Criminal Law and Criminal Procedure - John O. Cole and Bonnie K. Cole

• Publication year: 2003

Criminal Law and Criminal Procedureby John O. Cole*and

Bonnie K. Cole**

In reading over 900 cases in criminal law and criminal procedure during the survey period, the fact that courts find the time to carefully analyze the allegations of error in each case is striking. The difference in the quality of the courts' work is especially striking when compared to the courts of twenty years ago.

Several themes emerge after reading these cases. The first theme is the number of specious arguments raised on appeal.¹ This is due, in large part, to the Georgia Supreme Court's opinion in Huguley v. State² in which the court disapproved Anders motions³ and forced attorneys to raise arguments on appeal no matter how specious.⁴ The second theme is the number of cases courts disposed of without deciding the merits because the claims were waived by failure to raise them at the trial level.⁵ Waiver of claims is tied to ineffective assistance of counsel claims, which are given all too short a shrift by appellate courts. The third theme is a determination of harmless error, which leaves the convicted appellant without a remedy even in cases of clear error in the trial process.⁶

The supreme court reviewed waiver, ineffective assistance, and harmless error claims in Braithwaite v. State.⁷ Defendant was convicted by a jury of "three counts of malice murder, three counts of felony murder, three counts of aggravated assault, and three counts of illegal firearm possession."⁸ The prosecutor began his closing argument as follows:

Two 18-year-old kids, sleeping in their house, never done anything wrong, not bothering anybody, engaged to be married, recent graduates from high school, both working, promising careers, maybe college.

What must it have been like to be in that bedroom, minding your own business when five men come in there, order you get down face first? Do you scream? Well, they couldn't do that because they'd stuffed socks in their mouth. Do you fight back? These men have guns.

What must it be like laying there next to the man you love, your face covered up so you can't see but you can hear everything? What must it be like when that first shot was fired into Eddie Fleming's [sic] back and she's laying there right next to him? And he can still talk. He can still move his head and she has to sit there and listen. And then they wait.

And what must it be like while the men are deciding who the next shot is going to be fired from? She's laying there waiting. The blood is pouring out of Eddie's back, who's right next to her. The men decide. A second shot is fired—she's inches away from it—into the head of Eddie McMillian.

What must it have been like for Eddie McMillian as he lay paralyzed? And then what was it like when Nekeba Turner as she lay there waiting for her turn to die?

. . .

What was it like for Chauncey Fleming as he lay there all tied up listening to his friends being killed knowing his turn is coming? And one last piece of worthless metal takes Chauncey's life. I mean the last images anybody has of him is laying there tied up at the ankles and the arms and around the head.

And what must it be like to be Eddie McMillian's mother and find those bodies?⁹

Defendant's attorney did not object to this portion of the closing argument, which clearly violates the proscription against a "golden rule" argument—an argument that asks the jurors to place themselves in the victim's shoes. Because no objection was made and because the issue could not be raised on appeal, appellant was forced to rely on an ineffective assistance claim to make his point.¹⁰ Every defense lawyer knows an ineffective assistance claim is easy to allege, but it is nearly impossible to prove in our current legal climate.

The majority rejected appellant's ineffective assistance of counsel argument.¹¹ Appellant's trial counsel recognized the golden rule violation but chose to ignore the violation and hoped that the jury would ignore it also.¹² The majority found that defense counsel s choice was a reasonable strategy and refused to second guess the defense counsel's decision.¹³ In addition, the majority held that the error in allowing this golden rule violation was harmless because the evidence of guilt was overwhelming.¹⁴

Justice Hunstein, dissenting with Justices Benham and Thompson, objected strongly to the majority's all-too-typical brushing aside of an ineffective assistance claim.¹⁵ As Justice Hunstein saw it:

The argument quoted above reveals that the prosecutor repeatedly and deliberately encouraged the jurors to place themselves in the murder victims place and imagine for themselves what it must have been like as the crimes occurred, as the victims lay there helpless while shots were fired and friends and loved ones were murdered. The prosecutor even called upon the jurors to imagine themselves in the place of the mother of the murder victim who discovered the bodies. This language was not merely "vivid imagery of what a victim experienced" during a crime, as the concurrence would characterize it, but rather constituted an impermissible golden rule argument that "invited [jurors] to place themselves in the victim's place in regard to the crime itself." Under these circumstances there can be no question that the prosecutor s use of a golden rule argument was error.

