Perez v. State

¶1concurring specially.

¶2I concur fully with all that is said by the majority. I write separately merely to undergird the important right at stake — the constitutional right to confront one’s accusers.

¶3Wisdom does not greet us at the door of legal issues. For accurate and adequate disposition of issues, we look first to precedent. Failure to adhere to precedent, without a rational basis, creates judicial uncertainty. And we can neither risk nor condone judicial uncertainty, which not only risks institutional uncertainty, but also uncertainty in the law itself. Accordingly, stare decisis should govern. Nothing has happened between our decision in Vogleson v. State11 and our decision today that warrants a departure from our earlier *876opinion. Indeed, the dissent’s rationale is no more compelling now than when we met it in Vogleson.

¶4I remain steadfast in my belief that a defendant’s right to a sifting cross-examination of his accusers includes the ability “to establish the exact nature and extent of any bias on the part of a State’s witness, which includes the ability to delve into the details of the deal reached with the State.”12 And the dissent’s argument does nothing to dissuade me. Rather, it clearly solidifies my views.

¶5The dissent hinges upon the assertion that the testifying co-defendant’s actual prison time is an unknown. Thus, the dissent reasons, the specific number of years in prison “saved” by that co-defendant is misleading. What the dissent fails to recognize, however, is that evidence regarding the actual number of years subtracted from a mandatory sentence in exchange for the testimony of a co-defendant is not offered to show how many years that witness will actually serve in prison. Rather, it provides an objective and accurate benchmark for jurors, who are then charged with determining whether the deal that the witness struck with the state was sufficiently lucrative to render that witness’s testimony less creditworthy. And, as in Vogleson, I do not believe that oblique references to “lengthy sentences” sufficiently inform jurors regarding possible bias. Indeed, what constitutes a lengthy sentence is inherently subjective and likely varies considerably depending upon the age and experience of each individual juror.

¶6With ardor amiss, the dissent firmly focuses on so-called “juror deception.” In so doing, the dissent either fails or refuses to grasp the crux of the issue. Accordingly, I believe that the dissent’s rationale is fundamentally flawed. The two competing interests at issue both in Vogleson and here are: (1) the defendant’s right to thoroughly cross-examine an accomplice witness; and (2) the defendant’s right to a bifurcated trial in which his punishment is not addressed until his guilt is established. The sole reason for refusing to admit evidence of the possible punishment faced by the co-defendant is that it necessarily raises the issue of the defendant’s possible punishment.13 If, as the dissent contends, the actual sentence is a complete unknown, then why the prohibition against injecting the sentence faced by the defendant? Surely the Board of Pardons & Paroles is just as likely to reduce the sentence of the defendant as well as that of the co-defendant. Accordingly, if the dissent’s reasoning is accepted, there is no reason for excluding evidence of the sentence faced either by the defendant or the co-defendant. It follows that there is even less rea*877son to prohibit a defendant from cross-examining the testifying accomplice.

¶7Contrary to the dissent’s position, however, the sentence is not an unknown quantity — it is a concrete number. Although that number may not translate into the exact number of years a defendant may actually serve, it nonetheless provides jurors an accurate benchmark. If this were not the case, there would be no need for a bifurcated trial, which “was created to withhold matters inadmissible on the issue of guilt or innocence from the jury until that issue has been determined.”14 Inherent in OCGA § 17-10-2, the statute establishing the bifurcated procedure, is the premise that the introduction of a defendant’s possible sentence is potentially prejudicial. Even if such sentence is not exact, it is not, as the dissent would have us believe, meaningless — either to the defendant or to the testifying co-defendant. And, if a defendant chooses to elicit such potentially prejudicial testimony from the co-defendant in the hopes of establishing bias, the defendant should retain the right to make such choice.

¶8In the theater of the judiciary, where life, liberty, and property are at stake, no person should be allowed to pit his self-interest against that of another without the severest scrutiny. Here, the dissent would allow a testifying co-defendant to act in his self-interest by cooperating with the State, without allowing the defendant to fully scrutinize that interest. The treachery of this error lies in the tragedy of its truth, that is: self-interest versus self-interest. The dissent, with all of its celerity, continues to move in a different and distant direction. But our constitution protects one irrespective of crime or creed, piety or position, wit or wealth.

¶9The dissent urges us to employ both reason and the law. However, I find the dissent’s position unreasonable and contrary to law. As that judicial cognoscenti, Oliver Wendell Holmes, Jr., said, “[t]he life of the law has not been logic: it has been experience.”15 Another sage, Benjamin N. Cardozo, reminds us from the past,

[t]he law has “its epochs of ebb and flow.” One of the flood seasons is upon us. Men are insisting, as perhaps never before, that law shall be made true to its ideals of justice. Let us gather up the driftwood, and leave the waters pure.16

¶10Our reasoning in Vogleson was sound, and our opinion there should remain safe. And, as for the law, Vogleson remains the law *878and should be followed consistent with stare decisis. The waters are pure, and we should leave them so. Hence, I concur fully with the majority.

¶11I am authorized to state that Presiding Judge Pope, Presiding Judge Smith and Judge Barnes join in this concurrence and special concurrence.

