Criminal Law - Frank C. Mills, Iii

• Jurisdiction: United States,Federal,Georgia
• Publication year: 1994
• Citation: Vol. 46 No. 1

Criminal Lawby Frank C. Mills, III^*

I. Introduction

This year's legislatively enacted criminal discovery law¹ will be the most influential change in criminal law in many years. Only slightly less significant is the Georgia constitutional enactment of a true life-without-parole sentence.² Both changes will vastly increase the cost of the criminal justice system to the taxpayer. The latter will probably increase the cost of crime to the criminal. These legislative events dwarf any changes by the courts.

Nevertheless, there are many cases of substantial note in the survey period for this year.³ The procedure and proper charge to the jury for an abandonment trial was changed.⁴ Apparently one may "escape" from civil or criminal contempt custody without incurring criminal sanction.⁵ There appears to be no defense of "abandonment" for a charge of "criminal attempt" to commit a crime.⁶ Lawyers should probably avoid motions to adopt other attorneys' motions⁷ and requests to charge by reference only to the Pattern Jury Instructions.⁸ Mass arraignments are a mess,⁹ and the court of appeals abolished the "plea reserving an appeal."¹⁰

II. Substantive Crimes and Related Issues

A. Constitutional Challenges

In what may be one of the more significant constitutional challenges in several years, the supreme court upheld Georgia's Life-Without-Parole statute.¹¹ In Freeman v. State,¹² a death penalty case on interim review,¹³ both the state and defense challenged the constitutionality of Georgia's new Life-Without-Parole statute.¹⁴ Freeman was charged with a murder which occurred before May 1, 1993, the effective date of the Life-Without-Parol statute.¹⁵

The Georgia Supreme Court rejected the claim by the defense that the statute violates the Equal Protection Clause of the Fourteenth Amendment because it "places discretion to withhold the presentation of a life-without-parole sentence in cases of crimes committed before May 1, 1993, in the hands of the prosecutor."¹⁶ In short, the court held that "prosecutorial discretion in this situation is no different from prosecutorial discretion in any other .... [S]ince prosecutorial discretion comes into play under every criminal statute, it is not, of itself, grounds for striking a given statute down as unconstitutional."¹⁷

More significantly, the court also denied the challenge by the prosecution that the Life-Without-Parole statute violates Separation of Powers by impinging on certain Georgia constitutional powers and duties¹⁸ of the Georgia Pardon and Parole Board.¹⁹ In a cursory opinion which surprised many,²⁰ the court made short work of the argument by merely holding that "the power to create crimes and to prescribe punishment therefore is legislative."²¹ There is no restriction on the power of the Pardon and Parole Board because the "statute providing for a sentence of life without parole, like the passage of legislation establishing the death penalty . . . renders the defendant ineligible for parole in the first instance."²²

This may or may not be the final word on the subject.²³ Regardless, the opinion takes on added significance as "due process requires that the sentencing jury be informed that the defendant is parole ineligible

. . ."²⁴ where the jury is weighing a decision between death and life without parole.

The statute prohibiting inducement of a parent or parents to part with their children²⁵ withstood a vagueness challenge under the Due Process Clauses of State and Federal Constitutions in Douglas v. State.²⁶ The term "inducement" is statutorily defined.²⁷ Overall, the language conveyed a "sufficiently definite warning as to the proscribed conduct when measured by common understanding . . . and provide [d] explicit standards to those who enforce the law in order to prevent arbitrary enforcement."²⁸ In this instance, the meaning was "sufficiently precise for a person of ordinary intelligence to understand that offering an automobile to a parent in exchange for physical custody or control of a child is proscribed."²⁹

Georgia's drug forfeiture law,³⁰ rewritten in 1991,³¹ specifically provides that drug forfeiture proceedings are to be held before a judge without a jury.³² Appellant, in Swails v. State,³³ nevertheless demanded a jury trial in a forfeiture action. He pursued an interlocutory appeal when the trial court denied his constitutional challenge to the provisions of the statute mandating a bench trial.³⁴ The court held that Georgia's constitutional provisions regarding the right to a trial by jury³⁵ are not as broad as those of the United States Constitution. The

Georgia Constitution protects only the right to a trial by jury as it existed when the first Georgia Constitution was adopted in 1798.³⁶ The court noted that there were no drug forfeiture proceedings in 1798. Therefore, there is no state constitutional right to a jury trial for this "new remedy."³⁷ This was a split decision with Justice Hunstein writing a strong dissent joined by Justices Sears-Collins and Benham.³⁸

