Lead Opinion
In this interim review in a death penalty case, appellant Ronald Freeman enumerates as error certain rulings by the trial judge. The principal issues on appeal involve the state’s proposed use of similar transaction evidence, the constitutionality of OCGA § 17-10-16, providing for a sentence of life without parole, and the propriety of a change of venue. We affirm in part and reverse in part.
On June 25, 1992, Freeman and co-defendant Enrico Williams were indicted for a murder and armed robbery which occurred at a Burger King restaurant on Powers Ferry Road in Cobb County (Burger King I). Five months later, Williams, pursuant to a plea bargain, pleaded guilty to the armed robbery charge; the murder charge against him was placed on the dead docket in return for a statement and agreement to testify against Freeman. As a result of the statement made by Williams, five more indictments were returned against Freeman, charging him with: armed robbery of a Burger King restaurant on Cobb Parkway in Cobb County (Burger King II); murder and armed robbery at a Circle K convenience store on Six Flags Drive in Cobb County; murder and armed robbery at an RK convenience store on Franklin Road in Cobb County; armed robbery of a hotel; and three counts of aggravated assault. The state sought the death penalty on the Burger King I, Circle K and RK indictments.
In January 1993, Freeman was tried on the аggravated assault indictment and found guilty of all three counts; he was sentenced to sixty years in prison. In February 1993, Freeman was tried and found guilty of the armed robbery of a Burger King restaurant (Burger King II) and sentеnced to life imprisonment consecutive to the 60-year aggravated assault sentence. In March 1993, the death penalty case in
Pre-trial proceedings in thе instant case involving the murder and armed robbery at the Circle K convenience store began in July 1993, and pursuant to OCGA § 17-10-35.1, the trial judge certified various issues for interim review in this death penalty casе.
1. Freeman enumerates as error the trial court’s order allowing the State to present evidence of his convictions for the armed robbery of the Burger King (Burger King II) and the armed robbery and murder at the RK convenience store, and of the pending indictment for murder and armed robbery at Burger King (Burger King I). While unconnected crimes are generally inadmissible because of prejudiсe tending to place the defendant’s character into evidence, the State may introduce such evidence provided that it satisfies two conditions. Davis v. State,
2. Both Freeman and the State contend that OCGA § 17-10-16, the life-without-parole statute, is unconstitutional. We disаgree.
(a) Section 7 of the act creating OCGA § 17-10-16 provides that the statute applies only to crimes committed after its effective date of May 1, 1993, unless the defendant requests in writing and the State gives its express written consent that the life-without-parole statute
Prosecutorial discretion in this situation is no different from prosecutorial discretion in any other. Given any set of faсts, prosecutors must exercise discretion as to what the criminal charge will be. Homicides could be indicted as murder, voluntary manslaughter, or involuntary manslaughter. By not seeking the death pеnalty in a murder case, a prosecutor in effect fixes the sentence — that is, life imprisonment. Therefore, since prosecutorial discretion comes into play under every сriminal statute, it is not, of itself, grounds for striking a given statute down as unconstitutional. [Cit.]
(b) The State argues that OCGA § 17-10-16 is unconstitutional and violаtive of Art. IV, Sec. II, Par. II; Art. IV, Sec. VII, Par. II, and Art. IV, Sec. II, Par. I because it imposes legislative restrictions on the power of the Board of Pardons and Paroles to grant parole and thus violatеs the separation of powers. This argument, too, is without merit.
3. In the case called for trial in March 1993, Freeman moved for a change in venue. The trial judge denied the motion but directеd that venue would be changed in the two upcoming death penalty cases. Freeman argues that his motion for a change of venue was made only with respect to the case thеn on trial and that the trial judge acted improperly in changing the venue of the other two trials. We agree.
Under Georgia law, the superior court judge is authorized to change venue оn his own motion only when “in his judgment, there is
4. Any enumerations of error not disposed of in Divisions 1 through 3 are without merit.
Judgment affirmed in part and reversed in part.
Notes
Freeman does not argue that the state has no standing to appeal this matter. We prеtermit that issue, but see State v. Hollomon,
Concurrence Opinion
concurring.
In Williams v. State,
First, the state must show that it intends to introduce the evidence for an appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility and not for the purpose of raising an improper inference with regard to the accused’s character. Second, the state must show sufficient evidence to establish that the accused committed the independent act. Third, the state must show there is a sufficient connection or similarity between the independent act and the crime charged such that proof of the former tends to prove the latter. The state must show “that each of these three showings has been satisfactorily made” as to each independent act it wishes to introduce into evidence. (Emphasis supplied.) Williams,
The state presents these independent acts for the proper purpose of showing identity, course of сonduct and scheme. As the majority noted, at the Rule 31.3 (B) hearing, the state made a sufficient showing that the accused committed the independent acts and that there was a sufficient similarity between the acts and the crime charged such that proof of the former tended to prove the latter. Since the state has made the three affirmative showings required under Williams, I would affirm.