Childs v. The State

• Decision Date: 05 July 2010
• Docket Number: No. S10A0497.,S10A0497.
• Citation: 287 Ga. 488,696 S.E.2d 670
• Parties: CHILDSv.The STATE.
• Court: Georgia Supreme Court

287 Ga. 488

696 S.E.2d 670

CHILDSv.The STATE.

No. S10A0497.

Supreme Court of Georgia.

July 5, 2010.

David E. Morgan, III, Abbeville, for appellant.

Denise D. Fachini, District Attorney, Matthew P. Brown, Asst. Dist. Atty., Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.

NAHMIAS, Justice.

Isaiah Childs appeals from his conviction by a Wilcox County jury of one count of the sale of cocaine.¹ Childs contends, among other things, that the trial court erred in denying his motion to declare OCGA § 24-9-84.1(a)(2) unconstitutional. Finding no merit to Childs's contentions, we affirm.

1. Childs contends that the evidence was insufficient to support his conviction. Viewed in the light most favorable to the jury's verdict, the evidence at trial included the following. On March 4, 2006, Alan Mann, an investigator with a drug task force, sent an informant, Ethel Miller, to a high drug area in Rochelle, Georgia, to attempt to make a drug purchase. Investigator Mann provided Miller with money to make the purchase and outfitted her car with video equipment to record the transaction. Mann testified that, before the purchase, he searched Miller's vehicle to make sure there were no drugs in it. He also searched Miller and Miller's husband, Charles Davis, who was accompanying her because she could not drive. Investigator Mann observed Miller from a distance and saw Childs approach her vehicle near a club. Mann did not see any transaction at that time. He testified that Miller drove off, and that the video, which was played for the jury, showed that she stopped nearby, met with Childs, and took delivery of a substance from him. After the transaction, Miller met Investigator Mann and turned over a piece of crack cocaine, which she had placed into an evidence bag Mann had given her. Mann searched the car, Miller, and Davis again, and found no evidence of any other cocaine.

Miller has been addicted to drugs for several years and was previously convicted of selling cocaine. She became an informant to lighten her prison sentence for a violation of her probation. Miller testified that on March 4, 2006, Investigator Mann searched her and the vehicle, wired up the video equipment, and gave her $40 to make a purchase. Miller went to a club where she thought drug dealers would be selling. She had known Childs her whole life and saw him standing outside the club. She called him over and asked if he had any drugs. Childs told her that he did not but that he could get some. Childs drove off, and when he did not return, Miller and Davis drove in the direction he had gone and met him at a nearby warehouse. Miller paid Childs $20 for a small piece of cocaine, and she put the cocaine in an evidence bag. She then met with Investigator Mann and gave the cocaine to him.

Davis testified that he drove his wife on the day of the crime, that Investigator Mann searched him before the transaction, that he did not have any drugs at the time, and that there were no drugs in the vehicle. He said that, when they first saw Childs, Miller asked Childs if he had any drugs. Childs said that he did not but that he would go get some. According to Davis, Childs left, but later met them at the warehouse and sold the cocaine to Miller.

Viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above was sufficient for the jury rationally to have found Childs guilty beyond a reasonable doubt of the sale of cocaine. See Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Vega v. State, 285 Ga. 32, 33, 673 S.E.2d 223 (2009) (“ ‘It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’ ” (citation omitted)).

2. At trial, Investigator Mann explained that he searches an informant's vehicle inside and out to make sure the informant has no drugs and that he usually places the video camera in the vehicle on the side the informant is on “so that when the drug dealer would walk up to the window, the video camera will pick up the transaction.” Childs contends the trial court erred in overruling his objection to this testimony, which he claims indicated that anyone who walked up to the window of Miller's vehicle was a drug dealer and therefore constituted impermissible character evidence. We disagree, because it is clear, in context, that Mann's statement was not directed at Childs, but was background testimony as to how a controlled drug purchase is typically arranged.

