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DOCKET NO

:

IN THE SUPREME COURT OF THE UNITED STATES

DARRELL BROWN,
Petitioner in Certiorari,
v.

STATE OF GEORGIA,
Respondent in Certiorari.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE GEORGIA SUPREME COURT

PETITION FOR A WRIT OF CERTIORARI

COUNSEL OF RECORD:
Lloyd W. Walker, II.
119 Shadowood Lane
Peachtree City, GA 30269
Tel. 770-631-8187
Fax. 770-783-1458
Attorney for Petition r
RECEIVED

MAR 1 2 9

OFFICE ot" T. E elf
SUPRF. ~ ("~.::.. 0.

DOCKET NO:

_

IN THE SUPREME COURT OF THE UNlTED STATES

DARRELL BROWN,

Petitioner in Certiorari,
v.
STATE OF GEORGIA,

Respondent in Certiorari.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE GEORGIA SUPREME COURT

PETITION FOR A WRIT OF CERTIORARI

COUNSEL OF RECORD:

Lloyd W. Walker, II.
119 Shadowood Lane
Peachtree City, GA 30269
Tel. 770-631-8187
Fax. 770-783-1458
Attorney for Petitioner

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QUESTIONS PRESENTED

1.

Whether the recidivist exception set forth in Almendarez-Torres v. United

States, 523 U.s. 224 (1998) remains viable under this Court's evolving Sixth
Amendment jurisprudence as set forth in Apprendi v. New Jersey, 530 U.S. 466
(2000); Blakely v. Washington, 542 U.S. 296 (2004); United States v. Booker, 543
U.S. 220 (2005) and Cunningham v. California, 549 U.S. 270 (2007), and ifnot,
whether it should be overruled; and

2.

Whether Georgia's Two Strike law, O.C.G.A. § 17-1 0-7(b), which mandates

the imposition of the sentence of life without parole for the conviction of certain
violent felonies, upon a fmding of recidivism by the trial court, violates Petitioner's
Sixth Amendment right to a trial by jury in that the trial court, not a jury, finds the
predicate fact of recidivism which is the only basis for the imposition of the
sentence of life without parole.

APPENDIX 11 TABLE OF AUTHORITIES III 1 OPINION BELOW JURISDICTION 1 STATUTORY PROVISIONS INVOLVED 2 STATEMENT OF THE CASE 8 11 REASONS TO GRANT THE WRIT 22 CONCLUSION 11 .TABLE OF CONTENTS PAGE QUESTIONS PRESENTED 1 TABLE OF CONTENTS .

APPENDIX Order on Motion for Reconsideration and Revised Opinion Page 1 General Demurrer. Sentence and Final Disposition 27 Motion for New Trial and Amended Motion for New Trial 31 Brief In Support on the Issue of Sentencing 36 Motion for New Trial Hearing Transcript 48 Order on Motion for New Trial 64 Federal Question Portion of Brief before the Georgia Supreme Court 66 Original Indictment 75 Certified Conviction for Armed Robbery from Louisiana 79 1777 Constitution of the State of Georgia 88 1777 Georgia Statute of Reception 98 iii .TABLE OF CONTENTS . Amended General Demurrer and Order 8 Second Amendment to General Demurrer 15 Verdict and Redacted Indictment 18 Transcript of Sentencing Hearing 22 Judgment.

16 Walton v. ~ VI (1777) 19 Statutes: i.A. 9.S. Arizona. 13. 466 (2000) Blakely v. 220 (2005) 12.TABLE OF AUTHORITIES Page Cases: Almendarez-Torres v. 11.20 United States v. 536 U. 497 U.' 12.ll.G. United States. California. 542 U.S. 224 (1998) Apprendi v. Washington. Booker.C. 17 i. Arizona. 526 U. 17 Ring v. 227 (1999) 16. §16-10-41 iv . § 17-1 0-2(a)(1) 4 O. 639 (1990) 20 Constitutions: United States Constitution Amendment VI 2 The Constitution of the State of Georgia. 2. 270 (2007) i. ~I (1777) 19 The Constitution of the State of Georgia. 543 U.C. 13. §17-10-7(b) 3. 549 U. 14. 13 O. 12 O.S. 584 (2002) 15.S. 15.S.G. 530 U.8. 11.S.xLIII (1777) 19 The Constitution of the State of Georgia. 16 i. .S. 296 (2004) Cunningham v.C.C. New Jersey. § 17-1 0-6. 18. 19 i.G.A. II. 8. United States.S.A.1 4 O.A.G. 523 U. 12 Jones v.

236. An Act to Extend and enforce the authority.G. . (1777) 98 v .e. §16-5-40 Georgia Act No..Page 6 a.A.

§17-10-7(b) is repugnant to the Sixth Amendment of the United States Constitution. December 15. The Petitioner calls into question whether a. 2008.C.A. The opinion upon which review is sought was issued by the Georgia Supreme Court. Motion for Reconsideration Denied. App. § 1257(a). p.2008. 3. S08A1878. This Petition is timely filed in that the opinion in question was issued on November 3. November 3.C. The questions presented here were properly raised below and ruled upon by the trial court and the Georgia Supreme Court. with substitute opinion. Georgia Supreme Court Docket No.G. the highest court for the State of Georgia. 1 . JURISDICTION This Court has jurisdiction pursuant to 28 U.S. State o/Georgia. 2008.OPINION BELOW Darrell Brown v.2008 with a motion for reconsideration denied on December 15.

O.1. (2) Any person who has been convicted of a serious violent felony in this state or who has been convicted under the laws of any other state or of the United States of a crime which if committed in this state would be a serious violent felony and who after such first conviction subsequently commits and is convicted of a serious violent felony for which such person is not sentenced to death shall be sentenced to imprisonment for life without parole. §17-10-7(b): (1) As used in this subsection.STATUTORY PROVISIONS U. which district shall have been previously ascertained by law.S. Const. the accused shall enjoy the right to a speedy and public trial.G.A. and to have the Assistance of Counsel for his defence. by an impartial jury of the State and district wherein the crime shall have been committed. and to be informed of the nature and cause of the accusation. Any such sentence of life without parole shall not be suspended.C.: In all criminal prosecutions. to have compulsory process for obtaining witnesses in his favor. VI. the term "serious violent felony" means a serious violent felony as defined in subsection (a) of Code Section 17-10­ 6. Amend. 2 . to be confronted with the witnesses against him.

(5) Aggravated child molestation. leave. as defined in Code Section 16-5-1. (2) Armed robbery. as defined in Code Section 16-8-41..G. parole. and any such person sentenced pursuant to this paragraph shall not be eligible for any form of pardon. as defined in Code Section 16-5-40. 3 . as defined in subsection (c) of Code Section 16-6-4.C. (6) Aggravated sodomy. unless subject to the provisions of paragraph (2) of subsection (d) of Code Section 16-6-4. as defined in Code Section 16-6-1. as defined in Code Section 16-6-2. except as may be authorized by any existing or future provisions of the Constitution. the term "serious violent felony" means: (1) :Murder or felony murder. (4) Rape. §17-10-6.stayed.. or any other sentence-reducing measures under programs administered by the Department of Corrections. or (7) Aggravated sexual battery. O. deferred..2. or withheld. or early release administered by the State Board of Pardons and Paroles or for any earned time. early release. work release. the effect of which would be to reduce the sentence of life imprisonment without possibility of parole. probated.1: (a) As used in this Code section. (3) Kidnapping.. as defined in Code Section 16-6-22.A.

§16-10-41: (a) A person commits the offense of armed robbery when. or any replica. In the hearing the judge shall hear additional evidence in extenuation. 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. upon the return of a verdict of "guilty" by the jury in any felony case. 4 .A. mitigation. he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon. and aggravation of punishment.G. with intent to commit theft.The balance of this code section is set out in the Appendix. O. O.C.G. including the record of any prior criminal convictions and pleas of guilty or nolo contendere of the defendant. §17-10-2(a)(1): Except in cases in which the death penalty or life without parole may be imposed. supra. or device having the appearance of such weapon. or the absence of any prior conviction and pleas. The offense of robbery by intimidation shall be a lesser included offense in the offense of armed robbery.A.e. article.

the defendant shall be punished by imprisonment for not less than 15 years. compounding. displaying. or immediate precursor in Schedules I through V of Code Sections 16-13-25 through 16-13-29. dispensing. in any case in which the defendant commits armed robbery and in the course of the commission of the offense such person unlawfully takes a controlled substance from a pharmacy or a wholesale druggist and intentionally inflicts bodily injury upon any person. (2) As used in this subsection. (B) "Pharmacy" means any place licensed in accordance with Chapter 4 of Title 26 wherein the possessing. (c)(1) The preceding provisions of this Code section notwithstanding. including any and all portions of any building or structure leased.(b) A person convicted of the offense ofanned robbery shall be punished by death or imprisonment for life or by imprisonment for not less than ten nor more than 20 years. if found to be true by the court or if admitted by the defendant. used. or retailing of drugs may be conducted. substance. the term: (A) "Controlled substance" means a drug. such facts shall be charged in the indictment or accusation and. or controlled by the licensee in the conduct of the business licensed by the State Board 5 .

in addition. be subject to the sentencing and punishment provisions of Code Sections 17-10-6. storage.C. a. or hospital used in whole or in part for the sale. §16-5-40: (a) A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will. (d) Any person convicted under this Code section shall. or association registered with the State Board of Pharmacy under Chapter 4 of Title 26. corporation. The term pharmacy shall also include any building.of Pharmacy at the address for which the license was issued. or dispensing of any controlled substance. (C) "Wholesale druggist" means an individual. warehouse. partnership. physician's office.G. (b) A person convicted of the offense of kidnapping shall be punished by: (1) Imprisonment for not less than ten nor more than 20 years if the kidnapping involved a victim who was 14 years of age or older.A. (2) Imprisonment for life or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life 6 .1 and 17-10-7.

1 and 17-10-7. or (4) Life imprisonment or death if the person kidnapped received bodily injury. (3) Life imprisonment or death if the kidnapping was for ransom.imprisonment. followed by probation for life. be subject to the sentencing and punishment provisions of Code Sections 17-10-6. in addition. if the kidnapping involved a victim who is less than 14 years of age. 7 . (c) Any person convicted under this Code section shall.

App. p. in part. App." Id.75. p. §17-10-7(b).G. violation of separation of powers and . the trial court was mandated to invoke the special sentencing provisions set forth in O. 78. App. three counts of kidnapping and one count of possession of a firearm during the commission of a crime. 17-1 0-6.A.C. 2005.2005. The indictment was filed on July 15. For possessing a prior conviction for a "serious violent felony".C. p.1 (a). Counsel waived arraignment and filed a General Demurrer challenging the constitutionality ofO.STATEMENT OF THE CASE Petitioner was convicted on two counts of armed robbery. Petitioner received five life sentences without parole and a term of fifteen years for the weapons count consecutive.e.G. the trial court received evidence of Petitioner's criminal history including a certified conviction for armed robbery in Louisiana. on facts not determined by a jury rendering the conviction which results in a sentence of life without parole." Section 17-10-7 also violates the Defendants due process rights to a jury trial. Had Petitioner been sentenced on the facts found solely by the jury.8. 27. An 8 . App. And the Petitioner would be eligible for parole. in that the sentence will be based.G. Upon the conviction. §17-1 0-7(b). O. The Demurrer raised Eighth Amendment grounds. The crimes occurred on June 16. the maximum sentence available to the trial court was for a term of life for each of the armed robbery counts and twenty years to serve for each of the kidnapping counts.A.A. p.

2007. p.14. App. The motion for new trial was overruled and appeal to the Georgia Supreme Court followed. p. Counsel also filed a brief in support of his motion.2005. Trial began on September 19 and ended September 22. On appeal. pp. the recidivist exception outlined in Almendarez-Torres v.Amended General Demurrer was filed prior to the motions hearing. 41. App. On September 23.S. App. Upon the verdict of guilty. 224 (1998) was acknowledged but it was also stated.2005. 22. The amended demurrer was heard and overruled on August 18 . There. prior to sentencing. Petitioner filed a motion for new trial which was amended on December 20. "[W]e contest the continued viability of the Almendarez exception and take exception to its holding. counsel again argued the unconstitutionality of Section 17-10­ 7(b) and was overruled. United States. 2007 and heard on December 21. Petitioner raised three questions for review. Amended grounds in the motion for new trial included the federal and state grounds attacking the constitutionality of Section 17-1 0-7(b) as a violation of the Petitioner's right to trial by jury. Prior to trial. p. p. App. p.19. counsel renewed his attack on Section 17-10-7(b) by filing a Second Amendment to General Demurrer which raised again the federal question and also alleged adequate and independent state grounds. 31. 2005. 64. App. App. 15. We believe it must be overruled". 523 U. The second issue renewed the federal grounds attacking Section 17-10-7(b) as unconstitutional in 9 .

224 (1998). 10 . and proved beyond a reasonable doubt. In rejecting this argument. 1.2008. 67. the Georgia Supreme Court issued a slightly revised opinion making clear their holding included the state as well as the federal grounds. p.violation of Petitioner's Sixth Amendment right to a right to trial by jury.S. p. App. (emphasis original). 490 (2000). any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury. 523 U. App. 466. as controlling and quoted Apprendi v. Petitioner now brings the Sixth Amendment issue to this Court for consideration. "[oJther than the fact ofa prior conviction. 530 U. App. p. and receiving rulings from the trial court and the Georgia Supreme Court on the issue raised. New Jersey. Having raised the federal issue at the earliest opportunity. which was denied on December 15. The Georgia Supreme Court held the trial court did not err in overruling the General Demurrer. 6. With the denial. the Georgia Supreme Court cited Almendarez­ Torres. Petitioner filed a request for a Motion for Reconsideration.S.

S. 270. Id. at 470.S. New Jersey. The facts of this case fit neatly within this Court's recent Sixth Amendment jurisprudence. upon conviction and once the trial court determines the defendant is a recidivist. 466 (2000) and its progeny. 542 U. unlike Almendarez-Torres. nor raised in this matter. 279 (2007).S.305. 224 (1998) in light of its seminal holding in Apprendi v. 303 (2004).471. 523 U. Further. 549 U. The trial judge finds the fact justifying the imposition of the enhanced or mandated sentence. 530 U. the Sixth Amendment issue presented herein involves the right to have a jury determine all the facts necessary for the imposition of a criminal sentence. United 11 . at 304.S.S. this case offers the Court the ability to address the ambivalence it expressed in Apprendi with respect to the holding in Almendarez-Torres when the issue is solely that of the right to trial by jury. Washington.REASONS TO GRANT THE WRIT This case presents the Court with an opportunity to revisit its holding in Almendarez-Torres v. The trial court has no discretion in determining the sentence. The Petitioner's sentence is greater than the statutory maximum that can be imposed by facts found only by the jury. Finally. United States. The pleading requirements of the Fifth Amendment are not implicated. 530 U. at 488 . life without parole is mandated. Apprendi. Cunningham v. 296. California. Blakely v.489. 530 U. Thus.S. Apprendi.

S. in fact. Cf Cunningham. 233 . is starkly and simply presented. and therefore subject to enhanced or mandatory sentencing?" App. a recidivist. 543 U. has the Constitution reserved to the jury. Georgia is old school. Under Georgia law. almost all sentencing is indetenninate. The question then. whether he is.S. required the trial court to consider Brown a recidivist offender and impose five life sentences under OCGA § 17-1 0-7 (b). "[u]pon notice by the State of its intent introduce the Appellant's criminal history as a recidivist at sentencing.S. have the constitutional right to have the jury detennine beyond a reasonable doubt. Unlike Apprendi. at 285). the power to determine whether a defendant is a recidivist before the trial court can impose mandatory or enhanced sentencing? That issue pertains to the allocation ofpower among the three branches of our government.States v. at 276-277. and present conviction of five serious violent felonies as defined by OCGA § 17-1 0-6. " Brown's prior conviction for anned robbery. at 6. Unlike the other cases. 67. 549 U. Crawford and Cunningham where the Court confronted detenninate sentencing schemes. Or more The opinion ofthe Georgia Supreme Court acknowledges this. p. This issue pertains to the very important individual due process rights of the accused.1 But this case is also unique. Booker. But a corollary issue is equally compelling. See Cunningham. does a defendant indicted for a serious violent felony. I 12 . 220. the only fact that can trigger enhanced sentencing (life without parole) is recidivism." App. 549 U.1 (a).234 (2005).

