MEMORANDUM OPINION AND ORDER
KEITH STARRETT, District Judge
This matter is before the court on a Motion for Summary Judgment [#11] filed on behalf of the plaintiff, Allstate Insurance Company ("Allstate"). The court, having reviewed the motion, the response, the briefs of counsel, the pleadings and exhibits on file and being otherwise fully advised in the premises finds that the motion is well taken and should be granted. The court specifically finds as follows:
FACTUAL BACKGROUND
On February 15, 2007, Arthur Bernard Green purchased a house from Joy Champ, located on 201 Clarence Ray Drive in Hattiesburg, Mississippi, for $89,100.00. The house was located in an area adjacent to Mixon Creek that for years experienced periodic episodes of serious flooding. To combat the destructive effects of what had become a consistent and widespread problem for the entire community, the Lamar County Board of Supervisors created a "Multi-Jurisdictional Hazard Mitigation Plan" in an attempt to reduce the extent and frequency of the flooding episodes, and to provide protection for the people and property within the area.
The house purchased by Green, which is at the center of this litigation, itself was affected by the persistent flooding. After Green purchased the house, the Mississippi Emergency Management Agency ("MEMA") conducted an assessment on the property in relation to its own Lamar County Mixon's Creek Acquisition Project. According to the MEMA report, the house had flooded on at least four previous occasions, occurring on September 28, 1998, January 31, 1999, March 13, 1999, and June 30, 2003. After assessing the subject property, MEMA offered to purchase the house from Green for $63,110.00 as part of a mitigation grant program, but the offer was declined.
On December 10, 2007, Green sold the house to Lewis and Turkesa Bullock for the price of $110,000.00. Allstate contends that even though Green was well aware of the flooding issue, considering his previous communication with MEMA and Lamar County, he did not disclose the problem to the Bullocks. In fact, at no point, from the time of initial negotiation to the final closing, were the Bullocks made aware from any source that the house was located in an area prone to flooding.
The Bullocks learned of the flooding problem once they experienced a flood for themselves as occupants of their new house. Making their situation worse, they had failed to purchase flood insurance, alleging that they were unaware that it was needed. Frustrated with discovering that such alleged material information had been concealed from them in a real estate purchase, the Bullocks filed suit in state court.
Their complaint cast a very wide net, containing multiple causes of action against apparently every party involved in facilitating the sale of the house. The underlying allegations of the Complaint are that: (1) Green intentionally perpetuated a fraud against the Bullocks by failing to disclose the history of flooding surrounding the house; (2) all of the other defendants, including a bank, a flood safe company, a title company, and a real estate firm, either intentionally or negligently failed to discover this fraud; (3) as a result of this undiscovered fraud, the Bullocks suffered pecuniary damages by being stuck with a house that they likely would not have purchased upon full information.
When he sold the house, Green maintained three separate insurance policies with Allstate. Specifically, he held a Deluxe Plus Homeowners Policy, a Landlord Policy, and a Personal Umbrella Policy. Upon services of the state court Complaint on Green, Allstate agreed to defend him under a reservation of rights. Allstate has now filed the present action seeking a declaratory judgment that it has no duty to defend Green in the underlying lawsuit between himself and the Bullocks, and has now filed this Motion for Summary Judgment.
STANDARD OF REVIEW
The Federal Rules of Civil Procedure, Rule 56(c) authorizes summary judgment where "the pleadings, the discovery and disclosure materials on file, and any affidavits, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FRCP 56(c); and see Celotex Corporation v. Catrett, 477 U.S. 317, 322, 91 L.Ed.2d 265, 106 S.Ct. 2548 (1986). The existence of a material question of fact is itself a question of law that the district court is bound to consider before granting summary judgment. John v. State of La. (Bd. of T. for State C. U.), 757 F.2d 698, 712 (5th Cir. 1985).
A Judge's function at the summary judgment stage is not himself to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment is appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L.Ed.2d 202, 106 S.Ct. 2505 (1986).
Although Rule 56 is peculiarly adapted to the disposition of legal questions, it is not limited to that role. Professional Managers, Inc. v. Fawer, Brian, Hardy Zatzkis, 799 F.2d 218, 222 (5th Cir. 1986). "The mere existence of a disputed factual issue, therefore, does not foreclose summary judgment. The dispute must be genuine, and the facts must be material." Id. "With regard to `materiality', only those disputes over facts that might affect the outcome of the lawsuit under the governing substantive law will preclude summary judgment." Phillips Oil Company v. OKC Corporation, 812 F.2d 265, 272 (5th Cir. 1987). Where "the summary judgment evidence establishes that one of the essential elements of the plaintiff's cause of action does not exist as a matter of law, . . . all other contested issues of fact are rendered immaterial. See Celotex, 477 U.S. at 323, 106 S.Ct at 2552." Topalian v. Ehrman, 954 F.2d 1125, 1138 (5th Cir. 1992). In making its determinations of fact on a motion for summary judgment, the Court must view the evidence submitted by the parties in a light most favorable to the non-moving party. McPherson v. Rankin, 736 F.2d 175, 178 (5th Cir. 1984).
