Powell v. State

Stephens Brady, cumstantial evidence. See 182) (1952). Testimony representing showed Bohlen was family money, to other members that the testatrix had no and that she believed this herself. Such a belief would allow Bohlen to exert his influence on the testatrix and substitute his will for hers. Fur- testimony ther, misrepresented family there was that Bohlen and his immediate had including

the actions of certain of the caveators, prominent previous those who had been beneficiaries under wills. properly jury’s issue, too, This for the resolution.

I am authorized to state that Chief Justice Benham and Justice join Hunstein in this dissent. — 4, 1998 Decided December 17,1998.

Reconsideration denied December Jeffrey Melton, Hanson, Sell & Comer, B. John D. Lambert, E. R. appellant. for Spears, appellees. Carter, James E. Ted D.

S98A0755. POWELL v. THE STATE.

Benham, Chief Justice. Anthony charged San Juan Powell was in an indictment with rape aggravated sodomy in connection with sexual conduct involving 17-year-old apartment. him and his wife’s niece in Powell’s appellant The niece testified that had sexual intercourse with her engaged cunnilingus and against in an act of without her consent and performed

her will. Powell testified and admitted he the acts complainant. light testimony, the consent of the of Powell’s jury charge the trial court included in its instructions on the law of sodomy. jury acquitted rape aggravated Powell of the sod- omy charges guilty sodomy, thereby establishing and found him prove beyond that the State did not a reasonable doubt that the act was committed “with force and the will” of the niece. See (a). brings appeal contending OCGA 16-6-2 Powell the statute criminalizing acts of committed adults without force in is an guar- unconstitutional intrusion on the anteed him the Constitution. Powell also contends that jury opportunity the trial court erred when it offered the to con- charge sodomy by sporite sider instructing the unindicted sua jury on the law of keeping principle 1. In with the well-established that this Court question appeal will not decide a constitutional if the can be decided (Bd. Foods, 264 Ga. grounds v. Tom’s TaxAssessors (1994)), the non-constitutional first address we The first issue sufficiency appeal. raised issues (a) performance of or as the § 16-6-2 defines evidence. person organs involving “any of one sex act sexual submission Appellant’s at trial admission another.” or anus of the mouth genitalia niece, as placed of his wife’s the his mouth that he describing appellant’s similarly conduct, testimony the niece’s well as trier of fact a rational to authorize evidence sufficient constitutes appellant beyond sod- committed that reasonable doubt a conclude omy. (1979); 560) (99 Virginia, LE2d SC 61 307 443 U. S. v. Jackson 238) (4) (176 (1970), App. SE2d 21 State, 122 Ga. v. Carter (2) App. grounds State, 173 Ga. 657 v. in Hines on other overruled 786) (1985). (327 SE2d when, with- Appellant trial court erred that the next contends 2. jury appellant, by on request it instructed the State or out sodomy permitted return a verdict the factfinder of law that included

