Todd v. State

• Decision Date: 09 March 1972
• Docket Number: No. 26905,26905
• Parties: Jack TODD v. The STATE.
• Court: Georgia Supreme Court

Page 831

187 S.E.2d 831

228 Ga. 746

Jack TODD v. The STATE.

No. 26905.

Supreme Court of Georgia.

March 9, 1972.

Syllabus by the Court

The provisions of the Act of March 27, 1970 (Ga.L.1970, p. 949; 1971, p. 902; Code Ann. § 27-2534) prescribing the procedures for hearing and imposition of sentence in felony cases, is applicable to a trial for a crime committed prior to the effective date of said Act.

Glenn Zell, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joel M. Feldman, Carter Goode, Atlanta, for appellee.

GRICE, Justice.

The Court of Appeals has certified to this court for answer the following question 'Are the provisions of the Act of March 27, 1970 (Ga.L.1970, pp. 949-951; Code Ann. § 27-2534) prescribing the procedures for hearing and imposition of sentence where the jury returns a verdict of guilty in a felony case, applicable to a trial commenced on September 14, 1970, on an indictment alleging an offense of burglary on January 29, 1970? . . . Georgia cases involving retroactive application of sentencing procedures under the Act of February 16, 1938 (Ga.L. Ex.Sess., 1937-38, p. 326): Winston v. State, 186 Ga. 573(1) (198 S.E. 667); Hurt v. State, 187 Ga. 73 (199 S.E. 801); Camp v. State, 187 Ga. 76 (200 S.E. 126). Also, to same effect, see Reynolds v. State, 1 Ga. 222, 228.'

Section 1 of the statute involved here (Ga.L.1970, pp. 949, 950; 1971, p. 902; Code Ann. § 27-2534) is in material part as follows: 'At the conclusion of all felony cases and after argument of counsel and proper charge from the court, the jury shall retire to consider a verdict of guilty or not guilty without any consideration of punishment. Where the jury returns a verdict of guilty, the court shall resume the trial and conduct a pre-sentence hearing before the jury at which time the only issue shall be the determination of punishment to be imposed. In such hearing, subject to the laws of evidence, the jury shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant, or the absence of any such prior criminal convictions and pleas: Provided, however, that only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible. The jury shall also hear argument by the defendant or his counsel and the prosecuting attorney, as provided by law, regarding the punishment to be imposed. The prosecuting attorney shall open and the defendant shall conclude the argument to the jury. Upon the conclusion of the evidence and arguments, the judge shall give the jury appropriate instructions and the jury shall retire to determine the punishment to be imposed. The jury shall fix a sentence within the limits prescribed by law. The judge shall impose the sentence fixed by the jury as provided by law. If the jury cannot, within a reasonable time, agree on the punishment, the judge shall impose sentence within the limits of the law; provided, however, that the judge shall in no instance impose the death penalty when the jury cannot agree upon the punishment. If the trial court is reversed on appeal because of error only in the presentence hearing, the new trial which may be ordered shall apply only to the issue of punishment.'

While Georgia Laws, 1971, p. 902, added a sentence relating to opening and closing remarks of counsel, such amendment was not mentioned in the question propounded by the Court of Appeals. However, the amendment is of no consequence in consideration of the certified question.

The question, in essence, is whether this statute is applicable to a trial for a crime committed prior to its effective date in view of the constitutional prohibition against ex post facto laws. United States Constitution, Art. I, Sec. IX, Par. III; Art. I, Sec. X, Par. I (Code §§ 1-128, 1-134); Georgia Constitution, Art. I, Sec. III, Par. II (Code Ann. § 2-302).

In this connection, Code § 102-104 provides in essential part that 'Laws prescribe only for the future; they can not impair the operation of contracts, nor, usually, have a retrospective operation. Laws looking only to the remedy or mode of trial may apply to . . . offenses . . . committed prior to their passage . . .'

The appellant contends that the new statute deprives him of the substantial right not to have evidence of his participation in other crimes introduced. He relies upon Winston v. State, 186 Ga. 573 198 S.E. 667.