The moving party has the duty to demonstrate the lack of a genuine issue of material fact and the appropriateness of judgment as a matter of law to prevail on his motion. Union Planters Nat. Leasing v. Woods, 687 F.2d 117 (5th Cir. 1982). The movant accomplishes this by informing the court of the basis of its motion, and by identifying portions of the record which highlight the absence of genuine factual issues. Topalia n, 954 F.2d at 1131.
"Rule 56 contemplates a shifting burden: the nonmovant is under no obligation to respond unless the movant discharges [its] initial burden of demonstrating [entitlement to summary judgment]." John, 757 F.2d at 708. "Summary judgment cannot be supported solely on the ground that [plaintiff] failed to respond to defendants' motion for summary judgment," even in light of a Local Rule of the court mandating such for failure to respond to an opposed motion. Id. at 709.
However, once a properly supported motion for summary judgment is presented, the nonmoving party must rebut with "significant probative" evidence. Ferguson v. National Broadcasting Co., Inc., 584 F.2d 111, 114 (5th Cir. 1978). In other words, "the nonmoving litigant is required to bring forward `significant probative evidence' demonstrating the existence of a triable issue of fact." In Re Municipal Bond Reporting Antitrust Lit., 672 F.2d 436, 440 (5th Cir. 1982). To defend against a proper summary judgment motion, one may not rely on mere denial of material facts nor on unsworn allegations in the pleadings or arguments and assertions in briefs or legal memoranda. The nonmoving party's response, by affidavit or otherwise, must set forth specific facts showing that there is a genuine issue for trial. Rule 56(e), Fed.R.Civ.P. See also, Union Planters Nat. Leasing v. Woods, 687 F.2d at 119.
While generally "`[t]he burden to discover a genuine issue of fact is not on [the] court,' ( Topalian 954 F.2d at 1137), `Rule 56 does not distinguish between documents merely filed and those singled out by counsel for special attention-the court must consider both before granting a summary judgment.'" John, 757 F.2d at 712 (quoting Keiser v. Coliseum Properties, Inc., 614 F.2d 406, 410 (5th Cir. 1980)).
The Insurer's Duty to Defend
As a general rule in Mississippi, an insurer has a duty to defend claims that fall under the coverage of an applicable policy. Sennett v. U.S. Fidelity and Guar. Co., 757 So. 2d 206, 212 (Miss. 2000). Courts have used the "allegations of the complaint rule" to determine whether a claim is in fact covered. In doing so, the court must first interpret the policy language itself, then determine whether an allegation in the complaint, if proven true, would fall within that coverage. Barden Mississippi Gaming LLC d/b/a Fitzgerald's Casino v. Great Northern Ins. Co., 576 F.3d 235 (5th Cir. 2009). It is the underlying facts alleged in the complaint, and not the legal conclusions asserted, that are relevant to the insurer's duty. Nationwide Mut. Ins. Co. V. Lake Caroline, Inc. 515 F.3d 414, 418 (5th Cir. 2008). It is the tortious conduct itself, not the accompanying legal theories, which triggers the duty to defend. Id., at 421.
An insurer's duty to defend is independent of, and broader than, its duty to indemnify. For example, while an insurer must defend even baseless and fraudulent claims, it has no similar duty to indemnify such claims. However, as broad as the duty to defend may be, an insurer has no duty to defend a claim that does not fall within the policy's definition of coverage. See Farmland Mut. Ins. Co. v. Scruggs, 886 So. 2d 714 (Miss. 2004).
ANALYSIS
In the present case, Allstate alleges that it does not have a duty to defend Green, because the alleged conduct underlying the state court action in question constituted an intentional tort, and therefore was not a covered "occurrence" within the meaning of the policy language. After reviewing the allegations of the State court Complaint and the relevant policy language, the court agrees.
An analysis of the policy contract language is the first order of business. "Where a contract is clear and unambiguous, its meaning and effect are matters of law." USF G Co. v. Omnibank, 812 So.2d 196, 198 (Miss. 2002). "The policy itself is the sole manifestation of the parties' intent, and no extrinsic evidence is permitted absent a finding by a court that the language is ambiguous and cannot be understood from a reading of the policy as a whole." Great Northern Nekoosa Corp. v. Aetna Cas. and Sur. Co., 921 F.Supp. 401, 406 (N.D.Miss. 1996) (citing Cherry v. Anthony, Gibbs, Sage, 501 So.2d 416, 419 (Miss. 1987). "The construction of an insurance contract is limited to an examination of the written terms of the policy itself." Great Northern Nekoosa Corp., 921 F.Supp. at 406 (N.D.Miss. 1996) (citing Employers Mut. Casualty Co. v. Nosser, 250 Miss. 542, 553, 164 So.2d 426, 430 (1964)).
