Criminal Law - Laura D. Hogue and Franklin J. Hogue

• Jurisdiction: United States,Federal,Georgia
• Publication year: 2006
• Citation: Vol. 58 No. 1

Criminal Lawby Laura D. Hogue^* and Franklin J. Hogue^**

I. Introduction

The tension between prosecuting those charged with violating the laws of this state and defending the rights of those accused of having committed crimes sets the stage for the multitude of opinions from the Georgia Court of Appeals and the Georgia Supreme Court in the field of criminal law. As always, we strive to present cases that will assist attorneys in their practice, either by surveying cases that present careful reiteration of age-old principles or by surveying cases that alter old rules or establish new ones. We limit our Article to cases that affect the practice of criminal law but omit criminal law cases that deal with general evidentiary issues and death penalty issues because those specific issues are addressed in other survey articles in this book.

II. Pretrial Issues

A. Competency

The predicate to any criminal prosecution is a determination that the defendant is competent to stand trial. This reporting period, the Georgia Supreme Court reviewed two cases and made important changes to the review procedures in a competency determination.

First, in Sims v. State,¹ the Georgia Supreme Court abolished the "any evidence" standard of review for competency determinations and held instead that the correct standard of review for such verdicts was the preponderance of the evidence standard.² In Sims the defendant asserted that he was mentally retarded and, pursuant to official Code of Georgia Annotated ("O.C.G.A.") section 17-7-130,³ filed a plea of mental incompetency to stand trial for the offense of aggravated sodomy.⁴ After a special jury found him to be competent, Sims, along with his codefendant, was tried for the indicted offense. Sims was found guilty but mentally retarded.⁵ He appealed and the court of appeals upheld the verdict, holding that there was "some evidence" to support the special jury's verdict that Sims was competent.⁶ on review, the Georgia Supreme Court noted that a competency hearing is in the nature of a civil proceeding.⁷ As a result, the defendant bears the burden of persuading the jury by a preponderance of the evidence that he is not competent to stand trial, and like any civil trial, the verdict must be affirmed if there was "'any evidence'" to support it.⁸ The defendant's attorneys acknowledged the existing standard of review but sought to replace it with a less deferential standard of review, arguing that the "significantly deferential civil standard of review is inadequate to protect the constitutional standard implicated in a competency trial because it creates an insurmountable obstacle to meaningful appellate review of competency determinations."⁹

The supreme court agreed.¹⁰ The supreme court noted that because there is a statutory presumption in Georgia that the defendant is competent, there would always be "some" evidence of the defendant's competency, which would render the current civil standard of review meaningless when applied to a competency proceeding.¹¹ Instead, the supreme court held that as a "quasi-criminal" proceeding, the appropriate standard of review should now be "whether after reviewing the evidence in the light most favorable to the State, a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence that he was incompetent to stand trial."¹² Reversing long-standing precedent,¹³ the supreme court then applied the new standard to Sims and reversed the verdict and the court of appeals opinion because the evidence presented had sufficiently shown that Sims was not competent.¹⁴

The issue of competency arose again in Traylor v. State.¹⁵ Traylor was convicted of felony murder and argued at his motion for new trial that he had not been competent to stand trial.¹⁶ The issue was originally presented in the context of ineffective assistance of trial counsel, but Traylor later dropped the ineffectiveness claim and asserted substantive and procedural denials of due process.¹⁷

Traylor argued that although he did not raise the issue of his competency either prior to or during the trial, the trial court, nonetheless, had information that should reasonably have raised a doubt about Traylor's competence, and thus the trial court should have conducted a hearing to determine his competence.¹⁸ The information that Traylor referred to was a colloquy between the trial court and Traylor when he was questioned, outside the presence of the jury, about his decision not to testify.¹⁹ Traylor gave "somewhat inconsistent" responses to questions from the court about whether he agreed with his own decision not to testify.²⁰ Following this exchange, Traylor's attorney told the court that Traylor sometimes had difficulty understanding and enunciating, that he "'has certain disabilities,'" and that he took special education classes, but he was not retarded or "'psychiatrically chal-lenged.'"²¹

