JOHNSON v. THE STATE
S02A0863
Supreme Court of Georgia
NOVEMBER 12, 2002
DECEMBER 13, 2002
275 Ga. 50; 573 SE2d 362
BENHAM, Justice.
(514 SE2d 1) (1999); Whatley v. State, 270 Ga. 296 (509 SE2d 45) (1998); Perkins v. State, 269 Ga. 791 (505 SE2d 16) (1998); Jenkins v. State, 269 Ga. 282 (498 SE2d 502) (1998); DeYoung v. State, 268 Ga. 780 (493 SE2d 157) (1997); Bishop v. State, 268 Ga. 286 (486 SE2d 887) (1997); Jones v. State, 267 Ga. 592 (481 SE2d 821) (1997); Carr v. State, 267 Ga. 547 (480 SE2d 583) (1997); Greene v. State, 266 Ga. 439 (469 SE2d 129) (1996); Crowe v. State, 265 Ga. 582 (458 SE2d 799) (1995); Mobley v. State, 265 Ga. 292 (455 SE2d 61) (1995); Ledford v. State, 264 Ga. 60 (439 SE2d 917) (1994); Ferrell v. State, 261 Ga. 115 (401 SE2d 741) (1991).
DECIDED NOVEMBER 12, 2002 —
RECONSIDERATION DENIED DECEMBER 13, 2002.
Lindsey & Jacobs, Tamara Jacobs, William A. Adams, Jr., for appellant.
BENHAM, Justice.
At age 14, appellant Brandon Johnson was charged as an adult with aggravated sodomy,
1. The State presented evidence that, in late July and early August 2000, the six-year-old victim spent several nights at her aunt‘s home while the victim‘s mother underwent and recovered from surgery. During her visit, the child slept in a full-size bed with her four-year-old cousin, Allen Michael. A week after her visit, the victim told her mother that appellant, the nephew of the victim‘s uncle, had come into the bedroom where she was sleeping with her cousin, stuck his finger in her sex organ and then put his mouth there. She pretended to be asleep, peeking to watch what he was doing, and then kicked him. The victim testified about the events, and her mother and the district attorney‘s investigator trained to interview children each testified the victim told her the same story. The State presented evidence that, a year earlier, a complaint of fondling a four-year-old girl had been lodged against appellant in juvenile court.3
Evidence that appellant‘s finger penetrated the sexual organ of the victim was sufficient for the jury to find beyond a reasonable doubt that appellant committed an act of aggravated sexual battery. “A person commits the offense of aggravated sexual battery when hе intentionally penetrates with a foreign object the sexual organ or anus of another person without the consent of that person.”
2. Citing a trio of decisions from the United States Supreme Court in which the Court found a violation of the Due Process Clause in South Carolina‘s practice of not informing the jury in the sentencing phase of a capital case in which a defendant‘s future dangerousness was an issue that the defendant would not be eligible for parole in the event the jury sentenced the defendant to life imprisonment (Kelly v. South Carolina, 534 U. S. 246 (122 SC 726, 151 LE2d 670) (2002), Shafer v. South Carolina, 532 U. S. 36 (121 SC 1263, 149 LE2d 178) (2001), and Simmons v. South Carolina, 512 U. S. 154 (114 SC 2187, 129 LE2d 133) (1994)), appellant asserts that his right to due process was violated when the trial court declined to permit the jury to be made aware that, if found guilty, appellant was required by law to be imprisoned for a minimum of ten years without any possibility of early release. The underlying principle of the South Carolina cases is the fact that the Due Process Clause does not allow a defendant to be executed on the basis of information, the defendant‘s supposed eligibility for parole, which the defendant had no opportunity to explain or deny to the sentencing jury. Simmons v. South Carolina, supra, 512 U. S. at 161. The case at bar is not a capital case and the jury is not a sentencing jury. The possible punishment a defendant faces is not relevant in the guilt phase of a trial where the question is whether each element of the alleged offense has been proved beyond a reasonable doubt. See Simmons, 512 U. S. at 163. “It is imprоper for the court to give any instruction to the jury concerning possible sentences in a felony case before the jury has determined the question of guilt or innocence. (Cits.)” [Cit.] Bellamy v. State, 272 Ga. 157, 159 (4) (527 SE2d 867) (2000). Accordingly, the trial court did not err when it declined to inform the jury that, should he be found guilty, appellant faced a minimum sentence of ten years’ imprisonment.