In interpreting an insurance policy, the courts "should look at the policy as a whole, consider all relevant portions together and, whenever possible, give operative effect to every provision in order to reach a reasonable overall result." J W Foods Corp. v. State Farm, 723 So.2d 550, 552 (Miss. 1998). "The court must construe the policy in a manner that effectuates the parties' intentions." Great Northern Nekoosa Corp., 921 F.Supp. at 406. See also Western Line Consol. School Dist. v. Continental Cas. Co., 632 F.Supp. 295, 302 (N.D.Miss. 1986) (citing Monarch Ins. Co. v. Cook, 336 So.2d 738, 741 (Miss. 1976)).
Green's liability insurance policies contain the following language as to when liability coverage is provided:
Homeowners Policy Language Insured Property: 4 Cavalier, Hattiesburg, MS 39402-8159
Coverage X: Family Liability and Guest Medical Protection
Losses We Cover Under Coverage X:
Subject to the terms, conditions and limitations to this policy, Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an occurrence to which this policy apples and is covered by part of this policy.
Losses We Do Not Cover Under Coverage X: We do not cover any bodily injury or property damage intended by or which may be reasonably expected to result from the intentional or criminal acts or omissions of, any insured person.
"Occurrence" — means an accident, including continuous or repeated exposure to substantially the same general harmful conditions during the policy period, resulting in bodily injury or property damage.
"Bodily Injury" — means physical harm to the body, including sickness or disease, and resulting death.
"Property Damage" — means physical injury to or destruction of tangible property, including loss of its use resulting from such physical injury or destruction
Landlord Policy Language: Insured Property: 201 Clarence Ray Dr., Hattiesburg, MS 39402-1028
Coverage X: Liability Protection
Losses We Cover Under Coverage X :
. . . Allstate will pay compensatory damages which an insured person becomes legally obligated to pay because of bodily injury, personal injury, or property damage arising from a covered occurrence
Losses We Do Not Cover Under Coverage X:
We do not cover bodily injury, personal injury, or property damage intended by, or which may be expected to result from the intentional or criminal acts or omissions of, an insured person.
"Occurrence" — means:
Under Coverage X — Liability Protection, an accident during the policy period, including continued and repeated exposure to substantially the same general harmful conditions during the policy period, resulting in bodily injury, personal injury or property damage and arising form the ownership, maintenance, or use of said premises.
"Bodily Injury" — means physical harm to the body, including sickness, disability or disease, and resulting death.
"Personal Injury" — means damages resulting from:
a) false arrest, false imprisonment, wrongful detention;
b) wrongful injury, invasion of rights of occupancy, wrongful eviction;
c) libel, slander, humiliation, defamation of character, invasion of rights to privacy.
"Property Damage" — means physical harm to or destruction of tangible property, including loss of its use resulting from such physical harm or destruction. Property damage does not include theft or conversion of property by an insured person.
PERSONAL UMBRELLA POLICY
Coverage — When We Pay
Allstate will pay when an insured becomes legally obligated to pay for personal injury or property damage caused by an occurrence.
General Exclusions — When This Policy Does Not Apply to any intentionally harmful act or omission of an insured
"Occurrence" — means an accident or a continuous exposure to conditions. An occurrence includes personal injury and property damage caused by an insured while trying to protect persons or property from injury or damage.
"Personal Injury" — means:
a) bodily injury, sickness, disease or death of any person. Bodily injury includes disability, shock, mental anguish and mental injury;
b) false arrest; false imprisonment; wrongful detention; wrongful entry; invasion of rights of occupancy; or malicious prosecution;
c) libel; slander; misrepresentation; humiliation; defamation of character; invasion of rights of privacy; and
d) discrimination and violation of civil rights, where recovery is permitted by law. Fines and penalties imposed by law are not included.
"Property Damage" — means physical injury to tangible property. It includes resulting loss of use. This also means loss of use of tangible property not physically injured if the loss of use is caused by an occurrence during the policy period.
Each policy only provides liability coverage for injury or damage caused by an "occurrence." Each policy then defines an "occurrence," as an accident. The Mississippi Supreme Court has held that an accident is something which "produces unexpected and unintended results" from the standpoint of the insured. Farmland Mut. Ins. Co. v. Scruggs, 886 So.2d at 719. Further, "the term accident refers to [the insured's] action and not whatever unintended damages flowed from the act." ACS Const. Co., Inc. Of Mississippi v. CGU, 332 F.3d 885, 888 (5th Cir. 2003) (quoting Allstate Ins. Co. v. Moulton, 464 So.2d 507, 510 (Miss. 1985)). Additionally, the Mississippi court has clearly held that claims arising from intentional conduct that create foreseeable harm, regardless of the ultimate injury or damage, are not covered under the type of policy language at issue here. See USF G Co. v. Omnibank, 812 So.2d 196, 201 (Miss. 2002).
