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The Court is now on session. Chief Justice Harrow-Meltin, Presiding.

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You may be seated.

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Morning, ladies and gentlemen. My name is Harold Melton, and I'll behalf my colleagues on this

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

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

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Madam Clerk, are there any requests for admissions?

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Yes, you're under the following name, applicants have properly certified applications, and I respectfully

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move through your admission to the bar of the Supreme Court of Georgia.

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

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just line up right here in front of us.

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Nilfar Abbey Tabari, Anna Diaz, Kebel Errow, Courtney Dixon, Ron Cheros Fortune, Justin

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Guncher, Tab Hunter, Carly Jordan, Jacob Catlin, Kenneth Kincaid, Lacey Kiles, Katherine

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Linhardt, Mark Martin, David Messer, and Pasha Tucker.

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Yeah, Tiro.

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We've been real popular lately, so we've had pretty large size groups.

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This is relatively intimate.

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The ladies and gentlemen, if you're ready to take the oath, it's my honor to

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administer that to you.

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I ask you to raise your right hand and repeat after me.

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I state your name, do solemnly swear that I will protect myself as an attorney or

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counsel of this court,

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truly and honestly, justly and uprightly, and according to law, and now

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support the Constitution of the United States and the Constitution of the State of Georgia.

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So help me, Guy.

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Well, thank you, and congratulations.

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It's a privilege.

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Well, it's a tradition that we welcome you by having one of our members of our court express

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welcoming words and words of encouragement.

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Today, that privilege falls upon my friend and colleague, Justice Nails Peterson.

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Thank you, Chief.

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On behalf of the Chief Justice, the presiding justice and all the members of this

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It's my honor and privilege to welcome you to the bar of the Supreme Court of Georgia.

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Today we have sort of a range of young lawyers and more experienced lawyers.

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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.

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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.

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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.

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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.

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

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I want to leave you with two thoughts.

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The first is, as lawyers, our integrity is absolutely vital to being successful advocates

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to being the kind of lawyers that the bar, that the state, that our system of democracy needs

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and expects, and integrity is more than simply minimum compliance with the various rules

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that will get you in trouble if you don't follow them.

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Integrity is living the kind of life

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and practicing the kind of law

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and having the kind of career and reputation

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that people know that when you say something,

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they can trust you.

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And they don't need to get you to write it down

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and to sign it and triple it.

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They can trust your word.

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A lot of our system is based on that kind of trust.

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And I strongly encourage you to keep that top of mind.

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

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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.

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The page limits that are court sets and the time limits that are court sets are maximums.

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They are not also minimums.

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When you have said what you need to say, sometimes it is best to stop.

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Congratulations. Good luck to you in your future endeavors.

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Thank you, Justice Peterson.

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And I think we all emphasize the brilliance of those last comments.

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With that, we'll ask you to follow our Assistant Clerk out,

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and they'll finalize his transaction again.

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Welcome to our court. Thank you.

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With those words of directions, let's talk about timing.

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The first case is set for 30 minutes aside.

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It's a combined case, it can solve any case.

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The second case is a standard 20 minutes per side.

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There's a clock on the podium, a clock to the right.

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After the time has expired to where there's just five minutes left,

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the yellow light will come on at the end of that five minutes.

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A red light will come on and a bell sound indicating that the time has expired.

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Now, Clerk, were you called the first case, please?

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Yes.

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As 18G, 1495 and 1599, Charles Pennington, Jr. and Carlos McLeard versus the State, Jeffrey Peel

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and Kara Clark for Appellan, Joshua Smith and Morgan Kendrick for Appellan.

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Good morning and may it please the court, Mr. Chief Justice.

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My name is Kara Clark.

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I represent Mr. McLeard in this case.

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Because this case is consolidated, I'm going to focus on the first part of the question that

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Court has presented and Mr. Peel is going to focus on the second part.

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The question presented before this Court today is, what if anything must a criminal

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defendant admit in order to raise an affirmative defense and must the defendant make such

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an omission for all purposes or only for more limited purposes?

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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.

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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.

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There are three reasons why the slight evidence rules should apply over the threshold rule

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that the Court of Appeals applied in this case, and that is the plain language of the statute.

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Longstanding common law principles, and the slight evidence rule is consistent with other principles

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of law in justice.

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Before I go into those questions, those reasons I want to talk about the facts of this case.

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Mr. McClure was at his home with a female friend, her name was Jessica.

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He and Jessica got into an argument at some point.

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And Jessica called her friend, Mr. Quayvass to come pick her up.

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Mr. Quayvass arrived with his girlfriend, Jamie Thun.

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And when they arrived, Mr. McClure and Jessica were arguing in the front yard.

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Jessica said something to Mr. McCleur, like, I'm going to get him to get you him, meaning Mr.

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Quayvass and she got into the car.

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Mr. McCleur went inside his house and he retrieved a BB gun.

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He came outside with the BB gun and this is where the facts diverge.

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

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

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

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Mr. McClure requested the affirmative defenses of justification, defensive property and defensive self.

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

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because the indictment charged him with pointing the BB gun rather than some other aggravated assault.

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The Court of Appeals affirmed that saying they were applying the long-sounding rule, and that

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Court, which is that in order to obtain an affirmative defense, the defendant must admit

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the facts as alleged in the indictment.

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That rule appears to come from American jurisprudence, which was cited in a case called Chandel

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in the 70s, in that case, which has since been overruled.

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They cited American, or this court, cited American jurisprudence, which said an affirmative

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defense is one where the defendant admits the act, but seeks to justify or mitigate it.

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From that case came a jury instruction, which is still in the pattern charges today using

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that same language.

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Actually, it seems to me that those cases have somewhat altered the test that's laid out

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in the American jurisprudence series.

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It seems to me that the Amgir quotation in its original form at least is exactly right,

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which is not that to raise an affirmative defense the defendant must admit.

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But it is rather that the affirmative defense is one that admits.

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So it is the assertion of the defense itself that admit certain facts for the purposes

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of considering and deciding that defense.

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I think that's exactly right.

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The affirmative defense, the court of appeals in the late 90s sort of tweaked that language

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that's in the jury instruction.

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I think that's why we have it in the jury instruction.

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They tweaked that into this threshold rule that the defendant can't even get an instruction

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unless he first admits the offense.

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And so it's a little bit of runaway precedent that it's been applied in the court of appeals.

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This court has adopted it in a couple of cases.

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I think I try to find those in size and in my brief.

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But in the vast majority of cases in this court,

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the rule is not so simple.

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It's an oversimplified version of what the rule is,

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which is that if evidence supports the instruction

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then it should be given.

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We've cited those cases,

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but have we ever relied on them as a holding to resolve the case?

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I think the main case that I found was a case called

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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.

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

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and it cited a case called Winston, I believe, which is also an accident case,

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but Winston, what Winston said was not that the defendant didn't actually admit the offense,

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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.

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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.

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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.

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it just doesn't go into the facts of the case, so it's not clear whether it's supporting

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the Court of Appeals rule or just citing what Winston said.

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And that leads me to the plain language of the statute, what the statute says, and that's

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OCDA-1631, is that to obtain an affirmative defense if the state's evidence doesn't, if

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The state's evidence raises the defense or if the state's evidence doesn't raise the defense

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then the defendant must produce evidence in order to obtain that defense.

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The plain language of the statute does not require any kind of specific evidence that the

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defendant must present and in fact an admission is not really the main goal of obtaining

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an affirmative defense.

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It's not the critical evidence, because of course a defendant could get up and testify

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I did it, and that doesn't establish an affirmative

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defense at all.

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That just establishes that key skill-t.

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So, because the plain language of the statute

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doesn't require the defendant to present any kind of specific

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evidence, just the burden of production, the plain language

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supports the better supports the slight evidence rule

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as opposed to the threshold rule that the Court of Appeals

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has applied in this case.

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And the other principle, a statute, to the slide evidence real point, if the raising of the

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affirmative defense, essentially constitutes as an admission by the defendant of the facts

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necessary to support the affirmative defense for the purposes of the affirmative defense,

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is the raising of the affirmative defense itself, slight evidence to support the affirmative

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defense instruction?

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I'm not sure I understand your-

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So, if raising an affirmative defense,

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it's self, as Justice Blackwell's question suggested.

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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,

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

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I don't think so. I'm still not sure. I understand the question entirely. The defendant

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has to produce some evidence, either through his testimony, through other witnesses.

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Or an admission, right? Or an admission, and that is what I think.

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Okay, so if the raising of an affirmative defense is an admission of those facts for purposes

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of the affirmative defense.

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

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midday underlying facts, but by way of argument, we admitted that he committed an aggravated

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assault, then does that raise the affirmative defense then, yes?

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If you only had an admission to what was charged in the indictment and nothing else, then

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you would simply be guilty of what's charged in the indictment, right? The affirmative

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defense requires that for purposes of that defense, those facts be admitted, but there

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be some additional fact that sets up the affirmative defense. Correct? Correct. And so the raising

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of the defense would not be any evidence of that additional fact. Correct? Correct. Correct.

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Is that, okay. Thank you. Thank you, Justice Blackwell. And the other statutory principle

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at issue here is the common law rule. What we know from statutory interpretation is that we

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presume that the legislature meant to adhere to the common law unless some contrary evidence

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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.

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

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I think in some circumstances it could, depending on where, how you cross exam in the witness

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and what that witness says, you know, if the, if the, if the, if the, I'm thinking about

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in your case, if, if the jury did not believe the victims testimony, would, would that provide

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evidence that they could, they could, they could say there's a, there's a different explanation

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for what happened here.

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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.

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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-

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Let me give you an easier hypothetical that self-defense case and the states witness is asked

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by the defendant by the defense lawyer.

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Didn't the victim point his gun at the defendant before the defendant did anything?

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And the witness says, no, can the jury disbelieve the no, say, okay, well, when the witness

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said, no, we think the answer is yes, and if the answer were yes, then we would have a basis

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for self-defense. Can you assert defenses by the absence of evidence combined with disbelief?

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I don't think so. I think the defendant, based on the statute and the common law, the defendant

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has duty to produce some evidence and cross the questions of the lawyer or not evidence.

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And so, just merely just believing a witness is not establishing the affirmative defense.

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I think if that's the only source of the evidence, then.

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I mean, it's a positive evidence.

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Right.

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But why is that?

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Because there's case law that suggests when a defendant testifies and the defendant denies committing

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the crime and the jury convicts, when we consider efficiency of the evidence, we can consider

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The no, as in fact, evidence that the defendant committed the crime because the jury

217
00:19:26,480 --> 00:19:30,380
presumably disbelieved the no, concluded that was a lie.

218
00:19:31,000 --> 00:19:36,260
And so that becomes part of the evidence that is sufficient to support the conviction.

219
00:19:36,340 --> 00:19:38,960
Why couldn't we say that the no is?

220
00:19:39,120 --> 00:19:44,220
We do that with defendant testimony, at least, I don't know that we do it with other witnesses,

221
00:19:44,220 --> 00:19:47,640
but we do say if the defendant testifies,

222
00:19:48,240 --> 00:19:50,760
you can assume the jury believe the opposite.

223
00:19:51,460 --> 00:19:53,860
Correct, because it's sumably in that situation.

224
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I mean, the state still has the burden to prove the charges,

225
00:19:58,560 --> 00:20:01,400
and we look at, and you don't only look at what the defendant said,

226
00:20:01,400 --> 00:20:03,220
but you look at the other evidence first,

227
00:20:03,280 --> 00:20:05,920
does the state actually establish that a crime happened?

228
00:20:06,380 --> 00:20:10,960
And just because the defendant says he didn't do it,

229
00:20:11,020 --> 00:20:12,440
that becomes a jury question,

230
00:20:12,440 --> 00:20:13,960
and we respect the jury's verdict.

231
00:20:15,440 --> 00:20:19,000
And, well, no, but, I mean, our case law says that the no

232
00:20:19,000 --> 00:20:23,200
is itself evidence of the crime when the jury has convicted.

233
00:20:23,860 --> 00:20:25,700
So why can't a witness is no?

234
00:20:26,020 --> 00:20:28,240
I mean, let's say the witness was as shifty

235
00:20:28,240 --> 00:20:30,700
as any witness in the history of trials.

236
00:20:31,480 --> 00:20:34,600
I mean, no one within 20 miles of the courtroom

237
00:20:34,600 --> 00:20:35,640
believed this witness.

238
00:20:36,580 --> 00:20:38,020
Witness says no.

239
00:20:39,160 --> 00:20:41,240
Why can't that be evidence that, in fact,

240
00:20:41,240 --> 00:20:47,600
answer was yes? I think in certain instances it could be I mean this is a factual

241
00:20:47,600 --> 00:20:51,380
question ultimately in the trial court has to look at the whole picture of the

242
00:20:51,380 --> 00:20:56,480
evidence and decide whether I'm in the problem is it's a slide evidence test we

243
00:20:56,480 --> 00:21:02,340
formally construe the evidence in this I'm setting we always construe the

244
00:21:02,340 --> 00:21:08,320
evidence in favor of the party asking for the instruction. Correct. So if we have

245
00:21:08,320 --> 00:21:15,220
cases, it's a, you can, you can assume duties can disbelieve witnesses, although I don't

246
00:21:15,220 --> 00:21:20,000
know that we have that as efficiency other than the defendant's testimony.

247
00:21:22,240 --> 00:21:28,680
It's a problem of kind of establishing slide evidence by the absence of evidence.

248
00:21:29,060 --> 00:21:29,420
Right.

249
00:21:29,980 --> 00:21:35,920
I think, I think that in that case, you know, maybe the state's evidence raises the affirmative

250
00:21:35,920 --> 00:21:40,720
defense of a difficult question for me to answer, and it's not raised by the facts of this case.

251
00:21:41,240 --> 00:21:47,960
Well, once we say you don't have to admit it, it can just be from any evidence in the case.

252
00:21:48,660 --> 00:21:54,980
And you couple that with some of this other case saw, it seems like in every case you can get whatever

253
00:21:54,980 --> 00:22:03,460
affirmative defense you want by asking, pick a random states witness who was there and say, you know,

254
00:22:04,820 --> 00:22:10,520
Didn't, didn't the defendant to pick a case we had yesterday, didn't the defendant fire

255
00:22:10,520 --> 00:22:11,580
his gun by accident?

256
00:22:11,740 --> 00:22:16,460
It was jossled, and the witness says, no, nothing like that ever happened, nobody touched

257
00:22:16,460 --> 00:22:17,020
the defendant.

258
00:22:17,260 --> 00:22:20,560
And there is no other evidence, the defendant doesn't testify.

259
00:22:20,980 --> 00:22:21,820
That's it.

260
00:22:22,820 --> 00:22:26,660
I mean, can you say, well, the jury could have disbelieve that witness, and I get an

261
00:22:26,660 --> 00:22:27,540
accident instruction.

262
00:22:28,260 --> 00:22:33,220
And by the way, self-defense instruction by asking a similar person and a mutual combat

263
00:22:33,220 --> 00:22:40,820
instruction. It would have essentially become a cascade of alternative theories where slight

264
00:22:40,820 --> 00:22:47,180
evidence would avail every defendant of all of those theories in every case. So how can you

265
00:22:47,180 --> 00:22:52,460
roll that back for us or explain why that's the right answer? I can understand the court's

266
00:22:52,460 --> 00:22:57,780
issue and I'm running low. I'm cutting into Mr. Peel's time. But let me say that the state does

267
00:22:57,780 --> 00:23:06,320
is not, as you mentioned, if you can say, that the evidence is sufficient even when the defendant

268
00:23:06,320 --> 00:23:09,200
denies it, and the jury is entitled to disbelieve the defendant.

269
00:23:10,160 --> 00:23:14,700
The state is not similarly limited from receiving all the instructions that are supported

270
00:23:14,700 --> 00:23:15,440
by the case.

271
00:23:15,440 --> 00:23:20,760
If they request a lesser included instruction, if they request if they indict the case, they

272
00:23:20,760 --> 00:23:24,420
can indict whatever charges are supported by the evidence, even if the evidence is not

273
00:23:24,420 --> 00:23:28,820
strong. And so putting in the defendant in a worse position by forcing him to

274
00:23:28,820 --> 00:23:35,400
conceive the issue that the state has, that the state has presented in order to

275
00:23:35,400 --> 00:23:41,180
even get that defense is just not just in light of what the state, what the state

276
00:23:41,180 --> 00:23:45,220
has the opportunity to do. And in fact, and in civil cases, we don't require that

277
00:23:45,220 --> 00:23:51,080
either. So I would ask this court to just prove that line of case law and the court

278
00:23:51,080 --> 00:23:54,880
appeals and say that the defendant doesn't have to admit anything and I'll turn it over

279
00:23:54,880 --> 00:23:56,880
to Mr. Peel to address the inconsistencies.

280
00:23:57,660 --> 00:23:58,280
Thank you, Ms. Carl.

281
00:24:01,220 --> 00:24:02,060
Thank you, Your Honours.

282
00:24:02,620 --> 00:24:03,580
May I please the court?

283
00:24:04,760 --> 00:24:09,480
I would like to piggyback off that last line of thought that the justice is where I think

284
00:24:09,480 --> 00:24:14,380
we're wisely pointing to is I don't believe that there is going to be a cascade effect

285
00:24:14,380 --> 00:24:19,280
if we ultimately apply the slide evidence standard here simply because trial court judges

286
00:24:19,280 --> 00:24:22,180
in the state of Georgia have been applying that standard for years.

287
00:24:22,180 --> 00:24:27,940
We're not asking this court to impose on them some sort of foreign obligation that they're not familiar with.

288
00:24:28,340 --> 00:24:32,480
I think ultimately the trial court judge has been making slide evidence determination.

289
00:24:32,820 --> 00:24:36,580
Well, I mean, that's not an answer because that's a question of law.

290
00:24:36,740 --> 00:24:42,480
We've said so it's not anything we defer to, so trial courts have been doing it.

291
00:24:42,700 --> 00:24:48,340
They have to apply the law correctly and the question is, well, and they've been applying these

292
00:24:48,340 --> 00:24:54,460
Court of Appeals cases where if the defendant didn't somehow positively admit it, you didn't

293
00:24:54,460 --> 00:24:55,340
get the instruction.

294
00:24:55,460 --> 00:25:05,420
If we switch to a pure slide evidence standard and you can establish slide evidence by the view

295
00:25:05,420 --> 00:25:10,820
that the jury could disbelieve some other evidence, and I don't, I'm trying to figure out

296
00:25:10,820 --> 00:25:13,400
how you draw a line that, and I won't.

297
00:25:13,420 --> 00:25:13,440
And I won't.

298
00:25:13,440 --> 00:25:16,400
And that you could get self-defense in every single case.

299
00:25:16,400 --> 00:25:26,500
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.

300
00:25:27,540 --> 00:25:35,520
In Mr. Pennington's case, Mr. Pennington was in a shed with two other individuals, and there was an active methamphetamine cook going on.

301
00:25:35,720 --> 00:25:40,120
The police came, Mr. Pennington signed a statement, let them search they found the drugs.

302
00:25:41,220 --> 00:25:46,920
His defense at trial was, it wasn't made of the other two, but even if it was, I didn't intend

303
00:25:46,920 --> 00:25:47,360
to distribute.

304
00:25:48,060 --> 00:25:53,060
Now, the affirmative defense is one that has three elements that say there's an absence

305
00:25:53,060 --> 00:25:54,020
of these three elements.

306
00:25:54,640 --> 00:25:58,740
Number one, everyone in the residence was a minor.

307
00:25:59,000 --> 00:26:02,500
Number two, it was all conducted in a residence and there's no evidence that was conducted

308
00:26:02,500 --> 00:26:03,580
outside of the residence.

309
00:26:04,060 --> 00:26:08,160
And number three, there's insufficient evidence that was conducted for financial gain.

310
00:26:08,160 --> 00:26:12,920
So, the affirmative defense, in this case, is not a certain anything positive, it's saying

311
00:26:12,920 --> 00:26:17,040
the state may have proved some distribution, but they didn't improve, they didn't

312
00:26:17,040 --> 00:26:17,600
prove it.

313
00:26:17,820 --> 00:26:23,780
Let's assume that the evidence, all the positive evidence was that there were a bunch

314
00:26:23,780 --> 00:26:25,660
of adults there.

315
00:26:28,180 --> 00:26:34,500
And can the jury, can you get an affirmative defense by saying, although all of the evidence

316
00:26:34,500 --> 00:26:39,580
presented is that there were adults there the jury could

317
00:26:39,580 --> 00:26:46,300
disbelieve that and I'm sorry the evidence was there were

318
00:26:46,300 --> 00:26:49,460
juveniles here right that's what the state needs to prove to

319
00:26:49,460 --> 00:26:54,840
yes sir yeah so all the evidence is or only juvenile sir can the

320
00:26:54,840 --> 00:27:01,180
state can you get a affirmative defense by saying well the jury could

321
00:27:01,760 --> 00:27:08,940
there's no evidence whatsoever positive evidence that it was only adults, but the jury could

322
00:27:08,940 --> 00:27:12,960
just disbelieve all the evidence that they were juvenile, sir.

323
00:27:13,500 --> 00:27:19,060
At 16 juvenile witnesses, it was a big party and they all said, we were there and I'm 12 years old.

324
00:27:20,080 --> 00:27:25,180
I think it is quite difficult. I mean what we have is we have our general assembly that is passing this

325
00:27:25,180 --> 00:27:30,160
this affirmative law, this stating we don't want to criminalize anyone just because they happen

326
00:27:30,160 --> 00:27:30,900
to be near school.

327
00:27:31,080 --> 00:27:32,800
We want to make sure it truly is this.

328
00:27:33,140 --> 00:27:35,980
So I guess I don't know if I have an answer to that specific question.

329
00:27:36,260 --> 00:27:39,200
I don't foresee the slippery slope that I'm hearing.

330
00:27:40,340 --> 00:27:41,880
But that means the slippery slope, right?

331
00:27:42,180 --> 00:27:50,700
So in any case, where the state is trying to rebut this defense and they show that there

332
00:27:50,700 --> 00:27:55,160
was a juvenile there by having a couple of juveniles come and say, we were there

333
00:27:55,160 --> 00:28:02,580
and I'm 12 years old. Do you still get the affirmative defense on the theory that the jury

334
00:28:02,580 --> 00:28:07,560
could disbelieve that, believe the opposite, that these kids who are 4 feet tall and look

335
00:28:07,560 --> 00:28:12,100
like they were 6 years old were actually 84-year-old adults?

336
00:28:13,660 --> 00:28:18,480
In that particular case, I don't necessarily see the harm in giving the jury that affirmative

337
00:28:18,480 --> 00:28:22,320
defense. If they want to rule on that issue, it just protects the verdict. Then this

338
00:28:22,320 --> 00:28:27,720
on a PO can say the jury did consider those facts and it was ruled against it. So it is not

339
00:28:27,720 --> 00:28:28,080
error.

340
00:28:28,580 --> 00:28:33,860
It seems to me that part of the standard that we usually employ in the Jackson V. Virginia

341
00:28:33,860 --> 00:28:39,840
efficiency review might actually come into play when we speak of slide evidence. What we

342
00:28:39,840 --> 00:28:48,620
might mean is slight evidence from which a rational person could find whatever the fact in

343
00:28:48,620 --> 00:28:54,300
question is. And it might be that in Justice Namious's scenario, that the trial judge

344
00:28:54,300 --> 00:29:01,820
could easily conclude that no rational person could infer from that evidence that these

345
00:29:01,820 --> 00:29:02,540
were adults.

346
00:29:04,560 --> 00:29:08,140
And so it would allow the trial judge to kind of take into context the trial

347
00:29:08,140 --> 00:29:13,020
judge's own observations of the body language of the witnesses and their demeanor.

348
00:29:13,980 --> 00:29:18,280
And thank you, Justice Michael. I think that's much more eloquently what I was trying to

349
00:29:18,280 --> 00:29:23,340
I mean, I think that our superior court judges are capable of doing this, but you don't get

350
00:29:23,340 --> 00:29:26,380
to evaluate credibility for slight evidence.

351
00:29:27,160 --> 00:29:32,340
You take the credibility in the light most favorable to the party asking for the instruction.

352
00:29:32,740 --> 00:29:34,280
So I can make the hypothetical harder.

353
00:29:34,720 --> 00:29:38,880
Let's say all the witnesses, you know, the state calls eight, 17-year-olds,

354
00:29:39,300 --> 00:29:42,040
who testify that they were there in their 17-year-old.

355
00:29:42,040 --> 00:29:50,140
And can you get an instruction because the jury simply could disbelieve all of that

356
00:29:50,140 --> 00:29:56,000
believe the opposite, which we say in some context, and get an instruction?

357
00:29:56,140 --> 00:29:57,820
It seems like your answer is yes.

358
00:29:57,820 --> 00:29:59,000
I am.

359
00:30:00,000 --> 00:30:06,300
My answer was kind of limited to the facts of pending tense case, so I guess I could file a supplemental

360
00:30:06,300 --> 00:30:08,300
brief on that issue and explore a little bit further.

361
00:30:08,380 --> 00:30:09,080
All right, on the spot.

362
00:30:09,240 --> 00:30:10,540
I can't think of anything.

363
00:30:10,540 --> 00:30:10,820
Well, thank you.

364
00:30:10,900 --> 00:30:15,140
Just by your case, it's not just deciding your case, it's deciding that hypothetical

365
00:30:15,140 --> 00:30:16,240
case as well.

366
00:30:17,260 --> 00:30:18,080
Yes, sir.

367
00:30:19,320 --> 00:30:26,340
What I would like to point out, I think, about kind of the overarching policy that I see is,

368
00:30:27,000 --> 00:30:29,980
we always have to be asking ourselves, what is it that we are trying to protect?

369
00:30:29,980 --> 00:30:52,920
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.

370
00:30:52,920 --> 00:30:58,900
But I pointed out my brief and I think it's something to keep in mind in the background here is that

371
00:30:58,900 --> 00:31:04,400
That's a self-panelizing behavior just as Scalia said that in the United States Supreme Court in a concurring opinion

372
00:31:04,400 --> 00:31:08,060
Because we don't need to stand on guard for this. This is self-panelizing.

373
00:31:09,520 --> 00:31:13,940
People will forgive a murder periodically. Jerries will do that, but they don't forgive liars.

374
00:31:14,300 --> 00:31:17,980
And nothing goes to your credibility and attacks it more than someone who says,

375
00:31:17,980 --> 00:31:23,660
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.

376
00:31:23,740 --> 00:31:30,980
Simpson's book, which is, so we're trying to correct, I believe, a harm that's not really there.

377
00:31:31,260 --> 00:31:36,940
Jerry's are capable of looking at these facts and saying, he can assert this from a defense line.

378
00:31:37,240 --> 00:31:41,300
I think the problem that we're concerned about is there's a difference between harms that are very unlikely,

379
00:31:41,520 --> 00:31:47,080
which is what you're describing and harms that are never there, which is not this.

380
00:31:47,080 --> 00:31:52,300
that we hear enough cases that if a harm is very unlikely, we'll still see it at some point.

381
00:31:54,680 --> 00:32:01,120
Well, that's a question. I mean, it is a problem. We say we've got a lot of cases saying defendants

382
00:32:01,120 --> 00:32:08,680
can raise inconsistent defenses. The most classical when we see a lot is, I shot them in self-defense

383
00:32:08,680 --> 00:32:14,920
because I was scared, but also I shot them because I was mad and I get voluntary manslaughter defense.

384
00:32:14,920 --> 00:32:22,160
Can we, could we say, as a matter of law that if you ask for both of us and the jury

385
00:32:22,160 --> 00:32:26,360
convicts you, it's harmless air that if you, well, if you ask for both and you didn't

386
00:32:26,360 --> 00:32:32,020
get them both, it's harmless air because the jury would have found you guilty for being

387
00:32:32,020 --> 00:32:39,600
a liar or disbelieved whatever your defense was if you ask for two things that are completely

388
00:32:39,600 --> 00:32:40,440
contradictory?

389
00:32:41,920 --> 00:32:45,360
Again, I don't necessarily see that that's a problem.

390
00:32:45,640 --> 00:32:48,160
I mean, in our civil cases, we go this all the time.

391
00:32:48,820 --> 00:32:54,140
So if you assert inconsistent defenses and you don't get two instructions,

392
00:32:56,300 --> 00:32:56,720
we can say

393
00:32:56,720 --> 00:33:01,820
it's harmless because as you got into instructions, jury wouldn't have believed you because

394
00:33:01,820 --> 00:33:02,400
they're inconsistent.

395
00:33:03,380 --> 00:33:03,820
I see what I see.

396
00:33:03,820 --> 00:33:04,140
I see what you're saying.

397
00:33:04,320 --> 00:33:05,800
So it would be error.

398
00:33:05,800 --> 00:33:11,220
We do not get both your instructions, but it would be kind of automatically harmless error

399
00:33:12,160 --> 00:33:16,560
because when you assert inconsistent instructions, it's just as clearly a said, it shows

400
00:33:16,560 --> 00:33:21,940
you're lying about everything, which would be us on appeal, making some sort of credibility

401
00:33:22,780 --> 00:33:27,320
determination in the course of concluding that error was harmless, which traditionally we don't

402
00:33:27,320 --> 00:33:29,540
do any credibility determinations on appeal, right?

403
00:33:29,900 --> 00:33:35,580
Yeah, that's correct, I mean, I don't think the court necessarily needs to make a credibility

404
00:33:35,580 --> 00:33:41,320
determination, what I was getting at is, we need to ask why are we not giving jury instructions

405
00:33:41,320 --> 00:33:45,080
to people who are asking for them, where there is slight evidence that perhaps they're entitled

406
00:33:45,080 --> 00:33:45,700
to it.

407
00:33:46,060 --> 00:33:50,440
If the harm is jury confusion, which is what appellate courts usually stand guard against,

408
00:33:51,460 --> 00:33:53,200
I think Justice Scalia's point is, well, taken.

409
00:33:53,280 --> 00:33:54,280
There is no jury confusion.

410
00:33:54,360 --> 00:33:57,760
But I think what you are saying is your referencing slight evidence, I don't think we have

411
00:33:57,760 --> 00:34:02,100
a per se problem without the question is what can constitute the evidence under those circumstances

412
00:34:02,100 --> 00:34:03,780
under this new rule that you're proposing?

413
00:34:03,780 --> 00:34:05,620
I mean, that's really the rub.

414
00:34:07,420 --> 00:34:12,880
Well, I think if there is slight evidence of it, I mean, it's kind of, I know it's circular

415
00:34:12,880 --> 00:34:14,960
lotchick, but there's really no other way to say it.

416
00:34:15,040 --> 00:34:19,440
I mean, in the facts of Mr. Pennington's case, there was testimony that everyone was over

417
00:34:19,440 --> 00:34:20,060
the age of 18.

418
00:34:20,240 --> 00:34:22,520
There was testimony that it was confined to a residence.

419
00:34:23,720 --> 00:34:26,160
And there was no evidence of any cash or scales.

420
00:34:26,400 --> 00:34:29,720
They found we call them baggies whenever it's criminal case, but it was a box of

421
00:34:29,720 --> 00:34:31,360
block banks that the guy had in his house.

422
00:34:31,640 --> 00:34:34,700
And in El Toids 10, and it looked like he had personally consumed it.

423
00:34:34,880 --> 00:34:39,060
So there was evidence that he had not been manufacturing this method in Federmain for

424
00:34:39,060 --> 00:34:40,640
personal financial gain.

425
00:34:41,000 --> 00:34:42,380
You take all three of these together.

426
00:34:42,960 --> 00:34:47,500
The jury was deprived of the ability to do it because the trial court said, and I quote,

427
00:34:47,660 --> 00:34:48,880
none of the defendants testify.

428
00:34:49,280 --> 00:34:54,400
He based it specifically on the fact that a defendant needs to take the stand and affirmatively

429
00:34:54,400 --> 00:34:58,720
testify to weigh this fifth amendment, right, his rights remain silent, take the stand

430
00:34:58,720 --> 00:35:03,640
and affirmatively testify in every case in which an affirmative defense is asserted.

431
00:35:03,800 --> 00:35:08,820
And there's no courts that hold that even at the federal level where the burdens of persuasion

432
00:35:08,820 --> 00:35:14,500
can be shifted, unlike in Georgia law, where the defendant only has a burden of production.

433
00:35:14,640 --> 00:35:18,940
At the federal level there's no case that says the defendant has to take the stand and testify.

434
00:35:19,440 --> 00:35:23,540
That simply cannot be the rule. And that's what Mr. Pennington was faced with.

435
00:35:23,540 --> 00:35:28,880
evidence in the state's record was there suggesting that he was entitled to this or

436
00:35:28,880 --> 00:35:29,660
from their defense.

437
00:35:30,120 --> 00:35:35,060
Reasonable minds could differ and perhaps the standard, you know, could reasonable minds

438
00:35:35,060 --> 00:35:35,400
differ.

439
00:35:35,720 --> 00:35:41,780
I don't know how slight evidence is defined uniquely, but the point being that in affirmative

440
00:35:41,780 --> 00:35:44,060
defense in this case was deprived of this defendant.

441
00:35:45,260 --> 00:35:51,620
So I see my time is kind of coming to a close, so I would say this, in my brief, I attempted

442
00:35:51,620 --> 00:36:00,940
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.

443
00:36:01,580 --> 00:36:06,560
When you read it and you read it very carefully, I believe he is correct.

444
00:36:07,340 --> 00:36:12,620
And affirmative defense is one which admits that it's wrong. The defense itself is the thing doing the admission.