3. Appellant takes issue with the trial court‘s refusal to give his requested charge on the credibility of a сhild witness.4 The trial court gave the pattern jury charge on the credibility of witnesses (Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2nd ed.), Part 2E), which instructs the jurors that, when passing on witness credibility, they may consider all the facts and circumstances of a case, including a witness‘s manner of testifying, their intelligence, their interest or lack of interest, their means and opportunity for knowing the facts, the probability or improbability of their testimony. “It is not reversible error to fail to charge in the exact language requested when the charge given adequately covers the correct legal principles.” Parker v. State, 270 Ga. 256, 258 (3) (507 SE2d 744) (1998).
4. Appellant contends trial counsel rendered ineffective assistance of counsel because he was unable to convince the child to admit to illegal conduct in order to enter a guilty plea to a child molestation charge,5 and because he did not ensurе the attendance at trial of the physician who examined the child victim. To prevail on the claim of ineffective assistance, appellant “must show that counsel‘s performance was deficient and that the deficient performance prejudiced him such that a reasonable probability exists that, but for counsel‘s errors, the outcome of the trial would have been different. [Cit.]” Mobley v. State, 271 Ga. 577 (523 SE2d 9) (1999).
(a) After being provided informed legal advice, it is the defendant, not the attorney, who makes the ultimate decision about whether or not to plead guilty. Morrison v. State, 258 Ga. 683 (3) (373 SE2d 506) (1988). At the hearing on the motion for new trial, trial counsel testified that he and appellant discussed at length the risks of going to trial, including the evidence against him, the effect of evidence of the prior similar incident, the differences in the possible punishments, and the mandatory nature of the punishment should he be found guilty at trial. Sеe Fults v. State, 274 Ga. 82 (6) (548 SE2d 315) (2001). Inasmuch as appellant has not established that trial counsel was deficient in his duty to provide informed legal advice, appellant has not proven the first prong of a claim of ineffective assistance of counsel. See Mobley v. State, supra.
(b) Appellant‘s contention concerning the missing witness is based on trial counsel‘s failure to have an out-of-state material witness subpoena issued for the Tennessee pediatrician who conducted the physical examination of the child a week after the crimes purportedly occurred. At the motion
5. Appellant contends his sentence violates the constitutional prohibition against cruel and unusual punishment. He concedes that the mandatory nature of the penalty does not per se render it cruel and unusual (Ortiz v. State, 266 Ga. 752 (2) (470 SE2d 874) (1996)), but that, as applied to him, impоsition of the mandatory penalty constitutes cruel and unusual punishment. At a hearing on the subject, appellant presented the testimony of several detention officers at the youth detention facility where he had been incarcerated for the seven-month period since his arrest. The officers described appellant as a child who was well-behaved and respectful of authority, and one who had achieved the highest level of good behavior obtainable at the facility and had maintained that level for 32 consecutive five-day periods, an achievement not accomplished by any other student. The officers testified that appellant was attending school and they believed he could be rehabilitated with counseling. The professional therapist at the YDC testified that appellant was an “excellent candidate” for treatment and believed the outcome would be “excellent.” She noted that the recidivism rate of juvenile sexual offenders was very low (2-8%) if they received appropriate multi-systemic treatment.
Both the Georgia and the federal constitutions categorically prohibit inflicting cruel and unusual punishments. A punishment is cruel and unusual if it (1) makes no measurable contribution to accepted goals of punishment and hence is nоthing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. [Cits.] . . . [W]hether a . . . punishment is cruel and unusual is not a static concept, but instead changes in recognition of the evolving standards of decency that mark the progress of a maturing society. [Cits.]
(Punctuation omitted.) Fleming v. Zant, 259 Ga. 687, 689 (3) (386 SE2d 339) (1989). Legislative enactments constitute the clearest and most objective evidence of how cоntemporary society views a particular punishment. Id. As a result, the issue of punishment is generally one for the legislative branch, and legislative discretion is deferred to unless the sentence imposed shocks the conscience. Lambeth v. State, 257 Ga. 15 (354 SE2d 144) (1987).
In passing the 1994 “School Safety and Juvenile Justice Reform Act,” which, among other things, provided that juvenile offenders who committed certain violent felonies were to be tried as adults and, upon conviction, be sentenced to the custody of the Department of Corrections, the General Assembly
Judgment affirmed in part and vacated in part, and case remanded with direction. All the Justices concur, except Hunstein, Carley, and Thompsоn, JJ., who concur in part and dissent in part.
SEARS, Presiding Justice, concurring.
