Criminal Law
| Publication year | 2021 |
Criminal Law
J. Scott Key
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This Article reviews some of the most important opinions impacting the practice of criminal law delivered by the Supreme Court of the United States and the Georgia Supreme Court covering the period from June 1, 2020, up until May 31, 2021, as well as legislation adopted by the Georgia General Assembly during the 2020 session.1 This Article is designed to be a mere overview to both prosecutors and defense attorneys of decisions and new statutes and serves as a broad guideline on how these decisions will affect the practices.
Although the United States Supreme Court has delivered multiple decisions during the term, two of these decisions are covered in this Article. The first, Torres v. Madrid,2 dealt with the definition of a "seizure" under the Fourth Amendment, and whether an unsuccessful attempt to restrain a person is a seizure.3 In Jones v. Mississippi,4 the Court assessed whether a sentencing court was required to make a factual finding of "permanent incorrigibility" before sentencing a murder defendant under the age of eighteen to life without the possibility of parole.5
In Torres, the issue was whether law enforcement had seized a suspect, as defined by the Fourth Amendment of the United States
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Constitution, when they chased and shot the defendant as he successfully fled from them.6 Writing for the majority, Chief Justice Roberts wrote, "[t]he application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person."7 This case began when New Mexico State Police officers showed up at an apartment complex to arrest a woman "accused of white collar crimes, but also 'suspected of having been involved in drug trafficking, murder, and other violent crimes.'"8
The officers approached the woman, who was experiencing the symptoms of withdrawal from methamphetamine.9 Believing that they were carjackers, she hit the gas to run from them. Two officers fired thirteen rounds into the vehicle, striking her in the back and paralyzing her left arm. She asked a bystander to report the carjacking before stealing another vehicle and driving away. She drove seventy-five miles to a hospital that airlifted her back to Albuquerque. She was arrested the next day and ultimately plead "no contest" to aggravated fleeing from a law enforcement officer, assault on a peace officer, and unlawfully taking a motor vehicle.10
She later filed suit against the officers under 42 U.S.C. § 198311 , claiming that "the officers applied excessive force, making the shooting an unreasonable seizure under the Fourth Amendment."12 The United States District Court for the District of New Mexico granted summary judgment to the officers, and the Court of Appeals for the Tenth Circuit affirmed on the ground that "a suspect's continued flight after being shot by police negates a Fourth Amendment excessive-force claim."13 The court of appeals reasoned, relying on Brooks v. Gaenzle14 , that to be a seizure "such physical touch (or force) must terminate the suspect's movement."15
The Supreme Court reversed the court of appeals and held that "an officer's application of physical force to the body of a person 'for the purpose of arresting him' was itself an arrest—not an attempted arrest—
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even if the person did not yield.'"16 The Court's holding is limited, as Chief Justice Roberts explained:
We hold that the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued. Of course, a seizure is just the first step in the analysis. The Fourth Amendment does not forbid all or even most seizures—only unreasonable ones.17
The Court remanded the case to determine the reasonableness of the seizure, the damages, and whether qualified immunity should be applied.18
Justice Gorsuch, in a dissent joined by Justices Thomas and Alito, wrote that "[t]he majority holds that a criminal suspect can be simultaneously seized and roaming at large."19 The dissent took issue with the definition of seizure, reasoning that the majority has conflated an arrest with a battery.20 And it characterized the majority's definition of seizure as "schizophrenic."21
The effect of this definition of seizure is difficult to predict, but it could have an impact on motions to suppress in the criminal context. What will be the ultimate fate of such Fourth Amendment cases as Illinois v. Wardlow?22 In that case, officers had reasonable suspicion to detain a suspect based upon his sudden and unprovoked flight from identifiable police officers on patrol in a high crime area.23 However, in the wake of Torres, the same suspect may be seized or arrested if police had touched him or attempted to touch him before flight, perhaps arising to the level of a tier-three encounter for Miranda v. Arizona,24 or consent to search purposes. Time will tell whether this case represents a narrow expansion of Fourth Amendment law in the civil arena or a sweeping shift in the area of search and seizure in the criminal realm.
