[0:03] The Court is now on session. Chief Justice Harrow-Meltin, Presiding.

[0:18] You may be seated.

[0:25] Morning, ladies and gentlemen. My name is Harold Melton, and I'll behalf my colleagues on this

[0:30] cordet, it's my privilege to welcome each and every one of you to this morning's session of the Supreme Court of Georgia.

[0:38] But by way of announcements, Justice Benima is out, but he will be participating in all the cases that will be heard this morning.

[0:47] Madam Clerk, are there any requests for admissions?

[0:49] Yes, you're under the following name, applicants have properly certified applications, and I respectfully

[0:54] move through your admission to the bar of the Supreme Court of Georgia.

[0:59] When your names are called, we ask you to come forward, corporal open up the gate for you, and just

[1:04] just line up right here in front of us.

[1:06] Nilfar Abbey Tabari, Anna Diaz, Kebel Errow, Courtney Dixon, Ron Cheros Fortune, Justin

[1:15] Guncher, Tab Hunter, Carly Jordan, Jacob Catlin, Kenneth Kincaid, Lacey Kiles, Katherine

[1:24] Linhardt, Mark Martin, David Messer, and Pasha Tucker.

[1:41] Yeah, Tiro.

[1:42] We've been real popular lately, so we've had pretty large size groups.

[1:46] This is relatively intimate.

[1:50] The ladies and gentlemen, if you're ready to take the oath, it's my honor to

[1:54] administer that to you.

[1:54] I ask you to raise your right hand and repeat after me.

[1:57] I state your name, do solemnly swear that I will protect myself as an attorney or

[2:06] counsel of this court,

[2:10] truly and honestly, justly and uprightly, and according to law, and now

[2:17] support the Constitution of the United States and the Constitution of the State of Georgia.

[2:26] So help me, Guy.

[2:28] Well, thank you, and congratulations.

[2:30] It's a privilege.

[2:31] Well, it's a tradition that we welcome you by having one of our members of our court express

[2:38] welcoming words and words of encouragement.

[2:40] Today, that privilege falls upon my friend and colleague, Justice Nails Peterson.

[2:45] Thank you, Chief.

[2:47] On behalf of the Chief Justice, the presiding justice and all the members of this

[2:50] It's my honor and privilege to welcome you to the bar of the Supreme Court of Georgia.

[2:57] Today we have sort of a range of young lawyers and more experienced lawyers.

[3:03] But every time there's a new step in your career, it represents a lot of achievement, a lot of hard work, a lot of time and effort.

[3:13] And it's always a good opportunity to remember that it's not just your hard work, but it's also hard work and time and effort of those who've spent a lot of time supporting you and your endeavors throughout the years.

[3:27] And this is always a good day to just drop them a note and to say thank you for the opportunities that you have had because of what other people have done.

[3:39] My old college professor Betty Seagull at Kennesaw State University used to say that when you saw a turtle on a fence post, you know that it didn't get there by itself.

[3:51] Hopefully you're not in as bad a position as a turtle on a fence post, but the principle is the same.

[3:56] I want to leave you with two thoughts.

[3:59] The first is, as lawyers, our integrity is absolutely vital to being successful advocates

[4:11] to being the kind of lawyers that the bar, that the state, that our system of democracy needs

[4:20] and expects, and integrity is more than simply minimum compliance with the various rules

[4:25] that will get you in trouble if you don't follow them.

[4:28] Integrity is living the kind of life

[4:32] and practicing the kind of law

[4:33] and having the kind of career and reputation

[4:36] that people know that when you say something,

[4:38] they can trust you.

[4:40] And they don't need to get you to write it down

[4:43] and to sign it and triple it.

[4:44] They can trust your word.

[4:46] A lot of our system is based on that kind of trust.

[4:50] And I strongly encourage you to keep that top of mind.

[4:55] Because integrity is something that takes an entire lifetime to build and it can be destroyed in about three minutes.

[5:03] And then the other thing that I will leave you with is just a simple practice tip that's as much for the lawyers who are about to argue in front of us as it is for you.

[5:12] The page limits that are court sets and the time limits that are court sets are maximums.

[5:19] They are not also minimums.

[5:21] When you have said what you need to say, sometimes it is best to stop.

[5:25] Congratulations. Good luck to you in your future endeavors.

[5:30] Thank you, Justice Peterson.

[5:32] And I think we all emphasize the brilliance of those last comments.

[5:37] With that, we'll ask you to follow our Assistant Clerk out,

[5:40] and they'll finalize his transaction again.

[5:42] Welcome to our court. Thank you.

[5:53] With those words of directions, let's talk about timing.

[5:56] The first case is set for 30 minutes aside.

[6:00] It's a combined case, it can solve any case.

[6:03] The second case is a standard 20 minutes per side.

[6:07] There's a clock on the podium, a clock to the right.

[6:11] After the time has expired to where there's just five minutes left,

[6:15] the yellow light will come on at the end of that five minutes.

[6:19] A red light will come on and a bell sound indicating that the time has expired.

[6:23] Now, Clerk, were you called the first case, please?

[6:26] Yes.

[6:26] As 18G, 1495 and 1599, Charles Pennington, Jr. and Carlos McLeard versus the State, Jeffrey Peel

[6:35] and Kara Clark for Appellan, Joshua Smith and Morgan Kendrick for Appellan.

[7:03] Good morning and may it please the court, Mr. Chief Justice.

[7:07] My name is Kara Clark.

[7:08] I represent Mr. McLeard in this case.

[7:10] Because this case is consolidated, I'm going to focus on the first part of the question that

[7:17] Court has presented and Mr. Peel is going to focus on the second part.

[7:22] The question presented before this Court today is, what if anything must a criminal

[7:26] defendant admit in order to raise an affirmative defense and must the defendant make such

[7:31] an omission for all purposes or only for more limited purposes?

[7:36] The answer to that question is the defendant doesn't have to admit anything in order to obtain an affirmative defense, and if he does, he may do so for a limited purpose.

[7:46] The standard that should apply to affirmative defenses is the one that applies in all other jury instructions, and that is if slight evidence supports the instruction, the trial court should give it.

[7:58] There are three reasons why the slight evidence rules should apply over the threshold rule

[8:06] that the Court of Appeals applied in this case, and that is the plain language of the statute.

[8:12] Longstanding common law principles, and the slight evidence rule is consistent with other principles

[8:19] of law in justice.

[8:22] Before I go into those questions, those reasons I want to talk about the facts of this case.

[8:29] Mr. McClure was at his home with a female friend, her name was Jessica.

[8:33] He and Jessica got into an argument at some point.

[8:37] And Jessica called her friend, Mr. Quayvass to come pick her up.

[8:42] Mr. Quayvass arrived with his girlfriend, Jamie Thun.

[8:45] And when they arrived, Mr. McClure and Jessica were arguing in the front yard.

[8:49] Jessica said something to Mr. McCleur, like, I'm going to get him to get you him, meaning Mr.

[8:55] Quayvass and she got into the car.

[8:59] Mr. McCleur went inside his house and he retrieved a BB gun.

[9:03] He came outside with the BB gun and this is where the facts diverge.

[9:07] Mr. McCleur said, he threatened them with a BB gun and told them to get out of his yard.

[9:14] And then he was going to use the BB gun as a club because it didn't work.

[9:17] Mr. Quay of Austin, Ms. Thunes said that he pointed the BB gun at them and threatened to shoot them.

[9:25] Mr. McClure requested the affirmative defenses of justification, defensive property and defensive self.

[9:33] The trial court denied that request on the basis that Mr. McClure did not emit the facts as alleged in the indictment

[9:39] because the indictment charged him with pointing the BB gun rather than some other aggravated assault.

[9:46] The Court of Appeals affirmed that saying they were applying the long-sounding rule, and that

[9:52] Court, which is that in order to obtain an affirmative defense, the defendant must admit

[9:57] the facts as alleged in the indictment.

[10:01] That rule appears to come from American jurisprudence, which was cited in a case called Chandel

[10:07] in the 70s, in that case, which has since been overruled.

[10:12] They cited American, or this court, cited American jurisprudence, which said an affirmative

[10:19] defense is one where the defendant admits the act, but seeks to justify or mitigate it.

[10:25] From that case came a jury instruction, which is still in the pattern charges today using

[10:29] that same language.

[10:31] Actually, it seems to me that those cases have somewhat altered the test that's laid out

[10:39] in the American jurisprudence series.

[10:42] It seems to me that the Amgir quotation in its original form at least is exactly right,

[10:48] which is not that to raise an affirmative defense the defendant must admit.

[10:56] But it is rather that the affirmative defense is one that admits.

[11:02] So it is the assertion of the defense itself that admit certain facts for the purposes

[11:08] of considering and deciding that defense.

[11:13] I think that's exactly right.

[11:15] The affirmative defense, the court of appeals in the late 90s sort of tweaked that language

[11:21] that's in the jury instruction.

[11:22] I think that's why we have it in the jury instruction.

[11:26] They tweaked that into this threshold rule that the defendant can't even get an instruction

[11:30] unless he first admits the offense.

[11:32] And so it's a little bit of runaway precedent that it's been applied in the court of appeals.

[11:37] This court has adopted it in a couple of cases.

[11:41] I think I try to find those in size and in my brief.

[11:44] But in the vast majority of cases in this court,

[11:47] the rule is not so simple.

[11:49] It's an oversimplified version of what the rule is,

[11:52] which is that if evidence supports the instruction

[11:54] then it should be given.

[11:56] We've cited those cases,

[11:58] but have we ever relied on them as a holding to resolve the case?

[12:03] I think the main case that I found was a case called

[12:05] Merkel or Merkel, it's cited in my brief, and I'm sorry, I don't remember the style of it right off the top of my head.

[12:12] And that opinion was about an accident defense, and said the defendant didn't admit the offense,

[12:18] and it cited a case called Winston, I believe, which is also an accident case,

[12:25] but Winston, what Winston said was not that the defendant didn't actually admit the offense,

[12:31] It said that the defendant, the victim had died and the defendant testified something to the effect that she died by accident, but he didn't say, I killed her by accident.

[12:42] And so this court said, you know, that testimony didn't support the accident defense because being killed by accident is not an accident defense.

[12:51] That's nothing bad, you know, nobody should have been charged at all. And so that Markle case, I think probably stands for that same proposition.

[13:00] it just doesn't go into the facts of the case, so it's not clear whether it's supporting

[13:06] the Court of Appeals rule or just citing what Winston said.

[13:14] And that leads me to the plain language of the statute, what the statute says, and that's

[13:18] OCDA-1631, is that to obtain an affirmative defense if the state's evidence doesn't, if

[13:29] The state's evidence raises the defense or if the state's evidence doesn't raise the defense

[13:34] then the defendant must produce evidence in order to obtain that defense.

[13:39] The plain language of the statute does not require any kind of specific evidence that the

[13:43] defendant must present and in fact an admission is not really the main goal of obtaining

[13:50] an affirmative defense.

[13:51] It's not the critical evidence, because of course a defendant could get up and testify

[13:57] I did it, and that doesn't establish an affirmative

[14:01] defense at all.

[14:01] That just establishes that key skill-t.

[14:06] So, because the plain language of the statute

[14:10] doesn't require the defendant to present any kind of specific

[14:12] evidence, just the burden of production, the plain language

[14:16] supports the better supports the slight evidence rule

[14:19] as opposed to the threshold rule that the Court of Appeals

[14:22] has applied in this case.

[14:25] And the other principle, a statute, to the slide evidence real point, if the raising of the

[14:32] affirmative defense, essentially constitutes as an admission by the defendant of the facts

[14:40] necessary to support the affirmative defense for the purposes of the affirmative defense,

[14:46] is the raising of the affirmative defense itself, slight evidence to support the affirmative

[14:50] defense instruction?

[14:52] I'm not sure I understand your-

[14:53] So, if raising an affirmative defense,

[14:56] it's self, as Justice Blackwell's question suggested.

[15:00] Constitutes in admission of the action for purposes of the affirmative defense is the raising of the affirmative defense, because of the admissions, the limited scope admissions,

[15:15] that, that occur as a result of it, is that itself the slight evidence necessary to support an instruction?

[15:21] I don't think so. I'm still not sure. I understand the question entirely. The defendant

[15:28] has to produce some evidence, either through his testimony, through other witnesses.

[15:32] Or an admission, right? Or an admission, and that is what I think.

[15:34] Okay, so if the raising of an affirmative defense is an admission of those facts for purposes

[15:42] of the affirmative defense.

[15:46] So what you're saying is if the defendant says something like Mr. McClure did where he didn't

[15:50] midday underlying facts, but by way of argument, we admitted that he committed an aggravated

[15:57] assault, then does that raise the affirmative defense then, yes?

[16:01] If you only had an admission to what was charged in the indictment and nothing else, then

[16:06] you would simply be guilty of what's charged in the indictment, right? The affirmative

[16:10] defense requires that for purposes of that defense, those facts be admitted, but there

[16:15] be some additional fact that sets up the affirmative defense. Correct? Correct. And so the raising

[16:21] of the defense would not be any evidence of that additional fact. Correct? Correct. Correct.

[16:27] Is that, okay. Thank you. Thank you, Justice Blackwell. And the other statutory principle

[16:33] at issue here is the common law rule. What we know from statutory interpretation is that we

[16:37] presume that the legislature meant to adhere to the common law unless some contrary evidence

[16:43] And in this case, the statute actually directly quotes the common, the longstanding common law rule that if the state's evidence doesn't raise the defense, then the defendant must produce evidence to raise that defense.

[16:59] Would it be sufficient to have impeached or cross-examined a state's witness to the point that it draws our credibility into question?

[17:11] I think in some circumstances it could, depending on where, how you cross exam in the witness

[17:16] and what that witness says, you know, if the, if the, if the, if the, I'm thinking about

[17:20] in your case, if, if the jury did not believe the victims testimony, would, would that provide

[17:31] evidence that they could, they could, they could say there's a, there's a different explanation

[17:36] for what happened here.

[17:37] I think that in Mr. McClure's case we would be talking about a very different, this would be a very different appeal of Mr. McClure didn't testify and present some other evidence.

[17:49] There may be very little evidence that he was at his house, but there was no evidence that, for instance, Jessica said that, Jessica said to Mr. McClure that's-

[18:02] Let me give you an easier hypothetical that self-defense case and the states witness is asked

[18:09] by the defendant by the defense lawyer.

[18:13] Didn't the victim point his gun at the defendant before the defendant did anything?

[18:18] And the witness says, no, can the jury disbelieve the no, say, okay, well, when the witness

[18:26] said, no, we think the answer is yes, and if the answer were yes, then we would have a basis

[18:34] for self-defense. Can you assert defenses by the absence of evidence combined with disbelief?

[18:45] I don't think so. I think the defendant, based on the statute and the common law, the defendant

[18:49] has duty to produce some evidence and cross the questions of the lawyer or not evidence.

[18:54] And so, just merely just believing a witness is not establishing the affirmative defense.

[19:00] I think if that's the only source of the evidence, then.

[19:03] I mean, it's a positive evidence.

[19:06] Right.

[19:07] But why is that?

[19:08] Because there's case law that suggests when a defendant testifies and the defendant denies committing

[19:14] the crime and the jury convicts, when we consider efficiency of the evidence, we can consider

[19:20] The no, as in fact, evidence that the defendant committed the crime because the jury

[19:26] presumably disbelieved the no, concluded that was a lie.

[19:31] And so that becomes part of the evidence that is sufficient to support the conviction.

[19:36] Why couldn't we say that the no is?

[19:39] We do that with defendant testimony, at least, I don't know that we do it with other witnesses,

[19:44] but we do say if the defendant testifies,

[19:48] you can assume the jury believe the opposite.

[19:51] Correct, because it's sumably in that situation.

[19:54] I mean, the state still has the burden to prove the charges,

[19:58] and we look at, and you don't only look at what the defendant said,

[20:01] but you look at the other evidence first,

[20:03] does the state actually establish that a crime happened?

[20:06] And just because the defendant says he didn't do it,

[20:11] that becomes a jury question,

[20:12] and we respect the jury's verdict.

[20:15] And, well, no, but, I mean, our case law says that the no

[20:19] is itself evidence of the crime when the jury has convicted.

[20:23] So why can't a witness is no?

[20:26] I mean, let's say the witness was as shifty

[20:28] as any witness in the history of trials.

[20:31] I mean, no one within 20 miles of the courtroom

[20:34] believed this witness.

[20:36] Witness says no.

[20:39] Why can't that be evidence that, in fact,

[20:41] answer was yes? I think in certain instances it could be I mean this is a factual

[20:47] question ultimately in the trial court has to look at the whole picture of the

[20:51] evidence and decide whether I'm in the problem is it's a slide evidence test we

[20:56] formally construe the evidence in this I'm setting we always construe the

[21:02] evidence in favor of the party asking for the instruction. Correct. So if we have

[21:08] cases, it's a, you can, you can assume duties can disbelieve witnesses, although I don't

[21:15] know that we have that as efficiency other than the defendant's testimony.

[21:22] It's a problem of kind of establishing slide evidence by the absence of evidence.

[21:29] Right.

[21:29] I think, I think that in that case, you know, maybe the state's evidence raises the affirmative

[21:35] defense of a difficult question for me to answer, and it's not raised by the facts of this case.

[21:41] Well, once we say you don't have to admit it, it can just be from any evidence in the case.

[21:48] And you couple that with some of this other case saw, it seems like in every case you can get whatever

[21:54] affirmative defense you want by asking, pick a random states witness who was there and say, you know,

[22:04] Didn't, didn't the defendant to pick a case we had yesterday, didn't the defendant fire

[22:10] his gun by accident?

[22:11] It was jossled, and the witness says, no, nothing like that ever happened, nobody touched

[22:16] the defendant.

[22:17] And there is no other evidence, the defendant doesn't testify.

[22:20] That's it.

[22:22] I mean, can you say, well, the jury could have disbelieve that witness, and I get an

[22:26] accident instruction.

[22:28] And by the way, self-defense instruction by asking a similar person and a mutual combat

[22:33] instruction. It would have essentially become a cascade of alternative theories where slight

[22:40] evidence would avail every defendant of all of those theories in every case. So how can you

[22:47] roll that back for us or explain why that's the right answer? I can understand the court's

[22:52] issue and I'm running low. I'm cutting into Mr. Peel's time. But let me say that the state does

[22:57] is not, as you mentioned, if you can say, that the evidence is sufficient even when the defendant

[23:06] denies it, and the jury is entitled to disbelieve the defendant.

[23:10] The state is not similarly limited from receiving all the instructions that are supported

[23:14] by the case.

[23:15] If they request a lesser included instruction, if they request if they indict the case, they

[23:20] can indict whatever charges are supported by the evidence, even if the evidence is not

[23:24] strong. And so putting in the defendant in a worse position by forcing him to

[23:28] conceive the issue that the state has, that the state has presented in order to

[23:35] even get that defense is just not just in light of what the state, what the state

[23:41] has the opportunity to do. And in fact, and in civil cases, we don't require that

[23:45] either. So I would ask this court to just prove that line of case law and the court

[23:51] appeals and say that the defendant doesn't have to admit anything and I'll turn it over

[23:54] to Mr. Peel to address the inconsistencies.

[23:57] Thank you, Ms. Carl.

[24:01] Thank you, Your Honours.

[24:02] May I please the court?

[24:04] I would like to piggyback off that last line of thought that the justice is where I think

[24:09] we're wisely pointing to is I don't believe that there is going to be a cascade effect

[24:14] if we ultimately apply the slide evidence standard here simply because trial court judges

[24:19] in the state of Georgia have been applying that standard for years.

[24:22] We're not asking this court to impose on them some sort of foreign obligation that they're not familiar with.

[24:28] I think ultimately the trial court judge has been making slide evidence determination.

[24:32] Well, I mean, that's not an answer because that's a question of law.

[24:36] We've said so it's not anything we defer to, so trial courts have been doing it.

[24:42] They have to apply the law correctly and the question is, well, and they've been applying these

[24:48] Court of Appeals cases where if the defendant didn't somehow positively admit it, you didn't

[24:54] get the instruction.

[24:55] If we switch to a pure slide evidence standard and you can establish slide evidence by the view

[25:05] that the jury could disbelieve some other evidence, and I don't, I'm trying to figure out

[25:10] how you draw a line that, and I won't.

[25:13] And I won't.

[25:13] And that you could get self-defense in every single case.

[25:16] I will concede it's difficult, especially Mr. Pennington's case, because if you actually look to what the affirmative defense is, the affirmative defense is an absence of evidence.

[25:27] In Mr. Pennington's case, Mr. Pennington was in a shed with two other individuals, and there was an active methamphetamine cook going on.

[25:35] The police came, Mr. Pennington signed a statement, let them search they found the drugs.

[25:41] His defense at trial was, it wasn't made of the other two, but even if it was, I didn't intend

[25:46] to distribute.

[25:48] Now, the affirmative defense is one that has three elements that say there's an absence

[25:53] of these three elements.

[25:54] Number one, everyone in the residence was a minor.

[25:59] Number two, it was all conducted in a residence and there's no evidence that was conducted

[26:02] outside of the residence.

[26:04] And number three, there's insufficient evidence that was conducted for financial gain.

[26:08] So, the affirmative defense, in this case, is not a certain anything positive, it's saying

[26:12] the state may have proved some distribution, but they didn't improve, they didn't

[26:17] prove it.

[26:17] Let's assume that the evidence, all the positive evidence was that there were a bunch

[26:23] of adults there.

[26:28] And can the jury, can you get an affirmative defense by saying, although all of the evidence

[26:34] presented is that there were adults there the jury could

[26:39] disbelieve that and I'm sorry the evidence was there were

[26:46] juveniles here right that's what the state needs to prove to

[26:49] yes sir yeah so all the evidence is or only juvenile sir can the

[26:54] state can you get a affirmative defense by saying well the jury could

[27:01] there's no evidence whatsoever positive evidence that it was only adults, but the jury could

[27:08] just disbelieve all the evidence that they were juvenile, sir.

[27:13] At 16 juvenile witnesses, it was a big party and they all said, we were there and I'm 12 years old.

[27:20] I think it is quite difficult. I mean what we have is we have our general assembly that is passing this

[27:25] this affirmative law, this stating we don't want to criminalize anyone just because they happen

[27:30] to be near school.

[27:31] We want to make sure it truly is this.

[27:33] So I guess I don't know if I have an answer to that specific question.

[27:36] I don't foresee the slippery slope that I'm hearing.

[27:40] But that means the slippery slope, right?

[27:42] So in any case, where the state is trying to rebut this defense and they show that there

[27:50] was a juvenile there by having a couple of juveniles come and say, we were there

[27:55] and I'm 12 years old. Do you still get the affirmative defense on the theory that the jury

[28:02] could disbelieve that, believe the opposite, that these kids who are 4 feet tall and look

[28:07] like they were 6 years old were actually 84-year-old adults?

[28:13] In that particular case, I don't necessarily see the harm in giving the jury that affirmative

[28:18] defense. If they want to rule on that issue, it just protects the verdict. Then this

[28:22] on a PO can say the jury did consider those facts and it was ruled against it. So it is not

[28:27] error.

[28:28] It seems to me that part of the standard that we usually employ in the Jackson V. Virginia

[28:33] efficiency review might actually come into play when we speak of slide evidence. What we

[28:39] might mean is slight evidence from which a rational person could find whatever the fact in

[28:48] question is. And it might be that in Justice Namious's scenario, that the trial judge

[28:54] could easily conclude that no rational person could infer from that evidence that these

[29:01] were adults.