It is the first phrase of that oft cited sentence Petitioner petitions this Court to excise from its jurisprudence by overruling the recidivist holding of Almendarez-Torres v. 530 U. Almendarez-Torres must be measured 13 . Apprendi mandates the affirmative for the above two inquiries.490.S. 523 U. "Even though it is arguable that Almendarez-Torres was incorrectly decided. what role does the institution of the jury have in restraining the power of the three governing branches? But for the Almendarez-Torres recidivist exception. .S. and proved beyond a reasonable doubt. The passage quoted clearly indicates this Court's intention to revisit Almendarez-Torres when the issue of recidivism is properly raised and placed before the Court.S. any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to ajury.. In doing so.precisely. this Court completes setting forth the bright line rule of Apprendi thereby eliminating an exception that is inconsistent with the legal premises of that case. at 489 . hold O.A §17-10-7(b) repugnant to the Sixth Amendment and vacate Petitioner's sentences of life without parole.C. "Other than the fact of a prior conviction.." Apprendi.G.490. United States. 224 (1998). at 489 . Apprendi does not contest the decision's validity and we need not revisit it for purposes of our decision today ." 530 U. and that a logical application of our reasoning today should apply if the recidivist issue were contested.

Reentry was a crime. the trial court could not impose a sentence exceeding the statutory two year maximum.e.. at 227. lose its precedential value. Id. at 235. at 226. Almendarez-Torres concerned construing a federal criminal statute regarding the illegal reentry of previously deported aliens. Almendarez-Torres argued that for the enhanced sentence to apply. ld. as Petitioner contends. Almendarez-Torres.against the new precedent of Apprendi and subsequent holdings.S. and did not intend to create a separate crime.. Therefore. at 227 . i. 14 . his recidivism must first be plead in the indictment. Applying normal rules of statutory construction. Thus. The opinion turned on whether Congress intended to create a new crime when it enacted the recidivist enhancement or was simply authorizing an increased sentence based upon a sentencing factor.. The constitutional questions are subsidiary to the holding and do not precisely address the question presented in the case sub judice. to secure its position in this Court's Sixth Amendment jurisprudence or. recidivism. If the initial deportation was the result of the commission of an aggravated felony.Torres is primarily a holding concerning statutory construction. the Court held that Congress intended to enhance the maximum available sentence in the presence of recidivism as a sentencing factor.. conviction for illegal reentry could be punished by up to an additional 18 years over and above the two year maximum for just illegal reentry. Almendarez. ld. 523 U.228.

Ring v. at 238. The pleading requirements of the Fifth Amendment are not imposed on the States via the Fourteenth Amendment. 2) the Government must prove the element to the jury.S. The Court responded to this contention by holding that recidivism is not an "element" but a "sentencing factor" and therefore the pleading requirements do not apply. whether a jury must pass on the fact and whether the fact must be proved beyond a reasonable doubt. the Almendarez-Torres Court did not reach the second and third requirements. 536 U. at 244. Apprendi. The case sub judice measures state law against federal constitutional requirements. n. ld. This aspect also limits application of Almendarez-Torres inasmuch as it construes federal law and not state law.S. Oyler v. 530 U. Boles. at 477. Therefore. 584. and. 1) the indictment must state the element.452 (1962). Unlike Almendarez-Torres. 448. Almendarez-Torres has little precedential value in deciding the issue raised herein. 368 U. Arizona..3. In so holding. 3) it must do so beyond a reasonable doubt.597 (2002). quoting..Almendarez-Torres contended that the Constitution imposed three requirements in setting forth elements of crimes. 15 . this case turns on whether the jury should find the fact of recidivism.S." ld. "([D]ue process does not require advance notice that trial for substantive offense will be followed by accusation that the defendant is a habitual offender.

at 478 and 520 -521 (IThomas. Apprendi vitiates this contention.S. 543 U. trial by jury. at 243. and that any fact that mandates an increased sentence over and above what is authorized by the facts found by the jury must be submitted to the jury. But in Jones v. The basis for this conclusion is historical tradition.S. and as such. at 245. concurring). Jones v. United States. 530 U. what.Almendarez-Torres holds that recidivism is simply a sentencing factor..249 (1999). if not the most traditional. 227 (1999). Apprendi and subsequent decisions make clear that labeling a fact a sentencing factor rather that an element to avoid Sixth Amendment protection. 16 .248 . Almendarez-Torres. 526 U. and judgment by court as it existed during the years surrounding our Nation's founding.. United States. 523 U. basis for a sentencing court's increasing an offender's sentence. 526 U. If the historical basis justifying excluding recidivism is no longer valid. "Any possible distinction between an "element" of a felony offense and a "sentencing factor" was unknown to the practice of criminal indictment. if anything. "the sentencing factor at issue here-recidivism-is a traditional. 220. justifies the exceptions continued application? Almendarez­ Torres does not provide one." Apprendi.S. 227.S.S. Further.. Accord. Booker." ld. does not trigger the due process requirements of the Fifth and Sixth Amendments. United States v. Thus it is clear substance takes precedence over form.. cannot avoid its rule. 231 (2005).

The point has superficial appeal but in the end. legislative and judicial branches and the role of the jury in restraining those powers. two amaranthine principles undergird and motivate this Court's Sixth Amendment jurisprudence. Recidivism is different from all other facts because it comes into existence through judicial process." 17 . As noted above. and jury trial guarantees. it is a plea for judicial economy. it is a justification and not a legitimate reason to forego the protections of the Sixth Amendment.. is the last refuge for the recidivist exception to the rule of Apprendi. Id. This then. the allocation power between the executive. a prior conviction must itself have been established through procedures satisfying the fair notice. concern for individual due process rights and. at 249. reasonable doubt. [cites omitted] One basis for that possible constitutional distinctiveness is not hard to see: unlike virtually any other consideration used to enlarge the possible penalty for an offense. As Apprendi noted. At stake in this case are constitutional protections of surpassing importance: the proscription of any deprivation of liberty without "due process of law. In short.the Court discussed Almendarez-Torres and provided additional reasoning for the recidivist exception: The Court's repeated emphasis on the distinctive significance of recidivism leaves no question that the Court regarded that fact as potentially distinguishable for constitutional purposes from other facts that might extend the range of possible sentencing. and certainly unlike the factor before us in this case.

530 U. 244-248. Just as suffrage ensures the people's ultimate control in the legislative and executive branches.477. at 466 .Ct. 12. Boyd ed. but a fundamental reservation of power in our constitutional structure. John Adams. in every judgment of a court of judicature" as in the legislature).1981) (describing the jury as "secur[ing] to the people at large. the accused shall enjoy the right to a speedy and public trial. In Blakely v.S. 320 (R.Ed.S.253 (C. their just and rightful controul in the judicial department")." Arndt. See Letter XV by the Federal Farmer (Jan. Apprendi carries out this design by ensuring that the judge's authority to sentence derives wholly from the 18 . Taken together. 526 U. 1789). quoting from United States v. Washington. 283 (J.S. Gaudin.2d 311 (1999). 296. 1215. jury trial is meant to ensure their control in the judiciary. Letter from Thomas Jefferson to the Abbe Arnoux (July 19. but the need to give intelligible content to the right ofjury trial. 506. 1958) ("Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department. 6. reprinted in 2 Works of John Adams 252. [ would say it is better to leave them out of the Legislative"). should have as complete a control . 1771)." Apprendi. reprinted in 15 Papers of Thomas Jefferson 282. 227. Jones v. reprinted in 2 The Complete Anti-Federalist 315. 542 U. [footnote omitted]. 515 U.Arndt. and the guarantee that "[i]n all criminal prosecutions. the Court stated: Our commitment to Apprendi in this context reflects not just respect for longstanding precedent.305 -306 (2004). beyond a reasonable doubt. 14. Storing ed.. by an impartial jury. Adams ed. 119 S. 1850) ("[T]he common people.S.. 143 L.510. That right is no mere procedural formality. United States. these rights indisputably entitle a criminal defendant to "a jury determination that [he] is guilty of every element of the crime with which he is charged. 18. 1788). Diary Entry (Feb. (1995).

1981. to remain inviolate forever. as well as of facts. No.peLI (1777). . 95. 'Remain inviolate forever'. (R.jury's verdict. they shall apply to the bench. and trial by jury. 19 ." ld. App. The founding document of the State of Georgia illustrates perfectly the importance attached by the founding fathers to trial by jury. Michael Glazier. provided it be not repugnant to the rules and regulations contained in this constitution. Philadelphia) 1800. p. Finally. App. p.. On February 5. or any ofthe jury. Thus the framers inform us. Georgia adopted its first constitution. ~XI. p. Further. reprinted in THE FIRST LAWS OF THE STATE OF GEORGIA. 1777. Without that restriction. (emphasis supplied). 14." ld. Within the document the jury is mentioned three times. 22 Market Street. but if all. and the opinion they entertain ofthe evidence. On that day." The Constitution of the State of Georgia.xLIII. the United States was 217 days old and the outcome of the Revolution was very much in doubt. the jury would not exercise the control that the Framers intended.. App. WATKINS. Atkin. "The jury shall be sworn to bring a verdict according to law. and shall not be allowed to bring in a special verdict. who shall each of them in rotation give their opinion. "The jury shall be judges of law. 95. 97(emphasis original). Inc. "Freedom of the press. A DIGEST OFTHE LAWS OF THE STATE OF GEORGIA. have any doubts concerning points oflaw.r. p. ROBERT & GEORGE. .

the Court made clear that precedent contrary to Apprendi's policies and principles will not be permitted to stand. Georgia Reception Statute. While the fact that recidivism comes into being as a result ofjudicial process. 639 (1990) as irreconcilable to the rule of Apprendi.App. App. 608 . stare decisis does not prevent the Court from granting the relief sought by Petitioner. Lee's sentence is based only on facts found by the jury and the trial court exercising its discretion. Arizona. This Court in Ring v. 497 U. 27. In doing so. how important trial by jury is to the protection of our . 2 l1·bertles. the recidivist exception adopted by the Almendarez-Torres Court does not survive contact with policies and principles set out in Apprendi and its progeny. Compare the sentence of the Petitioner with that of his co-defendant.S. No. Petitioner received 5 life without parole sentences. Arizona. 3 In sum. In the case sub judice the Georgia statute being challenged. See Also. It utterly fails to vindicate the equally important principle of the powers reserved to the jury.S. And it ignores the powers reserved to the jury in its role as the last arbiter of facts that will send a man to prison for life without parole. eliminates judicial discretion upon the presentation of certain facts not found by the jury. 584. 2 3 20 . p. 536 U. Andre Lee received a total of 30 years. overruled Walton v.over two centuries later. 236 .609 (2002). p. its basis as an exception to the rule of Apprendi is merely a nod to the first principle. Finally.. 99.

543 U. It is an answer not motivated by Sixth Amendment formalism. that have led us to the answer ftrst considered in Jones and developed in Apprendi and subsequent cases culminating with this one. Booker. The new sentencing practice forced the Court to address the question how the right ofjury trial could be preserved. at 237. this Court explained its reasoning in bringing Apprendi and its progeny into being: As it thus became clear that sentencing was no longer taking place in the tradition that Justice BREYER invokes. the Court was faced with the issue of preserving an ancient guarantee under a new set of circumstances.In United States v. not a tradition or practice that the new circumstances have superseded.S. And it is the new circumstances. 543 U. 21 . but by the need to preserve Sixth Amendment substance. 220. in a meaningful way guaranteeing that the jury would still stand between the individual and the power of the government under the new sentencing regime.S.

J!~ 119 Shadowood Lane Peachtree City. 770-783-1458 Attorney for Petitioner Darrell Brown 22 . 770-631-8187 Fax. This 11 th day of March.CONCLUSION Eliminating the recidivist exception of Almendarez-Torre serves the goal of preserving Sixth Amendment substance. This case offers the Court the means to complete the contours of its Sixth Amendment jurisprudence and render that jurisprudence coherent and consistent with the intent of those who insisted over two centuries ago that the right to trial by jury remain inviolate forever. While recidivism may be the most typical sentencing factor. w. 2009 tfullf submitted. This Court has made clear through its recent Sixth Amendment cases that the rule of Apprendi is to be considered a bright line. not to be transgressed by notions ofjudicial economy or efficiency. that in and of itself is not a sufficient reason to exclude i~ from jury control. GA 30269 Tel. There is no historical basis for treating recidivism differently than other sentencing factors.

Brown v. SUPREME COURT OF THE STATE OF GEORGIA Clerk's Office. Witness my signature and the seal of said court hereto affixed the day and year last above written. it is ordered that it be hereby denied. The following order was passed: DARRELL BROWN v. Clerk .2008 Case No. Atlanta I hereby certify that the above is a true extract from the minutes of the Supreme Court of Georgia. Georgia Appendix I SUPREME COURT OF GEORGIA Atlanta. December 15. Jhepeje S Bamea. S08AI878 The Honorable Supreme Court met pursuant to adjournment. THE STATE Upon consideration of the Motion for Reconsideration filed in this case.

The State Please substitute the enclosed opinion for the one previously sent to you. please call me at 404/651-9387.2008 TO: ALL COUNSEL FROM: Lynn M. Brown v. Stinchcomb. . Chief Deputy Clerk RE: S08A1878.Brown v. If you should have any questions. Georgia Appendix 2 December 15.

Justice. 2007. that the trial court erred in overruling his motion to change venue and his general demurrer attacking the constitutionality of OCGA § 17-10-7 (b).2005. The indictment was returned on July 13.2008.Brown v.2008. and concluded on September 22. 2008. THOMPSON. when defendant was found guilty and sentenced. I .2005.2007.2005. Trial commenced in the Superior Court of Fayette County on September 19.2005. The crimes were committed on June 14. three counts of kidnapping and one count of possession of a firearm during the commission of a crime.2005. 1 He was sentenced to five consecutive life terms without parole. Defendant filed a notice of appeal on January 10. Defendant's motion for new trial was filed on September 23. amended on December 20. Georgia Appendix 3 In the Supreme Court of Georgia Decided: NOV 3 Z008 S08A1878. inter alia. and orally argued on October 20. and denied on December 21. BROWNv. The case was docketed in this Court on July 21. Defendant Darrell Brown was convicted of two counts of armed robbery. Brown appeals. a subsection of Georgia's repeat offenders' sentencing stahlte. THE STATE. plus an additional 15 consecutive years for the firearnls count. asserting.

and a second was excused for indicating he could not be impartial. garnering significant media publicity. One juror was excused for indicating pretrial publicity had tainted his view of the case. the manager of the theater used the duress code. When officers arrived at the scene. before finally surrendering to police. seeking access to the building safe. Brown remained in a ceiling crawl space for several hours. alerting the police. Pressed to open the safe. 1. The evidence is sufficient to enable any rational trier of fact to find 2 . At trial. potential jurors were polled as to their knowledge of the case through the media. Lee was arrested when a ceiling tile disintegrated beneath him and he fell to the floor.Brown v. Of the jurors selected. After individualized questioning. Of the 57 potential jurors questioned by the court. Georgia Appendix 4 In 2005 Brown and his co-defendant Andre Lee held at gunpoint three employees of the Cinemark Tinseltown theater in Fayetteville. only six claimed to have no knowledge of the case. all assured the trial court that they had no bias or prejudice against Brown and had not fonned or expressed any opinion in regard to his guilt or mnocence. the two defendants attempted to secure escape by climbing into the ceiling. an additional 13 jurors were excused for cause.