The Mississippi Supreme Court has articulated a test to determine whether an incident falls under the definition of "accident," and is thus an "occurrence." It held that an act is not an "accident," and thus not an "occurrence" if:
(1) the act is committed consciously and deliberately, without the unexpected intervention of any third force; and
(2) the likely (and actual) effect of the act was well within the actor's foresight and anticipation.
Moulton, 464 So. 2d at 509.
Therefore, a reviewing court must determine whether a chain of events leading to the damages complained of by a plaintiff was set in motion and followed a course of action committed consciously and deliberately and controlled by the insured without the unexpected intervention of any third party or extrinsic force. Moulton, 464 So.2d at 509. Then, the court must also determine whether the likely (and actual) effect [ i.e., damage] of those actions were well within the putative insured's "foresight and anticipation." Id.
In the present case, Arthur Green's misrepresentation was not without foresight or anticipation. It was not undesigned, sudden, or unexpected. Rather, it was an intentional misrepresentation of the house's flooding problem. Green knew that the house was in an area prone to flooding because he had been put on notice by both Lamar County and by MEMA. Further, he knew that the house's flooding problem affected the economic value of the house, if not out of common sense, then because MEMA offered to purchase the house for about $26,000.00 less than what he paid for it. In Mississippi, under the Omnibank analysis, whether Mr. Green intended for the Bullocks to suffer economically from his misrepresentation is irrelevant. Rather, the determinative fact is that he intentionally did not disclose the flooding problem even though he was aware that it was of material importance to the value of the house.
Under the policy language, Allstate has no duty to defend a lawsuit based on the independent tort of intentional representation or fraud. In Mississippi, intentional or fraudulent representation requires the following elements: (1) a representation, (2) its falsity, (3) its materiality, (4) the speaker's knowledge of its falsity or ignorance of its truth, (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated, (6) the hearer's ignorance of its falsity, (7) his reliance on its truth, (8) his right to rely thereon, and (9) his consequent and proximate injury. See, McCord v. Healthcare Recoveries, Inc., 960 So. 2d 399, 406 (Miss. 2007).
In the Bullocks's State court complaint, Mr. Green's tortious conduct which gave rise to the lawsuit is described as follows in excerpts from the Complaint:
VI.
Upon information and belief, the plaintiff believes Green purchased the house with knowledge of the flooding with the motive of turning a quick profit.
. . .
X.
MEMA offered $63,110.00 [to] Arthur B. Green for the house. Motivated by greed, Green rejected the offer by MEMA.
XI.
With the delusional belief that he was entitled to more and with the intent to conceal the danger of flood, Green placed his house on the open market. Soon after, Green found his unsuspecting victims.
. . .
XIII.
From the point of negotiation to the closing, Green committed fraud by concealing the fact that the house was prone to flooding.
. . .
XV.
This failure by all of these entities to uncover Green's fraud placed the Bullocks in a severe economic disadvantage.
. . .
XVII.
Additionally, had a thorough investigation of the house been done, Green's fraud would have been uncovered.
XVIII.
. . . none of the entities discovered the fraud.
. . .
XXIV.
Despite all of these "gentlemen" involved in the sale of the house, Green's fraud was not brought to the plaintiff's attention.
As previously stated, under the allegations of the complaint rule, the underlying facts of the complaint will determine whether or not Green's conduct falls under the policy coverage. In the Complaint, both the underlying facts and the asserted legal conclusions allege that Arthur Green's conduct constituted intentional, fraudulent misrepresentation. The Bullocks went so far as to attach the record of MEMA's proposed purchase of Mr. Green's house as evidence that he was fully aware of the house's flooding history, and the economic effect that it had on the house. Green's failure to disclose the knowledge he had obtained about the flooding of the house was not accidental under the allegations of the Bullock's State court Complaint.
Further, Green's policies contain specific exclusions which deny coverage for intentional acts. When the language of an insurance contract is clear and unambiguous, it is construed as written, not in favor of the insured. Progressive Gulf Insurance Co. v. Dickerson and Bowen, Inc., 965 So. 2d 1050 (Miss. 2007). Under Mississippi law there is no "occurrence" under policies which define "occurrence" as an "accident" if the harm for which recovery is sought from the insured resulted from an insured's intentional or deliberate actions, even if the insured did not intend such harm. It is further settled under Mississippi law that an insurer's duty to defend under a general commercial liability policy for injuries caused by accidents does not extend "to injuries unintended by the insured but which resulted from intentional actions of the insured" even if those actions were not intentionally tortious but rather only negligent. If the acts themselves were not accidental, even if they may have been negligent, then there is no "occurrence." Essex Insurance Company v. Greenville Convalescent Home, Inc., 2006 WL 2347522 (N.D. Miss.). While a duty to defend may still arise under this definition of an "occurrence" if an insured acts in a negligent manner, that action must still be accidental and unintended in order to implicate such a duty. ACS Const. Co., Inc. of Mississippi v. CGU, 332 F.3d at 890.