charge. 354) (222 (1976), this 1, 2 SE2d Stonaker, 236 Ga. In State v. clarify what must be the trial courts rules “to set forth Court charged charged may charged need not be and what and what be rule trials.” The second in criminal included crimes the area of lesser [its] [its] dis- and in could, own volition court “of that the trial stated cretion, charge in the indictment included crime of that on a lesser App. Rodriguez 256 State, Ga. Id.; v. and accusation.” 510) (1993). charge on an authorizes a the evidence when SE2d being tried, the defendant in the offense for which included offense jury on the included to instruct the trial court is authorized (408 sponte. SE2d State, v. 200 Ga. sua offense Alford 497) (1991). aggravated Sodomy of in the crime an offense included (350 577) (2) (Stover (1986)), SE2d State, v. charge on the 1 authorized a in Division the evidence summarized Accordingly, the trial court an included offense. of law exercised its discretion when it framework acted within the Stonaker jury offense of on the included and instructed the challenge Lastly, appellant’s address we (a). doing, act mindful that solemn In so we are 16-6-2 presumption of constitution- it a carries with the General legisla- ality that the is established when it that is overturned provision “manifestly infringes upon or violates a constitutional tion (2) [Cit.]” people. . . Miller . 74) (1996). (472 Appellant criminaliz- that the statute contends SE2d performed without ing adults acts intimate sexual guaranteed right privacy infringes upon impermissibly force by Georgia Georgia all citizens Constitution.1 The privacy long history distinguished Georgia. 1905, this Court that expressly recognized Georgia citi- zens have a “liberty privacy” guaranteed by Georgia constitu- provision tional which declares that no person deprived shall liberty except by process England due of law. Pavesich v. New Life (50 68) (1905). Co., Ins. SE The Pavesich decision time any country constituted first court last resort in this rec- (Katz, ognized privacy History Bill (1986); GSU L. Rev. Rights, Gouldman-Taber Pontiac (100 881) Zerbst, 213 (1957)), making Ga. 682 this Court a pio- neer the realm the right privacy. Bodrey Cape, 120 Ga. App. 859, 866 also Cox Broadcasting See Corp. Cohn, (1973), 231 Ga. 60 rev’d 420 U. S. 469 1029, 43 (1975), LE2d noted proudly where privacy “was birthed this court” in Since Pavesich. time, courts developed appellate have a rich jurispru- dence privacy recognizes a fundamental so right, “having value essential in our individual society infringement [its] merits careful (2) (b) (383 scrutiny 555) (1989). courts.” Ambles v. 259 Ga. 406 In Pavesich, the Court found to right the of be “ancient privacy law,” with [,]” “its in foundation the instincts of nature derived from law, “the Roman’s of and conception justice” making natural it immu- table absolute. Id. at 194. Court the liberty The described inter- est derived from right natural law as of “embrac[ing] the man to be in free the of enjoyment the faculties with which he has been by Creator, endowed his subject only to such as are restraints neces- for the sary good.” common Id. at 195. “the to “Liberty” right includes will, live as one as long so that will does not with the rights interfere (id. 196), of another or of public” the and the is individual “entitled liberty to a of as to life, choice his manner of neither an individ- ual nor the public has the his right arbitrarily away to take from him liberty.” Id. at Pavesich Court further recognized that the 1 Privacy rights by protected the U. S. Constitution are not at issue in this case. (106 applicable 186, not to this are discussion Bowers v. 478 U. S. 191-192 SC 140) (1986), Supreme right privacy LE2d where the U. S. Court ruled that the of protected by private the U. S. Constitution did not insulate sexual conduct between con senting proscription homosexual adults from state because S. not the U. Constitution did right a sodomy”!;] “extend fundamental to homosexuals to acts of consensual (458 98) (1995), King v. 265 Ga. 440 SE2d where this faced with a Court was defend States, right privacy. ant’s assertion of the of federal See also Katz v. United 389 U. S. (88 (1967), protection opined 19 LE2d the a where of general person’s right i.e., alone, privacy, right largely to be left was left individ ual States. right “[t]he “right liberty” personal to fit, also withdraw of embraces person may gaze public see when his from presence times as a at such any by public . . rule of law. .” Id. is not demanded “right succinctly, ringingly ‘to endorsed the let the Court be Stated long interfering [one] not with the so as alone’ public.” Id.2 individuals or Georgia’s ensuing years since was decided and In the Pavesich Georgia appellate right privacy recognized, courts have describing right privacy, protection expounded (Athens scrutiny unnecessary public Observer individual from (263 128) (1980)); right indi Anderson, 245 Ga. SE2d private publicizing of affairs free from . . . the one’s vidual “to be (Gouldman-Taber public legitimate concern” which 683); supra, Zerbst, “the to define one’s cir 213 Ga. at Pontiac (Macon-Bibb Reynolds, intimacy” County &c. cle Water Auth. (299 594) (1983)); App. 348, 350 SE2d and the “to be free of Ga. [with] public matters interference about which unwarranted the any necessarily protected public concerned, from wrongful rage out intrusion into an individual’s life would ordinary person Co. Bus Power ... sensibilities.” bin, determined that stand a This Court has enough privacy strong with citizen’s variety attempts in the the State intrude citizen’s 715) (1982), Prevatte, 248 the Court life. In Zant v. Ga. 832 duty protect prisoner’s ruled that the State’s assertion of a preserving human life did not amount to health and its interest pris compelling a sane state interest which could override state for the effects of oner’s refusal to eat or submit medical treatment In State v. that a citizen’s constitutional 259 Ga. 579 McAfee, starvation. (1989), again ruled the Court privacy under which he refused medical treatment was might preserva outweighed any not tion interest the have State Enterprises, of life. Harris v. Cox 448) (1986), govern Georgia’s strong public policy open favor required in favor the individual’s ment was to bend legitimate had no concern were when matters about which right appellate jurisprudence privacy at issue. It is clear from the of “right guar Pavesich alone” which emanates from that be let Georgia anteed Constitution is far more extensive that protects right protected by privacy Constitution, U. S. history “deeply matters rooted in this Nation’s tradi- those 2 houses, persons, papers, persons right in their The Court saw be secure “implied recognition against an exis effects searches and seizures as unreasonable right privacy. tence Id. at of a . . .” 198-199.

331 . . .” “implicit concept liberty. tion” or which are ordered (106 v. 478 U. S. 92 LE2d Bowers 140) (1986).3 that Georgia right privacy far-reaching,