445
00:36:13,700 --> 00:36:20,920
It's a logical game and it's an instruction that I believe lawyers have handed down to judges who are also lawyers.

446
00:36:20,920 --> 00:36:26,240
and we understand that. But there's confusion there. I'm not necessarily saying we need to

447
00:36:26,240 --> 00:36:32,100
revise the jury instruction in its entirety, but I do believe there should be clarification there.

448
00:36:32,680 --> 00:36:38,780
That's simply, the rule is, an affirmative defense is one where there's really no logically

449
00:36:38,780 --> 00:36:44,960
speaking, there's no objection necessarily made. We're not contesting it. The defendant can still

450
00:36:44,960 --> 00:36:48,940
put the state to its burden and say, you have the duty state of proving every element of this

451
00:36:48,940 --> 00:36:53,420
defense. And then when there is evidence still go ahead and assert that affirmative defense,

452
00:36:53,680 --> 00:36:58,220
if it's properly raised from the state's evidence, that concludes my statements.

453
00:36:58,480 --> 00:36:59,160
Thank you, Your Owners.

454
00:37:12,850 --> 00:37:17,730
Mr. Chief Justice, may it please the court. My name is Morgan Kendrick. I'm the Assistant

455
00:37:17,730 --> 00:37:22,010
District Attorney with the Griffin Judicial Circuit. I represent a police state of Georgia

456
00:37:22,010 --> 00:37:28,070
in the McLean of our state case. Seated with me at the table is Mr. Joshua Smith. He's

457
00:37:28,070 --> 00:37:31,910
also in Assistant District Attorney, he's with the Augusta Circuit, and he represents

458
00:37:31,910 --> 00:37:35,410
the Pellie in the Pinnington versus the State case.

459
00:37:37,350 --> 00:37:43,130
As to this court's very first question, which is what if anything must a criminal defendant

460
00:37:43,130 --> 00:37:46,310
admit in order to assert an affirmative defense?

461
00:37:47,570 --> 00:37:51,930
Appellant just argued that a defendant should not have to admit anything in order to raise an affirmative

462
00:37:51,930 --> 00:37:52,690
defense.

463
00:37:53,570 --> 00:37:55,610
Yet this will depend on the facts and evidence.

464
00:37:57,350 --> 00:38:04,210
OCDIA 1613 provides that an affirmative defense means, with respect to any affirmative defense

465
00:38:04,210 --> 00:38:08,710
authorized in the title, unless the state's evidence raises the issue, invoking the alleged

466
00:38:08,710 --> 00:38:13,030
defense, but if it must present evidence there on to raise the issue.

467
00:38:14,290 --> 00:38:19,170
So this means that the state's case may, indeed, have evidence to support an affirmative defense

468
00:38:19,170 --> 00:38:26,630
charge. However, if it does not, then the defendant will have to present evidence if he wants

469
00:38:26,630 --> 00:38:31,990
to raise this defense. And this can come in through several ways. He can take the stand,

470
00:38:32,110 --> 00:38:34,490
he can call either witnesses on his behalf.

471
00:38:35,790 --> 00:38:41,450
So, what it would be fair to say then that the state says you don't have to admit anything to

472
00:38:41,450 --> 00:38:48,170
raise an affirmative defense unless you need the admission to establish some sort of basis for

473
00:38:48,170 --> 00:38:49,450
there's no affirmative defense.

474
00:38:50,770 --> 00:38:53,290
Well, the very nature of an affirmative defense,

475
00:38:53,470 --> 00:38:56,670
your honor is one that admits the act.

476
00:38:57,130 --> 00:38:59,390
So while a defendant may not necessarily

477
00:38:59,390 --> 00:39:03,010
need to take the sand and testify by raising this defense,

478
00:39:03,470 --> 00:39:08,350
a defendant is a defense that is admitting this act occurred,

479
00:39:08,890 --> 00:39:10,510
but there's a reason for it.

480
00:39:11,050 --> 00:39:14,810
But I mean, this is a question because of the way

481
00:39:14,810 --> 00:39:24,270
It's framed, is it your position that if the defense lawyer says, my client is asserting

482
00:39:25,070 --> 00:39:34,370
self-defense, that is, I guess, slight evidence, kind of defense lawyer by making arguments,

483
00:39:34,970 --> 00:39:36,450
does that create slight evidence?

484
00:39:36,630 --> 00:39:38,070
No, your honor, it does not.

485
00:39:39,010 --> 00:39:43,730
The evidence has to, there must be evidence presented during the trial, and again, it can

486
00:39:43,730 --> 00:39:49,230
come in through the state's case, perhaps the defense attorney may get in certain evidence

487
00:39:49,230 --> 00:39:55,410
through cross-examination, or, again, if there is no evidence presented during the state's

488
00:39:55,410 --> 00:39:59,590
case, then the defendant that burden will be on him to produce the evidence.

489
00:39:59,750 --> 00:40:01,530
Can I defend that raise

490
00:40:03,540 --> 00:40:08,120
two or more affirmative defenses that are not only inconsistent

491
00:40:08,120 --> 00:40:09,900
that are, in fact, mutually exclusive?

492
00:40:10,860 --> 00:40:17,540
As long as there's evidence to support each defense, I believe that the state would suggest

493
00:40:17,540 --> 00:40:22,540
that yes, as long as there's evidence, the defendant can present as many inconsistent

494
00:40:22,540 --> 00:40:24,840
defenses that the evidence does support.

495
00:40:25,220 --> 00:40:30,760
What about if there's a lack of evidence with respect to a piece that is required for the affirmative

496
00:40:30,760 --> 00:40:33,120
defense, but not for the crime?

497
00:40:33,120 --> 00:40:40,880
As to say, evidence that there were no miners present is required to assert an affirmative

498
00:40:40,880 --> 00:40:44,500
defense, the state didn't say anything in its case.

499
00:40:44,820 --> 00:40:51,500
Does the defendant have to produce evidence that no miners were present to satisfy that

500
00:40:51,500 --> 00:40:52,780
element of the affirmative defense?

501
00:40:53,180 --> 00:40:55,380
I believe in that situation, yes, Your Honor.

502
00:40:56,660 --> 00:41:02,280
Why would the defendant have the burden of demonstrating the absence of something?

503
00:41:03,900 --> 00:41:08,900
I'm not precisely familiar with the fact that Huntington's case, but it's my understanding

504
00:41:08,900 --> 00:41:11,440
that that's just statutory your honor.

505
00:41:11,820 --> 00:41:20,480
And so if that is something that does not, now the state has the burden of proof, of course,

506
00:41:20,800 --> 00:41:24,260
but if there's an affirmative defense with the defendant would like to raise and that

507
00:41:24,260 --> 00:41:27,580
evidence does not come out during the state's case,

508
00:41:27,940 --> 00:41:30,720
then the burden of production to produce that evidence will

509
00:41:30,720 --> 00:41:31,700
fall on the defendant.

510
00:41:32,260 --> 00:41:35,560
But if, before you're looking for a sea of absence of evidence,

511
00:41:35,720 --> 00:41:40,440
like there are no juveniles here, the state puts on its case,

512
00:41:40,640 --> 00:41:43,040
and there's no evidence, there is evidence,

513
00:41:43,700 --> 00:41:46,800
all the state's evidence, there are no juveniles here.

514
00:41:46,860 --> 00:41:52,980
Why is that not enough to say there are no juveniles here?

515
00:41:53,560 --> 00:42:01,160
You can have a real burden shifting problem, potentially, if you side the state has to put on more.

516
00:42:02,120 --> 00:42:05,240
I mean, if the defendant has to put on more.

517
00:42:05,640 --> 00:42:12,180
There aren't that many affirmative defenses that are negative like that, but there are a variety of.

518
00:42:13,620 --> 00:42:17,580
And that is a good point, you're on, and it's one that I have not fully considered.

519
00:42:18,000 --> 00:42:20,900
And I would leave, of course, I'd be happy to.

520
00:42:20,900 --> 00:42:22,580
Let me turn you back to McClure's facts.

521
00:42:22,580 --> 00:42:24,580
I know that's more familiar to you.

522
00:42:25,320 --> 00:42:31,500
If Mr. McClure threw evidence, and through evidence, it's otherwise, in the case, or his

523
00:42:31,500 --> 00:42:37,400
testimony, can point to evidence that supports that an aggravated evidence that would support

524
00:42:37,400 --> 00:42:41,460
of each of our aggravated assault is in the record, it's there, the jury has it.

525
00:42:41,780 --> 00:42:49,480
But not as it's alleged, specifically in the indictment, can he assert affirmative defenses

526
00:42:49,480 --> 00:42:57,620
around the, again, the acts of an aggravated assault that he is willing to admit to.

527
00:42:59,120 --> 00:43:05,060
I believe that the case law, that's out there thus far, does say that as long as the general

528
00:43:05,060 --> 00:43:14,660
elements of the offense are admitted, then yes, I believe that he would be, and so he would be

529
00:43:14,660 --> 00:43:22,340
able to pursue, essentially, really inconsistent defenses by saying, I committed what could

530
00:43:22,340 --> 00:43:25,480
be characterized as aggravated salt, but not as it's alleged in the indictment.

531
00:43:25,680 --> 00:43:29,800
And therefore, I'm going to defend in that, you know, I say you didn't prove every element

532
00:43:29,800 --> 00:43:35,880
that you charged, and that while I might have done an aggravated assault behavior, it

533
00:43:35,880 --> 00:43:36,700
was for justification.

534
00:43:36,920 --> 00:43:37,820
He's allowed to do that.

535
00:43:37,940 --> 00:43:40,980
I do believe he has allowed to do that, you're on, that's just based on the case.

536
00:43:40,980 --> 00:43:46,880
The challenge with that becomes, when we're talking about how concerned we are about jury confusion.

537
00:43:48,300 --> 00:43:55,240
And again, looking to sort of the Jackson-Bevergenian Sefficiency context as the flip side sort of comparison.

538
00:43:56,640 --> 00:44:04,520
Under Jackson versus Virginia, we say there is sufficient evidence to support a conviction if the evidence

539
00:44:05,240 --> 00:44:09,920
supports the commission of a crime and a manner different from how it was indicted.

540
00:44:10,620 --> 00:44:15,900
So long as the jury was also instructed, albeit erroneously, on that alternative theory.

541
00:44:16,940 --> 00:44:22,600
That is not a sufficiency problem, it may subject the prosecution to a demeur, but if

542
00:44:22,600 --> 00:44:25,560
the demeur wasn't filed, that claim is waived.

543
00:44:26,320 --> 00:44:32,000
If you apply the same rationale here, you get to the conclusion that you just told us.

544
00:44:32,000 --> 00:44:37,980
But then does the jury, does the judge have to charge the jury for purposes of the affirmative

545
00:44:37,980 --> 00:44:44,360
defense on this alternate theory of the crime when the jury is not authorized to consider

546
00:44:44,360 --> 00:44:48,120
that alternate theory of the crime for purposes of convicting him?

547
00:44:48,380 --> 00:44:50,940
And what is the risk of jury confusion then?

548
00:44:51,440 --> 00:44:56,120
And I believe that you do raise a very good point here on her because I do see how that could

549
00:44:56,120 --> 00:44:58,140
lead to a lot of jury confusion.

550
00:44:58,140 --> 00:44:59,460
And again, the case will all here.

551
00:45:00,000 --> 00:45:05,920
There's just a little unclear. There are some cases, for instance, Kellon versus the state that this

552
00:45:05,920 --> 00:45:14,440
court decided that, at least based on the language in that case, that because the defendant

553
00:45:14,440 --> 00:45:21,600
there did not admit to the facts as a legitimate indictment, the actual acts from the indictment.

554
00:45:21,600 --> 00:45:26,580
You're still holding as I hear you that the defendant has to admit underlying facts, isn't it?

555
00:45:27,900 --> 00:45:33,520
And it meant, yes, Turner, that is correct, however it meant is not synonymous with to testify.

556
00:45:34,220 --> 00:45:35,480
So I don't necessarily...

557
00:45:35,480 --> 00:45:40,560
So let's say, for example, the defendant takes a stand and says, I wasn't there.

558
00:45:41,860 --> 00:45:44,380
He meant that he doesn't admit to anything, I wasn't even in the universe.

559
00:45:45,500 --> 00:45:51,200
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.

560
00:45:52,000 --> 00:45:56,520
He hasn't admitted anything, does he get the charge of self-defense?

561
00:45:57,180 --> 00:46:01,080
In that case, you're on our idea, believe that he would, because there is evidence and

562
00:46:01,080 --> 00:46:03,300
pursuant to OCDA-61-3.

563
00:46:03,480 --> 00:46:05,960
So it's not been based on what he admits there.

564
00:46:06,400 --> 00:46:06,920
That's correct.

565
00:46:06,920 --> 00:46:11,920
I believe it's just that whatever evidence comes in at trial, if it's enough to support the

566
00:46:11,920 --> 00:46:16,080
defense, and he would like that defense, I believe he's entitled to it.

567
00:46:16,080 --> 00:46:23,900
It seems to me, Council, that we use admission in two different senses here, one is an evidentiary

568
00:46:23,900 --> 00:46:29,340
type admission, and another is an admission for the sake of argument.

569
00:46:30,680 --> 00:46:34,560
And I think it's probably important as we get through this case to clearly distinguish

570
00:46:34,560 --> 00:46:36,140
between those two.

571
00:46:36,720 --> 00:46:40,400
And that is a good point here, on our, because that word does kind of, I think that's where

572
00:46:40,400 --> 00:46:45,140
a lot of the confusion does rest with this issue, is what exactly does the word admit to me?

573
00:46:45,140 --> 00:46:50,840
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

574
00:46:52,560 --> 00:46:54,260
And while that

575
00:46:54,260 --> 00:46:56,460
Is it a good point your honor?

576
00:46:56,740 --> 00:47:02,720
We're not we're not making our decision based on an admission of any type. We're the class to actual evidence

577
00:47:02,720 --> 00:47:05,600
And that's correct. Yeah, do you

578
00:47:05,600 --> 00:47:14,080
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

579
00:47:14,080 --> 00:47:17,580
But rather seeks to excuse for purposes of the defense.

580
00:47:20,090 --> 00:47:27,550
And that may be a better language, however, this language, this language, this

581
00:47:27,550 --> 00:47:32,810
court adopted in 1973 from American jurisprudence, it is a nationally recognized

582
00:47:32,810 --> 00:47:34,310
definition of affirmative defense.

583
00:47:34,690 --> 00:47:38,870
So you have other states across this country that use that same language.

584
00:47:39,470 --> 00:47:43,890
And so it is within this course discretion if they feel that that word is confusing,

585
00:47:43,890 --> 00:47:47,270
However, this is a nationally recognized definition.

586
00:47:48,050 --> 00:47:52,170
Have any other states experience the same in confusion that we've experienced in Georgia?

587
00:47:52,730 --> 00:47:54,690
In the jurisprudence over this?

588
00:47:55,030 --> 00:47:55,930
That's a good question, Your Honor.

589
00:47:56,010 --> 00:47:58,510
I don't know the answer to that, but was leave of court.

590
00:47:59,150 --> 00:48:02,190
I'd be happy to settle right a supplemental brief on that issue.

591
00:48:03,070 --> 00:48:07,550
Can I go back to this, the way it's charged versus what you're admitting?

592
00:48:08,270 --> 00:48:10,770
So there are two forms of aggravated assault, right?

593
00:48:10,770 --> 00:48:16,770
potentially inflicting a violent injury or putting somebody in reasonable apprehension

594
00:48:16,770 --> 00:48:17,330
of fear.

595
00:48:17,590 --> 00:48:24,270
If the indictment charges the defendant with committing an aggravated assault by shooting

596
00:48:24,270 --> 00:48:28,750
somebody with the intent to inflict a violent injury.

597
00:48:28,950 --> 00:48:32,990
In the States cases, the defendant shot and hit the victim.

598
00:48:34,070 --> 00:48:37,650
Can the defendant come in and say, I'm not admitting to that.

599
00:48:37,650 --> 00:48:51,410
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.

600
00:48:52,310 --> 00:49:01,390
So basically asserting a self-defense defense, but it's not tied to the facts the state is trying to prove.

601
00:49:02,230 --> 00:49:05,510
And again, I think that's just for the law, is a little bit unclear.

602
00:49:05,910 --> 00:49:10,710
There are some cases that seem to indicate as long as general elements of the offense are

603
00:49:11,350 --> 00:49:13,330
admitted or there's evidence of that.

604
00:49:13,450 --> 00:49:14,310
But that's my question.

605
00:49:14,470 --> 00:49:19,450
I mean, when you say general elements of the offense, we often use aggravated assault loosely,

606
00:49:20,270 --> 00:49:25,330
but there are actually two different types of aggravated assault and the elements are

607
00:49:25,330 --> 00:49:25,690
different.

608
00:49:25,850 --> 00:49:31,370
And it may be that the answer to the question is, it is hypothetically possible that

609
00:49:31,370 --> 00:49:36,970
defense lawyer could do that, but the much simpler thing for the defense lawyer to do is to say

610
00:49:36,970 --> 00:49:41,530
the state has, in fact, not proved the theory of aggravated assault that is charged.

611
00:49:42,570 --> 00:49:48,090
Rather than get into admitting a whole different theory that is not charged.

612
00:49:49,730 --> 00:49:55,310
And that is correct. And that will kind of bring me into what's going on with the McClaur case a little bit.

613
00:49:55,310 --> 00:50:01,350
And you're on, there's one thing that admission does not mean is an outright denial.

614
00:50:02,210 --> 00:50:04,630
And so that's what we have in the MacLore case.

615
00:50:05,590 --> 00:50:12,890
The appellants did testify, and he did not admit to ever pointing the BB gun.

616
00:50:13,070 --> 00:50:14,950
He did not admit to threatening the victims.

617
00:50:16,050 --> 00:50:19,130
He only testified that he had the BB gun slung over his shoulder.

618
00:50:20,330 --> 00:50:23,770
It's not a hypothetical that the presiding justice just gave.

619
00:50:23,770 --> 00:50:31,910
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.

620
00:50:32,130 --> 00:50:32,970
I mean, how is that different?

621
00:50:34,650 --> 00:50:38,690
And perhaps I misunderstood, I'm presenting just as hypothetical and I apologize.

622
00:50:39,790 --> 00:50:46,770
But in that case, I believe there's going to be a difference if there's an outright denial, because a defendant...

623
00:50:46,770 --> 00:50:47,110
Why?

624
00:50:48,090 --> 00:50:50,850
I mean, we have conflicting evidence all the time.

625
00:50:50,850 --> 00:50:54,950
We don't say that if there's a conflict in the evidence, you don't get the instruction,

626
00:50:55,090 --> 00:51:00,170
we say if there's slide evidence, you get the instruction and let the jury sort it out.

627
00:51:00,610 --> 00:51:01,430
Well, really see.

628
00:51:01,470 --> 00:51:05,870
Now, if you don't get the instruction and the defendant denied it to go back to a question,

629
00:51:07,330 --> 00:51:13,030
it would seem to be fairly harmless because you would require the jury to disbelieve the

630
00:51:13,030 --> 00:51:18,110
defendant who got up there and swore under oath that something happened and say the jury

631
00:51:19,470 --> 00:51:25,490
disbelieve the defendant, but still found him not would have found him not guilty, but

632
00:51:25,490 --> 00:51:32,350
but that's not how we do during instructions, usually. And that's in a defense has to be reasonably

633
00:51:32,350 --> 00:51:38,890
raised by the evidence, your honors, and here it does. It has to be slightly raised by the evidence.

634
00:51:38,890 --> 00:51:44,770
In fact, we reverse trial courts with some regularity when people mislead them or they get

635
00:51:44,770 --> 00:51:50,830
misled into the idea that the evidence has to be, you know, a reasonable now, rather

636
00:51:50,830 --> 00:51:52,570
than a tiny bit.

637
00:51:53,630 --> 00:52:03,330
And that, and you are correct, just as however, let me back up, though, I do agree with

638
00:52:03,330 --> 00:52:05,590
Your Honor, there does have to be evidence.

639
00:52:06,130 --> 00:52:10,730
And here, the problem is, a parent just outright denied.

640
00:52:11,750 --> 00:52:23,710
I thought you had just finished agreeing with that all that the raising of the defense itself

641
00:52:24,960 --> 00:52:31,170
does not deny for purposes of the defense, the commission of the crime.

642
00:52:31,170 --> 00:52:39,110
But that is not incompatible with the defendant still denying for all other purposes that the defendant committed the crime.

643
00:52:39,550 --> 00:52:50,330
Why is it necessary for the defendant to not deny actually committing the crime in order to get the instruction?

644
00:52:50,330 --> 00:53:01,540
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.

645
00:53:02,020 --> 00:53:04,100
I did not do what state asked me to do.

646
00:53:04,500 --> 00:53:10,740
That was one of his defenses, but he asked for a different defense of self defense, right?

647
00:53:11,040 --> 00:53:16,180
That is correct. However, there was no evidence to support that based on his testimony.

648
00:53:16,820 --> 00:53:18,320
That he was scared, right?

649
00:53:18,320 --> 00:53:22,820
He just said he was scared that's right and other people said he pointed it

650
00:53:22,820 --> 00:53:27,100
gun well putting aside whether you have to prove it as charge but other people said

651
00:53:27,100 --> 00:53:31,260
he pointed a gun at right that is correct how it why couldn't the jury put that

652
00:53:31,260 --> 00:53:36,560
together and say that would be enough for us to find self defense we believe

653
00:53:36,560 --> 00:53:41,160
part of we mean again putting aside harmless error we would leave it to the

654
00:53:41,160 --> 00:53:45,020
jury to say we didn't believe the defendant when he said he didn't point the gun

655
00:53:45,020 --> 00:53:51,220
But we did believe when he said he was scared and you do make a good point you're on or however

656
00:53:51,220 --> 00:53:55,920
I think the the biggest distinction again is just the outright in Nile here

657
00:53:56,820 --> 00:54:00,200
That seems completely contrary to everything else. You said

658
00:54:03,400 --> 00:54:05,640
Let me give you another hypothetical

659
00:54:07,740 --> 00:54:15,060
The state in its case in chief presents evidence that includes a video recording that was taken from an ATM

660
00:54:15,060 --> 00:54:20,560
where the face of the ATM customer is somewhat obscured,

661
00:54:20,860 --> 00:54:24,500
but the state's theory is that this customer is in fact the defendant.

662
00:54:25,380 --> 00:54:29,100
And the video depicts three individuals walking up behind the defendant

663
00:54:29,100 --> 00:54:32,640
as he's operating the ATM or whoever's depicted there.

664
00:54:32,940 --> 00:54:36,180
Walking up behind this person with crowbars, there words exchanged,

665
00:54:36,300 --> 00:54:39,500
and then the bank customer turns around and shoots all three individuals.

666
00:54:41,740 --> 00:54:47,820
The defendant is charged with three counts of murder, and at trial, the defendant shows up and says,

667
00:54:47,960 --> 00:54:54,080
actually, that's not me depicted in the film. I was 500 miles away doing mission work with orphans,

668
00:54:54,160 --> 00:55:00,480
and I have 16 nuns here to corroborate my story. That is not me. He can nonetheless raise a firm

669
00:55:00,480 --> 00:55:05,380
The affirmative defense of justification, Kenny Nott, and his defense lawyer can argue, that's

670
00:55:05,380 --> 00:55:08,840
not him, but whoever's depicted there was just fighting shooting.

671
00:55:10,380 --> 00:55:13,200
And then he gets an instruction on self-defense.

672
00:55:14,100 --> 00:55:18,360
And I believe just based on the plain language of the statute, as long as there's evidence

673
00:55:18,920 --> 00:55:20,160
to support the charge.

674
00:55:20,160 --> 00:55:22,300
There's evidence in this case, right?

675
00:55:22,360 --> 00:55:22,580
Right.

676
00:55:22,700 --> 00:55:27,180
It's not the defendant, but there's evidence from your own witnesses that he pointed

677
00:55:27,180 --> 00:55:30,540
the gun, and then there's evidence from the defendant that he was scared.

678
00:55:32,140 --> 00:55:33,660
Why, how is that not evidence?

679
00:55:35,680 --> 00:55:39,020
Are you saying you can't cobble together evidence to get a jury instruction?

680
00:55:39,140 --> 00:55:42,800
Because if we say you can't cobble together evidence, you're not going to get jury instructions

681
00:55:42,800 --> 00:55:44,360
on most of the elements of the crimes.

682
00:55:45,840 --> 00:55:49,800
And I do understand your honor's point and perhaps I'm not making...

683
00:55:49,800 --> 00:55:52,120
Here I think is the point that's confusing us.

684
00:55:52,180 --> 00:55:57,980
It seems like your answer that is yes, but then at the same time your answer is, but the defendant

685
00:55:57,980 --> 00:56:04,460
can't outright deny having done it. And that's the piece that I at least don't understand,

686
00:56:04,560 --> 00:56:09,200
because if there's evidence for each element of slight evidence for each element of the

687
00:56:09,200 --> 00:56:12,980
affirmative defense from somewhere else, why does it matter what the defendant says?

688
00:56:15,120 --> 00:56:19,340
Based on his testimony, Your Honor, he's just saying he didn't do anything wrong. He was

689
00:56:19,340 --> 00:56:19,940
just scared.

690
00:56:20,080 --> 00:56:25,120
So in the real world, you guys fight off these instructions, but in the real world, if you just

691
00:56:25,120 --> 00:56:31,680
the instruction, you'd argue to the jury that, you know, they're going to say it's self-defense,

692
00:56:32,800 --> 00:56:36,580
but why would you ever believe that because the defendant got up there and said,

693
00:56:36,860 --> 00:56:42,280
it wasn't that he didn't do anything. And so it's obvious they're just trying to mislead you,

694
00:56:42,420 --> 00:56:47,940
jury, because the defendant himself said, that's not what happened. And you would probably win.

695
00:56:48,960 --> 00:56:51,700
And it is a good, but you might not.

696
00:56:53,800 --> 00:56:58,680
And we do recognize that you have co-council who is probably anxious to come up.

697
00:56:58,900 --> 00:56:59,240
Yes, sir.

698
00:56:59,340 --> 00:57:01,200
If there's no further questions, I'll pass the podium.

699
00:57:09,660 --> 00:57:14,380
May it please the court, Chief Justice, and my colleagues on the bar.

700
00:57:15,160 --> 00:57:21,180
I'd like to address some of the questions that were raised by the earlier.

701
00:57:23,240 --> 00:57:37,560
The main question is whether just disputing the existence of the act, is that going to

702
00:57:37,560 --> 00:57:39,800
forfeit an affirmative defense?

703
00:57:39,800 --> 00:57:53,200
And we know from modes versus the state 256 Georgia 83 that the raising of the defense by argument

704
00:57:53,200 --> 00:57:56,780
is the only required admission.

705
00:57:57,080 --> 00:58:08,000
And so the problem is that jury instructions that every jury receives that the argument

706
00:58:08,000 --> 00:58:19,200
of Council is not considered evidence. Now, under the law, sometimes a lawyer's statements

707
00:58:19,200 --> 00:58:26,180
can be considered a binding admission, not probably not in criminal cases,

708
00:58:28,700 --> 00:58:29,340
there's some

709
00:58:29,340 --> 00:58:36,620
cases that adherings in a criminal case, but not as evidence to a trial, very dangerous thing

710
00:58:36,620 --> 00:58:41,240
allow what lawyers say for defendants to be dining on them?

711
00:58:41,620 --> 00:58:48,420
And even at the hearing, that's only admissible if neither the court or the other side

712
00:58:48,420 --> 00:58:50,740
does not insist on further proof.

713
00:58:50,920 --> 00:58:57,260
So why is there a problem with saying that what the lawyer says is not evidence?

714
00:58:57,440 --> 00:59:02,140
The point is if there is actual slight evidence from the evidence,

715
00:59:04,950 --> 00:59:06,030
if you have actual

716
00:59:06,030 --> 00:59:11,270
slide evidence from the evidence it was presented by either side in any way that supports

717
00:59:11,270 --> 00:59:12,630
an affirmative defense.

718
00:59:13,270 --> 00:59:15,510
Why can't you ask for that affirmative defense?

719
00:59:16,210 --> 00:59:16,610
Well, you're on.

720
00:59:16,750 --> 00:59:22,090
I think the actual admission is important.

721
00:59:22,690 --> 00:59:30,790
If you look at the differences in what the state can present, for example, the state does not

722
00:59:30,790 --> 00:59:32,350
have to prove motive.

723
00:59:32,350 --> 00:59:38,770
the state can prove motive by circumstantial evidence by conduct and circumstances.

724
00:59:39,070 --> 00:59:42,510
When you say act to admission, what do you mean?

725
00:59:43,790 --> 00:59:49,110
I mean, they're using admission in the evidentory sense or in the argument sense or what?

726
00:59:50,290 --> 00:59:57,110
I think it could be argument, it could be admission, but it has to be raised by the evidence.

727
00:59:57,110 --> 00:59:59,870
and it does raise the issue.

728
01:00:00,000 --> 01:00:23,400
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.

729
01:00:23,400 --> 01:00:30,000
And so the state has the burden to disprove that affirmative defense beyond a reasonable doubt

730
01:00:30,000 --> 01:00:37,060
once it's raised and there must be a reason why those elements are part of the defense

731
01:00:37,060 --> 01:00:38,860
it has to be properly raised.

732
01:00:39,700 --> 01:00:47,220
And I guess logistically if it was made during an argument, the closing argument, then the

733
01:00:47,220 --> 01:00:52,720
procedure would be the state would move to reopen the evidence so that the state could

734
01:00:52,720 --> 01:01:02,580
have her buttole and try to just prove it. But I think that Mr. Pennington's counsel suggests

735
01:01:02,580 --> 01:01:11,540
that we would have to just prove the affirmative fence prior to even it being raised.

736
01:01:13,360 --> 01:01:20,600
And I understand the argument that if the evidence itself raises the affirmative fence,

737
01:01:20,600 --> 01:01:32,680
But a crucial part is the, is the admission, as I said earlier, the state is always trying

738
01:01:32,680 --> 01:01:40,380
to piece together a picture of what happened during the alleged crime, and that's why

739
01:01:40,380 --> 01:01:42,700
there's Agatha Christie murder mysteries.

740
01:01:43,300 --> 01:01:50,060
On the other hand, without disputing the presumption of innocence, the defendant is in a unique

741
01:01:50,060 --> 01:01:59,020
position to know exactly their motive in committing a certain act. And Kelly versus the state,

742
01:02:00,040 --> 01:02:09,620
235 Georgia, Peel 177, Judge Eldridge in his concurrent state that there is always a connection

743
01:02:09,620 --> 01:02:17,020
between the act and the mental state. And Mr. Smith, where are we going with this?

744
01:02:18,060 --> 01:02:25,500
Well, in that case, the defendant was charged with pointing a gun up to police officers.

745
01:02:26,040 --> 01:02:31,480
And he stated, I never pointed the gun, but at the same time, I didn't know the difference

746
01:02:31,480 --> 01:02:32,800
between right and wrong.

747
01:02:32,880 --> 01:02:41,440
If you look at what Judge Eldridge, examined was the actual statute of relating to insanity.

748
01:02:42,600 --> 01:02:46,640
And he examined the statute and said that not knowing the difference between right and wrong

749
01:02:46,640 --> 01:02:55,220
He's relation to that act, and he argued that it's not relevant if he didn't know the

750
01:02:55,220 --> 01:02:59,000
difference between right and wrong and relation to some other act, not a legend.

751
01:02:59,020 --> 01:03:01,160
But that's a slight evident holding.

752
01:03:01,320 --> 01:03:05,980
That's saying the evidence he presented didn't establish that defense.

753
01:03:06,900 --> 01:03:06,980
What?

754
01:03:07,300 --> 01:03:12,740
I mean, you say with some good reason that the state has to be worried about not knowing

755
01:03:12,740 --> 01:03:19,340
in your case and chief that the defendant will raise an affirmative defense, but there are certain

756
01:03:19,340 --> 01:03:24,020
affirmative defenses that there are pretrial notice requirements for it, right?

757
01:03:24,540 --> 01:03:25,760
Insanity definitely.

758
01:03:26,060 --> 01:03:33,760
Insanity, alibi, alibi, well less, and alibi, if the defendant himself is the only one

759
01:03:33,760 --> 01:03:40,780
testifying that no notice, if there's no expert witnesses, and those have been created to avoid

760
01:03:41,580 --> 01:03:45,320
But where they don't exist, defendants are completely free to

761
01:03:45,320 --> 01:03:46,940
same bag the heck out of the government.

762
01:03:47,580 --> 01:03:49,840
And so the government presents its case.

763
01:03:50,740 --> 01:03:53,120
The defendant doesn't say word about self-defense,

764
01:03:53,260 --> 01:03:55,980
but one of the government's witnesses on cross-examination

765
01:03:55,980 --> 01:04:02,780
says, well, actually the victim look like he pulled his gun first.

766
01:04:03,420 --> 01:04:08,580
One that had a 15 witnesses and one other witness

767
01:04:08,580 --> 01:04:11,860
says in the defendant kind of look scared when he shot the victim.

768
01:04:12,580 --> 01:04:18,500
And then the state rests in the defense, ask for a instruction on self-defense.

769
01:04:18,620 --> 01:04:19,900
Do they get it?

770
01:04:21,810 --> 01:04:22,650
They never said it.

771
01:04:22,670 --> 01:04:27,830
You didn't expect it, but the way the evidence came out, your evidence.