State. and its ruling will not be disturbed absent an abuse of that discretion. State. Brown failed to show that the pretrial publicity created an inherently prejudicial atmosphere or affected the remaining jurors' ability to be fair and impartial. 63. 61 LE2d 560) (1979). A motion for change of venue based upon excessive pretrial publicity invokes the trial court's discretion. 504. 3 . S. demonstrated by a significant percentage of prospective jurors being excused for cause. Jackson v. State. Roundtree v. 269 Ga. Virginia. Here. 898 (506 SE2d 128) (1998).68 (4) (548 SE2d 310) (2001). See Eckman v. 505 (2) (511 SE2d 190) (1999). The motion was predicated on the existence of extensive pretrial publicity. 2. Brown contends the trial court erred in refusing to grant his motion for change of venue. 274 Ga. it cannot be said that the trial court abused its discretion in denying Brown's motion for change of venue. Brown asserts that such a statistical cluster makes it unreasonable to assume the remaining venire was not similarly influenced by the media. Dixson v. 443 U. Georgia Appendix 5 defendant guilty beyond a reasonable doubt of the crimes for which he was convicted. 270 Ga.Brown v. Simply put. 307 (99 SC 2781.

Georgia Appendix 6 3. 140 LE2d 350) (1998).) Because Brown's sentence was enhanced by his prior conviction for armed robbery. United States. Brown's prior conviction for armed robbery." (Emphasis supplied. S. required the trial court to consider Brown a recidivist offender and impose five life sentences under OCGA § 17-10-7 (b). More specifically. any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury. Brown contends that the sentencing requirements imposed by OCGA § 17-10-7 (b) violate his right to trial by jury as guaranteed by the Sixth Amendment to the United States Constitution and Art. the trial judge did not err in overruling Brown's general demurrer attacking the 4 . Sec. New Jersey. that "[o}ther than the/act ofa prior conviction. In Almendarez-Torres v. 224 (118 SC 1219. Para. XI of the Georgia Constitution. 1. I. and present conviction of five serious violent felonies as defined by OCGA § 17-10-6.1 (a). the United States Supreme Court held that the imposition of enhanced sentencing under federal law based solely upon a defendant's prior criminal history does not exceed constitutional limitations. 490 (120 SC 2348. the court stated in Apprendi v. 523 U. 147 LE2d 435) (2000). and proved beyond a reasonable doubt. S. 466. 530 U.Brown v.

Georgia Appendix 7 constitutionality of OCGA § 17-10-7 (b) under either the United States Constitution or the Georgia Constitution. 5 .Brown v. All the Justices concur. Judgment affirmed.

:':b ~ N c:::> l'\:) CO -----------) "<-"'.". Section 17-10-7 is unconstitutional in that it violates the Defendant's right against cruel and unusual punishment guaranteed in the Eighth Amendment to the United States Constitution." :-<.::_ ..c:) (0(")t"t7 •1>-0 c::: . Upon information and belief. should the Defendant be convicted.'.. 2005 R 0435 e:::. l'llc"c oC.Brown v. the above referenced defendant. ~I f 0 r-­ '"'­ J::. as applied to Georgia law through the Fourteenth Amendment to the United States Consitution...G. r 2 c­ i ~ li t J f/ ." 2.. ) ) ) ) ) ) ) ) ) ) en ::x:­ .c." . in that the sentence will be based.. the State intends to seek life without parole for the defendant using a Louisiana conviction for armed robbery as the predicate felony for the imposition of Section 17-10-7(b). DARRELL BROWN. Georgia Appendix 8 I --1 "j...A.:::> "'t: <:: c:-I"rr o ~~.!' j roo. ~. STATE OF GEORGIA STATE OF GEORGIA." -'0. Said section also violates the separation of powers between the executive and the legislative branches of the government of the State of Georgia. err l"r] ev ._." tll __ o ::::~r.3' c:::: <:5... Section 17-10-7 also violates the Defendants due process rights to a jury trial. Defendant is charged with three counts of armed robbery and three counts of kidnaping.. f\ { l CASE NO..­ IN THE SUPERIOR COURT OF FAYEITE COUNTY -. §17-10-7(b).. and files his General Demurrer to a.'0 (") r- ~ . v. DEFENDANT..... ::0 GENERAL DEMURRER COMES NOW.. en (. on facts not determined by a jury rendering the conviction which results in a sentence of life without 56 . by and through undersigned counsel. in part..:." . Section 17-10-7(b) mandates life without parole for the second conviction of a serious violent felony.

Defendant prays that the court take inquiry into the matters raised herein and declare o. This7daY JI 't~.e. GA 30269 Tel.770-487-4299 !AltOmey for Defendant .G. 770-631-8187 IFax.Brown v. §17-10-7{b) unconstitutional and inapplicable to the sentencing in this case.tl:iooj~ 119 Shadowood Lane Peachtree City. . Georgia Appendix 9 I parole.A. should the Defendant be convicted of a predicate felony.

Box 1498 Fayetteville.O. First Class. Georgia Appendix 10 CERTIFICATE OF SERVICE This is to certify that the foregoing pleading was served upon the following parties and/or counsel on the following: Scott Ballard. with adequate postage affixed thereto. Georgia Attorney General 40 Capital Square Atlanta. GA 30334 By depositing a true and correct copy in the United States Mails. 723336 Attorney for Defendant I II 58 I 1 1 .?!? day o~. 2002­ ~~ Georgia Bar No. Esq. District Attorney for Fayette County P. This. Esq. GA 30214 Thurbert Baker.Brown v.

Reese..\]:)/ Br~:Wn v. COMES NOW. t c: ! 0 co r ~ r - -I . DEFENDANT. 2005 R 0435 -----------) AMENPED GENERAL DEMURRER en ::r.. fails to state all the facts necessary for the application of Section 17-10-7 to the sentencing on this case. -i0"" :<. ) ) ) ) ) ~...... the above referenced Defendant..7':.>c: -0 ::3 ~ 0 rno­ =t.S. by and through counsel. 92 U.00 oom >0 0 f c= ... "[t]he indictment must contain an allegation of every fact which is legally essential to the punishment to be inflicted" United State v.i:: --' :::c :=' C") ~ ~ GJ r m ::c .232-233.~ rr1<n 0 oc=­ 0-0% c fTlo %~. (three counts anned robbery and three counts of kidnaping) for the imposition of life without parole.0 .. Georgia Appendix II IN THE SUPERIOR COURT OF FAYETTE COUNTY STATE OF GEORGIA STATE OF GEORGIA.m r ::D » en c= l>::C -<.. °r 0 rn en ..... the indictment must be dismissed. As such. ) ) DARRELL BROWN. 214. CASE NO. S9 1 .. and amends the General Demurrer previously filed and adds as follows: This indictment setting forth the predicate offenses. ) ) ) v.

770-487-4299 Attorney for Defendant 60·' . aayof k7~~ .~ Lloyd W.Brown v. New Jersey. 770-631-8187 Fax. 723336 119 Shadowood Lane Peachtree City. 530~ (2000)(FN 15) This . Georgia Appendix 12 (1876) quot$prendi v. Walker Georgia Bar No. GA 30269 Tel.

Georgia Attorney General 40 Capital Square Atlanta. Walker Georgia Bar No. 2002.Brown v. Esq. Box 1498 Fayetteville. District Attorney for Fayette County P. with adequate postage affixed thereto. 4. First Class. 723336 Attorney for Defendant 6 . GA 30334 By depositing a true and correct copy in the United States Mails. Esq.O. Georgia Appendix 13 CERTIFICATE OF SERVICE This is to certify that the foregoing pleading was served upon the following parties andlor counsel on the following: Scott Ballard. GA 30214 Thurbert Baker. ~ This-J{daY0 liJ~ Lloyd W.

Motion to Reveal Deal is hereby: ( ) Withdrawn ( ) Granted.-' until Motion to Sever is hereby: ( ) Withdrawn ( ) Granted.~_~-i.. (.. .... Motion to Suppress is hereby: ( ) Withdrawn ( ) Granted... ( ) Denied ----:-~~' ( ) Waived ( ) Reserved ( ) Continued until ~_ _-:-: Motion in Limine is hereby: ( ) Withdrawn ( ) Granted. ( ) Denied ( ) Waived ( ) Reserved () Continued until .. SO ORDERED this 18TH day of AUGU~O~5. ( ) Denied ( ) Waived ( ) Reserved ( ) Continued until .......... ( ) Denied ( ) Waived ( )Reserved ( ) Continued until .-. Motion to Raise Issue of Competency is hereby: ( ) Withdrawn ( ) Granted.-'Z·_"".. Motion in Limine to Exclude Statements is hereby: ( ) Withdrawn ( ) Granted.....---.-.. as AUG I.(Denied ( ) Waived ( ) Reserved ( ) Continued ---:-_. .<G'.. () () () () () () ( ) Motion to Quash..... _ _ _ _ _ _ _ _ _ _ _ is hereby: ( ) Withdrawn ( ) Granted. - e(.. 21 INDICTMENT NO.\YE1TE STATE OF GEORGIA.----------:-.:"" . ( ) Denied ( ) Waived ( ) Reserved ( ) Continued until .? Brown v. ( ) Denied ( ) Waived ( ) Reserved ( ) Continued until . .o. SHtlLA S i u"'C:"'i\D. 19 Afl "r' " .eral Demurr6f}amj..u~rrY.RK * DARRELL BROWN .~ ORDER The Defendant. --':':""'~ IN THE SUPERIOR COURT OF FAYETTE COUNTY fiLED SoTAffiH®F GEORGIA CLEm~ OF SUPERiOR COURT r . ( ) Denied ( ) Waived ( ) Reserved ( ) Continued until .. J (J)Wv. Georgia Appendix 14 ...~ JUDGE...~". 05R-0435-A . .. __ ..~ '9 *(" GA. ~! -1.tefSpeciaI Demurrer (As to ) is hereby: ( ) Withdrawn ( ) Granted.~eral Demurr-erynd/or Special Demurrer (As to Motion to Sever Motion to Raise Issue of Competency Motion in limine Motion in Limine to Exclude Statements Motion to Suppress Motion to Reveal the Deal I IT IS HEREBY ORDERED that the ('1'" ( ) () ( ) ( ) ( ) ( ) ( ) Motion to Quash. "Lt... having brought the following Motions before this Court for hearing: ~.:¥!} \~..~~.. VS. SUPERIOR COURTS GRIFFIN JUDICIAL CIRCUIT 82 .

Brown v. Georgia Appendix 15
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IN THE SUPERIOR COURT OF FAYETTE COUNTY
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SECOND AMENDMENT TO GENERAL DEMURRER
COMES NOW, the above reference Defendant and files his second Amendment to his
General Demurrer against the application of a.c.G.A. § 17-1O-7(b) to this case. As additional
grounds Defendant asserts his right that all facts necessary to the imposition of life without
parole, must be plead and proven by the State and decided by a jury. To have the trial court
sentence the Defendant to life without parole, without first having the jury consider and
affmnatively decide whether he has been convicted of a serious violent felony, (as defined by
O.C.G.A. §17-10-6.1), is a violation of Defendants right to a jury trial set forth in the 5 th and
6th Amendments to the United States Constitution and made applicable to Georgia state law via
the 14th Amendment of the United States Constitution. Further, adequate and independent state
grounds for this motion are set forth in Art. I, § 1, '{XI of the Georgia Constitution guaranteeing
the Defendant a trial by jury.
Defendant further shows the court that the constitutionality of § 17-10-7(b) has not been
decided upon the grounds set forth above. See, Ortiz v. State, 266 Ga. 752 (1996)(Federal
Constitution); Stephens v. State, 261 Ga. 467 (l99l)(Georgia Constitution),

7;1

Brown v. Georgia Appendix 16

Therefore, Defendant demands that the court hold O.C.G.A. §17-1O-7(b) is
unconstitutional upon the grounds set forth above, and, should the Defendant be convicted of a

predicate felony upon this indictment, not impose the sentence of life without parole, but rather
impose a sentence as otherwise provided by law.

..­

This(1 day

Of~, 200~.

Rentfu1nbmitted,

~~
Georgia Bar No. 723336

119 Shadowood Lane
Peachtree City, GA 30269
Tel. 770-631-8187
Fax. 770-487-4299
Attorney for Defendant

'72

Brown v. Georgia Appendix 17

CERTIFICATE OF SERVICE
This is to certify that the foregoing pleading was served upon the following parties andlor
counsel on the following:
Scott Ballard, Esq.

District Attorney for Fayette County

P.O. Box 1498
Fayetteville, GA 30214
Thurbert Baker, Esq.
Georgia Attorney General
40 Capital Square
Atlanta, GA 30334

By depositing a true and correct copy in the United States Mails, First Class, with
adequate postage affixed thereto.

This~daYOf~:2

LlOYd
Georgia Bar No. 723336
Attorney for Defendant

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Brown v.z.CLERIC . THIs nm s­ .2110_. lJLED IN OPEN COURr./~s- Date 119 ..:z.%e I1AVIlTTI:l ~". VERDICT DARRELL BROWN g/)J.. .r Defendants. :) IN THE SUPERIOR COURT OF FAYETTE COUNTY STATE OF GEORGIA STATE OF GEORGIA.. Georgia Appendix 18 -'.. _ •• _.&. . - ~. CASE NUMBER: 2005R-0435 vs.DAYOF S'aS'f't­ . and ANDRE LEE. DARRELL BROWN.

.VJ1 . LYNNCRAWSHAW OFFICER DAVID CAGLE LT.§16-8-41 COUNT3~ KIDNAPING. . GA 30214 7Q-460-6353 day aooS- Clerk.C.O. @) DARRELL BROWN 3161 PALOMINO DRIVE POWDER SPRINGS.O.C. 20_ _.: POSSESSION OF A FIREARM DURING THE COMMISSION OF A CRIME . ~4 i " i'. DEBBIE CHAMBERS OFFICER 1.20JJ?f ~~dant.A.FAYETf'E _ _ County Superior MARCH Term. 80B BAUTISTA DET. SCOTI GIBSON DET.GA § 16-11-106 760 JIMMY MAYFIELD 8LVD FA~VILLE.G. JEFF HARRIS DET. MARVIN VINSON AND 0) ANDRE LEE 2445 HOPKINS DRIVE POWDER SPRINGS. Griffin Judicial Circuit urt CC£ 3ooali~ 0435' Foreman I &. the jmy. . MELISSA PEACOCK FFICER scon PITIS FFICER JOJOLA DET. GA 30127 "DET. 120 .'il>. LAKEMAN LT..C. SlIperior Court ISEE ADDmONAL WITNESS LIST Plea of Defendant The defendant(s) DARRELL BROWN AND ANDRE L~E waives formal arrai~t4 IJdT bUlL7( ~ . 2005 No.2/~ dayof 111 . IFAYETIEvtLLE.STANLEY Charge: FFICER BRIAN BISHOP COUNTS ASE # 050604667 IFAYETIEVILLE POLICE DEPARTMENT l~ ARMED ROBBERY-O.. find the defendanto This day of _ . GA 30702 ~ FFICESTAVENGER == = = = = = = = = = = = = = = = = = = = = 9SGT.GA30214 fg'LARRY ALDEN COUNTY SHERIFF'S DEPARTMENT ========================fIFAYETIE 155 JOHNSON AVENUE ~ ~.GA§I6-5-40 COUNT . ~~'f SCOTT BALLARD District Attorney State of Georgia Witnesses *indicates Grand Jury Witness YS.~ Defendant Verdiet We.

