Lee v. State

• Decision Date: 07 February 1986
• Docket Number: No. 71036,71036
• Citation: 177 Ga.App. 698,340 S.E.2d 658
• Parties: LEE v. The STATE.
• Court: Georgia Court of Appeals

Page 658

340 S.E.2d 658

177 Ga.App. 698

LEE v. The STATE.

No. 71036.

Court of Appeals of Georgia.

Feb. 7, 1986.

Walter L. Fortson, Atlanta, for appellant.

Robert E. Wilson, Dist. Atty., R. Stephen Roberts, Barbara Conroy, Asst. Dist. Attys., for appellee.

BEASLEY, Judge.

Defendant appeals his burglary conviction on federal constitutional grounds. Although in his enumeration of errors he charges also that the "Laws of the State of Georgia" were violated, he fails to point to any particular law in his enumeration or in his argument, and so we will consider that ground abandoned. Green v. State, 159 Ga.App. 28(4), 283 S.E.2d 19 (1981). Of course, we may consider that he means the U.S. Constitution because it is the supreme law of the land and in that sense is part of the laws of this state as it is part of the laws of every state. Carr v. State, 176 Ga. 747, 750, 169 S.E. 201 (1933); McDaniel v. Gangarosa, 126 Ga.App. 666, 668(1), 191 S.E.2d 578 (1972).

We make note that appellant has failed to raise any state constitutional claim, thus either ignoring the principles of federalism which would compel consideration of its application first ¹ or believing that there are no provisions of the Constitution of Georgia which have been contravened by the errors complained of.

If both constitutions are properly raised, Tenant v. State, 151 Ga.App. 891, 894(6), 262 S.E.2d 204 (1979); Murphy v. Bank of Dahlonega, 151 Ga.App. 264, 265(3), 259 S.E.2d 670 (1979), then to be true to the federal concept of our American system of government, it would be our "judicial responsibility to determine the state's own law before deciding whether the [action] falls short of federal constitutional standards, ..." Salem College & Academy v. Employment Div., 298 Or. 471, 695 P.2d 25 (1985).

As Justice Stephens chided the Supreme Judicial Court of Massachusetts in his concurring opinion in Massachusetts v. Upton, 466 U.S. 727, ----, 104 S.Ct. 2085, 2090-91, 80 L.Ed.2d 721 (1984): "The States in our federal system ... remain the primary guardian of the liberty of the people. The Massachusetts court, I believe, ignored this fundamental premise of our constitutional system of government. In doing so, it made an ill-advised entry into the federal domain (by resting its decision on the federal constitution without stating whether the action complained of was valid as a matter of Massachusetts law)."

But we do not do so here because there is no call by appellant for it at all. And because our function as a court of review wisely precludes our sua sponte raising new grounds, we of course will not enlarge that function. Velkey v. Grimes, 214 Ga. 420, 105 S.E.2d 224 (1958); Butler v. State, 172 Ga.App. 405, 406(1), 323 S.E.2d 628 (1984). This case differs in that regard from Davenport v. State, 172 Ga.App. 848, 850(2), 325 S.E.2d 173 (1984) and Andrews v. State, 175 Ga.App. 22, 332 S.E.2d 299 (1985), in that in those cases, at least the Constitution of Georgia was mentioned by the appellant. We probably could have there ordered, like the court did in State v. Jewett, 146 Vt. 221, 500 A.2d 233 (1985), 37 Cr.L.Rptr. 1084, that the two parties brief the state constitutional issue, but we did not do so.

We deal here, then, solely with a federal constitutional claim and wish to plainly say so as we should do. See Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).

1. It is urged that defendant was prosecuted for a vindictive and retaliatory purpose. Originally, defendant contends, the state determined not to prosecute defendant and another suspect Powell. Defendant filed a civil lawsuit against the investigating officer who thereafter spoke with the assistant district attorney in charge of determining whether to seek an indictment. The prosecutor re-evaluated the situation and presented the matter to the grand jury which returned indictments against defendant and Powell. Just prior to trial, the cases against defendant and Powell were severed. The state had agreed for Powell to take a polygraph test and to stipulate the results. The state would not agree to that same arrangement with defendant. Powell passed the test and charges against him were dropped after appellant's trial. Defendant was tried and the jury found him guilty.

The record is devoid of any evidence or inference that the state entered into any agreement not to prosecute the defendant or did anything amounting to waiver. At most, there was an initial indication that the state would not prosecute. The defendant argues that the decision to prosecute was motivated solely by the action for damages he brought against the investigating officer.

On the hearing of the motion for new trial, the assistant district attorney testified for the state that, although the officer who investigated the case told him that the defendant had filed suit, this was not a consideration in his decision to prosecute. His eventual determination was based on other factors such as the reliability and credibility of the sole eyewitness who was the principal witness for the state. The assistant district attorney also testified that the decision not to prosecute Powell was based on the fact that he had an alibi, ² which led to the state's agreeing to stipulate to the results of a polygaph; then when Powell passed the test, charges against him were dismissed.

Whether to prosecute and what charge to bring before a grand jury are decisions that generally rest in the prosecutor's discretion. Nevertheless, selectivity in the enforcement of criminal laws is subject to constitutional constraints, the equal protection clause of the Fourteenth Amendment (United States v. Batchelder, 442 U.S. 114, 124-5, 99 S.Ct. 2198, 2204, 60 L.Ed.2d 755 (1979)), while the due process clause of the Fourteenth Amendment protects against vindictive exercise of the prosecutor's discretion. Bordenkircher v. Hayes, 434 U.S. 357, 360, 98 S.Ct. 663, 666, 54 L.Ed.2d 604 (1978). The conscious exercise of selectivity in enforcement is not a federal constitutional violation if the selection is not deliberately based upon unjustifiable standards, as race, religion or other arbitrary classification. Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505-06, 7 L.Ed.2d 446 (1962). Pursuit of a course of action designed to penalize one's reliance on a legal right is patently unconstitutional. Bordenkircher, supra, 434 U.S. at 363, 98 S.Ct. at 667-68. For this reason, where there is actual or a realistic likelihood of vindictiveness in post trial proceedings, a presumption of prosecutorial vindictiveness is said to arise. Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974).

United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74 (1982) declined to extend this presumption to a pre-trial setting. There it was explained that improper motivation is more likely in a post-trial situation, while during the pre-trial the assessment of the proper extent of the prosecution may not have crystallized. The majority opinion noted that a prosecutor should remain free before trial to exercise the broad discretion entrusted to him in determining the extent of the societal interest in the prosecution. "An initial decision should not freeze future conduct." Goodwin, supra at 382, 102 S.Ct. at 2493.

Applying these principles, there was no presumption that the prosecution of defendant was undertaken for a retaliatory purpose. The trial court was authorized in finding that the district attorney exercised...