772
01:04:29,510 --> 01:04:37,210
Well, if there is a denial that he, I think under some circumstances, they would.

773
01:04:38,430 --> 01:04:41,650
If I wasn't into guaranteed, there was slight evidence.

774
01:04:42,030 --> 01:04:46,210
Well, there is one witness who testified the victim pulled his gun first.

775
01:04:47,150 --> 01:04:54,630
I think the law, in my opinion, states that when there is criminal activity and all

776
01:04:54,630 --> 01:05:00,650
defenses relate to criminal activity, but we're going to decide that it's not blame

777
01:05:00,650 --> 01:05:11,610
or the defendant subjectively had a lawful reason for committing the act? I guess the murder

778
01:05:11,610 --> 01:05:18,350
is different because the state- It's not subjective, right? Self-defense and almost all affirmative

779
01:05:18,350 --> 01:05:22,950
defenses are objective. It's a reasonable person. That's true.

780
01:05:25,390 --> 01:05:29,190
And that's why the defense cannot

781
01:05:29,190 --> 01:05:36,530
that raise evidence related to the mental state, unless they raise the affirmative defense.

782
01:05:37,710 --> 01:05:45,590
And that rule is created because the defendant's actual subjective reasons for committing

783
01:05:45,590 --> 01:05:47,390
the act is relevant.

784
01:05:48,770 --> 01:05:53,750
And I think that accounts for the requirement that to raise certain affirmative defense,

785
01:05:53,750 --> 01:06:12,950
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.

786
01:06:12,950 --> 01:06:15,570
I think if it was a specific intent crime.

787
01:06:15,630 --> 01:06:17,830
So again, different rules for different kinds of crimes?

788
01:06:17,830 --> 01:06:26,430
I would think, so there is a defense of abandonment of a criminal scheme.

789
01:06:28,230 --> 01:06:36,150
I don't think a defendant could say, well, I decided not to participate in this crime,

790
01:06:36,390 --> 01:06:38,930
but not the crime charge in the indictment.

791
01:06:41,610 --> 01:06:49,410
Well, I don't think it would be relevant every beginning of a trial that courts that

792
01:06:49,410 --> 01:06:59,570
the indictment and the defendants, play of not guilty forms the issue that you have been

793
01:06:59,570 --> 01:07:00,580
sworn in to decide.

794
01:07:00,970 --> 01:07:01,150
All right.

795
01:07:01,370 --> 01:07:02,070
You're talking about the round.

796
01:07:02,130 --> 01:07:03,490
Do me this favor if you can.

797
01:07:03,590 --> 01:07:06,410
How would you articulate the rule that we should hold?

798
01:07:08,600 --> 01:07:14,720
I would, I would hold that, or if I was the court, I wouldn't be that presumptuous.

799
01:07:14,720 --> 01:07:22,920
I would hold that there must be some evidence to support a charge, but there must also be

800
01:07:22,920 --> 01:07:29,780
some acknowledgment that for the sake of the particular defense, there must be some

801
01:07:29,780 --> 01:07:34,100
acknowledgment of the doing of the act, the legend, the indictment,

802
01:07:37,110 --> 01:07:41,270
and I would ask, I'm

803
01:07:41,270 --> 01:07:41,790
having difficulty.

804
01:07:41,990 --> 01:07:42,410
Thank you.

805
01:07:43,190 --> 01:07:44,070
Thank you.

806
01:07:46,290 --> 01:07:48,950
Both sides have expired in time, is that right?

807
01:07:49,130 --> 01:07:49,930
Oh, five seconds.

808
01:07:51,330 --> 01:07:52,050
I'll pay the balance.

809
01:07:52,550 --> 01:07:53,250
Thank you.

810
01:07:53,410 --> 01:07:53,630
Thank you.

811
01:07:53,790 --> 01:07:54,530
Thank you, sir.

812
01:07:55,050 --> 01:07:56,490
Peterson rules have been invoked.

813
01:07:56,910 --> 01:07:57,590
Thank you.

814
01:07:58,630 --> 01:07:58,930
Thank you.

815
01:07:59,130 --> 01:08:00,030
Council for both sides.

816
01:08:00,090 --> 01:08:00,730
Thank you.

817
01:08:07,480 --> 01:08:11,640
For the attorneys arguing on the next case, in the party of Justice Ellington, who is

818
01:08:11,640 --> 01:08:14,000
disqualified, and you will not participate in this case.

819
01:08:58,050 --> 01:09:06,390
Thank you, Mr. Chief Justice. May I please the court. The general rule in OCDA-1611-127C

820
01:09:06,390 --> 01:09:13,790
is that every person with a weapon's carry license is authorized to carry a weapon in every location in this state.

821
01:09:14,530 --> 01:09:21,650
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.

822
01:09:22,550 --> 01:09:33,530
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,

823
01:09:33,530 --> 01:09:37,010
or any other agreement to control access to such property,

824
01:09:37,830 --> 01:09:41,250
shall have the right to forbid possession of a weapon or a lung on their property.

825
01:09:42,910 --> 01:09:47,350
Then in 2014, the legislature changed the law with House Bill 60,

826
01:09:48,110 --> 01:09:50,950
and inserted the word private in that language in three places,

827
01:09:51,450 --> 01:09:53,650
so now that it reads private property owners

828
01:09:53,650 --> 01:09:57,250
or persons in legal control of private property

829
01:09:57,250 --> 01:09:59,930
through a lease, rental agreement contract,

830
01:09:59,930 --> 01:10:02,210
or any other agreement to control access

831
01:10:02,210 --> 01:10:08,110
to such private property, so have the right to exclude or reject a person who is in possession

832
01:10:08,110 --> 01:10:11,510
of a weapon or a long gun on their private property.

833
01:10:13,900 --> 01:10:15,760
Now, in this case, the mechanical

834
01:10:15,760 --> 01:10:20,960
garden relies primarily on the Delta versus Coleman case, which has been discussed quite a

835
01:10:20,960 --> 01:10:26,560
bit in the briefs, and that case holds at least hold as in a state and land less than the

836
01:10:26,560 --> 01:10:34,640
It has been severed from the fee and classified for tax purposes, as reality, and then goes on to say,

837
01:10:35,000 --> 01:10:37,760
Delta acquired it and holds it as a private owner.

838
01:10:38,100 --> 01:10:43,100
Councillor, let me ask you this, if a summing for the sake of the question that a lease

839
01:10:43,100 --> 01:10:49,720
hold a state held by a private entity is private property for all purposes, can you still prevail?

840
01:10:50,740 --> 01:10:59,880
Well, yes, we can, because if you go that route, then you'd think and I would have expected

841
01:10:59,880 --> 01:11:06,540
that the garden would have argued that it is a private property owner using the first

842
01:11:06,540 --> 01:11:12,700
of the multiple ways that someone can exclude or reject a person, but the garden didn't make

843
01:11:12,700 --> 01:11:13,220
that argument.

844
01:11:13,520 --> 01:11:17,480
The trial court didn't find that the court of appeals didn't find that and none of the

845
01:11:17,480 --> 01:11:23,360
are good that it seems to me that they should have, but why didn't they? Because if you

846
01:11:23,360 --> 01:11:28,320
rule, as you suggested, that a leasehold interest is private property and the leaseholder

847
01:11:28,320 --> 01:11:33,460
owns that private property and therefore is a private property owner, then that leaves you

848
01:11:33,460 --> 01:11:40,520
wondering what did the legislature mean when it also said in legal control of private property

849
01:11:40,520 --> 01:11:44,800
through a lease? It's completely redundant. It would have been a rendered that language

850
01:11:44,800 --> 01:11:51,280
of her fluous, and we know that we interpret the statutes not to come to a conclusion like

851
01:11:51,280 --> 01:11:52,080
them.

852
01:11:53,000 --> 01:11:53,780
And that also,

853
01:11:55,880 --> 01:12:00,660
in most places, and very commonly, to mean unruble fee.

854
01:12:01,720 --> 01:12:08,320
When I say I own my house, that doesn't suggest I have a lease on my house, it suggests

855
01:12:08,320 --> 01:12:12,260
I own my house in fee.

856
01:12:12,260 --> 01:12:23,460
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.

857
01:12:23,460 --> 01:12:35,800
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?

858
01:12:35,800 --> 01:12:41,800
I agree, and that's why I think our interpretation of the statute is the correct one when the

859
01:12:41,800 --> 01:12:46,720
legislature used that word, it was talking about private property in the common parlance

860
01:12:46,720 --> 01:12:48,400
and not relying on tax cases.

861
01:12:48,740 --> 01:12:53,840
Well, so you get into the second part and just as Bethel's question, if you're just relying

862
01:12:53,840 --> 01:13:02,040
on the second part, if Delta V. Coleman stands for the proposition that a leasehold severed

863
01:13:02,040 --> 01:13:08,160
from the public, the owner, is private property, do you lose?

864
01:13:09,560 --> 01:13:16,360
No, because what Delta also says is that that lease holder owns it, owns the private

865
01:13:16,360 --> 01:13:16,880
property.

866
01:13:17,460 --> 01:13:19,320
That doesn't answer the question.

867
01:13:19,480 --> 01:13:19,780
Okay.

868
01:13:19,900 --> 01:13:20,140
I'm sorry.

869
01:13:20,960 --> 01:13:23,740
That may be owns in one limited sense.

870
01:13:23,760 --> 01:13:27,640
That is not owner in the only way that term is used.

871
01:13:27,640 --> 01:13:36,220
I mean, you do say you can own a easement, right, but when I say I'm the owner, if I say,

872
01:13:36,340 --> 01:13:42,160
if I'm George of power and I say I own this land where all I have is an easement to have

873
01:13:42,160 --> 01:13:45,380
my power there, that would be pretty weird, right?

874
01:13:46,140 --> 01:13:48,520
But you could say it if you were talking about a lease,

875
01:13:57,620 --> 01:13:57,620
if you were actually talking about a

876
01:13:57,620 --> 01:13:59,880
at the first part of the statute is irrelevant.

877
01:14:01,640 --> 01:14:05,720
If a private lease, if a lease hold I got from the government,

878
01:14:06,580 --> 01:14:07,960
is considered private property,

879
01:14:08,120 --> 01:14:10,740
doesn't it fall within the second part of the definition

880
01:14:10,740 --> 01:14:11,460
in the statute?

881
01:14:12,060 --> 01:14:15,220
I don't think it does, because then the next question is,

882
01:14:15,360 --> 01:14:18,820
well then, why would the legislature have made that change?

883
01:14:19,400 --> 01:14:22,020
If you look at the way the statute used to read

884
01:14:22,020 --> 01:14:24,020
and the way it reads, now the emustiment intended

885
01:14:24,020 --> 01:14:25,460
to make some kind of change.

886
01:14:25,460 --> 01:14:46,240
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.

887
01:14:46,280 --> 01:14:53,100
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.

888
01:14:53,100 --> 01:14:59,980
a government could get out from the restrictions of the carrier.

889
01:15:00,000 --> 01:15:09,620
Law by leasing government land from a private holder. I mean, the way the statute was worded before,

890
01:15:10,740 --> 01:15:16,620
it just said a personing legal control of property through a lease. So if I may govern it,

891
01:15:16,720 --> 01:15:23,840
and I get control of property through a lease, then I'd be able to keep gunna carry yourself.

892
01:15:23,840 --> 01:15:41,040
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.

893
01:15:41,340 --> 01:15:48,260
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.

894
01:15:48,360 --> 01:15:49,840
I think that's correct. Yes.

895
01:15:49,840 --> 01:16:01,860
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.

896
01:16:02,520 --> 01:16:06,820
It seems to me property is some time private property is sometimes used in different senses.

897
01:16:07,220 --> 01:16:12,580
Sometimes it refers to the premises, the land, the thing that is owned.

898
01:16:12,580 --> 01:16:20,860
Sometimes in the tax context, however, it refers to the legal ownership interest in whatever it is that is owned.

899
01:16:21,620 --> 01:16:30,040
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,

900
01:16:30,920 --> 01:16:33,300
but the leasehold itself may be private.

901
01:16:33,800 --> 01:16:40,460
On the other hand, it seems to me pretty clear that in this statute private property means the premises, the physical premises,

902
01:16:40,460 --> 01:16:48,020
not any sort of legal interest, because it goes on to say that a person and legal control

903
01:16:48,020 --> 01:16:55,160
of private properties, you'll have the right to exclude from the private property, a person.

904
01:16:55,760 --> 01:16:58,200
You don't exclude somebody from a fee interest.

905
01:16:58,300 --> 01:17:01,000
You don't exclude somebody from a leasehold interest.

906
01:17:01,220 --> 01:17:02,700
You exclude them from the premises.

907
01:17:04,040 --> 01:17:05,340
I agree with that.

908
01:17:05,340 --> 01:17:10,860
And I think, when you look at all the other options under the statute,

909
01:17:11,940 --> 01:17:14,760
including the, it's got the lease, the rental agreement,

910
01:17:14,860 --> 01:17:17,760
contract, or any other agreement to control access,

911
01:17:18,260 --> 01:17:22,440
if the legislature intended to follow the Delta kind of thinking

912
01:17:22,440 --> 01:17:26,180
where you've got lease hold interests and then everything else,

913
01:17:26,340 --> 01:17:28,900
which would be just use of Brooks generally, I think.

914
01:17:29,640 --> 01:17:32,840
It would have been easier to say it that way, rather than list all these out.

915
01:17:32,840 --> 01:17:40,540
I think by listing all these out, the legislature intended to be looking at not the possessor

916
01:17:40,540 --> 01:17:46,200
of the property, but the owner and fee, so it was calling property private property when

917
01:17:46,200 --> 01:17:53,060
I was owned and fee by a private entity, and if it's least, then the lesser of that private

918
01:17:53,060 --> 01:17:58,780
property has the same benefits that the private property owner and fee does to exclude or

919
01:17:58,780 --> 01:18:08,880
in the 2004 amendment, the legislature left 1611-135, and it's previous one.

920
01:18:09,260 --> 01:18:11,820
In other words, it did not insert the private.

921
01:18:12,320 --> 01:18:14,620
And that's the weapons I believe in.

922
01:18:14,640 --> 01:18:16,720
It's a place of employment, paragraph.

923
01:18:17,720 --> 01:18:22,180
So how would this language apply without the word private?

924
01:18:22,940 --> 01:18:24,320
The inserted words, private.

925
01:18:24,320 --> 01:18:27,600
Just as about what you said 2004, do you mean in the 2014 amendment?

926
01:18:28,020 --> 01:18:28,560
That's okay.

927
01:18:28,940 --> 01:18:29,140
All right.

928
01:18:29,380 --> 01:18:30,820
And what was the question?

929
01:18:32,440 --> 01:18:35,320
We have a comparison paragraph, 1611135.

930
01:18:36,420 --> 01:18:37,700
The parking lot.

931
01:18:37,700 --> 01:18:38,600
That's correct.

932
01:18:39,260 --> 01:18:41,280
Where where private was not inserted.

933
01:18:41,360 --> 01:18:44,660
In other words, the otherwise language more or less tracks between the paragraphs.

934
01:18:45,480 --> 01:18:48,940
How would if the private had not been inserted in 127?

935
01:18:50,080 --> 01:18:53,340
How would it be, how should we interpreted it before 2014?

936
01:18:53,340 --> 01:18:56,360
I guess is the right way to ask that.

937
01:18:56,840 --> 01:18:59,200
I understand the question, but I'm not sure,

938
01:18:59,380 --> 01:19:00,980
see the relationship to 135.

939
01:19:01,540 --> 01:19:03,940
But the general assembly presumably,

940
01:19:05,240 --> 01:19:06,400
not always a great presumption,

941
01:19:06,720 --> 01:19:08,180
chose one and not the other.

942
01:19:08,360 --> 01:19:09,320
I see, okay.

943
01:19:09,760 --> 01:19:11,140
Well, first of all, I think 135,

944
01:19:11,860 --> 01:19:13,040
it wasn't changed here, right?

945
01:19:13,200 --> 01:19:15,780
But it already included private employers.

946
01:19:16,700 --> 01:19:18,240
So it already covered their parking lots,

947
01:19:18,320 --> 01:19:20,200
and I don't think a change was needed.

948
01:19:20,200 --> 01:19:24,840
But even if they were releasing their parking lot, for example, from a government.

949
01:19:25,960 --> 01:19:33,580
Yeah, because excuse me, yes, 1611135 applies to private employers and government employers

950
01:19:33,580 --> 01:19:34,560
already.

951
01:19:34,760 --> 01:19:39,220
The way it was worded before, and it wasn't necessary because it already covered that.

952
01:19:39,500 --> 01:19:46,460
So let's talk for a second about the concurrence below raising the potential for some sort

953
01:19:46,460 --> 01:19:47,380
of taking issue.

954
01:19:47,380 --> 01:19:49,580
and I don't know that this is necessarily best framed

955
01:19:49,580 --> 01:19:54,420
as a taking issue, but when I own private property,

956
01:19:54,900 --> 01:19:57,880
a core right as a private property owner

957
01:19:57,880 --> 01:20:00,040
is the right to exclude everybody else

958
01:20:00,040 --> 01:20:02,620
from my property if I feel like it.

959
01:20:03,220 --> 01:20:05,500
When the government passes a law, saying,

960
01:20:05,500 --> 01:20:07,300
no, you got to allow these people on.

961
01:20:09,320 --> 01:20:12,780
Hasn't the government taken something from me?

962
01:20:13,840 --> 01:20:15,920
If you're talking about, when you use the word taken,

963
01:20:15,940 --> 01:20:17,540
if you're talking about an Fifth Amendment

964
01:20:17,540 --> 01:20:23,800
taking some kind of context? Maybe it's a taking issue. I'm skeptical of that, but it feels

965
01:20:23,800 --> 01:20:27,620
like it ought to be something. Okay, I'll talk about the taking issue if you want. If you just

966
01:20:27,620 --> 01:20:31,840
want to back off of that and just say, may little tea takings, sure the government has done

967
01:20:31,840 --> 01:20:36,900
something to give you some slight diminished value in your property, but the government does it all

968
01:20:36,900 --> 01:20:47,520
the time. Let's say the government passes a law saying that John Monroe has to admit fans of the

969
01:20:47,520 --> 01:20:49,120
in during the fall.

970
01:20:51,300 --> 01:20:55,660
Has your, has, has, has some legal right of yours been violated?

971
01:20:56,280 --> 01:21:02,400
Certainly. What right is that? Well, I have the right to exclude people who, who, who, who,

972
01:21:02,740 --> 01:21:08,100
support, and do you think that would be actionable? Do you think that would be actionable?

973
01:21:10,100 --> 01:21:18,940
Maybe after the, uh, sovereign immunity bill is signed. So, so, if I, as a,

974
01:21:18,940 --> 01:21:27,600
owner of private property as someone who has leased property from a government, at a time when

975
01:21:27,600 --> 01:21:32,760
the government was not prohibited from excluding people carrying guns.

976
01:21:35,590 --> 01:21:42,010
If I had the right to exclude people carrying guns and the government passes a lot saying

977
01:21:42,010 --> 01:21:43,990
now I don't, why is that different?

978
01:21:45,790 --> 01:21:51,390
It's, I mean, the difference is there's, and we're really treading on the whole taking

979
01:21:51,390 --> 01:21:53,870
the issues, and maybe we need to talk about it in that context.

980
01:21:54,370 --> 01:22:00,270
The government makes regulations that impair your property rights all the time.

981
01:22:00,490 --> 01:22:07,930
I'll give me one where the government prohibits who a private person can exclude from their property.

982
01:22:09,010 --> 01:22:12,550
I can give you examples of the opposite.

983
01:22:13,910 --> 01:22:17,370
It's for 140 years, the government, the state,

984
01:22:17,490 --> 01:22:20,910
banned churches from letting people with guns on their property,

985
01:22:21,230 --> 01:22:23,750
which is kind of the other side of the coin.

986
01:22:24,630 --> 01:22:29,110
That's been modified now, so that the general law still is.

987
01:22:29,470 --> 01:22:31,250
Churches are people are banned.

988
01:22:31,650 --> 01:22:33,870
It's crime to go into a church with a firearm.

989
01:22:34,550 --> 01:22:36,770
Churches are still banned, but now it's been modified.

990
01:22:36,770 --> 01:22:38,210
I think you're just trying to allow it.

991
01:22:38,430 --> 01:22:41,390
Well, let's get public accommodations out.

992
01:22:41,570 --> 01:22:42,990
Let's get homeowners.

993
01:22:44,510 --> 01:22:47,050
I mean, because you could be a homeowner

994
01:22:47,050 --> 01:22:49,090
and follow under your definition, right?

995
01:22:50,070 --> 01:22:52,450
If I live in an apartment that's

996
01:22:52,450 --> 01:22:55,530
least on development, government land,

997
01:22:56,290 --> 01:22:59,470
I under your view, I cannot man people with guns

998
01:22:59,470 --> 01:23:00,450
from my house.

999
01:23:01,110 --> 01:23:02,510
I wouldn't work it quite that way.

1000
01:23:02,910 --> 01:23:05,530
I mean, when you're talking about private residential

1001
01:23:05,530 --> 01:23:12,950
property, or residential property, it's not the same as in the case that we have at bar.

1002
01:23:13,050 --> 01:23:19,430
Your definition is the same as your definition is if it's government-land under it.

1003
01:23:19,770 --> 01:23:20,330
No, I agree.

1004
01:23:20,730 --> 01:23:21,570
I'll get to your point.

1005
01:23:21,750 --> 01:23:23,170
I'm not trying to side-step it.

1006
01:23:23,710 --> 01:23:29,030
In the case that we have here with a garden, it invites the public.

1007
01:23:29,250 --> 01:23:29,430
It's open.

1008
01:23:29,630 --> 01:23:30,790
I'm going to get to your point.

1009
01:23:30,970 --> 01:23:31,830
I promise I am.

1010
01:23:32,170 --> 01:23:34,030
I get what you're going to say about gardens.

1011
01:23:34,030 --> 01:23:39,170
you could say about public accommodations and common carriers, but your definition doesn't have

1012
01:23:39,170 --> 01:23:39,650
that limit.

1013
01:23:39,710 --> 01:23:47,430
Your definition is, my house sits on state Parkland or state forestland.

1014
01:23:49,070 --> 01:23:52,130
I'll pretend I've already, can the state forest me?

1015
01:23:52,430 --> 01:23:56,010
I don't want people with guns being able to come in my house.

1016
01:23:56,630 --> 01:23:57,870
The difference, I understand what you're saying.

1017
01:23:58,050 --> 01:24:03,210
The difference is, if it's private, if it's residential property, you're not just inviting

1018
01:24:03,210 --> 01:24:05,530
the public on, you're only inviting people you want.

1019
01:24:05,550 --> 01:24:13,630
But there's nothing in the statute that sort of gives rise to that kind of distinction.

1020
01:24:14,750 --> 01:24:22,050
If there's somebody who, let's say there's some, I've invited a group of people over for a party,

1021
01:24:22,930 --> 01:24:28,410
and one of them brings a gun with them, and I kick them out because they brought the gun.

1022
01:24:29,490 --> 01:24:35,870
Under your reading of the statute, they could say no, and when I call the police to have

1023
01:24:35,870 --> 01:24:40,830
them remove for trespass, they would actually have a legal right to be there.

1024
01:24:42,630 --> 01:24:47,590
I think that, I think you're right if the reason you ejected them was for the carrying of

1025
01:24:47,590 --> 01:24:48,050
the gun.

1026
01:24:48,150 --> 01:24:56,810
What I was going to say to Justice now is how has that not violated my property right to eject

1027
01:24:56,810 --> 01:25:01,310
whoever I want to inject. I think the difference is if you're living in public housing,

1028
01:25:02,030 --> 01:25:06,970
you're accepting less control over the property than in public housing. It's my,

1029
01:25:07,650 --> 01:25:13,070
well, unless you want to say that all the people who live in an apartment building on

1030
01:25:13,070 --> 01:25:19,970
development authority land or or a 99 year ground lease, right? So I have a $2 million

1031
01:25:19,970 --> 01:25:25,210
dollar lay cows, that's government housing now.

1032
01:25:26,110 --> 01:25:28,010
If you're talking about property that you're

1033
01:25:28,010 --> 01:25:29,710
leasing from the government, yes.

1034
01:25:30,410 --> 01:25:32,610
Isn't it a shock to a lot of people?

1035
01:25:32,910 --> 01:25:37,150
Well, I mean, isn't it so that the disability in the case

1036
01:25:37,150 --> 01:25:39,050
flows from government as landlord?

1037
01:25:39,590 --> 01:25:40,110
That's correct.

1038
01:25:40,110 --> 01:25:42,870
That is to say, it's not your home.

1039
01:25:43,290 --> 01:25:45,270
It's a home that you hold the leasehold to.

1040
01:25:45,430 --> 01:25:48,090
That is a separate estate, but that means there's more than

1041
01:25:48,090 --> 01:25:49,150
on a state present.

1042
01:25:49,510 --> 01:25:49,790
That's right.

1043
01:25:49,790 --> 01:25:54,670
And so the disability in that case flows from the fact that where the city could have sold

1044
01:25:54,670 --> 01:25:58,650
the land or any government entity could have sold the land and it'd be privately owned

1045
01:25:58,650 --> 01:26:03,270
and all of the rise that we're talking about here would adhere to the owner, the sole owner,

1046
01:26:03,850 --> 01:26:06,390
in this case you have more than one owner.

1047
01:26:06,850 --> 01:26:07,050
That's right.

1048
01:26:07,070 --> 01:26:10,930
But she's were trying to define who is the owner contemplated by this paragraph.

1049
01:26:11,170 --> 01:26:17,930
Although there are many very large high-rise buildings in Atlanta, Midtown, downtown

1050
01:26:17,930 --> 01:26:24,130
bookhead that sit on 99-year grandlaces from the city or development authority or some other

1051
01:26:24,130 --> 01:26:31,870
public entity. If a condo development is built on the 40th floor of one of those high rises,

1052
01:26:31,970 --> 01:26:42,490
and I buy a condo, I don't typically think of myself as having the government as landlord,

1053
01:26:43,010 --> 01:26:46,390
just because there's a ground lease that may expire 78 years from now.

1054
01:26:46,390 --> 01:26:52,770
Well, in your example, Justice Peterson, I think you own that condo and fees, so I think that is your private property.

1055
01:26:53,430 --> 01:26:56,410
But, Mr. Chief Justice, if I may, I'd like to reserve the rest of my time for a moment.

1056
01:26:56,850 --> 01:26:57,470
Thank you.

1057
01:27:06,140 --> 01:27:06,620
Good morning.

1058
01:27:06,840 --> 01:27:07,780
May I please the court.

1059
01:27:07,800 --> 01:27:11,520
My name is Jim Grant, and I am here on behalf of the Botanical Garden.

1060
01:27:12,800 --> 01:27:18,980
The statutory construction issue that you all have been asking questions about is obviously at the heart of this.

1061
01:27:19,320 --> 01:27:23,940
And I think Justice Nami's point is exactly the right one, and that is to say,

1062
01:27:23,940 --> 01:27:30,880
When you think of owners in the customary usage of the term owner you think of the fee owner I own my house

1063
01:27:30,880 --> 01:27:39,660
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

1064
01:27:39,660 --> 01:27:42,720
a distinct property right that it won't

1065
01:27:42,720 --> 01:27:49,450
It can sell that a state for years. It is alienable under Georgia law in under title 44 and

1066
01:27:49,450 --> 01:27:52,790
And therefore, those two phrases have independent meaning.

1067
01:27:53,310 --> 01:27:58,430
The first part of the language respects the fee and the second part respects folks who have

1068
01:27:58,430 --> 01:28:03,070
leases, like the botanical garden and the state for years, more than five years.

1069
01:28:03,470 --> 01:28:09,110
And it gives the botanical garden the right to exclude because it is a private entity

1070
01:28:09,110 --> 01:28:11,970
using that property for private purposes.

1071
01:28:11,970 --> 01:28:18,470
Does that rationale while wouldn't the pre 2014 language have accomplished the exact same thing?

1072
01:28:18,470 --> 01:28:23,310
I think it did. I think it did. But there was none the less a change. So what is the

1073
01:28:23,310 --> 01:28:31,190
2014 change accomplished? Okay. Because we don't read statutes that go in and change something

1074
01:28:31,190 --> 01:28:35,910
specific as having done nothing. Absolutely. That's absolutely right. And I think that the same

1075
01:28:35,910 --> 01:28:40,270
result obtained under both, but there was none the less a change. And the change was alluded

1076
01:28:40,270 --> 01:28:46,850
to by somebody already. And it's this. It's if you have a public owner, excuse me, if you have

1077
01:28:46,850 --> 01:28:52,770
private owner, leasing to a public entity. That was not contemplated in the prior version of

1078
01:28:52,770 --> 01:28:57,610
the statute because it did not distinguish between private owners in the prior version.

1079
01:28:57,850 --> 01:29:03,210
It said, persons in legal control of property through a lease, and it could have either been

1080
01:29:03,210 --> 01:29:08,470
a private entity controlling that property through a lease or a public entity, controlling that

1081
01:29:08,470 --> 01:29:13,630
property through a lease, and public entities, the overall presumption of the statute, except for the

1082
01:29:13,630 --> 01:29:19,270
specifically enumerated places like churches and jails and the like are now presumed to allow.

1083
01:29:19,410 --> 01:29:24,670
But why is that a reasonable reading given that we ordinarily read the word person's not to include government?

1084
01:29:25,810 --> 01:29:33,790
Your honor, I think that the change was intended to implement the presumption switch that happened in 2010.

1085
01:29:34,450 --> 01:29:42,790
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.

1086
01:29:42,790 --> 01:29:47,930
and 2010, except for the specifically enumerated eight places or so.

1087
01:29:47,950 --> 01:29:52,790
That seems like there isn't that seem like the more strained interpretation as between

1088
01:29:52,790 --> 01:29:58,990
some completing scenarios where public rented from, you know, private owners as opposed to

1089
01:30:00,000 --> 01:30:10,160
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.

1090
01:30:11,120 --> 01:30:19,100
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.

1091
01:30:19,380 --> 01:30:27,560
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.

1092
01:30:27,560 --> 01:30:33,800
I mean, I suppose it is, the way you're describing it, you could have said the statute,

1093
01:30:34,260 --> 01:30:39,520
you'd say what statute could say, but private property owners, leaseholders.

1094
01:30:41,280 --> 01:30:46,800
But instead, persons in legal control of property, in this case, then we added private property.

1095
01:30:47,920 --> 01:30:57,300
To me, that's describing the property in its pre-leased status, because I mean, control of

1096
01:30:57,300 --> 01:31:03,900
property through the lease. Well, you control the property because of the lease. I mean,

1097
01:31:03,940 --> 01:31:08,740
the right to ejected that a tenant has is because he is the tenant, and the only way

1098
01:31:08,740 --> 01:31:13,640
he gets that right is through the legal instrument known as a lease. Just as black, but clearly

1099
01:31:13,640 --> 01:31:17,260
at least what is in his state. I mean, I think we all, we're not arguing that the lease

1100
01:31:17,260 --> 01:31:22,420
is always a separate estate, and then somebody, it's in reality, you know, but the question

1101
01:31:22,420 --> 01:31:30,340
is this, you know, comma sequence that says, you know, persons in control of private property

1102
01:31:30,340 --> 01:31:37,560
through a lease. Does that, could that be replaced, supplanted with leaseholders?

1103
01:31:39,610 --> 01:31:39,850
Is that

1104
01:31:39,850 --> 01:31:41,370
mean the same thing?

1105
01:31:44,920 --> 01:31:48,380
It doesn't because of that public distinction where you could have a public

1106
01:31:48,380 --> 01:31:53,140
leaseholder who can't exclude. And so that, I think, is the distinction that was accomplished

1107
01:31:53,140 --> 01:31:53,800
by the two of us.

1108
01:31:53,980 --> 01:31:59,040
You're reading property to go to something just as Blackwell asks Mr. Monroe about.

1109
01:31:59,720 --> 01:32:03,000
Property here is not in this generic, any property interest.

1110
01:32:03,140 --> 01:32:06,380
It is pretty clearly talking about the physical premises.

1111
01:32:07,620 --> 01:32:11,600
No, I don't think you can't eject somebody from your leasehold.

1112
01:32:12,040 --> 01:32:13,220
Of course not.

1113
01:32:13,400 --> 01:32:13,620
Right.

1114
01:32:13,620 --> 01:32:14,640
You've got them from your place.

1115
01:32:14,720 --> 01:32:15,320
Of course not.

1116
01:32:15,340 --> 01:32:16,660
I mean, much less I use the fruct.

1117
01:32:17,100 --> 01:32:17,860
Of course not.

1118
01:32:17,960 --> 01:32:22,840
But you can't eject somebody from an intangible thing.

1119
01:32:22,840 --> 01:32:24,440
I inject somebody from my home.

1120
01:32:24,540 --> 01:32:25,840
I inject somebody from a bug.

1121
01:32:25,900 --> 01:32:27,400
I think this is the critical distinction.

1122
01:32:27,900 --> 01:32:29,960
This was the answer to Justice Black was question.

1123
01:32:30,580 --> 01:32:32,840
That right springs from a legal right.

1124
01:32:33,480 --> 01:32:36,960
You have to first own that property legally to reject them.

1125
01:32:36,960 --> 01:32:39,080
You first have to have that leasehold right

1126
01:32:39,080 --> 01:32:41,020
to the tenancy to reject them.

1127
01:32:41,040 --> 01:32:43,980
It's not merely the fact that the dirt is there

1128
01:32:43,980 --> 01:32:45,260
and you can take someone off you.