While citizens’ say not to the individual’s is without limitation. right privacy Pavesich court could waived recognized right be (122 199); individual Ga. at could be subsumed when the individual (id. 196), duties . . .” and had to required “perform public “in yield particulars right some ... to the and of the speech press.” (303 71) Brazo, Id. at 204. See also SE2d App. Cox v. 165 Ga. 888 (1983) (individual has no in information privacy published by information); another when individual had Cabaniss v. publicized (151 496) (1966) (exotic 114 Hipsley, App. Ga. 367 SE2d dancer has in a which she had privacy photo permitted others use Cummings Co., v. Walsh Constr. 561 publicity purposes); FSupp. (S.D. 1983) (under law, Georgia 872 Ga. a does not violate supervisor a woman’s their affair when privacy by telling co-workers of the woman had told other co-workers of the Nor will an relationship). individual’s serve as the privacy liability against basis for (Reece one who facts which are a matter of record publishes v. (267 839) Grissom, (1980)), 154 Ga. App. SE2d one well-recognized principle interpret It is a that a state court is free to its state constitu any way law, thereby principles grant tion that does not violate of federal individuals provided by Nowak, Young, more than those the U. S. Constitution. Rotunda & Con (3rd ed.). Law, (c), p. may interpret a stitutional 1.6 state court a state constitu provision affording protection tional more to citizens than have the federal courts interpreting parallel provision of the federal constitution. See Creamer v. Ga. (3) (192 fronts, SE2d On several Constitution has been con providing greater protection strued as v. to its citizens than does federal constitution. State (398 547) (1990) Miller, (Georgia provides protec 260 Ga. 669 SE2d Constitution broader (1990) Amendment); (Georgia tion than the First Green v. 260 Ga. 625 SE2d grants right against constitution); Constitution broader self-incrimination than the federal 339) (1989) Zant, Fleming (Georgia provides v. Constitution guarantee against punishment more extensive cruel and unusual than does the federal con (3) (365 827) (1988) stitution); Brown, Pipeline (Georgia Colonial Co. v. 258 Ga. 115 Amendment); Eighth expansive Constitution’s excessive fines clause is more than the D. B. 438) (1996) Ed., County App. (Georgia v. Clarke Bd. Constitu Constitution). guarantee provided by tion’s of a free education is broader than that the U. S. Gleason, (1992), See also Grissom v. n. 1 where this Court Georgia’s equal protection might greater rights interpreted observed that clause to offer equal protection than the in the federal clause found constitution. providing right (Gryczan State, is not alone in its citizens than with a broader provided by Appellate the federal constitution. courts in Montana 942 P2d (Mont. (Tn. 1997)); (Campbell 1996)); Sundquist, Tennessee 926 SW2d 250 Ken (Commonwealth (Texas Wasson, tucky (Ky.1993)); Emp. 842 SW2d 487 Texas State Union (Tex. (State &c., 1987)); Dept. Jersey Mental Health 746 SW2d 203 and New v. Saun (N.J. ders, 1977)), interpreted privacy guaranteed by 381 A2d 333 have all their respective being provided state constitutions as more extensive than that the U. S. Con stitution. public publishes photographs matter of a investi- who See gation. SE2d Fleetwood, 212 Ga. 161 v. Waters 499) (1) (397 App. 85 SE2d Co., 197 Ga. Pub. also Tucker v. News (1990) public (publication a matter of information connected right pri- investigation public not violate the does or a interest Through appeals vacy). of sexual assault defendants convicted appeal, right privacy on we the constitutional have asserted who have ruled successfully privacy may assert a that a defendant (Stover place public State, right v. in a the acts are committed: when (Ray (1)); money exchange supra, State, v. 326) (3) (389 (1990)); legally incapable of con- or with those 868 senting (2) (353 State, 256 Id.; v. acts. Richardson to sexual 342) (1987).4 right pri- Today, the constitutional are faced with whether we vacy governmental non-commercial sex- interference a from screens persons private home between force in a that occurs without ual act legally capable prog- consenting Pavesich and its the act. While right privacy scope eny in connection full do not set out the unforced sexual behavior con- behavior, it is clear that with sexual principles private covered adults is ducted espoused between private adults since such behavior between Pavesich by “[a]ny person recognized private intellect is in a whose matter Pavesich, 194. Adults who “with- . .” normal condition. . (id. private, gaze” unforced at a to “embraced from the draw sexual behavior right exercising right within the are any activity personal liberty.” that rea- think of Id. We cannot deserving persons and more would rank as more sonable private, protection governmental unforced, than interference from (Mont. 1997); activity. Gryczan State, 942 P2d 112 See adult sexual (Tn. 1996); App. Sundquist, Campbell State v. 926 SW2d 250 (Tex. 1992), grounds, rev’d on other Morales, 826 SW2d 1994). (Tex. activity heart conclude that such is at the We SW2d of the right privacy. protection Constitution’s Having appellant’s falls within the the behavior determined protected by right privacy, next examine whether we area (3) (458 98) (1995), King’s State, King we affirmed conviction 265 Ga. 440 16-year-old stepdaughter. sodomy performed We declined to address with his for an act of association, guaranteed by privacy the federal constitu intimate whether his tion, stepdaughter [the] was a had . . . was violated because “no factfinder established holding implying that willing participant can be read as in the acts.” To the extent that the may i.e., consent, affirmatively established before one “willing participation,” must be Georgia sodomy concerning privacy it is overruled. The acts of invoke a finding support require consent to conviction. an affirmative statute does not necessary aggravated Rather, of consent is to establish evidence of a lack (a). 16-6-2 government’s infringement upon is constitutionally sanc judicial tioned. As consideration of the right to privacy has devel oped, this Court has concluded that the right of is a privacy funda (Ambles (b)) mental supra, 259 Ga. 406 and that a government-imposed limitation on will pass con stitutional muster if the limitation is shown to serve a compelling state interest and to narrowly tailored to effectuate that com interest. Phagan v. pelling 268 Ga. 272 (1997); Zant v. Prevatte, supra, 248 Ga. at 833-834. But see Christen (2) (a) (468 State, sen v. 266 Ga. 474 (1996), SE2d where the plurality Court’s opinion the employed “legitimate state interest” yardstick to measure the State’s limitation on the defendant’s asserted right of privacy.5 in our Implicit decisions curtailing the assertion of a right privacy sexual assault cases sex involving ual activity taking place public, performed with legally those inca pable consent, of giving performed for exchange money, or per formed with force and the will against of a participant, is the determination the State has a role in the shielding public from inadvertent exposure others, the intimacies in protecting minors and others legally incapable of abuse, consent from sexual and in preventing from people being forced to submit to sex acts against their will. The State fulfills its role preventing sexual assaults and shielding and the protecting public from sexual acts the enactment of criminal statutes such prohibiting conduct: OCGA (a) 16-6-1 (rape); 16-6-2 (aggravated § sodomy); § 16-6-3 (statutory § (child rape); 16-6-4 molestation § and aggravated molestation); child (sexual 16-6-5 a child (enticing § for indecent 16-6-5.1 purposes); § assault of prisoners, institutionalized, and the patients psycho (sexual therapists); 16-6-6 (bestiality); 16-6-7 § assault of a § dead human being); 16-6-8 (public indecency); § 16-6-9—16-6-12 (prosti §§ (solicitation tution, pimping, pandering); 16-6-15 16- sodomy); § § (masturbation hire); for (incest); 16-6-22 16-6-22.1 and 16-6- §§ (sexual 22.2 and battery aggravated sexual battery), and vig orous enforcement of those laws through the arrest and prosecution authority position As only legislation for the alleged that the State need establish that to intrude legitimate has a pur 597) “reasonable relation to a state pose!,]” (1) (204 plurality the Christensen cited Blincoe v. 231 Ga. 886 (1974). case, stated, In that questioned this Court right, “It cannot be that the state has no guise exercising police power, personal under the liberty to invade the and by legislation legitimate individual citizen which has no reasonable relation to a state purpose.” This statement in Blincoe sets forth the threshold burden which must be met legislation alleged personal rights “to invade the and of the individual citizen ...” affirmatively require It does not a rational review test when an individual invokes a funda privacy. situation, mental legislation such as the In that the State must establish that the compelling narrowly under attack serves a state interest and is drawn to achieve Phagan, supra; Prevatte, supra. interest. Zant v. light statutes, these of the existence of of offenders. regulate sexual con- raison d’etre can

