This is the second interim appellate review of two related cases in which the State seeks the death penalty. See Fair v. State , 284 Ga. 165 664 SE2d 227 2008. Antron Dawayne Fair and Damon Antwon Jolly are co-indictees who were originally charged with one count of malice murder and three counts of felony murder in connection with the shooting death of Bibb County Deputy Joseph Whitehead while he was on assignment as an investigator with the Middle Georgia Drug Task Force. The State contends that both defendants opened fire on Deputy Whitehead as he and other members of the Task Force and the Bibb County Drug Unit were executing a “no-knock” warrant in the early morning hours of March 23, 2006. After this Court decided certain issues in their cases on interim review, see id., Fair and Jolly were jointly re-indicted on a thirty-four-count indictment that includes one malice murder count and five felony murder counts. Pursuant to OCGA § 17-10-35.1, we granted their second applications for interim review to consider whether the trial court erred in denying their motions to declare unconstitutional the statutory aggravating circumstance described in OCGA § 17-10-30 b 8 and in ruling that the immunity from prosecution prescribed by OCGA § 16-3-24.2 could not apply to their cases because the officers’ entry was in fact lawful. We also directed the parties in Fair’s case to address whether the trial court erred in conducting hearings in Fair’s absence and without obtaining a valid waiver from Fair and in denying Fair’s motion regarding an alleged conflict of interest arising from the fact that both Fair and Jolly are represented by employees of the Office of the Georgia Capital Defender. For the reasons that follow, we affirm in part, reverse in part, vacate in part, and remand with direction.
1. In the defendants’ first interim review, we directed the parties to address whether the trial court erred in denying the defendants’ requests that the jury be charged in any sentencing phase that the State bears the burden to prove beyond a reasonable doubt that the defendants knew that the victim was a peace officer engaged in the performance of his duties at the time of the shooting in order to prove the sole statutory aggravating circumstance alleged by the State in its notice of intent to seek the death penalty, namely, that ” ‘the offense of murder was committed against a peace officer while he was engaged in the performance of his official duties.’ ” Fair , 284 Ga. at 167 2 b. See OCGA § 17-10-30 b 8. The defendants’ motions in the trial court focused on the question of whether the principles of statutory construction dictated a conclusion that the b 8 statutory aggravating circumstance required proof that the defendant knew that the victim was a police officer, and the trial court did not rule on the constitutionality of the statute.