4.. without lawful authority and hold said person against her will. Jr. a person. Griffith Thomas W. Caitlin Williams and Alton Brown by use of an offensive weapon. contrary to the laws of said State. chosen. charge and accuse DARRELL BROWN AND ANDRE LEE with the offense of ARMED ROBBERY for that the said DARRELL BROWN AND ANDRE LEE in the County and State aforesaid. Oraf Marl B.. did then and there unlawfully with intent to commit theft. )1 ~. 5. Oavis 3. COUNT'3: And the Grand JW'Ors aforesaid in the name and behalfoftbe Citizens ofGeorgia further charge and accuse the said DARRELL BROWN AND ANDRE LEE with theoff'ense ofKIDNAPPING for that the said DARRELL BROWN AND ANDRE LEE in the County and State aforesaid. to wit: 1. peace and dignity thereof. take property of another. COUNTY: FAYETTE IN THE SUPERIOR COURT OF SAID COUNTY The Grand Jurors. Foreman 2. Adam Reid Peter Torres Julia Shauw Chang Lydia M. did then and there unlawfully with intent to commit theft. ­ In the name and behalfofthe citizens ofGeorgia. 18. Davis ~bert L. Kinzly William R Adams Robert S. Ivey Jeffrey L. Georgia Aopendix 20 . Wright Kathy Goss Padovano T. 23. 6. contrary to the lawS-of said State. to wit: a handgun. selected. did then and there tmIawfully abduct Dair Bradley. Suellen R. 14. and sworn for the County of FAYETTE . COUNT 2: And the Grand Jurors aforesaid in the name and behalfofthe Citizens ofGeorgia further charge and accuse the said DARRELL BROWN AND ANDRE LEE with the offense of ARMED ROBBERY for that the said DARRELL BROWN AND ANDRE LEE in the County and State aforesaid. to wit: a cellular phone from the person ofsaid Dair Bradley by use of an offensive weapon.- rore!!J'erson BILL OF INDICTlVIENT GEORGIA. 19. 20. contrary to the laws ofsaid State.-1. Sara Mac Germano. Lord Two Thousand Five. 13. on the 14TH day of ~ Lord Two Thousand Five. d/b/a Tinseltown Theaters. to wit: United States Currency from the person and immediate presence of Dair Bradley. the good order. on the 14TH day of JUNE. 22. 2l. Lord Two Thousand Five. on the 14TH day of JUNE. peace and dignity thereof. to wit: a handgun. III Verolyn M. . Oair Bradley. Cinemark USA. II. 8. Rapp Glen A. Hollandsworth Bridget L. the good order. Wheble Mahlon Henly Donald. take property of another. 16. Inc. .0 12. Glel:lgh ~b­ Laura W. the good order. Kennebrew William A. Rowe. McCoy Susan Paulsen Janie P.Brown v. 7. CONTINUED INDICTMENT 121 . Maureen R. 9. 15. Eure Deborah S.. peace and dignity thereof. 17..

on the 14TH day of JUNE. the good order. did abduct Caitlin Williams.. on the 14TH day of JUNE. did have on their person a firearm. COUNT S And the Grand Jurors aforesaid in the name and behalfof the Citizens of Georgia further charge and accuse the said DARRELL BROWN AND ANDRE LEE with the offense of KIDNAPPING for that the said DARRELL BROWN AND ANDRE LEE in the County and State aforesaid. said crime being against the person of another. the good order.Browp. Georgia Appendix 21 COUNT1t AmiJ1e Grand Jurors aforesaid ie nam." And the Grand Jurors aforesaid in the name and behalf ofthe Citizens ofGeorgia further charge and accuse the said DARRELL BROWN AND ANDRE LEE with the offense of POSSESSION OF A FIREARM DURING THE COMMISSION OF A CRIME for that the said DARRELL BROWN AND ANDRE LEE in the County and State aforesaid. during the commission of a crime ofAnned Robbery. without lawful authority or warrant and hold said person against her wil~ contrary to the laws of said State. Lord Two Thousand Five. peace and dignity thereof. peace and dignity thereof. v. the good order.. peace and dignity thereof. contrary to the laws of said State. COUNT. Lord Two Thousand Five. did abduct Alton Brown. to wit: a handgun..er charge and accuse the said DARRELL BROWN Al"l"D ANDRE LEE with the offense of KIDNAPPING for that the said DARRELL BROWN AND ANDRE LEE in the County and State aforesaid. without lawful authority or warrant and hold said person against his will. contrary to the laws of said State. and which crime was a felony. SCOTT BALLARD District Attorney 122 . Lord Two Thousand Five.:: and behalf ofthe Citizens of Georgia "1 . on the 14TH day of JUNE.

well. this 2 is a do-over.Brown v. Ballard's leaving this squarely in your lap. STATE OF GA -V. well. COGGIN: 4 THE COURT: 5 6 t That's obviously -­ Not nearly as difficult to do now. but I -­ 13 MR. if 25 that's all right with the Court. 3 MR. yes. Judge. I have my motion. I remember you said you wanted to argue that now. you're 10 well. 9/19-22/2005 531 . you want to -. COGGIN: So I'm -­ THE COURT: No. WALKER: okay.s 14 warranted in this case. WALKER: None in mitigation. 24 Your Honor. the general demurrer that I had filed. COGGIN: I'm not Judge. 1-­ I'm sure that 11 Mr. in mitigation? MR. 12 seeking for the District Attorney. you know. walker. 15 we've got now. you know. I don't think a mistrial . COGGIN: And in consultation with the district attorney himself -­ 8 THE COURT: 9 MR. Georgia Appendix 22 1 five years and say. But considering that. and I would like to reassert the issue. THE COURT: oh.DARRELL BROWN/ANDRE LEE. guess what.you still -­ MR. And I'm willing to stand on what 16 THE COURT: 17 Mr. MR. do you have any evidence to offer 18 19 20 21 22 23 okay. r've argued it once before. thank you.

the 19 application of 17-10-7(b) to this case. so I don't We got into this other All right. yes. based on the cases previously cited. New Jersey. I don't believe -­ 4 well. Judge. 6 think it was actually admitted. It looked to be in proper form. WALKER: 12 THE COURT: It looked to be okay. it's admitted. I Any objection? don't have any objection.DARRELL BROWN/ANDRE LEE. Reese and prindy v. 22 prindy v. No. Judge. 18 did not object to the admission It has raised seals on all of the 13 14 I oh. WALKER: 15 16 seals. STATE OF GA -Y. with respect to my client. 5 of a certified copy. 17 itself. The United States. It had raised I didn't see any problems with the document However. the jury had to consider whether or not my 25 client had been convicted of a prior seven deadly sin. 9/19-22/2005 532 . WALKER: 10 THE COURT: 11 MR. WALKER: Sure. that the jury was required to pass 23 on whether -.this sentence. as I have stated before.to apply the -. No. 3 there has been submitted to the Court. The United 21 States v. not the other one. or. Georgia Appendix 23 1 THE COURT: 2 MR. I'm talking about the Armed Robbery conviction now. 7 discussion so 8 THE COURT: 9 MR. MR. that that 20 statute. enhanced 24 sentenced. let's go ahead. All right.Brown v.

9 insufficient. Section 1. a factual predicate. as it is currently 3 configured within the statutory scheme of the Georgia 4 punishment. 21 you will find that recidivist statutory sentencing 22 schemes while juries were involved in sentencing required 23 that the jury pass on whether or not the individual had 24 been previously convicted. Article 1. 14 17-10-7(b) is not applicable in this case. 9/19-22/2005 533 . And it's 2 my contention that the 17-10-7 (b). 15 constitutional. requires a jury to decide those 8 issues. 20 paragraph 11.when the constitution was amended and judges were If you take a look at the older case law. not the court. 25 -. as currently based on developing federal 16 law. 17 And it's my contention that therefore It is not I also indicate that the adequate independent 18 state grounds also exist in the right to trial by jury 19 found in the Georgia constitution. That changed when the Georgia STATE OF GA -V. 11 That certified copy has to be ruled upon by the jury who 12 was present in this case before any application of the 13 sentence. Georgia Appendix 24 1 The statutory scheme does not provide for that.DARRELL BROWN/ANDRE LEE. And a certified copy is And your acceptance of a 10 certified copy is not sufficient. insufficient. because whether 5 or not that individual has a prior conviction sufficient 6 to enhance the sentence over and above what is normally 7 applied in this case. that it is unconstitutional.Brown v.

8 grounds too. 22 THE COURT: But I donlt believe that's I don't think that's a All right.given the developments 5 in federal law in the last two years. 4 think it's an open issue within -. that the sentencing scheme is not 9 constitutional.DARRELL BROWN/ANDRE LEE. Saia? 25 MR. I think that's an 6 issue that's ripe for decision on the state level. 20 applicable to state law. Any rebuttal from the State? 15 MR. as currently procedurally set forth in And I But I have not been And I would argue that there is independent state 10 the statutes of the State of Georgia. Judge. anything to offer in -­ think I'll overrule the Motion for mistrial. STATE OF GA -V. and that you should 11 not use 17-10-7(b) as grounds for imposing life without 12 parole against my client. 23 I 24 to offer in mitigation. THE COURT: 13 14 That would be my argument. 21 prohibition. 9/19-22/2005 534 Anything . 2 able to find anywhere under Georgia law this precise 3 issue as has been presented in the federal courts. The 16 federal courts can set the sentencing guidelines for 17 themselves if they want to and that's a matter for them 18 to deal with at sentencing of defendants who appear 19 before the federal courts. Mr. as 7 well.Brown v. Georgia Appendix 25 1 given the sentencing prerogative. All right. COGGIN: Just very briefly. sir. SAIA: No.

Brown v. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STATE OF GA -V. Judge. WALKER: 6 THE COURT: 7 MR.DARRELL BROWN/ANDRE LEE. Thank you. WALKER: The same as before. Georgia Appendix 26 1 THE COURT: 2 MR. And denied. WALKER: 3 Okay. let's see. All right. overruled. well. okay. Thank you. Judge. 9/19-22/2005 535 . may I have a ruling on my motion? 4 THE COURT: 5 MR.

and 1 count of possession of a firearm during the commission of the crime of armed robbery. and defendant Andre Lee is sentenced as follows: Count 1: Count 2: Count 3: Count 4: Count 5: Count 6 totalling: 15 years imprisonment.\ \. concurrent to Counts 1. Life imprisonment without parole. c. 2." -< . consecutive to Counts 1 and 2.-)c­ . t. 3. concurrent to Counts 1.. ~ ::<.­ o ~. Life imprisonment without parole. and 5. consecutive to Counts 1.. and therefore Darrell Brown is guilty of 2 counts of armed robbery. and 1 count of possession of a firearm during the commission of the crime of armed robbery. 3. with the original Count 3 being nolle prossegui.. Georgia Appendix 27 ORiGINAL . 0 c: r Defendants. defendant Darrell Brown is sentenced as follows: Count 1: Count 2: Count 3: Count 4: Count 5: Count 6: Life imprisonment without parole. and 4.1 171 n1(f)O . 10 years imprisonment.J -0 ~..) z?:?" --!o'"T1 :<::00 0 > . Life imprisonment without parole.0 -. and ANDRE LEE. 2. defendant Andre Lee is adjudicated guilty of all six counts of the indictment.. 2. Upon jUry trial and sentencing hearing. 123 . 10 years imprisonment.~ ~o. and 3.:. ~ .. 3.:: e -0 Z rnQ 0 3 0 (.. consecutive to Counts 1. JUDGMENT AND SENTENCE Upon jury verdict entered today. . 3 counts of kidnapping. 20051i:04§:g ~ (f) vs. 15 years imprisonment. and therefore Darrell Brown is guilty of 2 counts of armed robbery.-.::J . /r'" IN THE SUPERIOR COURT OF FAYETTE COUNTY STATE OF GEORGIA --/ STATE OF GEORGIA. 2. Life imprisonment without parole. rrl .::. 4 and 5.: 0 co 0fTl . 5 years imprisonment.. defendant Darrel Brown is adjudicated guilty of all six counts of the indictment. 30 years of imprisonment for defendant Andre Lee. 15 years to serve in prison. 4. concurrent to Count 1. 10 years imprisonment. (f) c::J :I: CJ1 rn CASE NUMBER:..:. 3 counts of kidnapping. -I ~ N N r DARRELL BROWN. with the original Count 3 being nolle prossegui.Brown v... Upon jury verdict entered today.'.

on their respective counsel. not within this circuit. Georgia Appendix 28 Both defendants are advised they have the right to seek sentence review by the Sentence Review Panel of Georgia. EDWARDS Judge. (~ CHRISTOPHER C. A copy of this sentence shall be served on both defendants immediately in the Fayette County jail. SO ORDERED ANDADJUDGED this 22 nd day of September.Brown v. Both defendants are further advised they have the right to file application for writ of habeas corpus to challenge the validity of their conviction or sentence. Both defendants are advised they have the right to file notice of appeal of this conviction and sentence by filing a notice of appeal within 30 days. The Sentence Review Panel of Georgia consists of three Superior Court judges. or both. and this Panel has the authority to review any sentence exceeding 12 years and to reduce any such sentence in its discretion as provided by law. within 4 years. and upon the district attorney's office. 2005. Superior Court Griffin Judicial Circuit 124 .

Georgia 30214 Joe Saia Fayette County Public Defender's Office 145 Johnson Avenue Fayetteville. Georgia Appendix 29 CERTIFICATE OF SERVICE I certify that I have forwarded a true and correct copy ofthe foregoing Judgment and Sentence on counsel for the parties. Georgia 30214 Lloyd W. Georgia 30214 This 22 nd day of September. M~OZINSKI Judicial Assistant to Judge Ed 125 . ... Georgia 30214 Andre Lee Fayette County Jail 2 Center Drive Fayetteville.'s Office Fayette County Justice Center One Center Drive Fayetteville. Walker Attorney at Law 119 Shadowood Lane Peachtree City. 2005.. Georgia 30269 Darrell Brown Fayette County Jail 2 Center Drive Fayetteville.Brown v. Coggin Fayette County D.. as follows: Randall K.A. KAYE L..