1129
01:32:45,520 --> 01:32:45,720
Right.

1130
01:32:46,080 --> 01:32:50,440
So the second provision, you can either own the private property

1131
01:32:50,440 --> 01:32:54,240
in the before the war, or if you're after the war,

1132
01:32:55,060 --> 01:32:56,560
you don't own the private property,

1133
01:32:56,800 --> 01:32:59,620
but you're in control of the private property

1134
01:32:59,620 --> 01:33:04,600
through a leasehold, but what you're in control of

1135
01:33:04,600 --> 01:33:07,600
is not the leasehold, it's the premises.

1136
01:33:08,540 --> 01:33:11,640
And then you add the word private before it.

1137
01:33:12,420 --> 01:33:15,360
And I mean, the question is, if you say,

1138
01:33:15,540 --> 01:33:17,980
though gardens are a private premise,

1139
01:33:18,680 --> 01:33:24,880
Then why wouldn't you fall under the first provision that you're the owner of the private premise?

1140
01:33:25,320 --> 01:33:29,120
I mean, the premise is still the city of Atlanta.

1141
01:33:29,140 --> 01:33:30,720
The premise is owned by the city of Atlanta.

1142
01:33:31,100 --> 01:33:37,980
What the garden holds is in the state for years, which it holds privately as a private 501C3 corporation.

1143
01:33:38,420 --> 01:33:44,500
But the person in control of the premise, if you're reading property to read premise and you're saying,

1144
01:33:44,500 --> 01:33:47,160
a person in control of private premises.

1145
01:33:48,260 --> 01:33:50,740
But you just said the premise itself is not private.

1146
01:33:51,100 --> 01:33:55,140
The premise is owned by the premise is the city

1147
01:33:55,140 --> 01:33:56,200
that land is premise.

1148
01:33:56,880 --> 01:33:58,400
There's no way we get around the fact

1149
01:33:58,400 --> 01:34:00,440
that this property is ultimately owned by,

1150
01:34:00,440 --> 01:34:01,900
I mean, this is probably the city of Atlanta.

1151
01:34:02,420 --> 01:34:05,020
But it is controlled by lease,

1152
01:34:05,880 --> 01:34:07,940
it's controlled by the garden through a lease.

1153
01:34:08,500 --> 01:34:11,340
And that inevitably, that's in fact the exact language

1154
01:34:11,340 --> 01:34:18,300
The statute says, probably property through a lease, but the problem is you don't have

1155
01:34:18,300 --> 01:34:22,300
private property through a lease, you have public property through a lease, and what you hold,

1156
01:34:22,560 --> 01:34:27,960
the lease is private. We all agree to that, right? I don't think anybody's arguing otherwise.

1157
01:34:28,540 --> 01:34:34,340
But the property that you hold is public.

1158
01:34:36,300 --> 01:34:44,480
It's hard to reconcile that concept within the Delta case, because the Delta case says this very, but not the Delta case.

1159
01:34:44,620 --> 01:34:47,280
You're not taxing the land itself.

1160
01:34:47,440 --> 01:34:48,720
Taxing itself.

1161
01:34:49,120 --> 01:34:51,400
You're taxing the legal interest in those.

1162
01:34:51,420 --> 01:34:56,900
And that's how you can separate the taxability of the fee from the taxability of the leasehold.

1163
01:34:57,100 --> 01:34:57,340
Correct.

1164
01:34:57,360 --> 01:35:02,180
In any of Lauren case like this, you tax the fee, which is really just the reversionary interest.

1165
01:35:02,180 --> 01:35:07,880
And you taxed the leasehold for the folks handling the leasehold, but that is nonetheless private property.

1166
01:35:07,940 --> 01:35:14,400
That leasehold becomes private property when held for Delta, maybe only for 50 years or 99 years or seven years,

1167
01:35:14,560 --> 01:35:18,140
but it is nonetheless during the dependency of that lease private property.

1168
01:35:18,160 --> 01:35:21,960
Right, but in this statute, it seems that when the word property is being used,

1169
01:35:22,200 --> 01:35:28,520
it's not being used in the legal interest in something since it is being used in the primacy sense.

1170
01:35:30,460 --> 01:35:35,100
I don't know that I agree with that, because I think when you look at this statute and

1171
01:35:35,100 --> 01:35:39,940
you look at the legislative excuse me, the common law backdrop that existed when the statute

1172
01:35:39,940 --> 01:35:44,120
was passed, that's what was thought of as defining private property.

1173
01:35:44,120 --> 01:35:45,860
We have those cases that say that.

1174
01:35:46,040 --> 01:35:50,020
Well, the common law background is tax law.

1175
01:35:50,520 --> 01:35:55,780
It's really not even common law, because what weren't dealt in all those cases interpreting

1176
01:35:55,780 --> 01:36:00,780
the statutory tax exclusion for public property?

1177
01:36:00,860 --> 01:36:01,340
Absolutely.

1178
01:36:01,560 --> 01:36:04,220
So I don't even understand how you say that it's common law.

1179
01:36:04,380 --> 01:36:07,340
It's statutory interpretation of the tax statute.

1180
01:36:07,760 --> 01:36:08,220
Well, right?

1181
01:36:08,420 --> 01:36:11,560
Maybe that's a statutory interpretation of tax statute.

1182
01:36:11,840 --> 01:36:12,540
Excuse me if I might finish.

1183
01:36:13,200 --> 01:36:17,100
But nonetheless, I mean, when you look at the rules of statutory construction,

1184
01:36:17,700 --> 01:36:19,780
that this Court has said over and over again,

1185
01:36:19,860 --> 01:36:22,260
Justice Blackwell said it a couple years ago.

1186
01:36:22,660 --> 01:36:25,760
In the Zandika case, Justice Warren said it just a few months ago.

1187
01:36:25,760 --> 01:36:30,520
in the louder milk case that one of my colleagues argued before you, you look to the words in

1188
01:36:30,520 --> 01:36:36,560
their common usage and their context. And context is very important. Context is not merely

1189
01:36:36,560 --> 01:36:40,840
how the words are used in the statute. Just how those similar words have been construed by

1190
01:36:40,840 --> 01:36:45,920
the case law. And both of those cases were looking at the words in the apportionment statute,

1191
01:36:45,940 --> 01:36:51,080
whether it was fault in just as black was case or whether it was property and just as warms

1192
01:36:51,080 --> 01:36:58,100
And y'all look towards how those words were construed in other cases to inform their construction in the

1193
01:36:58,100 --> 01:37:00,140
Apportionment statute. That's all we're doing here.

1194
01:37:00,140 --> 01:37:01,300
That's the same statute, though.

1195
01:37:01,560 --> 01:37:01,820
Pardon me?

1196
01:37:01,820 --> 01:37:05,900
Other cases about the same statute, not just any case in the history of time that it construed that word.

1197
01:37:06,020 --> 01:37:09,480
Or at least other cases in a similar context, right?

1198
01:37:09,740 --> 01:37:14,560
I mean, there's a, when you're talking about statutory construction of certain interests for tax purposes,

1199
01:37:14,700 --> 01:37:18,620
that is not necessarily the same context that's that issue here.

1200
01:37:18,620 --> 01:37:23,780
understood and that is that can be a limitation but I've looked

1201
01:37:23,780 --> 01:37:26,860
expressly at that question leading up to this argument because I was

1202
01:37:26,860 --> 01:37:30,480
concerned you all might ask me about that and I'm not finding that

1203
01:37:30,480 --> 01:37:34,760
limitation saying it must be confined or cabin to that very

1204
01:37:34,760 --> 01:37:40,500
neighbor of the problem I'm having is property is used even in the law

1205
01:37:40,500 --> 01:37:44,540
not just in the vernacular but in the law in two different senses

1206
01:37:44,540 --> 01:37:49,680
One is property is a thing, for instance.

1207
01:37:51,180 --> 01:37:57,580
Another is property is the kind of legal interest and rights to that thing.

1208
01:37:58,800 --> 01:38:03,800
In the tax context, property is used in the sense of the legal interest.

1209
01:38:04,660 --> 01:38:09,600
But in other statutes, it very clearly is used to refer to the thing.

1210
01:38:09,600 --> 01:38:16,580
for instance, the criminal statute that forbids theft by receiving stolen property.

1211
01:38:17,860 --> 01:38:22,540
When I am charged with that crime, I am in possession of stolen property.

1212
01:38:22,700 --> 01:38:25,160
It's because I'm in possession of a thing that's been stolen.

1213
01:38:25,380 --> 01:38:29,020
I don't have any legal interest in it if I'm the thief.

1214
01:38:29,460 --> 01:38:30,900
So there it's referring to the thing.

1215
01:38:31,260 --> 01:38:35,700
Here it seems to me it is referring to the thing or the place,

1216
01:38:35,700 --> 01:38:43,700
Because it talks about being able to eject or exclude somebody with a gun from the property.

1217
01:38:45,200 --> 01:38:50,400
And you don't eject or exclude someone from legal interests or rights.

1218
01:38:51,160 --> 01:38:54,620
You eject or exclude them from a place or a thing.

1219
01:38:55,320 --> 01:38:59,300
Yeah, the trouble I keep coming back to with that, I understand exactly what you're saying just as black will.

1220
01:38:59,860 --> 01:39:04,360
But there is none the less a condition to that right to eject, which is a legal interest.

1221
01:39:04,360 --> 01:39:10,040
Someone cannot walk on my property that doesn't own it and just eject somebody. I can

1222
01:39:10,040 --> 01:39:15,340
But a stranger cannot and that flows from my ownership right in that property in the first place

1223
01:39:15,340 --> 01:39:18,860
Or if I'm a tenant in an apartment building in Midtown once again

1224
01:39:18,860 --> 01:39:28,360
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

1225
01:39:28,360 --> 01:39:31,700
landlords ownership interest in the fee and

1226
01:39:31,700 --> 01:39:37,980
and what they place in the lease, they may also have some rights with respect to controlling

1227
01:39:37,980 --> 01:39:38,600
the premises.

1228
01:39:38,920 --> 01:39:39,400
Isn't that true?

1229
01:39:39,480 --> 01:39:39,960
Of course.

1230
01:39:40,060 --> 01:39:41,340
I mean, that's a matter of contract.

1231
01:39:41,500 --> 01:39:43,860
I mean, whatever the contract says is going to be what it says.

1232
01:39:44,060 --> 01:39:48,600
The presumption, though, under Title 44, is that the tenant gets those rights, which can be

1233
01:39:48,600 --> 01:39:51,440
varied by a legal instrument, of course, every time.

1234
01:39:51,460 --> 01:39:52,180
We're a statute.

1235
01:39:52,960 --> 01:39:55,160
Or it could be varied by a statute, absolutely.

1236
01:39:56,160 --> 01:40:01,260
But you always, at one point, does that sort of pivoting to what we got into with Mr.

1237
01:40:01,260 --> 01:40:05,460
road toward the end of his argument. At what point does that become? I don't know if taking

1238
01:40:05,460 --> 01:40:10,560
is really the proper classification, impairment of contracts, something like that. But if there

1239
01:40:10,560 --> 01:40:17,320
was no prohibition on the government at the time that the government leased your clients,

1240
01:40:18,120 --> 01:40:22,920
the property they onto your client. If there's no prohibition on them from excluding people carrying

1241
01:40:22,920 --> 01:40:29,800
firearms, then presumably part of the legal right that was passed along to your client with

1242
01:40:29,800 --> 01:40:35,240
at least was the right to reject people who brought firearms in country to their policy.

1243
01:40:35,900 --> 01:40:43,580
At what point does a statute saying, you can't do that anymore, violate some sort of

1244
01:40:43,580 --> 01:40:49,000
right of your client, whether it's an impairment of contract or taking or something else?

1245
01:40:49,220 --> 01:40:54,960
Well, I think it does in this instance, what is the right analysis there? Is it an impairment?

1246
01:40:55,300 --> 01:40:56,920
Is it a taking or is it something else?

1247
01:40:56,920 --> 01:41:01,840
So I looked at some of the takings cases and they talk about substantial impairment of the

1248
01:41:01,840 --> 01:41:02,420
right of enjoyment.

1249
01:41:02,720 --> 01:41:02,840
Right.

1250
01:41:03,060 --> 01:41:08,340
I'm not sure that this really rises to the level of a taking given those cases, because

1251
01:41:08,340 --> 01:41:10,460
I'm not sure that that's substantial enough.

1252
01:41:10,460 --> 01:41:10,820
Absolutely.

1253
01:41:11,420 --> 01:41:11,580
Yeah.

1254
01:41:12,200 --> 01:41:18,120
Maybe it's not, if you think about it as the garden, although I could conjure up some ways in

1255
01:41:18,120 --> 01:41:23,040
which the garden could easily probably say it's substantial enough public safety, worry

1256
01:41:23,040 --> 01:41:25,260
about guns, it concerts, they have concerts there.

1257
01:41:25,260 --> 01:41:30,260
I mean, there's lots of ways in which the right to regulate that, they may feel is a very

1258
01:41:30,260 --> 01:41:31,920
important right to their viability.

1259
01:41:32,340 --> 01:41:36,460
But you're asking questions which are spot on and the Amiquee show it in the development

1260
01:41:36,460 --> 01:41:41,360
authorities briefing, you know, a lot of the people who rent apartments in this city

1261
01:41:41,360 --> 01:41:44,900
are basically renting, uh, leasing from governmental entities.

1262
01:41:44,900 --> 01:41:49,840
The problem with that, I ask some of those questions is, we normally wouldn't strike down

1263
01:41:49,840 --> 01:41:55,880
entire statute, because you can come up with a few problems that might amount to

1264
01:41:55,880 --> 01:42:00,460
a taking. You might strike down the statute as a qualified. There's no first amendment

1265
01:42:00,460 --> 01:42:06,760
issue here. So, I mean, you're subject, you can exclude a whole ton of people from your

1266
01:42:06,760 --> 01:42:11,940
property, right? You can't exclude people under the any discrimination laws of the city,

1267
01:42:12,020 --> 01:42:19,120
the state, and the country. You can exclude, although most of those existed, a prior to

1268
01:42:19,120 --> 01:42:25,180
or be, regulate all sorts of private parties, too. They're not-

1269
01:42:25,180 --> 01:42:28,360
But as of taking, not in the pyramid contract.

1270
01:42:28,580 --> 01:42:30,200
Right, but we're talking more about-

1271
01:42:30,200 --> 01:42:32,920
It's not so much finding this unconstitutional,

1272
01:42:33,640 --> 01:42:37,960
and therefore limiting a holding to an as applied as opposed to an entire striking holding.

1273
01:42:37,960 --> 01:42:42,980
We're talking about a construction of the statute to stay away from an unconstitutional.

1274
01:42:42,980 --> 01:42:44,280
What is the reclaim?

1275
01:42:45,660 --> 01:42:48,520
What is the constitutional claim that that really would be?

1276
01:42:48,520 --> 01:42:56,560
because for us to adopt sort of the principal constitutional avoidance, there has to be more than just a speculative conceivable

1277
01:42:56,560 --> 01:43:00,820
articleable claim. It has to be a real substantial sort of thing.

1278
01:43:01,440 --> 01:43:02,960
I think, and I'm not sure that it's a taking.

1279
01:43:03,360 --> 01:43:08,500
Yeah, well, I must, I will confess that I think the best we have is to say it is a taking.

1280
01:43:08,980 --> 01:43:16,980
I don't know what more we have under the constitutional principles that would rise to the level of a constitutional

1281
01:43:16,980 --> 01:43:21,460
problem where you invoke the constitutional avoidance doctrine in construing the statute.

1282
01:43:22,000 --> 01:43:26,980
But the law is fairly clear that the right to exclude is probably the most important

1283
01:43:26,980 --> 01:43:30,780
right to position or excuse me, ownership of property possession, too.

1284
01:43:30,980 --> 01:43:34,120
And this does intrude on that right for sure.

1285
01:43:34,400 --> 01:43:36,800
Mr. Grant, let me bring you back up to a higher level question.

1286
01:43:36,920 --> 01:43:41,020
And you may be going to answer this, but just now that we're at the towards the end, let me

1287
01:43:41,020 --> 01:43:45,860
clarify, if we disagree with your theory of why Delta applies.

1288
01:43:46,460 --> 01:43:49,040
What is the path to prevailing for your client?

1289
01:43:49,380 --> 01:43:55,160
The path to prevailing is to find that the estate for years is a separate property right

1290
01:43:55,160 --> 01:44:00,100
that's held by a private entity, the Atlanta Botanical Garden, and it controls a private

1291
01:44:00,100 --> 01:44:01,340
property right through lease.

1292
01:44:01,860 --> 01:44:06,480
And we don't have to reach Delta, although I think when you add Delta to that gloss or that

1293
01:44:06,480 --> 01:44:09,880
Delta to that mix, it compels the result in our favor.

1294
01:44:10,080 --> 01:44:11,620
Can you just go back?

1295
01:44:11,780 --> 01:44:12,360
Yes sir.

1296
01:44:12,360 --> 01:44:19,600
to that I'm trying to figure out what 2014 changed and you said nothing that's a problem because

1297
01:44:19,600 --> 01:44:25,380
we don't I think you said the result is all the same for us okay and you propose that what it

1298
01:44:25,380 --> 01:44:33,480
changed is that and this is how I understood your brief that under 2010 a government could lease land

1299
01:44:33,480 --> 01:44:42,100
from a private property owner and their and then exclude gun and credit but person doesn't normally

1300
01:44:42,100 --> 01:44:47,240
government, and particularly in a statute that uses the term government or government

1301
01:44:47,240 --> 01:44:48,600
in any of that, a hundred times.

1302
01:44:51,060 --> 01:44:54,840
So how do you reconcile that? I mean, you have to read

1303
01:44:54,840 --> 01:44:59,180
person in 2010 as government for that theory to work.

1304
01:45:00,000 --> 01:45:07,240
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.

1305
01:45:08,260 --> 01:45:10,680
And I don't want to just wing that answer candidly.

1306
01:45:11,200 --> 01:45:18,500
So if you don't have an answer to that, your real answer is 2014, inserting private over and over did nothing.

1307
01:45:18,740 --> 01:45:26,260
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.

1308
01:45:26,260 --> 01:45:32,820
But you would agree that the answer can't be that inserting the word private multiple times accomplish nothing.

1309
01:45:33,120 --> 01:45:34,320
I agree with that whole cardedly.

1310
01:45:34,420 --> 01:45:36,600
I mean, that's just common sense.

1311
01:45:36,800 --> 01:45:39,840
You can't sit here and say the legislature did this for no reason.

1312
01:45:40,260 --> 01:45:41,420
They did it for a reason.

1313
01:45:42,040 --> 01:45:44,660
My reading of the statute excuse me.

1314
01:45:44,800 --> 01:45:49,320
My reading of the abolition of the statute is that when it flipped the presumption, it didn't do so perfectly.

1315
01:45:49,320 --> 01:45:54,840
And it left that, I'll call it a loophole, but it left that possibility, without the word

1316
01:45:54,840 --> 01:45:59,660
private, of the very scenario we describe in our briefing that Justice Namius has alluded

1317
01:45:59,660 --> 01:46:00,380
to.

1318
01:46:00,820 --> 01:46:04,480
And the nuance with person, not including government, I'm not prepared to address, and I will

1319
01:46:04,480 --> 01:46:06,900
submit something on that if I might shortly.

1320
01:46:07,180 --> 01:46:11,460
We'll give you seven days and give the other side seven days to respond.

1321
01:46:11,600 --> 01:46:15,980
I know you've been following a lot, but we'll take one thing to do that.

1322
01:46:16,080 --> 01:46:16,480
Thank you.

1323
01:46:16,540 --> 01:46:18,580
If there are no other questions, I'll conclude my remarks.

1324
01:46:21,120 --> 01:46:21,640
I

1325
01:46:27,340 --> 01:46:30,760
think I just wanted to address a couple of points, Mr. Grant raised.

1326
01:46:31,480 --> 01:46:36,080
He mentioned that the tenant gets the right to eject persons through the lease.

1327
01:46:36,360 --> 01:46:37,160
I agree with that.

1328
01:46:37,280 --> 01:46:43,180
The problem here is the city of Atlanta doesn't have that right, but it did at the time that

1329
01:46:43,180 --> 01:46:44,580
the lease was entered into, right?

1330
01:46:46,320 --> 01:46:54,220
I'm not sure that's correct, because the precursor to 1611173 was 1611184, which said essentially

1331
01:46:54,220 --> 01:46:55,160
the same thing.

1332
01:46:55,480 --> 01:46:58,620
But when you say the city of Atlanta didn't have that right, it's not that the city of

1333
01:46:58,620 --> 01:47:03,180
Atlanta's fee was impaired, it's that the city of Atlanta's identity is a government

1334
01:47:04,220 --> 01:47:05,940
impaired, it's ability to regulate.

1335
01:47:06,540 --> 01:47:10,380
But in other words, it's that impairment doesn't run with the bundle of rights to this

1336
01:47:10,380 --> 01:47:11,480
property, right?

1337
01:47:12,440 --> 01:47:15,720
Well, if I understand your question correctly, if the city were to sell the property,

1338
01:47:16,580 --> 01:47:21,220
outright sell the fee to the garden for example, I think the garden would be in a completely

1339
01:47:21,220 --> 01:47:22,100
different position.

1340
01:47:22,100 --> 01:47:27,780
the right lived in the land is just the city of Atlanta as owner couldn't exercise

1341
01:47:27,780 --> 01:47:32,520
right so I don't think the city of Atlanta as landlord can pass that right on to the

1342
01:47:32,520 --> 01:47:36,880
least when it doesn't have it but if he if they can't pass it on to a least they can't pass

1343
01:47:36,880 --> 01:47:41,960
it on to a fee by or either I think that's probably right but I don't think so then if anyone

1344
01:47:41,960 --> 01:47:46,500
ever buys anything from the government from this point forward any land from the government

1345
01:47:46,500 --> 01:47:50,340
they've lost forever they're right to exclude not I think that's true because they're not

1346
01:47:50,340 --> 01:47:57,200
get in it through the deed, it's a rising by operation of law in 1611-127C.

1347
01:47:59,940 --> 01:48:00,500
The other point

1348
01:48:00,500 --> 01:48:05,120
I wanted to raise since the taking this year has come up a couple of times. I want to

1349
01:48:05,120 --> 01:48:09,960
go ahead and address that. I don't think this is the taking for multiple reasons. There's

1350
01:48:09,960 --> 01:48:14,620
no permanent physical occupation, obviously. There's also no significant diminution in

1351
01:48:14,620 --> 01:48:21,020
value. We're talking about the loss of the ability to exclude or eject a small class of people.

1352
01:48:21,020 --> 01:48:25,260
But the garden hasn't even alleged that there's any diminution in value.

1353
01:48:26,020 --> 01:48:27,960
There's also an adequate state law remedy.

1354
01:48:28,060 --> 01:48:29,900
If the garden thought it had suffered or taken,

1355
01:48:30,380 --> 01:48:32,660
it could bring an inverse combination proceeding.

1356
01:48:33,400 --> 01:48:35,220
Thank you, Mr. Chief Justice. We'd ask.

1357
01:48:35,680 --> 01:48:37,600
Can I ask one more question?

1358
01:48:37,880 --> 01:48:40,460
And this may be something maybe the parties can also look into

1359
01:48:40,460 --> 01:48:42,000
in those supplemental briefs.

1360
01:48:42,360 --> 01:48:46,020
Is it possible that private property has some kind of idiosyncratic

1361
01:48:47,180 --> 01:48:50,680
sense or meaning in this particular statute?

1362
01:48:51,600 --> 01:48:58,220
such that it doesn't squarely reflect the meaning used in any other statutory context.

1363
01:48:58,580 --> 01:49:06,020
But could it perhaps mean public property is property that is both owned by the government

1364
01:49:06,020 --> 01:49:15,780
and used in some public sense, used for the public, which might exclude, for instance, the individual

1365
01:49:15,780 --> 01:49:19,940
housing units of public housing, which are owned ultimately

1366
01:49:19,940 --> 01:49:23,340
by the government, but used in a very private way intended

1367
01:49:23,340 --> 01:49:27,080
to be used in a private way by individual families.

1368
01:49:28,360 --> 01:49:31,140
And then that might raise a question about whether something

1369
01:49:31,140 --> 01:49:34,500
like the garden meets that test.

1370
01:49:35,900 --> 01:49:38,820
But think about whether there are some idiosyncratic use

1371
01:49:38,820 --> 01:49:41,100
of private property in this sense.

1372
01:49:42,220 --> 01:49:43,080
Yeah, I understand the question.

1373
01:49:43,360 --> 01:49:44,340
I believe we do thank you.

1374
01:49:44,340 --> 01:49:47,460
good. So I think that would be very helpful. Thank

1375
01:49:47,460 --> 01:49:50,240
Council for both sides. Also, I want to thank our special guests

1376
01:49:50,240 --> 01:49:52,280
for being here, Mr. Hawkins, glad to have you in our

1377
01:49:52,280 --> 01:49:55,880
presence. And our court will stand and recess till

1378
01:49:55,880 --> 01:49:56,500
to a clock.

1379
01:50:22,180 --> 01:50:24,220
Supreme Court of Georgia is now in session.

1380
01:50:24,680 --> 01:50:26,740
Chief Justice Harold Melton, presiding.

1381
01:50:34,240 --> 01:50:34,880
You may be seated.

1382
01:50:40,700 --> 01:50:43,280
Good afternoon, ladies and gentlemen, behalf of my colleagues.

1383
01:50:43,280 --> 01:50:45,940
I'm going to welcome you all here to this afternoon session of

1384
01:50:45,940 --> 01:50:49,600
the Supreme Court. We have three cases set for this afternoon.

1385
01:50:50,260 --> 01:50:52,260
All cases are 20 minutes aside.

1386
01:50:52,740 --> 01:50:54,960
At the end of 15 minutes with five minutes remaining,

1387
01:50:55,980 --> 01:50:58,020
you'll see a yellow light.

1388
01:50:58,660 --> 01:51:01,360
You'll see your time on the podium and to your right.

1389
01:51:01,760 --> 01:51:02,900
At the end of that five minutes,

1390
01:51:03,060 --> 01:51:06,260
a red light will signal and the bell will sound

1391
01:51:06,260 --> 01:51:08,760
in the king that your time has expired.

1392
01:51:09,240 --> 01:51:10,560
And with that, believe we're ready to begin.

1393
01:51:10,880 --> 01:51:12,820
Madam Clerk, would you please call our first case?

1394
01:51:14,460 --> 01:51:22,340
S19A-0665, Mark Joseph Dereco versus the State, Andrew Mosley for Appellate, General Murphy for Appellate.

1395
01:51:39,070 --> 01:51:39,830
Mr. Mosley.

1396
01:51:40,950 --> 01:51:41,710
Thank you, Your Honor.

1397
01:51:42,810 --> 01:51:45,990
Mr. Dereco argues his claims today as follows.

1398
01:51:46,830 --> 01:51:51,770
First, the evidence shows he is not guilty of the offenses alleged.

1399
01:51:52,210 --> 01:51:53,510
The evidence is insufficient.

1400
01:51:54,190 --> 01:51:58,970
Second, to the extent that the Supreme Court may conclude that in the light most favorable

1401
01:51:58,970 --> 01:52:06,920
to the verdict that Mr. Doreco could be otherwise convicted of the aggressive driving,

1402
01:52:07,580 --> 01:52:13,220
reckless conduct, and failure to signal lane change or turn charges, he cannot constitutionally

1403
01:52:13,220 --> 01:52:17,940
be convicted under the facts in history of this case, because the arbitrary enforcement

1404
01:52:17,940 --> 01:52:21,340
of the laws underlying the charges.

1405
01:52:22,880 --> 01:52:26,860
So, that is to say, as in colander versus Lawson,

1406
01:52:27,240 --> 01:52:32,240
the more important aspect of the vagueness doctrine is not actual notice,

1407
01:52:32,780 --> 01:52:35,080
but the other principle element of the doctrine,

1408
01:52:35,680 --> 01:52:39,200
the requirement that a legislature establish minimal guidelines

1409
01:52:39,200 --> 01:52:40,540
to govern law enforcement.

1410
01:52:42,400 --> 01:52:45,360
Where the legislature fails to provide such minimal guidelines,

1411
01:52:45,360 --> 01:52:51,620
A criminal statute may permit a standardless sweep that allows policemen, prosecutors, and

1412
01:52:51,620 --> 01:52:55,220
juries to pursue their personal pre-delections.

1413
01:52:58,070 --> 01:53:01,590
Here, this is just what happened to Mr. Duriko.

1414
01:53:02,670 --> 01:53:15,050
Under the facts of the case, he was prosecuted, whereas the victim, Mr. Ambrosetti, was not

1415
01:53:15,050 --> 01:53:15,830
at all.

1416
01:53:17,170 --> 01:53:27,830
notwithstanding that he had taken actions that met the requirements, met the elements of the

1417
01:53:27,830 --> 01:53:35,770
statutes under which Mr. Duriko was being prosecuted. In a context such as this,

1418
01:53:39,720 --> 01:53:40,040
it is

1419
01:53:40,040 --> 01:53:45,760
that situation where someone can get caught up in the suite of the police enforcement. The

1420
01:53:45,760 --> 01:53:53,580
police side someone, the prosecutors prosecute it, and there's no, there's not adequate guidance

1421
01:53:54,260 --> 01:54:02,400
in the statutes to differentiate Mr. Jericho's situation from those that might more clearly

1422
01:54:02,400 --> 01:54:02,520
happen.

1423
01:54:02,520 --> 01:54:09,300
Part of these questions that prosecutors and law enforcement regularly deal with that is to

1424
01:54:09,300 --> 01:54:15,840
there's differing versions of the story, and they choose which one they believe as a basis

1425
01:54:15,840 --> 01:54:17,460
of pursuing a prosecution?

1426
01:54:20,650 --> 01:54:24,610
Yes, that's frequently, I mean, that is the system.

1427
01:54:25,110 --> 01:54:33,230
And the problem here is there's sort of a blind spot that the law has for the blind spot is

1428
01:54:33,230 --> 01:54:38,370
for those who are put in the difficult position of defending themselves.

1429
01:54:38,370 --> 01:54:45,410
And this can apply, you know, applies in situations like battery, but particularly in situations here,

1430
01:54:46,090 --> 01:54:53,230
where you have one driver creating a situation and engaging the second driver.

1431
01:54:53,930 --> 01:54:58,130
Here Mr. Drico being the driver who was engaged.

1432
01:54:58,130 --> 01:55:12,390
And so, the blind spot that the law has is that it's difficult for someone who has trouble brought to them.

1433
01:55:12,930 --> 01:55:21,130
And then they end up sighted, blamed, and accountable by just the normal process of the system.

1434
01:55:21,130 --> 01:55:30,630
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.

1435
01:55:30,650 --> 01:55:36,930
You have the substantial history that the, it wasn't kept out entirely.

1436
01:55:37,650 --> 01:55:46,990
Not entirely, but it was kept out to an extent that it would have, it was probative to the case.

1437
01:55:46,990 --> 01:55:48,210
And

1438
01:55:50,480 --> 01:56:04,680
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.

1439
01:56:04,680 --> 01:56:07,900
Part of what was left out was more than ten years old, right?

1440
01:56:09,800 --> 01:56:13,840
There was older material that was left out.

1441
01:56:14,180 --> 01:56:18,880
However, when all the material is taken into consideration.

1442
01:56:18,880 --> 01:56:23,320
And you don't take it all in consideration if it violates the evidence rules to do that

1443
01:56:23,320 --> 01:56:29,800
and stuff over ten years old that isn't a felony or false statement, doesn't come in.

1444
01:56:33,240 --> 01:56:40,340
Well, the, with respect to Mr. Doreco, that rule would be too harsh.

1445
01:56:41,060 --> 01:56:48,020
And the reason for that is that when you have, when you say too harsh, you mean

1446
01:56:48,020 --> 01:56:55,040
on constitutional, because who harsh is in a reasonable, yes, I do, I raise a constitutional

1447
01:56:55,040 --> 01:57:01,380
challenge to the evidence codes provision on prior convictions in the trial court, get

1448
01:57:01,380 --> 01:57:03,740
a ruling on it and appeal on that ground.

1449
01:57:06,850 --> 01:57:14,730
No, our appeal is under the, the unconstitutional vagueness of the, of the statutes.

1450
01:57:15,470 --> 01:57:20,430
So, what is it about the language of the statute that you contend deprives a

1451
01:57:20,430 --> 01:57:27,850
the citizen of the ability to discern what they can and cannot do while operating a vehicle.

1452
01:57:28,830 --> 01:57:37,590
Well, for instance, with the reckless conduct statute, it could be applied or not to

1453
01:57:37,590 --> 01:57:45,190
most to a large sweep of citations or charges.

1454
01:57:46,550 --> 01:57:48,970
The reckless conduct statute,

1455
01:57:51,050 --> 01:57:52,230
because people are in all

1456
01:57:52,230 --> 01:57:58,090
mobiles, because of the danger that is inherent in such

1457
01:57:58,090 --> 01:58:06,570
navigating a large ton-weighted vehicle, that can be as applied

1458
01:58:06,570 --> 01:58:12,750
to automobile scenarios, the reckless conduct statute, you don't know. I mean, a person of

1459
01:58:12,750 --> 01:58:16,230
reasonable intelligence just doesn't know whether that might be brought against them or not.