Green's Deluxe Homeowners policy specifically states that "[Allstate does] not cover any bodily injury or property damage intended by or which may reasonably be expected to result from the intentional or criminal acts or omissions of any insured person." Similarly, his Landlords Package policy has a provision which states that "[Allstate does] not cover bodily injury, personal injury, or property damage intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of an insured person." Finally, the endorsement to his Personal Umbrella has an amended, general exclusion which states that "this policy does not apply . . . to any intentionally harmful act or omission of an insured.
Since Green allegedly knew of the flooding problem, knew that the problem adversely affected the resale value of the house, and knew that it would be a material fact to the Bullocks, his failure to disclose the problem was intentional. The State court Complaint alleges that he purposefully decided to withhold a known fact about that house that dramatically affected its sale. Each of his policies contain clear, unambiguous provisions which specifically deny coverage for damages arising from intentional acts or omissions. Therefore, since his intentional misrepresentation is specifically excluded from coverage, Allstate has no duty to defend Green in the resulting State court lawsuit.
In response, Green contends in his opposition brief that his conduct was "[arguably] accidental and unintended" because he relied on the substance of other disclosures and information instead of his own personal knowledge as gained by the above mentioned notices. However, none of these reliance arguments supports a conclusion that Green was somehow negligent, or his conduct was "accidental" as a result of such reliance.
Specifically, Green states that he "relied on disclosures and certifications made to him that the home itself was not located in a special flood zone from the entity responsible for designating property in special flood zones." However, whether the property is located in a "special flood zone" as designated by a "responsible party" is irrelevant. The issue at the center of this coverage dispute is not whether the home was in a "specially designated" flood zone, but instead, whether Green had knowledge, no matter how gained, that the house in question had a history of flooding, at the time he represented to the Bullocks that it did not.
Documentation exists, in the form of the MEMA worksheet and the Lamar County Board of Supervisor's memo, that the house was in an area prone to flooding, and that the house itself had flooded on four separate occasions prior to Green's purchase of it. Green's interactions with MEMA would have alerted him to both the subjective flood history of the house, and the larger history of flooding in the area. Once he was made aware of the house's flood history, he possessed knowledge of material information, and failing to disclose that information was not accidental. Green allegedly chose which information to reveal, and which to keep to himself, regardless of whether he ever intended the Bullocks to suffer economically as a result of his misrepresentation.
Finally, Green contends, that even if his conduct is not an accident, it still may fall within the definition of an "occurrence" based on the language of the Personal Umbrella Policy. That policy contains an additional definition of an "occurrence" as "a continuous exposure to conditions," and includes "personal injury and property damage caused by an insured while trying to protect persons or property from injury or damage . . ." However, according to the facts alleged herein, the court cannot conclude that the misrepresentation constitutes an "occurrence" either as an accident, or as a "continuous exposure to conditions" as covered in the Policy.
Green argues that, as alleged in the underlying State court complaint, he "exposed [the Bullocks] to a continuous risk of flooding." However, Green fails to realize that this so called exposure was only based on a single incident of alleged fraud. There is a fundamental difference between "exposure to a continuous condition" as argued in Green's brief, and "continuous exposure to a condition" as covered in the Policy. There was nothing "continuous" in Green's actions. His alleged tortious conduct consisted of a single misrepresentation of the flooding history surrounding the house. Regardless, Green's conduct would be excluded as intentional even if it were to somehow fall under this strained definition of an "occurrence."
CONCLUSION
The court finds that allegations of the Bullock's State court Complaint assert that Green had personal knowledge of the house's flood history and of its location within an area known to flood, and these allegations appear credible. Thus, Green's misrepresentation of these material facts to the Bullocks was not an accident. This is true even if he was originally subjected to the same misinformation to which he subjected the Bullocks. As such, whether his misrepresentation was intentional, or merely non-accidental, it was not covered by the policies under which he seeks a defense. For these reasons, the court concludes that Allstate does not have a duty to defend the conduct of Green, nor does it owe indemnity for the resulting contract-based damages recovered, if any, in the underlying State court suit.
IT IS THEREFORE ORDERED AND ADJUDGED that Motion for Summary Judgment [#11] filed on behalf of the plaintiff Allstate Insurance Company is granted, that this matter is dismissed with prejudice and that any other pending motions are denied as moot. A separate judgment shall be entered herein in accordance with Rule 58, Federal Rules of Civil Procedure.
SO ORDERED AND ADJUDGED this 22nd day of November, 2010.
MELTON, Justice.
DECIDED NOVEMBER 22, 2010.
o 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, 284 Ga. at 166 (1).
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.