statute’s duct pri- Georgians’ right something consenting adults, government regulation. vacy beyond puts the bounds supra, Citing Christensen, the State reminds us proscription plurality therein that the decision held power police in furtherance State’s was a valid exercise public’s welfare, Constitution did moral and that of the prohibit deny conduct. such not General ability authority’s legislate power” governing “Police is the preserve protection property, lives, health, of the and and to citizens’ (2) (b) good Hayes Howell, Ga. 580 morals. order 170) (1983); Ward v. 65) (1988). authority justify interposing “To the State in thus its public, appear, must first that the interests of the the behalf of the public generally require interference; second, that . such . . necessary accomplishment pur reasonably are for the means pose, unduly oppressive upon Steele, and not individuals.” Lawton way, 133, 137 499, 38 LE another U. S. Stated public purpose adopted legislation must serve the means purpose reasonably necessary for the accom achieve the must be unduly per plishment oppressive upon purpose (2) County, regulated. v. Coweta Ga. 56 sons Cannon 329) (1990). years, legislative In have recent bodies exer “police negative power” of the cised the to combat the effects combi (Goldrush City dancing II Marietta, of alcohol and nude v. nation 347) (482 (1997)); through usage 683 to limit land zon (Cannon 56); County, supra, ing reg to restrictions v. Coweta (Foster professions Chiropractic Exam., the health Bd. ulate v. Ga. (14) 877) (359 (1987)); impose to 257 Ga. 409 and reasonable operation regulations on and the establishment of cemeteries (2) (Arlington Cemetery Corp. Bindig, v. 212 Ga. 698 (1956)). body legislative properly That the it is has determined that subject exercising police powers conclusive, its “is not final or is but supervision supra, Steele, to the the courts.” Lawton v. 152 U. S. at suggestion Thus, the 16-6-2 is a exercise of valid pub police power requires us to consider whether it the the lic determined benefits unduly generally oppressing Since, the individual. without only possible purpose reg to earlier, the for the statute is gains private consenting public adults, ulate the conduct of the unduly oppressed benefit, the is individual the invasion legislation privacy. Consequently, we must conclude that the power. permissible police exceeds the bounds of the See Common 1980). (Pa. Bonadio, wealth v. 415 A2d The State maintains that the furtherance of “social moral- also ity,” giving gia,” regard “due of the Geor collective will citizens of legislative a constitutional basis for control of non capable private activity legally commercial, unforced, sexual of those consenting activity. legis power to such It is well within through legislative policy lative branch to establish enact dispute public policy It is also ment. without that oftentimes the so and the enacted will of the established Georgians laws so reflect the majority’s morality. However, as well as the “it notion of simply legislature does not follow . . . that as law because the has enacted may majority, what are, be a moral choice of the the courts acquiesce.” simply Gryczan supra, thereafter, bound v. (where Supreme P2d at 125 consensual, Court of Montana ruled that protected by sexual noncommercial conduct is Montana’s legisla privacy). morality individual “Social any legislative scrutiny tion,” like enactment, is to the judicial tripartite system branch under our “checks and balances.” of Ga., See Cantrell State undertaking judiciary’s duty, it is not prerogative personal upon judiciary of members base their decisions on morality. pass Indeed,

notions of if called we were propriety involved, conduct herein we would con judiciary charged examining Rather, done it. legislative the task of alleged impinge upon enactment it is when the free guarantees Rights doms and contained Bill of and the scrutinizing pro Constitution, law, U. S. motes, ensure the interests it interests, means which seeks to achieve those many the law meets constitutional standards. While involving consenting adults, that acts of even believe those morally reprehensible, repugnance alone are compelling does not create justification regulation activity. for state Post v. (Okla. App.) P2d Cr. cert. denied 479 U. S. (1986) (where appellate 290, 93 LE2d the Oklahoma court held that a violated the when statute federal pri applied activity to “non-violent consensual between adults in vate.”) Campbell Sundquist, supra, 266; also 926 SW2d See at supra, Wasson, 498; Commonwealth SW2d Commonwealth (where supra, appellate Bonadio, A2d at 50 courts in Tennes Kentucky, Pennsylvania see, that “no state concluded sufficient justifies legislation simply particular interest belief is norms because a people, majority.”6)

followed even a We number 6 said in We are reminded of what Justice Oliver Wendell Holmes a dissent in Lochner 937) (1905): York, 539, “[The Constitution] v. people 198 U. S. 49 LE is made for New SC views, fundamentally differing finding opinions and the accident our certain nat shocking ought judgment upon our ural and familiar or novel and even not to conclude question embodying them . whether statutes conflict with the Constitution. . .” legislative setting jurists

agree that enactments with our fellow exempt judicial testing morality” their from review are not “social mettle. § 16-6-2, insofar as criminalizes conclude that We performance private, unforced, of sexual inti- non-commercial acts “manifestly legally infringes macy upon persons consent, able to between (Miller supra, provision” (2)) privacy. guarantees to the citizens of which performing Appellant an unforced act sexual convicted consenting capable intimacy legally in the one thereto appellant’s Accordingly, conviction for such behavior of his home. reversed. must be Carley, except Judgment concur, J, who reversed. All the Justices dissents. concurring. Justice, Sears, legislature urges that terms,