1460
01:58:16,530 --> 01:58:22,050
Well, you have to, first, we've upheld reckless conduct in the kind of language in it repeatedly

1461
01:58:22,050 --> 01:58:28,610
against vagueness challenges of all sorts, because you have to consciously disregard, consciously

1462
01:58:29,490 --> 01:58:35,570
disregard, has to be a substantial and unjustifiable risk that you'll cause harm or endanger

1463
01:58:35,570 --> 01:58:40,350
the safety to another and it has to be a gross deviation from the standard of care.

1464
01:58:41,090 --> 01:58:48,930
Now, there's lots of words in there, but we've held that sufficient guidance for prosecutors

1465
01:58:48,930 --> 01:58:50,770
and police and for citizens.

1466
01:58:53,290 --> 01:59:02,750
And if the guidance is sufficient for the ordinary run of cases, in this case, there's

1467
01:59:02,750 --> 01:59:06,870
something different that makes it not work.

1468
01:59:06,870 --> 01:59:14,090
And that is that the proof here, the logical proof,

1469
01:59:14,630 --> 01:59:17,470
is that you take Felix Ambers Eddie's a victim who's

1470
01:59:17,470 --> 01:59:22,790
driving the heat enters 400 and sets this thing in motion.

1471
01:59:23,450 --> 01:59:27,150
He is clearly met the elements of the reckless conduct.

1472
01:59:27,850 --> 01:59:37,830
What did he do that the prosecutor in the jury was required to believe he did that meets the elements of reckless conduct?

1473
01:59:38,930 --> 01:59:39,930
The victim or the defendant?

1474
01:59:41,070 --> 01:59:44,870
Is that so you're complaining about the victim not being charged, right?

1475
01:59:45,430 --> 01:59:45,850
Yes.

1476
01:59:46,350 --> 01:59:49,030
And the arbitraryness because the victim is charged.

1477
01:59:49,570 --> 01:59:51,270
The victim was not charged.

1478
01:59:51,550 --> 01:59:55,690
Could have been for the same thing that the defendant was charged.

1479
01:59:55,690 --> 01:59:58,970
Well, how do you how do you have standing to assert that?

1480
02:00:00,000 --> 02:00:05,320
That claim, because if you're right, what should have happened is that both of them should have been charged.

1481
02:00:06,240 --> 02:00:15,540
Faire to charge the other guy doesn't harm your client. I mean, if both sides had been charged, maybe they both get convicted.

1482
02:00:15,800 --> 02:00:17,360
How does that help you?

1483
02:00:19,040 --> 02:00:28,080
The difference, well, how it helps Mr. Duriko, is that if both had been charged, the

1484
02:00:28,080 --> 02:00:29,900
prosecutors would have looked at it differently.

1485
02:00:30,400 --> 02:00:34,840
So you say that your real claim seems to be, although I hadn't discerned this from your

1486
02:00:34,840 --> 02:00:39,920
grave, your real claim is a selective prosecution claim that both people could be charged

1487
02:00:39,920 --> 02:00:42,240
in the prosecutor air by charging one.

1488
02:00:42,940 --> 02:00:45,220
First, I don't think you raise that claim below.

1489
02:00:45,460 --> 02:00:51,840
Second, you haven't come even in the ballpark, maybe even the city of proving such a claim.

1490
02:00:52,800 --> 02:00:57,880
Prosecutors make judgment calls about which cases deserve prosecution all the time.

1491
02:00:58,120 --> 02:01:03,160
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,

1492
02:01:03,740 --> 02:01:10,280
the prosecutor could have charged the victim who is now dead with assault, simple assault,

1493
02:01:10,280 --> 02:01:13,900
But decided not to because you shot them between the eyes.

1494
02:01:14,680 --> 02:01:16,240
That's prosecutorial discretion.

1495
02:01:16,460 --> 02:01:19,400
Unless you can prove that prosecutors are

1496
02:01:19,400 --> 02:01:22,660
vitrarily and probably discriminatorally,

1497
02:01:23,180 --> 02:01:25,040
don't prosecute assault.

1498
02:01:26,780 --> 02:01:29,560
Your claim seems to be selective prosecution,

1499
02:01:30,320 --> 02:01:34,740
not arbitrary, not arbitrariness of the statute's language.

1500
02:01:34,740 --> 02:01:36,420
Well,

1501
02:01:39,010 --> 02:01:42,790
with regard to the aggressive driving statute,

1502
02:01:45,650 --> 02:02:03,510
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.

1503
02:02:04,930 --> 02:02:15,010
And in that, that is on its language, unconstitutionally vague with respect to Mr. Duriko,

1504
02:02:16,850 --> 02:02:22,090
because as in Skilling vs. U.S.,

1505
02:02:25,390 --> 02:02:29,290
there's an open-ended world of possibilities in a criminal statute,

1506
02:02:30,130 --> 02:02:34,350
and it is on its, by its language with respect to Mr. Duriko,

1507
02:02:34,350 --> 02:02:41,690
It is unconstitutionally vague, because it doesn't have a-

1508
02:02:41,690 --> 02:02:43,190
So, Council, let me ask you this.

1509
02:02:44,150 --> 02:02:49,730
Was there evidence that Mr. Duriko entered the emergency lane

1510
02:02:49,730 --> 02:02:53,470
and from the emergency lane struck another vehicle?

1511
02:02:55,150 --> 02:02:58,310
There was testimony to that effect.

1512
02:02:58,510 --> 02:03:00,750
So, there was evidence to that effect.

1513
02:03:00,750 --> 02:03:13,750
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.

1514
02:03:14,050 --> 02:03:16,530
Parasimal estimates, intimidate, injure, obstruct.

1515
02:03:18,130 --> 02:03:30,290
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.

1516
02:03:30,290 --> 02:03:35,450
Now, I understand that it's not that's not Mr. Greco's version of the facts, but that's

1517
02:03:35,450 --> 02:03:37,650
not what we're asked to consider, is it?

1518
02:03:42,100 --> 02:03:51,280
The facts is Mr. Greco does contend that the facts are set out if scrutinized, they do

1519
02:03:51,280 --> 02:03:56,060
show that he is innocent and that the other party was at fault.

1520
02:03:56,560 --> 02:04:03,560
The test isn't if scrutinized, the test is could a jury or a rational fact finder who's

1521
02:04:03,560 --> 02:04:08,100
allowed to disbelieve every little bit of evidence you put on and believe all the evidence

1522
02:04:08,100 --> 02:04:13,240
you don't like, could they have found a violation of the statute?

1523
02:04:14,720 --> 02:04:18,960
That's also the test for the prosecutor who is not required to believe your evidence.

1524
02:04:20,300 --> 02:04:29,040
Well, if that, if that, if the way that is interpreted is so sweeping that anything

1525
02:04:29,040 --> 02:04:32,740
can be put up and there's no check.

1526
02:04:32,780 --> 02:04:38,980
It's not anything, as Justice Bethel said, there was evidence presented that your client went

1527
02:04:38,980 --> 02:04:43,960
into the emergency lane and then cut back over and cut off the victim, right?

1528
02:04:45,020 --> 02:04:49,080
People testified to that under a, from the jury was entitled to believe it, right?

1529
02:04:49,640 --> 02:04:59,020
They did testify that, but they also testified to the, the, the, the, the, the, the

1530
02:04:59,020 --> 02:05:08,040
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.

1531
02:05:10,480 --> 02:05:18,860
And that's why Mr. Drico needs the Supreme Court to re-evaluate the evidence.

1532
02:05:18,860 --> 02:05:25,520
not to re-evaluate the evidence, to take the evidence as it is and say that given the

1533
02:05:25,520 --> 02:05:33,320
vagueness that arises here with respect to Mr. Jericho under the statute's charge,

1534
02:05:33,660 --> 02:05:43,160
and given the charges, the prosecution, all such as it is in this particular case,

1535
02:05:43,160 --> 02:05:57,280
that there was, it leaves an arbitrariness open where the officer and pick and choose.

1536
02:05:58,840 --> 02:06:13,240
And even if the evidence could not otherwise come in of the driving history, the argument

1537
02:06:13,240 --> 02:06:26,000
that we have preserved that the motivation for the victim to rush out a cues, Mr. Jericho,

1538
02:06:29,520 --> 02:06:35,920
of the offense and to win over the law enforcement with that.

1539
02:06:36,120 --> 02:06:42,460
That kind of strategy, that kind of tactic, is something that could be learned from a 25-cycle

1540
02:06:42,460 --> 02:06:53,540
history. And that is, it's not what happens in every case. There are many cases where

1541
02:06:53,540 --> 02:06:58,900
old habits would have been changed or something, but what has persisted is a knowledge

1542
02:07:00,060 --> 02:07:08,540
that the of knowing how to place the blame on another driver in a traffic context. And

1543
02:07:08,540 --> 02:07:11,240
That's what what happened here.

1544
02:07:11,840 --> 02:07:15,420
And it's the blind spot that I've been trying to articulate

1545
02:07:16,060 --> 02:07:21,420
that you get when you have the, basically,

1546
02:07:21,980 --> 02:07:24,480
where there'd be a battery or a two-car situation.

1547
02:07:24,560 --> 02:07:25,920
Anything where you've got two people,

1548
02:07:25,920 --> 02:07:27,480
and there's this battle to be first,

1549
02:07:28,000 --> 02:07:29,900
the call 911, the cast blame,

1550
02:07:30,360 --> 02:07:31,720
and whatever context that is.

1551
02:07:31,880 --> 02:07:33,300
Look at the person who called 911,

1552
02:07:33,320 --> 02:07:36,780
wasn't the victim or alleged victim.

1553
02:07:36,780 --> 02:07:47,100
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?

1554
02:07:47,300 --> 02:07:48,480
That's what he claimed.

1555
02:07:49,980 --> 02:07:56,060
Is there any evidence in the record to suggest a link between the bystander and or the by driver, I guess?

1556
02:07:58,120 --> 02:07:59,460
And the other guy?

1557
02:07:59,460 --> 02:08:09,780
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,

1558
02:08:11,820 --> 02:08:28,320
and yet, he argues very consistently to try to, you know,

1559
02:08:28,320 --> 02:08:38,660
That's the problem here. It's arbitrary. Why? Why does that witness get to pick? Who's guilty

1560
02:08:38,660 --> 02:08:44,040
and who's not under our system? Why does it? They don't counsel it. They get to testify to

1561
02:08:44,040 --> 02:08:52,340
what they saw and what they perceived, right? I mean, so isn't it correct? Is it English, Mr.

1562
02:08:52,340 --> 02:09:00,280
I mean, didn't he say that Ambro said he maintained his lane while your client did not?

1563
02:09:04,680 --> 02:09:12,280
That's what Mr. Inglis was, was testifying two at times and

1564
02:09:14,330 --> 02:09:17,750
to say that he picked, of course,

1565
02:09:17,750 --> 02:09:19,570
He said in motion,

1566
02:09:21,770 --> 02:09:29,710
he said things in motion by, he made the call, and that's the prosecution

1567
02:09:29,710 --> 02:09:32,330
went forward relying on that.

1568
02:09:32,650 --> 02:09:39,210
And Councillor, I understand all your arguments on that, and I can understand the frustration

1569
02:09:40,070 --> 02:09:46,050
of an incident that occurs, that appears basically to have both sides at fault.

1570
02:09:46,050 --> 02:09:50,210
And those are good arguments to make to the prosecutor as to why charges shouldn't be brought.

1571
02:09:50,410 --> 02:09:54,530
They're good arguments to make to the jury as to why they shouldn't convicts,

1572
02:09:54,750 --> 02:09:57,910
but they're not constitutional violations that we can remedy.

1573
02:09:59,940 --> 02:10:02,060
At least as this record exists.

1574
02:10:06,760 --> 02:10:18,520
Mr. Duriko's position is that in fact, the Supreme Court is the only body that can insert and vagueness situations.

1575
02:10:19,780 --> 02:10:23,980
But again, you're talking about, as applied, and I'm trying to figure out what's vague.

1576
02:10:24,580 --> 02:10:29,400
And it's not vague based on your version of the case.

1577
02:10:29,860 --> 02:10:30,340
It's vague.

1578
02:10:30,620 --> 02:10:36,480
The question, it has to be vague in that the behavior that was, that evidence was proven,

1579
02:10:37,580 --> 02:10:44,200
whether you agree with the jury's verdict or not, that that is somehow incapable of being

1580
02:10:44,200 --> 02:10:50,040
understood as being illegal, and I'm trying to figure out how an average driver or reasonable

1581
02:10:50,040 --> 02:10:57,820
intelligence would ever not be able to understand that striking a vehicle in moving traffic

1582
02:10:57,820 --> 02:11:03,140
from the emergency lane would be prohibited by the law.

1583
02:11:03,500 --> 02:11:06,320
That's what an as-applied challenge would have to mean.

1584
02:11:09,360 --> 02:11:16,920
Mr. Doreco's account is that he was, he was in fact the victim of an aggressive driver,

1585
02:11:17,680 --> 02:11:26,460
did what he could to, I've defensively, and control the situation and end it, and he did.

1586
02:11:26,680 --> 02:11:35,280
He got off the road, and there's no exception in the aggressive driving for driving defensively.

1587
02:11:35,280 --> 02:11:44,300
And there's even testimony from the victim that certain of Mr. Doreco's acts were an intentional.

1588
02:12:00,180 --> 02:12:00,980
May it please the court.

1589
02:12:01,120 --> 02:12:04,320
My name is Jim Murphy, and along with Solicitor General William Finch,

1590
02:12:04,800 --> 02:12:06,860
we represent the respondent in this matter.

1591
02:12:07,340 --> 02:12:12,360
Petitioner has alleged six enumerations of error when in his brief for this court to review.

1592
02:12:12,360 --> 02:12:23,340
His first enumeration of error is that both OCDA 40-6-397 and OCDA 16-5-60 are unconstitutionally vague.

1593
02:12:24,560 --> 02:12:32,340
Neither of these assert a first amendment violation therefore a review is made on a case by case basis under a denovative standard.

1594
02:12:33,120 --> 02:12:42,100
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.

1595
02:12:42,100 --> 02:12:52,160
Council, can I ask you, does the aggressive driving statute require that the defendant

1596
02:12:52,160 --> 02:12:59,140
have operated their motor vehicle in a way that is unlawful irrespective of the aggressive

1597
02:12:59,140 --> 02:13:00,120
driving statute?

1598
02:13:00,900 --> 02:13:04,840
No, no, you're on, I would say it does not, and I would point your honor to the wording

1599
02:13:04,840 --> 02:13:09,320
in there, the language in that statute that says, including without limitation, too.

1600
02:13:09,320 --> 02:13:12,720
So what are the elements of the offensive of aggressive driving?

1601
02:13:13,080 --> 02:13:18,760
In this case, your honor, they are that he moved into the lane of the victim Felix

1602
02:13:18,760 --> 02:13:24,620
Amber Seddy and intentionally stroke his vehicle with the intent to intimidate him in

1603
02:13:24,620 --> 02:13:25,180
doing so.

1604
02:13:25,180 --> 02:13:31,420
And I think that is very clearly defined by the second of the two collisions from the emergency

1605
02:13:31,420 --> 02:13:32,040
lane.

1606
02:13:32,260 --> 02:13:33,820
Here's the concern I have.

1607
02:13:33,960 --> 02:13:38,520
And I'm not sure it's something that Mr. Derricko can take advantage of given the facts

1608
02:13:38,520 --> 02:13:46,180
his case, it seems to me, I think you are reading it correctly, that the offenses committed

1609
02:13:46,180 --> 02:13:51,220
by operating a motor vehicle with the intent to annoy another person, for instance.

1610
02:13:52,920 --> 02:14:00,600
So if I'm mad at my 15-year-old daughter and so I decide to go pick her up at school in

1611
02:14:00,600 --> 02:14:09,760
a 1975 Grand Torino, Starsky and Hutch replica, to embarrass her and annoy her, from the face

1612
02:14:09,760 --> 02:14:12,440
of the statute, I've committed the offensive aggressive driving.

1613
02:14:14,630 --> 02:14:16,050
Are you familiar with Starsky and Hutch?

1614
02:14:18,210 --> 02:14:19,410
Bagely, Bagely.

1615
02:14:21,250 --> 02:14:25,730
Because I have operated a motor vehicle with the intent to annoy my daughter.

1616
02:14:26,410 --> 02:14:26,910
Yes, Your Honor.

1617
02:14:26,910 --> 02:14:32,630
However, I think that the difference is that the context of aggressive driving is to show

1618
02:14:32,630 --> 02:14:37,550
that there was aggressiveness toward another operator of a motor vehicle.

1619
02:14:37,690 --> 02:14:42,330
Is that an element of the crime or just the idea that the prosecutors would use in exercising

1620
02:14:42,330 --> 02:14:44,570
their discretion in deciding whether to bring a charge?

1621
02:14:44,990 --> 02:14:47,290
It would hopefully be a prosecutor discretion.

1622
02:14:47,330 --> 02:14:49,510
But see that doesn't answer a vagueness challenge.

1623
02:14:50,030 --> 02:14:55,470
It does not, you're on or however, an exhaustive list can't be included in the statute.

1624
02:14:55,470 --> 02:14:59,970
However, there was sufficient...

1625
02:15:00,000 --> 02:15:07,460
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.

1626
02:15:07,460 --> 02:15:15,120
Can you save a vague statute by alleging more facts in a accusation or an indictment?

1627
02:15:15,840 --> 02:15:28,120
I mean, if the elements of the crime are vague, alleging more specific facts don't save the statute, right?

1628
02:15:29,800 --> 02:15:35,520
No, it would not say this statute, however, by review, because it's on a first amendment violation.

1629
02:15:35,760 --> 02:15:40,780
Each case is looked at, and I think you have to consider the facts from each case to make that decision.

1630
02:15:41,320 --> 02:15:47,460
This council does the act contemplate that the operation itself must be for one of these purposes.

1631
02:15:48,180 --> 02:15:55,520
That is to say, with Justice Blackwell's example, it's the choice of vehicle there that is to embarrass or annoy.

1632
02:15:55,520 --> 02:16:02,380
It's not the way the vehicle is being operated, and is the statute contemplate the actual

1633
02:16:02,380 --> 02:16:08,040
manner of operation being an essential element, in other words, if I revved my engine in

1634
02:16:08,040 --> 02:16:13,260
a parking lot, just to sort of annoy the people around me, but it's not the way I'm operating

1635
02:16:13,260 --> 02:16:14,120
the car of vehicles.

1636
02:16:14,280 --> 02:16:17,120
Is that implicit in the statute or is it expressed in the statute?

1637
02:16:17,400 --> 02:16:21,500
I don't know that it's expressed necessarily by the confines of the statute as written, but

1638
02:16:21,500 --> 02:16:25,580
I do think it's at the heart and of the spirit of a aggressive driving.

1639
02:16:25,980 --> 02:16:28,140
It is to eliminate one's ability.

1640
02:16:28,180 --> 02:16:30,020
Where do we find that spirit exactly?

1641
02:16:30,700 --> 02:16:35,580
I think it's the fact that they have included certain statutes in there that show that those

1642
02:16:35,580 --> 02:16:40,780
are violations of the law per se and of themselves, but there are other things that wouldn't

1643
02:16:40,780 --> 02:16:44,180
be contemplated and couldn't be contemplated that would be violations.

1644
02:16:48,310 --> 02:16:52,250
Which of these terms was actually used in the accusation?

1645
02:16:53,350 --> 02:16:57,450
I mean did the accusation list annoyed her asthma less?

1646
02:16:57,690 --> 02:17:00,210
It's at or did it pick out a couple of them?

1647
02:17:00,430 --> 02:17:02,670
It used one, and I can't present this.

1648
02:17:02,750 --> 02:17:04,210
It used the word intimidate.

1649
02:17:04,850 --> 02:17:07,010
Is the one that is state alleged in this case,

1650
02:17:07,170 --> 02:17:12,650
and that the striking of the vehicle was with the intent to intimidate the victim.

1651
02:17:12,790 --> 02:17:17,010
That being most defined by the fact that there was corroborated testimony

1652
02:17:17,010 --> 02:17:23,170
from both Mr. English as well as Mr. Amber said he that Mr. Doreco fell in behind his vehicle

1653
02:17:23,170 --> 02:17:27,730
after striking him the first time and then pulled into the emergency lane traveling between

1654
02:17:27,730 --> 02:17:32,490
the grass median and the left lane of travel before striking his vehicle the second time.

1655
02:17:33,350 --> 02:17:40,250
Okay, so I mean you can come up with hypotheticals about annoy or maybe harass but intimidate or

1656
02:17:42,010 --> 02:17:44,130
here it was just intimidate?

1657
02:17:44,130 --> 02:17:48,590
Yes, we only alleged intimidation in this because there weren't any injuries.

1658
02:17:49,310 --> 02:17:50,550
There could have been an argument made.

1659
02:17:50,890 --> 02:17:56,210
I suspect that the intent might have been to injure him, but the state felt the intimidation

1660
02:17:56,210 --> 02:18:03,350
was the appropriate way to charge this case at that given the circumstances of what occurred in this case.

1661
02:18:04,920 --> 02:18:33,640
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.

1662
02:18:33,640 --> 02:18:38,780
or the consequences of this case do not dictate the mere

1663
02:18:38,780 --> 02:18:42,140
suggestion of what occurred on this date.

1664
02:18:42,500 --> 02:18:44,820
Place not only Mr. Amber Setti at risk,

1665
02:18:44,820 --> 02:18:46,900
and that of Mr. Dorico himself,

1666
02:18:47,240 --> 02:18:50,780
but also every other driver on the road at the time,

1667
02:18:51,740 --> 02:18:54,540
it did happen on August 29, 2014.

1668
02:18:54,560 --> 02:18:56,920
That was the Friday of Labor Day weekend.

1669
02:18:57,280 --> 02:19:00,220
Mr. Dorico himself testified that traffic was moving

1670
02:19:00,220 --> 02:19:02,640
approximately 40 to 45 miles per hour.

1671
02:19:02,640 --> 02:19:11,160
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

1672
02:19:11,760 --> 02:19:16,420
He he placed not only himself in the victim at risk, but every other driver including

1673
02:19:16,420 --> 02:19:23,260
But not limited to Mr. English and his son who were traveling and called 911 after observing what was occurring

1674
02:19:23,260 --> 02:19:31,360
For those reasons the state is asking that this court uphold the Constitutionality under both statutes and

1675
02:19:31,360 --> 02:19:39,260
that there was no violation of a Constitution in this case as it was alleged by the state.

1676
02:19:42,110 --> 02:19:48,870
Turning next to the driving history in this case, it was admitted.

1677
02:19:49,190 --> 02:19:53,690
It was recognized by the trial court to be a business record document.

1678
02:19:54,510 --> 02:19:56,330
It was fully in the record.

1679
02:19:56,890 --> 02:20:02,090
However, the court did use its discretion which this court has found in Williams versus the state

1680
02:20:02,090 --> 02:20:12,090
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

1681
02:20:13,050 --> 02:20:18,870
irrelevant evidence cannot be excluding irrelevant evidence cannot be error and will not an abusive discretion.

1682
02:20:19,170 --> 02:20:29,970
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

1683
02:20:29,970 --> 02:20:34,810
that weren't relevant, but in fact, it was an appropriate,

1684
02:20:34,810 --> 02:20:40,690
absolutely appropriate abuse of the his discretion in this case.

1685
02:20:41,630 --> 02:20:46,770
In the record, the petitioner was asking for a litany of irrelevant offenses.

1686
02:20:47,650 --> 02:20:50,730
Those included, but we're not limited to speeding violations,

1687
02:20:51,230 --> 02:20:55,910
no proof of insurance and failure to obey a railroad crossing.

1688
02:20:55,910 --> 02:21:08,130
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.

1689
02:21:08,850 --> 02:21:17,350
Based upon that the court did use its discretion to decide that those could not be presented to the jury in this case.

1690
02:21:19,240 --> 02:21:26,200
It would have been no other reason would have been foreseen to allow those in other than

1691
02:21:26,200 --> 02:21:31,320
to allow the assassination of the character of Felix Ambroselli in this case.

1692
02:21:31,420 --> 02:21:35,460
And for that reason, the state is asking that this court found that the court did not

1693
02:21:35,460 --> 02:21:40,180
abuse its discretion, but rather appropriately used that discretion to make sure that the jury

1694
02:21:40,180 --> 02:21:45,680
wasn't swayed or didn't sympathize with someone based upon something that was an admissible

1695
02:21:45,680 --> 02:21:46,460
trial.

1696
02:21:48,410 --> 02:21:55,530
As to the sufficiency of evidence, the position no longer possesses the presumption of innocence.

1697
02:21:56,630 --> 02:22:01,790
At this point, it's not to weigh the evidence that was presented or assessed the credibility,

1698
02:22:02,670 --> 02:22:07,330
but rather to review this case in light of the jury's verdict.

1699
02:22:07,370 --> 02:22:09,590
The evidence is to be reviewed in that manner.

1700
02:22:09,910 --> 02:22:16,890
And there was sufficient evidence presented at this trial to convict Mr. Jericho of all three offenses.

1701
02:22:19,800 --> 02:22:26,400
In count one, the State did a ledge that, with the intent to intimidate Felix Embersetty,

1702
02:22:26,880 --> 02:22:32,800
that Mr. Doreca moved into his lane and struck the vehicle of Mr. Embersetty at that time.

1703
02:22:33,280 --> 02:22:39,060
That was done not once, but twice in this case. Mr. Embersetty, as well as Mr. English, testified

1704
02:22:40,580 --> 02:22:48,180
that petitioner became mad and upset over the fact that Mr. Embersetty had merged into his lane in front of him

1705
02:22:48,180 --> 02:22:54,720
that he, I think, Mr. Inglis even characterized it at one point as being an overreaction

1706
02:22:54,720 --> 02:23:04,670
to that of what occurred. And from that point, Mr. Dureka pulled his vehicle out into

1707
02:23:04,670 --> 02:23:10,030
the right travel lane, drove up beside Mr. Amber Settian struck him the first time by moving

1708
02:23:10,030 --> 02:23:16,410
into his lane. After that, he then retreated behind, slowed his vehicle and retreated back

1709
02:23:16,410 --> 02:23:21,610
and fell back in behind the victim, moved into the emergency lane and drove up to the left

1710
02:23:21,610 --> 02:23:26,250
hand side of him and struck him again at that time.

1711
02:23:26,630 --> 02:23:33,250
Based upon that, there was sufficient evidence for this jury to consider that that would

1712
02:23:33,250 --> 02:23:37,310
meet and would rise to the level of a conviction in this case.

1713
02:23:37,870 --> 02:23:43,790
The intent is inferred by the action and the intentional moving into that emergency lane

1714
02:23:43,790 --> 02:23:47,570
that I think is very clear in this case.

1715
02:23:48,370 --> 02:23:51,030
Ask the count to, and danger in the body, I'm sorry.

1716
02:23:51,570 --> 02:23:55,650
Reckless Conduct, it was alleged that he endangered the bodily safety of Mr.

1717
02:23:55,730 --> 02:24:03,130
Amber Seddy, and consciously disregarded a substantial and unjustifiable risk by

1718
02:24:05,620 --> 02:24:06,400
striking

1719
02:24:06,400 --> 02:24:12,100
his vehicle with, by striking the vehicle of Mr. Amber Seddy with his own.

1720
02:24:12,100 --> 02:24:16,980
And that the standard of care there was a gross deviation from the standard of care.

1721
02:24:17,740 --> 02:24:25,040
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

1722
02:24:25,040 --> 02:24:33,780
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

1723
02:24:33,780 --> 02:24:41,460
And on a holiday weekend, as is existed, there was the endangerment of his bodily safety.

1724
02:24:41,480 --> 02:24:46,740
I think is one of an inference that the jury could draw from the actions and what occurred.

1725
02:24:47,340 --> 02:24:56,780
It was a waspony testimony at that trial from most importantly, the independent third party witness who had absolutely nothing to do.

1726
02:24:57,320 --> 02:25:02,300
So, the state's knowledge still doesn't know either of the individuals involved and based

1727
02:25:02,300 --> 02:25:06,860
upon that, he just simply called to let the law know what was happening and for South

1728
02:25:06,860 --> 02:25:09,220
County know what was happening at that time.

1729
02:25:10,080 --> 02:25:16,740
Finally, as to count three, failure to signal lane change, it was a ledge that Mr. Doreco

1730
02:25:16,740 --> 02:25:21,740
changed lanes when such movement was not reasonably safe, and I think that again has shown

1731
02:25:21,740 --> 02:25:26,260
on both situations where he moved from the right lane, right travel lane into the left

1732
02:25:26,260 --> 02:25:32,420
travel lanes, tracking him the first time, but then also when he moved into the emergency lane

1733
02:25:32,900 --> 02:25:34,020
and struck his vehicle.

1734
02:25:37,970 --> 02:25:44,390
Based upon these things, the state is asking that this court find that no abuse of discretion

1735
02:25:44,390 --> 02:25:54,630
was made by the trial court in numerous iterations of error 2 through 6 that the proper methods

1736
02:25:54,630 --> 02:25:59,010
were employed and used and allowed to go to the jury and the jury rendered its verdict

1737
02:25:59,570 --> 02:26:02,910
convicting Mr. Dorico of these charges.

1738
02:26:03,250 --> 02:26:06,150
Ask to a numeration error number one.

1739
02:26:06,430 --> 02:26:07,970
The state is asking that this court

1740
02:26:07,970 --> 02:26:11,150
find that these statutes are not unconstitutional

1741
02:26:11,150 --> 02:26:14,430
evade as applied on a case by case basis.

1742
02:26:14,770 --> 02:26:16,370
And if there are no further questions from the court,

1743
02:26:16,550 --> 02:26:18,910
we thank you for your time and consideration in this case.

1744
02:26:19,210 --> 02:26:20,250
Thank you.

1745
02:26:20,510 --> 02:26:21,230
Thank you, Ms. Murphy.

1746
02:26:26,820 --> 02:26:28,520
OK, I used up all the time.

1747
02:26:28,840 --> 02:26:29,360
Was that correct?

1748
02:26:29,880 --> 02:26:30,700
No, thank you.

1749
02:26:30,700 --> 02:26:32,040
OK, thank you, I'll put both sides.

1750
02:26:32,040 --> 02:26:33,120
Madam

1751
02:26:45,030 --> 02:26:46,150
Clerk, if you would please.

1752
02:26:47,630 --> 02:26:55,910
S-19A-0-684, more in a area versus a state, that's a legal propellant, more advanced

1753
02:26:55,910 --> 02:26:56,790
for appellate.

1754
02:27:20,560 --> 02:27:21,500
May it please the court.

1755
02:27:22,500 --> 02:27:28,920
For an ordinary speaker of English, the phrase physically injures simply does not call

1756
02:27:28,920 --> 02:27:31,180
to mind the conception of new life.

1757
02:27:32,320 --> 02:27:38,240
Indeed, as the concurring judge pointed out in Kendrick quite correctly, as a general matter,

1758
02:27:38,340 --> 02:27:44,320
it would be highly unusual, indeed offensive, to refer to a woman's pregnancy as a physical

1759
02:27:44,320 --> 02:27:44,820
injury.

1760
02:27:45,080 --> 02:27:47,060
Is that what was charged in this case?

1761
02:27:48,080 --> 02:27:56,160
I thought it was charged with physical injury was impregnating, causing the child to endure

1762
02:27:56,760 --> 02:28:02,540
childbirth, so the focus was on not conception or pregnancy, but childbirth.

1763
02:28:03,280 --> 02:28:08,500
It is what was charged, and I think the focus and light of the Kendrick decision, which

1764
02:28:08,500 --> 02:28:14,900
I think undoubtedly this indictment was modeled after, it really wasn't clear whether

1765
02:28:14,900 --> 02:28:20,100
the state needs to prove both to get a sentence of 25 to life, and I think that's part

1766
02:28:20,100 --> 02:28:20,700
of the problem.

1767
02:28:21,020 --> 02:28:21,160
So what?

1768
02:28:22,020 --> 02:28:22,880
Proof both what?

1769
02:28:22,880 --> 02:28:27,900
I'm sorry, the causing pregnancy and that the victim then endured childbirth.

1770
02:28:27,920 --> 02:28:30,740
They didn't have pretty clear from the statute that would you have to prove his physical injury?

1771
02:28:32,440 --> 02:28:35,520
And so couldn't either serve as an independent basis?

1772
02:28:37,380 --> 02:28:48,640
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.

1773
02:28:48,640 --> 02:28:57,260
But as in charge, the physical injury charge is causing the child to endure childbirth.

1774
02:28:57,920 --> 02:29:03,800
Now the intermediate cause of that was impregnating the child in the same way that the

1775
02:29:03,800 --> 02:29:11,480
intermediate cause of a bullet I should at your head hitting you in the head may be my

1776
02:29:11,480 --> 02:29:15,920
assault and aggravated assault before there is a murder.

1777
02:29:15,920 --> 02:29:23,880
But there can be multiple causes, but the physical injury charge was causing such child

1778
02:29:23,880 --> 02:29:25,280
to endure childbirth.

1779
02:29:27,240 --> 02:29:34,460
And I disagree because I think as far as the analogy goes, pregnancy is just different

1780
02:29:35,040 --> 02:29:38,740
and that childbirth was attendant to the pregnancy.

1781
02:29:38,740 --> 02:29:45,260
That may be, but it had the indictment simply said by causing her to become pregnant period

1782
02:29:45,260 --> 02:29:58,440
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.

1783
02:30:00,000 --> 02:30:03,020
Which is a separate physical event from pregnancy.

1784
02:30:05,140 --> 02:30:07,740
It's separate, but it can only flow from pregnancy.

