hb170_HB_170_CSFA

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05 HB 170/CSFA

House Bill 170 (COMMITTEE SUBSTITUTE) (AM)

By: Representatives Golick of the 34th, Roberts of the 154th, Ralston of the 7th, Mumford of the 95th, Miller of the 106th, and others

A BILL TO BE ENTITLED
AN ACT

To enact the "Criminal Justice Act of 2005" so as to substantially revise the laws of this state relating to the conduct of criminal trials and appeals in criminal cases; to provide for a short title; to amend Title 5 of the Official Code of Georgia Annotated, relating to appeal and error, so as to specifically provide that the denial of a defendant́s motion to recuse may be subject to interlocutory appeal; to provide that the state may appeal from an order, decision, or judgment of a superior court granting a motion for new trial or denying a motion by the state to recuse or disqualify a judge; to amend Article 5 of Chapter 12 of Title 15 of the Official Code of Georgia Annotated, relating to trial juries, so as to provide the state and the accused with the same number of peremptory challenges in misdemeanor, felony, and death penalty cases and in challenging alternate jurors; to provide the manner in which peremptory challenges are made; to change the size of the jury panel in felony and death penalty cases; to provide for excuses for cause under certain circumstances; to provide the manner in which the number of alternative jurors is determined; to amend Title 17 of the Official Code of Georgia Annotated, relating to criminal procedure, so as to provide for additional peremptory challenges in trials for jointly indicted defendants; to provide that the prosecuting attorney shall always conclude the argument to the jury; to provide that provisions relating to discovery apply to sentencing proceedings; to change certain provisions relating to discovery; to amend Title 24 of the Official Code of Georgia Annotated, relating to evidence, so as to change the provisions relating to the impeachment of the defendant; to change provisions relating to when a witness has been impeached; to provide for the impeachment of witnesses through evidence of conviction of a crime and bad character; to provide for the admission of specific instances of conduct by a witness; to provide for other matters relative to the foregoing; to provide for applicability; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

This Act shall be known and may be cited as the "Criminal Justice Act of 2005."

SECTION 2.

Title 5 of the Official Code of Georgia Annotated, relating to appeal and error, is amended by striking subsection (b) of Code Section 5-6-34, relating to direct appeal and other review, and inserting in its place a new subsection (b) to read as follows:

"(b) Where the trial judge in rendering an order, decision, or judgment, not otherwise subject to direct appeal, including but not limited to the denial of a defendant́s motion to recuse in a criminal case, certifies within ten days of entry thereof that the order, decision, or judgment is of such importance to the case that immediate review should be had, the Supreme Court or the Court of Appeals may thereupon, in their respective discretions, permit an appeal to be taken from the order, decision, or judgment if application is made thereto within ten days after such certificate is granted. The application shall be in the nature of a petition and shall set forth the need for such an appeal and the issue or issues involved therein. The applicant may, at his or her election, include copies of such parts of the record as he or she deems appropriate, but no certification of such copies by the clerk of the trial court shall be necessary. The application shall be filed with the clerk of the Supreme Court or the Court of Appeals and a copy of the application, together with a list of those parts of the record included with the application, shall be served upon the opposing party or parties in the case in the manner prescribed by Code Section 5-6-32, except that such service shall be perfected at or before the filing of the application. The opposing party or parties shall have ten days from the date on which the application is filed in which to file a response. The response may be accompanied by copies of the record in the same manner as is allowed with the application. The Supreme Court or the Court of Appeals shall issue an order granting or denying such an appeal within 45 days of the date on which the application was filed. Within ten days after an order is issued granting the appeal, the applicant, to secure a review of the issues, may file a notice of appeal as provided in Code Section 5-6-37. The notice of appeal shall act as a supersedeas as provided in Code Section 5-6-46 and the procedure thereafter shall be the same as in an appeal from a final judgment."

SECTION 3.