.... GA 30014 REORDER #04·2497 FINAL DISPOSITION SUPERIOR COURT OF FAYETTE COUNTY.. GEORGIA September CRIMINAL ACTION NO. at any time.GEORGIACt 4-6' K' d '.4. Let a copy of this Order be forwarded to the OflK:e of the State Probation S a o IT IS THEREFORE ORDERED that the Defendant pay a fine in the a POPTF$ POPIOF$ L CRIME LAB $ DRUG fEE $.. plus: CVAP $_ _~ BSITF $ _ _ Restitution $ Monthly Probation Fee $ _ _ payable to Fayetteville Probation Office beginning _ _ IT IS THE FURTHER ORO fthe Court. and the identification Division ofthe Federal Bureau oflnvestigation. it is further ordered b I) THAT the above sentence may be serv n probation 2) THAT upon service o f _ _ _ _ _ _ _ of the above sentence.----.0"6 O'CLOCK P '1 _ _s_.. 20 0. THEREFO the defendant consenting hereto. HOWEVER. 2. NOW. revoke any con . bu~further proceedings are deferred and defenda 's hereby sentenced to confinement tor the period of in the State Penal System or such 0 institution as the Commissioner ofthe State Depanment ofCorrections or Coun rna e Court.:. eorgia.5.:3=-----:-:: Cl DEAD DOCKET ORDER ON COUNT(S) o _ _ _ o DEFENDANT WAS ADVISED Of HIS/HER RfGlIT TO HA VB THIS SENTENCE REVIEWED BY THE SUPERIOR COURT SENTENCE REVIEW PANEl. it is the judgment of the Court that no judgment of guilt be imposed at this lime.--=--=~~::.".7£...::::. 324). law.. o I ) THAT the above sentence may be served on probation CJ 2) THAT upon service of of the above scntence. 1-3: Armed Robb~ 'l!PERI~COURT. the above-named defendant has been found guilty of the above-stated offense. 'ons of this probation andlor d.:. WHEREUPON.:. AT . defendant has not previously been convicted ofa felony nor availed himself of the provision of the First Offender Act (Ga. Georgia Appendix 30 FINAL DISPOSiTiON CLYDE CASTLEBERRY CO .iveto cts.FAYBTTECOUN1Y.2. COVINGTON.: Cl PLEA: }Q JURY CJ GUILTY ON COUNT(S) _ _ Cl NON JURY o NOLO CONTENDERE ON COUNT(S) o TO LESSER INCLUDE-D-OFFENSE(S) . the sentence provided by law. .­ ur1ng Commission of a Crime 125571143 a NEGOTIATED . The probationer shall be subject to arrest for violation ofany condition or probation herein g reVOked.=.. may be served on probation PROVIDED that the said defendant complies with the following general and other conditions herein imposed by the Court as a part orthis sentence.. La~68...20~. the Court y order the execution ofthis sentence which was originally imposed or any portion thereor in the manner provided by out of time the defendant has served on probation.6'--_ in the State Penal System or such other institution as the Commissioner ofthe State Department of Corrections or Court may direct.. Lloyd Walker So ordered this 22nd dayo!" September ..20 05 126 ... further. 7: P9ssession of a Firearm " . HOWEVER. rlLED IN THE OFFICE OF THE CLERK Darrell Brown -. and the defendant is hereby advised that the Court may. CJ NOT GUlLTV ON COUNT(S) _ GUILTY OF INCLUDED OFFENSE(S) OF _ _ ON COUNT(S) XI OHlER DISPOSITION CJ NOLl. the Court may enter an adjudi n of guilt and proceed to sentence defendant to the maximum or upon release of the ndant by the Court prior to the termination of the Period thereof.. Ifsuch probation is discharge the delimdant m probation...u YU2:.. XWFELONYSENTENCE Q MISDEMEANOR SENTENCE WHERAS..&. [J FIRST OFFENDER TREATMENT WHEREAS.='-----------. to be computed as provided by law. the remainder of may be served on e following general and special conditions h In imposed by the Court as part ofthis sentence: probation PROVIDED that said defendant complies WI PROVIDED. 5.CLERK D • ___-:-:-=OTN: opOFFENSE(S): Cts. it is further ordered by the Court._ --'-~-~~ XI VERDICT: ClGUILTYON COUNT(S)--lili4.. p. 1. 7: 15 years imprisomnenL-cons~. 1. r_HE_ _ . ... 4.5 . ON COUNT(S) .....E PROSEQUI ORDER ON &7 COUNT(S) ... Upon fulfillment of the terms of probat defendant shall stand discharged of said otTense charged and shall be c letelyexone of guilt of said olfense charged.. it is ordered and a4.5 THE STATE VS.6... & 6: Ct.-­ Sc· r-'" --. n. the remainder of . thaI upon violation of the terms of pro .Brown v.... defendant is hereby sentenced to confinement fora period of Cts. _~~~~~~A~~~OF~~~t!L-pt:-..udged by the Court thaI: The said Life imprisonment without parole. 2005R-0435-A Term.

) MOTION FOR NEW TRIAL COMES NOW.% -v. -J ----------_.. 2005 R 0435 fJr a en cr.g _. r- f"'\J . c }.::. oOfll . .. ) ) ) ) ) ) DARRELL BROWN.. rr.0 l"T1 ::0 ..-( . Grounds for this Motion are that the verdict is against the weight of the evidence and other grounds which will be presented by amendment prior to a hearing on this motion. c:. evidence taken and arguments hearl ThiS67~Ofl . the Defendant Darrell Brown.: . GA 30269 Tel.Brown v. on September 23..>r.-:: -n In __ ~ =.. ::3 :Z~. -. DEFENDANT. 2005. 770-631-3430 Attorney for Defendant .< :.._~l . . by and through undersigned counsel.>0 c: :... }. Defendant prays that a hearing be scheduled on this motion. -'c N W u CO' r­ ~-:i ~.>- u: --' c: c. CASE NO.I. . 723336 119 Shadowood Lane Peachtree City.i2~ eorgia Bar No.-­ -"1 .::. GeorgIa Appendix 31 /T IN THE SUPERIOR COURT OF FAYETTE COUNTY ':" STATE OF GEORGIA -- (!J f'1 r ) ) ) ) STATE OF GEORGIA. ' tfully submitted oy"w. -l:: l---> "'-f 0 r. and moves the court to grant a new trial upon the verdict and sentence entered in this court against the Defendant.." <:") f-. 770-631-8187 Fax. nl en 0 :21~ .. v.

Esq.Brown v..­ uM£~ Georgia Bar No. with adequate postage affixed thereto. 723336 Attorney for Defendant lZS . District Attorney for Fayette County P.O. Georgia Appendix 32 CERTIFICATE OF SERVICE This is to certify that the foregoing pleading was served upon the following parties and/or counsel on the following: Scott Ballard. GA 30214 By depositing a true and correct copy in the United States Mails... First Class. Box 1498 Fayetteville. Th~yo~ 200---5.

CLERK CASE NO. §17-l0-7(b).J'" 8 03 SHEILA STUDDARD. the Defendant..iTl STATE OF GEORGIA. ?Iun '- :... Georgia Appendix 33 r-!~LD \~'i o~. by and through undersigned counsel..~i.. Further..~ ! " 8fTl 1 tl t (.::..... DARRELL BROWN. DEFENDANT.. ~XI of the Georgia Constitution. ) ) ) ) ) ) ) ) ) ) ) f.e.!.t:. ~ \. 4_ .. . ~ ~ i : :-w .G.i( ?~.Brown v. .nn7 STATE OF GEORGIA \ -. 2005 R 0435 AMENDED MOTION FOR NEW TRIAL COMES NOW.A.: u [IFP. in that Defendant's sentence violates Defendant's right to a jury trial as set forth in the Sixth Amendment of the United States Constitution made applicable to the State th proceedings via the 14 Amendment of the United States Constitution and his right to as trial by jury guaranteed in Art... '.. !C:_ IN THE SUPERlOR COURT OF FAYETTE COUNfY. § 1. .~l~. the trial was unfair in that the jury was influenced by pretrial publicity and the court erred in overruling Defendant's Motion l~ld .~. and amends his Motion for New Trial by asserting that the court erred in overruling Defendant's demurrer to a. v. > .

Brown v.r·c:. All other objections and errors during motions and trial are reserved. . 770-487-4299 Attorney for Defendant 144 .) J for a Change in Venue.i~ L10Yd~ Walker Georgia Bar No. 770-631-8187 Fax. I __ J . Georgia 1Cpel1rliR ' ..-J -' ) I' . Thi~ day of J7tt:. 723336 119 Shadowood Lane Peachtree City.2007-­ Re~tfjj. GA 30269 Tel.. ­34e l'l_ 7. .

1iJ{. GA 30214 Thurbert Baker.) .. First Class.J~ LloydIW. .. Esq. Thi.tJ day of ):fc. Walker Georgia Bar No. Box 1498 Fayetteville. Esq.2ojZ. Georgia Attorney General 40 Capital Square Atlanta. 723336 Attorney for Defendant 14.O.. District Attorney for Fayette County P.Bro\\ll1 v.aLl ?J5 CERTIFICATE OF SERVICE This is to certify that the foregoing pleading was served upon the following parties and/or counsel on the following: Scott Ballard. GA 30334 By depositing a true and correct copy in the United States Mails.. with adequate postage affixed thereto.. G~o~gia ~BPendix 35 Z (JO~) K --.

e. the Defendant.G. §17-10-7(b). Other issues relating to prejudicial errors made during pre-trial motions and trial are reserved. FACTS AND PROCEDURAL HISTORY Defendant Darrel Brown stands convicted of two counts of armed robbery. Defendant challenged the constitutionality of O. DEFENDANT.) f V J .Browl). §17-1O-7(b). and files his Briefin Support on the Issue of Sentencing in Defendant's Motion for New Trial.1­ 14b .C./' . SUf L f'~ ! L r'. lLcKK v. .G. 2005 R 0435 BRIEF IN SUPPORT ON THE ISSUE OF SENTENCING IN DEFENDANT'S MOTION FOR NEW TRIAL COMES NOW. .G. consecutive to the prior five sentences. . ~ T. Based upon the admission of a certified copy of a Louisiana conviction for armed robbery.-~LLO r }. pursuant to O.: '. :rm DEC 21 R~! 8 55 STATE~@~~ORG~~0RU. plus 15 years for the last felony.C. E ~ :T~~ ~vPERIOR COURT OF FAYETTE COUNTY . This Briefis limited to the issue of the constitutionality ofO. by and through undersigned counsel. Georgia Appendix 36 /<(. '~ -' .. . three counts of kidnapping and one count of possession of a firearm during the commission of a crime.A. 0·. .~ K .:.A.A §17 -1 0-6(b) per a General . v. each consecutive to the other. this Court sentenced Defendant to five life sentences. Defendant received the maximum sentence possible under the law.' . each to be served without possibility of parole. STATE OF GEORGIA ) ) ) ) ) ) ) ) ) ) ) CASE NO. DARRELL BROWN.

whether he is.A. . then Georgia's two strike mandatory sentencing scheme is unconstitutional. Georgia Appendix 37 Demurrer filed August 5.1.rXI of the Georgia Constitution.Brown v. L GEORGIA'S STATUTORY FRAMEWORK: Defendant's life without parole sentences were imposed pursuantto O. This issue is properly raised and is ripe for determination. 2005. does a Defendant indicted for a serious violent felony. and the Defendant's sentence oflife without parole must be vacated. 2005. As demonstrated below. and a Second Amended Demurrer filed September 5. Defendant's sentence must be vacated. an Amended General Demurrer filed August 5. The rights involved are the Defendant's right to a trial by jury as guaranteed in the 6th Amendment ofthe United State Constitution made applicable to State proceedings via the due process clause of the 14th Amendment ofthe United States Constitution and the corresponding guarantee found in Art. have the constitutional right to have the jury determine beyond a reasonable doubt. (2) Any person who has been convicted of a serious violent felony in this state or -2­ 14~1 . in fact.C G. I. §1. and therefore subj ect to enhanced or mandatory sentencing? If the answer to that inquiry is yes. §17-1O-7(b) which states: (1) As used in this subsection. 2005. ARGUMENT AND CITATION OF AUTHORITY The issue is stated thus: Upon notice by the State of its intent introduce the Defendant's criminal history as a recidivist at sentencing. Counsel argued this issue at pretrial motions and at the sentencing hearing conducted by this Court. a recidivist. Each pleading raising the issue was served upon the Georgia Attorney General. the term "serious violent felony" means a serious violent felony as defined in subsection (a) of Code Section 17-10-6.

stayed. and aggravation of punishment. 1(a)(2) defines armed robbery as a serious violent felony and §17-10-6.c. Thus. and any such person sentenced pursuant to this paragraph shall not be eligible for any form of pardon. Read in conjunction with §17-1 0-2(c). leave. This section mandates a presentence hearing upon return of the verdict.Brown v. work release. or the absence of any prior conviction and pleas. or any other sentence-reducing measures under programs administered by the Department of Corrections. (Italics supplied). 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. or early release administered by the State Board of Pardons and Paroles or for any earned time. The court upon receipt of evidence of a prior conviction via certified copies. §17-t 0-6. In reaching the sentencing decision. upon the return of a verdict of "guilty" by the jury in any felony case. deferred. including the record ofany prior criminal convictions and pleas of guilty or nolo contendere of the defendant.A. §17-1O-2(a)(1): Except in cases in which the death penalty or life without parole may be imposedl.1(a)(3) defines kidnapping as a serious violent felony. even though life without parole was imposed.G. This case has nothing to do with capital murder. the exception applies only to cases where the State is seeking the death penalty. or withheld. the effect of which would be to reduce the sentence of life imprisonment without possibility ofparole. Georgia Appendix 38 who has been convicted under the laws of any other state or ofthe United States of a crime which if committed in this state would be a serious violent felony and who after such first conviction subsequently commits and is convicted of a serious violent felony for which such person is not sentenced to death shall be sentenced to imprisonmentfor life without parole. early release. Any such sentence oflife without parole shall not be suspended. (Italics supplied). Defendant's conviction on the two counts of armed robbery and 1 The exception stated in the first phrase does not apply to this case.c. the court conducts a presentence hearing pursuant to a. parole.G. probated. -3­ 148 . a. is required to apply §17-10-7(b)(2). mitigation. In the hearing the judge shall hear additional evidence in extenuation.A. except as may be authorized by any existing or future provisions ofthe Constitution. or the procedural rules governing the application of the death penalty.

The jury. a. Georgia Appendix 39 three counts of kidnapping resulted in the five life sentences without parole. the jury has no role in determining whether LWP is imposed.. is empowered to impose LWP.'..G. a. In the case at bar.A. For armed robbery. II. LWP is a special. the Defendant was eligible for . §16-5-40. LWP is outside the statutory .G.c. In the case at bar.Brown v. Thus.A.A. LIFE WITHOUT PAROLE EXCEEDS THE STATUTORY MAXIMUM FOR ARMED ROBBERY AND KIDNAPPING. life sentences on the armed robbery verdicts. and neither ransom or bodily injury resulted from the event. the most the Defendant could receive was 20 years.' \:. as an alternative to death. Outside these two circumstances.c.G. absent application of §17-10-7(b).-4' maximums for armed robbery and kidnapping. However. a life sentence is authorized. O. §17-10-30 for the imposition ofthe death penalty. individuals convicted of kidnapping are subject to a minimum often and a maximum of twenty years in prison provided the victim was older that 14. §17-10-30. §17-1 0-7(b) as set forth above. If the victim is under 14 or bodily injury or ransom are found.A.A. Therefore.G. this court had no alternative but to impose the sentence it did. Life Without Parole (LWP) is a unique sentence.. Therefore.4­ 149 .e.C. §17-8-41(b). the individual may be sentenced to either 20 years or life. a murder defendant facing the death penalty is granted jury consideration on the factors which may lead to LWP as a sentence.C. enhanced . In following the statutory dictate.1. in order to impose LWP the jury must find at least one of the aggravating factor set forth in O. In that instance. It can only be imposed under two distinct circumstances. The first is in a capital murder trial where the State seeks the death penalty.G. The second circumstance is which LWP may be imposed is pursuant to a.

. the Supreme Court held that every fact essential to the verdict and sentence must be determined by a jury.S.471. the Apprendi court. -5­ 1. New Jersey. Hence. at 490. 523 U. FEDERAL LAW: The leading case involving this issue is Apprendi v. THE ALMENDAREZ EXCEPTION: While the holding in Apprendi appears to support Defendant's position here. In Apprendi. 530 U. United States..Brown v. as well as more recent decisions. at 470 . In Almendarez. creed or nationality.S. Georgia Appendix 40 sentence based upon circumstances not found in the underlying crimes. the defendant there received a sentence "enhanced" by the finding of an additional fact by the trial judge. an additional number of years was applied to the sentence. That case is Almendarez-Torres v.j() . ld. the court invalidated a New Jersey sentencing scheme where a Defendant pled guilty to two counts of second degree possession of a fireann. III. The sentencing court based its decision on the hate crime statute where. The Defendant received a 12 year sentence. 466 (2000). which was based solely on the defendant's prior criminal history. Thus is appears the holding in Almendarez is fatal to our argument. 224 (1998). which was outside the limits of the sentence normally imposed for these types of crimes. The State reserved the right to seek an enhanced sentence pursuant to New Jersey's hate crime statute. at 471. the Supreme Court affirmed an enhanced sentence under federal law. and one count of unlawful possession of a personnel bomb.. there is an exception to its holding directly on point. ld. Id. if the judge found by a preponderance of the evidence that crime was motivated by hate against race. acknowledged this exception. In addition. The Supreme Court reversed. In doing so.