1785
02:30:08,040 --> 02:30:11,380
And then if that were, that may be, but it depends how you charge.

1786
02:30:12,120 --> 02:30:20,820
If I charge my physical injury is I cut you, I cause physical injury by slicing you with a knife.

1787
02:30:20,820 --> 02:30:26,940
It depends whether I charge by penetrating your skin with a knife, which might hurt,

1788
02:30:26,940 --> 02:30:34,300
or by cutting off your arm with a knife, which is more obvious, physical injury, right?

1789
02:30:34,760 --> 02:30:41,920
And I don't have to prove the more obvious thing, I'm not required to prove the lesser thing,

1790
02:30:42,180 --> 02:30:46,580
if I prove the more substantial physical injury, right?

1791
02:30:47,020 --> 02:30:53,140
Well, I disagree here because under the facts of this case, you do have to prove the lesser thing,

1792
02:30:53,140 --> 02:30:56,440
less or thing, I wasn't having to prove that I broke your skin.

1793
02:30:56,740 --> 02:31:00,980
I would have to prove that I touched the edge of your skin with my knife, which would

1794
02:31:00,980 --> 02:31:05,660
be a tricky thing about, is that a physical injury, if I barely touched you with a knife,

1795
02:31:06,000 --> 02:31:07,720
you felt it, maybe you didn't feel it.

1796
02:31:08,060 --> 02:31:10,340
On the way of slicing your arm off.

1797
02:31:11,780 --> 02:31:17,380
But those are both obviously physical harm, whereas, you know, not necessarily touching your

1798
02:31:17,380 --> 02:31:17,500
skin.

1799
02:31:17,500 --> 02:31:17,800
Physical harm.

1800
02:31:18,320 --> 02:31:20,920
With a knife compared to slicing your arm off.

1801
02:31:20,920 --> 02:31:27,360
Touching your skin with the knife, it's at obvious physical injury, not cutting it your skin, just touching your skin.

1802
02:31:27,660 --> 02:31:32,240
Well, then the statutes you look at would be the cutting arm off would be aggravated battery.

1803
02:31:32,420 --> 02:31:36,780
The touching a skin would be aggravated assault because there's a dangerous weapon to use.

1804
02:31:37,220 --> 02:31:39,220
When we say cause,

1805
02:31:39,540 --> 02:31:41,920
Proximate cause is typically what we're referring to, right?

1806
02:31:43,120 --> 02:31:50,800
There can be other things that happen in between what I did and the ultimate result that what I have done has approximately caused.

1807
02:31:52,480 --> 02:32:07,300
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.

1808
02:32:08,360 --> 02:32:12,580
Here, while pregnancy may have occurred

1809
02:32:12,580 --> 02:32:15,740
between the time of impregnation and childbirth,

1810
02:32:16,500 --> 02:32:20,840
the childbirth is still proximately caused by the act of the defendant, right?

1811
02:32:21,160 --> 02:32:22,480
It is proximate, call it.

1812
02:32:22,760 --> 02:32:23,840
Then why don't you lose?

1813
02:32:25,060 --> 02:32:28,700
Because one pregnancy is just fundamentally different

1814
02:32:28,700 --> 02:32:30,400
and when you relax your throat, go.

1815
02:32:30,620 --> 02:32:33,500
Let's put pregnancy aside for just for the purposes

1816
02:32:33,500 --> 02:32:35,480
of the next two minutes or something.

1817
02:32:36,140 --> 02:32:37,080
Let's talk about the childbirth.

1818
02:32:37,080 --> 02:32:41,260
because the indictment says, causing her to endure

1819
02:32:41,260 --> 02:32:42,220
the birth of a child.

1820
02:32:43,020 --> 02:32:45,100
Yes, and what happened actually in this case

1821
02:32:45,100 --> 02:32:49,080
was that the victim initially wanted an abortion

1822
02:32:49,760 --> 02:32:52,200
and Mr. Daerio talked her out of it.

1823
02:32:52,500 --> 02:32:54,980
So then if the state's position is correct,

1824
02:32:55,560 --> 02:32:58,720
that would mean that a perpetrator who convinces his victim

1825
02:32:58,720 --> 02:33:01,340
to have an abortion no longer faces the enhanced.

1826
02:33:01,720 --> 02:33:03,080
That's a good choice.

1827
02:33:03,320 --> 02:33:05,280
That would be a case where we'd have to decide

1828
02:33:05,280 --> 02:33:10,460
whether a perpetrator who impregnates somebody and causes the person to have an abortion

1829
02:33:10,460 --> 02:33:12,700
is a physical injury, but that's not this case.

1830
02:33:12,840 --> 02:33:18,380
Well, and if the prosecutor had indicted that case as impregnated her causing her to endure

1831
02:33:18,380 --> 02:33:25,660
childbirth, that in fact would not have been proved if childbirth had not occurred. There may be

1832
02:33:25,660 --> 02:33:33,500
some other injury that could be proved. But here childbirth, the injury that was alleged did in fact

1833
02:33:34,860 --> 02:33:39,980
So I think what the Justice Warren wanted you to do, which I would like to, is for a moment

1834
02:33:39,980 --> 02:33:45,320
at least, tell us whether causing childbirth qualifies as a physical injury.

1835
02:33:46,300 --> 02:33:51,540
No, it doesn't, because when you read the statutes in harmony, which is the way you have

1836
02:33:51,540 --> 02:33:57,080
to do it, it's just, like can we just start with just the words in the statute and causing

1837
02:33:57,080 --> 02:34:00,580
physical injury, there are two questions, right?

1838
02:34:00,580 --> 02:34:06,340
childbirth ever caused physical injury, but more narrowly here, based on the record, did it cause

1839
02:34:06,340 --> 02:34:07,580
physical injury?

1840
02:34:08,380 --> 02:34:08,440
Yes.

1841
02:34:08,440 --> 02:34:09,260
So what was the second?

1842
02:34:09,620 --> 02:34:10,940
Yes, to both of those questions.

1843
02:34:11,140 --> 02:34:12,800
It caused physical injury here?

1844
02:34:13,040 --> 02:34:17,200
Yes, the act of giving birth to a child can, and did, in this case, cause physical injury.

1845
02:34:17,200 --> 02:34:21,040
And so using to paraphrase my brother at the other side of the bench, why don't you

1846
02:34:21,040 --> 02:34:21,500
lose?

1847
02:34:22,580 --> 02:34:27,720
Because as a matter of construe in a criminal statute, that's not a parent and Mr. Daderio

1848
02:34:27,720 --> 02:34:36,760
didn't have fair warning that, okay, let me ask you, is it reasonably foreseeable that

1849
02:34:36,760 --> 02:34:41,060
a sexually mature male having sex with a sexually mature female will produce a pregnancy?

1850
02:34:42,460 --> 02:34:47,520
Is it reasonably foreseeable that a healthy pregnancy continued will result in childbirth?

1851
02:34:47,580 --> 02:34:47,960
Yes.

1852
02:34:48,240 --> 02:34:52,180
Is it reasonably foreseeable that childbirth will result in perennial tearing?

1853
02:34:53,740 --> 02:34:54,400
Yes, probably so.

1854
02:34:54,800 --> 02:35:04,380
All of those things are clear and logical consequences of the initial act here, tell me where the chain breaks.

1855
02:35:05,140 --> 02:35:15,120
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.

1856
02:35:15,120 --> 02:35:24,200
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

1857
02:35:24,200 --> 02:35:33,320
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

1858
02:35:33,320 --> 02:35:40,620
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

1859
02:35:40,620 --> 02:35:48,740
That's because the definition of motor vehicle or was not commonly understood to include error

1860
02:35:48,740 --> 02:35:54,200
or notical vehicles. Here, the question is, does the definition of physical injury

1861
02:35:54,200 --> 02:36:00,480
commonly include, well, what do you say physical injury means? Do you agree it means physical

1862
02:36:00,480 --> 02:36:07,860
harm or damage, which is every dictionary? Okay, so are you saying that trial birth that is not

1863
02:36:07,860 --> 02:36:10,040
does not involve a physical injury,

1864
02:36:10,040 --> 02:36:12,040
meaning a physical harm or damage?

1865
02:36:12,900 --> 02:36:16,200
No, I'm saying that certainly lawyers can get there

1866
02:36:16,200 --> 02:36:17,880
logically and follow that chain of information.

1867
02:36:17,880 --> 02:36:18,640
I'm not the least.

1868
02:36:18,880 --> 02:36:20,880
I looked it up in the dictionary about an hour ago,

1869
02:36:20,920 --> 02:36:22,680
and I saw a physical harm or damage.

1870
02:36:23,320 --> 02:36:24,760
And while I guess I am a human being,

1871
02:36:24,880 --> 02:36:27,520
he knows a little bit about childbirth

1872
02:36:27,520 --> 02:36:30,400
from everything from the Bible to the fact

1873
02:36:30,400 --> 02:36:33,460
that we allow women who have childbirth to recover

1874
02:36:33,460 --> 02:36:36,540
because of the physical pain and damage it causes.

1875
02:36:36,540 --> 02:36:41,420
So, where is that? I don't see how McBoyle has anything to do.

1876
02:36:42,400 --> 02:36:49,120
But as this Court has said before in a different but somewhat related context in the Dixon case in 2004,

1877
02:36:50,940 --> 02:36:59,040
particular statutes prevail over more general ones. And just like in Dixon, we have multiple statutes under chapter six that apply here.

1878
02:36:59,180 --> 02:37:01,380
So, the more specific statutes are subject to.

1879
02:37:02,340 --> 02:37:06,280
You're not challenging that the evidence supported a conviction of child

1880
02:37:07,180 --> 02:37:07,700
molestation.

1881
02:37:08,160 --> 02:37:12,380
No, I agree that intercourse can be an immoral and a decent act.

1882
02:37:12,660 --> 02:37:17,840
And so the only thing, different between, I mean, so we're not dealing with whether this

1883
02:37:17,840 --> 02:37:19,300
is what was contemplated about child molestation.

1884
02:37:19,480 --> 02:37:21,360
The question is, child molestation happened.

1885
02:37:22,180 --> 02:37:27,000
The only question is, did that child molestation result in a physical injury?

1886
02:37:27,000 --> 02:37:42,000
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.

1887
02:37:42,920 --> 02:38:01,760
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.

1888
02:38:01,760 --> 02:38:10,520
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

1889
02:38:10,520 --> 02:38:16,620
Statutes that apply to the same conduct some specific some general. I think Justice Blackwell had a great footnote with

1890
02:38:17,340 --> 02:38:24,020
You know and a murder based on an aggravated battery and there were about 12 different statutes that you could have charged

1891
02:38:24,600 --> 02:38:28,600
You can charge all 12 of them. You can be found guilty of all 12 of them

1892
02:38:28,600 --> 02:38:32,520
You may have a merger argument if the elements, if they're lesser included.

1893
02:38:33,600 --> 02:38:39,460
But we don't say that because, I mean, can you not be charged with aggravated assault,

1894
02:38:39,680 --> 02:38:41,900
if you're charged with malice murder?

1895
02:38:42,700 --> 02:38:48,540
Even though, if I shoot you, it is more specific to say, it was a malice murder.

1896
02:38:48,820 --> 02:38:50,520
You saying that's not an aggravated assault?

1897
02:38:50,620 --> 02:38:53,700
No, they're the evil to be avoided as multiple punishments.

1898
02:38:53,700 --> 02:39:02,720
So I think what I hear you're saying is that it could be the case that a prosecutor brought

1899
02:39:02,720 --> 02:39:04,880
different charges against someone like your client.

1900
02:39:05,320 --> 02:39:11,480
It could be the case that a prosecutor brought an aggravated child molestation count and decided to prove it in a different way.

1901
02:39:12,320 --> 02:39:14,000
I mean, do you can see that that's possible?

1902
02:39:14,540 --> 02:39:16,880
That you could prove physical injury in other ways.

1903
02:39:17,040 --> 02:39:19,680
That we're not alleged here, right?

1904
02:39:19,800 --> 02:39:20,740
So that's possible.

1905
02:39:20,740 --> 02:39:27,740
It also seems possible that there could be a circumstance where child birth were alleged

1906
02:39:27,740 --> 02:39:31,100
to be the physical injury and the record didn't support it.

1907
02:39:31,280 --> 02:39:32,200
Do you agree with that?

1908
02:39:32,960 --> 02:39:37,040
It seems like the facts of this case fit into none of those paradigms.

1909
02:39:39,080 --> 02:39:43,600
But our position is this is a novel legal theory that was never accepted until Kendrick,

1910
02:39:43,860 --> 02:39:47,580
which case was decided after the criminal act here occurred.

1911
02:39:47,580 --> 02:39:48,960
Why didn't that matter?

1912
02:39:49,300 --> 02:39:51,420
God, did the code exist before the act?

1913
02:39:51,540 --> 02:39:53,520
It matters as to the vagueness challenge

1914
02:39:53,520 --> 02:39:54,620
which we have because there's a...

1915
02:39:54,620 --> 02:39:56,340
Why did we determine vagueness based

1916
02:39:56,340 --> 02:39:58,300
on what courts say about the plain language of a statute?

1917
02:39:58,860 --> 02:40:02,180
Well, there is one Supreme Court case I cited in the brief

1918
02:40:02,180 --> 02:40:07,080
that says a subsequent judicial decision cannot save a statute.

1919
02:40:07,080 --> 02:40:07,380
Right.

1920
02:40:07,640 --> 02:40:09,700
We can't wait or interpret it in a certain way,

1921
02:40:10,240 --> 02:40:14,420
but by your logic, the first prosecution under every statute

1922
02:40:15,980 --> 02:40:22,480
apparently is vague because until some court upheld it and there was a prosecution you couldn't have ever guessed

1923
02:40:23,080 --> 02:40:24,920
You might be prosecuted

1924
02:40:24,920 --> 02:40:33,840
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

1925
02:40:33,840 --> 02:40:37,900
No, and I'm not asking the court to find that at all. What I'm saying is the again

1926
02:40:37,900 --> 02:40:43,680
And what someone in this position would know from the code clearly, he has fair warning

1927
02:40:43,680 --> 02:40:47,880
that you can get 30 years in prison for incest and 20 years in prison for statutory

1928
02:40:47,880 --> 02:40:48,780
rape.

1929
02:40:49,220 --> 02:40:53,720
But then to get back that he didn't fully think through the potential consequences of his

1930
02:40:53,720 --> 02:40:58,180
actions does not mean that the crime that he committed is not a crime.

1931
02:40:58,900 --> 02:41:01,400
No, but why is childbirth not a physical injury?

1932
02:41:01,980 --> 02:41:05,420
Because reading the statutes in part in materia, and there are others.

1933
02:41:05,420 --> 02:41:10,260
what the record, why is it not, I mean, let's get uncomfortable, right?

1934
02:41:10,700 --> 02:41:17,320
In the record that supports the childbirth here under these circumstances as causing a physical injury.

1935
02:41:17,920 --> 02:41:21,600
Here in the record it was clear that the childbirth did cause physical injury.

1936
02:41:22,460 --> 02:41:25,380
And so I'm not testing that or it's efficiency or anything like that.

1937
02:41:25,520 --> 02:41:27,900
I'm only testing that in an applying linity.

1938
02:41:27,940 --> 02:41:34,040
I think our interpretation that pregnancy should have to be determined specifically by the legislature.

1939
02:41:34,040 --> 02:41:39,520
So, if he had read the statute, just words, in their ordinary English, maybe he had to

1940
02:41:39,520 --> 02:41:45,420
use a dictionary if he didn't speak much English, but you would agree, child molestation

1941
02:41:45,420 --> 02:41:46,120
isn't the issue.

1942
02:41:46,140 --> 02:41:50,360
It was child molestation to have intercourse with the child for his gratification.

1943
02:41:51,420 --> 02:41:55,040
So if he read the definition of child molestation, he would have gotten that, and then

1944
02:41:55,040 --> 02:41:59,320
then he would have had to read, would that act physically into the child and his justice

1945
02:41:59,320 --> 02:42:06,060
Bethel said that he would say you would have to think of all the things that follow from sexual

1946
02:42:06,060 --> 02:42:13,080
intercourse with a child who is a childbearing age and you're on the hook for everything that

1947
02:42:13,080 --> 02:42:19,540
may reasonably happen. He would see that the aggravated child molestation of subsection is

1948
02:42:19,540 --> 02:42:24,380
specifically concerned with Sodomy and then generally concerned with injury. Then he would also

1949
02:42:24,380 --> 02:42:27,980
see that may be because Sodomy may not be an injury.

1950
02:42:28,980 --> 02:42:31,000
But then he would see that statutory rape and

1951
02:42:31,000 --> 02:42:34,500
insists specifically applied to his potential conduct.

1952
02:42:34,620 --> 02:42:37,780
But it may also not involve the physical injury, right?

1953
02:42:38,480 --> 02:42:40,920
But it would be the more reasonable place to find that.

1954
02:42:41,180 --> 02:42:43,300
If the legislature wanted, like, 10 of their states.

1955
02:42:43,720 --> 02:42:45,280
Is that just a statue?

1956
02:42:46,580 --> 02:42:48,980
It's not unless you're could have put it in a better place.

1957
02:42:49,440 --> 02:42:50,420
No, it's not the legal test.

1958
02:42:50,440 --> 02:42:53,500
But I think in the Yates case, in particular,

1959
02:42:53,500 --> 02:42:55,540
where the Supreme Court acknowledged,

1960
02:42:55,560 --> 02:42:58,460
look a fish is absolutely a tangible object.

1961
02:42:59,000 --> 02:43:01,160
They still looked at where it was in the code,

1962
02:43:01,580 --> 02:43:03,620
the headings, the surrounding sections, they said,

1963
02:43:04,360 --> 02:43:06,700
okay, even though we can see that it's a tangible object

1964
02:43:06,700 --> 02:43:08,780
and there's no dispute about that,

1965
02:43:08,840 --> 02:43:10,460
we're still gonna cut off the criminal liability.

1966
02:43:10,800 --> 02:43:16,320
You can see the childbirth is a can be a physical injury

1967
02:43:16,320 --> 02:43:18,080
and was a physical injury in this case.

1968
02:43:18,820 --> 02:43:23,060
And you can see that childbirth is a foreseeable,

1969
02:43:25,780 --> 02:43:31,200
That childbirth follows foreseeably from intercourse, right?

1970
02:43:32,620 --> 02:43:32,780
Okay.

1971
02:43:33,260 --> 02:43:35,420
But the statutes on intercourse don't talk about it.

1972
02:43:35,440 --> 02:43:36,360
They don't mention pregnancy.

1973
02:43:37,080 --> 02:43:41,200
And this statute says child molestation that causes physical injury,

1974
02:43:41,440 --> 02:43:43,340
or that physically injures someone.

1975
02:43:44,000 --> 02:43:44,280
Right.

1976
02:43:44,280 --> 02:43:47,880
So saying first you have to leave the more particular statutes.

1977
02:43:48,100 --> 02:43:51,200
So then you have to loop it into the statute on aggravated assault.

1978
02:43:51,200 --> 02:43:55,640
doesn't talk about the more particular injury of an aggravated assault that kills somebody.

1979
02:43:56,940 --> 02:44:02,720
So when I shoot you, how could I have known that if I read a few chapters over in the

1980
02:44:02,720 --> 02:44:07,920
code, there's something if I shoot you, and the result of the shooting is you die.

1981
02:44:08,580 --> 02:44:12,860
That boy, I got a jail instead of for 20 years, I got a jail for life, maybe life without parole,

1982
02:44:12,960 --> 02:44:18,360
maybe even the death penalty. But I think it's generally obvious and particularly prescribed

1983
02:44:18,360 --> 02:44:19,840
by the felony murder statute.

1984
02:44:20,600 --> 02:44:23,380
So I don't think anyone could ask them more serious harm.

1985
02:44:23,980 --> 02:44:24,820
It's actually the same.

1986
02:44:24,840 --> 02:44:26,220
You don't have to have any intent.

1987
02:44:27,740 --> 02:44:29,500
You commit what is a clear felony.

1988
02:44:29,960 --> 02:44:32,300
And the only reason it's a more significant crime

1989
02:44:32,300 --> 02:44:34,860
is the natural and foreseeable consequences.

1990
02:44:35,600 --> 02:44:37,680
Look, I will tell you this.

1991
02:44:37,680 --> 02:44:38,500
And I'm being sincere.

1992
02:44:38,620 --> 02:44:40,580
I appreciate how well-versed you are

1993
02:44:40,580 --> 02:44:41,900
in the Canon's statutory construction.

1994
02:44:42,220 --> 02:44:43,600
I'm not being concedious.

1995
02:44:44,260 --> 02:44:46,760
But here, where you're talking about physical injury,

1996
02:44:46,760 --> 02:44:49,300
And that's a pretty clear term in plain English.

1997
02:44:50,260 --> 02:44:54,280
It seems to me what you're really arguing for is to go to the general assembly

1998
02:44:54,280 --> 02:44:59,140
and to lobby the general assembly to make clear if they want to make clear

1999
02:44:59,140 --> 02:44:59,980
that there are other...

2000
02:45:00,000 --> 02:45:06,240
Your separate independent basis that can purse a serve as an aggravating factor for top molestation?

2001
02:45:06,780 --> 02:45:12,500
I am saying that only as to this particular issue, because, again, as Judge Diller had correctly pointed out,

2002
02:45:12,640 --> 02:45:16,020
it's just not something in common usage that we think of as a physical individual.

2003
02:45:16,020 --> 02:45:21,000
But you're talking about pregnancy, and we're talking about the childbirth that was alleged in the indictment,

2004
02:45:21,300 --> 02:45:23,540
and that you have conceded, resulted in a physical injury.

2005
02:45:23,540 --> 02:45:25,520
Yes, which could only flow from that.

2006
02:45:25,520 --> 02:45:30,280
And you rest on the judge's decision that he originally took in his concurrence, but not the

2007
02:45:30,280 --> 02:45:35,100
rest of his concurrence where he said, but in taking in context, it does have a significant

2008
02:45:35,100 --> 02:45:35,660
meaning.

2009
02:45:36,320 --> 02:45:36,600
It does.

2010
02:45:36,680 --> 02:45:40,560
But again, I think he got the rule of Kennedy in strict construction backwards there.

2011
02:45:40,780 --> 02:45:45,640
I think what he wrote was, we would only say this in the context of a sentencing enhancement

2012
02:45:45,640 --> 02:45:49,860
for someone who commits an act of child molestation, and that gets basic principles of criminal

2013
02:45:49,860 --> 02:45:50,540
law backwards.

2014
02:45:50,540 --> 02:45:57,020
not really what he said first was it's all about context and I'm not sure that if your

2015
02:45:57,020 --> 02:46:02,180
wife was giving birth, you would talk about the horrible phyzoid injuries she's enduring,

2016
02:46:02,760 --> 02:46:09,920
but in another context of a crime where it's based on child molestation, you might understand

2017
02:46:09,920 --> 02:46:15,700
it, not to be in the best possible life, but the worst possible life. That's a context issue

2018
02:46:15,700 --> 02:46:19,200
in the rule of Kennedy, only applies once you get passed all the other rules.

2019
02:46:20,400 --> 02:46:24,740
Again, I think the rule of Kennedy does apply here, because I think it was reasonable for

2020
02:46:24,740 --> 02:46:29,340
someone to read these code sections in harmony and not conclude that childbirth was contemplated

2021
02:46:29,340 --> 02:46:29,760
at all.

2022
02:46:29,880 --> 02:46:33,740
And as I have less than a minute, I just want to briefly touch on Miranda.

2023
02:46:35,580 --> 02:46:39,860
We started the second circuit case, Jackson vs. Conway, where Federal Habius Relief was granted

2024
02:46:39,860 --> 02:46:45,600
on a very factually similar issue that the defendant was in, he's actually at the station

2025
02:46:45,600 --> 02:46:49,500
house that actually not so similar because that was somebody who worked for the state right

2026
02:46:49,500 --> 02:46:56,340
a defects case worker. It was, and this is, and I ask you if parents get a point and

2027
02:46:56,340 --> 02:47:03,900
children get appointed lawyers for them in dependency and the link, well, dependency cases.

2028
02:47:04,720 --> 02:47:11,840
If a child's lawyer is represented in the child or a parent's lawyer goes and talks to a criminal

2029
02:47:11,840 --> 02:47:18,140
defend it, just because the court appointed that lawyer, does that make it a state actor

2030
02:47:18,140 --> 02:47:19,200
from random purposes?

2031
02:47:20,700 --> 02:47:25,300
If they're not that person's attorney, they would have to advise them, and they would have

2032
02:47:25,300 --> 02:47:28,700
to come to me first, they would have to go to that person's criminal lawyer under the

2033
02:47:28,700 --> 02:47:29,560
ethical rules.

2034
02:47:31,120 --> 02:47:32,580
I think we should really apologize for that.

2035
02:47:36,050 --> 02:47:37,430
May it please the court.

2036
02:47:37,810 --> 02:47:40,890
My name is Juan DeVance, Council for the Apolle, the State of Georgia.

2037
02:47:40,890 --> 02:47:47,430
This court should have affirmed the decisions of the trial court and the verdict of the jury for the reasons that we just discussed.

2038
02:47:48,030 --> 02:47:55,870
Kendrick was correctly decided because as everybody recognizes, what a Kendrick actually holds, what's the holding of Kendrick?

2039
02:47:55,890 --> 02:48:07,030
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.

2040
02:48:07,030 --> 02:48:10,330
So, that's the basic holding of Kendrick the way the state reads it.

2041
02:48:10,470 --> 02:48:14,850
And we would assert that that was correctly decided that the trial court denied this special

2042
02:48:14,850 --> 02:48:17,830
dimer on the basis of Kendrick in the underlying case.

2043
02:48:18,130 --> 02:48:21,670
And that this court should affirm that trial court's decision because Kendrick was correctly

2044
02:48:21,670 --> 02:48:26,910
decided back in 2015 and this court denied served on it in 2015.

2045
02:48:27,750 --> 02:48:32,270
Further, when we look at a constitutional challenge for vagueness to the aggravated

2046
02:48:33,390 --> 02:48:38,550
and specifically to the injury element, as this court has commented, it's an as-applied

2047
02:48:38,550 --> 02:48:43,130
challenge, and it looks at the totality of the facts and the circumstances in the underlying case.

2048
02:48:43,490 --> 02:48:49,230
And there were three specific witnesses that gave testimony about the injury to this child in this case.

2049
02:48:49,770 --> 02:48:54,450
And then finally, robbing McCormick was a cost of worker that was appointed by the juvenile court.

2050
02:48:54,490 --> 02:48:57,190
She's the one who went and talked to the appellant in the case.

2051
02:48:57,190 --> 02:49:01,630
She was not a state actor and the trial court was correct in allowing the statements that

2052
02:49:01,630 --> 02:49:04,570
the appellant made to her because she wasn't required to read Miranda.

2053
02:49:06,110 --> 02:49:10,050
The fact that this case was significant because under all of the different arguments raised,

2054
02:49:10,250 --> 02:49:12,970
this court is to look at the facts and analyzing the law.

2055
02:49:13,690 --> 02:49:17,370
There were three children of the appellant that were all named victims in the indictment.

2056
02:49:17,910 --> 02:49:22,110
At the time of trial, his oldest child that was named victim was Matthew who was 17.

2057
02:49:22,790 --> 02:49:26,490
The child's Samantha was 14 at the time, she was impregnated by her father.

2058
02:49:26,490 --> 02:49:31,550
she was 15 at the time of trial and 15 when she delivered her father's baby on her foster

2059
02:49:31,550 --> 02:49:35,130
mother's recliner. And her youngest brother, Jake, it was 14.

2060
02:49:37,750 --> 02:49:41,830
The child Samantha and her father went to a crisis pregnancy center in

2061
02:49:41,830 --> 02:49:46,270
Hall County when she became pregnant for aid and assistance with the pregnancy and

2062
02:49:46,270 --> 02:49:51,570
and she had questions. As my opposing council mentioned, it's significant in the case,

2063
02:49:51,570 --> 02:49:56,810
actually that the appellant talked his daughter out of an abortion. So when we're talking about his

2064
02:49:56,810 --> 02:50:02,370
knowledge of the possible penalties and what he was putting his child through, he knew she was

2065
02:50:02,370 --> 02:50:07,290
going to have to endure the pregnancy and childbirth and he wanted her to because he talked her

2066
02:50:07,290 --> 02:50:12,430
out of an abortion. That's within the record. So this case kind of came to law enforcement light when

2067
02:50:12,430 --> 02:50:16,730
a 14-year-old who's pregnant shows up at a crisis pregnancy center and obviously at that point

2068
02:50:16,730 --> 02:50:19,130
there's been some kind of crime, because she can't consent.

2069
02:50:19,930 --> 02:50:21,910
So this was reported to law enforcement.

2070
02:50:22,210 --> 02:50:24,770
Law enforcement became involved in the case.

2071
02:50:25,370 --> 02:50:28,070
And everybody realized once they saw the interaction

2072
02:50:28,070 --> 02:50:29,390
of the appellant with his daughter,

2073
02:50:29,590 --> 02:50:32,590
that this was not a normal 14-year-old teenager.

2074
02:50:33,670 --> 02:50:36,650
So she reported that the father of the baby was Ricky,

2075
02:50:37,510 --> 02:50:39,550
investigator Corwin, who's present today,

2076
02:50:39,730 --> 02:50:41,490
actually received some information.

2077
02:50:41,710 --> 02:50:45,150
Took this child to a forensic and realized immediately

2078
02:50:45,150 --> 02:50:50,690
that some of her details in outpriced were not realistic, they were very similar in language and

2079
02:50:50,690 --> 02:50:54,870
detail to the appellant statements about how she got in pregnant and they weren't corroborated

2080
02:50:54,870 --> 02:51:01,150
by any physical evidence. Not only was this girl pregnant, but her brothers were medically neglected.

2081
02:51:01,830 --> 02:51:06,810
They were malnourished. All three children had to beg for money for food. It was in the record

2082
02:51:06,810 --> 02:51:11,670
that they smelled so poorly of caracene that the school called in a gas leak on these children.

2083
02:51:11,670 --> 02:51:16,830
And so even knowing this child, the pregnant teenager is saying that another boy impregnated

2084
02:51:16,830 --> 02:51:17,550
her.

2085
02:51:18,690 --> 02:51:25,650
You get into the statutory issue and the indictment and how this was properly charged

2086
02:51:25,650 --> 02:51:26,270
and convicted.

2087
02:51:27,150 --> 02:51:27,710
Absolutely.

2088
02:51:28,150 --> 02:51:31,430
The state charged on aggravated total molestation and count 1 based on Kendrick.

2089
02:51:31,830 --> 02:51:35,090
And when there was a special demirror filed, you know, we argued that on the trial court

2090
02:51:35,090 --> 02:51:35,570
was correct.

2091
02:51:35,570 --> 02:51:48,850
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?

2092
02:51:49,330 --> 02:51:49,930
Childbirth.

2093
02:51:50,610 --> 02:51:53,370
And that was proven through the testimony of three witnesses.

2094
02:51:53,890 --> 02:51:56,890
This child delivered again on her foster mother's recliner.

2095
02:51:57,190 --> 02:51:59,210
The baby was born in the amniotic sex.

2096
02:51:59,290 --> 02:52:04,710
Is that theory dependent upon Kendrick?

2097
02:52:06,390 --> 02:52:11,530
So, Kendrick, is not essential to the state's theory in this case.

2098
02:52:11,910 --> 02:52:13,270
We would agree with that, Joseph.

2099
02:52:13,650 --> 02:52:19,910
Do you, does the state have a position as to whether or not conception, implementation,

2100
02:52:20,350 --> 02:52:26,930
or any of the other things that are not part of the theory that you presented in this case constitute physical injury?

2101
02:52:28,130 --> 02:52:28,810
The state would argue.

2102
02:52:28,810 --> 02:52:32,270
This state would argue.

2103
02:52:34,090 --> 02:52:34,690
Yes, Joseph.

2104
02:52:34,690 --> 02:52:38,910
that is correctly decided that the pregnancy and child birth

2105
02:52:38,910 --> 02:52:42,630
regardless of the fact that this case can be physical injury.

2106
02:52:43,390 --> 02:52:46,090
Kendrick comes real close to just saying a per se rule,

2107
02:52:46,150 --> 02:52:49,810
which isn't in the statute, and the state, in this case,

2108
02:52:49,970 --> 02:52:52,250
isn't asking this court to find that.

2109
02:52:52,750 --> 02:52:55,230
We would argue that the difference between some of the states

2110
02:52:55,230 --> 02:52:58,110
that are cited by my opposing counsel that have codified

2111
02:52:58,110 --> 02:53:00,130
that pregnancy and childbirth are injury,

2112
02:53:00,550 --> 02:53:02,590
the difference between those states and Georgia

2113
02:53:02,590 --> 02:53:14,070
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

2114
02:53:15,070 --> 02:53:22,030
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

2115
02:53:23,670 --> 02:53:28,090
Candidly justice. I didn't look at all of those different statutes. I think some of them

2116
02:53:28,090 --> 02:53:30,150
say that you know, it's an it's

2117
02:53:31,250 --> 02:53:35,850
This crime is committed by an injury and then kind of give different possible ways that the

2118
02:53:35,850 --> 02:53:36,150
injury takes.