Said title is further amended by striking subsection (a) of Code Section 5-7-1, relating to orders, decisions, or judgments appealable by state, and inserting in lieu thereof a new subsection (a) to read as follows:

"(a) An appeal may be taken by and on behalf of the State of Georgia from the superior courts, state courts, City Court of Atlanta, and juvenile courts and such other courts from which a direct appeal is authorized to the Court of Appeals of Georgia and the Supreme Court of Georgia in criminal cases and adjudication of delinquency cases in the following instances:

(1) From an order, decision, or judgment setting aside or dismissing any indictment, accusation, or petition alleging that a child has committed a delinquent act or any count thereof;

(2) From an order, decision, or judgment arresting judgment of conviction or adjudication of delinquency upon legal grounds;

(3) From an order, decision, or judgment sustaining a plea or motion in bar, when the defendant has not been put in jeopardy;

(4) From an order, decision, or judgment suppressing or excluding evidence illegally seized or excluding the results of any test for alcohol or drugs in the case of motions made and ruled upon prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first;

(5) From an order, decision, or judgment of a court where the court does not have jurisdiction or the order is otherwise void under the Constitution or laws of this state;

(6) From an order, decision, or judgment of a superior court transferring a case to the juvenile court pursuant to subparagraph (b)(2)(B) of Code Section 15-11-28; or

(7) From an order, decision, or judgment of a superior court granting a motion for new trial or an extraordinary motion for new trial; or

(8) From an order, decision, or judgment denying a motion by the state to recuse or disqualify a judge made and ruled upon prior to the defendant being put in jeopardy."

SECTION 4.

Article 5 of Chapter 12 of Title 15 of the Official Code of Georgia Annotated, relating to trial juries, is amended by striking Code Section 15-12-125, relating to demand of jury panels for misdemeanor trials, and inserting in lieu thereof a new Code Section 15-12-125 to read as follows:

"15-12-125.

For the trial of misdemeanors in all courts, each party may demand a full panel of 12 14 competent and impartial jurors from which to select a jury. When one or more of the regular panel of trial jurors is absent or for any reason disqualified, the judge, at the request of counsel for either party, shall cause the panel to be filled by additional competent and impartial jurors to the number of 12 14 before requiring the parties or their counsel to strike a jury. From this panel, the accused shall have the right to challenge four peremptorily, defendant and the state two shall each have the right to challenge four jurors peremptorily. The defendant and the state shall exercise their challenges as provided in Code Section 15-12-166. The remaining six jurors shall constitute the jury."

SECTION 5.

Said article is further amended by striking Code Section 15-12-160, relating to required panel of jurors in felony trial, and inserting in lieu thereof a new Code Section 15-12-160 to read as follows:

"15-12-160.

When any person stands indicted for a felony, the court shall have impaneled 30 36 jurors from which the defense and prosecution may strike jurors; provided, however, that in any case in which the state announces its intention to seek the death penalty, the court shall have impaneled 42 48 jurors from which the defense and state may strike jurors. If, for any reason, after striking from the panel there remain less than 12 qualified jurors to try the case, the presiding judge shall summon such numbers of persons who are competent jurors as may be necessary to provide a full panel. In making up the panel or successive panels, the presiding judge shall draw the tales jurors from the jury box of the county and shall order the sheriff to summon them."

SECTION 6.

Said article is further amended by adding at the end of Code Section 15-12-164, relating to challenges to jurors in a felony trial, a new subsection (d) to read as follows:

"(d) The court shall also excuse for cause any juror who from the totality of the juroŕs answers on voir dire is determined by the court to be substantially impaired in the juroŕs ability to be fair and impartial. The juroŕs own representation that the juror would be fair and impartial is to be considered by the court but is not determinative."

SECTION 7.

Said article is further amended by striking Code Section 15-12-165, relating to number of peremptory challenges, and inserting in lieu thereof a new Code Section 15-12-165 to read as follows:

"15-12-165.