In broad the dissent once any activity, passing courts are forbidden from on the criminalizes “wisdom” chy” Otherwise, dissent foretells that “anar of such laws.7 reign.8 making statements, the dissent mis will these opinion, majority opinion. in no In this this Court characterizes policy. way usurps legislative promulgating social function of today inspired opinion, a of this Court has ful Rather, in an responsibility tripartite within the American filled its constitutional system majority opin stated in the of checks and balances. As well merely legislature may a law which ion, because the enacted upon public’s impact choices, moral courts are not “bound sim duty ply acquiesce.”9 Court, courts, It is the of this all ensure legislative compelling interest, acts do not that, absent state guaranteed by impinge our State Consti inalienable duty protect would default on its constitutional tution. dissent rights, to what these would defer instead it believes be very majority.10Yet, choice of a it is the definition of a constitu moral wholly to the will of the tional it cannot be made majority. principles Otherwise, that serve for our as bedrock at 344. Dissent at 340. Id. 9 Majority op. at 335. Black, commonly- Supreme Hugo Justice it is a As once noted United States misconception prohibits majority] [the that which thinks held “the Constitution should Newsweek, they permitted.” permits prohibited, should be Dec. think p. 1968 at Barnette, Virginia 87 LE2d Ed. v. 319 U. S. West Bd. of 1628) (1943) (“The very subjects purpose Rights of a Bill of was to withdraw certain from the controversy, place beyond majorities political them the reach of and offi vicissitudes vote; they right[s] may depend . . . . not be submitted to outcome cials. One’s . . election.”). Rights Federal and Bill State will be reduced to mere rhetoric. — upon great precept This nation was founded moral that all persons liberty, are entitled to the free exercise of their which: [E]mbraces [person] enjoy- of a be free ment of the faculties with which he has been endowed his subject only necessary Creator, to such restraints as are Liberty the common welfare. includes the to live as one long will, so as that will does not interfere with the of of public. liberty another or of the . . . All are entitled to choice as to his life, manner of and neither an individual nor arbitrarily away the liberty.12 has a take from him his freely The individual’s exercise his or her is not dependent upon majority whether the believes such exercise to be wrong. Simply moral, the something beyond dishonorable, or because is pale “majoritarian morality” place beyond scope does not protection. indignation To allow the moral of a majority (or, criminalizing private minority) justify worse, even a loud and/or radical against consensual conduct would be a strike paid preserved by Majority opinion freedoms for and our forefathers. society’s willingness should never pro- dictate a free to battle for the thing tection of its citizens’ liberties. To allow such would, in and of insulting itself, be an immoral and affront to our constitutional democracy. today’s will, There of course, be those who will criticize decision, may and who even seek to demonize some members of this Court for legal analysis. pattern personally attacking their pillory- This ing disagree positions, individuals who with certain rather than engaging ideological regret- in constructive them, discourse with has tably prevalent become more and more in our culture. Those who personal fully appreciate would make such attacks, however, do not my colleagues, agree that all of those who with the as well jurists struggle dissent, those who are honorable and decent who responsibilities people fulfill their to the of this State.

Today, majority of this Court fulfills its duties with a clear- courageous fully headed and decision. I concur with it. dissenting. Justice, Carley, responsibility

“The of this Court ... is to construe and enforce they [State] legis- the Constitution and laws are and not to England Co., Pavesich v. New Ins. Life personal policy of our inclinations.” basis own late social (1970). Abney, U. LE2d S. Evans private and is not whether consensual acts The issue this case question legal illegal Georgia, because that should be Assembly. already by the General Under the been resolved (a), unambiguous provisions 16-6-2 commission of an act performance state, law this of of is criminal consenting exempted an act in between adults is such presented statutory prohibition. Therefore, the issue from that has the constitutional for decision whether General authority prohibit such conduct. not authorized to This (a) § impede 16-6-2 the unrestricted enforcement OCGA State’s right manifestly impinges upon that a constitutional unless of statute perform private. to consensual in See Bohannon v. adults (2) (497 552) (1998). Clearly, 130, 131 Powell has State, 269 Ga. engage pro right in the act under the federal constitution to (a), by right § 16-6-2 is no since there fundamental scribed engage United to under the Constitution the States consensual sodomy. “Sodomy a criminal offense common law and was for was at they original the laws of the thirteen States when ratified bidden the Bill of Rights.” 186, U. S. 192 Bowers v. 478 140) (1986). Today, majority 2841, however, LE2d a of this Court 92 that state constitution confer the concludes Georgia our does citizens right engage which a fundamental to in a consensual act the many majority Georgians concedes, must, as find itself it “mor holding, majority ally reprehensible.” that, I in so the believe Georgia, misconstrues the Constitution of fundamental constitutional but it also violates the principle powers. my separation It is opinion impediment that there is no state constitutional to the Gen (a) Assembly’s by holding § that, eral enactment of OCGA 16-6-2 judicial authority otherwise, the its exceeded the limits of usurped legislative power promote pub “to to the enact laws safety, morals, health, lic welfare Christensen v. of its citizens.” (2) (a) (1996). 474, State, Therefore, 476 unconstitutionality only perceptible case is evi this that which is majority’s acting engineers determination, as denced social “liberty” jurists, than their rather as elevate notion individual people’s representatives over the collective wisdom of the elected sodomy, proscription otherwise, “in consensual or is furtherance supra public.” State, of moral (2) (a). welfare Christensen at respectfully, vigorously, Therefore, I to the but dissent hold (a) ing that OCGA 16-6-2 is unconstitutional. right guaran- premise privacy that the grants Georgia this teed Constitution to the citizens of state right engage private consensual Unlike the consti- Georgia states, of some tutions Constitution contains no recognition Compare express privacy. Gryczan State, of a (Mont. 1997). entirely P2d That stems from this holding England Co., Court’s Pavesich New Ins. Ga. Life (1905). does not SE Pavesich hold that citizens of engage an state have in a immutable any act of consensual crime other conduct constitutes pursuant Assembly. merely to an enactment of the General It privacy generally, implicit defines an element of guaranteed “liberty” Georgia citizens under the Due Process supra Pavesich, Clause the state constitution. at 197. In accor- supra Pavesich, at and, hence, dance an individual’s “ completely his is not unrestricted, but ‘such ” necessary restraints are for the common welfare.’ a citizen regulations does not have the “to violate the valid organized government under Pavesich, which he lives.” regulation decided, 194. At time Pavesich was one valid such prohibited a criminal statute of this state which sion of sensual and 876) (1904). a citizen’s commis- sodomy, regard an act of without to whether that act was con- Herring private. SE original statutory Indeed, law made punishment upon crime in an act and the con- “ ‘imprisonment penitentiary viction was at labor in dur- for and ing person de[te] the natural life of the this (336 convicted of stable crime.’ (2) [Cit.]” Warren v. “ ” felony by Moreover, common ‘was a the ancient law.’ Her- (2). ring supra at 720 See also Bowers v. [a]. assuming § 192; Anno., ALR4th even general privacy recognized by to Pavesich enough encompass participation private was in con- broad to certain acts, sexual sensual it nevertheless is undeniable that could among protected acts, been have included those since that sexual practice expressly statutory made criminal law of this state.