2119
02:53:36,150 --> 02:53:39,250
I can't recall that at least in some of the states it was just saying, you know, injury

2120
02:53:39,250 --> 02:53:44,150
or in the same way that here it says, poor Sodomy and it might just offer those as an

2121
02:53:44,150 --> 02:53:48,150
independent basis, which I think actually, you know, weighs in at least on the Kendrick piece

2122
02:53:48,150 --> 02:53:48,430
of this.

2123
02:53:48,430 --> 02:53:50,590
I don't know if it weighs in on the facts of this case.

2124
02:53:50,930 --> 02:53:51,450
Yes, justice.

2125
02:53:51,710 --> 02:53:56,590
And we would argue that we're not asserting that that's the state of Georgia law or that

2126
02:53:56,590 --> 02:54:01,970
should be. This is still an issue that goes to the jury in Georgia. Kendrick just gives support

2127
02:54:01,970 --> 02:54:08,910
that it is a legal way to prove what goes to the jury is the fact question of what happened.

2128
02:54:09,990 --> 02:54:14,190
And whether that is injury, whether the jury decides that that's sufficient and their

2129
02:54:14,190 --> 02:54:17,670
purview as the fact finder to determine that we've proven that I want to. Well, I mean, there are

2130
02:54:17,670 --> 02:54:22,990
certain facts that a jury could find that as a matter of law simply aren't injury, right?

2131
02:54:26,030 --> 02:54:31,330
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.

2132
02:54:31,530 --> 02:54:37,830
I mean, there are all sorts of things completely unrelated to this case that just aren't the sort of facts that constitute injury.

2133
02:54:38,410 --> 02:54:46,150
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,

2134
02:54:46,150 --> 02:54:49,790
It is conceded that childbirth is physical injury.

2135
02:54:49,790 --> 02:54:56,670
It is conceded that that happened here and it seems patently obvious that the childbirth

2136
02:54:56,670 --> 02:54:59,590
was proximately caused by the child molestation.

2137
02:55:00,510 --> 02:55:06,310
And so whether or not there might be some interesting philosophical question in a future case

2138
02:55:06,310 --> 02:55:09,710
that philosophical question does not arise here, right?

2139
02:55:10,110 --> 02:55:10,970
We would agree with that.

2140
02:55:11,610 --> 02:55:17,350
That your decision, in this case, ends with the facts of this case supporting the indictment.

2141
02:55:18,110 --> 02:55:21,950
Again, the baby was born in the fact, and the testimony was that this child tore more

2142
02:55:21,950 --> 02:55:26,670
extensively needed stitches and prescription level pain medicine for some time after the birth,

2143
02:55:27,350 --> 02:55:30,050
because she delivered without any medical attention.

2144
02:55:30,970 --> 02:55:35,310
Further, it's significant in terms of a fair reading argument and whether or not the appellant

2145
02:55:35,310 --> 02:55:39,290
in this case would have been on notice as to whether he was looking at 25 years

2146
02:55:39,290 --> 02:55:44,950
life for injuring a child when you consider the fact that it's in the record that he wanted

2147
02:55:44,950 --> 02:55:50,450
her to give birth. You know, it's obvious that you can have sex with teenagers and not

2148
02:55:50,450 --> 02:55:56,110
impregnate them or there's certainly ways to try, and he does the record reflect anything with

2149
02:55:56,110 --> 02:56:00,610
respect to that question preceding the child molestation.

2150
02:56:02,680 --> 02:56:09,340
Here is state of mind after the child molestation really relevant to the question of, you follow

2151
02:56:09,340 --> 02:56:16,280
question? Yes, Justice. There was, and I can't remember where it came out. There was some evidence

2152
02:56:16,280 --> 02:56:20,380
that there were condoms found and that it different times. There had been some attempts.

2153
02:56:20,840 --> 02:56:25,160
It doesn't really matter. Does it, right? Under the criminal law, if you commit an act, you're

2154
02:56:25,160 --> 02:56:32,080
responsible for the natural and foreseeable consequences. If you want those to happen, that's great,

2155
02:56:32,200 --> 02:56:38,060
but lots of times you don't want those to happen and that doesn't matter, right? We would agree with

2156
02:56:38,060 --> 02:56:43,140
justice. It's actually codified and the jury was charged in the jury charges by the trial judge.

2157
02:56:43,380 --> 02:56:49,240
I'm not sure why whatever happened after the act really makes any difference to that other than

2158
02:56:49,240 --> 02:56:54,820
deciding maybe it doesn't feel as unfair. But I suppose that's the state's argument that in terms

2159
02:56:54,820 --> 02:57:00,220
of an as-applied challenge we have not only the natural and foreseeable consequences, but his verbalizing

2160
02:57:00,220 --> 02:57:05,280
his desires and his specific intent. And we would argue that that is an important factor when you're

2161
02:57:05,280 --> 02:57:09,240
talking about a fear-reading and what he thought he'd be on the hook for in terms of sentencing,

2162
02:57:09,400 --> 02:57:09,880
what his intent.

2163
02:57:09,880 --> 02:57:13,180
Except that none of that actually matters to the statute, right?

2164
02:57:14,200 --> 02:57:18,460
Because if you would argue, his subjective intent as to the consequences of his actions,

2165
02:57:18,700 --> 02:57:19,900
none of that matters to the statute, right?

2166
02:57:19,900 --> 02:57:23,160
Not to the statute itself, but when you're arguing about it and as applied challenge,

2167
02:57:23,260 --> 02:57:24,640
you look at all the facts and circumstances.

2168
02:57:24,920 --> 02:57:31,280
And in terms of whether he would be on notice, whether he would have a fair interpretation,

2169
02:57:31,280 --> 02:57:35,540
in knowing what his interpretation doesn't matter at all.

2170
02:57:35,540 --> 02:57:39,680
It would be the interpretation of a reasonable or dairy person, justice.

2171
02:57:40,900 --> 02:57:44,800
For all of these reasons, the state is reserving this court to follow, Kendrick, to find

2172
02:57:44,800 --> 02:57:46,320
that Kendrick was properly decided.

2173
02:57:46,940 --> 02:57:50,900
I mean, that Kendrick part is still bothering me, though, because I'm still not sure what Kendrick

2174
02:57:50,900 --> 02:57:51,260
holds.

2175
02:57:51,340 --> 02:57:52,740
I've read it a few times now.

2176
02:57:53,260 --> 02:58:00,000
I think the narrowest reading of it is that it talks about pregnancy and it talks about childbirth

2177
02:58:00,000 --> 02:58:05,000
and then conclude that based on the statutory requirement, the record supported the physical

2178
02:58:05,000 --> 02:58:05,440
injury.

2179
02:58:06,040 --> 02:58:07,620
There's a lot of other stuff in there.

2180
02:58:07,740 --> 02:58:13,920
I'm not sure where the debt is and the holding begins, but asking us to follow Kendrick,

2181
02:58:14,040 --> 02:58:17,240
I thought you had conceded earlier in the argument that we don't have to follow Kendrick.

2182
02:58:17,720 --> 02:58:18,140
We don't.

2183
02:58:18,180 --> 02:58:22,720
The only real reference in Kendrick to childbirth is in footnote 8 where it says the party

2184
02:58:22,720 --> 02:58:25,180
is conceded that that was a fact question for the jury,

2185
02:58:28,030 --> 02:58:28,030
right?

2186
02:58:28,450 --> 02:58:28,690
Yes.

2187
02:58:28,690 --> 02:58:30,610
And that that issue was not raised in the appeal.

2188
02:58:31,250 --> 02:58:35,950
Well, they were raised in issue of, I guess, the demurray and whether or not the indictment

2189
02:58:35,950 --> 02:58:40,830
in that case would, could support an aggravated top molestation.

2190
02:58:41,310 --> 02:58:42,310
The State is asking you to do so.

2191
02:58:42,310 --> 02:58:47,050
But to the extent that Kendrick deals with the question that is raised in this case, footnote

2192
02:58:47,050 --> 02:58:54,050
eight, where it says the party is agreed, and the issue wasn't raised in the appeal seems

2193
02:58:54,050 --> 02:58:56,470
to be really the only reference Kendrick makes to that.

2194
02:58:56,470 --> 02:59:00,450
And I would agree that this court doesn't have to decide Kendrick.

2195
02:59:01,350 --> 02:59:05,750
If Kendrick had never existed, and the Fulton County District Attorney's Office had never

2196
02:59:05,750 --> 02:59:11,050
taken that case to trial, the state is arguing that under a fair reading of aggravated

2197
02:59:11,050 --> 02:59:15,670
child molestation and the facts in this case, our indictment would still have whisted a

2198
02:59:15,670 --> 02:59:20,730
general to a special tomorrow, and the jury still would have been entitled to convict based

2199
02:59:20,730 --> 02:59:21,770
on the facts in this case.

2200
02:59:21,770 --> 02:59:25,430
So while the state does think Kendrick is good law,

2201
02:59:26,450 --> 02:59:29,370
we're not asking you necessarily to base your decision on that,

2202
02:59:29,390 --> 02:59:32,430
but to base your decision on the statute itself and the evidence.

2203
02:59:32,450 --> 02:59:34,770
Do one other question on Kendrick?

2204
02:59:35,110 --> 02:59:38,790
So Kendrick, trying to define injury, lots of dictionaries,

2205
02:59:38,930 --> 02:59:41,350
including the one that Judge Miller, D.C.

2206
02:59:41,350 --> 02:59:47,230
in his concurrence and define injury in terms of harm or damage.

2207
02:59:47,230 --> 02:59:55,430
The majority in Kendrick defined Injury from the Blacks Law Dictionary in 1990 as

2208
02:59:55,430 --> 02:59:58,150
impairment of physical condition.

2209
02:59:59,390 --> 02:59:59,970
When we're trying to figure out

2210
03:00:00,000 --> 03:00:06,000
You're out what the ordinary meaning of words are. Do we look in dictionaries of legal terms?

2211
03:00:07,560 --> 03:00:16,120
And do you think any impairment of physical condition qualifies as harm or damage or is that a little bit broader?

2212
03:00:17,180 --> 03:00:28,180
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

2213
03:00:28,180 --> 03:00:30,280
Imagine for aggravated trauma-estation.

2214
03:00:30,460 --> 03:00:32,120
I mean, any impairment in physical condition

2215
03:00:32,120 --> 03:00:34,320
can be a step-toe or a paper cut,

2216
03:00:34,340 --> 03:00:35,580
like we were talking about earlier.

2217
03:00:36,580 --> 03:00:38,600
And that might be a little bit broad

2218
03:00:38,600 --> 03:00:40,960
in terms of an ordinary person reading aggravated

2219
03:00:40,960 --> 03:00:43,400
trauma-estation statutes wouldn't interpret as injury.

2220
03:00:44,180 --> 03:00:45,440
But regardless, in this case,

2221
03:00:45,580 --> 03:00:48,220
there is clear extensive perennial tearing

2222
03:00:48,720 --> 03:00:51,060
in the record and testimony from three different witnesses,

2223
03:00:51,720 --> 03:00:53,120
specifically, I believe two witnesses

2224
03:00:53,120 --> 03:00:54,520
talked about tearing and suturing.

2225
03:00:54,640 --> 03:00:56,500
And the fact that she was stitched up.

2226
03:00:56,500 --> 03:01:06,260
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.

2227
03:01:07,320 --> 03:01:16,500
I mean, however we decide this, even if we focus on childbirth, we start to figure out what the definition of physical injury is.

2228
03:01:17,160 --> 03:01:23,400
So I want to make sure if you're asking us to adopt that broader black saw dictionary definition

2229
03:01:25,000 --> 03:01:31,500
or perhaps, although I'm not 100% sure in narrower view of everyday dictionaries.

2230
03:01:32,280 --> 03:01:37,200
Just to say, you know, when thinking this through, in terms of the Kendrick decision-sighted black

2231
03:01:37,200 --> 03:01:41,420
slobbos, injury is damaged on to a person, bodily injuries, impairment, a physical condition.

2232
03:01:41,840 --> 03:01:45,600
If we're talking about bodily injury and the context of other statutes in the Georgia case,

2233
03:01:45,600 --> 03:01:47,600
such as kidnapping with bodily injury,

2234
03:01:48,020 --> 03:01:49,900
things such as the scratch or a bruise,

2235
03:01:49,960 --> 03:01:51,040
any kind of impairment.

2236
03:01:51,040 --> 03:01:52,780
Probably be the hard thing for pregnancy,

2237
03:01:53,920 --> 03:01:55,620
if you define it in terms of impairment

2238
03:01:55,620 --> 03:01:59,120
of physical condition, it's pretty obvious it is.

2239
03:01:59,400 --> 03:02:01,640
If you've ever been near somebody who's pregnant,

2240
03:02:01,940 --> 03:02:03,860
at least later on.

2241
03:02:04,160 --> 03:02:07,060
If you define it in terms of harm or damage,

2242
03:02:07,860 --> 03:02:09,800
that becomes a much more difficult question.

2243
03:02:12,000 --> 03:02:15,520
So it makes a difference how we define the term,

2244
03:02:15,520 --> 03:02:18,320
And it may apply, put aside all pregnancy and childbirth,

2245
03:02:18,500 --> 03:02:20,920
it could apply to other things that happen to children

2246
03:02:20,920 --> 03:02:24,700
who were molested, whether we say, you know,

2247
03:02:24,920 --> 03:02:27,920
a certain thing is just something that affects

2248
03:02:27,920 --> 03:02:30,340
their physical condition or whether it's perceived

2249
03:02:30,340 --> 03:02:31,760
as harm or damage.

2250
03:02:32,860 --> 03:02:36,060
The state would urge that an impairment is an appropriate

2251
03:02:36,740 --> 03:02:39,240
interpretation of the definition of enter,

2252
03:02:39,780 --> 03:02:41,140
taking from blacks.

2253
03:02:41,280 --> 03:02:44,480
It's pregnancy, a technical term, a term of art.

2254
03:02:47,360 --> 03:02:52,260
Pregnancy would be both a lay person's sense of the word pregnancy and also a

2255
03:02:52,260 --> 03:02:55,800
scientific term. So, so let's go with a lay person. Does a lay person generally

2256
03:02:55,800 --> 03:02:58,640
look upwards? You know when your kid comes home from school and they ask you

2257
03:02:58,640 --> 03:03:01,980
what a word means to you just be aligned to the Blacks Law Dictionary?

2258
03:03:03,220 --> 03:03:04,200
We do in my house.

2259
03:03:04,400 --> 03:03:10,640
Well, frankly, just as we kind of do in my house also, no ordinary people don't have

2260
03:03:10,640 --> 03:03:14,380
Blacks Law, they don't know what that dictionary is. They would look at, you know, if they

2261
03:03:14,380 --> 03:03:16,760
looked at any definition, they're going to Google at this point.

2262
03:03:17,000 --> 03:03:19,400
And online, Mary and Websters are Oxford dictionary.

2263
03:03:20,260 --> 03:03:23,480
And we would argue that the concurrence in Kendrick talks

2264
03:03:23,480 --> 03:03:25,860
to talk about just normal dictionary definitions.

2265
03:03:27,860 --> 03:03:29,960
And we're arguing that it's not that different.

2266
03:03:29,980 --> 03:03:30,080
It's not the same.

2267
03:03:30,520 --> 03:03:32,080
They don't really focus on the impermanent.

2268
03:03:32,640 --> 03:03:35,840
Well, and that's what the statute for aggravated child

2269
03:03:35,840 --> 03:03:38,080
molestation has been interpreted for years

2270
03:03:38,080 --> 03:03:40,580
that pain in a child's descriptions of pain

2271
03:03:40,580 --> 03:03:43,900
or significant enough to prove injury.

2272
03:03:43,900 --> 03:03:48,700
that that can get that charge to a jury, but the law itself talks about injury.

2273
03:03:49,260 --> 03:03:56,000
I mean, to give you just put it aside pregnancy, but a child who has aggravated child

2274
03:03:56,000 --> 03:04:03,140
who is molested and has mental consequences from that, which are quite common and emotional

2275
03:04:03,140 --> 03:04:11,900
consequences that make the child not continue to work out, and so the child's physical condition

2276
03:04:11,900 --> 03:04:18,520
deteriorates, so there is an impairment of physical condition, but the child has no

2277
03:04:18,520 --> 03:04:26,800
expressible physical pain or physical damage gets trickier. I mean, but it makes a difference,

2278
03:04:27,120 --> 03:04:35,580
whether you define it as a consequence of a physical deterioration or harm or damage, which is

2279
03:04:35,580 --> 03:04:40,200
more positive description of pain.

2280
03:04:40,980 --> 03:04:41,380
Yes, Justice.

2281
03:04:42,060 --> 03:04:48,080
I mean, we would argue that, you know, it's common ordinary people would understand that

2282
03:04:48,080 --> 03:04:52,320
children who are molested have mental deterioration, have psychological effects, and that

2283
03:04:52,320 --> 03:04:53,700
these cause physical effects.

2284
03:04:54,600 --> 03:04:57,520
But the statute does not cover any of the mental issues.

2285
03:04:57,520 --> 03:04:58,640
No, it doesn't.

2286
03:04:58,900 --> 03:05:04,880
But we would argue that if a prosecutor was able to show physical effects in some kind of

2287
03:05:04,880 --> 03:05:12,160
or some kind of impairment due to psychological PTSD, mental health issues, then if a jury

2288
03:05:12,160 --> 03:05:14,800
found that that was proof that that would be sufficient.

2289
03:05:17,000 --> 03:05:22,140
I'd like to go on to the State Act for issue, as I have just a few moments left, and we

2290
03:05:22,140 --> 03:05:26,600
would also ask that you affirm on that issue, our trial court found that our cost of work

2291
03:05:26,600 --> 03:05:31,440
or who was a volunteer, who was not a lawyer, who was not involved in the Superior Court

2292
03:05:31,440 --> 03:05:35,680
criminal case that she was not acting as a state actor to when she went and talked

2293
03:05:35,680 --> 03:05:40,060
to Mr. Daderia when he was in custody. And the factors in terms of this child's outcry

2294
03:05:40,060 --> 03:05:45,800
also support that determination. The facts in the case is found by the trial quarters that

2295
03:05:45,800 --> 03:05:53,300
robbing McCormick was acting as a friend to the child. There was no evidence, no suggestion

2296
03:05:53,300 --> 03:05:57,140
that she had coordinated in any way with law enforcement when she went and talked to Mr.

2297
03:05:57,140 --> 03:06:03,300
area when he was in custody. And there are Georgia cases going back decades that discuss

2298
03:06:03,300 --> 03:06:07,820
state actors and what a state actress. There are two specific cases that find defects, workers,

2299
03:06:07,960 --> 03:06:12,140
and Georgia are not state actors. We disagree with you on that point. Would you have a harmless

2300
03:06:12,140 --> 03:06:17,400
error argument? Absolutely. And that's why again, the facts in this case are not only

2301
03:06:17,980 --> 03:06:21,900
salacious and terrible, but they're very relevant for this courts analysis. We would urge

2302
03:06:21,900 --> 03:06:25,740
that you're not going to get to harmless error because it's clear that a cost of volunteer,

2303
03:06:25,740 --> 03:06:30,520
that's not a lawyer that's not involved in the criminal case or the superior court case is not a

2304
03:06:30,520 --> 03:06:35,040
state actor when there's no communication prior to her getting any statement.

2305
03:06:35,580 --> 03:06:40,500
But if this court does decide that she's a state actor, then even under my coat, my opposing

2306
03:06:40,500 --> 03:06:43,600
council's cases, we would get to a harmless error analysis.

2307
03:06:43,800 --> 03:06:49,060
Let me make sure I understand just there is nothing in the record that would indicate that

2308
03:06:49,060 --> 03:06:54,800
the cost in this case had any before her contact with the defendant, any contact with

2309
03:06:54,800 --> 03:06:57,180
prosecutor law enforcement of any sort.

2310
03:06:57,560 --> 03:07:01,960
I'm not saying that she had no contact, although we believe that the law enforcement officer

2311
03:07:01,960 --> 03:07:08,880
testified she didn't discuss the factors or her suspicions or ongoing investigation with

2312
03:07:08,880 --> 03:07:12,880
the cost of worker. The cost of worker knew he had been arrested. I'm new he was in custody.

2313
03:07:13,340 --> 03:07:18,140
What we're suggesting is there is no discussion of whether the cost of workers should ever talk

2314
03:07:18,140 --> 03:07:22,740
to him, what she should ask, how that should take place if that should ever take place.

2315
03:07:22,740 --> 03:07:28,820
In terms of the harmless error analysis, the Jackson case out of the second circuit that the

2316
03:07:28,820 --> 03:07:33,860
balance sites lays out the harmless error analysis, and it does make the facts relevant

2317
03:07:33,860 --> 03:07:38,920
because in Jackson, they specifically cited that there was no scientific or physical evidence.

2318
03:07:39,400 --> 03:07:45,340
In this case, the state had six crime lab witnesses, including two that ultimately concluded

2319
03:07:45,340 --> 03:07:50,140
But it's 848,000 times more likely a Pellon is the father and grandfather.

2320
03:07:50,200 --> 03:07:50,880
Thank you, thanks.

2321
03:07:51,280 --> 03:07:52,240
Thank you so much.

2322
03:07:52,640 --> 03:07:52,660
All right.

2323
03:07:53,040 --> 03:07:56,560
I neglected to mention that just as being him is not here, but he'll be participating

2324
03:07:56,560 --> 03:07:58,340
in all cases that are already this afternoon.

2325
03:07:59,740 --> 03:07:59,960
Thank you.

2326
03:07:59,960 --> 03:08:05,420
But thank you to Council for both sides, Mr. Barnes, for the last case for the afternoon.

2327
03:08:06,740 --> 03:08:07,180
Thank you.

2328
03:08:09,300 --> 03:08:14,920
State versus Monquids Jackson, Harold Morrowds, for Pellon, in Great Riskal, for

2329
03:08:14,920 --> 03:08:15,320
FLA.

2330
03:08:37,550 --> 03:08:37,790
Maybe.

2331
03:08:37,790 --> 03:08:40,010
May I please the court?

2332
03:08:43,420 --> 03:08:45,020
Your honours, I appear here.

2333
03:08:45,040 --> 03:08:46,540
My name is Hal Maros.

2334
03:08:46,640 --> 03:08:50,400
I am the District Attorney and Assistant District Attorney in

2335
03:08:51,000 --> 03:08:52,060
Dirty County.

2336
03:08:52,640 --> 03:08:54,560
I appear here with Mr. Greg Edwards.

2337
03:08:54,640 --> 03:08:57,180
He is the District Attorney for Dirty County.

2338
03:08:58,660 --> 03:09:03,180
This case involves not so much evidence that was presented for a trial,

2339
03:09:03,380 --> 03:09:07,500
but it involves the closing statements of the prosecutor

2340
03:09:07,500 --> 03:09:16,820
and whether the order of the trial court, indicating that the statement made by the prosecutor

2341
03:09:17,160 --> 03:09:24,140
was ten amount to a subversion of the constitutional protections and a goding of defense

2342
03:09:24,140 --> 03:09:35,000
counsel into asking for a misstrile constitutes judicial abuse of discretion. And the state would

2343
03:09:35,000 --> 03:09:43,640
does. And the state would argue that on several grounds, one being the factual basis that

2344
03:09:43,640 --> 03:09:48,040
the court used to make that determination, and by the court, I obviously referred to

2345
03:09:48,040 --> 03:09:57,600
the trial court, was based on facts that were not in the record. And I'll explain that.

2346
03:09:57,600 --> 03:10:04,020
And facts that were not in the record were used as an analysis of whether this was

2347
03:10:04,020 --> 03:10:17,160
can amount to a goating, if you will, that constituted a dismissal of the trial and a dismissal

2348
03:10:17,160 --> 03:10:18,060
of the charges.

2349
03:10:19,480 --> 03:10:23,420
There was an issue with double jeopardy that was raised and cleaned and barred and that

2350
03:10:23,420 --> 03:10:24,960
was accepted by the court.

2351
03:10:25,360 --> 03:10:33,440
The state would proper to your honors that these statements of the prosecutor was not only

2352
03:10:33,440 --> 03:10:40,080
reasonable inference, but it was invited under the doctrine of an invited response.

2353
03:10:41,680 --> 03:10:48,080
With that said, it would benefit knowing the nature of this case.

2354
03:10:48,780 --> 03:10:53,240
In 2012, there was a murder in Albany, Dordie County.

2355
03:10:54,680 --> 03:10:57,920
In that murder, a gentleman was charged.

2356
03:10:58,220 --> 03:10:59,900
His name was Monquelles Jackson.

2357
03:11:00,080 --> 03:11:01,860
There were others involved this well.

2358
03:11:01,860 --> 03:11:09,460
There was an accomplice to Mr. Jackson, our name was Sadie Britt, that a accomplice turned

2359
03:11:09,460 --> 03:11:17,440
out to be the state's star witness against Mr. Jackson, a gentleman by the name of

2360
03:11:17,440 --> 03:11:22,540
Westbrook, Anthony Westbrook was murdered in 2012,

2361
03:11:24,680 --> 03:11:27,840
our case is star witness, Ms. Sadie Britt,

2362
03:11:27,840 --> 03:11:33,600
injected the name of a potential witness to be used during trial.

2363
03:11:34,080 --> 03:11:38,080
That potential witness was a lady by the name of Porter.

2364
03:11:39,360 --> 03:11:46,700
Porter was listed in Wanderer and on the list of witnesses as a potential witness for the state.

2365
03:11:47,600 --> 03:11:55,540
She was also mentioned by the prosecutor who happened to be Mr. Greg Edwards at trial in his opening statement.

2366
03:11:57,780 --> 03:12:12,260
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

2367
03:12:14,280 --> 03:12:19,980
that Ms. Porter assisted her in cleaning a ban that was used.

2368
03:12:21,160 --> 03:12:31,120
Now, we believe that that ban was used and just to begin where this case started at Mr. Westbrook's house.

2369
03:12:31,520 --> 03:12:39,740
He was having some type of relationship with Ms. Brit. Ms. Brit's husband, who is Mr. Monquist, Jackson, arrived.

2370
03:12:41,480 --> 03:12:45,880
Mr. Westbrook was in the shower. He was ordered out of the shower.

2371
03:12:45,880 --> 03:12:53,720
The state believes he was taken in a van, along with Ms. Porter and Mr. Monquest Jackson, the

2372
03:12:53,720 --> 03:13:01,880
defendant that it would take into a bank where money was taken out of Mr. Westbrook's account.

2373
03:13:02,620 --> 03:13:09,920
They would then transported to another part of the city of Albany, where Mr. Westbrook was ordered

2374
03:13:09,920 --> 03:13:10,720
out of the van.

2375
03:13:10,720 --> 03:13:17,580
And they can't, I don't want to interrupt, but the truck court judge, the order that you

2376
03:13:17,580 --> 03:13:24,880
are challenging, it seems to me is exceptionally detailed relative to most truck orders of

2377
03:13:24,880 --> 03:13:25,420
this sort.

2378
03:13:25,980 --> 03:13:30,040
It's 27 pages long, it's got a bunch of factual findings.

2379
03:13:30,400 --> 03:13:35,120
We typically defer very heavily to factual findings that are made by a truck court, particularly

2380
03:13:35,120 --> 03:13:43,160
when those findings relate to things that are going on in that litigation, which factual

2381
03:13:43,160 --> 03:13:47,040
findings ought we to find were clearly erroneous and why?

2382
03:13:47,180 --> 03:13:48,260
Thank you, Rhonda.

2383
03:13:49,760 --> 03:13:57,320
The trial court found that the prosecutor violated an order of the court that order being on

2384
03:13:57,320 --> 03:14:05,960
motion and limiting on the day that closing arguments began that day being August 4th, 2017.

2385
03:14:07,680 --> 03:14:15,040
You're under there were hearings on this matter post trial after the declaration of mistrial.

2386
03:14:16,040 --> 03:14:22,780
The state repeatedly asked for the identification of that order pursuant to that motion and

2387
03:14:22,780 --> 03:14:28,660
that restricted the state from commenting at all on this matter.

2388
03:14:29,380 --> 03:14:32,260
That order was never discovered.

2389
03:14:32,420 --> 03:14:34,720
It was never produced by the court.

2390
03:14:35,200 --> 03:14:38,040
And that was pre-order.

2391
03:14:39,420 --> 03:14:41,480
And even in the order,

2392
03:14:41,960 --> 03:14:46,100
the trial court says that the prosecutor violated

2393
03:14:46,100 --> 03:14:50,800
his own motion and limiting that the trial court ruled on.

2394
03:14:50,800 --> 03:14:57,440
and Sir, the trial court did not prohibit the state from commenting on that.

2395
03:14:57,540 --> 03:14:59,980
You're right, Sir, the oil.

2396
03:15:00,000 --> 03:15:10,820
Is rabble long. And interestingly enough, the order in Part 3 section C is dedicated to district attorney

2397
03:15:10,820 --> 03:15:19,720
Gregory W. Edward, that's the title of that section of the order. Where it goes into an elaboration

2398
03:15:19,720 --> 03:15:26,360
of the record of Mr. Edward to assert the district attorney's office, I believe, entering

2399
03:15:26,360 --> 03:15:35,120
in 1990. He became the elected district attorney in 2008. First African-American to hold the district

2400
03:15:35,120 --> 03:15:38,400
attorneys office in Tardi County.

2401
03:15:38,980 --> 03:15:43,600
Could we focus on the findings, in fact, that you think we're clearly erroneous. In other words,

2402
03:15:43,760 --> 03:15:48,020
I understand that there may be some extraneous matters that you don't think are relevant, but

2403
03:15:48,020 --> 03:15:53,340
in terms of reviewing the trial court, we're reviewing the facts which have to be clearly

2404
03:15:53,340 --> 03:15:59,080
And then, in this case, an abusive discretion standard based on those facts.

2405
03:15:59,900 --> 03:16:00,520
Yes, sir.

2406
03:16:00,840 --> 03:16:04,180
And in answering that, that's part of this.

2407
03:16:04,300 --> 03:16:11,280
This section is actually dedicated to elaborating on how experience this prosecutor is.

2408
03:16:11,580 --> 03:16:19,360
How he was recruited by the national prosecutors to train prosecutors across the country.

2409
03:16:19,360 --> 03:16:23,360
wrong is that error? No, so you're not talking about it.

2410
03:16:23,560 --> 03:16:27,160
You're on it. That's the foundation where we found

2411
03:16:27,160 --> 03:16:30,240
Mr. Edwards could not have possibly

2412
03:16:30,880 --> 03:16:33,480
have mentioned this statement

2413
03:16:33,480 --> 03:16:36,880
in closing argument, because he was so experienced,

2414
03:16:37,540 --> 03:16:40,580
so trial-prepared, such an educator.

2415
03:16:41,100 --> 03:16:45,140
I think he could have gotten it. Isn't that relevant to determining intent?

2416
03:16:45,460 --> 03:16:47,440
I mean, if you're trying to figure out

2417
03:16:47,440 --> 03:16:52,320
All these cases are pronounced on the idea that the prosecutor did something wrong to trigger

2418
03:16:52,320 --> 03:16:58,160
that is worthy of a mistraught. And I don't understand you really fighting the factor was

2419
03:16:58,160 --> 03:17:06,120
mistrial. The question is, was it a mistrial based on basically a well-intentioned overreach

2420
03:17:06,120 --> 03:17:17,420
or was it a mistrial based on, I'm trying to get a mistrial? Yes. So the issue there depends on

2421
03:17:17,420 --> 03:17:23,600
You know, it's hard on how experience the prosecutor is a very inexperienced prosecutor may

2422
03:17:23,600 --> 03:17:28,160
do something without realizing what they're doing, a very experienced prosecutor is

2423
03:17:28,160 --> 03:17:31,340
less likely to do something without realizing what they're doing.

2424
03:17:31,900 --> 03:17:32,220
Yes, you run.

2425
03:17:32,500 --> 03:17:37,620
And I think your points well taken because yes, you must review the history of the prosecutor

2426
03:17:37,620 --> 03:17:38,340
in question.

2427
03:17:38,360 --> 03:17:41,380
So why are you complaining about the court revealing it?

2428
03:17:41,420 --> 03:17:47,140
I'm not complaining about that, you're on the bottom line of me even speaking about

2429
03:17:47,140 --> 03:17:53,540
this is there is now one recorded history in the long career of Mr. Edwards, that he has ever

2430
03:17:53,540 --> 03:17:56,400
got it and he won't ever been accused of going in any.

2431
03:17:56,400 --> 03:17:59,280
You're trying to look at the order and see what's wrong with it. You're spending some time

2432
03:17:59,280 --> 03:18:04,500
on the fact that he's experienced, you can see that experience has relevant. What else about the

2433
03:18:04,500 --> 03:18:15,360
order is error that we can put our hat on, hang our hat on to. You're on a, I will, I will start

2434
03:18:15,360 --> 03:18:16,160
with two points.

2435
03:18:16,220 --> 03:18:25,300
One being the fact that the trial court misstates the facts, Mr. Edwards did not violate

2436
03:18:25,300 --> 03:18:26,220
an order of the court.

2437
03:18:26,260 --> 03:18:27,220
That's the first thing.

2438
03:18:27,340 --> 03:18:31,200
And you're saying that, or it never happened, or that order is not in the record.

2439
03:18:32,040 --> 03:18:33,300
That order is not in the record.

2440
03:18:33,420 --> 03:18:34,300
It never happened.

2441
03:18:34,980 --> 03:18:42,100
It was a motion and limoniser, and out of that motion and limoniser, which was, in essence,

2442
03:18:42,100 --> 03:18:50,200
Mr. Edwin's had asked a trial court to restrict both defense and prosecution from mentioning

2443
03:18:50,960 --> 03:18:53,540
this individual to make a quarter.