Every person indicted for a crime or offense accused of a felony may peremptorily challenge 12 of the jurors impaneled to try him or her. The state shall be allowed one-half the same number of peremptory challenges allowed to the accused defendant; provided, however, that in any case in which the state announces its intention to seek the death penalty, the person indicted for the crime defendant may peremptorily challenge 20 18 jurors and the state shall be allowed one-half the same number of peremptory challenges allowed to the accused."

SECTION 8.

Said article is further amended by striking Code Section 15-12-169, relating to manner of selecting alternate jurors, and inserting in lieu thereof a new Code Section 15-12-169 to read as follows:

"15-12-169.

Alternate jurors must be drawn from the same source and in the same manner and have the same qualifications as the jurors already sworn. They shall be subject to the same examination and challenges. The number of alternate jurors shall be determined by the court. The state and the defendant shall be entitled to as many peremptory challenges to alternate jurors as there are alternate jurors called. The defendant shall be entitled to additional peremptory challenges in an amount twice greater than the additional peremptory challenges of the state. The peremptory challenges allowed to the state and to the defendant in such event shall be in addition to the regular number of peremptory challenges allowed in criminal cases to the defendant and to the state as provided by law. When two or more defendants are tried jointly, each defendant shall be entitled to as many peremptory challenges to alternate jurors as there are alternate jurors called the number and manner of exercising peremptory challenges shall be determined as provided in Code Section 17-8-4."

SECTION 9.

Title 17 of the Official Code of Georgia Annotated, relating to criminal procedure, is amended by striking Code Section 17-8-4, relating to procedure for trial of jointly indicted defendants, and inserting in lieu thereof a new Code Section 17-8-4 to read as follows:

"17-8-4.

(a) When two or more defendants are jointly indicted for a capital offense, any defendant so electing shall be separately tried unless the state shall waive the death penalty. When indicted for a capital felony when the death penalty is waived, or for a felony less than capital, or for a misdemeanor, such defendants may be tried jointly or separately in the discretion of the trial court. In any event, a jointly indicted defendant may testify for another jointly indicted defendant or on behalf of the state. When separate trials are ordered in any case, the defendants shall be tried in the order requested by the state. If the offense requires joint action and concurrence of two or more persons, acquittal or conviction of one defendant shall not operate as acquittal or conviction of others not tried.

(b) When two or more defendants are tried jointly for a crime or offense, such defendants shall be entitled to the same number of strikes as a single defendant if tried separately. The strikes shall be exercised jointly by the defendants or shall be apportioned among the defendants in the manner the court shall direct. In the event two or more defendants are tried jointly, the court, upon request of the defendants, acting in its sole discretion, may shall allow an equal number of additional strikes to the defendants, not to exceed five each, as the court shall deem necessary, to the ends that justice may prevail. The court may allow the state additional strikes not to exceed the number of additional strikes as are allowed to the defendants."

SECTION 10.

Said title is further amended by striking Code Section 17-8-71, relating to order of argument after evidence presented, and inserting in lieu thereof a new Code Section 17-8-71 to read as follows:

"17-8-71.

After the evidence is closed on both sides, the prosecuting attorney shall open and conclude the argument to the jury. If the defendant introduces no evidence, his counsel shall open and conclude the argument to the jury after the evidence on the part of the state is closed The defendant shall be entitled to make a closing argument prior to the concluding argument of the prosecuting attorney."

SECTION 11.

Said title is further amended by striking subsection (a) of Code Section 17-10-2, relating to conduct of presentence hearings in felony cases, and inserting in lieu thereof a new subsection (a) to read as follows:

"(a)(1) Except in cases in which the death penalty or life without parole may be imposed, upon the return of a verdict of 'guilty' by the jury in any felony case, the judge shall dismiss the jury and shall conduct a presentence hearing at which the only issue shall be the determination of punishment to be imposed. In the hearing the judge shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or nolo contendere of the defendant, or the absence of any prior conviction and pleas, provided that only such evidence in aggravation as the state has made known to the defendant prior to the defendant́s trial shall be admissible.

