Ambles v. State

• Decision Date: 11 September 1989
• Docket Number: No. 46929,46929
• Citation: 383 S.E.2d 555,259 Ga. 406
• Parties: AMBLES v. The STATE.
• Court: Georgia Supreme Court

Page 555

383 S.E.2d 555

259 Ga. 406

AMBLES v. The STATE.

No. 46929.

Supreme Court of Georgia Sept. 11, 1989.

M. Michael Kendall, Griffin, for Ambles.

W. Fletcher Sams, Johnnie L. Caldwell, Jr., Dist. Attys. and J. David Fowler, Asst. Dist. Atty., Thomaston, for the State.

CLARKE, Presiding Justice.

Eddie James Ambles is under indictment for child molestation. At trial he challenged the alleged victim's competency to testify, citing OCGA § 24-9-5. ¹ As required by OCGA § 24-9-7, the trial court held a hearing to determine competency. ² The trial court found that the child was not competent to testify. The state then moved the trial court to hold OCGA §§ 24-9-5 and 24-9-7 unconstitutional. The court granted the state's motion, holding that the statutes violate the Equal Protection Clause of the United States Constitution. We granted Ambles' application for interlocutory appeal and reverse.

1. The first issue raised in this appeal is whether the state has standing to challenge the constitutionality of the statutes at issue here. We hold that it does.

The general rule is that a party has standing to challenge the constitutionality of a statute only if the statute has an adverse impact on that party's own rights. Lambeth v. State, 257 Ga. 15, 354 S.E.2d 144 (1987). Ambles asserts that the witness competency statutes affect the rights of the child, not those of the state. We disagree.

The state has both the duty and the right to protect the security of its citizens by prosecuting crime. Georgia Constitution of 1983, art. I, sec. I, para. II; OCGA § 17-1-2. Because the purpose of criminal law is to serve the public functions of deterrence, rehabilitation and retribution, it is the state, not the victim, that has an interest in criminal prosecutions. See, Linda R.S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973) ("a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another"). In aid of the right to prosecute, the state has the corresponding right to compel the attendance of witnesses, including the victim, and to call those witnesses to testify about their knowledge of the crime. OCGA § 17-7-190.

In this case the alleged victim has been found to be incompetent to testify. Without the testimony of this witness, the state may not be able to make out its case against the defendant. The state's rights are adversely affected by the competency statutes to the extent that they limit the state's ability to present evidence of the crime. The state therefore has standing to challenge the statutes.

2. Next, we address the issue of whether the statutes are constitutional. The state challenges the statutes under the Equal Protection Clause of the U.S. Constitution and under the Equal Protection and Privileges and Immunities clauses of the Georgia Constitution of 1983, art. I, sec. I, paras. II and VI. The protection of the Georgia Constitution of 1983, art. I, sec. I, para. II, and the Equal Protection Clause of the federal constitution have been held to be coextensive. McDaniel v. Thomas, 248 Ga. 632, 285 S.E.2d 156 (1981). And, although there have been few cases interpreting the Privileges and Immunities Clause of the Georgia Constitution of 1983, to the extent that an action has challenged statutory distinctions between classes of citizens, equal protection analysis has been employed. See, e.g., Stoker v. Wood, 161 Ga.App. 110, 289 S.E.2d 265 (1982). We therefore address all of these constitutional challenges using equal protection analysis.

When assessing equal protection challenges, a statute is tested under a standard of strict judicial scrutiny if it either operates to the disadvantage of a suspect class or interferes with the exercise of a fundamental right. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Strict judicial scrutiny demands that the statute be narrowly tailored to serve a compelling state interest. Id. at 17, 93 S.Ct. at 1288. If neither a suspect class nor a fundamental right is affected by the statute, the statute need only bear a rational relationship to some legitimate state purpose. Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). Here it is alleged that OCGA §§ 24-9-5 and 24-9-7 require strict judicial scrutiny because they unlawfully discriminate against children and mentally handicapped people and because they adversely impact the fundamental right to testify. We will address each contention in turn.

(a) OCGA § 24-9-5 declares that a witness who does not have the use of reason is incompetent to testify. While it may be true that the issue of witness competency arises most frequently in the context of child molestation cases, it cannot be said that the statute creates a classification on the basis of minority or mental handicap. It discriminates between people with the use of reason and those without it. In any event, neither minority nor inability to reason has been held to be a suspect classification for the purpose of equal protection. City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982).

(b) The state next urges that strict scrutiny is appropriate because the statutes impinge on the "fundamental right to testify." The state finds the basis for a "fundamental right to testify" in OCGA § 1-2-6, which states in part, "[t]he rights of citizens include, without limitation ... [t]he right to testify as a witness."

We hold that OCGA § 1-2-6 creates a statutory right to testify as a witness that is neither unlimited ³ nor constitutionally fundamental. Fundamental constitutional rights are those that are recognized as having a value so essential to individual liberty in our society that their infringement merits careful scrutiny by the courts. The list that the U.S. Supreme Court has identified as "fundamental" is not long. It includes the guarantees of the Bill of Rights, the right to fairness in the criminal process, the right to privacy, the right to travel, the right to vote, freedom of association, and procedural due process rights. Rotunda, Nowak & Young, Treatise on Constitutional Law Substance and Procedure, § 15.4 (1986). The Supreme Court has expressed reluctance to recognize other important individual rights as "fundamental." See, e.g., Rodriguez, supra, 411 U.S. at 31-35, 93 S.Ct. at 1295-98 (no fundamental right to education); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970) (no fundamental right to subsistence payments).

History and tradition demonstrate no fundamental right to testify. At common law many classes of persons including parties, anyone who had been convicted of a crime, and husbands and wives, were disqualified from testifying as witnesses. See, McCormick's Handbook of the Law of Evidence, 151-152 (E. Cleary, 2d ed. 1972). Until 1961 criminal defendants in Georgia were not allowed to testify in their own behalf, and were restricted to presenting an unsworn statement. Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961). In Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), the Supreme Court recognized a fundamental right of a defendant in a criminal action to testify in her own defense, basing that finding on the guarantees of the Fifth and Sixth Amendments and due process considerations. No corresponding right of a victim of a crime has been identified. This is logical because the only parties to a criminal proceeding are the state, as represented by the prosecutor, and the defendant. Any right of a victim to testify in a criminal trial is necessarily subject to the prosecutor's discretion to call the victim to the...