2444
03:18:54,300 --> 03:18:57,440
That was the individual who did not testify as a witness.

2445
03:18:57,640 --> 03:19:03,560
So we have case law saying that a mistrial may be appropriate even when there's been no order

2446
03:19:03,560 --> 03:19:05,380
prohibiting the argument that's made.

2447
03:19:06,360 --> 03:19:08,900
So why does it matter whether the order was made?

2448
03:19:08,900 --> 03:19:14,020
Because, you runner, it was the foundation of not only, it's private.

2449
03:19:14,080 --> 03:19:15,980
I get that the judge says there was an order.

2450
03:19:16,180 --> 03:19:18,440
So it may be that the judge was wrong about that.

2451
03:19:19,140 --> 03:19:21,800
But let's say that there was no order.

2452
03:19:22,180 --> 03:19:28,160
If there was no order, does that make the remarks that were objected to during closing proper?

2453
03:19:32,610 --> 03:19:38,510
If you're not saying that the granting of the mistrial itself was error,

2454
03:19:39,370 --> 03:19:41,970
Then the only issue left is intent.

2455
03:19:43,050 --> 03:19:46,890
Yes, and sir, this Court has said,

2456
03:19:47,650 --> 03:19:52,610
it's not a question of how it reaches the conduct of a prosecutor is.

2457
03:19:52,870 --> 03:19:54,270
It is its intent.

2458
03:19:54,850 --> 03:19:59,810
And what is his intent to go the defense into asking for a

2459
03:19:59,810 --> 03:20:05,850
mistrial or to circumvent a constitutional protection against

2460
03:20:05,850 --> 03:20:13,490
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.

2461
03:20:15,050 --> 03:20:17,870
What about that factual finding about intent?

2462
03:20:18,910 --> 03:20:20,670
How could what about Ronius?

2463
03:20:21,430 --> 03:20:29,190
You're under to analyze that one would have to say, what precipitated this comment by the prosecutor?

2464
03:20:29,530 --> 03:20:30,550
That's what I'm saying.

2465
03:20:30,550 --> 03:20:30,890
Okay.

2466
03:20:31,510 --> 03:20:40,350
The act that precipitated the comment of the prosecutor was a comment by defense on words to

2467
03:20:40,350 --> 03:20:46,810
be effect and acted put them directly, but they were in tune with, I wonder what this

2468
03:20:46,810 --> 03:20:52,910
misporter would have said, and would have told us, basically why wasn't she presented

2469
03:20:52,910 --> 03:20:54,830
by the prosecutor.

2470
03:20:54,830 --> 03:21:03,330
This court in Powell said that prosecutors have the right to re-fix the scale.

2471
03:21:03,470 --> 03:21:05,110
Well, they can re-fix it.

2472
03:21:05,110 --> 03:21:10,390
It would have been proper in response potentially to say, what would she have said?

2473
03:21:10,930 --> 03:21:16,710
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.

2474
03:21:16,950 --> 03:21:22,970
What you can't do is say in response to what would she have said, I'll tell you what you would have said.

2475
03:21:22,970 --> 03:21:26,010
I'll give you all the evidence I feel like that you would have said.

2476
03:21:26,510 --> 03:21:33,450
I mean, there's no question at all that is not a proper response to a question of what

2477
03:21:33,450 --> 03:21:38,430
would the missing witness have said to tell the jury what you assert the missing witness

2478
03:21:38,430 --> 03:21:39,170
would have said?

2479
03:21:41,230 --> 03:21:43,430
I mean, that's just flat out not allowed.

2480
03:21:44,450 --> 03:21:48,350
You're on a may I comment on that because I would like to.

2481
03:21:48,350 --> 03:21:50,130
Well, that's why you're here.

2482
03:21:50,130 --> 03:21:54,470
Right, my question is you, are you saying that that was a proper response?

2483
03:21:56,290 --> 03:21:58,690
I'm not saying that was a proper response.

2484
03:21:58,890 --> 03:22:04,630
I'm saying was that a prejudicial response to the degree that it would trigger a

2485
03:22:04,630 --> 03:22:09,450
mistrial and a double jeopardy that would bar a retrial.

2486
03:22:10,090 --> 03:22:11,810
And the answer is this.

2487
03:22:11,830 --> 03:22:16,190
The comment was made about a witness that was not the defendant.

2488
03:22:16,190 --> 03:22:26,230
The comment was not made contemporaneous with an act of murder, it involved an incident post-murder

2489
03:22:26,230 --> 03:22:31,190
that did not implicate on its face, the defendant.

2490
03:22:31,590 --> 03:22:33,810
It wasn't no prejudice against the defendant.

2491
03:22:34,130 --> 03:22:36,070
That's what I'm saying to the court.

2492
03:22:36,970 --> 03:22:39,410
And when you then say, well, you know what?

2493
03:22:39,570 --> 03:22:40,630
It did prejudice.

2494
03:22:40,630 --> 03:22:43,450
So who gets to make that determination in the first instance?

2495
03:22:44,290 --> 03:22:47,810
Who gets to make that determination in the first instance?

2496
03:22:49,230 --> 03:22:50,150
The trial courts.

2497
03:22:50,610 --> 03:22:53,630
And they made a determination contrary to your argument.

2498
03:22:54,410 --> 03:22:58,430
And we review that determination for abusive discretion,

2499
03:22:58,510 --> 03:23:01,950
and we review the factual pieces for clear error, right?

2500
03:23:02,390 --> 03:23:03,050
Yes, sir.

2501
03:23:03,690 --> 03:23:06,310
So while you may make a persuasive argument,

2502
03:23:06,310 --> 03:23:12,570
The trial judge who sat there and heard the trial and heard all of the witnesses that did testify

2503
03:23:13,230 --> 03:23:20,950
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.

2504
03:23:21,730 --> 03:23:24,670
Thank you for bringing that up, sir. And let me respond to that.

2505
03:23:25,050 --> 03:23:35,930
Because the initial response of the trial court was Mr. Edwards made a reasonable inference based on the testimony of Sadie Briss.

2506
03:23:35,930 --> 03:23:42,390
the witness. The trial court says that it's in the record. He agreed with Mr. Edwards.

2507
03:23:42,410 --> 03:23:49,990
It was a reasonable inference. And this court has repeatedly championed the idea that

2508
03:23:49,990 --> 03:23:57,530
the process should be initially said, but that's not what he ruled. Sir, when a trial court

2509
03:23:57,530 --> 03:24:04,750
makes a rule, when a trial court says, I find there was reasonable inference, and he does this

2510
03:24:04,750 --> 03:24:09,290
go to the conversation you had with the presiding justice whether it was a reasonable

2511
03:24:09,290 --> 03:24:17,210
inference or not it was an improper argument you're on a whether it was proper or not

2512
03:24:17,760 --> 03:24:25,280
it was an invited response from the defense now we might call it many names we might call it

2513
03:24:25,280 --> 03:24:33,540
egregious we might call it that's unacceptable but do we call it an intentional goody do we call

2514
03:24:33,540 --> 03:24:42,120
answer, and do we call it that when we say the facts, say first, first he violated in order

2515
03:24:42,120 --> 03:24:48,500
of the court. It is this fascinating effect that says based on the circumstances and the

2516
03:24:48,500 --> 03:24:54,020
evidence and the law and the evidence as I find it and the evidence is found in facts, there

2517
03:24:54,020 --> 03:24:59,420
is no fact of the violation. The order, I mean I don't know if there was an order. There was

2518
03:24:59,420 --> 03:25:05,860
representation made by the district attorney to the court about what he would argue in closing,

2519
03:25:06,560 --> 03:25:12,260
right? He told the court after the colloquy about the motion in Liminae. He made a representation

2520
03:25:12,260 --> 03:25:17,840
that I am not going to motion in Liminae if the court is going to allow it to the extent they

2521
03:25:17,840 --> 03:25:26,820
had discussed and he would adjust his argument. And then he claims that it was an invited response,

2522
03:25:26,820 --> 03:25:32,580
But when you tell the court, I'm not going to do it other than what you said I could do,

2523
03:25:32,740 --> 03:25:37,940
which was I can say that the charges against her have been resolved and we had planned to testify.

2524
03:25:40,000 --> 03:25:45,280
Even if you think maybe something has changed, can you just say, well, I made that representation,

2525
03:25:45,720 --> 03:25:50,060
but now I don't feel like it because I was invited to do something else.

2526
03:25:50,560 --> 03:25:53,280
Just enough you call it an order, but.

2527
03:25:53,280 --> 03:25:59,860
Sir, I consider every word of direction out of the mouth of a trial court judge in order.

2528
03:26:00,480 --> 03:26:04,100
We have a trial court judge who says it was a reasonable inference.

2529
03:26:04,440 --> 03:26:09,960
We have a trial court judge if you look at the record who is setting that trial for the following week.

2530
03:26:10,340 --> 03:26:18,240
But for a motion by defense and clean bar for double jeopardy in this missile of the charges,

2531
03:26:18,240 --> 03:26:20,400
I get all that, sir.

2532
03:26:20,740 --> 03:26:25,060
What I'm saying is this, we have a trial court that said,

2533
03:26:25,400 --> 03:26:29,500
one thing closest to proximity of the trial and the events

2534
03:26:29,500 --> 03:26:31,100
in recalling those events.

2535
03:26:31,900 --> 03:26:36,120
And months later, months later, issued in order

2536
03:26:36,120 --> 03:26:39,840
that was extensive and nevertheless left out

2537
03:26:39,840 --> 03:26:43,260
a few details and facts, actually added facts

2538
03:26:43,260 --> 03:26:44,500
that were not in the record.

2539
03:26:44,880 --> 03:26:47,220
And that's why I started off with this order

2540
03:26:47,220 --> 03:26:49,340
that is non-existent.

2541
03:26:49,660 --> 03:26:54,540
Other than the experience of the district attorney, are there any other facts that were added that

2542
03:26:54,540 --> 03:26:55,360
are not in the record?

2543
03:26:56,500 --> 03:26:58,420
You run their, there are.

2544
03:26:59,320 --> 03:27:03,380
And I would say there's a fact of omission in the record.

2545
03:27:04,020 --> 03:27:12,080
And we read in this record that the, in the order rather that this district attorney somehow,

2546
03:27:17,030 --> 03:27:23,520
somehow argued this matter and kept

2547
03:27:29,500 --> 03:27:30,060
in the case.

2548
03:27:31,120 --> 03:27:34,780
This is what this case I think is about.

2549
03:27:35,180 --> 03:27:37,660
When I get up and I do a closing argument,

2550
03:27:38,200 --> 03:27:42,340
and I quote somebody like Edmund Burke and say that,

2551
03:27:42,340 --> 03:27:45,080
you know, all that is necessary for evil,

2552
03:27:45,200 --> 03:27:47,640
the triumph is for good men to do nothing.

2553
03:27:48,640 --> 03:27:52,220
And my injecting is something prejudicial to the defense.

2554
03:27:52,360 --> 03:27:53,760
No, because it's not evidence.

2555
03:27:54,200 --> 03:27:55,040
No, sir.

2556
03:27:55,280 --> 03:27:59,960
But if I make a statement that does not involve the defendants,

2557
03:28:00,180 --> 03:28:01,020
if I make a statement that does not involve the defendants,

2558
03:28:01,020 --> 03:28:02,220
if I make a statement that does not involve security.

2559
03:28:02,420 --> 03:28:05,640
You can't say what witnesses who never appear to trial

2560
03:28:05,640 --> 03:28:07,020
would have testified to.

2561
03:28:07,200 --> 03:28:08,540
You can't ever say that.

2562
03:28:08,740 --> 03:28:09,760
You can't say it in opening.

2563
03:28:09,840 --> 03:28:10,820
You can't say it in closing.

2564
03:28:10,920 --> 03:28:12,180
You can't say it anywhere.

2565
03:28:12,860 --> 03:28:15,980
It's not evidence to say things that some people who are not

2566
03:28:15,980 --> 03:28:17,320
trial said.

2567
03:28:19,700 --> 03:28:22,540
The district attorney testified on the hearing on the

2568
03:28:22,540 --> 03:28:23,540
plea and bar, right?

2569
03:28:24,020 --> 03:28:24,480
Yes, sir.

2570
03:28:24,520 --> 03:28:28,380
I mean, looking at this record, personally, if I were the

2571
03:28:28,380 --> 03:28:31,220
trial judge, I can understand why I would have said, now this

2572
03:28:31,220 --> 03:28:33,680
maybe this was bad, that I wouldn't grant.

2573
03:28:34,400 --> 03:28:37,920
I've made me not grant a mistravel, maybe I wouldn't allow

2574
03:28:38,480 --> 03:28:39,960
bar a second trial.

2575
03:28:40,640 --> 03:28:44,600
But when I, I'm not that trial judge, I saw, if the trial judge

2576
03:28:44,600 --> 03:28:48,220
He's the witness say I didn't intend to go to him into it.

2577
03:28:48,240 --> 03:28:52,100
And the trial judge doesn't believe that and says I think you did.

2578
03:28:52,780 --> 03:28:54,840
How can we reverse that?

2579
03:28:55,560 --> 03:28:59,480
Just say one fact of seeing the person who's

2580
03:28:59,480 --> 03:29:03,200
intent your evaluating, testify about it.

2581
03:29:03,980 --> 03:29:06,940
You may I respond to this question.

2582
03:29:07,800 --> 03:29:13,120
Sir, there is going with the intent for this trial.

2583
03:29:14,880 --> 03:29:24,080
The normal juxtaposition between defense and prosecutor that is barbs and perhaps we could

2584
03:29:24,080 --> 03:29:30,120
call go to it, but it is not an amount, not an amount to a subversion of a constitutional

2585
03:29:30,120 --> 03:29:38,420
right, nor to grab a experienced defense counsel and say, you know what, I go to you

2586
03:29:38,420 --> 03:29:40,440
and doing this because my experience.

2587
03:29:41,240 --> 03:29:42,800
Thank you for hearing.

2588
03:29:43,500 --> 03:29:46,640
Thank you, Councillor Strisco.

2589
03:29:48,420 --> 03:29:49,360
Mayor, please court.

2590
03:29:49,620 --> 03:29:49,980
Good afternoon.

2591
03:29:51,460 --> 03:29:53,180
On behalf of Apple,

2592
03:29:53,900 --> 03:29:57,180
my prayers direct and I respectfully request that this court

2593
03:29:57,180 --> 03:29:58,360
affond the law courts.

2594
03:30:00,140 --> 03:30:09,200
Granting our motion to dismiss plea and bar. I want to first start with what an order is.

2595
03:30:09,560 --> 03:30:16,820
An order is simply defined as an authoritative command direction or instruction issued by one and authority.

2596
03:30:16,820 --> 03:30:22,100
trial judges issue orders all the time when they tell us we're going to

2597
03:30:22,100 --> 03:30:27,620
adjourn for today be back at 9 a.m. to commence court that is an order it's

2598
03:30:27,620 --> 03:30:32,600
not reduced to writing in most times and this particular case right before

2599
03:30:32,600 --> 03:30:36,940
closing arguments began the district attorney made a motion in

2600
03:30:36,940 --> 03:30:42,080
eliminate and in that motion in eliminate he sought to preclude any mention of

2601
03:30:42,080 --> 03:30:43,760
of Tamika Porter.

2602
03:30:44,120 --> 03:30:47,080
Now what's pertinent about Tamika Porter is not that just

2603
03:30:47,080 --> 03:30:49,880
that she was a witness who didn't testify.

2604
03:30:50,460 --> 03:30:55,320
She was a codependent, whose charges had already been resolved,

2605
03:30:55,880 --> 03:30:58,360
who they chose not to call to testify.

2606
03:30:59,140 --> 03:31:01,840
My client went to trial solo.

2607
03:31:02,260 --> 03:31:05,740
He had two codependents, Sade Britt,

2608
03:31:05,880 --> 03:31:08,940
who was arguably the star witness, and her brother,

2609
03:31:08,940 --> 03:31:14,420
But Dwayne Brit, who was also a codependent, both of them had charges that had already been

2610
03:31:14,420 --> 03:31:15,640
resolved against them.

2611
03:31:16,500 --> 03:31:23,440
The bulk of the evidence, actually all of the testimony, in the case that related to my

2612
03:31:23,440 --> 03:31:29,060
client's alleged involvement, came from those two witnesses, Sudde Brit and Dwayne Brit.

2613
03:31:29,820 --> 03:31:36,200
And after extensive cross-examination of both of them on the stand, it was worn out that

2614
03:31:36,200 --> 03:31:38,260
their statements didn't even match up with each other.

2615
03:31:38,260 --> 03:31:41,700
that information came out when we had the hearing on the motion from

2616
03:31:41,700 --> 03:31:46,200
neutral when Mr. Ed was actually testified, and I took him through several instances

2617
03:31:46,200 --> 03:31:51,100
during the trial where the testimony of those two codependents didn't match up.

2618
03:31:51,720 --> 03:31:59,920
I bring that to the court's intention for that reason. That's why it was so harmful for

2619
03:31:59,920 --> 03:32:05,940
the state to bring and to make a porter's statement, what she would have said, because

2620
03:32:05,940 --> 03:32:11,220
what she would have said would have been corroboration to what one of the codependents who

2621
03:32:11,220 --> 03:32:12,760
did testify say.

2622
03:32:16,100 --> 03:32:20,360
It was an order issued by the trial court when the court made the determination,

2623
03:32:21,420 --> 03:32:31,970
even after Mr. It was withdrew his motion and eliminate. The court had already said it wouldn't

2624
03:32:31,970 --> 03:32:36,190
be proper to talk about it since that's not an evidence. He was actually talking about discussions

2625
03:32:36,190 --> 03:32:41,490
regarding any plea deals that were made. I responded to the court, well, I should be able to talk

2626
03:32:41,490 --> 03:32:46,490
about to make a porter because he mentioned her and closed in opening statements, but chose

2627
03:32:46,490 --> 03:32:52,590
not to call her. And Judge Lockett, the trial court said, if he said that in opening, you can refer

2628
03:32:52,590 --> 03:32:58,850
back to what was sitting opening. And in my closing argument, that's all I did. That is all I did.

2629
03:32:59,950 --> 03:33:04,810
There were a number of witnesses that the state didn't call. One of them was to make a porter.

2630
03:33:04,810 --> 03:33:08,150
I wonder what she would have said, and that was the extent of it.

2631
03:33:08,630 --> 03:33:13,650
The problem is, when the district attorney got up, instead of him just saying, well, we made

2632
03:33:13,650 --> 03:33:17,410
our decision, a tactical decision not to call Ms. Porter.

2633
03:33:17,730 --> 03:33:23,290
He went so far as to say, and we didn't need her anyway, because all she would have said

2634
03:33:23,290 --> 03:33:28,390
is that she went out and cleaned up the car, and he didn't say it, not one.

2635
03:33:28,390 --> 03:33:35,070
And also, in referencing what I think you represent as a verbal order, I thought I heard

2636
03:33:35,070 --> 03:33:39,290
you say he was talking about discussions about plea.

2637
03:33:40,010 --> 03:33:41,810
Well, that's what the trial.

2638
03:33:42,010 --> 03:33:48,250
Where in the record is the order from the trial verbal or written that said you are not

2639
03:33:48,250 --> 03:33:53,970
to talk about misporter beyond the reference from opening argument?

2640
03:33:53,970 --> 03:33:58,170
He doesn't say it like that. He just agreed with my assessment.

2641
03:33:59,270 --> 03:34:07,010
If he based his order on a factual finding that there was an order prohibiting this discussion,

2642
03:34:07,630 --> 03:34:14,290
or a standing order, in order that predated the closing argument, would that be an erroneous

2643
03:34:14,290 --> 03:34:21,530
fact finding? No, you're on it because he based the decision on the culmination of everything

2644
03:34:21,530 --> 03:34:27,270
that had come in. I should have став it with the first order made with regard to the

2645
03:34:27,270 --> 03:34:32,250
an invisibility of any reference to Tomica Porter and what she would have said would

2646
03:34:32,250 --> 03:34:37,370
have been, when they had the investigating officer on the Stanton. She pounds.

2647
03:34:38,110 --> 03:34:45,270
Mr. Ed was asked her, did you have your discussion with any witnesses? She responded?

2648
03:34:45,870 --> 03:34:47,870
Yes. Did you speak with Tomica Porter?

2649
03:34:47,870 --> 03:34:55,030
But she responded, yes, he then asked, what did to make a port, it's hell you relative to who was involved.

2650
03:34:55,610 --> 03:34:58,070
At that time, I interposed an objection.

2651
03:34:58,690 --> 03:35:02,310
We approached and I explained to the judge that was innermissible hearsay.

2652
03:35:02,810 --> 03:35:08,730
He's trying to elicit evidence about what to make a port as said, and he is not called her as a witness.

2653
03:35:09,330 --> 03:35:13,390
The court inquired with Mr. At was, if that's what he was planning to do.

2654
03:35:13,970 --> 03:35:16,670
He was, he's, and actually what he said was,

2655
03:35:16,670 --> 03:35:19,650
At this point, I haven't decided if I'm going to call her as a witness.

2656
03:35:20,190 --> 03:35:23,850
The court sustained my objection because it was in municipal hearsay.

2657
03:35:24,030 --> 03:35:25,490
So that was the first order.

2658
03:35:26,090 --> 03:35:30,210
You can't talk about her because you chose not to call her as a witness.

2659
03:35:31,070 --> 03:35:38,170
The second time it came up was when they were in the process of playing a statement made by

2660
03:35:38,170 --> 03:35:38,910
Sadebred.

2661
03:35:40,150 --> 03:35:44,610
I knew that that may be some reference to Jamaica Porter and what she said.

2662
03:35:44,610 --> 03:35:50,810
So outside the presence of the jury, I explained to the court that I did not want any information

2663
03:35:50,810 --> 03:35:55,170
to inadvertently be played for the jury, where you referenced what to make a port of

2664
03:35:55,170 --> 03:35:58,070
say it when she's not going to be called as a witness.

2665
03:35:58,730 --> 03:36:03,690
So outside the presence of the jury, we listen to the tape for about 20 minutes to make sure

2666
03:36:03,690 --> 03:36:06,510
that there was no mention of what to make a port of say it.

2667
03:36:06,630 --> 03:36:08,290
So that was the second time.

2668
03:36:08,790 --> 03:36:13,990
Then we have the third time, the motion and limity, when he made the motion and when I say

2669
03:36:13,990 --> 03:36:19,750
he missed it. It was a disciplinary. He made the motion to preclude me from making any mention

2670
03:36:19,750 --> 03:36:25,470
of to make a porter and what she would have said. Now, the reason is because the entirety

2671
03:36:25,470 --> 03:36:31,190
of to make a porter statement would have been harmful to the state. Not only would to make a

2672
03:36:31,190 --> 03:36:36,950
porter have said, well, I went over there and I cleaned up the car, but I also, when I talked

2673
03:36:36,950 --> 03:36:42,630
to Saturday, Brett, she admitted to me that she shot him in the back of the head twice. So that

2674
03:36:42,630 --> 03:36:45,430
the reason the state did not want to put her on the state.

2675
03:36:45,630 --> 03:36:47,970
What is the record evidence of that?

2676
03:36:48,010 --> 03:36:48,450
Of what?

2677
03:36:48,510 --> 03:36:51,050
That's what Mrs. Porter would have testified to.

2678
03:36:52,410 --> 03:36:57,310
In the motion for neutral right after I made the motion,

2679
03:37:04,860 --> 03:37:08,420
this would have been in the argument right after.

2680
03:37:10,120 --> 03:37:15,860
The objection was made after the closing after the improper statement was made in the closing argument.

2681
03:37:17,580 --> 03:37:21,420
I apologize, I don't have that reference with me right now, but it was in the discussion

2682
03:37:21,420 --> 03:37:24,900
that was had outside the presence of the jury with me.

2683
03:37:24,900 --> 03:37:27,800
The record evidence of what Ms. Porter would have said.

2684
03:37:27,900 --> 03:37:32,040
I mean, your representations to the judge is not evidence of what Ms. Porter would have

2685
03:37:32,040 --> 03:37:32,360
said.

2686
03:37:32,880 --> 03:37:35,480
Well, Ms. State, I was acknowledged it as well.

2687
03:37:35,540 --> 03:37:36,600
There is no evidence.

2688
03:37:36,960 --> 03:37:37,360
Now, it was nothing.

2689
03:37:37,440 --> 03:37:44,760
Put in the record, I believe there was a transcript of the allocation of her statement that

2690
03:37:44,760 --> 03:37:45,600
was made at some point.

2691
03:37:45,600 --> 03:37:48,720
that transcript in the record, it should have been made part of the record.

2692
03:37:53,160 --> 03:37:54,920
But the problem

2693
03:37:54,920 --> 03:37:59,680
and the reason I brought that up is to demonstrate why it was so harmful for Mr.

2694
03:37:59,760 --> 03:38:06,200
Ed was to point out one part of Mr. Porter's statement, but not the entirety of the statement.

2695
03:38:07,080 --> 03:38:19,020
With regard to him responding as an invited response, the state side's power versus the state

2696
03:38:19,020 --> 03:38:25,020
291 Georgia Peel 743, that case can be distinguished from this case and the power case

2697
03:38:25,460 --> 03:38:30,680
that was brought up on an ineffective assistance of council claim, but what happened in that

2698
03:38:30,680 --> 03:38:35,560
was an improper argument most first made by the defense attorney.

2699
03:38:36,200 --> 03:38:38,480
And in response to that improper argument,

2700
03:38:38,960 --> 03:38:41,520
the state also made an improper argument.

2701
03:38:41,920 --> 03:38:45,600
There was no improper argument made on behalf of Apple Lee

2702
03:38:45,600 --> 03:38:47,500
at the trial court whatsoever.

2703
03:38:48,160 --> 03:38:50,420
In fact, it was one sentence.

2704
03:38:50,940 --> 03:38:53,620
I wonder what she would have said, and I moved on.

2705
03:38:56,800 --> 03:38:59,540
The opponents' contention that the court made it clear

2706
03:38:59,540 --> 03:39:03,540
that the comments made during the state's closing were a reasonable

2707
03:39:03,540 --> 03:39:06,580
inference is not entirely accurate.

2708
03:39:08,700 --> 03:39:15,400
The court went on to say, what he actually said was, well, I agree with both of you.

2709
03:39:15,800 --> 03:39:19,700
It is a reasonable inference that can be drawn from the evidence based upon

2710
03:39:19,700 --> 03:39:21,180
what Saudi ratestified.

2711
03:39:21,980 --> 03:39:29,520
However, it misleads the jury to suggest that that is what

2712
03:39:29,520 --> 03:39:34,680
to fight in the trial. And so while it is certainly appropriate to attribute that information

2713
03:39:34,680 --> 03:39:39,620
to Saudi, it cannot be presented in such a way as to confuse the jury into thinking

2714
03:39:39,620 --> 03:39:43,580
that the jury can consider it as if to make a porter had testified to herself.

2715
03:39:44,140 --> 03:39:52,520
Now one of the reasons I made a big production about Mr. It was experience is for that reason.

2716
03:39:52,760 --> 03:39:58,040
If he had been a new prosecutor and had gotten caught up in the moment, then perhaps

2717
03:39:58,040 --> 03:39:59,960
something could have slipped out.

2718
03:40:00,420 --> 03:40:05,440
But on at least two separate times during the course of the trial, I objected, so he knew very

2719
03:40:05,440 --> 03:40:09,560
well that the last thing I wanted was so that you're ready to ever hear anything about

2720
03:40:09,560 --> 03:40:10,280
to make a porter.

2721
03:40:11,480 --> 03:40:18,520
My position was always that my client was not there, and that the two-to-co defendants who actually

2722
03:40:18,520 --> 03:40:24,480
testified and to make a porter who did not testify actually committed the crime and my client

2723
03:40:24,480 --> 03:40:26,200
just got sucked into it.

2724
03:40:26,200 --> 03:40:32,200
And I actually had a pretty good thing going up until closing arguments when that came out.

2725
03:40:32,540 --> 03:40:39,060
And quite honestly, I contemplated whether I should just go on and see what happens because, you know,

2726
03:40:39,140 --> 03:40:44,440
if you're at the trial court, you have a good feel for how things are going because we knew there was no corroboration

2727
03:40:44,440 --> 03:40:49,320
of anything in the code of NSF to say it, there was no physical evidence to tell my client to the crime.

2728
03:40:50,480 --> 03:40:56,120
But I'm new based on everything that I had gone through through the trial to try to prevent

2729
03:40:56,120 --> 03:41:00,560
that innocent evidence from coming in, that I would have been remissing my duties

2730
03:41:00,560 --> 03:41:04,240
on representing my client if I did not request a mistrial.

2731
03:41:05,060 --> 03:41:12,280
The court's decision, in this case, was far from an abusive discretion.

2732
03:41:12,280 --> 03:41:15,640
Can I ask you a question about the court's order?

2733
03:41:16,180 --> 03:41:19,980
Did the court draft this order from scratch or did the parties

2734
03:41:19,980 --> 03:41:22,120
did you submit a proposed order?

2735
03:41:22,780 --> 03:41:25,040
No, the court submitted it at that time.

2736
03:41:25,440 --> 03:41:27,720
OK, because it's pretty strongly worded

2737
03:41:28,540 --> 03:41:30,620
for a trial judge.

2738
03:41:32,060 --> 03:41:34,660
Now, there were some aspects.

2739
03:41:35,180 --> 03:41:41,120
We both had to submit briefs after we had the hearing on the most.

2740
03:41:41,120 --> 03:41:43,420
But you didn't actually submit proposed orders.

2741
03:41:43,640 --> 03:41:52,260
No, and we, I believe we waited for about 60 days, and we finally received it, and 27 pages is a lot.

2742
03:41:55,590 --> 03:42:00,090
There's more than ample evidence in the record to support the trial course determination

2743
03:42:00,090 --> 03:42:04,830
that the con, meant that was made, was made with the intent to go to me and to move

2744
03:42:04,830 --> 03:42:05,990
and form this trial.

2745
03:42:05,990 --> 03:42:13,150
In his pursuit of justice, the state is also bound by the rules, the rules that we all have to follow.

2746
03:42:15,680 --> 03:42:18,640
Even when we had the hearing,

2747
03:42:21,010 --> 03:42:25,350
Mr. Airwood still would not concede that this was inimitable here say.

2748
03:42:26,990 --> 03:42:31,330
He still would not concede that something wrong had occurred.

2749
03:42:31,330 --> 03:42:39,710
In fact, he gave several different explanations to try to justify what it occurred.

2750
03:42:41,070 --> 03:42:45,390
He first said, I think that it is clear in the indictment that she was part of the clean-up.

2751
03:42:45,850 --> 03:42:48,570
And that is actually in the indictment as an overact.

2752
03:42:49,270 --> 03:42:51,550
That was part of Saudi Bridge testimony.

2753
03:42:52,110 --> 03:42:55,310
That is a reasonable inference from what came out of the testimony.

2754
03:43:00,310 --> 03:43:03,530
So I really didn't even say anything that was presidential.

2755
03:43:04,550 --> 03:43:07,170
I guess I certainly didn't intend to say anything

2756
03:43:07,170 --> 03:43:09,350
with the intent to inject any of the testimony.

2757
03:43:10,470 --> 03:43:12,630
And certainly again, the state stands on the notion

2758
03:43:12,630 --> 03:43:16,850
that this was a reasonable inference and that anything that was already

2759
03:43:16,850 --> 03:43:18,290
out with the indictment.

2760
03:43:18,410 --> 03:43:23,710
Lastly, they now assert that it was permissible as an invited response

2761
03:43:23,710 --> 03:43:26,410
or using the invited reply doctrine.

2762
03:43:29,350 --> 03:43:31,550
It's clear, it was an emissible hearsay.

2763
03:43:32,410 --> 03:43:35,430
He knew with his 30-plus years of experience,

2764
03:43:35,930 --> 03:43:38,650
and his years of experience trying cases against me

2765
03:43:38,650 --> 03:43:41,350
that if I already objected twice during the course of the case,

2766
03:43:41,590 --> 03:43:44,610
then certainly I'm going to object in closing arguments

2767
03:43:44,610 --> 03:43:49,030
and given the fact that this was a murder case.

2768
03:43:49,630 --> 03:43:59,630
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.

2769
03:44:00,370 --> 03:44:05,690
It would have been different if the rules were as there were several years ago when the defendant had the final word.

2770
03:44:06,310 --> 03:44:12,210
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.

2771
03:44:12,210 --> 03:44:15,890
I would have been talking about immiscible evidence.

2772
03:44:16,730 --> 03:44:25,750
We was in it to this honor record that the trial courts, 27 page order,

2773
03:44:32,430 --> 03:44:33,230
made specific

2774
03:44:33,230 --> 03:44:39,570
findings and determined that the district attorney acted with specific and deliberate intent

2775
03:44:39,570 --> 03:44:46,790
to subvert the protections afforded by the double jeopardy clause by goating me into moving

2776
03:44:47,850 --> 03:44:58,850
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.

2777
03:45:00,000 --> 03:45:06,640
Social evidence is conclusion concerning the intent of the prosecutor is not clearly around us.

2778
03:45:07,260 --> 03:45:11,360
We respectfully request that the trial court's decision be affirmed.

2779
03:45:12,260 --> 03:45:13,160
Thank you.

2780
03:45:14,750 --> 03:45:20,170
Thank you, Mr. Striscoble. You all time is expired. This court will be adjourned.

2781
03:45:20,410 --> 03:45:20,830
Thank you.