Jenkins v. State

Fletcher, Presiding Justice,

dissenting.

1.1 dissent to divisions 6 and 17 because I conclude that requiring a capital defendant to prove mental retardation beyond a reasonable doubt in the guilt-innocence phase is fundamentally unfair and I would hold that the issue should be resolved in a pre-trial hearing with “preponderance of the evidence” as the burden of proof.

(a) The question in this case is whether “procedures for guaranteeing a fundamental constitutional right are sufficiently protective of that right.”⁹ This Court has previously held that subjecting a mentally retarded defendant to the death penalty offends the prohibition in the Georgia Constitution against cruel and unusual punishment.¹⁰ A right rooted in our state constitution and protected by statute¹¹ is certainly “fundamental.”¹² Jenkins argues that using “beyond a reasonable doubt” as the burden of proof to establish mental retardation fails to protect this right. Although Mosher v. State¹³ addresses this issue, further analysis convinces me that we decided this issue incorrectly in that case. In order to determine whether a procedural rule governing a fundamental constitutional right sufficiently protects that right, we must look at the historical¹⁴ and contemporary practice,¹⁵ as well as whether the operation of the rule demonstrates “fundamental fairness.”¹⁶

Because the classification of mental retardation is a modern concept, there can be no precision in determining the historical procedural burden. The common law idea most closely related to mental retardation is “idiocy.”¹⁷ That concept also encompasses the distinct issues of insanity and competency to stand trial that courts employ today.¹⁸ In Cooper v. Oklahoma,¹⁹ the United States Supreme Court concluded that historically the procedural burden for determining competency to stand trial was a preponderance of the evidence. That Court, in another case, noted that historically the defendant was required to prove insanity “clearly,” but that some courts construed this as a reasonable doubt standard and others as a preponderance of the evidence standard.²⁰ The historical analysis, therefore, leads to no certain conclusions.

A review of contemporary practice, however, provides more guidance. Currently 11 states plus the federal government expressly prohibit the execution of the mentally retarded.²¹ None of the other jurisdictions that prohibit the execution of the mentally retarded require proof beyond a reasonable doubt as does Georgia.²² Only two jurisdictions require proof by any standard higher than a preponderance of the evidence.²³ Another significant difference between Georgia’s procedure and that of other jurisdictions is that Georgia places this highest standard on the defendant in the guilt-innocence phase.²⁴

The fact that other jurisdictions almost uniformly use a standard significantly more protective of defendant’s rights strongly supports the conclusion that Georgia’s reasonable doubt standard is unconstitutional. As the United States Supreme Court noted in Cooper, “[t]he near-uniform application of a standard that is more protective of the defendant’s rights . . . supports our conclusion that the heightened standard offends a principle of justice that is deeply ‘rooted in the traditions and conscience of our people.’ ”²⁵

The final consideration is whether the operation of the rule demonstrates “fundamental fairness.”²⁶ In making this determination we must balance the interests of the state and defendant,²⁷ recognizing that the burden of proof “indicated] the relative importance attached to the ultimate decision.”²⁸ The consequences of an erroneous decision for the defendant are obvious and critical. On the other hand, an incorrect decision in no way frustrates the state’s interest in enforcing its criminal laws or in punishing violators of those laws;²⁹ at most, the state will not be able to exact the ultimate punishment. Furthermore, the risk of a wrong decision through the defendant’s feigning mental retardation does not justify resort to the highest burden of proof. To establish mental retardation, a defendant must produce expert evidence of significant subaverage intellectual functioning, as well as evidence that the subaverage functioning results in or is associated with impairments in adaptive behavior and that the behavior impairment manifested during the developmental period.³⁰ Georgia’s narrow definition of mental retardation, the requirement of expert testimony, and the fact that the defendant bears the burden on the issue is sufficient to protect the state’s interest in preventing malingerers from feigning mental retardation.

These considerations convince me that the beyond a reasonable doubt standard is fundamentally unfair, and, consistent with the majority of states that also prohibit execution of the mentally retarded, I would require the defendant to meet his burden by a preponderance of the evidence.

Leland v. Oregon,³¹ which upheld requiring the defendant to prove insanity beyond a reasonable doubt, does not require a different result. Insanity, if proved, would relieve the defendant of criminal responsibility for his act.³² Thus, the state’s interest in punishing criminal law violations would be frustrated entirely, unlike the present case where the state’s interest in punishment is satisfied by the imposition of a life sentence. Additionally, the standard for proving insanity in Oregon at the time of the Leland decision was much less stringent than Georgia’s current requirements to establish mental retardation.³³

(b) In division 6, the majority upholds the denial of a request for a pre-trial hearing on the issue of mental retardation. Jenkins contends that by forcing a defendant to try a sentencing issue in the guilt-innocence phase, Georgia’s procedure fails to accord the protections recognized as vital in Gregg v. Georgia.³⁴ Although the majority relies on Livingston v. State,³⁵ that case did not specifically address the constitutional challenge Jenkins raises. The record developed in this case, which was not available when Livingston was decided on interim review, bears out the problems inherent in this procedure. Furthermore, no other jurisdiction requires the defendant to prove mental retardation in the guilt-innocence phase.³⁶ Finally, the merit of a pre-trial determination, as other states require, is obvious: it prevents confusion, reduces prejudice, and may vastly simplify the trial of the case.

Decided February 23, 1998 Reconsiderations denied April 2,1998. Jackson & Schiavone, G. Terry Jackson, Pattie J. Williams, Steven L. Sparger, Howard, Carswell & Bennett, Kenneth R. Cars-well, for appellant. Stephen D. Kelley, District Attorney, John B. Johnson III, Assistant District Attorney, Thurhert E. Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, Paige R. Whitaker, Beth Attaway, Assistant Attorneys General, for appellee.

