislature clearly intended to reconcile two competing interests, that of a resident to react quickly with the use of deadly force in the context of a home invasion and that of society to discourage random or domestic violence. Accordingly, we conclude that the Legislature included the “unlawful and forcible entry” element in subsection (2) in order to make clear that, under that subsection, the entry must still in fact be unlawful, as well as forcible, even though an actor “could be justified in using deadly force under subsection (2) based on ‘mere knowledge or belief’ about the unlawfulness or forcefulness of the entry instead of the reasonable belief that the person entering did so for the purpose of committing a felony.” Robert Christian Rutledge, Vigilant or Vigilante? Procedure and Rationale for Immunity in Defense of Habitation and Defense of Property Under the Official Code of Georgia Annotated §§ 16-3-23, -24, -24.1, and -24.2, 59 Mercer L. Rev. 629, 642 (Winter, 2008) (citation omitted). Thus, the Legislature’s inclusion of the “unlawful and forcible entry” element in subsection (2) is not surplusage but part of a statutory scheme “designed to allow an individual to defend his family, home and property in virtually any situation which might arise with respect to an invasion of [a habitation] while at the same time affording maximum protection of human life.” State v. McCombs,
We also reject the interpretation urged by Fair because we conclude that construing the statute as applying a reasonable belief standard with respect to the unlawful entry element in the introductory clause would thwart the legislative intent in enacting subsection (2). See Goldberg,
B. Jolly’s Argument. Jolly argues that the phrase “such other’s unlawful entry into or attack upon a habitation” in the introductory clause is properly construed as meaning either an unlawful entry or an attack that need not be unlawful, thereby allowing an exception to the requirement that the entry must in fact be unlawful. (Emphasis supplied.) OCGA § 16-3-23. Because subsection (1) requires that the entry be “violent and tumultuous” but does not state that the entry must be unlawful, he alleges that an unlawful entry is not required in order to justify the use of deadly force under subsection (1) . Jolly’s proposed interpretation does not follow the natural and reasonable construction of the provision. See Chase,
Jolly also contends that the application of certain provisions of OCGA §§ 16-3-24.2 and 16-3-23 would violate his equal protection rights. However, the trial court did not apply those provisions in denying his motion. Accordingly, his contentions are moot. Moreover, this Court will not review constitutional questions that were not addressed by the trial court. See Alexander,
Because we reject the interpretations of OCGA § 16-3-23 urged by Fair and Jolly and conclude that the trial court did not err in denying their motions to dismiss the murder charges against them, this enumeration affords them no relief.
The trial court conducted separate hearings in each defendant’s case. While one of Fair’s attorneys was present and observed the evidentiary hearing in Jolly’s case on the State’s motion alleging a conflict of interest, that attorney did not participate in the hearing. Furthermore, Fair was absent from the hearing, and Fair’s attorney did not indicate that he was personally waiving Fair’s right to be present by “his express authority” to do so. Wilson v. State,
Pursuant to Art. I, Sec. I, Par. XII of the Georgia Constitution of 1983, a person accused of a crime in this State has a legal right to be present at all critical stages of his trial. See Holsey v. State,
4. Although Fair does not allege that his right to be present at a critical stage of the proceedings was otherwise violated, our review of the record indicates that he may have been absent from other hearings in his case. The trial court is reminded that “[t]his Court has consistently considered the defendant’s absence from a critical part of the trial as a defect not subject to harmless error analysis.” Holsey,
Judgment affirmed in part, reversed in part, vacated in part, and remanded with direction.
Notes
Fair asserts that the trial court denied his motion to invoke immunity from prosecution pursuant to OCGA § 16-3-24.2 without a hearing. However, our review of the records and transcripts in these cases shows that the trial judge originally assigned to the defendants’ cases held thorough evidentiary hearings on the immunity issue prior to the first interim review and that, after the return of jurisdiction to the trial court, both defendants acknowledged on the record to the trial judge now assigned to the cases that the trial court had already held evidentiary hearings on this issue, that there was no new evidence to present, and that the issue could be decided on the current record. Accordingly, after conducting non-evidentiary hearings and hearing argument on the issue in each defendant’s case and after considering the records in the cases, the trial court entered orders determining the issue of immunity pre-trial pursuant to this Court’s directive. See Fair,
The trial court addressed whether the defendants were immune from prosecution through the application of OCGA §§ 16-3-21, 16-3-23, and 16-3-24 and denied the defendants’ motions to dismiss under all three statutes because Deputy Whitehead’s “use of force when he entered the house” was lawful. However, the defendants have only appealed the trial court’s application of OCGA § 16-3-23.
See OCGA § 16-1-3 (16) (stating that, as used in Title 16, the term “ ‘[r]easonable belief’ means that the person concerned, acting as a reasonable man, believes that the described facts exist”).
The trial court ordered that the mitigation investigator assigned to Jolly’s case be removed and replaced with a mitigation investigator who had never had any contact with the main office where Fair’s trial counsel was employed.
Dissenting Opinion
dissenting.
I cannot agree that OCGA § 17-10-30 (b) (8), construed without a victim status scienter requirement, withstands scrutiny under the Equal Protection Clause. I have previously registered my disagreement with this Court’s decision to construe the (b) (8) statutory aggravating circumstance as lacking a victim status scienter requirement. Fair v. State,
Contrary to the majority’s conclusion, I can discern no “rational basis” for imposing the death penalty on defendants who at the
The absurdity of the result reached under the majority’s analysis in Division 1 (A) is amplified in light of our construction of the immunity statute, see Division 2, as applicable only when deadly force is employed against one whose entry is unlawful in fact. According to the majority, both the defendant’s eligibility for the death penalty and his entitlement to claim immunity depend on circumstances entirely beyond his knowledge at the time he committed the crime. The respective holdings in Divisions 1 (A) and 2 create the potential for wildly divergent outcomes in cases with facts similar to those in this case, depending on factors entirely unrelated to any differences in the defendant’s culpability: two defendants committing the same actus reus with the same intent (i.e., killing a stranger, who has forcibly entered their home, in defense of habitation) may be subject to diametrically opposite outcomes, depending only on the fortuity of the victim’s status as a police officer effecting a lawful entry. The act of shooting may be identical, the intent to defend habitation identical; yet, depending on circumstances beyond his knowledge or ability to know at the moment the trigger is pulled, the shooter may be subjected to death in one instance, entitled to immunity in the other.
In creating this bizarre state of affairs, the majority promotes the “‘capricious and arbitrary enforcement of the death penalty’” (citation omitted) Jones v. State,
I am authorized to state that Justice Benham joins in this dissent.
Invalidation of the (b) (8) aggravating circumstance examined in Division 1 (A) would render it unnecessary to address the issues resolved in subdivisions (B) and (C) thereof.