The cardinal rule of statutory construction is to seek the intent of the Legislature, and language in one part of a statute must be construed "in the light of the legislative intent as found in the statute as a whole." Goldberg v. State, 282 Ga. 542, 544 ( 651 SE2d 667) (2007) (citation and punctuation omitted). In determining the Legislature's intent, we must first focus on the statute's text. Busch v. State, 271 Ga. 591, 592 ( 523 SE2d 21) (1999). "In order to discern the meaning of the words of a statute, [we] must look at the context in which the statute was written, remembering at all times that `the meaning of a sentence may be more than that of the separate words. . . .' [Cit.]" Id.
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, 285 Ga. 693, 695-696 (2) ( 681 SE2d 116) (2009) (citations omitted).
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
(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, in the introductory clause of the statute applies only to an actor's perception of the amount of force necessary to prevent or terminate another's unlawful entry or attack; consequently, the entry or attack itself must have been in fact unlawful, regardless of what a defendant might have believed, in order for the statute to apply. Therefore, because Deputy Whitehead's entry was not unlawful, the trial court never considered whether the defendants were justified in using "force which is intended or likely to cause death or great bodily harm" ("deadly force") under subsections (1), (2), or (3).
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").
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 common law principle and the long-standing precedent of this State's appellate courts that generally the use of force in defense of habitation is justified only where there is an unlawful entry.
( 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, 5 Ga. 85, 88 (1848). Accord Pounds v. State, 43 Ga. 88, 136 (1871).
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, 135 Ga. 224 ( 69 SE 171) (1910) (holding that it was not error to refuse a charge on defense of habitation in the prosecution of one charged with killing an officer who at the time was attempting to execute a warrant in his possession). Compare Giddens v. State, 154 Ga. 54 ( 113 SE 386) (1922) (citing the defense of habitation statute in reversing the defendant's murder conviction where he fatally shot a constable after the constable "either kicked in or pushed the door [of the defendant's home] partly open" to effectuate an unlawful arrest). This view was in line with established jurisprudence at the time, which held that the rule as to defense of habitation did not apply where the person killed had the right to seek admission to the habitation. See 25 ALR 508 (I) (a) (1) (b) (2) (1923). Thus, the rule had no application "where a police officer [wa]s shot while lawfully attempting to force an entrance in order to make an arrest." Id. (citing Rushing, supra, among other cases).
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 relabeled 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, 272 Ga. 608, 612 (4) ( 533 SE2d 379) (2000) (stating that "OCGA § 16-3-23 authorizes use of force to terminate an `unlawful entry into or attack upon a habitation'" and holding that there was no evidence to support a jury charge on defense of habitation where the victim was a guest in the home); Parrish v. State, 182 Ga. App. 247, 250 (5) ( 355 SE2d 682) (1987) (holding that the defendant was not entitled to a directed verdict where "[h]is answer to the charges of aggravated assault and obstruction of officers was defense of habitation, OCGA § 16-3-23," and where there was " no evidence that defendant was attempting `to prevent or terminate (the officers') unlawful entry into or attack upon a habitation'"); Brown v. State, 163 Ga. App. 209, 211 (3) ( 294 SE2d 305) (1982) ("[S]ince the entry by the officers was lawful, the refusal to charge [OCGA § 16-3-23] applicable to unlawful entry was not error" in a prosecution for obstruction where the defendant hindered officers in "hot pursuit" from entering his home after mid-night to effect an arrest of another occupant); Todd v. State, 149 Ga. App. 574, 574 (2) ( 254 SE2d 894) (1979) (finding no error in the trial court's failure to charge on the use of force in defense of habitation, because "[t]he record d[id] not show evidence of an `unlawful entry, or attack upon,' the appellant's apartment by the decedent"); Leach v. State, 143 Ga. App. 598, 600 (2) ( 239 SE2d 177) (1977) (rejecting the appellant's contention that any action taken by him was in defense of habitation and, thus, that the trial court erred in denying his motion for a directed verdict of acquittal of aggravated assault of a police officer where "there was sufficient evidence for the jury to find either that the officer did not make an unlawful entry or was not attempting to make one"). Furthermore, as previously noted, this State's case law was in line with established jurisprudence. See 40 AmJur2d Homicide, § 171 (stating that an inhabitant cannot rely on the defense of dwelling claim where the victim had the right to seek admission to the habitation, "such as a person seeking to dispossess the accused under a lawful process, or a police officer seeking to make an arrest").
"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., 286 Ga. 593, 594 (2) ( 690 SE2d 401) (2010). We, therefore, presume that the Legislature knew in 2001 when it enacted subsection (2) that the State's appellate courts had repeatedly held that an unlawful entry or attack was a prerequisite to the applicability of the defense of habitation statute. Accordingly, we conclude that the fact that the General Assembly retained virtually unchanged all the other parts of the defense of habitation statute and, particularly, the fact that it did not add a reasonable belief standard to the unlawful entry element in the introductory clause when it inserted subsection (2), evidences its intent to retain the requirement that the entry or attack must in fact be unlawful in order for the use of threats or force to be justified in the defense of habitation.