[29:04] And so it would allow the trial judge to kind of take into context the trial

[29:08] judge's own observations of the body language of the witnesses and their demeanor.

[29:13] And thank you, Justice Michael. I think that's much more eloquently what I was trying to

[29:18] I mean, I think that our superior court judges are capable of doing this, but you don't get

[29:23] to evaluate credibility for slight evidence.

[29:27] You take the credibility in the light most favorable to the party asking for the instruction.

[29:32] So I can make the hypothetical harder.

[29:34] Let's say all the witnesses, you know, the state calls eight, 17-year-olds,

[29:39] who testify that they were there in their 17-year-old.

[29:42] And can you get an instruction because the jury simply could disbelieve all of that

[29:50] believe the opposite, which we say in some context, and get an instruction?

[29:56] It seems like your answer is yes.

[29:57] I am.

[30:00] My answer was kind of limited to the facts of pending tense case, so I guess I could file a supplemental

[30:06] brief on that issue and explore a little bit further.

[30:08] All right, on the spot.

[30:09] I can't think of anything.

[30:10] Well, thank you.

[30:10] Just by your case, it's not just deciding your case, it's deciding that hypothetical

[30:15] case as well.

[30:17] Yes, sir.

[30:19] What I would like to point out, I think, about kind of the overarching policy that I see is,

[30:27] we always have to be asking ourselves, what is it that we are trying to protect?

[30:29] against, and I believe fundamentally, I mean, the, the, the, the superior court judge in our case. I mean, he said it. This guy didn't take the stand. He didn't testify. He's not entitled to this affirmative defense. So we're, we're always trying to protect against this kind of absurdity that we think a defendant might come into court and say, why didn't do this? But if I did, then I'm entitled to at least this defense.

[30:52] But I pointed out my brief and I think it's something to keep in mind in the background here is that

[30:58] That's a self-panelizing behavior just as Scalia said that in the United States Supreme Court in a concurring opinion

[31:04] Because we don't need to stand on guard for this. This is self-panelizing.

[31:09] People will forgive a murder periodically. Jerries will do that, but they don't forgive liars.

[31:14] And nothing goes to your credibility and attacks it more than someone who says,

[31:17] I didn't do this, but if I did, I mean, I point out I mean, if I did it was the title of Mr.

[31:23] Simpson's book, which is, so we're trying to correct, I believe, a harm that's not really there.

[31:31] Jerry's are capable of looking at these facts and saying, he can assert this from a defense line.

[31:37] I think the problem that we're concerned about is there's a difference between harms that are very unlikely,

[31:41] which is what you're describing and harms that are never there, which is not this.

[31:47] that we hear enough cases that if a harm is very unlikely, we'll still see it at some point.

[31:54] Well, that's a question. I mean, it is a problem. We say we've got a lot of cases saying defendants

[32:01] can raise inconsistent defenses. The most classical when we see a lot is, I shot them in self-defense

[32:08] because I was scared, but also I shot them because I was mad and I get voluntary manslaughter defense.

[32:14] Can we, could we say, as a matter of law that if you ask for both of us and the jury

[32:22] convicts you, it's harmless air that if you, well, if you ask for both and you didn't

[32:26] get them both, it's harmless air because the jury would have found you guilty for being

[32:32] a liar or disbelieved whatever your defense was if you ask for two things that are completely

[32:39] contradictory?

[32:41] Again, I don't necessarily see that that's a problem.

[32:45] I mean, in our civil cases, we go this all the time.

[32:48] So if you assert inconsistent defenses and you don't get two instructions,

[32:56] we can say

[32:56] it's harmless because as you got into instructions, jury wouldn't have believed you because

[33:01] they're inconsistent.

[33:03] I see what I see.

[33:03] I see what you're saying.

[33:04] So it would be error.

[33:05] We do not get both your instructions, but it would be kind of automatically harmless error

[33:12] because when you assert inconsistent instructions, it's just as clearly a said, it shows

[33:16] you're lying about everything, which would be us on appeal, making some sort of credibility

[33:22] determination in the course of concluding that error was harmless, which traditionally we don't

[33:27] do any credibility determinations on appeal, right?

[33:29] Yeah, that's correct, I mean, I don't think the court necessarily needs to make a credibility

[33:35] determination, what I was getting at is, we need to ask why are we not giving jury instructions

[33:41] to people who are asking for them, where there is slight evidence that perhaps they're entitled

[33:45] to it.

[33:46] If the harm is jury confusion, which is what appellate courts usually stand guard against,

[33:51] I think Justice Scalia's point is, well, taken.

[33:53] There is no jury confusion.

[33:54] But I think what you are saying is your referencing slight evidence, I don't think we have

[33:57] a per se problem without the question is what can constitute the evidence under those circumstances

[34:02] under this new rule that you're proposing?

[34:03] I mean, that's really the rub.

[34:07] Well, I think if there is slight evidence of it, I mean, it's kind of, I know it's circular

[34:12] lotchick, but there's really no other way to say it.

[34:15] I mean, in the facts of Mr. Pennington's case, there was testimony that everyone was over

[34:19] the age of 18.

[34:20] There was testimony that it was confined to a residence.

[34:23] And there was no evidence of any cash or scales.

[34:26] They found we call them baggies whenever it's criminal case, but it was a box of

[34:29] block banks that the guy had in his house.

[34:31] And in El Toids 10, and it looked like he had personally consumed it.

[34:34] So there was evidence that he had not been manufacturing this method in Federmain for

[34:39] personal financial gain.

[34:41] You take all three of these together.

[34:42] The jury was deprived of the ability to do it because the trial court said, and I quote,

[34:47] none of the defendants testify.

[34:49] He based it specifically on the fact that a defendant needs to take the stand and affirmatively

[34:54] testify to weigh this fifth amendment, right, his rights remain silent, take the stand

[34:58] and affirmatively testify in every case in which an affirmative defense is asserted.

[35:03] And there's no courts that hold that even at the federal level where the burdens of persuasion

[35:08] can be shifted, unlike in Georgia law, where the defendant only has a burden of production.

[35:14] At the federal level there's no case that says the defendant has to take the stand and testify.

[35:19] That simply cannot be the rule. And that's what Mr. Pennington was faced with.

[35:23] evidence in the state's record was there suggesting that he was entitled to this or

[35:28] from their defense.

[35:30] Reasonable minds could differ and perhaps the standard, you know, could reasonable minds

[35:35] differ.

[35:35] I don't know how slight evidence is defined uniquely, but the point being that in affirmative

[35:41] defense in this case was deprived of this defendant.

[35:45] So I see my time is kind of coming to a close, so I would say this, in my brief, I attempted

[35:51] To point out what Mr. Blackwell, or Justice Blackwell, excuse me, sir, pointed out is that I do not believe the jury instruction itself is wrong.

[36:01] When you read it and you read it very carefully, I believe he is correct.

[36:07] And affirmative defense is one which admits that it's wrong. The defense itself is the thing doing the admission.

[36:13] It's a logical game and it's an instruction that I believe lawyers have handed down to judges who are also lawyers.

[36:20] and we understand that. But there's confusion there. I'm not necessarily saying we need to

[36:26] revise the jury instruction in its entirety, but I do believe there should be clarification there.

[36:32] That's simply, the rule is, an affirmative defense is one where there's really no logically

[36:38] speaking, there's no objection necessarily made. We're not contesting it. The defendant can still

[36:44] put the state to its burden and say, you have the duty state of proving every element of this

[36:48] defense. And then when there is evidence still go ahead and assert that affirmative defense,

[36:53] if it's properly raised from the state's evidence, that concludes my statements.

[36:58] Thank you, Your Owners.

[37:12] Mr. Chief Justice, may it please the court. My name is Morgan Kendrick. I'm the Assistant

[37:17] District Attorney with the Griffin Judicial Circuit. I represent a police state of Georgia

[37:22] in the McLean of our state case. Seated with me at the table is Mr. Joshua Smith. He's

[37:28] also in Assistant District Attorney, he's with the Augusta Circuit, and he represents

[37:31] the Pellie in the Pinnington versus the State case.

[37:37] As to this court's very first question, which is what if anything must a criminal defendant

[37:43] admit in order to assert an affirmative defense?

[37:47] Appellant just argued that a defendant should not have to admit anything in order to raise an affirmative

[37:51] defense.

[37:53] Yet this will depend on the facts and evidence.

[37:57] OCDIA 1613 provides that an affirmative defense means, with respect to any affirmative defense

[38:04] authorized in the title, unless the state's evidence raises the issue, invoking the alleged

[38:08] defense, but if it must present evidence there on to raise the issue.

[38:14] So this means that the state's case may, indeed, have evidence to support an affirmative defense

[38:19] charge. However, if it does not, then the defendant will have to present evidence if he wants

[38:26] to raise this defense. And this can come in through several ways. He can take the stand,

[38:32] he can call either witnesses on his behalf.

[38:35] So, what it would be fair to say then that the state says you don't have to admit anything to

[38:41] raise an affirmative defense unless you need the admission to establish some sort of basis for

[38:48] there's no affirmative defense.

[38:50] Well, the very nature of an affirmative defense,

[38:53] your honor is one that admits the act.

[38:57] So while a defendant may not necessarily

[38:59] need to take the sand and testify by raising this defense,

[39:03] a defendant is a defense that is admitting this act occurred,

[39:08] but there's a reason for it.

[39:11] But I mean, this is a question because of the way

[39:14] It's framed, is it your position that if the defense lawyer says, my client is asserting

[39:25] self-defense, that is, I guess, slight evidence, kind of defense lawyer by making arguments,

[39:34] does that create slight evidence?

[39:36] No, your honor, it does not.

[39:39] The evidence has to, there must be evidence presented during the trial, and again, it can

[39:43] come in through the state's case, perhaps the defense attorney may get in certain evidence

[39:49] through cross-examination, or, again, if there is no evidence presented during the state's

[39:55] case, then the defendant that burden will be on him to produce the evidence.

[39:59] Can I defend that raise

[40:03] two or more affirmative defenses that are not only inconsistent

[40:08] that are, in fact, mutually exclusive?

[40:10] As long as there's evidence to support each defense, I believe that the state would suggest

[40:17] that yes, as long as there's evidence, the defendant can present as many inconsistent

[40:22] defenses that the evidence does support.

[40:25] What about if there's a lack of evidence with respect to a piece that is required for the affirmative

[40:30] defense, but not for the crime?

[40:33] As to say, evidence that there were no miners present is required to assert an affirmative

[40:40] defense, the state didn't say anything in its case.

[40:44] Does the defendant have to produce evidence that no miners were present to satisfy that

[40:51] element of the affirmative defense?

[40:53] I believe in that situation, yes, Your Honor.

[40:56] Why would the defendant have the burden of demonstrating the absence of something?

[41:03] I'm not precisely familiar with the fact that Huntington's case, but it's my understanding

[41:08] that that's just statutory your honor.

[41:11] And so if that is something that does not, now the state has the burden of proof, of course,

[41:20] but if there's an affirmative defense with the defendant would like to raise and that

[41:24] evidence does not come out during the state's case,

[41:27] then the burden of production to produce that evidence will

[41:30] fall on the defendant.

[41:32] But if, before you're looking for a sea of absence of evidence,

[41:35] like there are no juveniles here, the state puts on its case,

[41:40] and there's no evidence, there is evidence,

[41:43] all the state's evidence, there are no juveniles here.

[41:46] Why is that not enough to say there are no juveniles here?

[41:53] You can have a real burden shifting problem, potentially, if you side the state has to put on more.

[42:02] I mean, if the defendant has to put on more.

[42:05] There aren't that many affirmative defenses that are negative like that, but there are a variety of.

[42:13] And that is a good point, you're on, and it's one that I have not fully considered.

[42:18] And I would leave, of course, I'd be happy to.

[42:20] Let me turn you back to McClure's facts.

[42:22] I know that's more familiar to you.

[42:25] If Mr. McClure threw evidence, and through evidence, it's otherwise, in the case, or his

[42:31] testimony, can point to evidence that supports that an aggravated evidence that would support

[42:37] of each of our aggravated assault is in the record, it's there, the jury has it.

[42:41] But not as it's alleged, specifically in the indictment, can he assert affirmative defenses

[42:49] around the, again, the acts of an aggravated assault that he is willing to admit to.

[42:59] I believe that the case law, that's out there thus far, does say that as long as the general

[43:05] elements of the offense are admitted, then yes, I believe that he would be, and so he would be

[43:14] able to pursue, essentially, really inconsistent defenses by saying, I committed what could

[43:22] be characterized as aggravated salt, but not as it's alleged in the indictment.

[43:25] And therefore, I'm going to defend in that, you know, I say you didn't prove every element

[43:29] that you charged, and that while I might have done an aggravated assault behavior, it

[43:35] was for justification.

[43:36] He's allowed to do that.

[43:37] I do believe he has allowed to do that, you're on, that's just based on the case.

[43:40] The challenge with that becomes, when we're talking about how concerned we are about jury confusion.

[43:48] And again, looking to sort of the Jackson-Bevergenian Sefficiency context as the flip side sort of comparison.

[43:56] Under Jackson versus Virginia, we say there is sufficient evidence to support a conviction if the evidence

[44:05] supports the commission of a crime and a manner different from how it was indicted.

[44:10] So long as the jury was also instructed, albeit erroneously, on that alternative theory.

[44:16] That is not a sufficiency problem, it may subject the prosecution to a demeur, but if

[44:22] the demeur wasn't filed, that claim is waived.

[44:26] If you apply the same rationale here, you get to the conclusion that you just told us.

[44:32] But then does the jury, does the judge have to charge the jury for purposes of the affirmative

[44:37] defense on this alternate theory of the crime when the jury is not authorized to consider

[44:44] that alternate theory of the crime for purposes of convicting him?

[44:48] And what is the risk of jury confusion then?

[44:51] And I believe that you do raise a very good point here on her because I do see how that could

[44:56] lead to a lot of jury confusion.

[44:58] And again, the case will all here.

[45:00] There's just a little unclear. There are some cases, for instance, Kellon versus the state that this

[45:05] court decided that, at least based on the language in that case, that because the defendant

[45:14] there did not admit to the facts as a legitimate indictment, the actual acts from the indictment.

[45:21] You're still holding as I hear you that the defendant has to admit underlying facts, isn't it?

[45:27] And it meant, yes, Turner, that is correct, however it meant is not synonymous with to testify.

[45:34] So I don't necessarily...

[45:35] So let's say, for example, the defendant takes a stand and says, I wasn't there.

[45:41] He meant that he doesn't admit to anything, I wasn't even in the universe.

[45:45] Another witness takes a stand and says, oh, he was there, in fact, I saw him shoot the person, but he shot himself to fence.

[45:52] He hasn't admitted anything, does he get the charge of self-defense?

[45:57] In that case, you're on our idea, believe that he would, because there is evidence and

[46:01] pursuant to OCDA-61-3.

[46:03] So it's not been based on what he admits there.

[46:06] That's correct.

[46:06] I believe it's just that whatever evidence comes in at trial, if it's enough to support the

[46:11] defense, and he would like that defense, I believe he's entitled to it.

[46:16] It seems to me, Council, that we use admission in two different senses here, one is an evidentiary

[46:23] type admission, and another is an admission for the sake of argument.

[46:30] And I think it's probably important as we get through this case to clearly distinguish

[46:34] between those two.

[46:36] And that is a good point here, on our, because that word does kind of, I think that's where

[46:40] a lot of the confusion does rest with this issue, is what exactly does the word admit to me?

[46:45] Why should we even use that word if we mean something completely different? I think it'd be helpful just to use a different word

[46:52] And while that

[46:54] Is it a good point your honor?

[46:56] We're not we're not making our decision based on an admission of any type. We're the class to actual evidence

[47:02] And that's correct. Yeah, do you

[47:05] Do you think a better way to say it might be that an affirmative defense is one that does not dispute the doing of the act

[47:14] But rather seeks to excuse for purposes of the defense.

[47:20] And that may be a better language, however, this language, this language, this

[47:27] court adopted in 1973 from American jurisprudence, it is a nationally recognized

[47:32] definition of affirmative defense.

[47:34] So you have other states across this country that use that same language.

[47:39] And so it is within this course discretion if they feel that that word is confusing,

[47:43] However, this is a nationally recognized definition.

[47:48] Have any other states experience the same in confusion that we've experienced in Georgia?

[47:52] In the jurisprudence over this?

[47:55] That's a good question, Your Honor.

[47:56] I don't know the answer to that, but was leave of court.

[47:59] I'd be happy to settle right a supplemental brief on that issue.

[48:03] Can I go back to this, the way it's charged versus what you're admitting?

[48:08] So there are two forms of aggravated assault, right?

[48:10] potentially inflicting a violent injury or putting somebody in reasonable apprehension

[48:16] of fear.

[48:17] If the indictment charges the defendant with committing an aggravated assault by shooting

[48:24] somebody with the intent to inflict a violent injury.

[48:28] In the States cases, the defendant shot and hit the victim.

[48:34] Can the defendant come in and say, I'm not admitting to that.

[48:37] I did not shoot the person, but I did pull out my gun and that made the victim fearful and that was because I was scared itself to the fence.

[48:52] So basically asserting a self-defense defense, but it's not tied to the facts the state is trying to prove.

[49:02] And again, I think that's just for the law, is a little bit unclear.

[49:05] There are some cases that seem to indicate as long as general elements of the offense are

[49:11] admitted or there's evidence of that.

[49:13] But that's my question.

[49:14] I mean, when you say general elements of the offense, we often use aggravated assault loosely,

[49:20] but there are actually two different types of aggravated assault and the elements are

[49:25] different.

[49:25] And it may be that the answer to the question is, it is hypothetically possible that

[49:31] defense lawyer could do that, but the much simpler thing for the defense lawyer to do is to say

[49:36] the state has, in fact, not proved the theory of aggravated assault that is charged.

[49:42] Rather than get into admitting a whole different theory that is not charged.

[49:49] And that is correct. And that will kind of bring me into what's going on with the McClaur case a little bit.

[49:55] And you're on, there's one thing that admission does not mean is an outright denial.

[50:02] And so that's what we have in the MacLore case.

[50:05] The appellants did testify, and he did not admit to ever pointing the BB gun.

[50:13] He did not admit to threatening the victims.

[50:16] He only testified that he had the BB gun slung over his shoulder.

[50:20] It's not a hypothetical that the presiding justice just gave.

[50:23] I mean, didn't he just talk about what would happen if you said, you know, I didn't shoot the guy, but I had the gun out and I started to fear for my own life.

[50:32] I mean, how is that different?

[50:34] And perhaps I misunderstood, I'm presenting just as hypothetical and I apologize.

[50:39] But in that case, I believe there's going to be a difference if there's an outright denial, because a defendant...

[50:46] Why?

[50:48] I mean, we have conflicting evidence all the time.

[50:50] We don't say that if there's a conflict in the evidence, you don't get the instruction,

[50:55] we say if there's slide evidence, you get the instruction and let the jury sort it out.

[51:00] Well, really see.

[51:01] Now, if you don't get the instruction and the defendant denied it to go back to a question,

[51:07] it would seem to be fairly harmless because you would require the jury to disbelieve the

[51:13] defendant who got up there and swore under oath that something happened and say the jury

[51:19] disbelieve the defendant, but still found him not would have found him not guilty, but

[51:25] but that's not how we do during instructions, usually. And that's in a defense has to be reasonably

[51:32] raised by the evidence, your honors, and here it does. It has to be slightly raised by the evidence.

[51:38] In fact, we reverse trial courts with some regularity when people mislead them or they get

[51:44] misled into the idea that the evidence has to be, you know, a reasonable now, rather

[51:50] than a tiny bit.

[51:53] And that, and you are correct, just as however, let me back up, though, I do agree with

[52:03] Your Honor, there does have to be evidence.

[52:06] And here, the problem is, a parent just outright denied.

[52:11] I thought you had just finished agreeing with that all that the raising of the defense itself

[52:24] does not deny for purposes of the defense, the commission of the crime.

[52:31] But that is not incompatible with the defendant still denying for all other purposes that the defendant committed the crime.

[52:39] Why is it necessary for the defendant to not deny actually committing the crime in order to get the instruction?

[52:50] I think hear your honors based on these facts in this situation, the better his defense was actually one of state did not meet its burden.

[53:02] I did not do what state asked me to do.

[53:04] That was one of his defenses, but he asked for a different defense of self defense, right?

[53:11] That is correct. However, there was no evidence to support that based on his testimony.

[53:16] That he was scared, right?

[53:18] He just said he was scared that's right and other people said he pointed it

[53:22] gun well putting aside whether you have to prove it as charge but other people said

[53:27] he pointed a gun at right that is correct how it why couldn't the jury put that

[53:31] together and say that would be enough for us to find self defense we believe

[53:36] part of we mean again putting aside harmless error we would leave it to the

[53:41] jury to say we didn't believe the defendant when he said he didn't point the gun

[53:45] But we did believe when he said he was scared and you do make a good point you're on or however

[53:51] I think the the biggest distinction again is just the outright in Nile here

[53:56] That seems completely contrary to everything else. You said

[54:03] Let me give you another hypothetical

[54:07] The state in its case in chief presents evidence that includes a video recording that was taken from an ATM

[54:15] where the face of the ATM customer is somewhat obscured,

[54:20] but the state's theory is that this customer is in fact the defendant.

[54:25] And the video depicts three individuals walking up behind the defendant

[54:29] as he's operating the ATM or whoever's depicted there.

[54:32] Walking up behind this person with crowbars, there words exchanged,

[54:36] and then the bank customer turns around and shoots all three individuals.

[54:41] The defendant is charged with three counts of murder, and at trial, the defendant shows up and says,

[54:47] actually, that's not me depicted in the film. I was 500 miles away doing mission work with orphans,

[54:54] and I have 16 nuns here to corroborate my story. That is not me. He can nonetheless raise a firm

[55:00] The affirmative defense of justification, Kenny Nott, and his defense lawyer can argue, that's

[55:05] not him, but whoever's depicted there was just fighting shooting.

[55:10] And then he gets an instruction on self-defense.

[55:14] And I believe just based on the plain language of the statute, as long as there's evidence

[55:18] to support the charge.

[55:20] There's evidence in this case, right?

[55:22] Right.

[55:22] It's not the defendant, but there's evidence from your own witnesses that he pointed

[55:27] the gun, and then there's evidence from the defendant that he was scared.

[55:32] Why, how is that not evidence?

[55:35] Are you saying you can't cobble together evidence to get a jury instruction?

[55:39] Because if we say you can't cobble together evidence, you're not going to get jury instructions

[55:42] on most of the elements of the crimes.

[55:45] And I do understand your honor's point and perhaps I'm not making...

[55:49] Here I think is the point that's confusing us.

[55:52] It seems like your answer that is yes, but then at the same time your answer is, but the defendant

[55:57] can't outright deny having done it. And that's the piece that I at least don't understand,

[56:04] because if there's evidence for each element of slight evidence for each element of the

[56:09] affirmative defense from somewhere else, why does it matter what the defendant says?

[56:15] Based on his testimony, Your Honor, he's just saying he didn't do anything wrong. He was

[56:19] just scared.

[56:20] So in the real world, you guys fight off these instructions, but in the real world, if you just

[56:25] the instruction, you'd argue to the jury that, you know, they're going to say it's self-defense,

[56:32] but why would you ever believe that because the defendant got up there and said,

[56:36] it wasn't that he didn't do anything. And so it's obvious they're just trying to mislead you,

[56:42] jury, because the defendant himself said, that's not what happened. And you would probably win.

[56:48] And it is a good, but you might not.