My research also leads me to conclude that the applicable mandatory minimum sentencing scheme at issue in this case does not violate the
However, I urge our General Assembly to bear in mind that, when developing Georgia‘s juvenile justice system, we sought to treat children differently from adults becаuse we recognized: (1) that children have not developed the problem-solving skills of adults;7 (2) that children, unlike adults, do not readily foresee the long-term consequences of their actions; and (3) that children are much more amenable to rehabilitation, redemption and reintegration into society than are adults. Criminal sanctions must always be swift and sure, as well as humane and proportional to the gravity of the offense. But in our understandable zeal to tackle the tough social problem of juvenile crime, we must not forget these fundamental distinctions between childhood and adulthood.
CARLEY, Justice, concurring in part and dissenting in part.
I fully concur in Divisions 2, 3, 4, and 5 of the majority opinion. I also agree with the holdings in Division 1 that there was sufficient evidence to support the jury‘s guilty verdicts on the aggravated sexual battery and aggravated sodomy counts, and that the defendant cannot be sentenced for both aggrаvated child molestation and aggravated sodomy based on the same act. However, I do not agree that the latter two convictions simply merge or that the trial court may choose which one to vacate. Where an act of sodomy is committed against a victim under the age of ten, the only punishable offense is that of aggravated sodomy.
The General Assembly recently chose to change the definition of aggravated sodomy so as to include an act which previously constituted aggravated child molestation. Ga. L. 2000, p. 1346, § 1;
It is well settled that “a specific statute will prevail over a general statute, absent any indication of a contrary legislative intent. [Cit.]” Vines v. State, 269 Ga. 438, 440 (499 SE2d 630) (1998). We have applied this principle both to sentencing and to classification оf crimes. Mann v. State, 273 Ga. 366, 368 (1) (541 SE2d 645) (2001); Vines v. State, supra. See also Norwood v. State, 249 Ga. App. 507, 509 (2) (548 SE2d 478) (2001); Chastain v. State, 231 Ga. App. 225, 228 (4) (498 SE2d 792) (1998) (” ‘where a crime is penalized by a special law, the general provisions of the penal code are not applicable.’ [Cits.]“); Stovall v. State, 216 Ga. App. 138, 142 (7) (453 SE2d 110) (1995) (the more specific sentencing statute prevailed despite providing a greater punishment). The facts proved in this case clearly show that Johnson committed an act proscribed by the recently amended and more specific code section, the violation of which may carry a greater punishment. Therefore, he was not subject to conviction under the more general aggravated child molestation code section, “there being a specific section covering his offense.” Sharp v. State, 7 Ga. App. 605, 606 (67 SE 699) (1910).
[W]here there is a specific statute covering the offense, and under which the defendant is [subject to a greater punishment], he should be indicted under that specific statute, rather than under thе general section of the . . . Code. . . .
Sharp v. State, supra. The aggravated sodomy statute, insofar as sodomy against a ten-year-old victim is concerned, preempts
The primary rule of statutory construction is to construe statutes so as to effectuate the legislative intent. Mikell v. State, 270 Ga. 467, 468 (510 SE2d 523) (1999). The General Assembly was authorized to make a policy determination that, because committing sodomy against a victim under ten yeаrs old is a more egregious act than the generally defined offense of aggravated child molestation, that act should be redefined as aggravated sodomy, with its potentially more severe punishment, whereas other acts, including sodomy against a child who is between 10 and 16 years of age, should remain within the definition of aggravated child molestation, with its less severe maximum punishment. See Vines v. State, supra at 440. Indeed, the recent specific amendment to
Accordingly, the judgment of the trial court should be affirmed as to aggravated sexual battery and aggravated sodomy, but vacated as to aggravated child molestation. Therefore, I dissent to today‘s judgment to the extent that it authorizes the trial court to decide which conviction should be vacated.
I am authorized to state that Justice Hunstein and Justice Thompson join in this opinion.
DECIDED DECEMBER 13, 2002.
Todd M. Johnson, for appellant.
Kermit N. McManus, District Attorney, Stephen E. Spencer, Andrew B. Margolis, Assistant District Attorneys, for appellee.
Notes
In receiving such evidence, you must exercise caution in weighing the credibility or believability of the child. You should consider her age, whether she is capable of having a clear memory of the facts to which she testified or about which she told others, whether her story is consistent in detail as she told it to others, whether the story has been suggested to hеr by others or through circumstances, and any other matters which you, in your collective experience, believe would bear on the reliability of her statements.
With the omission of the italicized phrase, the charge was given in Wright v. State, 198 Ga. App. 429 (2) (401 SE2d 619) (1991). We know of no case in which the charge has been approved.