2.1 also dissent to division 23 (d) because under the facts of this case it is neither logical nor fair to charge both the (b) (4) and (b) (2) aggravating circumstances since they refer to identical aspects of the crime.³⁷

I am authorized to state that Chief Justice Benham joins in this dissent.

9 Cooper v. Oklahoma, 517 U.S. 348 (116 SC 1373, 1383, 134 LE2d 498) (1996).

10 Fleming v. Zant, 259 Ga. 687 (386 SE2d 339) (1989).

11 O.C.G.A. § 17-7-131 (j).

12 That the United States Supreme Court reached a different conclusion in Penry v. Lynaugh, 492 U.S. 302 (109 SC 2934, 106 LE2d 256) (1989) under the federal constitution serves only to illuminate the principle that the federal constitution affords minimal protections that the states are free to broaden. Pope v. City of Atlanta, 240 Ga. 177, 178, n. 1 (240 SE2d 241) (1977).

13 268 Ga. 555, 558-560 (4) (491 SE2d 348) (1997).

14 Cooper, 116 SC at 1377 (“Historical practice is probative of whether a procedural rule can be characterized as fundamental.”), quoting Medina v. California, 505 U.S. 437, 446 (112 SC 2572, 120 LE2d 353) (1992).

15 Id. at 1380.

16 Id. at 1380, quoting Medina, 505 U.S. at 448.

17 See Penry, 492 U.S. at 332.

18 See id. at 331-333 and Cooper, 116 SC at 1377-1378.

19 Cooper, 116 SC at 1378.

20 Leland v. Oregon, 343 U.S. 790, 797, n. 14 (72 SC 1002, 96 LE 1302) (1952).

21 See statutes cited in n. 14. Nine of these states have passed these provisions since the Penry decision. See Penry, 492 U.S. at 334 (Noting that at time of decision only Georgia and Maryland prohibited the execution of the mentally retarded). Another 12 states and the District of Columbia have no death penalty law.

22 Ark. Stat. Ann. §§ 5-4-618 (d) (2); Colo. Rev. Stat. §§ 16-9-402, 16-9-403 (2); O.C.G.A. § 17-7-131 (c) (3), (j); Ind. Code Ann. §§ 35-36-9-4, 35-36-9-6; Kan. Stat. Ann. § 21-4623 (d); Ky. Rev. Stat. Ann. §§ 532.140, 532.135 (2); Md. Code Ann. Crim. Law (Art. 27) § 412 (g); N.M. Stat. Ann. § 31-20A-2.1 (C); N.Y. Crim. Proc. § 22-B 400.27 (12) (c) and (e); Tenn. Code Ann. § 39-13-203 (c); Wash. Rev. Code § 10.95.030 (2); 18 U.S.C. § 3596 (c) and 21 U.S.C. § 848 (1).

23 Colo. Rev. Stat. § 16-9-402 (2) and Ind. Code Ann. § 35-36-9-4 (clear and convincing). The standard of proof is not specified by statute in Kansas, Kentucky, or the federal courts and research has not revealed any cases on the issue.

24 See discussion infra at 1 (b).

25 Cooper, 116 SC at 1380, quoting Medina, 505 U.S. at 445.

26 Cooper, 116 SC at 1380, quoting Medina, 505 U.S. at 448.

27 Id. at 1382.

28 Addington v. Texas, 441 U.S. 418, 423 (99 SC 1804, 60 LE2d 323) (1979).

29 O.C.G.A. § 17-7-131 (j) (finding of mental retardation requires imposition of life sen-tone©)

30 O.C.G.A. § 17-7-131 (a) (3).

31 Leland, 343 U.S. at 790. By contrast, Georgia requires a defendant to prove insanity by a preponderance of the evidence. Lawrence v. State, 265 Ga. 310, 312-313 (454 SE2d 446), cert. denied, 516 U.S. 874 (116 SC 200, 133 LE2d 134) (1995).

32 Leland, 343 U.S. at 794.

33 See State v. Wallace, 131 P.2d 222 (Or. 1942) (insanity may be proved by conduct of person).

34 428 U.S. 153 (96 SC 2909, 49 LE2d 859) (1976).

35 264 Ga. 402, 406 (444 SE2d 748) (1994).

36 Most jurisdictions provide for separate hearing pre-trial or pre-sentencing. Ark. Stat. Ann. § 5-4-618 (d) (2); Colo. Rev. Stat. § 16-9-402 (2); O.C.G.A. § 17-7-131; Ind. Code Ann. § 35-36-9-5; Kan. Stat. Ann. § 21-4623 (d); Ky. Rev. Stat. Ann. § 532.135 (2); N.M. Stat. Ann. § 31-20A-2.1 (C); N.Y. Crim. Proc. § 22-B 400.27 (12) (e). See also State v. Smith, 893 S.W.2d 908, 916, n. 2 (Tenn. 1994) (preferable to have pre-trial hearing), cert. denied, 516 U.S. 829 (116 SC 99,133 LE2d 53) (1995). In Maryland mental retardation is determined in the sentencing phase. See Richardson v. State, 630 A.2d 238 (IV) (Md. 1993). The procedure in the federal courts and in Washington are not specified by statute and have yet to be established by caselaw.

37 See Simpkins v. State, 268 Ga. 219, 223 (486 SE2d 833) (1997) (Fletcher, P. J., concurring specially).