[56:53] And we do recognize that you have co-council who is probably anxious to come up.

[56:58] Yes, sir.

[56:59] If there's no further questions, I'll pass the podium.

[57:09] May it please the court, Chief Justice, and my colleagues on the bar.

[57:15] I'd like to address some of the questions that were raised by the earlier.

[57:23] The main question is whether just disputing the existence of the act, is that going to

[57:37] forfeit an affirmative defense?

[57:39] And we know from modes versus the state 256 Georgia 83 that the raising of the defense by argument

[57:53] is the only required admission.

[57:57] And so the problem is that jury instructions that every jury receives that the argument

[58:08] of Council is not considered evidence. Now, under the law, sometimes a lawyer's statements

[58:19] can be considered a binding admission, not probably not in criminal cases,

[58:28] there's some

[58:29] cases that adherings in a criminal case, but not as evidence to a trial, very dangerous thing

[58:36] allow what lawyers say for defendants to be dining on them?

[58:41] And even at the hearing, that's only admissible if neither the court or the other side

[58:48] does not insist on further proof.

[58:50] So why is there a problem with saying that what the lawyer says is not evidence?

[58:57] The point is if there is actual slight evidence from the evidence,

[59:04] if you have actual

[59:06] slide evidence from the evidence it was presented by either side in any way that supports

[59:11] an affirmative defense.

[59:13] Why can't you ask for that affirmative defense?

[59:16] Well, you're on.

[59:16] I think the actual admission is important.

[59:22] If you look at the differences in what the state can present, for example, the state does not

[59:30] have to prove motive.

[59:32] the state can prove motive by circumstantial evidence by conduct and circumstances.

[59:39] When you say act to admission, what do you mean?

[59:43] I mean, they're using admission in the evidentory sense or in the argument sense or what?

[59:50] I think it could be argument, it could be admission, but it has to be raised by the evidence.

[59:57] and it does raise the issue.

[1:00:00] In our case, the absence of children or the fact that there's no evidence that the selling of the drugs was outside that particular residents, those were not made parts of the elements of the crime, it was made part of the affirmative defense.

[1:00:23] And so the state has the burden to disprove that affirmative defense beyond a reasonable doubt

[1:00:30] once it's raised and there must be a reason why those elements are part of the defense

[1:00:37] it has to be properly raised.

[1:00:39] And I guess logistically if it was made during an argument, the closing argument, then the

[1:00:47] procedure would be the state would move to reopen the evidence so that the state could

[1:00:52] have her buttole and try to just prove it. But I think that Mr. Pennington's counsel suggests

[1:01:02] that we would have to just prove the affirmative fence prior to even it being raised.

[1:01:13] And I understand the argument that if the evidence itself raises the affirmative fence,

[1:01:20] But a crucial part is the, is the admission, as I said earlier, the state is always trying

[1:01:32] to piece together a picture of what happened during the alleged crime, and that's why

[1:01:40] there's Agatha Christie murder mysteries.

[1:01:43] On the other hand, without disputing the presumption of innocence, the defendant is in a unique

[1:01:50] position to know exactly their motive in committing a certain act. And Kelly versus the state,

[1:02:00] 235 Georgia, Peel 177, Judge Eldridge in his concurrent state that there is always a connection

[1:02:09] between the act and the mental state. And Mr. Smith, where are we going with this?

[1:02:18] Well, in that case, the defendant was charged with pointing a gun up to police officers.

[1:02:26] And he stated, I never pointed the gun, but at the same time, I didn't know the difference

[1:02:31] between right and wrong.

[1:02:32] If you look at what Judge Eldridge, examined was the actual statute of relating to insanity.

[1:02:42] And he examined the statute and said that not knowing the difference between right and wrong

[1:02:46] He's relation to that act, and he argued that it's not relevant if he didn't know the

[1:02:55] difference between right and wrong and relation to some other act, not a legend.

[1:02:59] But that's a slight evident holding.

[1:03:01] That's saying the evidence he presented didn't establish that defense.

[1:03:06] What?

[1:03:07] I mean, you say with some good reason that the state has to be worried about not knowing

[1:03:12] in your case and chief that the defendant will raise an affirmative defense, but there are certain

[1:03:19] affirmative defenses that there are pretrial notice requirements for it, right?

[1:03:24] Insanity definitely.

[1:03:26] Insanity, alibi, alibi, well less, and alibi, if the defendant himself is the only one

[1:03:33] testifying that no notice, if there's no expert witnesses, and those have been created to avoid

[1:03:41] But where they don't exist, defendants are completely free to

[1:03:45] same bag the heck out of the government.

[1:03:47] And so the government presents its case.

[1:03:50] The defendant doesn't say word about self-defense,

[1:03:53] but one of the government's witnesses on cross-examination

[1:03:55] says, well, actually the victim look like he pulled his gun first.

[1:04:03] One that had a 15 witnesses and one other witness

[1:04:08] says in the defendant kind of look scared when he shot the victim.

[1:04:12] And then the state rests in the defense, ask for a instruction on self-defense.

[1:04:18] Do they get it?

[1:04:21] They never said it.

[1:04:22] You didn't expect it, but the way the evidence came out, your evidence.

[1:04:29] Well, if there is a denial that he, I think under some circumstances, they would.

[1:04:38] If I wasn't into guaranteed, there was slight evidence.

[1:04:42] Well, there is one witness who testified the victim pulled his gun first.

[1:04:47] I think the law, in my opinion, states that when there is criminal activity and all

[1:04:54] defenses relate to criminal activity, but we're going to decide that it's not blame

[1:05:00] or the defendant subjectively had a lawful reason for committing the act? I guess the murder

[1:05:11] is different because the state- It's not subjective, right? Self-defense and almost all affirmative

[1:05:18] defenses are objective. It's a reasonable person. That's true.

[1:05:25] And that's why the defense cannot

[1:05:29] that raise evidence related to the mental state, unless they raise the affirmative defense.

[1:05:37] And that rule is created because the defendant's actual subjective reasons for committing

[1:05:45] the act is relevant.

[1:05:48] And I think that accounts for the requirement that to raise certain affirmative defense,

[1:05:53] You do have to make an admission, and as to the questions about whether you should admit the crime as charged or just a crime, I think it depends on the specific type of crime.

[1:06:12] I think if it was a specific intent crime.

[1:06:15] So again, different rules for different kinds of crimes?

[1:06:17] I would think, so there is a defense of abandonment of a criminal scheme.

[1:06:28] I don't think a defendant could say, well, I decided not to participate in this crime,

[1:06:36] but not the crime charge in the indictment.

[1:06:41] Well, I don't think it would be relevant every beginning of a trial that courts that

[1:06:49] the indictment and the defendants, play of not guilty forms the issue that you have been

[1:06:59] sworn in to decide.

[1:07:00] All right.

[1:07:01] You're talking about the round.

[1:07:02] Do me this favor if you can.

[1:07:03] How would you articulate the rule that we should hold?

[1:07:08] I would, I would hold that, or if I was the court, I wouldn't be that presumptuous.

[1:07:14] I would hold that there must be some evidence to support a charge, but there must also be

[1:07:22] some acknowledgment that for the sake of the particular defense, there must be some

[1:07:29] acknowledgment of the doing of the act, the legend, the indictment,

[1:07:37] and I would ask, I'm

[1:07:41] having difficulty.

[1:07:41] Thank you.

[1:07:43] Thank you.

[1:07:46] Both sides have expired in time, is that right?

[1:07:49] Oh, five seconds.

[1:07:51] I'll pay the balance.

[1:07:52] Thank you.

[1:07:53] Thank you.

[1:07:53] Thank you, sir.

[1:07:55] Peterson rules have been invoked.

[1:07:56] Thank you.

[1:07:58] Thank you.

[1:07:59] Council for both sides.

[1:08:00] Thank you.

[1:08:07] For the attorneys arguing on the next case, in the party of Justice Ellington, who is

[1:08:11] disqualified, and you will not participate in this case.

[1:08:58] Thank you, Mr. Chief Justice. May I please the court. The general rule in OCDA-1611-127C

[1:09:06] is that every person with a weapon's carry license is authorized to carry a weapon in every location in this state.

[1:09:14] With exceptions that are not applicable to this case, the so-called off-limits locations, and with the provision that is the subject of this case.

[1:09:22] Now prior to 2014, the provision said private property owners or persons in legal control of property through a lease, rental agreement, license and agreement contract,

[1:09:33] or any other agreement to control access to such property,

[1:09:37] shall have the right to forbid possession of a weapon or a lung on their property.

[1:09:42] Then in 2014, the legislature changed the law with House Bill 60,

[1:09:48] and inserted the word private in that language in three places,

[1:09:51] so now that it reads private property owners

[1:09:53] or persons in legal control of private property

[1:09:57] through a lease, rental agreement contract,

[1:09:59] or any other agreement to control access

[1:10:02] to such private property, so have the right to exclude or reject a person who is in possession

[1:10:08] of a weapon or a long gun on their private property.

[1:10:13] Now, in this case, the mechanical

[1:10:15] garden relies primarily on the Delta versus Coleman case, which has been discussed quite a

[1:10:20] bit in the briefs, and that case holds at least hold as in a state and land less than the

[1:10:26] It has been severed from the fee and classified for tax purposes, as reality, and then goes on to say,

[1:10:35] Delta acquired it and holds it as a private owner.

[1:10:38] Councillor, let me ask you this, if a summing for the sake of the question that a lease

[1:10:43] hold a state held by a private entity is private property for all purposes, can you still prevail?

[1:10:50] Well, yes, we can, because if you go that route, then you'd think and I would have expected

[1:10:59] that the garden would have argued that it is a private property owner using the first

[1:11:06] of the multiple ways that someone can exclude or reject a person, but the garden didn't make

[1:11:12] that argument.

[1:11:13] The trial court didn't find that the court of appeals didn't find that and none of the

[1:11:17] are good that it seems to me that they should have, but why didn't they? Because if you

[1:11:23] rule, as you suggested, that a leasehold interest is private property and the leaseholder

[1:11:28] owns that private property and therefore is a private property owner, then that leaves you

[1:11:33] wondering what did the legislature mean when it also said in legal control of private property

[1:11:40] through a lease? It's completely redundant. It would have been a rendered that language

[1:11:44] of her fluous, and we know that we interpret the statutes not to come to a conclusion like

[1:11:51] them.

[1:11:53] And that also,

[1:11:55] in most places, and very commonly, to mean unruble fee.

[1:12:01] When I say I own my house, that doesn't suggest I have a lease on my house, it suggests

[1:12:08] I own my house in fee.

[1:12:12] So, you know, you might interpret owner to be the owner of a lesser interest, but that is not at all the most common ordinary probably legal meaning of that.

[1:12:23] In fact, the whole existence of rent to own contracts is a example of the natural use of language suggesting there's a difference between renting or leasing something and owning something, right?

[1:12:35] I agree, and that's why I think our interpretation of the statute is the correct one when the

[1:12:41] legislature used that word, it was talking about private property in the common parlance

[1:12:46] and not relying on tax cases.

[1:12:48] Well, so you get into the second part and just as Bethel's question, if you're just relying

[1:12:53] on the second part, if Delta V. Coleman stands for the proposition that a leasehold severed

[1:13:02] from the public, the owner, is private property, do you lose?

[1:13:09] No, because what Delta also says is that that lease holder owns it, owns the private

[1:13:16] property.

[1:13:17] That doesn't answer the question.

[1:13:19] Okay.

[1:13:19] I'm sorry.

[1:13:20] That may be owns in one limited sense.

[1:13:23] That is not owner in the only way that term is used.

[1:13:27] I mean, you do say you can own a easement, right, but when I say I'm the owner, if I say,

[1:13:36] if I'm George of power and I say I own this land where all I have is an easement to have

[1:13:42] my power there, that would be pretty weird, right?

[1:13:46] But you could say it if you were talking about a lease,

[1:13:57] if you were actually talking about a

[1:13:57] at the first part of the statute is irrelevant.

[1:14:01] If a private lease, if a lease hold I got from the government,

[1:14:06] is considered private property,

[1:14:08] doesn't it fall within the second part of the definition

[1:14:10] in the statute?

[1:14:12] I don't think it does, because then the next question is,

[1:14:15] well then, why would the legislature have made that change?

[1:14:19] If you look at the way the statute used to read

[1:14:22] and the way it reads, now the emustiment intended

[1:14:24] to make some kind of change.

[1:14:25] And if, in the example in this case, if the garden was in legal control of property through the lease prior to 2014, and then they became the in legal control of private property through the lease as you're suggesting nothing, nothing would have changed. There's no reason for the legislature to have done that.

[1:14:46] Nothing would have changed for the garden, but the argument on the other side that I'm interested in your response to is under the old statute.

[1:14:53] a government could get out from the restrictions of the carrier.

[1:15:00] Law by leasing government land from a private holder. I mean, the way the statute was worded before,

[1:15:10] it just said a personing legal control of property through a lease. So if I may govern it,

[1:15:16] and I get control of property through a lease, then I'd be able to keep gunna carry yourself.

[1:15:23] Right. I think that would be a good argument except you have to read that statute in conjunction with all the other statutes and in particular 1611173, which was in an existence prior that prohibited cities and counties from regulating carrying firearms.

[1:15:41] But you would also have to read that against the background rule that typically person does not include government unless it's best thought, right.

[1:15:48] I think that's correct. Yes.

[1:15:49] Let me ask you this, this kind of parallels an issue we discussed in the previous cases we heard this morning in which we had some difficulty because admission was being used in different senses.

[1:16:02] It seems to me property is some time private property is sometimes used in different senses.

[1:16:07] Sometimes it refers to the premises, the land, the thing that is owned.

[1:16:12] Sometimes in the tax context, however, it refers to the legal ownership interest in whatever it is that is owned.

[1:16:21] Where we distinguish the fee interest in a piece of land from the leasehold interest in a piece of land, where the fee interest may be public,

[1:16:30] but the leasehold itself may be private.

[1:16:33] On the other hand, it seems to me pretty clear that in this statute private property means the premises, the physical premises,

[1:16:40] not any sort of legal interest, because it goes on to say that a person and legal control

[1:16:48] of private properties, you'll have the right to exclude from the private property, a person.

[1:16:55] You don't exclude somebody from a fee interest.

[1:16:58] You don't exclude somebody from a leasehold interest.

[1:17:01] You exclude them from the premises.

[1:17:04] I agree with that.

[1:17:05] And I think, when you look at all the other options under the statute,

[1:17:11] including the, it's got the lease, the rental agreement,

[1:17:14] contract, or any other agreement to control access,

[1:17:18] if the legislature intended to follow the Delta kind of thinking

[1:17:22] where you've got lease hold interests and then everything else,

[1:17:26] which would be just use of Brooks generally, I think.

[1:17:29] It would have been easier to say it that way, rather than list all these out.

[1:17:32] I think by listing all these out, the legislature intended to be looking at not the possessor

[1:17:40] of the property, but the owner and fee, so it was calling property private property when

[1:17:46] I was owned and fee by a private entity, and if it's least, then the lesser of that private

[1:17:53] property has the same benefits that the private property owner and fee does to exclude or

[1:17:58] in the 2004 amendment, the legislature left 1611-135, and it's previous one.

[1:18:09] In other words, it did not insert the private.

[1:18:12] And that's the weapons I believe in.

[1:18:14] It's a place of employment, paragraph.

[1:18:17] So how would this language apply without the word private?

[1:18:22] The inserted words, private.

[1:18:24] Just as about what you said 2004, do you mean in the 2014 amendment?

[1:18:28] That's okay.

[1:18:28] All right.

[1:18:29] And what was the question?

[1:18:32] We have a comparison paragraph, 1611135.

[1:18:36] The parking lot.

[1:18:37] That's correct.

[1:18:39] Where where private was not inserted.

[1:18:41] In other words, the otherwise language more or less tracks between the paragraphs.

[1:18:45] How would if the private had not been inserted in 127?

[1:18:50] How would it be, how should we interpreted it before 2014?

[1:18:53] I guess is the right way to ask that.

[1:18:56] I understand the question, but I'm not sure,

[1:18:59] see the relationship to 135.

[1:19:01] But the general assembly presumably,

[1:19:05] not always a great presumption,

[1:19:06] chose one and not the other.

[1:19:08] I see, okay.

[1:19:09] Well, first of all, I think 135,

[1:19:11] it wasn't changed here, right?

[1:19:13] But it already included private employers.

[1:19:16] So it already covered their parking lots,

[1:19:18] and I don't think a change was needed.

[1:19:20] But even if they were releasing their parking lot, for example, from a government.

[1:19:25] Yeah, because excuse me, yes, 1611135 applies to private employers and government employers

[1:19:33] already.

[1:19:34] The way it was worded before, and it wasn't necessary because it already covered that.

[1:19:39] So let's talk for a second about the concurrence below raising the potential for some sort

[1:19:46] of taking issue.

[1:19:47] and I don't know that this is necessarily best framed

[1:19:49] as a taking issue, but when I own private property,

[1:19:54] a core right as a private property owner

[1:19:57] is the right to exclude everybody else

[1:20:00] from my property if I feel like it.

[1:20:03] When the government passes a law, saying,

[1:20:05] no, you got to allow these people on.

[1:20:09] Hasn't the government taken something from me?

[1:20:13] If you're talking about, when you use the word taken,

[1:20:15] if you're talking about an Fifth Amendment

[1:20:17] taking some kind of context? Maybe it's a taking issue. I'm skeptical of that, but it feels

[1:20:23] like it ought to be something. Okay, I'll talk about the taking issue if you want. If you just

[1:20:27] want to back off of that and just say, may little tea takings, sure the government has done

[1:20:31] something to give you some slight diminished value in your property, but the government does it all

[1:20:36] the time. Let's say the government passes a law saying that John Monroe has to admit fans of the

[1:20:47] in during the fall.

[1:20:51] Has your, has, has, has some legal right of yours been violated?

[1:20:56] Certainly. What right is that? Well, I have the right to exclude people who, who, who, who,

[1:21:02] support, and do you think that would be actionable? Do you think that would be actionable?

[1:21:10] Maybe after the, uh, sovereign immunity bill is signed. So, so, if I, as a,

[1:21:18] owner of private property as someone who has leased property from a government, at a time when

[1:21:27] the government was not prohibited from excluding people carrying guns.

[1:21:35] If I had the right to exclude people carrying guns and the government passes a lot saying

[1:21:42] now I don't, why is that different?

[1:21:45] It's, I mean, the difference is there's, and we're really treading on the whole taking

[1:21:51] the issues, and maybe we need to talk about it in that context.

[1:21:54] The government makes regulations that impair your property rights all the time.

[1:22:00] I'll give me one where the government prohibits who a private person can exclude from their property.

[1:22:09] I can give you examples of the opposite.

[1:22:13] It's for 140 years, the government, the state,

[1:22:17] banned churches from letting people with guns on their property,

[1:22:21] which is kind of the other side of the coin.

[1:22:24] That's been modified now, so that the general law still is.

[1:22:29] Churches are people are banned.

[1:22:31] It's crime to go into a church with a firearm.

[1:22:34] Churches are still banned, but now it's been modified.

[1:22:36] I think you're just trying to allow it.

[1:22:38] Well, let's get public accommodations out.

[1:22:41] Let's get homeowners.

[1:22:44] I mean, because you could be a homeowner

[1:22:47] and follow under your definition, right?

[1:22:50] If I live in an apartment that's

[1:22:52] least on development, government land,

[1:22:56] I under your view, I cannot man people with guns

[1:22:59] from my house.

[1:23:01] I wouldn't work it quite that way.

[1:23:02] I mean, when you're talking about private residential

[1:23:05] property, or residential property, it's not the same as in the case that we have at bar.

[1:23:13] Your definition is the same as your definition is if it's government-land under it.

[1:23:19] No, I agree.

[1:23:20] I'll get to your point.

[1:23:21] I'm not trying to side-step it.

[1:23:23] In the case that we have here with a garden, it invites the public.

[1:23:29] It's open.

[1:23:29] I'm going to get to your point.

[1:23:30] I promise I am.

[1:23:32] I get what you're going to say about gardens.

[1:23:34] you could say about public accommodations and common carriers, but your definition doesn't have

[1:23:39] that limit.

[1:23:39] Your definition is, my house sits on state Parkland or state forestland.

[1:23:49] I'll pretend I've already, can the state forest me?

[1:23:52] I don't want people with guns being able to come in my house.

[1:23:56] The difference, I understand what you're saying.

[1:23:58] The difference is, if it's private, if it's residential property, you're not just inviting

[1:24:03] the public on, you're only inviting people you want.

[1:24:05] But there's nothing in the statute that sort of gives rise to that kind of distinction.

[1:24:14] If there's somebody who, let's say there's some, I've invited a group of people over for a party,

[1:24:22] and one of them brings a gun with them, and I kick them out because they brought the gun.

[1:24:29] Under your reading of the statute, they could say no, and when I call the police to have

[1:24:35] them remove for trespass, they would actually have a legal right to be there.

[1:24:42] I think that, I think you're right if the reason you ejected them was for the carrying of

[1:24:47] the gun.

[1:24:48] What I was going to say to Justice now is how has that not violated my property right to eject

[1:24:56] whoever I want to inject. I think the difference is if you're living in public housing,

[1:25:02] you're accepting less control over the property than in public housing. It's my,

[1:25:07] well, unless you want to say that all the people who live in an apartment building on

[1:25:13] development authority land or or a 99 year ground lease, right? So I have a $2 million

[1:25:19] dollar lay cows, that's government housing now.

[1:25:26] If you're talking about property that you're

[1:25:28] leasing from the government, yes.

[1:25:30] Isn't it a shock to a lot of people?

[1:25:32] Well, I mean, isn't it so that the disability in the case

[1:25:37] flows from government as landlord?

[1:25:39] That's correct.

[1:25:40] That is to say, it's not your home.

[1:25:43] It's a home that you hold the leasehold to.

[1:25:45] That is a separate estate, but that means there's more than

[1:25:48] on a state present.

[1:25:49] That's right.

[1:25:49] And so the disability in that case flows from the fact that where the city could have sold

[1:25:54] the land or any government entity could have sold the land and it'd be privately owned

[1:25:58] and all of the rise that we're talking about here would adhere to the owner, the sole owner,

[1:26:03] in this case you have more than one owner.

[1:26:06] That's right.

[1:26:07] But she's were trying to define who is the owner contemplated by this paragraph.

[1:26:11] Although there are many very large high-rise buildings in Atlanta, Midtown, downtown

[1:26:17] bookhead that sit on 99-year grandlaces from the city or development authority or some other

[1:26:24] public entity. If a condo development is built on the 40th floor of one of those high rises,

[1:26:31] and I buy a condo, I don't typically think of myself as having the government as landlord,

[1:26:43] just because there's a ground lease that may expire 78 years from now.

[1:26:46] Well, in your example, Justice Peterson, I think you own that condo and fees, so I think that is your private property.

[1:26:53] But, Mr. Chief Justice, if I may, I'd like to reserve the rest of my time for a moment.

[1:26:56] Thank you.

[1:27:06] Good morning.

[1:27:06] May I please the court.

[1:27:07] My name is Jim Grant, and I am here on behalf of the Botanical Garden.

[1:27:12] The statutory construction issue that you all have been asking questions about is obviously at the heart of this.

[1:27:19] And I think Justice Nami's point is exactly the right one, and that is to say,

[1:27:23] When you think of owners in the customary usage of the term owner you think of the fee owner I own my house

[1:27:30] I think of it that way and a state in land, which is what the botanical garden holds here because it's in the state for more than five years is

[1:27:39] a distinct property right that it won't

[1:27:42] It can sell that a state for years. It is alienable under Georgia law in under title 44 and

[1:27:49] And therefore, those two phrases have independent meaning.