Although, majority long notes, as the has a history Georgia dating today in from Pavesich, until this has authority incongruous proposition never cited that that a for as citizen is at to commit an which has act constituted history throughout longer Georgia conduct criminal state the even as a history throughout English and, indeed, the entire common upon constitutionally protected law. In its haste to confer Powell a engage sodomy, private to consensual acts general simply recognition guarantee seizes of the Pavesich’s “liberty” Georgia constitution, afforded to citizens under state choosing ignore completely equally important while to rec- Pavesich’s responsi- Georgia ognition principle also have the citizens bility comply Thus, unlike the criminal law. with this state’s pro- authority majority, is clear-cut I that Pavesich believe position can never be of the criminal law of state that a violation guaranteed by “liberty” justified the Due Process as an element my opinion, freedom to violate constitution. Clause of this state’s anarchy simply thus, the of an and, antithesis criminal law is system. ordered

Subsequent Pavesich, criminal stat- this state’s to the decision proscription on an commission have maintained unrestricted utes present sodomy, Due still contains a Pro- whereas our constitution right Georgia recognize expressly cit- that does not cess Clause private consent of the in that act izens to even changed participants. has since Pavesich was factor which question composition proper Thus, the this Court. decided is the Court will misconstrue in this case is whether this resolved be way reinterpret such a our state constitution Pavesich authority prohibit deprive the of its consensual General private acts that, construction It is an rule of constitutional established judicial interpreta- provision a settled where received incorporated constitution, into a new it will tion is then knowledge presumed to have retained with been previous will construction and courts be bound [Cit.] adhere thereto. Sys. Independent Lane,

Atlanta School clearly interprets Because Pavesich the constitu- compliance privacy with this state’s crimi- tional change statutes there has been no constitutional nal which would authorize and because private engage in citizens to and con- it is clear that Powell’sattack on constitutional- sensual (a) ity merit. The Due Process Clause of of OCGA 16-6-2 without citizens state the Constitution does not afford the of this the right pro- engage which has been consensual conduct Assembly. law our See State scribed criminal enacted General (R.I. 1995); Lopes, P2d Bateman, State v. A2d (Tex. (V) (Ariz. 1976); Crim. Everette v. 465 SW2d 10 1971); Sodomy, p. § CJS, supra precisely Christensen, This is addressed in issue (2) (a), years ago, majority this Court wherein, less than three opinion constitutionality plurality upheld statute, and the held that against proscription sodomy legitimate is a and valid police power

exercise of state in furtherance of the moral public. deny leg- welfare of the Our constitution does not prohibit islative branch the such conduct. Accord- ingly, § OCGA 16-6-2 does not violate the

under the Constitution. (V). supra majority simply See Bateman, also State v. at 10 dis- penses holding concluding with this in Christensen, that, because no party private sodomy, third is harmed a consensual and act of authority pro- General is without the constitutional discounting scribe commission of that act. In Christensen, however, majority appears premise to be motivated the erroneous private sodomy victimless consensual and acts of are a realistic tar- (a). get for the State’s enforcement of OCGA 16-6-2 If an act of sod- omy truly private, impractical consensual and it would be against participants, enforce the statute since both would be guilty consequently, and, crime of there would be no charges prosecution. Perryman victim to file and initiate a See App. (1940); State, 63 Pruett v. (Tex. 1970). SW2d Crim. If, however, the act takes place public place presence non-condoning non-par- in a or in the of a ticipant, subject prosecution non-private it can be as a act. Chris- supra. place private partici- tensen, If the act takes and one of the pants charges against files criminal other, it can be prosecution prosecution against as a non-consensual act. The Powell certainly alleged engaged was not initiated because he was to have private sodomy. contrary, pros- and consensual act of To the he was alleged ecuted because the victim that he committed an act of sodomy against forcible her. There is no contention that the evidence finding at trial would not have authorized a that Powell’s act Although jury guilty was non-consensual. found Powell prose- of consensual the fact nevertheless remains that the pursued only participants cution was initiated and because one of the initially alleged subsequently testified under oath that she did not consent to the act of importantly, majority authority however,