Georgia Appendix 41 However. and has not had the Almendarez holding directly contested by any petitioner.. it surely does not warrant rejection of the othetwise unifonn course of decision during the entire history of our jurisprudence. Other than the fact of a prior conviction. we contest the continued viability of the Almendarez exception and take exception to its holding. Therefore. and proved beyond a reasonable doubt. any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury. case by case.Brown v.). Even though it is arguable that Almendarez-Torres was incorrectly decided. See. our reexamination of our cases in this area. Supreme Court Docket No. Cunningham v. We believe it must be overruled. J.S.). the Supreme Court very carefully defined each issue being decided concerning and stated clearly what was not being decided. With that exception. Blakely v. 296 (2004). at 253 (opinion of Scalia. California.S. see also id. in this area. ~ ':~~ -6­ 151 . confmns the opinion that we expressed in Jones. dicta in the Apprendi decision clearly indicates this exception is on shaky ground with the Supreme Court. [d.. we endorse the statement ofthe rule set forth in the concurring opinions in that case: 'TGt is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.. 542 U. S. and ofthe history upon which they rely. Given its unique facts. U. It is also worth noting that in each ofthe cases decided subsequently to Apprendi. Washington. The Supreme Court seems to be moving incrementally." 526 U. 05-6551. at 252-253 (opinion of Stevens. Apprendi does not contest the decision's validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset. at 490. [footnote omitted] and that a logical application of our reasoning today should apply if the recidivist issue were contested. In sum. J. It is equally clear that such facts must be established by proof beyond a reasonable doubt.

Storing ed. 18. Justice Scalia articulated the policies the Supreme Court is seeking to protect in its holding: Our commitment to Apprendi in this context reflects not just respect for longstanding precedent. Diary Entry (Feb. reprinted in 2 The Complete Anti-Federalist 315. I would say it is better to leave them out ofthe Legislative"). 1958) ("Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department. 526 U. John Adams. 1981) (describing the jury as "secur­ [ing] to the people at large. Jones v. Defendant's sentence must be vacated. Boyd ed. reprinted in 15 Papers of Thomas Jefferson 282.283 (1. supra. Blakely. should have as complete a control . 227. 12. S. 1771). 244-248 (1999). under federal constitutional law. 253 (C.S. at 305-306. the jury would not exercise the control that the Framers intended. Just as suffrage ensures the people's ultimate control in the legislative and executive branches. jury trial is meant to ensure their control in the judiciary.Brown v.320 (H. reprinted in 2 Works 00000 Adams 252.. 542 U. -7­ l~Z . Defendant was denied due process of law by sentencing him to life without parole without first pleading and submitting his recidivism to the jury for their determination. 1789). but a fundamental reservation of power in our constitutional structure. Georgia Appendix 42 THE PUBLIC POLICY AT STAKE: In Blakely. Apprendi carries out this design by ensuring that the judge's authority to sentence derives wholly from the jury's verdict. See Letter XV by the Federal Farmer (J an. their just and rightful controul in the judicial department"). United States. 1788). in every judgment of a court ofjudicature" as in the legislature).. 1850) ("[T]he common people. Adams ed. Therefore. Letter from Thomas Jefferson to the Abbe' Arnoux (July 19. Without that restriction. but the need to give intelligible content to the right ofjury trial. That right is no mere procedural formality.

when considering state constitutional provisions as compared to similar federal provisions. He was bound by their finding.G. §V states. juries fixed the sentence. in Georgia. Art. except that the court shall render judgment without the verdict of a jury in all civil cases where no issuable defense is filed and where a jury is not demanded in writing by either party.C." Today. shall remain inviolate. IV. it is difficult to ascertain the contours of Georgia law on this particular issue.A. which shall be within the minimum and maximum prescribed by laws as the punishment for said crime. as well as the issue of guilt or innocence: The jury in their verdict on the trial of all cases of felony not punishable by life imprisonment shall prescribe a minimum and maximum tenn. . Nonetheless. the defendant shall have a public and speedy trial by an impartial jury. and the judge in imposing the sentence shall commit said convicted person to the penitentiary in accordance with the verdict of the jury. §27-2502 (repealed 1974). Code Ann. and no post facto law shall be passed. "Freedom ofthe press. Georgia Appendix 43 IV. In criminal cases. It is important to note that the judge had no ability to reject the jury sentence. §17-10-1 and §17-1O-2. and the jury shall be the judges of the law and the facts. Georgia adopted the state constitution. the similar section reads: The right to trial by jury shall remain inviolate. The foregoing statute was replaced by today's O. In 1798.8­ 153 . ADEQUATE AND DWEPENDENT STATE GROUNDS: Nonnally. and trial by jury. there exists parallel jurisprudence so that one may compare state with federal on the same issue. as heretofore used in this State. That is not the case here. Until 1974.Brown v. Ga.

§16-5-40(b)(2) mandates a life sentence or a split sentence of25 years followed by probation for life. 309 (1981). and then gives the jury the law the court believes the jury should apply to those facts in rendering its verdict. § 16-5-40(b)(1) mandates a twenty year sentence when the victim is above the age of14.9­ lb~ .jXI. Therefore. then.G. Georgia Appendix 44 '''' Georgia Const. There appears to be no Georgia case law directly on point regarding this issue as it is presented in the U. Similarly. The State.A. Art. Defendant's constitutional right to have the jury determine the law and facts of his case decided by a jury was violated. In the case at bar. it is standard criminal procedure for the judge to charge the jury on its role in ascertaining the true facts of a particular case. Therefore. § 16-5-40 has different levels of punishment.S.App. His sentence must be vacated. § 16-5-40(b)(3) mandates life or death ifthe kidnapping was for ransom and Section 40(b)(4) mandates life or death if the victim received bodily injury. ifit wishes to see the imposition ofthe higher degrees of punishment it must plead and prove the facts giving rise to a life sentence (injury/ransom).C. 158 Ga. State. . pursuant to Paragraph XI. See Roberts v. Supreme Court opinions discussed above. if the victim is under the age of 14. As noted above. I. lies in the phrase "the jury shall be the judges of the law and the facts. the kidnapping statute is illustrative. The answer. As allegorical support. What triggers these differences are the facts of a particular case. it's the jury that finds the facts necessary to impose the higher sentence. §1 .Brown v. the jury was not the judge of the facts with respect to whether the Defendant was a recidivist. a. And whether the Defendant was a recidivist was critical to his sentence ofLWP." Today.

And that is precisely the issue advanced here. 2007). the Georgia Supreme Court held that it was necessary to allege all the facts necessary for the jury to determine whether a larceny was committed at night. 34 (2002). or during the day.S. State. State. finds the existence of those factors. That is. In these cases.C. The most recent opinion is Jones v. § 17-1 0-7(b) and that the Almendarez exception is no longer valid . Georgia Appendix 45 In Jones v. Ga. Georgia is required to have the jury determine whether the Defendant is a recidivist for sentencing under O.S.G. the Georgia Supreme Court has considered Apprendi in death penalty cases. our position is as follows.10­ . But.. 141 (1879)(cited in Apprendi 530 U.A. the court has uniformly held that the pleading requirements found in Apprendi do not apply under Georgia law. under federal constitutional law via the 6th and 14th Amendments. State. the jury. Terrell v. not the court. in order for the jury to fix the sentence. Further. See also. 514 (1. 276 Ga. the court held that Georgia law does not require the listing of the aggravating factors in an indictment where the State is seeking the death penalty. S07A0573 (October 29. the jury must determine recidivism before LWP can be imposed. Doing crime at night in Georgia. got the criminal some extra time in the hoosegow. back in the day. Constitution and that these requirements have not been made applicable to the state via the due process clause ofthe 14th Amendment. in Jones.1~5 . 63 Ga. CONCLUSION In sum.Brown v. the court relies on the fact that the Federal constitutional law regarding grand jury and indictments are found in the 5th Amendment of the U. Supreme Court Docket No. In doing so. it is not required to list the aggravating factors necessary for the imposition of the death penalty in the defendant's indictment. Notice requirements are satisfied in the Uniform Procedure Act. in all such cases. Thomas concurring). Finally.

.. but. -j cJ _. Walker ' Georgia Bar No. L16yd'W.1 . 770-631-8187 Fax.:::> c:::::> TTl -'II -~1 r 0 l> _. --< r' . ) ::...> :. This 20th day of December..c-~l . 723336 119 Shadowood Lane Peachtree City. 0-n r=­ <.lt) ...J l.J C) rrl (") c: --. not the jury. As to Georgia law.11 ­ 1 c:. as with statutory factors in death penalty cases.0 0 r..r. GA 30269 Tel.. Therefore.Brown v.. - }> if' -1 c: 0 0 ). And.. Section 17-10-7(b) invades the province of the jury in that life without parole is imposed upon a finding of a fact by the judge. : . 2007.:0 --.. co fT' (J1 c' . the Defendant's sentence must be vacated.n C -f ['1'1 ~~. (" r-' 7" .t1 ~~. CJ f"'V ~ ::n :::3 '.. 770-487-4299 Attorney for Defendant CG ::I: ' ... a procedure must be found that pennits the jury to ascertain all the facts necessary to the sentence imposed. !ew&!. and should be overruled.~'1 -.::x -. the jury is to be "judge ofthe law and the facts" according to our state constitution. Georgia Appendix 46 under existing precedent and court dicta. we are not claiming that recidivism must be plead as a matter of state law.. under Georgia law.. > .

. uf-­ .. a:::.'1 :r: "".J E a: Z .. . :::> Cl V) uJ cwu.•..L .:: c:~ :r:. 200~ •.. First Class. ::J .. with adequate postage affixed thereto.O. GA 30214 Thurbert Baker.Brown v.~ . GA 30334 By depositing a true and correct copy in the United States Mails. U Ln ~ co 0 ... Esq. ~ <::::l . ThitiJdaYOf~. ~ 0::: LJJ rl N C-:) u.) C~ ~ « u~ Georgia Bar No.::.. District Attorney for Fayette County P.. Georgia Attorney General 40 Capital Square Atlanta.> WJ c::..:'.".z .. Georgia Appendix 47 ') CERTIFICATE OF SERVICE This is to certify that the foregoing pleading was served upon the following parties and/or counsel on the following: Scott Ballard. t!') 15>-' . Esq. .­ !J) « CJ -... 723336 Attorney for Defendant (~ .:= -=! 0 Ld u­ ."._1 ~~ ~:.' 0-~ 0-.J e=. Box 1498 Fayetteville.

George Weldon 145 Johnson Avenue Fayetteville. Georgia 770-631-8187 J.\ w. BROWN ANDRE L. 200SR-043S-A pl ai nti ff.-- 1 ~\Q.~tf MOTION FOR NEW TRIAL APPEARANCES OF COUNSEL: For the State: For Defendant Lee: For Defendant Brown: Mr. GEORGIA DECEMBER 21. SUPERIOR COURT GRIFFIN JUDICIAL CIRCUIT FAYETTE COUNTY COURTHOUSE FAYETTEVILLE.EE. Official Court Reporter Griffin Judicial circuit 770-716-4275 30214 30269 . Charges: 1-3: Armed Robbery 4-6: Kidnaping 7: Possession of a firearm during the commission of a crime -vDARRELL. Georgia 770-716-4340 Mr. Georgia 30214 770-716-4250 Mr. walker 119 Shadowood Lane peachtree city. Darryl Brooks. Gregory Stein office of the District Attorney 1 Center Drive Fayetteville.. Lloyd W.Brown v. Georgia Appendix 48 IN THE SUPERIOR COURT OF FAYETTE COUNTY STATE OF GEORGIA STATE OF GEORGIA. &B & Defendants. 2007 ~fr. HEARD BEFORE THE HONORABLE CHRISTOPHER C. EDWARDS JUDGE.

as I point out in 24 the brief. Yes. 15 these hearings. Judge.A. very 22 little in fact.C. and it's maybe the third time in This brief and the motion for new trial I've broken it down into two distinct areas. the life 17 without parole statute under which my client was 18 sentenced.s the -­ 2 .. WALKER: 6 THE COURT: Your. filed an amended motion for new trial yesterday. your motion.s the fourth time we've discussed 14 this issue. Georgia case law on this. 5 MR. That last matter took a little 4 longer than Mr. the federal case law has an exception in it. WALKER: Thank you. walker. 2S The lead case is the -. 23 The federal case law is not. and 10 filed a brief with the Court this morning. Judge.n. this . Let's get the motion for a 3 new trial out of here. 8 Judge. under federal law . the issues. 9 I filed a brief on the. Georgia Appendix 49 PRO C E E DIN G 5 1 THE COURT: 2 okay. 7 MR. 16 is directed to my attack on a. 11 copy of the brief to you and the District Attorney 12 yesterday afternoon. 17-10-7(b) . 13 I I I faxed a Judge.Brown v.G. 21 There is federal case law on this and then there is. 20 I think. I thought. given five consecutive life sentences without 19 parole.

and that's under federal law. as you well know. is.the 7 jury must find all facts necessary to that particular 8 to impose that sentence.in order for a 5 sentencing court to impose a sentence that is enhanced or 6 is above the statutory maximum. is that the federal 15 case law. in order for you to impose that 19 sentence. Judge. in this case the Georgia. 17-10-7(b) . recidivist. which states. as we did in this 11 case. NOW. that is against 21 me under federal law. 530 u. 3 That would . Apprendi v.Brown v. 20 I think it NOW. is.s. it's the Almendarez-Torres case. the Apprendi case. 23 that I'm talking about. has stated. 22 That's at 523 U. the Georgia 9 10 statutory framework. 466. New 2 3 Jersey. Georgia Appendix 50 1 hold on just a second -. What 14 I am saying. although it hasn't reached the point 16 should be at. absent a 4 prior conviction.S. an individual's -. that the Court -. under -. does 5 Basically it says that the issue not include prior convictions. Now. whether a jury should pass on all 24 the facts necessary for the sentence imposed. you sentenced him to life without 12 parole based on the conviction in Louisiana that he 13 received for armed robbery back in the '80s. is saying that the jury must determine 17 whether or not an individual is a recidivist in order for 18 you to use that sentence. 224. there is one case though.now I'm having a problem -­ Yeah.