[1:27:53] The first part of the language respects the fee and the second part respects folks who have

[1:27:58] leases, like the botanical garden and the state for years, more than five years.

[1:28:03] And it gives the botanical garden the right to exclude because it is a private entity

[1:28:09] using that property for private purposes.

[1:28:11] Does that rationale while wouldn't the pre 2014 language have accomplished the exact same thing?

[1:28:18] I think it did. I think it did. But there was none the less a change. So what is the

[1:28:23] 2014 change accomplished? Okay. Because we don't read statutes that go in and change something

[1:28:31] specific as having done nothing. Absolutely. That's absolutely right. And I think that the same

[1:28:35] result obtained under both, but there was none the less a change. And the change was alluded

[1:28:40] to by somebody already. And it's this. It's if you have a public owner, excuse me, if you have

[1:28:46] private owner, leasing to a public entity. That was not contemplated in the prior version of

[1:28:52] the statute because it did not distinguish between private owners in the prior version.

[1:28:57] It said, persons in legal control of property through a lease, and it could have either been

[1:29:03] a private entity controlling that property through a lease or a public entity, controlling that

[1:29:08] property through a lease, and public entities, the overall presumption of the statute, except for the

[1:29:13] specifically enumerated places like churches and jails and the like are now presumed to allow.

[1:29:19] But why is that a reasonable reading given that we ordinarily read the word person's not to include government?

[1:29:25] Your honor, I think that the change was intended to implement the presumption switch that happened in 2010.

[1:29:34] We went from a presumption of you couldn't carry firearms even with a license in many, many public places to a presumption that you now could.

[1:29:42] and 2010, except for the specifically enumerated eight places or so.

[1:29:47] That seems like there isn't that seem like the more strained interpretation as between

[1:29:52] some completing scenarios where public rented from, you know, private owners as opposed to

[1:30:00] The way normal people think of renting property. I'm renting from someone. That's the owner. So it was a private owner or a rented me that.

[1:30:11] Right. I mean, the owner, of course, of the fee is whatever the nature of the owner of the fee is. There's all kinds of different owners.

[1:30:19] A fees that least. But in this case, we have a private owner of the estate for years and a public owner of the fee.

[1:30:27] I mean, I suppose it is, the way you're describing it, you could have said the statute,

[1:30:34] you'd say what statute could say, but private property owners, leaseholders.

[1:30:41] But instead, persons in legal control of property, in this case, then we added private property.

[1:30:47] To me, that's describing the property in its pre-leased status, because I mean, control of

[1:30:57] property through the lease. Well, you control the property because of the lease. I mean,

[1:31:03] the right to ejected that a tenant has is because he is the tenant, and the only way

[1:31:08] he gets that right is through the legal instrument known as a lease. Just as black, but clearly

[1:31:13] at least what is in his state. I mean, I think we all, we're not arguing that the lease

[1:31:17] is always a separate estate, and then somebody, it's in reality, you know, but the question

[1:31:22] is this, you know, comma sequence that says, you know, persons in control of private property

[1:31:30] through a lease. Does that, could that be replaced, supplanted with leaseholders?

[1:31:39] Is that

[1:31:39] mean the same thing?

[1:31:44] It doesn't because of that public distinction where you could have a public

[1:31:48] leaseholder who can't exclude. And so that, I think, is the distinction that was accomplished

[1:31:53] by the two of us.

[1:31:53] You're reading property to go to something just as Blackwell asks Mr. Monroe about.

[1:31:59] Property here is not in this generic, any property interest.

[1:32:03] It is pretty clearly talking about the physical premises.

[1:32:07] No, I don't think you can't eject somebody from your leasehold.

[1:32:12] Of course not.

[1:32:13] Right.

[1:32:13] You've got them from your place.

[1:32:14] Of course not.

[1:32:15] I mean, much less I use the fruct.

[1:32:17] Of course not.

[1:32:17] But you can't eject somebody from an intangible thing.

[1:32:22] I inject somebody from my home.

[1:32:24] I inject somebody from a bug.

[1:32:25] I think this is the critical distinction.

[1:32:27] This was the answer to Justice Black was question.

[1:32:30] That right springs from a legal right.

[1:32:33] You have to first own that property legally to reject them.

[1:32:36] You first have to have that leasehold right

[1:32:39] to the tenancy to reject them.

[1:32:41] It's not merely the fact that the dirt is there

[1:32:43] and you can take someone off you.

[1:32:45] Right.

[1:32:46] So the second provision, you can either own the private property

[1:32:50] in the before the war, or if you're after the war,

[1:32:55] you don't own the private property,

[1:32:56] but you're in control of the private property

[1:32:59] through a leasehold, but what you're in control of

[1:33:04] is not the leasehold, it's the premises.

[1:33:08] And then you add the word private before it.

[1:33:12] And I mean, the question is, if you say,

[1:33:15] though gardens are a private premise,

[1:33:18] Then why wouldn't you fall under the first provision that you're the owner of the private premise?

[1:33:25] I mean, the premise is still the city of Atlanta.

[1:33:29] The premise is owned by the city of Atlanta.

[1:33:31] What the garden holds is in the state for years, which it holds privately as a private 501C3 corporation.

[1:33:38] But the person in control of the premise, if you're reading property to read premise and you're saying,

[1:33:44] a person in control of private premises.

[1:33:48] But you just said the premise itself is not private.

[1:33:51] The premise is owned by the premise is the city

[1:33:55] that land is premise.

[1:33:56] There's no way we get around the fact

[1:33:58] that this property is ultimately owned by,

[1:34:00] I mean, this is probably the city of Atlanta.

[1:34:02] But it is controlled by lease,

[1:34:05] it's controlled by the garden through a lease.

[1:34:08] And that inevitably, that's in fact the exact language

[1:34:11] The statute says, probably property through a lease, but the problem is you don't have

[1:34:18] private property through a lease, you have public property through a lease, and what you hold,

[1:34:22] the lease is private. We all agree to that, right? I don't think anybody's arguing otherwise.

[1:34:28] But the property that you hold is public.

[1:34:36] It's hard to reconcile that concept within the Delta case, because the Delta case says this very, but not the Delta case.

[1:34:44] You're not taxing the land itself.

[1:34:47] Taxing itself.

[1:34:49] You're taxing the legal interest in those.

[1:34:51] And that's how you can separate the taxability of the fee from the taxability of the leasehold.

[1:34:57] Correct.

[1:34:57] In any of Lauren case like this, you tax the fee, which is really just the reversionary interest.

[1:35:02] And you taxed the leasehold for the folks handling the leasehold, but that is nonetheless private property.

[1:35:07] That leasehold becomes private property when held for Delta, maybe only for 50 years or 99 years or seven years,

[1:35:14] but it is nonetheless during the dependency of that lease private property.

[1:35:18] Right, but in this statute, it seems that when the word property is being used,

[1:35:22] it's not being used in the legal interest in something since it is being used in the primacy sense.

[1:35:30] I don't know that I agree with that, because I think when you look at this statute and

[1:35:35] you look at the legislative excuse me, the common law backdrop that existed when the statute

[1:35:39] was passed, that's what was thought of as defining private property.

[1:35:44] We have those cases that say that.

[1:35:46] Well, the common law background is tax law.

[1:35:50] It's really not even common law, because what weren't dealt in all those cases interpreting

[1:35:55] the statutory tax exclusion for public property?

[1:36:00] Absolutely.

[1:36:01] So I don't even understand how you say that it's common law.

[1:36:04] It's statutory interpretation of the tax statute.

[1:36:07] Well, right?

[1:36:08] Maybe that's a statutory interpretation of tax statute.

[1:36:11] Excuse me if I might finish.

[1:36:13] But nonetheless, I mean, when you look at the rules of statutory construction,

[1:36:17] that this Court has said over and over again,

[1:36:19] Justice Blackwell said it a couple years ago.

[1:36:22] In the Zandika case, Justice Warren said it just a few months ago.

[1:36:25] in the louder milk case that one of my colleagues argued before you, you look to the words in

[1:36:30] their common usage and their context. And context is very important. Context is not merely

[1:36:36] how the words are used in the statute. Just how those similar words have been construed by

[1:36:40] the case law. And both of those cases were looking at the words in the apportionment statute,

[1:36:45] whether it was fault in just as black was case or whether it was property and just as warms

[1:36:51] And y'all look towards how those words were construed in other cases to inform their construction in the

[1:36:58] Apportionment statute. That's all we're doing here.

[1:37:00] That's the same statute, though.

[1:37:01] Pardon me?

[1:37:01] Other cases about the same statute, not just any case in the history of time that it construed that word.

[1:37:06] Or at least other cases in a similar context, right?

[1:37:09] I mean, there's a, when you're talking about statutory construction of certain interests for tax purposes,

[1:37:14] that is not necessarily the same context that's that issue here.

[1:37:18] understood and that is that can be a limitation but I've looked

[1:37:23] expressly at that question leading up to this argument because I was

[1:37:26] concerned you all might ask me about that and I'm not finding that

[1:37:30] limitation saying it must be confined or cabin to that very

[1:37:34] neighbor of the problem I'm having is property is used even in the law

[1:37:40] not just in the vernacular but in the law in two different senses

[1:37:44] One is property is a thing, for instance.

[1:37:51] Another is property is the kind of legal interest and rights to that thing.

[1:37:58] In the tax context, property is used in the sense of the legal interest.

[1:38:04] But in other statutes, it very clearly is used to refer to the thing.

[1:38:09] for instance, the criminal statute that forbids theft by receiving stolen property.

[1:38:17] When I am charged with that crime, I am in possession of stolen property.

[1:38:22] It's because I'm in possession of a thing that's been stolen.

[1:38:25] I don't have any legal interest in it if I'm the thief.

[1:38:29] So there it's referring to the thing.

[1:38:31] Here it seems to me it is referring to the thing or the place,

[1:38:35] Because it talks about being able to eject or exclude somebody with a gun from the property.

[1:38:45] And you don't eject or exclude someone from legal interests or rights.

[1:38:51] You eject or exclude them from a place or a thing.

[1:38:55] Yeah, the trouble I keep coming back to with that, I understand exactly what you're saying just as black will.

[1:38:59] But there is none the less a condition to that right to eject, which is a legal interest.

[1:39:04] Someone cannot walk on my property that doesn't own it and just eject somebody. I can

[1:39:10] But a stranger cannot and that flows from my ownership right in that property in the first place

[1:39:15] Or if I'm a tenant in an apartment building in Midtown once again

[1:39:18] I can kick someone out of my apartment only because I've signed a lease agreement with that landlord giving me the right to possess and the right to exclude and subject to that

[1:39:28] landlords ownership interest in the fee and

[1:39:31] and what they place in the lease, they may also have some rights with respect to controlling

[1:39:37] the premises.

[1:39:38] Isn't that true?

[1:39:39] Of course.

[1:39:40] I mean, that's a matter of contract.

[1:39:41] I mean, whatever the contract says is going to be what it says.

[1:39:44] The presumption, though, under Title 44, is that the tenant gets those rights, which can be

[1:39:48] varied by a legal instrument, of course, every time.

[1:39:51] We're a statute.

[1:39:52] Or it could be varied by a statute, absolutely.

[1:39:56] But you always, at one point, does that sort of pivoting to what we got into with Mr.

[1:40:01] road toward the end of his argument. At what point does that become? I don't know if taking

[1:40:05] is really the proper classification, impairment of contracts, something like that. But if there

[1:40:10] was no prohibition on the government at the time that the government leased your clients,

[1:40:18] the property they onto your client. If there's no prohibition on them from excluding people carrying

[1:40:22] firearms, then presumably part of the legal right that was passed along to your client with

[1:40:29] at least was the right to reject people who brought firearms in country to their policy.

[1:40:35] At what point does a statute saying, you can't do that anymore, violate some sort of

[1:40:43] right of your client, whether it's an impairment of contract or taking or something else?

[1:40:49] Well, I think it does in this instance, what is the right analysis there? Is it an impairment?

[1:40:55] Is it a taking or is it something else?

[1:40:56] So I looked at some of the takings cases and they talk about substantial impairment of the

[1:41:01] right of enjoyment.

[1:41:02] Right.

[1:41:03] I'm not sure that this really rises to the level of a taking given those cases, because

[1:41:08] I'm not sure that that's substantial enough.

[1:41:10] Absolutely.

[1:41:11] Yeah.

[1:41:12] Maybe it's not, if you think about it as the garden, although I could conjure up some ways in

[1:41:18] which the garden could easily probably say it's substantial enough public safety, worry

[1:41:23] about guns, it concerts, they have concerts there.

[1:41:25] I mean, there's lots of ways in which the right to regulate that, they may feel is a very

[1:41:30] important right to their viability.

[1:41:32] But you're asking questions which are spot on and the Amiquee show it in the development

[1:41:36] authorities briefing, you know, a lot of the people who rent apartments in this city

[1:41:41] are basically renting, uh, leasing from governmental entities.

[1:41:44] The problem with that, I ask some of those questions is, we normally wouldn't strike down

[1:41:49] entire statute, because you can come up with a few problems that might amount to

[1:41:55] a taking. You might strike down the statute as a qualified. There's no first amendment

[1:42:00] issue here. So, I mean, you're subject, you can exclude a whole ton of people from your

[1:42:06] property, right? You can't exclude people under the any discrimination laws of the city,

[1:42:12] the state, and the country. You can exclude, although most of those existed, a prior to

[1:42:19] or be, regulate all sorts of private parties, too. They're not-

[1:42:25] But as of taking, not in the pyramid contract.

[1:42:28] Right, but we're talking more about-

[1:42:30] It's not so much finding this unconstitutional,

[1:42:33] and therefore limiting a holding to an as applied as opposed to an entire striking holding.

[1:42:37] We're talking about a construction of the statute to stay away from an unconstitutional.

[1:42:42] What is the reclaim?

[1:42:45] What is the constitutional claim that that really would be?

[1:42:48] because for us to adopt sort of the principal constitutional avoidance, there has to be more than just a speculative conceivable

[1:42:56] articleable claim. It has to be a real substantial sort of thing.

[1:43:01] I think, and I'm not sure that it's a taking.

[1:43:03] Yeah, well, I must, I will confess that I think the best we have is to say it is a taking.

[1:43:08] I don't know what more we have under the constitutional principles that would rise to the level of a constitutional

[1:43:16] problem where you invoke the constitutional avoidance doctrine in construing the statute.

[1:43:22] But the law is fairly clear that the right to exclude is probably the most important

[1:43:26] right to position or excuse me, ownership of property possession, too.

[1:43:30] And this does intrude on that right for sure.

[1:43:34] Mr. Grant, let me bring you back up to a higher level question.

[1:43:36] And you may be going to answer this, but just now that we're at the towards the end, let me

[1:43:41] clarify, if we disagree with your theory of why Delta applies.

[1:43:46] What is the path to prevailing for your client?

[1:43:49] The path to prevailing is to find that the estate for years is a separate property right

[1:43:55] that's held by a private entity, the Atlanta Botanical Garden, and it controls a private

[1:44:00] property right through lease.

[1:44:01] And we don't have to reach Delta, although I think when you add Delta to that gloss or that

[1:44:06] Delta to that mix, it compels the result in our favor.

[1:44:10] Can you just go back?

[1:44:11] Yes sir.

[1:44:12] to that I'm trying to figure out what 2014 changed and you said nothing that's a problem because

[1:44:19] we don't I think you said the result is all the same for us okay and you propose that what it

[1:44:25] changed is that and this is how I understood your brief that under 2010 a government could lease land

[1:44:33] from a private property owner and their and then exclude gun and credit but person doesn't normally

[1:44:42] government, and particularly in a statute that uses the term government or government

[1:44:47] in any of that, a hundred times.

[1:44:51] So how do you reconcile that? I mean, you have to read

[1:44:54] person in 2010 as government for that theory to work.

[1:45:00] I'm not prepared to answer that question with a good answer for you today, Justice Namis, so I would have to submit something on that later.

[1:45:08] And I don't want to just wing that answer candidly.

[1:45:11] So if you don't have an answer to that, your real answer is 2014, inserting private over and over did nothing.

[1:45:18] Unless the issue with respect to person is one that I could convince you of otherwise by looking at the statute. I'd like to be able to try and do that.

[1:45:26] But you would agree that the answer can't be that inserting the word private multiple times accomplish nothing.

[1:45:33] I agree with that whole cardedly.

[1:45:34] I mean, that's just common sense.

[1:45:36] You can't sit here and say the legislature did this for no reason.

[1:45:40] They did it for a reason.

[1:45:42] My reading of the statute excuse me.

[1:45:44] My reading of the abolition of the statute is that when it flipped the presumption, it didn't do so perfectly.

[1:45:49] And it left that, I'll call it a loophole, but it left that possibility, without the word

[1:45:54] private, of the very scenario we describe in our briefing that Justice Namius has alluded

[1:45:59] to.

[1:46:00] And the nuance with person, not including government, I'm not prepared to address, and I will

[1:46:04] submit something on that if I might shortly.

[1:46:07] We'll give you seven days and give the other side seven days to respond.

[1:46:11] I know you've been following a lot, but we'll take one thing to do that.

[1:46:16] Thank you.

[1:46:16] If there are no other questions, I'll conclude my remarks.

[1:46:21] I

[1:46:27] think I just wanted to address a couple of points, Mr. Grant raised.

[1:46:31] He mentioned that the tenant gets the right to eject persons through the lease.

[1:46:36] I agree with that.

[1:46:37] The problem here is the city of Atlanta doesn't have that right, but it did at the time that

[1:46:43] the lease was entered into, right?

[1:46:46] I'm not sure that's correct, because the precursor to 1611173 was 1611184, which said essentially

[1:46:54] the same thing.

[1:46:55] But when you say the city of Atlanta didn't have that right, it's not that the city of

[1:46:58] Atlanta's fee was impaired, it's that the city of Atlanta's identity is a government

[1:47:04] impaired, it's ability to regulate.

[1:47:06] But in other words, it's that impairment doesn't run with the bundle of rights to this

[1:47:10] property, right?

[1:47:12] Well, if I understand your question correctly, if the city were to sell the property,

[1:47:16] outright sell the fee to the garden for example, I think the garden would be in a completely

[1:47:21] different position.

[1:47:22] the right lived in the land is just the city of Atlanta as owner couldn't exercise

[1:47:27] right so I don't think the city of Atlanta as landlord can pass that right on to the

[1:47:32] least when it doesn't have it but if he if they can't pass it on to a least they can't pass

[1:47:36] it on to a fee by or either I think that's probably right but I don't think so then if anyone

[1:47:41] ever buys anything from the government from this point forward any land from the government

[1:47:46] they've lost forever they're right to exclude not I think that's true because they're not

[1:47:50] get in it through the deed, it's a rising by operation of law in 1611-127C.

[1:47:59] The other point

[1:48:00] I wanted to raise since the taking this year has come up a couple of times. I want to

[1:48:05] go ahead and address that. I don't think this is the taking for multiple reasons. There's

[1:48:09] no permanent physical occupation, obviously. There's also no significant diminution in

[1:48:14] value. We're talking about the loss of the ability to exclude or eject a small class of people.

[1:48:21] But the garden hasn't even alleged that there's any diminution in value.

[1:48:26] There's also an adequate state law remedy.

[1:48:28] If the garden thought it had suffered or taken,

[1:48:30] it could bring an inverse combination proceeding.

[1:48:33] Thank you, Mr. Chief Justice. We'd ask.

[1:48:35] Can I ask one more question?

[1:48:37] And this may be something maybe the parties can also look into

[1:48:40] in those supplemental briefs.

[1:48:42] Is it possible that private property has some kind of idiosyncratic

[1:48:47] sense or meaning in this particular statute?

[1:48:51] such that it doesn't squarely reflect the meaning used in any other statutory context.

[1:48:58] But could it perhaps mean public property is property that is both owned by the government

[1:49:06] and used in some public sense, used for the public, which might exclude, for instance, the individual

[1:49:15] housing units of public housing, which are owned ultimately

[1:49:19] by the government, but used in a very private way intended

[1:49:23] to be used in a private way by individual families.

[1:49:28] And then that might raise a question about whether something

[1:49:31] like the garden meets that test.

[1:49:35] But think about whether there are some idiosyncratic use

[1:49:38] of private property in this sense.

[1:49:42] Yeah, I understand the question.

[1:49:43] I believe we do thank you.

[1:49:44] good. So I think that would be very helpful. Thank

[1:49:47] Council for both sides. Also, I want to thank our special guests

[1:49:50] for being here, Mr. Hawkins, glad to have you in our

[1:49:52] presence. And our court will stand and recess till

[1:49:55] to a clock.

[1:50:22] Supreme Court of Georgia is now in session.

[1:50:24] Chief Justice Harold Melton, presiding.

[1:50:34] You may be seated.

[1:50:40] Good afternoon, ladies and gentlemen, behalf of my colleagues.

[1:50:43] I'm going to welcome you all here to this afternoon session of

[1:50:45] the Supreme Court. We have three cases set for this afternoon.

[1:50:50] All cases are 20 minutes aside.

[1:50:52] At the end of 15 minutes with five minutes remaining,

[1:50:55] you'll see a yellow light.

[1:50:58] You'll see your time on the podium and to your right.

[1:51:01] At the end of that five minutes,

[1:51:03] a red light will signal and the bell will sound

[1:51:06] in the king that your time has expired.

[1:51:09] And with that, believe we're ready to begin.

[1:51:10] Madam Clerk, would you please call our first case?

[1:51:14] S19A-0665, Mark Joseph Dereco versus the State, Andrew Mosley for Appellate, General Murphy for Appellate.

[1:51:39] Mr. Mosley.

[1:51:40] Thank you, Your Honor.

[1:51:42] Mr. Dereco argues his claims today as follows.

[1:51:46] First, the evidence shows he is not guilty of the offenses alleged.

[1:51:52] The evidence is insufficient.

[1:51:54] Second, to the extent that the Supreme Court may conclude that in the light most favorable

[1:51:58] to the verdict that Mr. Doreco could be otherwise convicted of the aggressive driving,

[1:52:07] reckless conduct, and failure to signal lane change or turn charges, he cannot constitutionally

[1:52:13] be convicted under the facts in history of this case, because the arbitrary enforcement

[1:52:17] of the laws underlying the charges.

[1:52:22] So, that is to say, as in colander versus Lawson,

[1:52:27] the more important aspect of the vagueness doctrine is not actual notice,

[1:52:32] but the other principle element of the doctrine,

[1:52:35] the requirement that a legislature establish minimal guidelines

[1:52:39] to govern law enforcement.

[1:52:42] Where the legislature fails to provide such minimal guidelines,

[1:52:45] A criminal statute may permit a standardless sweep that allows policemen, prosecutors, and

[1:52:51] juries to pursue their personal pre-delections.

[1:52:58] Here, this is just what happened to Mr. Duriko.

[1:53:02] Under the facts of the case, he was prosecuted, whereas the victim, Mr. Ambrosetti, was not

[1:53:15] at all.

[1:53:17] notwithstanding that he had taken actions that met the requirements, met the elements of the

[1:53:27] statutes under which Mr. Duriko was being prosecuted. In a context such as this,

[1:53:39] it is

[1:53:40] that situation where someone can get caught up in the suite of the police enforcement. The

[1:53:45] police side someone, the prosecutors prosecute it, and there's no, there's not adequate guidance

[1:53:54] in the statutes to differentiate Mr. Jericho's situation from those that might more clearly

[1:54:02] happen.

