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, P 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 *262moment 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 15 of the majority opinion.
*263Decided November 22, 2010. Brian Steel, Elizabeth V. Rogan, for appellant (case no. S10A1034). Jeffrey L. Grube, James S. Stokes, for appellant (case no. S10A1035). Howard Z. Simms, District Attorney, Kimberly S. Schwartz, Garrison A. Wood, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Laura J. Murphree, Assistant Attorney General, for appellee.I am authorized to state that Justice Benham joins in this dissent.
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.