( 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, 226 Ga. 606, 609 (2) ( 176 SE2d 81) (1970). The following discussion shows that, when so construed, the Legislature did not simply re-state in subsection (2) the unlawful entry or attack element that is contained in the statute's introductory clause but, rather, delineated those separate elements necessary to justify deadly force under that subsection. Accordingly, the language is not mere surplusage, as Fair alleges. See Harris v. State, 286 Ga. 245, 251 (5) ( 686 SE2d 777) (2009) (stating that a fundamental rule of statutory construction requires the avoidance of a construction that makes some language mere surplusage).
First, it is necessary to note the form of the statute. The statute's introductory clause defines when an actor is justified in the use of any force or threats of force in the defense of habitation, namely, "to the extent that he reasonably believes that such threat or force is necessary to prevent or terminate such other's unlawful entry into or attack upon a habitation." OCGA § 16-3-23. Therefore, the elements set forth in the introductory clause, however they are construed, are necessary to justify the use of any force or threats of force in defense of habitation in any circumstances. Subsections (1), (2), and (3) set forth the additional elements necessary to justify the use of deadly force in three different contexts.
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 "[s]ubsection (2) . . . expressly excludes application of the defense between members of the `same family or house-hold.'" Hammock v. State, 277 Ga. 612, 615 (3) ( 592 SE2d 415) (2004). Finally, and perhaps most significantly, unlike subsections (1) and (3), subsection (2) does not require an objective reasonable belief that the intruder is entering to assault, to offer personal violence, or to commit a forcible felony and that deadly force is necessary to prevent one of those acts. As a result, subsection (2) provides an actor broader leeway in using deadly force to repel an entry into a "residence" than subsections (1) and (3) provide and, thus, offers broader protection to an actor defending his "residence." OCGA § 16-3-23 (2). This distinction supports a conclusion that the purpose behind adding this third justification defense to the statute was "to make it easier" for "homeowners to use deadly force in protecting their home[s] from an illegal intruder." Derek E. Empie, Defenses to Criminal Prosecution: Change Provisions Relating to the Use of Force in the Defense of Habitations or Residences; Provide for Related Matters, 18 Ga. St. U. L. Rev. 25, 25-26 (Fall 2001) (stating that the 2001 amendment, which was prompted by "a rash of home invasions," was proposed "to add a third justification defense that would allow people to defend their home[s] without having to stop and think whether deadly force toward an intruder would meet the . . . reasonableness requirements [in subsections (1) and (3)]").
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 where a person other than a family or household member "unlawfully and forcibly entered" and the actor "knew or had reason to believe that an unlawful and forcible entry occurred," thereby reining in to some extent the provision's broad application. See Empie, Defenses to Criminal Prosecution, 18 Ga. St. U. L. Rev. at 26 (stating that language excluding family and household members was added at the suggestion of legislative counsel so that the defense would not be available in "situations where (one) family member shoots another") (quoting Senator Eric Johnson, who introduced the 2001 amendment in the Senate)). See also Hammock, 277 Ga. at 615 (3) (suggesting that the "likely" reason why subsection (2) excludes its application between members of the same family or household is because it does not contain a reasonable belief requirement regarding the intruder's purpose and the amount of force necessary to thwart that purpose).
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, 253 SE2d 906, 911 ( 297 NC 151) (1979).
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, 282 Ga. at 544. The practical consequence of such an interpretation would be that an actual unlawful entry or attack would not be required under subsections (1) and (3), resulting in a statutory scheme that would apply less-stringent requirements to justify the use of deadly force for those actors invoking the defense under subsections (1) and (3) than it would apply to an actor invoking the defense under subsection (2), which plainly requires an actual unlawful entry. Consequently, the statute would afford less protection to an actor under subsection (2) than those actors under subsections (1) and (3). That result was clearly not intended by the Legislature, as evidenced by its omission from subsection (2) of the reasonable belief standard with respect to the intruder's purpose and the force necessary to thwart that purpose. See Empie, Defenses to Criminal Prosecution, 18 Ga. St. U. L. Rev. at 26 (quoting Representative Curtis Jenkins, Chairman of the House Special Judiciary Committee at the time of the amendment's enactment, as stating that the Legislature's purpose in adding subsection (2) was "to give [the homeowner] more protection"); Robert E. Cleary, Jr., Kurtz Criminal Offenses and Defenses in Ga., "Defense of Property and Habitation," (III), p. 331 (2007 ed.) (stating that subsection (2) "makes it `easier' for a resident to use deadly force because it contains no reasonableness requirement").
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, 285 Ga. at 695 (2) (stating that, where a statute's language is "plain and susceptible to only one natural and reasonable construction," it must be construed accordingly). Even assuming it did, we would be required to reject such an interpretation for many of the same reasons that we have rejected the interpretation urged by Fair.