[1:54:02] Part of these questions that prosecutors and law enforcement regularly deal with that is to

[1:54:09] there's differing versions of the story, and they choose which one they believe as a basis

[1:54:15] of pursuing a prosecution?

[1:54:20] Yes, that's frequently, I mean, that is the system.

[1:54:25] And the problem here is there's sort of a blind spot that the law has for the blind spot is

[1:54:33] for those who are put in the difficult position of defending themselves.

[1:54:38] And this can apply, you know, applies in situations like battery, but particularly in situations here,

[1:54:46] where you have one driver creating a situation and engaging the second driver.

[1:54:53] Here Mr. Drico being the driver who was engaged.

[1:54:58] And so, the blind spot that the law has is that it's difficult for someone who has trouble brought to them.

[1:55:12] And then they end up sighted, blamed, and accountable by just the normal process of the system.

[1:55:21] So what I'm getting at is that the problem here goes to the issue in the evidence where you have the driver's history that was kept out.

[1:55:30] You have the substantial history that the, it wasn't kept out entirely.

[1:55:37] Not entirely, but it was kept out to an extent that it would have, it was probative to the case.

[1:55:46] And

[1:55:50] it changes the context, the part that's left out is crucial to show the full picture of the drivers that come to the situation.

[1:56:04] Part of what was left out was more than ten years old, right?

[1:56:09] There was older material that was left out.

[1:56:14] However, when all the material is taken into consideration.

[1:56:18] And you don't take it all in consideration if it violates the evidence rules to do that

[1:56:23] and stuff over ten years old that isn't a felony or false statement, doesn't come in.

[1:56:33] Well, the, with respect to Mr. Doreco, that rule would be too harsh.

[1:56:41] And the reason for that is that when you have, when you say too harsh, you mean

[1:56:48] on constitutional, because who harsh is in a reasonable, yes, I do, I raise a constitutional

[1:56:55] challenge to the evidence codes provision on prior convictions in the trial court, get

[1:57:01] a ruling on it and appeal on that ground.

[1:57:06] No, our appeal is under the, the unconstitutional vagueness of the, of the statutes.

[1:57:15] So, what is it about the language of the statute that you contend deprives a

[1:57:20] the citizen of the ability to discern what they can and cannot do while operating a vehicle.

[1:57:28] Well, for instance, with the reckless conduct statute, it could be applied or not to

[1:57:37] most to a large sweep of citations or charges.

[1:57:46] The reckless conduct statute,

[1:57:51] because people are in all

[1:57:52] mobiles, because of the danger that is inherent in such

[1:57:58] navigating a large ton-weighted vehicle, that can be as applied

[1:58:06] to automobile scenarios, the reckless conduct statute, you don't know. I mean, a person of

[1:58:12] reasonable intelligence just doesn't know whether that might be brought against them or not.

[1:58:16] Well, you have to, first, we've upheld reckless conduct in the kind of language in it repeatedly

[1:58:22] against vagueness challenges of all sorts, because you have to consciously disregard, consciously

[1:58:29] disregard, has to be a substantial and unjustifiable risk that you'll cause harm or endanger

[1:58:35] the safety to another and it has to be a gross deviation from the standard of care.

[1:58:41] Now, there's lots of words in there, but we've held that sufficient guidance for prosecutors

[1:58:48] and police and for citizens.

[1:58:53] And if the guidance is sufficient for the ordinary run of cases, in this case, there's

[1:59:02] something different that makes it not work.

[1:59:06] And that is that the proof here, the logical proof,

[1:59:14] is that you take Felix Ambers Eddie's a victim who's

[1:59:17] driving the heat enters 400 and sets this thing in motion.

[1:59:23] He is clearly met the elements of the reckless conduct.

[1:59:27] What did he do that the prosecutor in the jury was required to believe he did that meets the elements of reckless conduct?

[1:59:38] The victim or the defendant?

[1:59:41] Is that so you're complaining about the victim not being charged, right?

[1:59:45] Yes.

[1:59:46] And the arbitraryness because the victim is charged.

[1:59:49] The victim was not charged.

[1:59:51] Could have been for the same thing that the defendant was charged.

[1:59:55] Well, how do you how do you have standing to assert that?

[2:00:00] That claim, because if you're right, what should have happened is that both of them should have been charged.

[2:00:06] Faire to charge the other guy doesn't harm your client. I mean, if both sides had been charged, maybe they both get convicted.

[2:00:15] How does that help you?

[2:00:19] The difference, well, how it helps Mr. Duriko, is that if both had been charged, the

[2:00:28] prosecutors would have looked at it differently.

[2:00:30] So you say that your real claim seems to be, although I hadn't discerned this from your

[2:00:34] grave, your real claim is a selective prosecution claim that both people could be charged

[2:00:39] in the prosecutor air by charging one.

[2:00:42] First, I don't think you raise that claim below.

[2:00:45] Second, you haven't come even in the ballpark, maybe even the city of proving such a claim.

[2:00:52] Prosecutors make judgment calls about which cases deserve prosecution all the time.

[2:00:58] If I walk up to you and I poke you in the chest and you pull out a gun and you shoot me between the eyes,

[2:01:03] the prosecutor could have charged the victim who is now dead with assault, simple assault,

[2:01:10] But decided not to because you shot them between the eyes.

[2:01:14] That's prosecutorial discretion.

[2:01:16] Unless you can prove that prosecutors are

[2:01:19] vitrarily and probably discriminatorally,

[2:01:23] don't prosecute assault.

[2:01:26] Your claim seems to be selective prosecution,

[2:01:30] not arbitrary, not arbitrariness of the statute's language.

[2:01:34] Well,

[2:01:39] with regard to the aggressive driving statute,

[2:01:45] it has a list of a non-inclusive list of, I'm sorry, it has a non-exclusive list of statutes that would be violated to be the grounds for the aggressive driving.

[2:02:04] And in that, that is on its language, unconstitutionally vague with respect to Mr. Duriko,

[2:02:16] because as in Skilling vs. U.S.,

[2:02:25] there's an open-ended world of possibilities in a criminal statute,

[2:02:30] and it is on its, by its language with respect to Mr. Duriko,

[2:02:34] It is unconstitutionally vague, because it doesn't have a-

[2:02:41] So, Council, let me ask you this.

[2:02:44] Was there evidence that Mr. Duriko entered the emergency lane

[2:02:49] and from the emergency lane struck another vehicle?

[2:02:55] There was testimony to that effect.

[2:02:58] So, there was evidence to that effect.

[2:03:00] And when I'm trying to figure out how we're making an as-applied challenge, how that, I mean, you don't even have to get into the list of statutes, violations, just the list of specific things.

[2:03:14] Parasimal estimates, intimidate, injure, obstruct.

[2:03:18] Those from an as-applied standpoint seem to all apply to someone who enters an emergency lane, and then from the emergency lane, strikes another vehicle in the side.

[2:03:30] Now, I understand that it's not that's not Mr. Greco's version of the facts, but that's

[2:03:35] not what we're asked to consider, is it?

[2:03:42] The facts is Mr. Greco does contend that the facts are set out if scrutinized, they do

[2:03:51] show that he is innocent and that the other party was at fault.

[2:03:56] The test isn't if scrutinized, the test is could a jury or a rational fact finder who's

[2:04:03] allowed to disbelieve every little bit of evidence you put on and believe all the evidence

[2:04:08] you don't like, could they have found a violation of the statute?

[2:04:14] That's also the test for the prosecutor who is not required to believe your evidence.

[2:04:20] Well, if that, if that, if the way that is interpreted is so sweeping that anything

[2:04:29] can be put up and there's no check.

[2:04:32] It's not anything, as Justice Bethel said, there was evidence presented that your client went

[2:04:38] into the emergency lane and then cut back over and cut off the victim, right?

[2:04:45] People testified to that under a, from the jury was entitled to believe it, right?

[2:04:49] They did testify that, but they also testified to the, the, the, the, the, the, the

[2:04:59] The jury could believe the parts that they testified that were bad for you and say we're not so sure they got, they saw the other stuff right.

[2:05:10] And that's why Mr. Drico needs the Supreme Court to re-evaluate the evidence.

[2:05:18] not to re-evaluate the evidence, to take the evidence as it is and say that given the

[2:05:25] vagueness that arises here with respect to Mr. Jericho under the statute's charge,

[2:05:33] and given the charges, the prosecution, all such as it is in this particular case,

[2:05:43] that there was, it leaves an arbitrariness open where the officer and pick and choose.

[2:05:58] And even if the evidence could not otherwise come in of the driving history, the argument

[2:06:13] that we have preserved that the motivation for the victim to rush out a cues, Mr. Jericho,

[2:06:29] of the offense and to win over the law enforcement with that.

[2:06:36] That kind of strategy, that kind of tactic, is something that could be learned from a 25-cycle

[2:06:42] history. And that is, it's not what happens in every case. There are many cases where

[2:06:53] old habits would have been changed or something, but what has persisted is a knowledge

[2:07:00] that the of knowing how to place the blame on another driver in a traffic context. And

[2:07:08] That's what what happened here.

[2:07:11] And it's the blind spot that I've been trying to articulate

[2:07:16] that you get when you have the, basically,

[2:07:21] where there'd be a battery or a two-car situation.

[2:07:24] Anything where you've got two people,

[2:07:25] and there's this battle to be first,

[2:07:28] the call 911, the cast blame,

[2:07:30] and whatever context that is.

[2:07:31] Look at the person who called 911,

[2:07:33] wasn't the victim or alleged victim.

[2:07:36] to a bystander who at least from what I can tell from the record had no interest in either party is just an independent person, right?

[2:07:47] That's what he claimed.

[2:07:49] Is there any evidence in the record to suggest a link between the bystander and or the by driver, I guess?

[2:07:58] And the other guy?

[2:07:59] Nothing direct, we believe an inference can be made based on the advocacy, the reason at one point in glosses, the witness says they're both guilty,

[2:08:11] and yet, he argues very consistently to try to, you know,

[2:08:28] That's the problem here. It's arbitrary. Why? Why does that witness get to pick? Who's guilty

[2:08:38] and who's not under our system? Why does it? They don't counsel it. They get to testify to

[2:08:44] what they saw and what they perceived, right? I mean, so isn't it correct? Is it English, Mr.

[2:08:52] I mean, didn't he say that Ambro said he maintained his lane while your client did not?

[2:09:04] That's what Mr. Inglis was, was testifying two at times and

[2:09:14] to say that he picked, of course,

[2:09:17] He said in motion,

[2:09:21] he said things in motion by, he made the call, and that's the prosecution

[2:09:29] went forward relying on that.

[2:09:32] And Councillor, I understand all your arguments on that, and I can understand the frustration

[2:09:40] of an incident that occurs, that appears basically to have both sides at fault.

[2:09:46] And those are good arguments to make to the prosecutor as to why charges shouldn't be brought.

[2:09:50] They're good arguments to make to the jury as to why they shouldn't convicts,

[2:09:54] but they're not constitutional violations that we can remedy.

[2:09:59] At least as this record exists.

[2:10:06] Mr. Duriko's position is that in fact, the Supreme Court is the only body that can insert and vagueness situations.

[2:10:19] But again, you're talking about, as applied, and I'm trying to figure out what's vague.

[2:10:24] And it's not vague based on your version of the case.

[2:10:29] It's vague.

[2:10:30] The question, it has to be vague in that the behavior that was, that evidence was proven,

[2:10:37] whether you agree with the jury's verdict or not, that that is somehow incapable of being

[2:10:44] understood as being illegal, and I'm trying to figure out how an average driver or reasonable

[2:10:50] intelligence would ever not be able to understand that striking a vehicle in moving traffic

[2:10:57] from the emergency lane would be prohibited by the law.

[2:11:03] That's what an as-applied challenge would have to mean.

[2:11:09] Mr. Doreco's account is that he was, he was in fact the victim of an aggressive driver,

[2:11:17] did what he could to, I've defensively, and control the situation and end it, and he did.

[2:11:26] He got off the road, and there's no exception in the aggressive driving for driving defensively.

[2:11:35] And there's even testimony from the victim that certain of Mr. Doreco's acts were an intentional.

[2:12:00] May it please the court.

[2:12:01] My name is Jim Murphy, and along with Solicitor General William Finch,

[2:12:04] we represent the respondent in this matter.

[2:12:07] Petitioner has alleged six enumerations of error when in his brief for this court to review.

[2:12:12] His first enumeration of error is that both OCDA 40-6-397 and OCDA 16-5-60 are unconstitutionally vague.

[2:12:24] Neither of these assert a first amendment violation therefore a review is made on a case by case basis under a denovative standard.

[2:12:33] I would urge this Court to remember that statute enacted by the General Assembly carry a presumption of constitutionality and are to be construed as such.

[2:12:42] Council, can I ask you, does the aggressive driving statute require that the defendant

[2:12:52] have operated their motor vehicle in a way that is unlawful irrespective of the aggressive

[2:12:59] driving statute?

[2:13:00] No, no, you're on, I would say it does not, and I would point your honor to the wording

[2:13:04] in there, the language in that statute that says, including without limitation, too.

[2:13:09] So what are the elements of the offensive of aggressive driving?

[2:13:13] In this case, your honor, they are that he moved into the lane of the victim Felix

[2:13:18] Amber Seddy and intentionally stroke his vehicle with the intent to intimidate him in

[2:13:24] doing so.

[2:13:25] And I think that is very clearly defined by the second of the two collisions from the emergency

[2:13:31] lane.

[2:13:32] Here's the concern I have.

[2:13:33] And I'm not sure it's something that Mr. Derricko can take advantage of given the facts

[2:13:38] his case, it seems to me, I think you are reading it correctly, that the offenses committed

[2:13:46] by operating a motor vehicle with the intent to annoy another person, for instance.

[2:13:52] So if I'm mad at my 15-year-old daughter and so I decide to go pick her up at school in

[2:14:00] a 1975 Grand Torino, Starsky and Hutch replica, to embarrass her and annoy her, from the face

[2:14:09] of the statute, I've committed the offensive aggressive driving.

[2:14:14] Are you familiar with Starsky and Hutch?

[2:14:18] Bagely, Bagely.

[2:14:21] Because I have operated a motor vehicle with the intent to annoy my daughter.

[2:14:26] Yes, Your Honor.

[2:14:26] However, I think that the difference is that the context of aggressive driving is to show

[2:14:32] that there was aggressiveness toward another operator of a motor vehicle.

[2:14:37] Is that an element of the crime or just the idea that the prosecutors would use in exercising

[2:14:42] their discretion in deciding whether to bring a charge?

[2:14:44] It would hopefully be a prosecutor discretion.

[2:14:47] But see that doesn't answer a vagueness challenge.

[2:14:50] It does not, you're on or however, an exhaustive list can't be included in the statute.

[2:14:55] However, there was sufficient...

[2:15:00] Notice placed upon the defendant of what the state was alleging in this case to be that of the aggressive driving and that he used it.

[2:15:07] Can you save a vague statute by alleging more facts in a accusation or an indictment?

[2:15:15] I mean, if the elements of the crime are vague, alleging more specific facts don't save the statute, right?

[2:15:29] No, it would not say this statute, however, by review, because it's on a first amendment violation.

[2:15:35] Each case is looked at, and I think you have to consider the facts from each case to make that decision.

[2:15:41] This council does the act contemplate that the operation itself must be for one of these purposes.

[2:15:48] That is to say, with Justice Blackwell's example, it's the choice of vehicle there that is to embarrass or annoy.

[2:15:55] It's not the way the vehicle is being operated, and is the statute contemplate the actual

[2:16:02] manner of operation being an essential element, in other words, if I revved my engine in

[2:16:08] a parking lot, just to sort of annoy the people around me, but it's not the way I'm operating

[2:16:13] the car of vehicles.

[2:16:14] Is that implicit in the statute or is it expressed in the statute?

[2:16:17] I don't know that it's expressed necessarily by the confines of the statute as written, but

[2:16:21] I do think it's at the heart and of the spirit of a aggressive driving.

[2:16:25] It is to eliminate one's ability.

[2:16:28] Where do we find that spirit exactly?

[2:16:30] I think it's the fact that they have included certain statutes in there that show that those

[2:16:35] are violations of the law per se and of themselves, but there are other things that wouldn't

[2:16:40] be contemplated and couldn't be contemplated that would be violations.

[2:16:48] Which of these terms was actually used in the accusation?

[2:16:53] I mean did the accusation list annoyed her asthma less?

[2:16:57] It's at or did it pick out a couple of them?

[2:17:00] It used one, and I can't present this.

[2:17:02] It used the word intimidate.

[2:17:04] Is the one that is state alleged in this case,

[2:17:07] and that the striking of the vehicle was with the intent to intimidate the victim.

[2:17:12] That being most defined by the fact that there was corroborated testimony

[2:17:17] from both Mr. English as well as Mr. Amber said he that Mr. Doreco fell in behind his vehicle

[2:17:23] after striking him the first time and then pulled into the emergency lane traveling between

[2:17:27] the grass median and the left lane of travel before striking his vehicle the second time.

[2:17:33] Okay, so I mean you can come up with hypotheticals about annoy or maybe harass but intimidate or

[2:17:42] here it was just intimidate?

[2:17:44] Yes, we only alleged intimidation in this because there weren't any injuries.

[2:17:49] There could have been an argument made.

[2:17:50] I suspect that the intent might have been to injure him, but the state felt the intimidation

[2:17:56] was the appropriate way to charge this case at that given the circumstances of what occurred in this case.

[2:18:04] There was also a, he also alleged that OCDA 16-5-60 was unconstitutional in this case, however he relied solely upon the hall case and in that case this court considered the fact that it was unconstitutional because hindsight is what dictated in the consequences that flowed or what created the recognition that that statute was unconstitutional in that case.

[2:18:33] or the consequences of this case do not dictate the mere

[2:18:38] suggestion of what occurred on this date.

[2:18:42] Place not only Mr. Amber Setti at risk,

[2:18:44] and that of Mr. Dorico himself,

[2:18:47] but also every other driver on the road at the time,

[2:18:51] it did happen on August 29, 2014.

[2:18:54] That was the Friday of Labor Day weekend.

[2:18:57] Mr. Dorico himself testified that traffic was moving

[2:19:00] approximately 40 to 45 miles per hour.

[2:19:02] Georgia 400 at that time was 55 miles per hour, so they're they're they're traveling 10 to 15 miles per hour below the speed limit

[2:19:11] He he placed not only himself in the victim at risk, but every other driver including

[2:19:16] But not limited to Mr. English and his son who were traveling and called 911 after observing what was occurring

[2:19:23] For those reasons the state is asking that this court uphold the Constitutionality under both statutes and

[2:19:31] that there was no violation of a Constitution in this case as it was alleged by the state.

[2:19:42] Turning next to the driving history in this case, it was admitted.

[2:19:49] It was recognized by the trial court to be a business record document.

[2:19:54] It was fully in the record.

[2:19:56] However, the court did use its discretion which this court has found in Williams versus the state

[2:20:02] that the trial court has the discretion to limit the admission of evidence and that the trial, I'm sorry, the Court of Appeals, and the Hawthorke said that

[2:20:13] irrelevant evidence cannot be excluding irrelevant evidence cannot be error and will not an abusive discretion.

[2:20:19] I would urge this court that in this case it was not an abuse of discretion by the trial court to eliminate the defendant's ability to ask questions on a record

[2:20:29] that weren't relevant, but in fact, it was an appropriate,

[2:20:34] absolutely appropriate abuse of the his discretion in this case.

[2:20:41] In the record, the petitioner was asking for a litany of irrelevant offenses.

[2:20:47] Those included, but we're not limited to speeding violations,

[2:20:51] no proof of insurance and failure to obey a railroad crossing.

[2:20:55] Those had no similarity, they were also well out of the tenure time period that was acknowledged in the transcript by the trial court as them being too old.

[2:21:08] Based upon that the court did use its discretion to decide that those could not be presented to the jury in this case.

[2:21:19] It would have been no other reason would have been foreseen to allow those in other than

[2:21:26] to allow the assassination of the character of Felix Ambroselli in this case.

[2:21:31] And for that reason, the state is asking that this court found that the court did not

[2:21:35] abuse its discretion, but rather appropriately used that discretion to make sure that the jury

[2:21:40] wasn't swayed or didn't sympathize with someone based upon something that was an admissible

[2:21:45] trial.

[2:21:48] As to the sufficiency of evidence, the position no longer possesses the presumption of innocence.

[2:21:56] At this point, it's not to weigh the evidence that was presented or assessed the credibility,

[2:22:02] but rather to review this case in light of the jury's verdict.

[2:22:07] The evidence is to be reviewed in that manner.

[2:22:09] And there was sufficient evidence presented at this trial to convict Mr. Jericho of all three offenses.

[2:22:19] In count one, the State did a ledge that, with the intent to intimidate Felix Embersetty,

[2:22:26] that Mr. Doreca moved into his lane and struck the vehicle of Mr. Embersetty at that time.

[2:22:33] That was done not once, but twice in this case. Mr. Embersetty, as well as Mr. English, testified

[2:22:40] that petitioner became mad and upset over the fact that Mr. Embersetty had merged into his lane in front of him

[2:22:48] that he, I think, Mr. Inglis even characterized it at one point as being an overreaction

[2:22:54] to that of what occurred. And from that point, Mr. Dureka pulled his vehicle out into

[2:23:04] the right travel lane, drove up beside Mr. Amber Settian struck him the first time by moving

[2:23:10] into his lane. After that, he then retreated behind, slowed his vehicle and retreated back

[2:23:16] and fell back in behind the victim, moved into the emergency lane and drove up to the left

[2:23:21] hand side of him and struck him again at that time.

[2:23:26] Based upon that, there was sufficient evidence for this jury to consider that that would

[2:23:33] meet and would rise to the level of a conviction in this case.

[2:23:37] The intent is inferred by the action and the intentional moving into that emergency lane

[2:23:43] that I think is very clear in this case.

[2:23:48] Ask the count to, and danger in the body, I'm sorry.

[2:23:51] Reckless Conduct, it was alleged that he endangered the bodily safety of Mr.

[2:23:55] Amber Seddy, and consciously disregarded a substantial and unjustifiable risk by

[2:24:05] striking

[2:24:06] his vehicle with, by striking the vehicle of Mr. Amber Seddy with his own.

[2:24:12] And that the standard of care there was a gross deviation from the standard of care.

[2:24:17] I think in this case there's not just a gross deviation from the standard of care but rather a complete disregard of the standard of care that was shown

[2:24:25] of what it takes to operate a motor vehicle on the road much less considering that it takes what it takes to operate one one traffic is heavy

[2:24:33] And on a holiday weekend, as is existed, there was the endangerment of his bodily safety.

[2:24:41] I think is one of an inference that the jury could draw from the actions and what occurred.

[2:24:47] It was a waspony testimony at that trial from most importantly, the independent third party witness who had absolutely nothing to do.

[2:24:57] So, the state's knowledge still doesn't know either of the individuals involved and based

[2:25:02] upon that, he just simply called to let the law know what was happening and for South

[2:25:06] County know what was happening at that time.

[2:25:10] Finally, as to count three, failure to signal lane change, it was a ledge that Mr. Doreco

[2:25:16] changed lanes when such movement was not reasonably safe, and I think that again has shown

[2:25:21] on both situations where he moved from the right lane, right travel lane into the left

[2:25:26] travel lanes, tracking him the first time, but then also when he moved into the emergency lane

[2:25:32] and struck his vehicle.