The other significant Supreme Court case was Jones v. Mississippi, involving a life sentence to a juvenile offender.25 Specifically, the question
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for the Court was whether it was proper and lawful to sentence an offender to life without parole for a murder committed when he was under the age of eighteen, without first finding that the offender was "permanently incorrigible."26 At issue was the reach of Miller v. Alabama,27 a case holding that a mandatory sentence of life without parole for an offense committed by an offender under the age of eighteen was unconstitutional.28
In Jones, a fifteen-year-old child was living with his grandparents.29 The child and his grandparents had a disagreement when the child was caught with his girlfriend in his room which escalated into a physical altercation. The child ultimately stabbed his grandfather with a knife until it broke. Then he picked up a second knife and continued stabbing. The grandfather was ultimately stabbed eight times, resulting in his death. Rather than call 911, the child attempted to cover up the crime, dragged his body inside, and cleaned up the blood. Ultimately, the child confessed.30
The child was tried as an adult, and the jury rejected a claim of self-defense and manslaughter.31 Under Mississippi law, murder—at the time Jones was decided—carried a mandatory sentence of life without parole, and the child was sentenced accordingly.32 While the child's post-conviction relief litigation was in the pipeline, the Supreme Court decided Miller,33 which was later applied retroactively.34 Ultimately, Jones appeared for re-sentencing.35 At that hearing, "the sentencing judge acknowledged that he had discretion under Miller to impose a sentence less than life without parole. But after considering the factors 'relevant to the child's culpability,' the judge determined that life without parole remained the appropriate sentence for Jones."36
Jones, through counsel, argued that a child could not receive a sentence of life without parole on a homicide charge unless the sentencing court made a separate factual finding that the defendant is
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permanently incorrigible.37 The majority rejected the argument, in an opinion written by Justice Kavanaugh, and held that "[i]n a case involving an individual who was under 18 when he or she committed a homicide, a State's discretionary sentencing system is both constitutionally necessary and constitutionally sufficient."38 The Court reasoned that it is only necessary that a "sentencer consider youth as a mitigating factor."39 Even here, it concluded that a sentencing judge need not make explicit findings regarding youth: "[b]ut if the sentencer has discretion to consider the defendant's youth, the sentencer necessarily will consider the defendant's youth, especially if defense counsel advances an argument based on the defendant's youth."40
In a passionate dissent authored by Justice Sotomayor and joined by Justices Breyer and Kagan, the majority was accused of "gut[ting] Miller v. Alabama . . . and Montgomery v. Louisiana[.]"41 The dissent reasoned that "[e]ven if the juvenile's crime reflects 'unfortunate yet transient immaturity,' . . . he can be sentenced to die in prison."42 The dissent accused the majority of taking a few statements from Miller and Montgomery out of context in its effort to overturn them without appearing to ignore principles of stare decisis.43
The holding in Jones was that it is constitutional to sentence a criminal defendant to life without parole for homicide if the sentencing court exercises discretion in imposing the sentence and either explicitly or implicitly considers the defendant's youth as a mitigating factor.44
The Georgia Supreme Court made a procedural change to how it reviews murder cases on direct appeal. In Davenport v. State,45 the Georgia Supreme Court announced that it would no longer conduct a sua sponte review of the sufficiency of the evidence supporting convictions in appeals of non-death-penalty cases.46 It had historically reviewed evidence in cases on direct appeal for sufficiency of evidence as per
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Jackson v. Virginia,47 regardless of whether sufficiency of evidence was raised on appeal. Going forward, the supreme court announced that it will only consider constitutional sufficiency when the appellant raises it as an issue on appeal.48 Given that the court has only recently departed from an automatic review of cases for sufficiency purposes, there would appear to be little downside to raising sufficiency claims in most, if not all, cases.
In Edvalson v. State,49 the Georgia Supreme Court held that, for a conviction for a violation of the Official Code of Georgia Annotated O.C.G.A. §...
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