. . .

I do not agree with the majority that error by trial counsel is unreviewable merely because the error was intentional. A deliberate decision by trial counsel can constitute deficient performance just as easily as an inadvertent lapse. Invoking the words "tactics" and

"strategy" does not automatically immunize trial counsel against a claim that a tactical decision or strategic maneuver was an unreasonable one no competent attorney would have made under the same circumstances. "Tactics" and "strategy" provide no talismanic protection against an ineffective assistance of counsel claim. Nor can invoking the phrases "hindsight" and "second-guessing" justify an appellate court's failure to perform its function as a reviewing court to determine whether the "tactical judgment of[trial counsel] was outside the wide range of reasonably effective assistance."

Applying the appropriate analysis to this case, trial counsel's decision to remain silent in the face of the prosecutor's prolonged and egregious golden rule argument was a decision no reasonable defense counsel would have made under the same circumstances ....

There was no reasonable tactical advantage to remaining silent in the face of a golden rule argument that inaccurately informed the jury that it was fair and proper for them to review the evidence from the perspective of the crime victims and their families. There was no reasonable tactical advantage to be gained by abetting the State's deliberate strategy to subvert the jury's duty to render a fair and impartial verdict based upon an objective application of the law to the facts. No reasonable attorney hearing this prolonged and egregious violation of the rule against golden rule arguments would remain silent because no reasonable attorney under the same circumstances would believe that a jury would "ignore" this persuasive but improper argument. Certainly no reasonable attorney could possibly believe any injury to his client would result from "drawing attention" to a misleading and damagingly erroneous standard of evidentiary review.¹⁶

Unlike the majority, Justice Hunstein did not find the evidence of guilt overwhelming.¹⁷ The evidence against appellant was based on three witnesses. Witnesses Davis and Ward were involved in the crime and testified in exchange for reduced sentences. The other witness was Davis's lover and appellant's adulterous wife.¹⁸ Because there was no other evidence of appellant's guilt, Justice Hunstein thought the evidence, while sufficient to support a conviction, was far from over-whelming.¹⁹ As the Justice stated:

As the majority's holding in this case amply demonstrates, "overwhelming evidence" no longer depends upon the amount and quality of evidence of guilt adduced at trial. Instead, "overwhelming evidence"

has become the catch phrase that excuses all error. No matter how excessive the argument or how impassioned the prosecutor s plea, all is forgiven because "overwhelming evidence" was adduced. Despite the perversion this makes of our Court s rulings, the continued abuse it encourages among prosecutors, and the hypocrisy it foments between words and deeds, the bottom line is that when the evidence adduced at trial meets the [minimum sufficiency] standard, this Court will not reverse a criminal conviction over a prosecutor's use of any golden rule argument, no matter how extensive or damaging that argument is.

. . .

It is well established in Georgia that use of a golden rule argument is strictly prohibited. Why, then, do prosecutors continue repeatedly to make these forbidden arguments? The answer is simple: this Court does not hold them accountable for their violation of our rulings. We gum the words of prohibition but there are no teeth to nip prosecutors into obedience. I cannot condone this Court's abandonment of its obligation "to ensure that no infringement of the accused s fair trial rights has occurred" through the use of a prohibited golden rule argument . . . in favor of a rubber stamp approach to the State s improper behavior. Nor can I condone the continuing violations of prosecutorial duty, propriety and restraint in regard to the prohibited use of golden rule arguments.²⁰

Considering Justice Hunstein's points, the court should revise its cavalier attitude toward both ineffective assistance claims and the harmless error doctrine.

The case is also notable for Justice Sears s excellent analysis of what constitutes a golden rule argument and why such arguments are prohibited.²¹

I. PRE-TRIAL MATTERS

A. Medical Records

In King v. State,²² the Gwinnett County Solicitor-General's Office charged King with driving under the influence...