[2:25:37] Based upon these things, the state is asking that this court find that no abuse of discretion

[2:25:44] was made by the trial court in numerous iterations of error 2 through 6 that the proper methods

[2:25:54] were employed and used and allowed to go to the jury and the jury rendered its verdict

[2:25:59] convicting Mr. Dorico of these charges.

[2:26:03] Ask to a numeration error number one.

[2:26:06] The state is asking that this court

[2:26:07] find that these statutes are not unconstitutional

[2:26:11] evade as applied on a case by case basis.

[2:26:14] And if there are no further questions from the court,

[2:26:16] we thank you for your time and consideration in this case.

[2:26:19] Thank you.

[2:26:20] Thank you, Ms. Murphy.

[2:26:26] OK, I used up all the time.

[2:26:28] Was that correct?

[2:26:29] No, thank you.

[2:26:30] OK, thank you, I'll put both sides.

[2:26:32] Madam

[2:26:45] Clerk, if you would please.

[2:26:47] S-19A-0-684, more in a area versus a state, that's a legal propellant, more advanced

[2:26:55] for appellate.

[2:27:20] May it please the court.

[2:27:22] For an ordinary speaker of English, the phrase physically injures simply does not call

[2:27:28] to mind the conception of new life.

[2:27:32] Indeed, as the concurring judge pointed out in Kendrick quite correctly, as a general matter,

[2:27:38] it would be highly unusual, indeed offensive, to refer to a woman's pregnancy as a physical

[2:27:44] injury.

[2:27:45] Is that what was charged in this case?

[2:27:48] I thought it was charged with physical injury was impregnating, causing the child to endure

[2:27:56] childbirth, so the focus was on not conception or pregnancy, but childbirth.

[2:28:03] It is what was charged, and I think the focus and light of the Kendrick decision, which

[2:28:08] I think undoubtedly this indictment was modeled after, it really wasn't clear whether

[2:28:14] the state needs to prove both to get a sentence of 25 to life, and I think that's part

[2:28:20] of the problem.

[2:28:21] So what?

[2:28:22] Proof both what?

[2:28:22] I'm sorry, the causing pregnancy and that the victim then endured childbirth.

[2:28:27] They didn't have pretty clear from the statute that would you have to prove his physical injury?

[2:28:32] And so couldn't either serve as an independent basis?

[2:28:37] Well, possibly, we would say neither can, because pregnancy is simply different, and the citizens of Georgia are not on fair notice that physically injures that that.

[2:28:48] But as in charge, the physical injury charge is causing the child to endure childbirth.

[2:28:57] Now the intermediate cause of that was impregnating the child in the same way that the

[2:29:03] intermediate cause of a bullet I should at your head hitting you in the head may be my

[2:29:11] assault and aggravated assault before there is a murder.

[2:29:15] But there can be multiple causes, but the physical injury charge was causing such child

[2:29:23] to endure childbirth.

[2:29:27] And I disagree because I think as far as the analogy goes, pregnancy is just different

[2:29:35] and that childbirth was attendant to the pregnancy.

[2:29:38] That may be, but it had the indictment simply said by causing her to become pregnant period

[2:29:45] And then you could argue about whether being pregnant is a physical injury, but that's not what this indictment charged, or what the proof was, the proof and the charge was childbirth.

[2:30:00] Which is a separate physical event from pregnancy.

[2:30:05] It's separate, but it can only flow from pregnancy.

[2:30:08] And then if that were, that may be, but it depends how you charge.

[2:30:12] If I charge my physical injury is I cut you, I cause physical injury by slicing you with a knife.

[2:30:20] It depends whether I charge by penetrating your skin with a knife, which might hurt,

[2:30:26] or by cutting off your arm with a knife, which is more obvious, physical injury, right?

[2:30:34] And I don't have to prove the more obvious thing, I'm not required to prove the lesser thing,

[2:30:42] if I prove the more substantial physical injury, right?

[2:30:47] Well, I disagree here because under the facts of this case, you do have to prove the lesser thing,

[2:30:53] less or thing, I wasn't having to prove that I broke your skin.

[2:30:56] I would have to prove that I touched the edge of your skin with my knife, which would

[2:31:00] be a tricky thing about, is that a physical injury, if I barely touched you with a knife,

[2:31:06] you felt it, maybe you didn't feel it.

[2:31:08] On the way of slicing your arm off.

[2:31:11] But those are both obviously physical harm, whereas, you know, not necessarily touching your

[2:31:17] skin.

[2:31:17] Physical harm.

[2:31:18] With a knife compared to slicing your arm off.

[2:31:20] Touching your skin with the knife, it's at obvious physical injury, not cutting it your skin, just touching your skin.

[2:31:27] Well, then the statutes you look at would be the cutting arm off would be aggravated battery.

[2:31:32] The touching a skin would be aggravated assault because there's a dangerous weapon to use.

[2:31:37] When we say cause,

[2:31:39] Proximate cause is typically what we're referring to, right?

[2:31:43] There can be other things that happen in between what I did and the ultimate result that what I have done has approximately caused.

[2:31:52] So long as none of those things are intervening causes that cut off the proximate causation of my initial action, the end result, even if there are lots of things that happen in between, is caused by my initial action.

[2:32:08] Here, while pregnancy may have occurred

[2:32:12] between the time of impregnation and childbirth,

[2:32:16] the childbirth is still proximately caused by the act of the defendant, right?

[2:32:21] It is proximate, call it.

[2:32:22] Then why don't you lose?

[2:32:25] Because one pregnancy is just fundamentally different

[2:32:28] and when you relax your throat, go.

[2:32:30] Let's put pregnancy aside for just for the purposes

[2:32:33] of the next two minutes or something.

[2:32:36] Let's talk about the childbirth.

[2:32:37] because the indictment says, causing her to endure

[2:32:41] the birth of a child.

[2:32:43] Yes, and what happened actually in this case

[2:32:45] was that the victim initially wanted an abortion

[2:32:49] and Mr. Daerio talked her out of it.

[2:32:52] So then if the state's position is correct,

[2:32:55] that would mean that a perpetrator who convinces his victim

[2:32:58] to have an abortion no longer faces the enhanced.

[2:33:01] That's a good choice.

[2:33:03] That would be a case where we'd have to decide

[2:33:05] whether a perpetrator who impregnates somebody and causes the person to have an abortion

[2:33:10] is a physical injury, but that's not this case.

[2:33:12] Well, and if the prosecutor had indicted that case as impregnated her causing her to endure

[2:33:18] childbirth, that in fact would not have been proved if childbirth had not occurred. There may be

[2:33:25] some other injury that could be proved. But here childbirth, the injury that was alleged did in fact

[2:33:34] So I think what the Justice Warren wanted you to do, which I would like to, is for a moment

[2:33:39] at least, tell us whether causing childbirth qualifies as a physical injury.

[2:33:46] No, it doesn't, because when you read the statutes in harmony, which is the way you have

[2:33:51] to do it, it's just, like can we just start with just the words in the statute and causing

[2:33:57] physical injury, there are two questions, right?

[2:34:00] childbirth ever caused physical injury, but more narrowly here, based on the record, did it cause

[2:34:06] physical injury?

[2:34:08] Yes.

[2:34:08] So what was the second?

[2:34:09] Yes, to both of those questions.

[2:34:11] It caused physical injury here?

[2:34:13] Yes, the act of giving birth to a child can, and did, in this case, cause physical injury.

[2:34:17] And so using to paraphrase my brother at the other side of the bench, why don't you

[2:34:21] lose?

[2:34:22] Because as a matter of construe in a criminal statute, that's not a parent and Mr. Daderio

[2:34:27] didn't have fair warning that, okay, let me ask you, is it reasonably foreseeable that

[2:34:36] a sexually mature male having sex with a sexually mature female will produce a pregnancy?

[2:34:42] Is it reasonably foreseeable that a healthy pregnancy continued will result in childbirth?

[2:34:47] Yes.

[2:34:48] Is it reasonably foreseeable that childbirth will result in perennial tearing?

[2:34:53] Yes, probably so.

[2:34:54] All of those things are clear and logical consequences of the initial act here, tell me where the chain breaks.

[2:35:05] Well, it's not that the chain breaks. The question is, is you have to start not with the subject matter of the prosecution, which is what the state's doing here, but rather with the language of the statute.

[2:35:15] So this is the state's error rests on the same error that occurred in the old McBoyle case where the prosecutors are saying okay

[2:35:24] We have the subject matter of our prosecution is an airplane that was stolen now. Let's see what statute can we fit that into and they find one on stealing motor vehicles

[2:35:33] But the court says okay even though we know most folks don't actually read the code if they did it wouldn't have occurred

[2:35:40] That's because the definition of motor vehicle or was not commonly understood to include error

[2:35:48] or notical vehicles. Here, the question is, does the definition of physical injury

[2:35:54] commonly include, well, what do you say physical injury means? Do you agree it means physical

[2:36:00] harm or damage, which is every dictionary? Okay, so are you saying that trial birth that is not

[2:36:07] does not involve a physical injury,

[2:36:10] meaning a physical harm or damage?

[2:36:12] No, I'm saying that certainly lawyers can get there

[2:36:16] logically and follow that chain of information.

[2:36:17] I'm not the least.

[2:36:18] I looked it up in the dictionary about an hour ago,

[2:36:20] and I saw a physical harm or damage.

[2:36:23] And while I guess I am a human being,

[2:36:24] he knows a little bit about childbirth

[2:36:27] from everything from the Bible to the fact

[2:36:30] that we allow women who have childbirth to recover

[2:36:33] because of the physical pain and damage it causes.

[2:36:36] So, where is that? I don't see how McBoyle has anything to do.

[2:36:42] But as this Court has said before in a different but somewhat related context in the Dixon case in 2004,

[2:36:50] particular statutes prevail over more general ones. And just like in Dixon, we have multiple statutes under chapter six that apply here.

[2:36:59] So, the more specific statutes are subject to.

[2:37:02] You're not challenging that the evidence supported a conviction of child

[2:37:07] molestation.

[2:37:08] No, I agree that intercourse can be an immoral and a decent act.

[2:37:12] And so the only thing, different between, I mean, so we're not dealing with whether this

[2:37:17] is what was contemplated about child molestation.

[2:37:19] The question is, child molestation happened.

[2:37:22] The only question is, did that child molestation result in a physical injury?

[2:37:27] And I'm trying to figure out, I mean, the chain is just one after another between the act which you can see does satisfy the definition for child molestation and the physical injury which nothing else caused.

[2:37:42] But the point I'm making about the, looking at the statutes in harmony is there are, if someone in this position actually read the code, the way we have the legal fiction that people do, if someone really did it, they would see statutory rape, okay, that pro scribes, intercourse, I'm facing 20 years in prison, 10 to 20, because I'm over 21.

[2:38:01] The only aggravating factor there is the age and the only mitigating factor is also with that specific general thing is is there can be 40 criminals

[2:38:10] Statutes that apply to the same conduct some specific some general. I think Justice Blackwell had a great footnote with

[2:38:17] You know and a murder based on an aggravated battery and there were about 12 different statutes that you could have charged

[2:38:24] You can charge all 12 of them. You can be found guilty of all 12 of them

[2:38:28] You may have a merger argument if the elements, if they're lesser included.

[2:38:33] But we don't say that because, I mean, can you not be charged with aggravated assault,

[2:38:39] if you're charged with malice murder?

[2:38:42] Even though, if I shoot you, it is more specific to say, it was a malice murder.

[2:38:48] You saying that's not an aggravated assault?

[2:38:50] No, they're the evil to be avoided as multiple punishments.

[2:38:53] So I think what I hear you're saying is that it could be the case that a prosecutor brought

[2:39:02] different charges against someone like your client.

[2:39:05] It could be the case that a prosecutor brought an aggravated child molestation count and decided to prove it in a different way.

[2:39:12] I mean, do you can see that that's possible?

[2:39:14] That you could prove physical injury in other ways.

[2:39:17] That we're not alleged here, right?

[2:39:19] So that's possible.

[2:39:20] It also seems possible that there could be a circumstance where child birth were alleged

[2:39:27] to be the physical injury and the record didn't support it.

[2:39:31] Do you agree with that?

[2:39:32] It seems like the facts of this case fit into none of those paradigms.

[2:39:39] But our position is this is a novel legal theory that was never accepted until Kendrick,

[2:39:43] which case was decided after the criminal act here occurred.

[2:39:47] Why didn't that matter?

[2:39:49] God, did the code exist before the act?

[2:39:51] It matters as to the vagueness challenge

[2:39:53] which we have because there's a...

[2:39:54] Why did we determine vagueness based

[2:39:56] on what courts say about the plain language of a statute?

[2:39:58] Well, there is one Supreme Court case I cited in the brief

[2:40:02] that says a subsequent judicial decision cannot save a statute.

[2:40:07] Right.

[2:40:07] We can't wait or interpret it in a certain way,

[2:40:10] but by your logic, the first prosecution under every statute

[2:40:15] apparently is vague because until some court upheld it and there was a prosecution you couldn't have ever guessed

[2:40:23] You might be prosecuted

[2:40:24] I almost did like a statutory liquidation argument that until we until we decide what a statute means it doesn't mean anything and that's not what we do

[2:40:33] No, and I'm not asking the court to find that at all. What I'm saying is the again

[2:40:37] And what someone in this position would know from the code clearly, he has fair warning

[2:40:43] that you can get 30 years in prison for incest and 20 years in prison for statutory

[2:40:47] rape.

[2:40:49] But then to get back that he didn't fully think through the potential consequences of his

[2:40:53] actions does not mean that the crime that he committed is not a crime.

[2:40:58] No, but why is childbirth not a physical injury?

[2:41:01] Because reading the statutes in part in materia, and there are others.

[2:41:05] what the record, why is it not, I mean, let's get uncomfortable, right?

[2:41:10] In the record that supports the childbirth here under these circumstances as causing a physical injury.

[2:41:17] Here in the record it was clear that the childbirth did cause physical injury.

[2:41:22] And so I'm not testing that or it's efficiency or anything like that.

[2:41:25] I'm only testing that in an applying linity.

[2:41:27] I think our interpretation that pregnancy should have to be determined specifically by the legislature.

[2:41:34] So, if he had read the statute, just words, in their ordinary English, maybe he had to

[2:41:39] use a dictionary if he didn't speak much English, but you would agree, child molestation

[2:41:45] isn't the issue.

[2:41:46] It was child molestation to have intercourse with the child for his gratification.

[2:41:51] So if he read the definition of child molestation, he would have gotten that, and then

[2:41:55] then he would have had to read, would that act physically into the child and his justice

[2:41:59] Bethel said that he would say you would have to think of all the things that follow from sexual

[2:42:06] intercourse with a child who is a childbearing age and you're on the hook for everything that

[2:42:13] may reasonably happen. He would see that the aggravated child molestation of subsection is

[2:42:19] specifically concerned with Sodomy and then generally concerned with injury. Then he would also

[2:42:24] see that may be because Sodomy may not be an injury.

[2:42:28] But then he would see that statutory rape and

[2:42:31] insists specifically applied to his potential conduct.

[2:42:34] But it may also not involve the physical injury, right?

[2:42:38] But it would be the more reasonable place to find that.

[2:42:41] If the legislature wanted, like, 10 of their states.

[2:42:43] Is that just a statue?

[2:42:46] It's not unless you're could have put it in a better place.

[2:42:49] No, it's not the legal test.

[2:42:50] But I think in the Yates case, in particular,

[2:42:53] where the Supreme Court acknowledged,

[2:42:55] look a fish is absolutely a tangible object.

[2:42:59] They still looked at where it was in the code,

[2:43:01] the headings, the surrounding sections, they said,

[2:43:04] okay, even though we can see that it's a tangible object

[2:43:06] and there's no dispute about that,

[2:43:08] we're still gonna cut off the criminal liability.

[2:43:10] You can see the childbirth is a can be a physical injury

[2:43:16] and was a physical injury in this case.

[2:43:18] And you can see that childbirth is a foreseeable,

[2:43:25] That childbirth follows foreseeably from intercourse, right?

[2:43:32] Okay.

[2:43:33] But the statutes on intercourse don't talk about it.

[2:43:35] They don't mention pregnancy.

[2:43:37] And this statute says child molestation that causes physical injury,

[2:43:41] or that physically injures someone.

[2:43:44] Right.

[2:43:44] So saying first you have to leave the more particular statutes.

[2:43:48] So then you have to loop it into the statute on aggravated assault.

[2:43:51] doesn't talk about the more particular injury of an aggravated assault that kills somebody.

[2:43:56] So when I shoot you, how could I have known that if I read a few chapters over in the

[2:44:02] code, there's something if I shoot you, and the result of the shooting is you die.

[2:44:08] That boy, I got a jail instead of for 20 years, I got a jail for life, maybe life without parole,

[2:44:12] maybe even the death penalty. But I think it's generally obvious and particularly prescribed

[2:44:18] by the felony murder statute.

[2:44:20] So I don't think anyone could ask them more serious harm.

[2:44:23] It's actually the same.

[2:44:24] You don't have to have any intent.

[2:44:27] You commit what is a clear felony.

[2:44:29] And the only reason it's a more significant crime

[2:44:32] is the natural and foreseeable consequences.

[2:44:35] Look, I will tell you this.

[2:44:37] And I'm being sincere.

[2:44:38] I appreciate how well-versed you are

[2:44:40] in the Canon's statutory construction.

[2:44:42] I'm not being concedious.

[2:44:44] But here, where you're talking about physical injury,

[2:44:46] And that's a pretty clear term in plain English.

[2:44:50] It seems to me what you're really arguing for is to go to the general assembly

[2:44:54] and to lobby the general assembly to make clear if they want to make clear

[2:44:59] that there are other...

[2:45:00] Your separate independent basis that can purse a serve as an aggravating factor for top molestation?

[2:45:06] I am saying that only as to this particular issue, because, again, as Judge Diller had correctly pointed out,

[2:45:12] it's just not something in common usage that we think of as a physical individual.

[2:45:16] But you're talking about pregnancy, and we're talking about the childbirth that was alleged in the indictment,

[2:45:21] and that you have conceded, resulted in a physical injury.

[2:45:23] Yes, which could only flow from that.

[2:45:25] And you rest on the judge's decision that he originally took in his concurrence, but not the

[2:45:30] rest of his concurrence where he said, but in taking in context, it does have a significant

[2:45:35] meaning.

[2:45:36] It does.

[2:45:36] But again, I think he got the rule of Kennedy in strict construction backwards there.

[2:45:40] I think what he wrote was, we would only say this in the context of a sentencing enhancement

[2:45:45] for someone who commits an act of child molestation, and that gets basic principles of criminal

[2:45:49] law backwards.

[2:45:50] not really what he said first was it's all about context and I'm not sure that if your

[2:45:57] wife was giving birth, you would talk about the horrible phyzoid injuries she's enduring,

[2:46:02] but in another context of a crime where it's based on child molestation, you might understand

[2:46:09] it, not to be in the best possible life, but the worst possible life. That's a context issue

[2:46:15] in the rule of Kennedy, only applies once you get passed all the other rules.

[2:46:20] Again, I think the rule of Kennedy does apply here, because I think it was reasonable for

[2:46:24] someone to read these code sections in harmony and not conclude that childbirth was contemplated

[2:46:29] at all.

[2:46:29] And as I have less than a minute, I just want to briefly touch on Miranda.

[2:46:35] We started the second circuit case, Jackson vs. Conway, where Federal Habius Relief was granted

[2:46:39] on a very factually similar issue that the defendant was in, he's actually at the station

[2:46:45] house that actually not so similar because that was somebody who worked for the state right

[2:46:49] a defects case worker. It was, and this is, and I ask you if parents get a point and

[2:46:56] children get appointed lawyers for them in dependency and the link, well, dependency cases.

[2:47:04] If a child's lawyer is represented in the child or a parent's lawyer goes and talks to a criminal

[2:47:11] defend it, just because the court appointed that lawyer, does that make it a state actor

[2:47:18] from random purposes?

[2:47:20] If they're not that person's attorney, they would have to advise them, and they would have

[2:47:25] to come to me first, they would have to go to that person's criminal lawyer under the

[2:47:28] ethical rules.

[2:47:31] I think we should really apologize for that.

[2:47:36] May it please the court.

[2:47:37] My name is Juan DeVance, Council for the Apolle, the State of Georgia.

[2:47:40] This court should have affirmed the decisions of the trial court and the verdict of the jury for the reasons that we just discussed.

[2:47:48] Kendrick was correctly decided because as everybody recognizes, what a Kendrick actually holds, what's the holding of Kendrick?

[2:47:55] Kendrick comes very close to just saying per se, tal berth and pregnancy can be a physical injury and are a physical injury, although in Kendrick it still went to the jury and the jury, you return to verdict.

[2:48:07] So, that's the basic holding of Kendrick the way the state reads it.

[2:48:10] And we would assert that that was correctly decided that the trial court denied this special

[2:48:14] dimer on the basis of Kendrick in the underlying case.

[2:48:18] And that this court should affirm that trial court's decision because Kendrick was correctly

[2:48:21] decided back in 2015 and this court denied served on it in 2015.

[2:48:27] Further, when we look at a constitutional challenge for vagueness to the aggravated

[2:48:33] and specifically to the injury element, as this court has commented, it's an as-applied

[2:48:38] challenge, and it looks at the totality of the facts and the circumstances in the underlying case.

[2:48:43] And there were three specific witnesses that gave testimony about the injury to this child in this case.

[2:48:49] And then finally, robbing McCormick was a cost of worker that was appointed by the juvenile court.

[2:48:54] She's the one who went and talked to the appellant in the case.

[2:48:57] She was not a state actor and the trial court was correct in allowing the statements that

[2:49:01] the appellant made to her because she wasn't required to read Miranda.

[2:49:06] The fact that this case was significant because under all of the different arguments raised,

[2:49:10] this court is to look at the facts and analyzing the law.

[2:49:13] There were three children of the appellant that were all named victims in the indictment.

[2:49:17] At the time of trial, his oldest child that was named victim was Matthew who was 17.

[2:49:22] The child's Samantha was 14 at the time, she was impregnated by her father.

[2:49:26] she was 15 at the time of trial and 15 when she delivered her father's baby on her foster

[2:49:31] mother's recliner. And her youngest brother, Jake, it was 14.

[2:49:37] The child Samantha and her father went to a crisis pregnancy center in

[2:49:41] Hall County when she became pregnant for aid and assistance with the pregnancy and

[2:49:46] and she had questions. As my opposing council mentioned, it's significant in the case,

[2:49:51] actually that the appellant talked his daughter out of an abortion. So when we're talking about his

[2:49:56] knowledge of the possible penalties and what he was putting his child through, he knew she was

[2:50:02] going to have to endure the pregnancy and childbirth and he wanted her to because he talked her

[2:50:07] out of an abortion. That's within the record. So this case kind of came to law enforcement light when

[2:50:12] a 14-year-old who's pregnant shows up at a crisis pregnancy center and obviously at that point

[2:50:16] there's been some kind of crime, because she can't consent.

[2:50:19] So this was reported to law enforcement.

[2:50:22] Law enforcement became involved in the case.

[2:50:25] And everybody realized once they saw the interaction

[2:50:28] of the appellant with his daughter,

[2:50:29] that this was not a normal 14-year-old teenager.

[2:50:33] So she reported that the father of the baby was Ricky,

[2:50:37] investigator Corwin, who's present today,

[2:50:39] actually received some information.