(2) The judge shall also hear argument by the defendant or the defendant́s counsel and the district prosecuting attorney, as provided by law, regarding the punishment to be imposed. The district Except in cases where the death penalty may be imposed, the prosecuting attorney shall open and the defendant or the defendant́s counsel shall conclude the argument. In cases where the death penalty may be imposed, the prosecuting attorney shall open and the defendant or the defendant́s counsel shall conclude the argument.

(3) Upon the conclusion of the evidence and arguments, the judge shall impose the sentence or shall recess the trial for the purpose of taking the sentence to be imposed under advisement. The judge shall fix a sentence within the limits prescribed by law."

SECTION 12.

Said title is further amended by adding a new subsection (e) to Code Section 17-16-2, relating to applicability of discovery in criminal cases, to read as follows:

"(e) Except as provided in paragraph (3) of subsection (b) of Code Section 17-16-4, if a defendant has elected to have the provisions of this article apply, the provisions of this article shall also apply to sentencing hearings and the sentencing phase of a death penalty trial."

SECTION 13.

Said title is further amended in Code Section 17-16-4, relating to discovery disclosure required by the prosecuting attorney and defendant, by adding a new paragraph (5) at the end of subsection (a) and a new paragraph (3) at the end of subsection (b) to read as follows:

"(5) The prosecuting attorney shall, no later than ten days prior to trial, or at such time as the court orders but in no event later than the beginning of the trial, provide the defendant with notice of any evidence in aggravation of punishment that the state intends to introduce in sentencing."

"(3)(A) The defendant shall, no later than the conclusion of the charge of the jury by the court or if the defendant has waived a jury trial at the time the case is submitted to the court for judgment, permit the prosecuting attorney to inspect and copy or photograph books, papers, documents, photographs, tangible objects, audio and visual tapes, films and recordings, or copies or portions thereof and to inspect and photograph buildings or places which are within the possession, custody, or control of the defendant and which the defendant intends to introduce as evidence in the presentence hearing.

(B) The defendant shall, no later than the conclusion of the charge of the jury by the court or if the defendant has waived a jury trial at the time the case is submitted to the court for judgment, permit the prosecuting attorney to inspect and copy or photograph a report of any physical or mental examinations and scientific tests or experiments, including a summary of the basis for the expert opinion rendered in the report, or copies thereof, if the defendant intends to introduce in evidence in the presentence hearing the results of the physical or mental examination or scientific test or experiment. If the report is oral or partially oral, the defendant shall reduce all relevant and material oral portions of such report to writing and shall serve opposing counsel with such portions.

(C) The defendant shall, no later than the conclusion of the charge of the jury by the court or if the defendant has waived a jury trial at the time the case is submitted to the court for judgment, serve upon the prosecuting attorney a list of witnesses that the defendant intends to call as a witness in the presentence hearing. At the same time, the defendant shall produce for the opposing party any statement of such witnesses that is in the possession, custody, or control of the defendants or the defendant́s counsel that relates to the subject matter of the testimony of such witnesses."

SECTION 14.

Title 24 of the Official Code of Georgia Annotated, relating to evidence, is amended by striking subsections (b) and (c) of Code Section 24-9-20, relating to testimony of criminal defendant, and inserting in lieu thereof new subsections (b) and (c) to read as follows:

"(b) If a defendant in a criminal case wishes to testify and announces in open court his or her intention to do so, he the defendant may so testify in his or her own behalf. If a defendant testifies, he or she shall be sworn as any other witness and may be examined and cross-examined as any other witness, except that no evidence of general bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue. Evidence of prior felony convictions may be admitted in those cases where the prior felony convictions are alleged in the indictment, as provided by law. The failure of a defendant to testify shall create no presumption against him or her, and no comment shall be made because of such failure.

