Jenkins v. State
| Decision Date | 30 June 1995 |
| Docket Number | No. S95A0080,S95A0080 |
| Citation | 458 S.E.2d 477,265 Ga. 539 |
| Parties | JENKINS v. The STATE. |
| Court | Georgia Supreme Court |
David C. Walker, Henderson & Henderson, Richmond Hill, Hal T. Peel, Claxton, Charlotta Norby, Atlanta, for Clevon Jamel Jenkins.
Dupont K. Cheney, Dist. Atty., Hinesville, Michael J. Bowers, Atty. Gen., Atlanta, for the State.
Susan V. Boleyn, Mary Beth Westmoreland, Sr. Asst. Attys. Gen., Dept. of Law, Atlanta. HUNSTEIN, Justice.
Pursuant to the unified appeal procedure in capital felonies, OCGA § 17-10-35.1, we granted the application for interim appeal filed by Clevon Jamel Jenkins, who has been charged with the armed robbery and malice murder of a Riceboro man. 1
1. Appellant asserts error in the trial court's ruling permitting counsel in closing argument in the sentencing phase to address the possibility of parole. OCGA § 17-10-31.1(d), 2 by expressly authorizing argument to the jury on the issue of parole in the sentencing phase of death penalty trials, conflicts with OCGA § 17-8-76(a), 3 which imposes an absolute bar on such argument. The rule for construing statutes which may be in conflict is that the most recent legislative expression prevails. Gunn v. Balkcom, 228 Ga. 802, 804, 188 S.E.2d 500 (1972); Simmons v. State, 148 Ga.App. 317, 318, 251 S.E.2d 167 (1978). OCGA § 17-10-31.1 is the more recent legislative expression 4 and its provisions thus prevail as to closing arguments made in the sentencing phase of death penalty cases. Accordingly, there is no error in the trial court's ruling.
2. The evidence supports the trial court's finding that certain statements appellant made to an officer following his arrest were spontaneous and were not elicited by custodial interrogation. Accordingly, we uphold the trial court's ruling that the statements are admissible at trial. See Hallman v. State, 263 Ga. 72(1), 428 S.E.2d 344 (1993); Wilson v. State, 211 Ga.App. 457(1), 439 S.E.2d 685 (1993).
3. Appellant contends error in the trial court's ruling that the defense would not be allowed to introduce testimony by mental health experts as mitigation evidence in the sentencing phase unless appellant submits to a court-ordered examination by mental health experts, whose report would thereafter be made available to the prosecution. In Lynd v. State, 262 Ga. 58(11), 414 S.E.2d 5 (1992), we recognized that the exclusion of psychiatric evidence when the defendant refuses to submit to state-selected psychiatric examination is justified Id. at 64, 414 S.E.2d 5.
A criminal defendant can no more present psychiatric testimony without submitting to an examination by a state-selected psychiatrist than he may testify at trial without submitting to a cross-examination.
(Footnote omitted.) Id. Accord Godfrey v. Francis, 251 Ga. 652(5), 308 S.E.2d 806 (1983). We find no merit in appellant's arguments that the rationale in Lynd should be limited to mental health testimony adduced in the guilt-innocence phase of trials. Contrary to appellant's position, the trial court's ruling does not unduly restrict the evidence the defense can offer in mitigation, given that the sole cause for the restriction is appellant's own refusal to submit to a court-ordered examination that is essential to enable the prosecution to rebut expert mental health testimony, should appellant later choose to present evidence concerning his private examination. See Godfrey, supra at 656(5), 308 S.E.2d 806.
Judgment affirmed.
All the Justices concur.
1 The granted application for interim appeal by Jenkins' co-defendant, Maurice Fleming, is the subject of this Court's opinion in Fleming v. State, 265 Ga. 541, 458 S.E.2d 638 (1995).
2 OCGA § 17-10-31.1(d) provides
Notwithstanding any other provision of law, during the sentencing phase before a jury, counsel for the state and the accused may present argument and the trial judge may instruct the jury:
(1) That "life without parole" means that the defendant shall be incarcerated for the remainder of his or her natural life and shall...
To continue reading
Request your trial
-
Young v. State
...difficulty in responding to the defense psychiatric testimony without its own psychiatric examination of the accused.'" Jenkins v. State, 265 Ga. 539, 540-541 (3) (458 SE2d 477) (1995) (quoting Lynd v. State, 262 Ga. 58, 64 (11) (414 SE2d 5) (1992) (citation and punctuation omitted)). See a......
-
Hittson v. Humphrey
...... Two rather unusual factors merit mention at the outset. First, the history of this case in the Georgia state courts has been unusual. All agree that the Georgia Supreme Court wrongly decided a key issue Hittson raised in his direct appeal. In a subsequent ...State, 265 Ga. 754, 755, 462 S.E.2d 615, 617 (1995). But, the Georgia Supreme Court made clear, "we reiterate our holding in Jenkins [v. State, 265 Ga. 539, 458 S.E.2d 477 (1995)] that the State may offer expert mental health testimony only in the sentencing phase and strictly in ......
-
Young v. State
...in responding to the defense psychiatric testimony without its own psychiatric examination of the accused.’ " Jenkins v. State , 265 Ga. 539, 540-541 (3), 458 S.E.2d 477 (1995) (quoting Lynd v. State , 262 Ga. 58, 64 (II), 414 S.E.2d 5 (1992) (citation and punctuation omitted)). See also Na......
-
Jenkins v. Byrd
...including the admissibility of petitioner's statements to police, were affirmed on interim appeal. Id.; Jenkins v. State, 265 Ga. 539, 458 S.E.2d 477 (1995) ("Jenkins I"). Following a week-long jury trial beginning August 28, 1995, petitioner was found guilty of malice murder and armed robb......