[2:50:41] Took this child to a forensic and realized immediately

[2:50:45] that some of her details in outpriced were not realistic, they were very similar in language and

[2:50:50] detail to the appellant statements about how she got in pregnant and they weren't corroborated

[2:50:54] by any physical evidence. Not only was this girl pregnant, but her brothers were medically neglected.

[2:51:01] They were malnourished. All three children had to beg for money for food. It was in the record

[2:51:06] that they smelled so poorly of caracene that the school called in a gas leak on these children.

[2:51:11] And so even knowing this child, the pregnant teenager is saying that another boy impregnated

[2:51:16] her.

[2:51:18] You get into the statutory issue and the indictment and how this was properly charged

[2:51:25] and convicted.

[2:51:27] Absolutely.

[2:51:28] The state charged on aggravated total molestation and count 1 based on Kendrick.

[2:51:31] And when there was a special demirror filed, you know, we argued that on the trial court

[2:51:35] was correct.

[2:51:35] What let me ask you about, Kendrick, and in the interplay between that and the statute, in this case, not in Kendrick, in this case, what is the physical injury, the state charged and proved?

[2:51:49] Childbirth.

[2:51:50] And that was proven through the testimony of three witnesses.

[2:51:53] This child delivered again on her foster mother's recliner.

[2:51:57] The baby was born in the amniotic sex.

[2:51:59] Is that theory dependent upon Kendrick?

[2:52:06] So, Kendrick, is not essential to the state's theory in this case.

[2:52:11] We would agree with that, Joseph.

[2:52:13] Do you, does the state have a position as to whether or not conception, implementation,

[2:52:20] or any of the other things that are not part of the theory that you presented in this case constitute physical injury?

[2:52:28] The state would argue.

[2:52:28] This state would argue.

[2:52:34] Yes, Joseph.

[2:52:34] that is correctly decided that the pregnancy and child birth

[2:52:38] regardless of the fact that this case can be physical injury.

[2:52:43] Kendrick comes real close to just saying a per se rule,

[2:52:46] which isn't in the statute, and the state, in this case,

[2:52:49] isn't asking this court to find that.

[2:52:52] We would argue that the difference between some of the states

[2:52:55] that are cited by my opposing counsel that have codified

[2:52:58] that pregnancy and childbirth are injury,

[2:53:00] the difference between those states and Georgia

[2:53:02] Is that we kind of take that away from the fact finder and those states by statute just say simply the act of impregnating a teenager is an injury causing that child to become pregnant and deliver

[2:53:15] Kendrick, what do they say it's an injury or do they just criminalize it because they pass a criminal statute that says this is an aggravating factor

[2:53:23] Candidly justice. I didn't look at all of those different statutes. I think some of them

[2:53:28] say that you know, it's an it's

[2:53:31] This crime is committed by an injury and then kind of give different possible ways that the

[2:53:35] injury takes.

[2:53:36] I can't recall that at least in some of the states it was just saying, you know, injury

[2:53:39] or in the same way that here it says, poor Sodomy and it might just offer those as an

[2:53:44] independent basis, which I think actually, you know, weighs in at least on the Kendrick piece

[2:53:48] of this.

[2:53:48] I don't know if it weighs in on the facts of this case.

[2:53:50] Yes, justice.

[2:53:51] And we would argue that we're not asserting that that's the state of Georgia law or that

[2:53:56] should be. This is still an issue that goes to the jury in Georgia. Kendrick just gives support

[2:54:01] that it is a legal way to prove what goes to the jury is the fact question of what happened.

[2:54:09] And whether that is injury, whether the jury decides that that's sufficient and their

[2:54:14] purview as the fact finder to determine that we've proven that I want to. Well, I mean, there are

[2:54:17] certain facts that a jury could find that as a matter of law simply aren't injury, right?

[2:54:26] It's hard to imagine that in the context of this statute, but sure, I mean, there are things that we could prove that aren't injured.

[2:54:31] I mean, there are all sorts of things completely unrelated to this case that just aren't the sort of facts that constitute injury.

[2:54:38] Sure. Like once, but all of that is angels dancing on ahead of a pin, because for purposes of this case, because in this case,

[2:54:46] It is conceded that childbirth is physical injury.

[2:54:49] It is conceded that that happened here and it seems patently obvious that the childbirth

[2:54:56] was proximately caused by the child molestation.

[2:55:00] And so whether or not there might be some interesting philosophical question in a future case

[2:55:06] that philosophical question does not arise here, right?

[2:55:10] We would agree with that.

[2:55:11] That your decision, in this case, ends with the facts of this case supporting the indictment.

[2:55:18] Again, the baby was born in the fact, and the testimony was that this child tore more

[2:55:21] extensively needed stitches and prescription level pain medicine for some time after the birth,

[2:55:27] because she delivered without any medical attention.

[2:55:30] Further, it's significant in terms of a fair reading argument and whether or not the appellant

[2:55:35] in this case would have been on notice as to whether he was looking at 25 years

[2:55:39] life for injuring a child when you consider the fact that it's in the record that he wanted

[2:55:44] her to give birth. You know, it's obvious that you can have sex with teenagers and not

[2:55:50] impregnate them or there's certainly ways to try, and he does the record reflect anything with

[2:55:56] respect to that question preceding the child molestation.

[2:56:02] Here is state of mind after the child molestation really relevant to the question of, you follow

[2:56:09] question? Yes, Justice. There was, and I can't remember where it came out. There was some evidence

[2:56:16] that there were condoms found and that it different times. There had been some attempts.

[2:56:20] It doesn't really matter. Does it, right? Under the criminal law, if you commit an act, you're

[2:56:25] responsible for the natural and foreseeable consequences. If you want those to happen, that's great,

[2:56:32] but lots of times you don't want those to happen and that doesn't matter, right? We would agree with

[2:56:38] justice. It's actually codified and the jury was charged in the jury charges by the trial judge.

[2:56:43] I'm not sure why whatever happened after the act really makes any difference to that other than

[2:56:49] deciding maybe it doesn't feel as unfair. But I suppose that's the state's argument that in terms

[2:56:54] of an as-applied challenge we have not only the natural and foreseeable consequences, but his verbalizing

[2:57:00] his desires and his specific intent. And we would argue that that is an important factor when you're

[2:57:05] talking about a fear-reading and what he thought he'd be on the hook for in terms of sentencing,

[2:57:09] what his intent.

[2:57:09] Except that none of that actually matters to the statute, right?

[2:57:14] Because if you would argue, his subjective intent as to the consequences of his actions,

[2:57:18] none of that matters to the statute, right?

[2:57:19] Not to the statute itself, but when you're arguing about it and as applied challenge,

[2:57:23] you look at all the facts and circumstances.

[2:57:24] And in terms of whether he would be on notice, whether he would have a fair interpretation,

[2:57:31] in knowing what his interpretation doesn't matter at all.

[2:57:35] It would be the interpretation of a reasonable or dairy person, justice.

[2:57:40] For all of these reasons, the state is reserving this court to follow, Kendrick, to find

[2:57:44] that Kendrick was properly decided.

[2:57:46] I mean, that Kendrick part is still bothering me, though, because I'm still not sure what Kendrick

[2:57:50] holds.

[2:57:51] I've read it a few times now.

[2:57:53] I think the narrowest reading of it is that it talks about pregnancy and it talks about childbirth

[2:58:00] and then conclude that based on the statutory requirement, the record supported the physical

[2:58:05] injury.

[2:58:06] There's a lot of other stuff in there.

[2:58:07] I'm not sure where the debt is and the holding begins, but asking us to follow Kendrick,

[2:58:14] I thought you had conceded earlier in the argument that we don't have to follow Kendrick.

[2:58:17] We don't.

[2:58:18] The only real reference in Kendrick to childbirth is in footnote 8 where it says the party

[2:58:22] is conceded that that was a fact question for the jury,

[2:58:28] right?

[2:58:28] Yes.

[2:58:28] And that that issue was not raised in the appeal.

[2:58:31] Well, they were raised in issue of, I guess, the demurray and whether or not the indictment

[2:58:35] in that case would, could support an aggravated top molestation.

[2:58:41] The State is asking you to do so.

[2:58:42] But to the extent that Kendrick deals with the question that is raised in this case, footnote

[2:58:47] eight, where it says the party is agreed, and the issue wasn't raised in the appeal seems

[2:58:54] to be really the only reference Kendrick makes to that.

[2:58:56] And I would agree that this court doesn't have to decide Kendrick.

[2:59:01] If Kendrick had never existed, and the Fulton County District Attorney's Office had never

[2:59:05] taken that case to trial, the state is arguing that under a fair reading of aggravated

[2:59:11] child molestation and the facts in this case, our indictment would still have whisted a

[2:59:15] general to a special tomorrow, and the jury still would have been entitled to convict based

[2:59:20] on the facts in this case.

[2:59:21] So while the state does think Kendrick is good law,

[2:59:26] we're not asking you necessarily to base your decision on that,

[2:59:29] but to base your decision on the statute itself and the evidence.

[2:59:32] Do one other question on Kendrick?

[2:59:35] So Kendrick, trying to define injury, lots of dictionaries,

[2:59:38] including the one that Judge Miller, D.C.

[2:59:41] in his concurrence and define injury in terms of harm or damage.

[2:59:47] The majority in Kendrick defined Injury from the Blacks Law Dictionary in 1990 as

[2:59:55] impairment of physical condition.

[2:59:59] When we're trying to figure out

[3:00:00] You're out what the ordinary meaning of words are. Do we look in dictionaries of legal terms?

[3:00:07] And do you think any impairment of physical condition qualifies as harm or damage or is that a little bit broader?

[3:00:17] Perhaps any impairment of physical condition might be a little broad. When you read this within the context of aggravated child molestation and other types of injuries that you might

[3:00:28] Imagine for aggravated trauma-estation.

[3:00:30] I mean, any impairment in physical condition

[3:00:32] can be a step-toe or a paper cut,

[3:00:34] like we were talking about earlier.

[3:00:36] And that might be a little bit broad

[3:00:38] in terms of an ordinary person reading aggravated

[3:00:40] trauma-estation statutes wouldn't interpret as injury.

[3:00:44] But regardless, in this case,

[3:00:45] there is clear extensive perennial tearing

[3:00:48] in the record and testimony from three different witnesses,

[3:00:51] specifically, I believe two witnesses

[3:00:53] talked about tearing and suturing.

[3:00:54] And the fact that she was stitched up.

[3:00:56] I mean, but I think your brief endorsed Kendrick's view that if we look at the legal dictionary that we should use that broad definition.

[3:01:07] I mean, however we decide this, even if we focus on childbirth, we start to figure out what the definition of physical injury is.

[3:01:17] So I want to make sure if you're asking us to adopt that broader black saw dictionary definition

[3:01:25] or perhaps, although I'm not 100% sure in narrower view of everyday dictionaries.

[3:01:32] Just to say, you know, when thinking this through, in terms of the Kendrick decision-sighted black

[3:01:37] slobbos, injury is damaged on to a person, bodily injuries, impairment, a physical condition.

[3:01:41] If we're talking about bodily injury and the context of other statutes in the Georgia case,

[3:01:45] such as kidnapping with bodily injury,

[3:01:48] things such as the scratch or a bruise,

[3:01:49] any kind of impairment.

[3:01:51] Probably be the hard thing for pregnancy,

[3:01:53] if you define it in terms of impairment

[3:01:55] of physical condition, it's pretty obvious it is.

[3:01:59] If you've ever been near somebody who's pregnant,

[3:02:01] at least later on.

[3:02:04] If you define it in terms of harm or damage,

[3:02:07] that becomes a much more difficult question.

[3:02:12] So it makes a difference how we define the term,

[3:02:15] And it may apply, put aside all pregnancy and childbirth,

[3:02:18] it could apply to other things that happen to children

[3:02:20] who were molested, whether we say, you know,

[3:02:24] a certain thing is just something that affects

[3:02:27] their physical condition or whether it's perceived

[3:02:30] as harm or damage.

[3:02:32] The state would urge that an impairment is an appropriate

[3:02:36] interpretation of the definition of enter,

[3:02:39] taking from blacks.

[3:02:41] It's pregnancy, a technical term, a term of art.

[3:02:47] Pregnancy would be both a lay person's sense of the word pregnancy and also a

[3:02:52] scientific term. So, so let's go with a lay person. Does a lay person generally

[3:02:55] look upwards? You know when your kid comes home from school and they ask you

[3:02:58] what a word means to you just be aligned to the Blacks Law Dictionary?

[3:03:03] We do in my house.

[3:03:04] Well, frankly, just as we kind of do in my house also, no ordinary people don't have

[3:03:10] Blacks Law, they don't know what that dictionary is. They would look at, you know, if they

[3:03:14] looked at any definition, they're going to Google at this point.

[3:03:17] And online, Mary and Websters are Oxford dictionary.

[3:03:20] And we would argue that the concurrence in Kendrick talks

[3:03:23] to talk about just normal dictionary definitions.

[3:03:27] And we're arguing that it's not that different.

[3:03:29] It's not the same.

[3:03:30] They don't really focus on the impermanent.

[3:03:32] Well, and that's what the statute for aggravated child

[3:03:35] molestation has been interpreted for years

[3:03:38] that pain in a child's descriptions of pain

[3:03:40] or significant enough to prove injury.

[3:03:43] that that can get that charge to a jury, but the law itself talks about injury.

[3:03:49] I mean, to give you just put it aside pregnancy, but a child who has aggravated child

[3:03:56] who is molested and has mental consequences from that, which are quite common and emotional

[3:04:03] consequences that make the child not continue to work out, and so the child's physical condition

[3:04:11] deteriorates, so there is an impairment of physical condition, but the child has no

[3:04:18] expressible physical pain or physical damage gets trickier. I mean, but it makes a difference,

[3:04:27] whether you define it as a consequence of a physical deterioration or harm or damage, which is

[3:04:35] more positive description of pain.

[3:04:40] Yes, Justice.

[3:04:42] I mean, we would argue that, you know, it's common ordinary people would understand that

[3:04:48] children who are molested have mental deterioration, have psychological effects, and that

[3:04:52] these cause physical effects.

[3:04:54] But the statute does not cover any of the mental issues.

[3:04:57] No, it doesn't.

[3:04:58] But we would argue that if a prosecutor was able to show physical effects in some kind of

[3:05:04] or some kind of impairment due to psychological PTSD, mental health issues, then if a jury

[3:05:12] found that that was proof that that would be sufficient.

[3:05:17] I'd like to go on to the State Act for issue, as I have just a few moments left, and we

[3:05:22] would also ask that you affirm on that issue, our trial court found that our cost of work

[3:05:26] or who was a volunteer, who was not a lawyer, who was not involved in the Superior Court

[3:05:31] criminal case that she was not acting as a state actor to when she went and talked

[3:05:35] to Mr. Daderia when he was in custody. And the factors in terms of this child's outcry

[3:05:40] also support that determination. The facts in the case is found by the trial quarters that

[3:05:45] robbing McCormick was acting as a friend to the child. There was no evidence, no suggestion

[3:05:53] that she had coordinated in any way with law enforcement when she went and talked to Mr.

[3:05:57] area when he was in custody. And there are Georgia cases going back decades that discuss

[3:06:03] state actors and what a state actress. There are two specific cases that find defects, workers,

[3:06:07] and Georgia are not state actors. We disagree with you on that point. Would you have a harmless

[3:06:12] error argument? Absolutely. And that's why again, the facts in this case are not only

[3:06:17] salacious and terrible, but they're very relevant for this courts analysis. We would urge

[3:06:21] that you're not going to get to harmless error because it's clear that a cost of volunteer,

[3:06:25] that's not a lawyer that's not involved in the criminal case or the superior court case is not a

[3:06:30] state actor when there's no communication prior to her getting any statement.

[3:06:35] But if this court does decide that she's a state actor, then even under my coat, my opposing

[3:06:40] council's cases, we would get to a harmless error analysis.

[3:06:43] Let me make sure I understand just there is nothing in the record that would indicate that

[3:06:49] the cost in this case had any before her contact with the defendant, any contact with

[3:06:54] prosecutor law enforcement of any sort.

[3:06:57] I'm not saying that she had no contact, although we believe that the law enforcement officer

[3:07:01] testified she didn't discuss the factors or her suspicions or ongoing investigation with

[3:07:08] the cost of worker. The cost of worker knew he had been arrested. I'm new he was in custody.

[3:07:13] What we're suggesting is there is no discussion of whether the cost of workers should ever talk

[3:07:18] to him, what she should ask, how that should take place if that should ever take place.

[3:07:22] In terms of the harmless error analysis, the Jackson case out of the second circuit that the

[3:07:28] balance sites lays out the harmless error analysis, and it does make the facts relevant

[3:07:33] because in Jackson, they specifically cited that there was no scientific or physical evidence.

[3:07:39] In this case, the state had six crime lab witnesses, including two that ultimately concluded

[3:07:45] But it's 848,000 times more likely a Pellon is the father and grandfather.

[3:07:50] Thank you, thanks.

[3:07:51] Thank you so much.

[3:07:52] All right.

[3:07:53] I neglected to mention that just as being him is not here, but he'll be participating

[3:07:56] in all cases that are already this afternoon.

[3:07:59] Thank you.

[3:07:59] But thank you to Council for both sides, Mr. Barnes, for the last case for the afternoon.

[3:08:06] Thank you.

[3:08:09] State versus Monquids Jackson, Harold Morrowds, for Pellon, in Great Riskal, for

[3:08:14] FLA.

[3:08:37] Maybe.

[3:08:37] May I please the court?

[3:08:43] Your honours, I appear here.

[3:08:45] My name is Hal Maros.

[3:08:46] I am the District Attorney and Assistant District Attorney in

[3:08:51] Dirty County.

[3:08:52] I appear here with Mr. Greg Edwards.

[3:08:54] He is the District Attorney for Dirty County.

[3:08:58] This case involves not so much evidence that was presented for a trial,

[3:09:03] but it involves the closing statements of the prosecutor

[3:09:07] and whether the order of the trial court, indicating that the statement made by the prosecutor

[3:09:17] was ten amount to a subversion of the constitutional protections and a goding of defense

[3:09:24] counsel into asking for a misstrile constitutes judicial abuse of discretion. And the state would

[3:09:35] does. And the state would argue that on several grounds, one being the factual basis that

[3:09:43] the court used to make that determination, and by the court, I obviously referred to

[3:09:48] the trial court, was based on facts that were not in the record. And I'll explain that.

[3:09:57] And facts that were not in the record were used as an analysis of whether this was

[3:10:04] can amount to a goating, if you will, that constituted a dismissal of the trial and a dismissal

[3:10:17] of the charges.

[3:10:19] There was an issue with double jeopardy that was raised and cleaned and barred and that

[3:10:23] was accepted by the court.

[3:10:25] The state would proper to your honors that these statements of the prosecutor was not only

[3:10:33] reasonable inference, but it was invited under the doctrine of an invited response.

[3:10:41] With that said, it would benefit knowing the nature of this case.

[3:10:48] In 2012, there was a murder in Albany, Dordie County.

[3:10:54] In that murder, a gentleman was charged.

[3:10:58] His name was Monquelles Jackson.

[3:11:00] There were others involved this well.

[3:11:01] There was an accomplice to Mr. Jackson, our name was Sadie Britt, that a accomplice turned

[3:11:09] out to be the state's star witness against Mr. Jackson, a gentleman by the name of

[3:11:17] Westbrook, Anthony Westbrook was murdered in 2012,

[3:11:24] our case is star witness, Ms. Sadie Britt,

[3:11:27] injected the name of a potential witness to be used during trial.

[3:11:34] That potential witness was a lady by the name of Porter.

[3:11:39] Porter was listed in Wanderer and on the list of witnesses as a potential witness for the state.

[3:11:47] She was also mentioned by the prosecutor who happened to be Mr. Greg Edwards at trial in his opening statement.

[3:11:57] Based on his decision, he decided not to call Ms. Porter as a witness, nevertheless Ms. Britt, who was a witness for the state, did testify

[3:12:14] that Ms. Porter assisted her in cleaning a ban that was used.

[3:12:21] Now, we believe that that ban was used and just to begin where this case started at Mr. Westbrook's house.

[3:12:31] He was having some type of relationship with Ms. Brit. Ms. Brit's husband, who is Mr. Monquist, Jackson, arrived.

[3:12:41] Mr. Westbrook was in the shower. He was ordered out of the shower.

[3:12:45] The state believes he was taken in a van, along with Ms. Porter and Mr. Monquest Jackson, the

[3:12:53] defendant that it would take into a bank where money was taken out of Mr. Westbrook's account.

[3:13:02] They would then transported to another part of the city of Albany, where Mr. Westbrook was ordered

[3:13:09] out of the van.

[3:13:10] And they can't, I don't want to interrupt, but the truck court judge, the order that you

[3:13:17] are challenging, it seems to me is exceptionally detailed relative to most truck orders of

[3:13:24] this sort.

[3:13:25] It's 27 pages long, it's got a bunch of factual findings.

[3:13:30] We typically defer very heavily to factual findings that are made by a truck court, particularly

[3:13:35] when those findings relate to things that are going on in that litigation, which factual

[3:13:43] findings ought we to find were clearly erroneous and why?

[3:13:47] Thank you, Rhonda.

[3:13:49] The trial court found that the prosecutor violated an order of the court that order being on

[3:13:57] motion and limiting on the day that closing arguments began that day being August 4th, 2017.

[3:14:07] You're under there were hearings on this matter post trial after the declaration of mistrial.

[3:14:16] The state repeatedly asked for the identification of that order pursuant to that motion and

[3:14:22] that restricted the state from commenting at all on this matter.

[3:14:29] That order was never discovered.

[3:14:32] It was never produced by the court.

[3:14:35] And that was pre-order.

[3:14:39] And even in the order,

[3:14:41] the trial court says that the prosecutor violated

[3:14:46] his own motion and limiting that the trial court ruled on.

[3:14:50] and Sir, the trial court did not prohibit the state from commenting on that.

[3:14:57] You're right, Sir, the oil.

[3:15:00] Is rabble long. And interestingly enough, the order in Part 3 section C is dedicated to district attorney

[3:15:10] Gregory W. Edward, that's the title of that section of the order. Where it goes into an elaboration

[3:15:19] of the record of Mr. Edward to assert the district attorney's office, I believe, entering

[3:15:26] in 1990. He became the elected district attorney in 2008. First African-American to hold the district

[3:15:35] attorneys office in Tardi County.

[3:15:38] Could we focus on the findings, in fact, that you think we're clearly erroneous. In other words,

[3:15:43] I understand that there may be some extraneous matters that you don't think are relevant, but

[3:15:48] in terms of reviewing the trial court, we're reviewing the facts which have to be clearly

[3:15:53] And then, in this case, an abusive discretion standard based on those facts.

[3:15:59] Yes, sir.

[3:16:00] And in answering that, that's part of this.

[3:16:04] This section is actually dedicated to elaborating on how experience this prosecutor is.

[3:16:11] How he was recruited by the national prosecutors to train prosecutors across the country.

[3:16:19] wrong is that error? No, so you're not talking about it.

[3:16:23] You're on it. That's the foundation where we found

[3:16:27] Mr. Edwards could not have possibly

[3:16:30] have mentioned this statement

[3:16:33] in closing argument, because he was so experienced,

[3:16:37] so trial-prepared, such an educator.

[3:16:41] I think he could have gotten it. Isn't that relevant to determining intent?