More cites no support adoption proposition for its of the novel that the constitution- ality dependent upon any- of a criminal statute is somehow whether participants adversely one other than the actual themselves are proscribed Presumably, affected act. standard, under this new longer adultery. the State can no enforce laws fornication Thankfully, majority See Bowers v. at 195-196. among per- includes incest those sexual acts which it will continue to proscribe mit the State to However, as criminal. offers conceptual analytical the of between crimes distinction or consenting by adults. Neither incest when committed money exchange proscribed performance nor act, an of sexual of as defined the Gen- an element of either offense the use force is Assembly. §§ 16-6-2; The to 16-6-22. conclusion See OCGA eral legislative pro- majority simply that decided is has be drawn engage scription right is now in consensual of adults to politi- politically unconstitutional, that it but still incorrect prohibit cally to for the General correct and constitutional engaging in sexual intercourse. The from consensual adult relatives example, majority opinion For anomalous results. it will have daughter stepdaughter for a father and his adult remains criminal to they may engage law- intercourse, now sexual but consensual fully perform anal and oral consensual acts of majority purport to limit to sexual Moreover, does authority application new to declare this of its found offenses the By equating general state’s criminal statutes unconstitutional. constitutional “liberty” guarantee to all citizens with the engage self-indulgent self- to but of each individual citizen majority permissiveness, appears that the has contained acts of question any called criminal statute now proscribes into constitutional majority that, at of a of this an act least to the satisfaction anyone other the actual Court, does not cause sufficient harm than constitutionality give example, participants. Thus, to one but drugs possession and use of certain criminal laws which forbid the supra suddenly questionable. Hardwick, See Bowers v. at has become 195. overly majority’s expansive notion

Until the advancement its “liberty,” guarantee has never of the state constitutional there any Assembly, that the the exercise of the been doubt General police power, authority to define as crimes commission any regard injury, which, are acts without to the infliction other put, legis- Simply considered immoral. commission what to be act, even if lature has determined private, an immoral consensual and against society protection “[T]he injury ‘socie- is an itself. morality’ government [is] interest.’” tal order and a ‘substantial (2) (a), constantly supra “is based Christensen, on notions of choices at fn. The law morality, essentially representing moral and if all laws Clause, are Due to be invalidated under the Process very busy supra at 196. courts will be indeed.” Bowers v. (2) (a); Walsh, State v. See also Christensen v. (Mo. 1986). only justification given SW2d (a) concluding upheld as a that OCGA 16-6-2 cannot be power proscribe police exercise of the State’s constitutional Georgia, engage that, in consen- immoral conduct is sual and private although legislatively determined to be morally reprehensible, guaranteed under our constitution. pre- As demonstrated, however, viously this constitutional “right” engage in sodomy has been manufactured out of whole cloth major- ity’s misconstruction A Pavesich. to privacy obviously cannot include the conduct which was condemned as criminal at the time very the constitution was ratified. No reasonable would consider Georgian the effect voting ratify general guarantee “liberty” would tobe divest his or her elected legislators to con- tinue the specific statutory proscription against sodomy or any criminal act. To contrary, any reasonable citizen of this state would consider that he or she thereby retaining to make such determinations for through themselves their elected legis- lators. The majority, having invented the simply constitutional to engage instance, the first then upon relies that fic- tional for its support ultimate conclusion that the General Assembly has no constitutional to authority proscribe that conduct. A reviewing court should strive “to assure itself and the public announcing rights readily identifiable in [a text constitution's involves much more than the imposition of the Justices’ own choice values.” supra Bowers at 191. Given the utter lack of support purported to sodomy, I can only conclude that the majority has chosen to substitute its own public policy determination for that of Assembly. the General

In stark telling and contrast to the majority’s analysis, Christen firmly sen is based upon bedrock constitutional principle sepa powers, ration of which principle very is “essential to the foundation of our system of and must government” strictly “be enforced.” (2) (35 144) (1945). Smith, 685, McCutcheon v. 199 Ga. SE2d “It is the prerogative judiciary is, determine what the law and the responsibility legislature declare what the law shall [Cit.]” be. Pearle Optical Monroeville v. State Bd. Examiners (2) (133 374) (1963). Optometry, 364, 219 Ga. Thus, Court’s authority only law, extends to the correction of errors of and we have no legislative powers or functions. Jacobs v. State ofGa., 187) (1946). Ga. legislature, “[T]he and not the courts, is empowered by Constitution to decide public policy, to implement laws; policy by enacting the courts are bound to follow such laws if constitutional.” Commonwealth Frye, Inv. Co. v. judicial' exercising authority constitutionality to determine the of statutes duly enacted by our General Assembly, duty pronounce is our solemn “not to them, case, in a clear and to make except every intendment constitutionality.” Gormley Taylor,

possible in favor of their (2) (1871). 76, 77 Legislatures laws, alone the wisdom of determine despite unwise, that the law neverthe- courts, their belief their consider- the Constitution confine less are bound constitutionality alone. Courts of such laws to their ations experience, possess facilities, nor the wisdom neither the pass legislators qualify the wisdom them laws. (5) (c) (1965), State, rev’d on Sims v. (1967). grounds, 385 U. 17 LE2d S. 538 (a) majority,

