Criminal Law

• Publication year: 2020

Criminal Law

John A. Regan

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Criminal Law

by John A. Regan^*

I. Introduction

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 of June 1, 2018 up until May 31, 2019, as well as legislation adopted by the Georgia General Assembly during the 2019 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 to how these decisions will affect their practices.

II. United States Supreme Court Decisions

Although the Supreme Court has delivered multiple decisions during the term, two decisions are covered in this Article. The first, Carpenter v. United States,² dealt with whether a person's cell-site information was subject to a search warrant. In Bucklew v. Precythe,³ the Court again considered the death penalty and the Eighth Amendment.

In Carpenter, the issue was whether the government was required to get a search warrant requiring probable cause rather than a court order under the Stored Communications Act⁴ to obtain the cell phone records they were after.⁵ Writing for the majority, Chief Justice Roberts overturned the lower court's ruling that "[a] person does not surrender all Fourth Amendment protection by venturing into the public sphere. To the contrary, 'what [one] seeks to preserve as private, even in an

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area accessible to the public, may be constitutionally protected.'"⁶ He further went on to say that

[a]llowing government access to cell-site records contravenes that expectation. Although such records are generated for commercial purposes, that distinction does not negate Carpenter's anticipation of privacy in his physical location . . . . [T]racking is remarkably easy, cheap, and efficient compared to traditional investigative tools. With just the click of a button, the Government can access each carrier's deep repository of historical location information at practically no expense.⁷

As such, the government's actions were determined to be a violation of the Fourth Amendment and set the precedent that getting cell-site records required a search warrant requiring probable cause, not merely executing a court order showing no probable cause, and the conviction of Carpenter was overturned on a 5-4 decision, with Roberts siding with the "liberal" wing of the Court: Justices Ginsburg, Breyer, Sotomayor, and Kagan.⁸

In Bucklew, the defendant was convicted of a brutal murder, kidnapping, and rape of his ex-girlfriend and was sentenced to death in Missouri.⁹ Two weeks before his scheduled execution, he raised an argument that due to his unique medical condition, the way Missouri executed prisoners, the same way Georgia does, using the drug Pentobarbital, would produce excruciating pain and, as such, violate the Eighth Amendment. The defendant offered an alternative for his execution, the use of "lethal gas" using nitrogen, but this method has never been used by any state to carry out an execution.¹⁰ In delivering the opinion of the Court, Justice Gorsuch disagreed with Bucklew. He stated that the Eighth Amendment does not guarantee a prisoner a painless death and noted that this was a right most victims of capital crimes were denied.¹¹ Rather, "what unites the punishments the Eighth Amendment was understood to forbid, and distinguishes them from those it was understood to allow, is that the former were long disused (unusual) forms of punishment that intensified the sentence of death

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with a (cruel) 'superadd[ition]' of 'terror, pain, or disgrace.'"¹² Justice Gorsuch also went on to state that

the surviving victims of Mr. Bucklew's crimes, and others like them deserve better. Even the principal dissent acknowledges that 'the long delays that now typically occur between the time an offender is sentenced to death and his execution' are 'excessive.' The answer is not, as the dissent incongruously suggests, to reward those who interpose delay with a decree ending capital punishment by judicial fiat.¹³

This decision impacts Georgia because, as previously stated, the method of execution used in Missouri is the same used by our Department of Corrections. As such, the decision in Bucklew will have an impact on death sentences imposed in Georgia.

