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Zellmer v. State

Death penalty defendants are entitled to question prospective jurors to determine whether they are willing to consider a sentence of life without parole.

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This is an interim appellate review of a case in which the State seeks the death penalty. Michael Zellmer and Robert Spickler allegedly killed Bruce Belville by striking him on the head during a robbery. Pursuant to the unified appeal procedure for capital felonies, OCGA § 17-10-35.1, we granted their applications for interim appeal to determine whether the trial court erred in ruling that appellants did not have the right to voir dire prospective jurors regarding their willingness to consider both of the non-death sentencing options, life without parole and life imprisonment.

1. Prior to the adoption in 1993 of OCGA § 17-10-31.1, which sets forth a three-tiered sentencing structure for murder that includes life without parole as a sentencing option, this Court allowed trial courts to limit voir dire questioning on the topic of parole because jurors’ views on the appropriateness of parole eligibility were “extraneous to their ability to serve.” Burgess v. State, 264 Ga. 777, 780 3 450 SE2d 680 1994; Davis v. State, 263 Ga. 5 7 426 SE2d 844 1993. However, pursuant to the enactment of OCGA § 17-10-31.1, juries in capital cases are required to determine the parole eligibility of those defendants who do not receive a death sentence in that subsection d obligates the trial court to instruct the jury on the meaning of and differences between life with parole and life without parole and the defendants’ parole eligibility under these two alternatives. Turner v. State, 268 Ga. 213 6 486 SE2d 839 1997.

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