According § 16-6-2 is unconstitutional for to the entirely ratifying that, the Constitution of erroneous reason guaranteed implicitly Georgia, of its citi- this state’s voters legislators an its nevertheless have zens to commit act which expressly prohibited. Retaining to be determined should continue sodomy may may good long-standing proscription policy, public not be public policy which, as a matter of but it is determination law, can make. the General State Sodomy (V); Dronenburg: supra Note, Bateman, Doe & Stat- (1985). Mary Constitutional, L. Rev. 645 utes are Wm. (3), “[t]he supra we at 477 held that Christensen determine is harmful health and morals or what is criminal what belongs people through rep- to the welfare to the their elected (3). Unfortunately, resentatives.” Christensen v. at 477 today, By holding longer of this of that is the law state. that the guarantee “liberty” precludes Assembly General enacting express pri- an from ban on commission consensual usurped legislative authority vate acts of the Court has Assembly policy of this to establish state. General majority promotes judicial as a itself defender constitu Assembly by imposition tional General those by Georgia morality’ “norms” of “societal held most citizens. The majority cautioned, however, should be that the constitution which readily by judicial just easily now so undertakes to amend fiat can again yet by any future discovers another rewritten Court which where none ever existed. The Constitution of original government Georgia this is the law which state was Fargo Trustees established. Wheeler Bd. Consolidated School (1946). 323, such, our As consti Dist. judicial express so as to tution should not be amendment any majority happens given at a to conclude whatever this enlightened viewpoint particular time the more controversial judicially manner, issue. If our constitution can be amended such government by government Court, that constitutes through this rather than system separate a constitutional of which this Court is equal today’s opinion, any branch. In accordance with and all disaf- groups legislative fected are who unable to obtain redress need majority they implicit convince a “right” protected by of this court that what seek is an general guarantee “liberty” afforded Contrary Due Process Clause of the Constitution. to this analysis, wisely provides separation however, our constitution powers, icy Assembly public pol- and authorizes the General to make the constitution, therefore,

determinations this state. Under our public policy Georgia practice sodomy on the is a matter jurisdiction legislature'. Accordingly, within the exclusive we usurp power should continue to “decline to that which is the (3). legislature.” supra By State, Christensen v. dissent, should or at 477 I opining majority wrought today am not that what the saying simply should not be done or can or cannot be done. I am constitutionally not, this Court cannot, should apparent and indeed do it. safety major- In the numbers, belief that there is ity interpreting notes that it is not alone in a state constitutional broadly so as to include the in sod- omy. majority acknowledge, What the however, fails to is that most sodomy longer states in which consensual is no a crime achieved that “by legislative repeal criminalizing sodomy.” result of their laws (3). supra State, Christensen v. Case, See also Recent — Sodomy, State &c., Constitutions Homosexual 106 Harv. L. Rev. (1993). 1370, 1373, fix.27 should take no comfort rank the fact that it has removed from the of those states legislature. which have held that the matter is for resolution e.g., (V); See, Bateman, State, State v. at 10 Critchlow v. (Ind. (Ark. 1976); NE2d Carter v. 500 SW2d (Cal. 1970). 1973); People Rptr. App. Hurd, 85 Cal. In police power, Assembly exercise of its the General has determined long-recognized place. that the ban on should remain That applies only persons groups. acts, ban not [I]t proper any judicially repeal is not a function for court — purely sociological [Powell]

laws on considerations would do better to address . . . the General for it to require expunc- if determine modern mores tion of the alteration or statutes. (Mo. 1974). 504 SW2d Because the Griffith majority’s discovery of a not- withstanding legislative this ban is based a serious misinter- completely contrary of the Constitution of and is

pretation I dissent. principle separation powers, the constitutional — 23, 1998 Decided November 17,1998. denied December Reconsideration Sadow, Bernstein, H. for appellant. Brenda J. Steven South, Porter, Attorney, D. Assistant Daniel J. District Pamela for Attorney, appellee. District General, Hobbs, Baker, Michael E. Counsel Attorney

Thurbert E. Brown, General, R. S. Attorney Stephen Scarborough, Kelly to the amici curiae. v. THE

S98A0969. ALEXANDER STATE. (509 SE2d Justice. Sears, Alexander, appeals Darien from his conviction for appellant, Goddard, from the death of Delma stemming shooting

malice murder from his for a crime.1 On falsely reporting well as conviction contends, that appeal, among things, prosecutor Alexander explained opening his statement the evidence would show gang-related, crime was that the evidence did not show such connection, and that the prosecutor’s opening therefore statement nature of the crime reversal. We regarding gang-related requires Alexander offer agree prosecutor with failed to evidence statement, in his activity opening that he detailed and that gang convictions therefore be Alexander’s must reversed. and

The evidence showed that sometime between 6:00 7:00 p.m. Durden, 26, 1996, Alexander, on May along Rodriguez Rondrell others, rally and several went the Violence” Hartry, “Stop Milledgeville, A Georgia, pickup Bonner Park Alexander’s truck. truck, an brown van next to Alexander’s and pulled argument argument Two officers saw the Alex- police approached. ensued. 26, May 29, 1996, May on 1996. Alexander on The crimes occurred was indicted 27, 7, September 1996, was convicted on 1996. On October the trial court sentenced Alexan one-year prison falsely report prison murder for der life in and to a concurrent term in 1996, ing 7, an Alexander filed a motion for new trial on November amended crime. reporter February transcript trial on 1998. The court certified the trial on motion for new January 6,1997, trial, amended, the trial Alexander’s for new on court denied motion 6,1998. appeal March filed and the case was Alexander his notice of March docketed May 1998. briefs on on March The case was submitted for decision on

Case Details

Case Name: Powell v. State

Court Name: Supreme Court of Georgia

Date Published: Nov 23, 1998

Citation: 510 S.E.2d 18

Docket Number: S98A0755

Court Abbreviation: Ga.