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considering the defendants' equal protection challenge on the basis that the punishment prescribed by the criminal statute involves an interference with a fundamental right. The relevant inquiry in deciding whether strict scrutiny analysis or rational basis analysis applies to determine whether a criminal statute violates equal protection rights is not whether the punishment the criminal statute prescribes interferes with a fundamental right, but whether the behavior proscribed or regulated by the statute itself involves a fundamental right,” citing Barnett v. State, 270 Ga. 472, 472 (510 S.E.2d 527) (1999) and Gray v. Lucas, 677 F.2d 1086, 1104(V) (5 th Cir., 1982) (“holding that a defendant's equal protection challenge to Mississippi's death penalty statute was properly assessed under a rational basis analysis,” based on Gregg v. Georgia, 428 U.S. 153 (96 S.Ct. 2909, 49 L.Ed.2d 859) (1976)). 3. Statute is supported by rational basis. “The United States Supreme Court has recognized that ‘the life of a police officer is a dangerous one,’ Roberts v. Louisiana, 431 U.S. 633, 636 n. 3 (97 S.Ct. 1993, 52 L.Ed.2d 637) (1977), and that society has ‘a special interest in affording protection to these public servants who regularly risk their lives in order to guard the safety of other persons and property.’ Id. at 636 (footnote omitted). Undercover officers operate at an even-further-heightened risk to their safety. … The only surviving witness to the murder of a plain-clothes or undercover officer could well be the perpetrator himself. In such a case, the murdered officer would not be available to testify that he identified himself as an officer to the defendant, who would be unlikely to admit that he knew that he was killing an officer. Because the (b)(8) circumstance does not require scienter, however, a defendant may face a possible death sentence if he kills a peace officer regardless of whether there is anyone to testify that the officer identified himself to the defendant before the killing. The awareness of that possibility will serve to deter at least some prospective offenders. See Cheeley v. Henderson, 261 Ga. 498, 503 (1991) (‘Everyone is presumed to know the law....’). The deterrence of crimes by prospective offenders is a legitimate societal purpose served by the death penalty. See Gregg, 428 U.S. at 183-187(III)(C). Thus, providing the death penalty as a sentencing option for the murder of a peace officer serves two legitimate societal purposes. It deters the crime of murder of peace officers, which, in turn, results in the protection of those officers.” Hunstein and Benham dissent, would find no rational state interest is served by authorizing the death penalty for one who unknowingly killed a police officer, while granting immunity from prosecution to the killer of any other intruder. Fair v. State, 284 Ga. 165, 664 S.E.2d 227 (July 14, 2008). In capital murder prosecution based upon statutory aggravated factor that victim was a police officer engaged in the performance of his duties, State was not required to prove beyond a reasonable doubt that the defendants knew that the victim held that status. Victim here was shot and killed while working with the local drug task force to forcibly enter defendant’s residence with a no-knock warrant to seize drugs. 1. Guilt/innocence phase: defendant’s felony murder charges were based on “aggravated assault” as the underlying felony, not “aggravated assault on a police officer, which would require proof of knowledge that the victim was an officer.” Fact that victim was identified in the indictment as a sheriff’s deputy does not make that fact an essential element. 2. The statutory aggravating circumstance does not, by its plain language, require a showing of knowledge on the part of the defendant that the victim was a police officer. “The code section which describes that aggravating circumstance reads as follows: ‘The offense of murder was committed against any peace officer, correction employee, or firefighter while engaged in the performance of his official duties.’ OCGA § 17-10-30(b)(8). That code section is silent regarding the defendant's knowledge of the officer's status.” Notes that other aggravating factors, and other offenses against police, specifically include the word “knowing(ly).” Hunstein, also writing for Sears, dissents on this point: “Clearly, a defendant who knowingly murders a peace officer or other public servant designated in the (b)(8) statutory aggravating circumstance is more culpable than one who does not know the status of his victim. Without such knowledge, there is nothing to distinguish the defendant who murders a victim who by happenstance was such a public servant from the defendant who murders any other victim, and thus nothing to specifically justify imposition of the ultimate punishment. … This notion is further supported by the fact that the other ten statutory aggravating circumstances set forth in OCGA § 17-10-30(b) all appear to require an element in addition to murder of which the defendant, either expressly or impliedly, must have had knowledge.” 10. AGGRAVATING CIRCUMSTANCE (B)(1): PRIOR CAPITAL OFFENSE Loyd v. State, 288 Ga. 481, 705 S.E.2d 616 (January 10, 2011). At bench sentencing trial following guilty plea to capital murder, trial court properly found existence of aggravating circumstances (b)(1), commission of a prior capital felony, to wit: rape. “‘The § (b)(1) statutory aggravating circumstance may be established by proof of out-of-state convictions that ... clearly are comparable to Georgia capital felony offenses. [Cit.]’ Moon v. State, 258 Ga. 748, 752(3) (375 S.E.2d 442) (1988). A defendant's previous rape conviction may be considered by the trier of fact to establish the § (b)(1) statutory aggravating circumstance ‘since, in this context, rape is a capital felony. [Cits.]’ Hicks v. State, 256 Ga. 715, 727(19)(b) (352 S.E.2d 762) (1987). See Crawford v. State, 254 Ga. 435, 441(5) (330 S.E.2d 567) (1985) (‘[t]his court has construed the term “capital felony” as used in OCGA § 17-10-30 “in a generic sense to include those felonies which were capital crimes in Georgia at the time this section of our death penalty statute was enacted” [Cit.]’).” Fact that the Illinois statute