The trial court asked for any documentation the attorney had concerning these issues. Traylor's trial attorney told the court that he had educational records containing psychological testing but that counsel's review of the records, as well as his meetings with Traylor, satisfied the attorney that his client was not incompetent. The trial court also reviewed the records and found no reason to dispute counsel's assessment of his client's competence.²² The Georgia Supreme Court agreed that based upon the colloquy with the court, the records, and Traylor's pretrial and trial behavior, the trial court did not violate Traylor's procedural due process rights in failing to conduct a competency hearing.²³

But Traylor also raised a substantive due process claim, arguing that his constitutional rights were violated because he was tried when he was, in fact, incompetent to stand trial. In support of this claim, Traylor called a clinical psychologist and clinical neuropsychiatrist, both of whom testified that Traylor was not competent at the time of trial.²⁴ The trial attorney testified for the State that his observations of Traylor led him to believe that Traylor was competent.²⁵ The trial court denied the motion, finding that Traylor failed to present "'clear and convincing evidence to warrant an evidentiary hearing' on his substantive claim of incompetency."²⁶ The Georgia Supreme Court held that applying this standard of proof was reversible error.²⁷ Traylor had the burden of proving his incompetency by a preponderance of the evidence.²⁸ Because the trial court failed to apply the proper standard of proof, the case was remanded for a determination by the trial court consistent with the appropriate burden of proof.²⁹

B. Interpreters

In Ramos v. Terry,³⁰ Ramos, who was of Mexican descent and did not speak or understand English very well, filed a motion seeking the services of an interpreter for his habeas hearing. No interpreter was appointed by the time the hearing commenced four months later. An unsuccessful scramble to locate the regular interpreter was followed by the discovery of a prison employee who spoke Spanish. The court administered the oath to the prison employee who swore to translate into Spanish everything that was said in English.³¹

In his certificate of probable cause to appeal, Ramos argued that he was denied his right to meaningful access to the court when the court appointed an interpreter with whom he was not able to communicate. The interpreter, he argued, was not of Mexican descent and spoke a different dialect of Spanish than Ramos, which significantly affected their communications.³² The Georgia Supreme Court certified the question and considered whether Ramos had been denied his constitutional rights in the habeas proceeding.³³

The Georgia Supreme Court noted the rules they had adopted establishing a state-wide plan for the use of interpreters in cases involving non-English speaking witnesses and parties.³⁴ The court observed that the rules contemplate the situation that presented itself at Ramos's habeas hearing where a certified or registered interpreter was unavailable.³⁵ When a certified or registered interpreter is unavailable, the court stated that the rules require the court to "'weigh the need for immediacy in conducting a hearing against the potential compromise of due process, or the potential of substantive justice, if interpreting is inadequate.'"³⁶ The supreme court also observed that when the habeas court in Ramos's case proceeded without a certified or registered interpreter, it did not conduct a meaningful inquiry into the interpreter's background in language skills.³⁷ For example, the court did not obtain information about:

whether [the interpreter] was a native of a country where Spanish is spoken, whether she was fluent in English, whether she previously had translated in a court proceeding, whether she had taken and passed the interpreter exams administered by Georgia or another state, whether the Spanish she spoke was compatible with the Spanish

spoken by Ramos, and her professional standing in the interpreter community.³⁸

The court stated that the interpreter's only qualifications were "her ability to speak Spanish and her presence."³⁹ Accordingly, the Georgia Supreme Court held that:

[I]t is an abuse of discretion to appoint someone to serve as interpreter who is neither certified nor registered as an interpreter without ensuring that the person appointed is qualified to serve as an interpreter, without apprising the appointee of the role s/he is to play, without verifying the appointee's understanding of the role, and without having the appointee agree in writing to comply with the interpreters' code of professional responsibility.⁴⁰

Unfortunately for Mr. Ramos, he failed to preserve this issue, and for him, these rights were waived.⁴¹ But for future non-English speaking defendants, the Georgia Supreme Court has made clear through this opinion that courts must strictly comply with the rules it promulgated concerning...