In the Winston case the defendant was tried for robbery by open force and violence. The statute involved was Ga.L. 1937-38, Ex.Sess. p. 376. This court held at pages 574-576, 198 S.E. at page 669, as follows: '. . . (W)hile it is the rule that no one has a vested right in a mere mode of procedure, so that a statute merely regulating procedure, and leaving untouched 'all the substantial protections with which existing law surrounds the person accused of crime,' is not within the constitutional inhibition against ex post facto laws, yet a statute is void and ineffective as related to previous offenses, if it takes from the accused a substantial right given to him by law in force at the time to which his guilty relates, and such a statute 'cannot be sustained simply because, in a general sense, it may be said to regulate procedure.' (Cits.) As a general rule, 'any law is ex post facto which is enacted after the offense was committed, and which, in relation to it or its consequences, alters the situation of the accused to his disadvantage.' (Cits.) . . . Assuming without deciding that it was the intent of the legislature to empower the judge in capital cases, under the procedure outlined in the statute, to reduce the death penalty to life imprisonment . . . the new act of 1938, supra, was nevertheless ex post facto and inoperative as to the offense charged against the accused, in that, if enforced, it would operate to withdraw a substantial protection which surrounded his at the time of the commission of the alleged offense, to wit, the right to a recommendation of mercy by the jury as a matter of grace (carrying a life sentence only), irrespective of the evidence or record, and irrespective of any procedure outlined in the new statute.'

As to the same result in cases holding retroactive application of this 1938 statute invalid, see Hurt v. State, 187 Ga. 73, 199 S.E. 801 and Camp v. State, 187 Ga. 76, 200 S.E. 126, which follow the Winston case, supra.

We agree with the holding in the Winston case insofar as this court construed the 1938 statute to take away substantial rights.

The 1938 statute took away from a defendant the right to have his sentence determined by the unanimous agreement of twelve jurors and vested this power solely in the trial judge.

Also, in taking away the absolute recommendation of mercy by the jury as a matter of grace, it in effect increased the sentence for robbery by force and violence, irrespective of any other factor.

However, we do not agree that the language on page 576 of 186 Ga. 198 S.E. 667 of the Winston opinion, which parenthetically refers to the 'different procedure' outlined in the 1938 act, in any way implies that the holding is based upon the fact that the judge may take into consideration the defendant's 'case history' in fixing sentence. Any such interpretation is expressly disapproved and will not be followed.

In our view, the Winston case and those following it cannot be held to stand for the premise that introduction into evidence of the defendant's 'case history' deprives him of a substantial right.

In the first place, the prohibition against introduction of evidence of an accused's participation in other crimes is not absolute. Not only may such evidence be introduced to show motive, scheme, plan or identity in proving guilt, (Cox v. State, 165 Ga. 145(1), 139 S.E. 861; Morris v. State, 177 Ga. 106(5), 169 S.E. 495; Emmett v. State, 195 Ga. 517, 538(3), 25 S.E.2d 9), it also may be introduced to enhance punishment under at least two other code sections: Code Ann. § 26-1813(b) (Ga.L.1968, pp. 1249, 1295; 1969, pp. 857, 861), regarding motor vehicle theft; and Code § 27-2511, in regard to habitual offenders. See Studdard v. State, 225 Ga. 410(1), 169 S.E.2d 327. See also, Tribble v. State, 168 Ga. 699(2), 148 S.E 593; Coleman v. State, 215 Ga. 865(2), 114 S.E.2d 2.

Secondly, since this is a question of first impression before this court, the judicial construction already placed upon a similar statute of another state in effect at the time of the adoption of the Georgia Act is considered to accompany it and is treated as incorporated therein. Seaboard Air-Line Ry. Co. v. Fountain, 173 Ga. 593(2a), 160 S.E. 789; Tamiami Trail Tours, Inc. v. Georgia Public Service Commission, 213 Ga. 418, 99 S.E.2d 225.

The Georgia statute is substantially similar to Section 190.1 of the California Penal Code adopted in 1957. (West's Ann. Penal Code, § 190.1, p. 729).

That section provides in pertinent part as follows: 'The guilt or innocence of every person charged with an offense for which the penalty is in the alternative death or imprisonment for life shall be first determined, without a finding as to penalty. If such person has been found guilty of an...