GEORGIA SUPREME COURT

CLICK TO READ Larry Jenkins v. State of Georgia, Docket # S23A0534

The Supreme Court has reversed Larry Jenkins’s convictions for murder and other crimes, concluding that the Glynn County trial court incorrectly decided that Jenkins’s invocation of his right not to speak to law enforcement without a lawyer present was invalid and errantly allowed into evidence statements Jenkins made while in custody, including a confession.

Today’s 5-4 opinion, authored by Presiding Justice Nels S.D. Peterson, notes that the trial court had agreed with the State, concluding that Jenkins’s confession came at a time when Jenkins was not being interrogated and thus his invocation of his Miranda rights was “anticipatory” and invalid under a line of precedent from several federal courts of appeals. (The State in this case is represented by the Brunswick Judicial Circuit District Attorney’s Office and the Office of the Attorney General of Georgia.)

“We need not decide here whether that line of precedent is correct, because the trial court erred by extending that precedent to the circumstances in this case,” Presiding Justice Peterson writes. “At the time that Jenkins invoked his Miranda rights, he (1) was in custody for the crimes at issue in this case, (2) had been given Miranda warnings, (3) had already been subjected to custodial interrogation by law enforcement on the way to the jail, and (4) was going through the booking process. Whether or not the booking process itself was custodial interrogation, the facts of this case show that a reasonable person in Jenkins’s position would have believed the interrogation was at least imminent. Accordingly, his unequivocal invocation was valid, the State’s failure to honor it rendered his custodial statements inadmissible, and the State has failed to show that the use of that inadmissible evidence was harmless.”

(Miranda rights are derived from the United States Supreme Court’s 1966 decision in Miranda v. Arizona and include the right to remain silent, the right to an attorney, and the warning that anything the suspect says can and will be used against him in court.)

Jenkins’s case has a lengthy procedural history. In January 1993, he was arrested on suspicion of kidnapping and fatally shooting 37-year-old Terri Ralston and her 15-year-old son. Jenkins was put on trial in 1995, but prosecutors for the State were not allowed to present the jury with his custodial statements, including his confession. Nevertheless, the jury convicted Jenkins of two counts of malice murder, armed robbery, and other crimes, and Jenkins was sentenced to death. The Supreme Court of Georgia affirmed his convictions and sentences in 1998.

In 2005, a habeas court vacated Jenkins’s death sentences; the United States Supreme Court had held earlier that same year in Roper v. Simmons that the death penalty was unconstitutional for defendants younger than 18 and Jenkins was 17 at the time the murders occurred. The habeas court also granted Jenkins a new trial on the basis of ineffective assistance of trial counsel. The Supreme Court of Georgia affirmed the habeas court’s decisions in 2006.

In 2014, the State, seeking to retry Jenkins for the murders of Ralston and her son, filed a motion to admit Jenkins’s custodial statements, which the trial court and parties treated as a motion to reconsider the trial court’s previously granted motion to suppress those statements. The trial court determined that Jenkins’s custodial statements, including his confession, were admissible because Jenkins had not validly invoked his right to counsel under Miranda. During Jenkins’s second trial, his confession was introduced as evidence against him, and he was convicted and sentenced to serve consecutive life terms in prison.

The trial court later dismissed the theft charges against Jenkins at the request of the State but denied Jenkins’s request for a new, third trial on the remaining charges. The matter currently before the Supreme Court of Georgia stems from Jenkins’s appeal of the trial court’s denial of his new trial motion.

On appeal, Jenkins argued in written briefs that the trial court lacked the authority to revisit the prior suppression order and that, even if it had such authority, the trial court erred in concluding that his invocation of his Miranda rights was ineffective because it was anticipatory. Today, the Supreme Court of Georgia has not reached a conclusion on the trial court’s authority to revisit the prior suppression order, instead concluding that the court erred in determining that Jenkins did not validly invoke his Miranda rights. The Supreme Court also has not rendered an opinion on whether the physical evidence derived from Jenkins’s custodial interview was due to be suppressed because that separate issue was not preserved for review on appeal.

Because the other evidence against Jenkins “was constitutionally sufficient,” he may be retried, today’s majority opinion states.

A dissenting opinion, authored by Justice Shawn Ellen LaGrua and joined by Justices John J. Ellington, Carla Wong McMillian, and Verda M. Colvin, states that the trial court did not err in admitting Jenkins’s custodial statement at his new trial, because Jenkins “did not invoke his right to counsel during a custodial interrogation and because there is no legal authority to support the majority opinion’s conclusion that a defendant can invoke his Miranda rights when ‘a reasonable person in [the defendant’s] position’ believes ‘an interrogation is imminent.’”

The dissenting opinion further states that the majority opinion “announces a new legal standard” for determining whether an interrogation is imminent.