20 was in the majority on the Almendarez-Torres case. and Justice Thomas. has 21 changed his mind. if you take a look at the Apprendi But the.Brown v. because it wasn't before them. Georgia Appendix 51 1 seem to be. they focus on particular issues that are important 17 to that case. the exception that is -­ 24 right now. 12 Because obviously they're going through a process by 13 which they're reviewing all this enhanced sentencing by 14 judges. 22 Apprendj case. current federal law. you will see in their dicta where the majority ln 4 that case has criticized Almendarez-Torres and if you 5 take a look at the voting. the Apprendi case very -. The Supreme Court has been very careful. would have 23 changed the outcome of the. the voting -. and they very clearly and very carefully 18 exclude everything else. is favorable to what I-­ 25 They take each case as it comes to And they have said in dicta. 19 Almendarez-Torres. who was -.but did not reach it. a really good 8 way to analyze it. which would basically change. 9 seriously criticized the Almendarez-Torres exception and 10 11 However. in It says so"in his concurrence in the THE COURT: Was this a constitutional 4 . under federal law. and they're doing 15 it incrementally. 16 them.voted.and I know 6 reading tea leaves as to who's going to vote during the 7 next based on prior votes is not really. 3 case. all these sentencing schemes. the. fatal to the argument I'm 2 making.

even a conviction. 12 washington -­ 13 THE COURT: 14 MR. that's the problem. the 5 precise issue is what facts need to be found by the jury 6 for a sentence to be imposed. I mean.and. Blakely v. which is what my problem is. An aggravating circumstance in a 24 death case goes to the circumstance of the crime itself.n both federal courts and in the state courts of 9 factors that are not part of the crime itself in order to And what they're focusing 10 determine the sentence. It's the Sixth Amendment right to trial by Jury. 25 so there necessarily can have been no prior conviction -­ 5 . 16 THE COURT: 17 MR. and 8 the use .Brown v. there's similarities. Georgia Appendix 52 1 2 3 4 principle? MR. WALKER: Yes. this isn't l-ike a. an aggravating circumstance in a death case 20 MR. I mean. And at Georgia -. 7 on are basically what they call sentencing factors. WALKER: 21 THE COURT: 22 MR. But. 11 not a judge can take an outside fact. WALKER: 23 THE COURT: There's. sir. WALKER: 15 Even a. The exception is convictions. it's not a -­ It's not something a jury finds. That's the problem. WALKER: 18 THE COURT: 19 And the question is whether or Yeah. and the issue is.

that's correct. Your Honor.and I've also 21 brought independent adequate state grounds as a. as 22 an alternative consideration of this. THE COURT: -­ for that. because the federal law hasn't quite reached the 12 point where I'm at where I'm arguing this case. because up until 1974 in 25 Georgia. it becomes difficult to ascertain and difficult 24 to. that the. 7 MR. to the 18 general rule that all facts necessary to the sentence 19 would have to be found by the jury. 15 But So my poinL here is. 13 Judge. that . WALKER: 8 THE COURT: 9 MR. the statute says that I'm 6 to cognize that. I think -. but here when 4 there's a prior conviction of record from a court of 5 competent jurisdiction. 23 becomes. WALKER: 1 2 3 That's. I mean. juries fixed the sentences and judges didn't.I'm not criticizing the 10 Court's decision under federal law to impose the sentence 11 it did. difficult to analyze. 6 Actually. I think. and 17 will. Georgia Appendix 53 MR. get rid of the recidivist exception to the. 20 I think at some point State law on this issue -. But. nothing ever happens in law if someone doesn't 14 challenge it. as a. WALKER: That's right.Brown v. 16 that the Supreme Court may. in federal law. All right.

what the -. 25 What the. judges the law and the facts 24 and combines them and reaches a verdict. So what I've done in. as to adequate independent state grounds is. I went back 10 to the constitution itself. what is within the province of the. the Court gives the jury 22 the law that it thinks should be applied to the facts.a phrase that appears in the We all know that a jury is the judge of the 19 facts in every case. 6 and.Brown v. 13 the jury shall be the judges of the law and the facts. that what I argue in my brief and what I'm 15 reiterating here. 23 and the jury then applies. that exists in the federal 3 law as to what.we are all familiar with that -. 18 we don't -. of course -. the Georgia constitution. But it also says one other thing. Georgia Appendix 54 So we don't have the type of case law in 1 2 Georgia that exists elsewhere. 5 Because up until '74 the jury decided everything. of a 4 jury under state constitutional law and what is not. is that that phrase has to have some 16 meaning.the way it I'm saying that that phrase mandates that the 7 . 11 which basically says that the right to a jury trial shall 12 remain inviolate. and that means that we don't have a body of 1aw we 7 can look at. 17 constitution must have some meaning. in analyzing this issue 8 9 And. 14 NOW. 20 works.is 21 that the jury decides the facts.

that right has not been made applicable to 24 the states via the Fourteenth Amendment of the u. that you have to have jury passing on 18 facts. it's not And. So we're will state that the Georgia Supreme 14 Court is. 6 Now.that.that in order for the jury to be the judge of the law 4 and Lhe facLs it.s not applicable to us in death 22 penalty cases. like I said.s quite aware of the federal case law and they 15 deal with it in death penalty cases. 12 in an area that's kind of gray. 25 Constitution.the Apprendi case has two. Therefore we can turn. 13 I I will. . we can focus solely 8 . those. because that's a Fifth Amendment right and 23 those -. 7 on point in that regard. two things in it. 17 It's one that it.s. 16 said -. 9 and frankly these. 19 some fashion.Brown v. in the finding 2 of whether or not he is a recidivist. 20 And what they've But Apprendi also says you've got to plead it in The Georgia supreme Court has said the pleading 21 requirement in Apprendi . that the jury must 3 -. completely for. in the decision. must be 5 done. these.federal case law 10 involving the state sentencing schemes really didn't 11 start to develop until the '80s and the '90s. 8 an issue that's ever been considered by our courts. for the case. Georgia Appendix 55 1 jury be included in the. .these -. those facts must be found by the jury. don't have any Georgia case law directly I Because.

something 16 like that. which is incorporated. 15 with a procedure whereby -.Brown v. in the indictment. just so long as those THE COURT: 7 8 You're saying this is Sixth Amendment. 3 provisions of the Uniform procedures Act adequately give 4 notice and adequately protect due process rights under 5 Georgia law. In the Sixth Amendment. where 17 the jury finds guilt or innocence. 24 You developed a procedure for that. WALKER: I understand the argument. in 6 the. I did raise the issue of the pretrial publicity. 20 judge applies the law to those findings. then the And that is One other -. what 1 ' m saying is that not under 13 state law am 14 requirements. I I mayor may not just want to make sure that the issue is 9 . to 2 make it. make an indictment good. so we don't have to plead it. MR. 21 essentially the. the argument.in my' amended motion for new 22 23 trial. like they do with a death penalty case. 25 test that. Georgia Appendix 56 1 on Georgia law with respect to what has been pled. I asking the Court to impose pleading What I'm saying is that we have to come up Once that determination is made. which is So I -­ 11 THE COURT: 12 MR. and then is given the 18 option of determining whether or not the individual's a 19 recidivist.bifurcated trial. WALKER: 9 10 And that the notice incorporated. in the.

2 THE COURT: well. is one that 23 I 24 this Court can address itself to. or is. is reserved for. the 9 10 -.there 7 is one case. Is there any other 3 evidence or anything else that needs to be put in the 4 record. Mr. on that or any other point? MR.all the rights that were. Walker? MR. No.not. I don't expect you to anticipate a Supreme Court 10 . for appeal. there is one principle of law that states 8 that if you had the right to a -­ when The Georgia Constitution was enacted. the state argument -­ again. it is. including the right to 12 trial by jury. 14 that if we go back that far and find out. don't feel that the federal argument is. Georgia Appendix 57 1 resolved. WALKER: 19 20 And my argument would be that we would. WALKER: 5 NO. sir. 21 THE COURT: 22 MR. WALKER: Today? The. well. as well 16 as the -­ THE COURT: 17 18 You're a strict constructionist. were preserved and cannot be changed by 13 the legislature. in this case I might have to be. that you had when that 11 Constitution was enacted in 1798. not mentioned in my brief -. The only other 6 ground is that -. because it's a federal 25 issue.Brown v. we will find 15 that the juries were involved in the sentencing.

20 it says. 11 . well. and it's going to take a little bit of thinking to S resolve. a decision that hasn't happened yet under 2 federal law. 8 walker. when I signed that order to bring him 14 back and then 15 prison. I THE COURT: 6 7 to.and I 21 think that was a Monday -. I want do want to say this about this. and you promptly took it to the clerk and filed 24 it. Brown back. I. I'm not sure 16 him. 18 And I I thought. Georgia Appendix 58 1 hearing. when I. WALKER: 12 THE COURT: Yes. sir. sir. I think like a Friday afternoon 2S Actually. think. WALKER: Yes. walker had not 22 filed this order. if we get it up there. this business Mr. well. 17 decided to. thank you. this entered November 13 with regard to bringing I Mr. 11 MR. I.Brown v. or that you may not have filed it. I think I signed it on a MR. to vacate it.I want. 9 order that 10 I well. The state issue is a little more interesting 3 4 and. I want to be real clear about this. "On checking the ICON system today" -.'" 23 Friday. hold on a second that guy is in I want to send the Sheriff after thought better of it and studied it and And I entered this order saying you hadn't 19 filed it. I -. I want you to 13 understand."it appears Mr.if -.

Brown v. 25 wasn't trying to imply that. And I. 23 well. Brown back. 3 MR. I've 9 nothing else to do. 13 And so I was in no way insinuating that you had 14 done something dilatory or negligent or. I . just like it says. 20 MR. that could be taken the wrong way to say that you 24 were holding the order. And to the extent that this order created that impression. mailed them to the 7 Sheriff and the clerk. 8 the Sheriff may get this thing and think. well. And you didn't do that.or 15 certainly not in any way manipulative. when the law 11 didn't require the county be responsible for that 12 expense. to the contrary. And so my apprehension was that 5 maybe you took them back to the office. it occurred to me. WALKER: 18 THE COURT: 19 I understand. by not filing the 16 order.and it didn't get on the ICON system. I -­ on rereading it. WALKER: 21 THE COURT: I. made copies of them. or in any -. and 12 I was. and And if that happened. Georgia Appendix 59 THE COURT: 1 2 -. 17 MR. as a lot of 6 lawyers do. and. I'm sorry. I. I thought. Judge. I have the greatest respect for 22 you. WALKER: 4 THE COURT: I understand. or I have a free man today. 10 send somebody on to bring Mr.

si r. they were co-defendants probably 18 with the same case number. WELDON: Your Honor. 21 THE COURT: 22 MR. As far as Mr. WALKER: 11 THE COURT: 12 Absolutely. and the way that 6 wrote it. Georgia Appendix 60 1 just -. Okay. But. 13 . he I understand that. you know. please. WALKER: 14 THE COURT: 15 I Thank you. Judge. WALKER: 4 THE COURT: Yes. sir. weldon for a moment. Thank you. 13 MR.and I think we called the office and got a voice 2 mail or something from you -­ 3 MR. and. Lee goes. as we discussed 17 previously. 8 providing the most zealous representation for Mr.Brown v. Okay. Yes. 7 that you weren't doing anything but presiding. 19 doesn't have a dog in the fight that was just before the 20 Court. And we're just asking -. you know. Yes.I'm 23 appearing today on behalf of Mr. WELDON: Right. hope you understand that. I want you to 5 understand the reason I did it. Brown. I think. I was in no means suggesting that. 9 So I And I was. saia. And. 10 MR. whose case it is. sir. 24 we're just asking the Court to rule on the motion as 25 submitted. 16 MR. if I could hear from Mr.

And contrary to 7 what Mr. Benham. this Court was very 1 2 And for the State? 6 thorough in debating this issue before. 4 THE COURT: Sure. And this case says -. STEIN: Just briefly. And Chief Justice Benham further 14 .in this case the ortiz was decided in 1996. State. 14 in this case held that. thank you.G. 3 MR. 19 And the Court The citation is 266 20 Ga. walker said. was unconstitutional.C. 8 this is a very black and white area of the law. 752. I've got a case here. Your Honor. 5 MR. hinted that the case of Ortiz.A. 15 which is the Georgia Supreme Court case. 11 App. Georgia Appendix 61 THE COURT: All right. STEIN: Your Honor. at the time. schuman v. 21 the majority opinion and said that the choice of 22 sentencing via legislature . 335.Brown v. the 13 crux of this matter. 17-10-7(b). 12 defendant had challenged the O. this is not a gray area of the law.s not subject to judicial 23 review unless it's grossly disproportionate to the 24 sentence received. Chief Justice. had foreclosed 16 this argument and that 17-10-7(b) was constitutional 17 under both the United States constitution and the Georgia 18 Constitution. it's a 9 10 Court of Appeals of Georgia case. keeping recidivists from keeping. wrote the. 25 opined that keeping. citation is 244 Ga.

this case stated that it And this case also cited the U. Georgia Appendix 62 1 from committing more dangerous crimes is certainly 2 proportionate to a life sentence under a recidivist 3 statute. (Whereupon. Estelle.s. 9 again.a recidivism 5 6 statute is not unconstitutional just because it is 7 mandatory. this just stated that. it's 445 U. This case also said that the -.Brown v. and that these people need to be isolated from 4 society.) 19 20 21 22 23 24 25 15 . 8 Court case of Rummel v. I'll take it under advisement and issue an order in both cases. 15 16 17 18 THE COURT: Okay. 263. well. and that the 13 punishment wasn't unconstitutional because it was 14 mandatory. the above-titled matter was concluded. Supreme And 10 wasn't unconstitutional because the punishment was 11 proportionate to the crime committed and had the goal of 12 protecting people from recidivists.s.

consisting of pages one through 15. "''''. certify that the foregoing transcript in the matter of STATE OF GEORGIA -v. was taken down and then transcribed by me. Indictment No. official court Reporter. 2005R-0435 (A&B) . correct and complete transcript of said matter as reported by me. r further certify that I am a disinterested party to this action and that I am neither of kin nor counsel to any of the parties thereto. unless said disassembly or photocopying is done by the undersigned official court reporter and original signature and seal is attached thereto. 8-1543). This certification is expressly withdrawn and denied upon the disassembly or photocopying of the foregoing transcript. In witness thereof.__ J. (Certificate NO.DARRELL BROWN & ANDRE LEE.Brown v. 2008. Georgia Appendix 63 C E R T I F I CAT ION STATE OF GEORGIA: COUNTY OF FAYETTE: I. Darryl Brooks. I have hereby affixed my hand and seal on this 11th day of June. and that the same is a true. J.DAR~ BROOKS. CCR Official Court Reporter. B-1543 Griffin Judicial Circuit 16 .I''-i-A / ~_r _{~~ 7 ') . or any part thereof.

. ~ CHRISTOPHER C... r- C:-. z:::::":: -" -~ 0 .. DARRELL BROWN..: ~ . -0 ::3 C) r-'­ N r" .. 200SR-043sA ORDER Upon argument ofcounsel todayon the defendant's motionfor new trial.~ _..~..J:: X /'.~ c=1 f'r1 C":l N I---' 0 '> :::v c.. 2007. Defendant.. SO ORDERED this 21St day of December. ::. 0 ~ z. ~. ­ IN THE SUPERIOR COURT OF FAYE'ITE COUNlY STATE OF GEORGIA STATE OF GEORGIA. ) ) ) ) ) ) ) ) ) Case No. C) r"~ l> (::::J C T7' 1~~ ... Georgia Appendix 64 ~J I.:: .) -< c 0 . .Brown v.. --.__:l ~ ~. Plaintiff. ~ rn ell 0 C) C) c C ~_. -.2 l:· -< ~ ~.><: ~. EDWARDS SUp'erior Court Judge Griffin Judicial Circuit (I" :r: rn --- r }> (. ". themotion for new trial is denied.)I r ... v.--< :0 C1 <.

-' . (f) :I: rn r » UJ -i c: o . r> .-'--. Georgia Appendix 65 CERTIFICATE OF SERVICE This is to certifY that I have served the following counsel of record with a copy ofthe Order by depositing in the United States Mail a copy of same in an envelope with adequate postage thereon addressed as follows: Lloyd Walker 119 Shadowood Lane Peachtree City..J ~ C~ -­ ::::.z rv -< '.t C1 . __ ~1 rn c.Brown v.1~9 ..:.. GA 30214 Randall Coggin Office of the District Attorney One Center Drive Fayetteville. GA 30269 Joe Saia 145 Johnson Avenue P... GA 30214 This 21st day of December.0 . -C .. CJ rv ~ CJ » . O.:.:><: -.co '-' -U ~> r~ . ~ 7".= -. 2007. . box 1659 Fayetteville.:I .c .n '---' -~ I (.::0 ( C") ~ r r"-. T' o .. '1: rn 0 r= c-1.1 Z -r.:3 ..0 .. 0'"10 C :.....