(c) In the event that a defendant elects to be sworn and examined, he shall not lose his right to open and conclude the argument to the jury, if he has not introduced other evidence in the trial."

SECTION 15.

Said title is further amended by striking Code Section 24-9-81, relating to when own witness may be impeached, and inserting in lieu thereof a new Code Section 24-9-81 to read as follows:

"24-9-81.

A party may not impeach a witness voluntarily called by him, except where he can show to the court that he has been entrapped by said witness by a previous contradictory statement. Any party, including the party calling the witness, may attack the credibility of a witness. However, in In the trial of all civil cases, either plaintiff or defendant shall be permitted to make the opposite party, or anyone for whose immediate benefit the action is prosecuted or defended, or any agent of said party, or agent of any person for whose immediate benefit such action is prosecuted or defended, or officer or agent of a corporation when a corporation is such party or for whose benefit such action is prosecuted or defended a witness, with the privilege of subjecting such witness to a thorough and sifting examination and with the further privilege of impeachment, as if the witness had testified in his or her own behalf and were being cross-examined."

SECTION 16.

Said title is further amended by striking Code Section 24-9-84, relating to how witnesses are impeached by proof of general bad character, and inserting in lieu thereof new Code Sections 24-9-84 and 24-9-84.1 to read as follows:

"24-9-84.

A witness may be impeached by evidence as to his general bad character. Any party may impeach the credibility of a witness by offering evidence of the witnesśs bad character in the form of reputation, but subject to the following limitations:

(a) The evidence may refer only to character for truthfulness or untruthfulness;

(b) Evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by reputation evidence or otherwise;

(c) In a criminal case, the character for untruthfulness of the defendant may be introduced in evidence only if the defendant testifies and offers evidence of his or her truthful character; and

(d) The impeaching character witness should first be questioned as to his or her knowledge of the general character of the witness, next as to what that character is, and lastly he the character witness may be asked if from that character he or she would believe him or her on his or her oath. The witness may be sustained by similar proof of character. The particular transactions or the opinions of single individuals shall not be inquired of on either side, except upon cross-examination in seeking for the extent and foundation of the witnesśs knowledge.

24-9-84.1.

(a) General rule. For the purpose of attacking the credibility of a witness, or of the defendant, if the defendant testifies:

(1) Evidence that a witness 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 witness was convicted if the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the witness; and

(2) Evidence 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; and

(3) Evidence that any witness or the defendant has been convicted of a crime shall be admitted if it involved dishonesty or making a false statement, regardless of the punishment that could be imposed for such offense.

(b) Time limit. Evidence of a conviction under subsection (a) of this Code section is not admissible if a period of more than seven years has elapsed since the date of the conviction or of the release of the witness or the defendant from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than seven years old, as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

(1) The conviction has been the subject of a pardon or annulment based on a finding of the rehabilitation of the person convicted and such person has not been convicted of a subsequent crime that was punishable by death or imprisonment for one year or more; or

(2) The conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d) Juvenile adjudications. An adjudication of delinquency in juvenile court shall be inadmissible against a defendant in a criminal case. An adjudication of delinquency in juvenile court shall be presumed to be inadmissible against a witness in a criminal case; however, this presumption may be rebutted only if it is shown that:

(1) The factual basis for the proven allegations of delinquency would have constituted a crime under the laws of the state of the juvenile court if committed by an adult at the time they were committed by the juvenile:

(2) The probative value of the evidence substantially outweighs the prejudicial effect of its admission; and

(3) The court finds that admission of the adjudication into evidence is necessary for a fair determination of the issue of guilt or innocence of the defendant.

(e) Pendency of appeal. The pendency of an appeal from a conviction does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal shall be admissible."

SECTION 17.

This Act shall apply to all cases indicted or accused on or after July 1, 2005.

SECTION 18.

All laws and parts of laws in conflict with this Act are repealed.