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, 239 Ga. at 810.
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.
3. Both Fair and the State filed motions to disqualify defense counsel based on an alleged conflict of interest arising from the fact that staff attorneys employed at different branches of the Office of the Georgia Capital Defender are now representing Fair and Jolly. Fair asked that Jolly's lawyers be disqualified, and the State asked that both defendants' lawyers and the entire defense team be disqualified. However, Jolly does not allege that a conflict of interest exists, and he filed no motion to disqualify any lawyers.
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, 212 Ga. 73, 77-78 ( 90 SE2d 557) (1955). After the completion of the evidentiary hearings in both cases, the trial court found that confidential information about Fair's case had not been passed to Jolly's attorneys and ruled that all of the lawyers would be allowed to continue representing their respective defendants. In making its findings, the trial court placed substantial reliance on testimony and evidence presented at the hearing in Jolly's case, i.e., the hearing at which Fair was absent.
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.
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, 271 Ga. 856, 860 (5) ( 524 SE2d 473) (1999). The federal constitution also guarantees to a criminal defendant "the `right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings.'" Tennessee v. Lane, 541U. S. 509, 523 (IV) ( 124 SC 1978, 158 LE2d 820) (2004) (quoting Faretta v. California, 422 U. S. 806, 819, n. 15 ( 95 SC 2525, 45 LE2d 562) (1975)). The evidentiary hearing on the State's motion to disqualify Jolly's attorneys in order to prevent the disclosure of confidential and privileged aspects of Fair's case affected Fair's fundamental rights to independent counsel and to a fair trial. See Wheat v. United States, 486 U. S. 153, 161 (II) ( 108 SC 1692, 100 LE2d 140) (1988) (stating that trial courts have an independent duty to investigate potential conflicts when alerted by objection from one of the parties to ensure that criminal defendants receive a trial that is fair and does not contravene the Sixth Amendment right to counsel). Thus, it was a critical part of Fair's trial proceedings at which he had the right to be present. See Rice v. State, 226 Ga. App. 770, 772 (1) ( 487 SE2d 517) (1997) (holding that a hearing held in a defendant's co-indictee's separate trial that addressed a possible conflict of interest arising from the defendant's attorney's representation of his co-indictee was a "`critical stage of the proceedings' such that [the defendant's] right to be present was absolute"). Accordingly, the trial court was obligated to ensure Fair's presence or obtain a valid waiver. See Brooks v. State, 271 Ga. 456, 457 (2) ( 519 SE2d 907) (1999) (setting forth the conditions that are required for a valid waiver of a defendant's right to be present). Because the trial court failed to do either, we vacate the trial court's orders on any potential conflict of interest and remand this case to the trial court in order to conduct a new hearing on that issue to be held with Fair present, or to obtain a valid waiver from Fair. See id.
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, 271 Ga. at 860 (5), n. 11 (listing some of the proceedings that this Court has held were a critical part of the trial, the defendant's absence from which constituted error not subject to harmless error analysis). See also Hampton v. State, 282 Ga. 490, 492 (2) (a) ( 651 SE2d 698) (2007) (stating how a defendant waives the right to be present).
Judgment affirmed in part, reversed in part, vacated in part, and remanded with direction. All the Justices concur, except Hunstein, C. J., and Benham, J, who dissent.
HUNSTEIN, Chief Justice, 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, 284 Ga. 165, 177 ( 664 SE2d 227) (2008) (Hunstein, E J., concurring in part and dissenting in part). Being now bound, however, under the doctrine of stare decisis to construe OCGA § 17-10-30 (b) (8) as the Court's majority did in Fair I, I would find that the inevitable consequence of that construction is the invalidation of the (b) (8) statutory aggravating circumstance on constitutional grounds.
Contrary to the majority's conclusion, I can discern no "rational basis" for imposing the death penalty on defendants who at the moment they fired the fatal shots neither knew nor should have known that their victim was a police officer. Though the majority ascribes to the Legislature the intent to "deter [] the crime of murder of peace officers, [and], in turn, . . . protect[] . . . those officers," Maj. Op. at 249, the majority wholly neglects to examine how the availability of the death penalty for crimes against peace officers can possibly effect any deterrence at all in circumstances in which the perpetrator has no knowledge of the victim's special status. Deterrence is, by definition, premised on awareness of the circumstance triggering the sought-to-be-avoided consequence. Thus, while the "deter and protect" rationale posited by the majority clearly constitutes a "legitimate state purpose," there is simply no "rational relationship" between such purpose and a (b) (8) statutory aggravating circumstance without a scienter requirement.
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, 279 Ga. 854, 859 (5) ( 622 SE2d 1) (2005), which is in fact precisely what our statutory aggravating circumstances are designed to prevent. I cannot in good conscience be complicit in this perversity and must, therefore, respectfully dissent to Division 1 of the majority opinion.
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.
I am authorized to state that Justice Benham joins in this dissent.