3. Childs did not testify or present any evidence. Defense counsel stated that Childs would not testify because OCGA § 24-9-84.1(a)(2) would then allow the State to impeach him with evidence of his prior felony convictions for the possession of cocaine, the possession of marijuana, and burglary. Childs moved the trial court to rule the statute unconstitutional on the ground it unconstitutionally burdened his right to testify and therefore violated his due process rights. See Rock v. Arkansas, 483 U.S. 44, 51-53, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). Childs now contends that the trial court erred in denying his motion.

OCGA § 24-9-84.1 was enacted in 2005 and applies to all trials that occur “on or after July 1, 2005.” See Ga. Laws 2005, p. 20, §§ 16, 17. Subsection (a)(2) provides that, if the defendant testifies, “[e]vidence that the defendant has been convicted of a crime shall be admitted if the crime was punishable by death or imprisonment of one year or more under the law under which the defendant was convicted if the court determines that the probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant.” ² Childs cites no authority for the proposition that OCGA § 24-9-84.1(a)(2) is unconstitutional, and we hold that it is not.

Ohler v. United States, 529 U.S. 753, 759-760, 120 S.Ct. 1851, 146 L.Ed.2d 826 (2000), addressed an analogous situation. Federal Rule of Evidence 609(a) provides, in relevant part, that “evidence that an accused has been convicted of [a felony] shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused.” In Ohler, the district court ruled in limine that the government could impeach Ohler with a prior drug conviction if she testified. See 529 U.S. at 754, 120 S.Ct. 1851. Ohler elected to testify and preemptively introduced evidence of her prior conviction on direct examination, instead of waiting for the government to impeach her with it on cross. See id.

On appeal, Ohler attacked the district court's ruling in limine that the government could impeach her with the prior conviction, but the Ninth Circuit held that she had waived her objection by introducing the evidence herself. See Ohler, 529 U.S. at 754-755, 120 S.Ct. 1851. At the Supreme Court, Ohler argued that the waiver rule unconstitutionally burdened her right to testify. The Court disagreed:

She relies on Rock v. Arkansas, ... where we held that a prohibition of hypnotically refreshed testimony interfered with the defendant's right to testify. But here the rule in question does not prevent Ohler from taking the stand and presenting any admissible testimony which she chooses. She is of course subject to cross-examination and subject to impeachment by the use of a prior conviction. In a sense, the use of these tactics by the Government may deter a defendant from taking the stand. But, as we said in McGautha v. California, 402 U.S. 183, 215 [ , 91 S.Ct. 1454, 28 L.Ed.2d 711 ] (1971):

“It has long been held that a defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination.... It is not thought overly harsh in such situations to require that the determination whether to waive the privilege take into account the matters which may be brought out on cross-examination. It is also generally recognized that a defendant who takes the stand in his own behalf may be impeached by proof of prior convictions or the like.... Again, it is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding whether to testify.”

Ohler, 529 U.S. at 759, 120 S.Ct. 1851.

Other courts to consider the issue have likewise held that due process is not violated by permitting the impeachment of a testifying defendant with prior convictions. Thus, the Court of Appeals for the District of Columbia stated many years ago that

appellant has presented no cases in this or any other jurisdiction, and we have found none, which specifically find that due process is denied in criminal trials solely because a defendant who has taken the witness stand is impeached by the introduction of a valid prior conviction. On the contrary, our reading of recent federal and state cases indicates quite clearly that the tradition of utilizing evidence of valid prior convictions for purposes of impeachment is in no manner being considered as violative of due process.

Dixon v. United States, 287 A.2d 89, 93 (D.C.1972) (citing cases).

Similarly, the Connecticut Supreme Court has explained that

‘[w]e recognize that a defendant may be faced with the dilemma of either testifying and facing the possibility of impeachment by prior convictions or not taking the stand and thus not personally being able to present his version of the events to the jury. Nevertheless, it has been recognized that the constitutional right to testify does not carry with it a right to prohibit impeachment by prior convictions.’

State v. Harrell, 199 Conn. 255, 506 A.2d 1041, 1045 (1986) (citing cases). Accord People v. Rosenberg, 213 Ill.2d 69, 289 Ill.Dec. 664, 820 N.E.2d 440, 448 (2004); State v. Raydo, 713 So.2d 996, 999 (Fla.1998); State v. Gassler, 505 N.W.2d 62, 67 (Minn.1993);...