¶18dissenting.

¶19This Court continues to tread a wrong path only recently forged in Vogleson v. State.17 The wrong created by Vogleson can be corrected. However, to do so would require quieting the roar of “Sixth Amendment Rights!” that accompanied the Vogleson decision, a din that — when improperly applied as in Vogleson — is superficial.18 Instead, I urge the employment of reason — and the law.

¶201. In Perez’s case, as in Vogleson, informing the jury of the statutory sentence an accomplice avoided by pleading to less than the indicted offense also informs the jury of the statutory sentence the defendant is facing under the indicted offense — if the jury convicts him. Every jury, composed of ordinary human beings, feels the pressure that accompanies its duty to convict when the evidence so demands. Such pressure can only increase with the knowledge of the statutory sentence to be imposed on a defendant — if the jury convicts him. It is for this reason, a defense attorney may want sentencing information to go before the jury, hoping to play upon emotions regardless of the facts. And it is for this same reason the statutory sentence authorized by conviction has never been permitted to go before the jury during guilt/innocence deliberation: “injection of sentence in a jury’s deliberation as to guilt or innocence is improper.”19 This is because the sentence carried by a particular crime is completely irrelevant with regard to whether a defendant actually committed the crime. Such principle of law has deep roots which the majority appears completely willing to abandon.20

¶21Because Vogleson represents a stark abandonment of stare deci-sis, it should be overruled. In doing so, this Court should adhere to *879the Supreme Court’s decision in Hodo v. State.21When a defendant is otherwise permitted to thoroughly explore an accomplice’s deal with the State as a motivation for testifying, the refusal to permit conjecture about specific penalties imposed or to be imposed does not amount to an abuse of the trial court’s discretion.22

¶222. Also, in Vogleson and now here, this Court endorses a strategy which misleads a jury into believing that the statutory sentence authorized by an indicted offense is identical to the amount of “prison time” an accomplice avoided by pleading to a lesser offense and testifying for the State. As was stated in Vogleson,

the trial court completely precluded any testimony regarding the sentence [the accomplice-witness] would have received if he had not reached a deal with the State and had been convicted of the crimes for which he was indicted. By doing so, the trial court prevented the jury from considering the most important aspect of [his] deal — how much prison time he was avoiding by agreeing to cooperate with the State.23

¶23Vogleson held that it is proper to inform a jury on cross-examination that “the accomplice-witness ‘saved himself’ a minimum of 15 years by virtue of reaching a deal with the State.”24 And, again here, the majority reiterates this principle by holding that a defense attorney may put before the jury “the amount of prison time the co-defendant or accomplice would avoid by agreeing to cooperate with the State and testify against the defendant.”

¶24But, this Court is well aware that the amount of prison time “saved/avoided” by Cruz’s plea cannot be known and is not the equivalent of the statutory sentence carried by the indicted offense. The State Board of Pardons & Paroles determines the amount of prison time on a sentence imposed for most offenses, including nonviolent crimes and drug offenses with “mandatory” sentences, as here and in Vogleson.25In fact, in the vast majority of cases, the amount of actual prison time is considerably less than the sentence authorized *880by the indicted offense.26 In this case, for example, Cruz will be eligible for parole after serving five years and Perez will be eligible for parole after seven years (the same scenario as Vogleson).27So, Cruz “saved himself” two years of prison time before the possibility of release, not the “minimum of 15 years” the specific statutory sentence — and Vogleson — would allow the jury to believe as a motivation for Cruz’s testimony.28 Obviously, the amount of prison time avoided by a plea is speculative and conjectural only.

¶25To allow a jury to believe that the sentence authorized by the indicted offense corresponds to the amount of “prison time” an accomplice avoided by pleading to a lesser offense is completely misleading. And why this Court continues to endorse such deception is a mystery. But clearly, in these circumstances, the State should be allowed to rehabilitate such misrepresentation on redirect. Under parole guidelines in most cases, an accomplice is not facing the amount of prison time authorized by the indicted offense; he knows he is not facing such prison time; and so avoiding such prison time cannot be the “motivation” for his testimony.29 If exploring an accomplice’s “motivation” for testifying is the reason for the majority’s decision, then the accomplice’s understanding of the prison time he actually faces under the indicted offense should be put before the jury as his “motivation” — not merely the statutory sentence carried by the indicted offense. Of course, such questioning will also inform the jury that the defendant does not face the amount of prison time authorized by the indicted offense. But misrepresentation of an accomplice’s motive to *881testify clearly merits correction. Invoking the Sixth Amendment cannot legitimate misrepresentation. Indeed, to me, the correction of such misrepresentation presents a compelling and logical reason to overrule Vogleson.

¶26Again, in overruling Vogleson, we should adhere to the Supreme Court’s decision in Hodo v. State, supra. When a defendant is otherwise permitted to thoroughly explore an accomplice’s deal with the State as a motivation for testifying, the refusal to permit conjecture about specific penalties imposed or to be imposed does not amount to an abuse of the trial court’s discretion. In so finding, we establish the continuity in the law that concerns us all.

¶27I am authorized to state that Presiding Judge Andrews joins in this dissent.