DREW v. STATE (2009)

Willie D. Drew was charged with the offense of riot in a penal institution in violation of OCGA § 16-10-56, as well as other related crimes. He filed a general demurrer asserting the unconstitutionality of OCGA § 16-10-56 on equal protection grounds, which the trial court denied. A jury found Drew guilty of riot in a penal institution, felony obstruction of an officer, and misdemeanor obstruction of an officer. Drew appeals from the denial of his motion for new trial, reasserting the constitutional challenge. Finding no error, we affirm.

While being held as an inmate at the Cobb County Adult Detention Center, Drew was in a common area for personal time. Deputy Gurley was nearby assisting a nurse who was dispensing medication to other prisoners when Drew demanded a newspaper. Deputy Gurley told him he would have to wait, whereupon Drew crossed into a restricted area and began shouting and using profanity directed at the deputy. When Drew disregarded Deputy Gurley's orders to move back, the deputy approached and Drew charged him and punched him in the face, head, and chest. The deputy attempted to deflect the punches and ordered Drew to stop resisting, but Drew continued the attack. The deputy attempted to subdue Drew with pepper spray, but the cannister malfunctioned and Drew gained control of it. A second deputy came to Deputy Gurley's assistance and both officers repeatedly ordered Drew to stop resisting. As Drew attempted to use the pepper spray against both deputies, the two were able to tackle and handcuff him.

1. The evidence is sufficient to enable a rational trier of fact to find Drew guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brown v. State, 288 Ga.App. 812, 655 S.E.2d 692 (2007).

2. In evaluating legislation under an equal protection claim, the claimant must first establish that he is similarly situated to members of a class who are treated differently than he. Farley v. State, 272 Ga. 432, 433, 531 S.E.2d 100 (2000); State v. Jackson, 271 Ga. 5, 515 S.E.2d 386 (1999). In furtherance of his claim, Drew submits that OCGA § 16-10-56¹ denies him equal protection under the law because it imposes felony punishment and allows the crime to be committed by a single individual, whereas the offense of riot under OCGA § 16-11-30² is punished as a misdemeanor and is committed by two or more persons acting in concert. “Criminal defendants are ‘similarly situated’ for purposes of equal protection ‘only if they are charged with the same crime or crimes.’ [Cit.]” State v. Jackson, supra at 5, 515 S.E.2d 386. Thus, for equal protection purposes, only those charged with riot in a penal institution are similarly situated to Drew. Because there is no contention that Drew is punished differently from others accused and convicted of the same crime, “there is no unconstitutional disparate treatment of similarly situated persons.” Id.

Since Drew failed to meet his initial burden of showing disparate treatment, “ ‘there is no need to continue with an equal protection analysis,’ “ Rodriquez v. State, 275 Ga. 283, 285, 565 S.E.2d 458 (2002), and his claim must fail.³ Nonetheless, we are compelled to address Drew's unsupported allegation that, as a prisoner, he is a member of a suspect class and therefore the statute must be evaluated under the standard of strict scrutiny. “ ‘When assessing equal protection challenges, a statute is tested under a standard of strict judicial scrutiny if it either operates to the disadvantage of a suspect class or interferes with the exercise of a fundamental right. [Cit.]’ [Cit.] ‘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. [Cit.]’ “ Barnett v. State, 270 Ga. 472, 510 S.E.2d 527 (1999). “Although inmates of correctional facilities are seriously disadvantaged when they are compared to individuals at liberty and although they are the subject of political hostility, they do not constitute a suspect class because their status is the result of precise, individualized application of otherwise neutral laws.” Graham v. Bowen, 648 F.Supp. 298, 301 (S.D.Tex.1986). Thus, we join all other jurisdictions that have considered this claim and hold that a prisoner, by virtue of incarceration alone, is not a member of a suspect class for equal protection analysis.⁴

Judgment affirmed.

THOMPSON, Justice.

All the Justices concur.