[3:16:45] I mean, if you're trying to figure out

[3:16:47] All these cases are pronounced on the idea that the prosecutor did something wrong to trigger

[3:16:52] that is worthy of a mistraught. And I don't understand you really fighting the factor was

[3:16:58] mistrial. The question is, was it a mistrial based on basically a well-intentioned overreach

[3:17:06] or was it a mistrial based on, I'm trying to get a mistrial? Yes. So the issue there depends on

[3:17:17] You know, it's hard on how experience the prosecutor is a very inexperienced prosecutor may

[3:17:23] do something without realizing what they're doing, a very experienced prosecutor is

[3:17:28] less likely to do something without realizing what they're doing.

[3:17:31] Yes, you run.

[3:17:32] And I think your points well taken because yes, you must review the history of the prosecutor

[3:17:37] in question.

[3:17:38] So why are you complaining about the court revealing it?

[3:17:41] I'm not complaining about that, you're on the bottom line of me even speaking about

[3:17:47] this is there is now one recorded history in the long career of Mr. Edwards, that he has ever

[3:17:53] got it and he won't ever been accused of going in any.

[3:17:56] You're trying to look at the order and see what's wrong with it. You're spending some time

[3:17:59] on the fact that he's experienced, you can see that experience has relevant. What else about the

[3:18:04] order is error that we can put our hat on, hang our hat on to. You're on a, I will, I will start

[3:18:15] with two points.

[3:18:16] One being the fact that the trial court misstates the facts, Mr. Edwards did not violate

[3:18:25] an order of the court.

[3:18:26] That's the first thing.

[3:18:27] And you're saying that, or it never happened, or that order is not in the record.

[3:18:32] That order is not in the record.

[3:18:33] It never happened.

[3:18:34] It was a motion and limoniser, and out of that motion and limoniser, which was, in essence,

[3:18:42] Mr. Edwin's had asked a trial court to restrict both defense and prosecution from mentioning

[3:18:50] this individual to make a quarter.

[3:18:54] That was the individual who did not testify as a witness.

[3:18:57] So we have case law saying that a mistrial may be appropriate even when there's been no order

[3:19:03] prohibiting the argument that's made.

[3:19:06] So why does it matter whether the order was made?

[3:19:08] Because, you runner, it was the foundation of not only, it's private.

[3:19:14] I get that the judge says there was an order.

[3:19:16] So it may be that the judge was wrong about that.

[3:19:19] But let's say that there was no order.

[3:19:22] If there was no order, does that make the remarks that were objected to during closing proper?

[3:19:32] If you're not saying that the granting of the mistrial itself was error,

[3:19:39] Then the only issue left is intent.

[3:19:43] Yes, and sir, this Court has said,

[3:19:47] it's not a question of how it reaches the conduct of a prosecutor is.

[3:19:52] It is its intent.

[3:19:54] And what is his intent to go the defense into asking for a

[3:19:59] mistrial or to circumvent a constitutional protection against

[3:20:05] And the judge found as a matter of fact that it was in fact his intent in part because the evidence in the case was not terribly strong.

[3:20:15] What about that factual finding about intent?

[3:20:18] How could what about Ronius?

[3:20:21] You're under to analyze that one would have to say, what precipitated this comment by the prosecutor?

[3:20:29] That's what I'm saying.

[3:20:30] Okay.

[3:20:31] The act that precipitated the comment of the prosecutor was a comment by defense on words to

[3:20:40] be effect and acted put them directly, but they were in tune with, I wonder what this

[3:20:46] misporter would have said, and would have told us, basically why wasn't she presented

[3:20:52] by the prosecutor.

[3:20:54] This court in Powell said that prosecutors have the right to re-fix the scale.

[3:21:03] Well, they can re-fix it.

[3:21:05] It would have been proper in response potentially to say, what would she have said?

[3:21:10] We don't know because we didn't call her the defense house or has the right to call her if they wanted to know what she would say.

[3:21:16] What you can't do is say in response to what would she have said, I'll tell you what you would have said.

[3:21:22] I'll give you all the evidence I feel like that you would have said.

[3:21:26] I mean, there's no question at all that is not a proper response to a question of what

[3:21:33] would the missing witness have said to tell the jury what you assert the missing witness

[3:21:38] would have said?

[3:21:41] I mean, that's just flat out not allowed.

[3:21:44] You're on a may I comment on that because I would like to.

[3:21:48] Well, that's why you're here.

[3:21:50] Right, my question is you, are you saying that that was a proper response?

[3:21:56] I'm not saying that was a proper response.

[3:21:58] I'm saying was that a prejudicial response to the degree that it would trigger a

[3:22:04] mistrial and a double jeopardy that would bar a retrial.

[3:22:10] And the answer is this.

[3:22:11] The comment was made about a witness that was not the defendant.

[3:22:16] The comment was not made contemporaneous with an act of murder, it involved an incident post-murder

[3:22:26] that did not implicate on its face, the defendant.

[3:22:31] It wasn't no prejudice against the defendant.

[3:22:34] That's what I'm saying to the court.

[3:22:36] And when you then say, well, you know what?

[3:22:39] It did prejudice.

[3:22:40] So who gets to make that determination in the first instance?

[3:22:44] Who gets to make that determination in the first instance?

[3:22:49] The trial courts.

[3:22:50] And they made a determination contrary to your argument.

[3:22:54] And we review that determination for abusive discretion,

[3:22:58] and we review the factual pieces for clear error, right?

[3:23:02] Yes, sir.

[3:23:03] So while you may make a persuasive argument,

[3:23:06] The trial judge who sat there and heard the trial and heard all of the witnesses that did testify

[3:23:13] and listened to all of the argument made a determination the other way, and you have to tell us that that was an abuse of the course discretion.

[3:23:21] Thank you for bringing that up, sir. And let me respond to that.

[3:23:25] Because the initial response of the trial court was Mr. Edwards made a reasonable inference based on the testimony of Sadie Briss.

[3:23:35] the witness. The trial court says that it's in the record. He agreed with Mr. Edwards.

[3:23:42] It was a reasonable inference. And this court has repeatedly championed the idea that

[3:23:49] the process should be initially said, but that's not what he ruled. Sir, when a trial court

[3:23:57] makes a rule, when a trial court says, I find there was reasonable inference, and he does this

[3:24:04] go to the conversation you had with the presiding justice whether it was a reasonable

[3:24:09] inference or not it was an improper argument you're on a whether it was proper or not

[3:24:17] it was an invited response from the defense now we might call it many names we might call it

[3:24:25] egregious we might call it that's unacceptable but do we call it an intentional goody do we call

[3:24:33] answer, and do we call it that when we say the facts, say first, first he violated in order

[3:24:42] of the court. It is this fascinating effect that says based on the circumstances and the

[3:24:48] evidence and the law and the evidence as I find it and the evidence is found in facts, there

[3:24:54] is no fact of the violation. The order, I mean I don't know if there was an order. There was

[3:24:59] representation made by the district attorney to the court about what he would argue in closing,

[3:25:06] right? He told the court after the colloquy about the motion in Liminae. He made a representation

[3:25:12] that I am not going to motion in Liminae if the court is going to allow it to the extent they

[3:25:17] had discussed and he would adjust his argument. And then he claims that it was an invited response,

[3:25:26] But when you tell the court, I'm not going to do it other than what you said I could do,

[3:25:32] which was I can say that the charges against her have been resolved and we had planned to testify.

[3:25:40] Even if you think maybe something has changed, can you just say, well, I made that representation,

[3:25:45] but now I don't feel like it because I was invited to do something else.

[3:25:50] Just enough you call it an order, but.

[3:25:53] Sir, I consider every word of direction out of the mouth of a trial court judge in order.

[3:26:00] We have a trial court judge who says it was a reasonable inference.

[3:26:04] We have a trial court judge if you look at the record who is setting that trial for the following week.

[3:26:10] But for a motion by defense and clean bar for double jeopardy in this missile of the charges,

[3:26:18] I get all that, sir.

[3:26:20] What I'm saying is this, we have a trial court that said,

[3:26:25] one thing closest to proximity of the trial and the events

[3:26:29] in recalling those events.

[3:26:31] And months later, months later, issued in order

[3:26:36] that was extensive and nevertheless left out

[3:26:39] a few details and facts, actually added facts

[3:26:43] that were not in the record.

[3:26:44] And that's why I started off with this order

[3:26:47] that is non-existent.

[3:26:49] Other than the experience of the district attorney, are there any other facts that were added that

[3:26:54] are not in the record?

[3:26:56] You run their, there are.

[3:26:59] And I would say there's a fact of omission in the record.

[3:27:04] And we read in this record that the, in the order rather that this district attorney somehow,

[3:27:17] somehow argued this matter and kept

[3:27:29] in the case.

[3:27:31] This is what this case I think is about.

[3:27:35] When I get up and I do a closing argument,

[3:27:38] and I quote somebody like Edmund Burke and say that,

[3:27:42] you know, all that is necessary for evil,

[3:27:45] the triumph is for good men to do nothing.

[3:27:48] And my injecting is something prejudicial to the defense.

[3:27:52] No, because it's not evidence.

[3:27:54] No, sir.

[3:27:55] But if I make a statement that does not involve the defendants,

[3:28:00] if I make a statement that does not involve the defendants,

[3:28:01] if I make a statement that does not involve security.

[3:28:02] You can't say what witnesses who never appear to trial

[3:28:05] would have testified to.

[3:28:07] You can't ever say that.

[3:28:08] You can't say it in opening.

[3:28:09] You can't say it in closing.

[3:28:10] You can't say it anywhere.

[3:28:12] It's not evidence to say things that some people who are not

[3:28:15] trial said.

[3:28:19] The district attorney testified on the hearing on the

[3:28:22] plea and bar, right?

[3:28:24] Yes, sir.

[3:28:24] I mean, looking at this record, personally, if I were the

[3:28:28] trial judge, I can understand why I would have said, now this

[3:28:31] maybe this was bad, that I wouldn't grant.

[3:28:34] I've made me not grant a mistravel, maybe I wouldn't allow

[3:28:38] bar a second trial.

[3:28:40] But when I, I'm not that trial judge, I saw, if the trial judge

[3:28:44] He's the witness say I didn't intend to go to him into it.

[3:28:48] And the trial judge doesn't believe that and says I think you did.

[3:28:52] How can we reverse that?

[3:28:55] Just say one fact of seeing the person who's

[3:28:59] intent your evaluating, testify about it.

[3:29:03] You may I respond to this question.

[3:29:07] Sir, there is going with the intent for this trial.

[3:29:14] The normal juxtaposition between defense and prosecutor that is barbs and perhaps we could

[3:29:24] call go to it, but it is not an amount, not an amount to a subversion of a constitutional

[3:29:30] right, nor to grab a experienced defense counsel and say, you know what, I go to you

[3:29:38] and doing this because my experience.

[3:29:41] Thank you for hearing.

[3:29:43] Thank you, Councillor Strisco.

[3:29:48] Mayor, please court.

[3:29:49] Good afternoon.

[3:29:51] On behalf of Apple,

[3:29:53] my prayers direct and I respectfully request that this court

[3:29:57] affond the law courts.

[3:30:00] Granting our motion to dismiss plea and bar. I want to first start with what an order is.

[3:30:09] An order is simply defined as an authoritative command direction or instruction issued by one and authority.

[3:30:16] trial judges issue orders all the time when they tell us we're going to

[3:30:22] adjourn for today be back at 9 a.m. to commence court that is an order it's

[3:30:27] not reduced to writing in most times and this particular case right before

[3:30:32] closing arguments began the district attorney made a motion in

[3:30:36] eliminate and in that motion in eliminate he sought to preclude any mention of

[3:30:42] of Tamika Porter.

[3:30:44] Now what's pertinent about Tamika Porter is not that just

[3:30:47] that she was a witness who didn't testify.

[3:30:50] She was a codependent, whose charges had already been resolved,

[3:30:55] who they chose not to call to testify.

[3:30:59] My client went to trial solo.

[3:31:02] He had two codependents, Sade Britt,

[3:31:05] who was arguably the star witness, and her brother,

[3:31:08] But Dwayne Brit, who was also a codependent, both of them had charges that had already been

[3:31:14] resolved against them.

[3:31:16] The bulk of the evidence, actually all of the testimony, in the case that related to my

[3:31:23] client's alleged involvement, came from those two witnesses, Sudde Brit and Dwayne Brit.

[3:31:29] And after extensive cross-examination of both of them on the stand, it was worn out that

[3:31:36] their statements didn't even match up with each other.

[3:31:38] that information came out when we had the hearing on the motion from

[3:31:41] neutral when Mr. Ed was actually testified, and I took him through several instances

[3:31:46] during the trial where the testimony of those two codependents didn't match up.

[3:31:51] I bring that to the court's intention for that reason. That's why it was so harmful for

[3:31:59] the state to bring and to make a porter's statement, what she would have said, because

[3:32:05] what she would have said would have been corroboration to what one of the codependents who

[3:32:11] did testify say.

[3:32:16] It was an order issued by the trial court when the court made the determination,

[3:32:21] even after Mr. It was withdrew his motion and eliminate. The court had already said it wouldn't

[3:32:31] be proper to talk about it since that's not an evidence. He was actually talking about discussions

[3:32:36] regarding any plea deals that were made. I responded to the court, well, I should be able to talk

[3:32:41] about to make a porter because he mentioned her and closed in opening statements, but chose

[3:32:46] not to call her. And Judge Lockett, the trial court said, if he said that in opening, you can refer

[3:32:52] back to what was sitting opening. And in my closing argument, that's all I did. That is all I did.

[3:32:59] There were a number of witnesses that the state didn't call. One of them was to make a porter.

[3:33:04] I wonder what she would have said, and that was the extent of it.

[3:33:08] The problem is, when the district attorney got up, instead of him just saying, well, we made

[3:33:13] our decision, a tactical decision not to call Ms. Porter.

[3:33:17] He went so far as to say, and we didn't need her anyway, because all she would have said

[3:33:23] is that she went out and cleaned up the car, and he didn't say it, not one.

[3:33:28] And also, in referencing what I think you represent as a verbal order, I thought I heard

[3:33:35] you say he was talking about discussions about plea.

[3:33:40] Well, that's what the trial.

[3:33:42] Where in the record is the order from the trial verbal or written that said you are not

[3:33:48] to talk about misporter beyond the reference from opening argument?

[3:33:53] He doesn't say it like that. He just agreed with my assessment.

[3:33:59] If he based his order on a factual finding that there was an order prohibiting this discussion,

[3:34:07] or a standing order, in order that predated the closing argument, would that be an erroneous

[3:34:14] fact finding? No, you're on it because he based the decision on the culmination of everything

[3:34:21] that had come in. I should have став it with the first order made with regard to the

[3:34:27] an invisibility of any reference to Tomica Porter and what she would have said would

[3:34:32] have been, when they had the investigating officer on the Stanton. She pounds.

[3:34:38] Mr. Ed was asked her, did you have your discussion with any witnesses? She responded?

[3:34:45] Yes. Did you speak with Tomica Porter?

[3:34:47] But she responded, yes, he then asked, what did to make a port, it's hell you relative to who was involved.

[3:34:55] At that time, I interposed an objection.

[3:34:58] We approached and I explained to the judge that was innermissible hearsay.

[3:35:02] He's trying to elicit evidence about what to make a port as said, and he is not called her as a witness.

[3:35:09] The court inquired with Mr. At was, if that's what he was planning to do.

[3:35:13] He was, he's, and actually what he said was,

[3:35:16] At this point, I haven't decided if I'm going to call her as a witness.

[3:35:20] The court sustained my objection because it was in municipal hearsay.

[3:35:24] So that was the first order.

[3:35:26] You can't talk about her because you chose not to call her as a witness.

[3:35:31] The second time it came up was when they were in the process of playing a statement made by

[3:35:38] Sadebred.

[3:35:40] I knew that that may be some reference to Jamaica Porter and what she said.

[3:35:44] So outside the presence of the jury, I explained to the court that I did not want any information

[3:35:50] to inadvertently be played for the jury, where you referenced what to make a port of

[3:35:55] say it when she's not going to be called as a witness.

[3:35:58] So outside the presence of the jury, we listen to the tape for about 20 minutes to make sure

[3:36:03] that there was no mention of what to make a port of say it.

[3:36:06] So that was the second time.

[3:36:08] Then we have the third time, the motion and limity, when he made the motion and when I say

[3:36:13] he missed it. It was a disciplinary. He made the motion to preclude me from making any mention

[3:36:19] of to make a porter and what she would have said. Now, the reason is because the entirety

[3:36:25] of to make a porter statement would have been harmful to the state. Not only would to make a

[3:36:31] porter have said, well, I went over there and I cleaned up the car, but I also, when I talked

[3:36:36] to Saturday, Brett, she admitted to me that she shot him in the back of the head twice. So that

[3:36:42] the reason the state did not want to put her on the state.

[3:36:45] What is the record evidence of that?

[3:36:48] Of what?

[3:36:48] That's what Mrs. Porter would have testified to.

[3:36:52] In the motion for neutral right after I made the motion,

[3:37:04] this would have been in the argument right after.

[3:37:10] The objection was made after the closing after the improper statement was made in the closing argument.

[3:37:17] I apologize, I don't have that reference with me right now, but it was in the discussion

[3:37:21] that was had outside the presence of the jury with me.

[3:37:24] The record evidence of what Ms. Porter would have said.

[3:37:27] I mean, your representations to the judge is not evidence of what Ms. Porter would have

[3:37:32] said.

[3:37:32] Well, Ms. State, I was acknowledged it as well.

[3:37:35] There is no evidence.

[3:37:36] Now, it was nothing.

[3:37:37] Put in the record, I believe there was a transcript of the allocation of her statement that

[3:37:44] was made at some point.

[3:37:45] that transcript in the record, it should have been made part of the record.

[3:37:53] But the problem

[3:37:54] and the reason I brought that up is to demonstrate why it was so harmful for Mr.

[3:37:59] Ed was to point out one part of Mr. Porter's statement, but not the entirety of the statement.

[3:38:07] With regard to him responding as an invited response, the state side's power versus the state

[3:38:19] 291 Georgia Peel 743, that case can be distinguished from this case and the power case

[3:38:25] that was brought up on an ineffective assistance of council claim, but what happened in that

[3:38:30] was an improper argument most first made by the defense attorney.

[3:38:36] And in response to that improper argument,

[3:38:38] the state also made an improper argument.

[3:38:41] There was no improper argument made on behalf of Apple Lee

[3:38:45] at the trial court whatsoever.

[3:38:48] In fact, it was one sentence.

[3:38:50] I wonder what she would have said, and I moved on.

[3:38:56] The opponents' contention that the court made it clear

[3:38:59] that the comments made during the state's closing were a reasonable

[3:39:03] inference is not entirely accurate.

[3:39:08] The court went on to say, what he actually said was, well, I agree with both of you.

[3:39:15] It is a reasonable inference that can be drawn from the evidence based upon

[3:39:19] what Saudi ratestified.

[3:39:21] However, it misleads the jury to suggest that that is what

[3:39:29] to fight in the trial. And so while it is certainly appropriate to attribute that information

[3:39:34] to Saudi, it cannot be presented in such a way as to confuse the jury into thinking

[3:39:39] that the jury can consider it as if to make a porter had testified to herself.

[3:39:44] Now one of the reasons I made a big production about Mr. It was experience is for that reason.

[3:39:52] If he had been a new prosecutor and had gotten caught up in the moment, then perhaps

[3:39:58] something could have slipped out.

[3:40:00] But on at least two separate times during the course of the trial, I objected, so he knew very

[3:40:05] well that the last thing I wanted was so that you're ready to ever hear anything about

[3:40:09] to make a porter.

[3:40:11] My position was always that my client was not there, and that the two-to-co defendants who actually

[3:40:18] testified and to make a porter who did not testify actually committed the crime and my client

[3:40:24] just got sucked into it.

[3:40:26] And I actually had a pretty good thing going up until closing arguments when that came out.

[3:40:32] And quite honestly, I contemplated whether I should just go on and see what happens because, you know,

[3:40:39] if you're at the trial court, you have a good feel for how things are going because we knew there was no corroboration

[3:40:44] of anything in the code of NSF to say it, there was no physical evidence to tell my client to the crime.

[3:40:50] But I'm new based on everything that I had gone through through the trial to try to prevent

[3:40:56] that innocent evidence from coming in, that I would have been remissing my duties

[3:41:00] on representing my client if I did not request a mistrial.

[3:41:05] The court's decision, in this case, was far from an abusive discretion.

[3:41:12] Can I ask you a question about the court's order?

[3:41:16] Did the court draft this order from scratch or did the parties

[3:41:19] did you submit a proposed order?

[3:41:22] No, the court submitted it at that time.

[3:41:25] OK, because it's pretty strongly worded

[3:41:28] for a trial judge.

[3:41:32] Now, there were some aspects.

[3:41:35] We both had to submit briefs after we had the hearing on the most.

[3:41:41] But you didn't actually submit proposed orders.

[3:41:43] No, and we, I believe we waited for about 60 days, and we finally received it, and 27 pages is a lot.

[3:41:55] There's more than ample evidence in the record to support the trial course determination

[3:42:00] that the con, meant that was made, was made with the intent to go to me and to move

[3:42:04] and form this trial.

[3:42:05] In his pursuit of justice, the state is also bound by the rules, the rules that we all have to follow.

[3:42:15] Even when we had the hearing,

[3:42:21] Mr. Airwood still would not concede that this was inimitable here say.

[3:42:26] He still would not concede that something wrong had occurred.

[3:42:31] In fact, he gave several different explanations to try to justify what it occurred.

[3:42:41] He first said, I think that it is clear in the indictment that she was part of the clean-up.

[3:42:45] And that is actually in the indictment as an overact.

[3:42:49] That was part of Saudi Bridge testimony.

[3:42:52] That is a reasonable inference from what came out of the testimony.

[3:43:00] So I really didn't even say anything that was presidential.

[3:43:04] I guess I certainly didn't intend to say anything

[3:43:07] with the intent to inject any of the testimony.

[3:43:10] And certainly again, the state stands on the notion

[3:43:12] that this was a reasonable inference and that anything that was already

[3:43:16] out with the indictment.

[3:43:18] Lastly, they now assert that it was permissible as an invited response

[3:43:23] or using the invited reply doctrine.

[3:43:29] It's clear, it was an emissible hearsay.

[3:43:32] He knew with his 30-plus years of experience,

[3:43:35] and his years of experience trying cases against me

[3:43:38] that if I already objected twice during the course of the case,

[3:43:41] then certainly I'm going to object in closing arguments

[3:43:44] and given the fact that this was a murder case.

[3:43:49] And he talked about a co-defended who didn't testify and told the jury what she would have said and I didn't have the opportunity to respond.

[3:44:00] It would have been different if the rules were as there were several years ago when the defendant had the final word.

[3:44:06] We wouldn't have been in this situation because I could have definitely cleared that up, but unfortunately I would have been the same situation as he.

[3:44:12] I would have been talking about immiscible evidence.

[3:44:16] We was in it to this honor record that the trial courts, 27 page order,

[3:44:32] made specific

[3:44:33] findings and determined that the district attorney acted with specific and deliberate intent

[3:44:39] to subvert the protections afforded by the double jeopardy clause by goating me into moving

[3:44:47] as the decision of the lower court granting our plea of double jeopardy plea and bar and motion to dismiss is supported by reasonable inferences flowing from circumstance.

[3:45:00] Social evidence is conclusion concerning the intent of the prosecutor is not clearly around us.

[3:45:07] We respectfully request that the trial court's decision be affirmed.

[3:45:12] Thank you.

[3:45:14] Thank you, Mr. Striscoble. You all time is expired. This court will be adjourned.

[3:45:20] Thank you.

May 08, 2019 Oral Arguments

Transcript