III. Georgia Supreme Court Decisions

To convict a person of statutory rape in Georgia, there must be some evidence that corroborates the victim's testimony that the defendant committed the crime alleged.¹⁴ In Atkins v. State,¹⁵ the Georgia Supreme Court ruled that a complainant's prior consistent statement could not provide the corroborating evidence required to support the conviction, overturning several opinions that had been delivered by the Georgia Court of Appeals.¹⁶ In delivering the opinion of the court, Justice Melton stated,

The value of a prior consistent statement is that it does not differ from a subsequent statement. The consistency of a prior statement of the statutory rape victim makes a subsequent statement that contains the same details more believable. on the other hand, corroborating evidence earns its value because it is independent from the victim's statement. It is evidence from an independent source that supports the conclusion that the defendant committed the statutory rape of the victim. For this fundamental reason, a prior statement by a victim is not, by definition or otherwise, corroborating evidence that the statutory rape occurred.¹⁷

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Justice Melton's ruling also cited to Georgia's new evidence code, adopted in 2013, in that a witness cannot corroborate his or her own statement.¹⁸

In deciding Willis v. State,¹⁹ the Georgia Supreme Court took up the argument about whether or not a defendant was presumptively harmed by a trial judge's erroneous failure to excuse a prospective juror for cause simply because the defendant subsequently elected to remove that juror through the use of a peremptory strike. The decision, authored by Justice Benham, was that the defendant was not overruling several cases,²⁰ including Fortson v. State²¹ and Harris v. State.²² In delivering the opinion of the court, Justice Benham based his decision on the United States Supreme Court's ruling in United States v. Martinez-Salazar²³ and the dissent in Fortson v. State. Citing the dissent in Fortson, Justice Benham stated,

"[T]he mere exhaustion or waste of peremptory strikes should not dictate that a given action regarding a disqualified juror is either invariably harmless or necessarily harmful. Instead, the focus under current Georgia law should be on whether any unqualified juror was seated as the ultimate result of errors with respect to jurors challenged for cause."²⁴

In finally overruling Fortson, the Georgia Supreme Court ruled that

a defendant is not presumptively harmed by a trial court's erroneous failure to excuse a prospective juror for cause simply because the defendant subsequently elected to remove that juror through the use of a peremptory strike. Instead, such a defendant must show on appeal that one of the challenged jurors who served on his or her twelve-person jury was unqualified.²⁵

The Georgia Supreme Court also addressed the issue of newly discovered evidence in a defendant's motion for new trial in Jackson v.

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State.²⁶ In denying the defendant's claim for a new trial based on new evidence, Justice Peterson ruled, citing to the factors established under Timberlake v. State,²⁷ that the trial court did not abuse its discretion in denying a motion for new trial.²⁸ In Jackson, the appellant brought forward a new witness named McGlotha who alleged to have been present at a murder and presented testimony that appellant was not present at the murder.²⁹ The supreme court, in upholding the lower court, determined that

[i]mplicit in the trial court's evaluation of the diligence used to procure McGlotha's testimony was a finding that one of two things was true: either (1) McGlotha actually was present near the scene of the crime on the night in question, in which case Appellant could have secured his presence for trial had he exercised proper diligence; or (2) McGlotha was not present at the scene as he claimed and thus his testimony was not credible. The finding that the defense would have discovered McGlotha was a witness in time for trial had he actually been present at the scene is not an unreasonable one.³⁰

Perhaps one of the most impactful decisions the supreme court delivered during this past year was the decision in Elliott v. State,³¹ dealing with a defendant's refusal to submit to a breath test in a driving under the influence case. The question before the court was whether that violated the right against self-incrimination. The court had previously held in Olevik v. State³² that someone suspected of driving under the influence could not be forced into submitting to a chemical breath test under Georgia's Constitution.³³ The question in Elliott

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became whether or not the court would expand on Olevik and include a person's right to not have the refusal of said test held against them. The facts that gave rise to Elliott involved a woman stopped in Clarke County after the officer observed several traffic violations. Elliott admitted to having consumed alcohol earlier in the day and performed a standardized field sobriety test that showed several signs of impairment.³⁴ She was arrested and read the statutorily mandated implied consent notice.³⁵ She refused the testing, was taken to jail, and at trial filed a motion to suppress the refusal under Georgia's Constitution and Georgia Code.³⁶ Justice Peterson's decision expanded the holding in Olevik and held that the Georgia Constitution, not the United States Constitution, protects citizens from having a refusal to submit to chemical testing held against them in a court of law.³⁷ The court reasoned,

This Court

...