B. Offenses Defined

Homicide. Coker v. State³⁹ was a case with strange facts. The defendant was convicted in a bench trial of voluntary manslaughter. He had been involved in a gunfight over gambling winnings. During the shootout, a stray bullet from someone other than defendant killed an innocent unintended victim (that is, someone who personally had done nothing to provoke the attack).⁴⁰ Thus, defendant was not the trigger man, and the victim was not the provoker. There was a whole lot of shooting going on, and a whole lot of imputing going on. (That is, the intent of the slayer was imputed to the defendant party to the crime, and the provocation of the intended victim was imputed to the actual victim with the transfer of defendant's vicarious intent to kill from the intended victim to the actual victim.) The court held that "[w]here one shoots at another, intending to kill him, under such circumstances that the killing, if accomplished, would be voluntary manslaughter, but the shot misses him and accidentally kills an innocent third person, the homicide will be voluntary manslaughter."⁴¹ Therefore, the conviction withstood appeal on the general grounds.

Crimes Against Persons. There are several offenses in our criminal code which proscribe various types of unintentional homicides, or at least homicides where an actual intent to kill is not an essential element. All are predicated upon some other violation and contain differing language specifically as it pertains to the relationship between the violation and the cause of death.⁴² This makes it difficult to ascertain whether case law dealing with the issue of causation in one violation is applicable to another.

Having said all that, there were a number of cases dealing loosely with the issue of "cause," or "proximate cause," or maybe even the issue of "nexus." It was not error in Mote v. State,⁴³ a homicide by vehicle case, for the trial judge to fail to give a requested charge on "proximate cause."⁴⁴ The judge adequately covered the issue through the language defining vehicular homicide and also charged the jury that "causation was a material element. . . which the State was required to prove .... For this reason, and because the requested charge contained some misleading language, it was not error to fail to give the charge."⁴⁵ The court further declined to require the "proximate cause" charge approved in Johnson v. State⁴⁶ to be given in every vehicular homicide case.⁴⁷ Judge Beasley, in a special concurrence, would have required such a charge if a proper request had been made.⁴⁸

In Lefler v. State,⁴⁹ a first degree vehicular homicide case, the court found it was an error for the trial court to fail to charge on the lesser offense of vehicular homicide in the second degree predicated on a traffic signal violation and speeding.⁵⁰ In so holding, the court noted that the evidence did not demand a finding by the jury that defendant's "driving under the influence and/or reckless driving were the proximate cause of the victim's death . . . ."⁵¹ Therefore the first degree vehicular homicide conviction was reversed.⁵²

The language of the felony murder statute⁵³ that the death be caused "in the commission of a felony" does not mean that the victim must die during the commission of the underlying felony. The court in Dunbar v. State⁵⁴ upheld a felony murder conviction wherein the victim died eighteen days after, but as a result of, gunshot injuries caused by the defendant.⁵⁵

Practicers of "S/M," beware! Consent on the part of the victim, in Ogletree v. State,⁵⁶ made no difference for a conviction of the offense of battery.⁵⁷ "It is the act and intent and results of the defendant's act which constitute the crimes as charged; the attitude of the victim is not called into issue by these elements."⁵⁸

Consent can be a defense to kidnapping because it negates the element of "against one's will."⁵⁹ However, in Williams v. State,⁶⁰ the victim apparently only consented to go "to find a friend." "The victim did not knowingly and willingly consent to go ... to the remote area of woods where the co-defendant and appellant attacked and abandoned him."⁶¹ Therefore, the kidnapping conviction was upheld.⁶²

The defendant in Strickland v. State⁶³ was convicted of cruelty to children for depriving his illegitimate child of necessary sustenance.⁶⁴

Defendant urged that he had no authority over and no duty toward the child because the child was illegitimate. He also tried to pass it off on his wife, who was not the child's mother, by contending she was in charge of the cooking. The jury was not impressed by such a sexist defense, nor apparently was Judge Smith. He noted "[i]t is the joint and several duty of each parent of a child born out of wedlock to provide for the maintenance, protection, and education of the child . . . [i]t is clear . . . that the putative father is also a parent."⁶⁵ In this case, the defendant father also had "immediate charge and...