“And, although the majority opinion claims that it is merely assuming without deciding that the ‘imminent interrogation’ rule applies, it is difficult to discern how the majority is not adopting that rule as the law in this State when the majority is applying it to reverse these double murder convictions,” Justice LaGrua writes.

In response, the majority opinion states that it is actually the dissenting opinion that proposes “a wholly new standard,” holding that the only time at which Miranda’s right to counsel can ever be invoked is during a custodial interrogation.

“The dissent believes that Jenkins’s unequivocal invocation of his right to counsel under Miranda was invalid because it occurred between custodial interrogations, rather than during custodial interrogation,” Presiding Justice Peterson writes. “No legal authority the dissent relies upon supports this unprecedented position.”

Attorney for Appellant (Jenkins): Robert Lawrence Persse

Attorneys for Appellee (State): Keith Higgins, Brunswick Judicial Circuit District Attorney; Benjamin E. Gephardt, Asst. D.A.; Christopher M. Carr, Attorney General of Georgia; Beth A. Burton, Deputy A.G., Paula K. Smith, Sr. Asst. A.G.; Michael A. Oldham, Asst. A.G.

CLICK TO READ Cody Allen Regan v. State of Georgia, Docket # S23A0686

The Supreme Court of Georgia has concluded that the state’s sentencing scheme for child molestation, as applied to Cody Allen Regan, violated Regan’s right to equal protection.

The Court therefore vacated Regan’s sentence and reversed a Newton County trial court’s order denying Regan’s challenge of the state’s child molestation statute—referred to in this case as a motion in arrest of judgment—and sent the case back to the trial court for Regan to be resentenced for misdemeanor child molestation.

Today’s 7-2 opinion, authored by Justice Verda M. Colvin, notes a discrepancy between Georgia Code § 16-6-4(d)(2), which provides for a misdemeanor sentence for aggravated child molestation where the victim is at least 13 years old (among other conditions) and Georgia Code § 16-6-4(b)(2), which provides for a misdemeanor sentence for child molestation where the victim is at least 14 years old.

Regan was 17 years old at the time he molested his 13-year-old stepsister in 2017. He entered a guilty plea on one count of child molestation without a plea agreement and filed a motion in arrest of judgment challenging, in part, the constitutionality of the child molestation statute as applied to him. He has argued that he improperly received a felony sentence for child molestation because he is similarly situated to people receiving misdemeanor sentences for aggravated child molestation.

State law generally defines child molestation as occurring when a person does an immoral or indecent act to or in the presence of any child under the age of 16 with the intent to arouse or satisfy sexual desires of either the child or the person. [Georgia Code § 16-6-4(a)(1)] State law defines aggravated child molestation as an act of child molestation that also physically injures the child or involves an act of sodomy. Generally, a first offense of child molestation is punishable by a prison term of five to 20 years, whereas a first offense of aggravated child molestation is punishable by either life in prison or a prison term of at least 25 years followed by probation for life. [Georgia Code §§ 16-6-4(b)(1) and 16-6-4(d)(1), respectively]

The trial court denied Regan’s motion in arrest of judgment and sentenced Regan to a term of 20 years in prison, with one year to serve.

“Because the victim in this case was 13 years old, Appellant did not qualify for the misdemeanor sentence he would have received if he had instead committed aggravated child molestation,” Justice Colvin writes. “There is no rational basis for such disparate treatment.”

Justice Charlie Bethel has authored a dissenting opinion, joined by Justice Shawn Ellen LaGrua, in which he disagrees with the majority opinion’s analysis of Regan’s equal protection claim.

“Because Appellant is not treated less favorably than any individual he has identified or theorized who engaged in the same conduct, his equal-protection claim fails,” Justice Bethel writes. “…I conclude that Appellant is not similarly situated to defendants charged with and convicted of aggravated child molestation and that he has failed to carry his burden of proving that the law under which he was sentenced is not rationally related to a legitimate government purpose.”

In response, the majority opinion states that whether or not Regan engaged in sodomy is not relevant under these particular circumstances where “Appellant committed simple child molestation but received a more severe punishment than the aggravated version of the same offense [even though] he did not engage in the type of behavior that makes the offense aggravated.”

Justice Andrew A. Pinson, in a concurring opinion joined by Presiding Justice Nels S.D. Peterson and Justices Sarah Hawkins Warren and Carla Wong McMillian, writes that while he agrees with the Court’s narrow holding that the sentencing provisions, as applied to Regan, violated Regan’s right to equal protection, he also does not view federal equal protection analysis to “require a separate, threshold determination whether a claimant is ‘similarly situated’ to members of the class who are treated differently from him.”

Attorneys for Appellant (Regan): Gordon Clark Hall, Jr., Melinda Johnson

Attorneys for Appellee (State): Randy McGinley, Alcovy Judicial Circuit Acting District Attorney; Bailey Simkoff, Sr. Asst. D.A.

GEORGIA COURT OF APPEALS

No reversals reported