Georgia Bar No. II. DARRELL BROWN Appellant.Brown v. GA 30269 Tel. 770-783-1458 Attorney for Appellant Darrell Brown . Walker. 770-631-8187 Fax. 723336 119 Shadowood Lane Peachtree City. v. Georgia Appendix 66 IN THE SUPREME COURT STATE OF GEORGIA STATE OF GEORGIA Appellee. ) ) ) ) ) ) ) ) ) DOCKET NO: S 08 A 1878 --------) BRIEF OF APPELLANT DARRELL BROWN Lloyd W.

then Georgia's two strike mandatory sentencing scheme is unconstitutional. does a defendant indicted for a serious violent felony.1. the term "serious violent felony" means a serious violent felony as defined in subsection (a) of Code Section 17-10-6. The rights involved are the Appellant's right to a trial by jury as guaranteed in the 6th Amendment of the United State Constitution made applicable to State proceedings via the due process clause of the 14th Amendment of the United States Constitution. and therefore subject to enhanced or mandatory sentencing? If the answer to that inquiry is yes. Appellant's sentence must be vacated. §17-1 0-7(b) which states: (1) As used in this subsection. a recidivist.G. I. Georgia Appendix 67 B) DID THE TRIAL COURT ERR IN OVERRULING THE GENERAL DEMURRER REGARDING THE CONTITUTIONALITY OF O.C G. §17-10-7(b) IN VIOLATION OF APPELLANT'S FEDERAL CONSTITUTIONAL RIGHT TO A TRIAL BY JURY AS GUARANTEED TH BY THE 6 AMENDMENT TOTHE UNITED STATES CONSITUTION MADE APPLICABLE TO STATE PROCEEDINGS VIA THE 14TH AMENDMENT OF THE UNITED STATES CONSTITUTION? The issue is stated thus: Upon notice by the State of its intent introduce the Appellant's criminal history as a recidivist at sentencing.Brown v. in fact. GEORGIA'S STATUTORY FRAMEWORK: Appellant's life without parole sentences were imposed pursuant to O.A. As demonstrated below. whether he is. have the constitutional right to have the jury determine beyond a reasonable doubt.C.A. . and the Appellant's sentence of life without parole must be vacated.

Any such sentence of life without parole shall not be suspended.Brown v.l(a)(2) defines armed robbery as a serious violent felony and §17-10-6. 8 . the effect of which would be to reduce the sentence of life imprisonment without possibility of parole. or the procedural rules governing the application of the death penalty.A. the court conducts a presentence hearing pursuant to a. parole.A. even though life without parole was imposed. Read in conjunction with §17-10-2(c).C. and any such person sentenced pursuant to this paragraph shall not be eligible for any form of pardon. probated. a. or withheld. §17-10-6. or early release administered by the State Board of Pardons and Paroles or for any earned time. leave. Georgia Appendix 68 (2) Any person who has been convicted of a serious violent felony in this state or who has been convicted under the laws of any other state or of the United States of a crime which if committed in this state would be a serious violent felony and who after such first conviction subsequently commits and is convicted of a serious violent felony for which such person is not sentenced to death shall be sentenced to imprisonment for life without parole.l(a)(3) defmes kidnapping as a serious violent felony. §17-10-2(a)(l): Except in cases in which the death penalty or life without parole may be imposed8.C.G. the exception applies only to cases where the State is seeking the death penalty.G. This case has nothing to do with capital murder. or any other sentence-reducing measures under programs administered by the Department of Corrections. early release. stayed. the judge shall dismiss the jury and shall conduct a presentence hearing The exception stated in the first phrase does not apply to this case. upon the return of a verdict of "guilty" by the jury in any felony case. In reaching the sentencing decision. except as may be authorized by any existing or future provisions of the Constitution. deferred. (Italics supplied). work release.

and aggravation of punishment.A. is empowered to impose LWP.C. including the record ofany prior criminal convictions and pleas of guilty or nolo contendere of the defendant.C. In the hearing the judge shall hear additional evidence in extenuation. LWP is a unique sentence. is required to apply §17-1 0-7(b)(2). II. Thus.A. Appellant's conviction on the two counts of anned robbery and three counts of kidnapping resulted in the five life sentences without parole. §17-10-30. mitigation. 310 (2006). This section mandates a presentence hearing upon return of the verdict.G. The court upon receipt of evidence of a prior conviction via certified copies. The jury. Georgia Appendix 69 at which the only issue shall be the detennination of punishment to be imposed.G.G.A. See Butler v. 281 Ga. as an alternative to death. O. 9 . However. in order to impose LWP the jury must find at least one of the aggravating factor set forth in O. It can only be imposed under two distinct circumstances involving serious violent felonies. Therefore. (Italics supplied).C. §17-10­ 7(c).A.Brown v. §17-10-30 for the imposition of the death penalty. LIFE WITHOUT PAROLE EXCEEDS THE STATUTORY MAXIMUM FOR ARMED ROBBERY AND KIDNAPPING.G. the trial court had no alternative but to impose the sentence it did. a murder defendant There is a third means by which LWP may be imposed which involves the imposition ofa life sentence under O. In following the statutory dictate.C. State. or the absence of any prior conviction and pleas.1. §16-13-30(d) and O. 9 The first is in a capital murder trial where the State seeks the death penalty.

Brown v. Georgia Appendix 70

facing the death penalty is granted jury consideration on the factors which may
lead to LWP as a sentence.
The second circumstance is which LWP may be imposed is pursuant to
O.C.G.A. §17-10-7(b) as set forth above. In that instance, the jury has no role in
determining whether LWP is imposed.
Outside these two circumstances, individuals convicted of kidnapping are
subject to a minimum often and a maximum of twenty years in prison provided the
victim was older than 14, and neither ransom or bodily injury resulted from the
event. If the victim is under 14 or bodily injury or ransom are found, a life
sentence is authorized. O.C.G.A. §16-5-40. In the case at bar, absent application of
§17-10-7(b), the most the Appellant could receive was 20 years. For armed
robbery, the individual may be sentenced to either 20 years or life. O.C.G.A. §17­
8-41 (b). In the case at bar, the Appellant was eligible for life sentences on the
armed robbery verdicts. Therefore, LWP is outside the statutory maximums for
armed robbery and kidnapping. Thus, LWP is a special, enhanced sentence based
upon circumstances not found in the underlying crimes.
III.

FEDERAL CASE LAW:

The leading case involving this issue is Apprendi v. New Jersey, 530 U.S.
466 (2000). In Apprendi, the court invalidated a New Jersey sentencing scheme
where a Defendant pled guilty to two counts of second degree possession of a

Brown v. Georgia Appendix 71

firearm, and one count of unlawful possession of a personnel bomb. The State
reserved the right to seek an enhanced sentence pursuant to New Jersey's hate
crime statute. Id., at 470 - 471. The Defendant received a 12 year sentence, which
was outside the limits of the sentence normally imposed for these types of crimes.
The sentencing court based its decision on the hate crime statute where, if the
judge found by a preponderance of the evidence that crime was motivated by hate
against race, creed or nationality, an additional number of years was applied to the
sentence. Hence, the defendant there received a sentence "enhanced" by the
finding of an additional fact by the trial judge. Id., at 471. The Supreme Court
reversed. In doing so, the Supreme Court held that every fact essential to the
verdict and sentence must be determined by ajury. Id., at 490.
A)

THE ALMENDAREZ EXCEPTION:

While the holding in Apprendi appears to support Appellant's position here,
there is an exception to its holding directly on point. That case is Almendarez­
Torres v. United States, 523 U.S. 224 (1998). In Almendarez, the Supreme Court
affirmed an enhanced sentence under federal law, which was based solely on the
defendant's prior criminal history. In addition, the Apprendi court, as well as more
recent decisions, acknowledged this exception. Thus is appears the holding in
Almendarez is fatal to our argument. However, dicta in the Apprendi decision
clearly indicates this exception is on shaky ground with the Supreme Court.

Brown v. Georgia Appendix 72

Even though it is arguable that Almendarez-Torres was
incorrectly decided, [footnote omitted] and that a logical
application of our reasoning today should apply if the
recidivist issue were contested, Apprendi does not
contest the decision's validity and we need not revisit it
for purposes of our decision today to treat the case as a
narrow exception to the general rule we recalled at the
outset. Given its unique facts, it surely does not warrant
rejection of the otherwise uniform course of decision
during the entire history of our jurisprudence.
In sum, our reexamination of our cases in this area, and
of the history upon which they rely, confirms the opinion
that we expressed in Jones. Other than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable
doubt. With that exception, we endorse the statement of
the rule set forth in the concurring opinions in that case:
"[I]t is unconstitutional for a legislature to remove from
the jury the assessment of facts that increase the
prescribed range of penalties to which a criminal
defendant is exposed. It is equally clear that
such facts must be established by proofbeyond a
reasonable doubt." 526 U. S., at 252-253 (opinion of
Stevens, J.); see also id., at 253 (opinion of Scalia, J.).

Id., at 490. See, Blakely v. Washington, 542 U.S. 296 (2004); Cunningham v.
California, U.S. Supreme Court Docket No. 05-6551.
It is also worth noting that in each of the cases decided subsequently to

Apprendi, the Supreme Court very carefully defined each issue being decided
concerning and stated clearly what was not being decided. The Supreme Court
seems to be moving incrementally, case by case, in this area, and has not had the

United States. 18. That right is no mere procedural formality. 253 (C. reprinted in 2 The Complete Anti-Federalist 315. 1958) ("Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department. Diary Entry (Feb. 227. S. Georgia Appendix 73 Almendarez holding directly contested by any petitioner. 12. Without that restriction. Blakely. 1981) (describing the jury as "secur-[ing] to the people at large. John Adams. but the need to give intelligible content to the right ofjury trial. 1788). Storing ed. Just as suffrage ensures the people's ultimate control in the legislative and executive branches. Letter from Thomas Jefferson to the Abbe' Amoux (July 19.Adams ed. supra. . Apprendi carries out this design by ensuring that the judge's authority to sentence derives wholly from the jury's verdict. we contest the continued viability of the Almendarez exception and take exception to its holding. but a fundamental reservation of power in our constitutional structure. Justice Scalia articulated the policies the Supreme Court is seeking to protect in its holding: Our commitment to Apprendi in this context reflects not just respect for longstanding precedent. their just and rightful controuling the judicial department").. at 305-306.S.320 (H. the jury would not exercise the control that the Framers intended. 1789). 1850) ("[T]he common people. reprinted in 2 Works of John Adams 252. Boyd ed. Jones v. 244-248 (1999).Brown v. in every judgment of a court ofjudicature" as in the legislature). 542 U. 1771). 526 U. should have as complete a control . Therefore. 283 (J.. I would say it is better to leave them out of the Legislative"). reprinted in 15 Papers of Thomas Jefferson 282. B) THE PUBLIC POLICY AT STAKE: In Blakely. jury trial is meant to ensure their control in the judiciary. See Letter XV by the Federal Farmer (Jan.

But it is clear the Supreme Court has a profound and deep concern for the protections afforded by the right to trial by jury. However. Georgia Appendix 74 Therefore. nothing prevents this Court from issuing the ruling we are seeking here based upon evolving federal constitutional principles.Brown v. This Court should share that concern and issue an opinion consistent the relief sought herein. under federal constitutional law. is entirely within its discretion. Appellant was denied due process of law by sentencing him to life without parole without first pleading and submitting his recidivism to the jury for their determination.s. We recognize that we are urging this Court under this Enumeration to anticipate a change in federal constitutional law by the u. Supreme Court. Whether this Court is willing to do so. Appellant's sentence must be vacated. .

20 tfls /'" 32J ~ ~-. JEFF HARR£S AND ET..-9 J F~· ... ')Y"'..4~3~~:.§I6-11-106 lOIS LARRY ALDEN ========================llfAYETIE COUNTY SHER£FFS DEPARTMENT ~~!~.. . MELISSA PEACOCK FFiCER SCUIT pms IoFFICER JOJOLA ET.. GA 30214 COUNTS 1-3: ARMED ROBBERY. • A vV\.A.' ~oDS"ft. Superior Court The defendant(s) DARRELL BROWN AND ANDRE _ _)1£ bll/L7Y 155 JOHNSON AVENUE FAYETTEVlLLE. ! \..760 JIMMY MAYFiELD BLVD FAYETTEVILLE. ISEE ADDITIONAL WITNESS LIST Clerk. .J?!~ day 0. the jury.STANLEY FFICER BRIAN BISHOP ASE # 050604667 FAYETIEVILLE POLICE DEPARTMENT . BOB BAUTISTA ET.G.~- Brown v.YETTE ....... find the defendant'--_ _.-_ _ I '. Witnesses *indicates Grand Jury Witness (ff) DARRELL BROWN 3J6i PALOMINO DRIVE POWDER SPRINGS.G..O.C../\ -en . Bill Foreman---P'-vn J ~ SCOTT BALLARD District Attorney State of Georgia vs. day ThJs . . GA 30702 =======================4lvFFlCE STAVENGER = Charge: ~GT..~~--'.. .CG..A.O.. day of . 2005 ~ No. --.. LAKEMAN I~T LYNNCRAWSHAW ~FFlCER DAVID CAGLE LT.A..20_ 24 .--' . _Term. GA 30214 I770-460-63S3 fI1 Plea of Defendant waives formal arraign L~E .C..O.·r. SCOTT GIBSON DET. Defendant ~ Defendant's Attorney Defendant Verdict _ We.§16-8-41 COUNT 4-6: KIDNAPING. GA 30127 'DET.. Georgia Appendix 75 --I \.§I6-S-40 COUNT 7: POSSESSION OF A FIREARM DURING THE COMMISSION OF A CRIME . 'Liz 1E. DEBBIE CHAMBERS lFFICER J.. MARVIN VINSON g (§) ANDRE LEE 2445 HOPKINS DRIVE POWDER SPRINGS..1ARCH Griffin Judicial Circuit County Superior Court .~ This .

to wit: a handgun. 5. Caitlin Williams and Alton Brown by use of an offensive weapon. 15. the good order. on the 14TH day ofJUNE. the good order. take property ofanother. on the 14TH day of JUNE. to wit: a cellular phone from the person of said Caitlin Williams by use of an offensive weapon. Eure Deborah S. peace and dignity thereof. FAYETTE COUNTY: IN THE SUPERIOR COURT OF SAID COUNTY The Grand Jurors. the good order. Foreman 2. to wit: a handgun. contrary to the laws of said State. Maureen R. 13. Adam Reid Peter Torres Julia Shauw Chang Lydia M. 9. Kennebrew William A. 20. 23. the good order. Wright Kathy Goss Padovano 3. Graf Mari B. Jr. and sworn for the County of FAYETTE . 7. Adams Robert S. Davis In the name and behalf ofthe citizens of Georgia. II. to wit: 1. 22. McCoy Susan Paulsen Janie P. to wit: a handgun. Suellen R. to wit: a cellular phone from the person of said Dair Bradley by use of an offensive weapon. 6. Cinemark USA. peace and dignity thereof. on the 14TH day ofJUNE. did then and there unlawfully with intent to commit theft. on the 14TH day of JUNE. a person. take property of another. Wheble Mahlon Henly Donald.L Laura W. Rapp Glen A. did then and there unlawfully abduct Dair Bradley.4tf. 8. take property of another. Davis Rebert L. Sara Mac Gennano. CONTINUED INDICTMENT 25 . Clsl:lgft . contrary to the laws of said State. Griffith Thomas W. contrary to the laws of said State. Caitlin Williams.. selected. COUNT 2: And the Grand Jurors aforesaid in the name and behalfofthe Citizens ofGeorgia further charge and accuse the said DARRELL BROWN AND ANDRE LEE with the offense of ARMED ROBBERY for that the said DARRELL BROWN AND ANDRE LEE in the County and State aforesaid. Lord Two Thousand Five. T. 21.O 12.P. Georgia Appendix 76 Foreperson BILL OF INDICTMENT GEORGIA. Inc. Rowe. III Verolyn M.J. chosen. d/b/a Tinseltown Theaters. COUNT 3: And the Grand Jurors aforesaid in the name and behalfofthe Citizens of Georgia further charge and accuse the said DARRELL BROWN AND ANDRE LEE with the offense of ARMED ROBBERY for that the said DARRELL BROWN AND ANDRE LEE in the County and State aforesaid. Kinzly William R. Dair Bradley. 17. Lord Two Thousand Five. to wit: United States Currency from the person and immediate presence of Dair Bradley. Lord Two Thousand Five. peace and dignity thereof. charge and accuse DARRELL BROWN AND ANDRE LEE with the offense of ARMED ROBBERY for that the said DARRELL BROWN AND ANDRE LEE in the County and State aforesaid. did then and there unlawfully with intent to commit theft. Lord Two Thousand Five. 14. peace and dignity thereof. did then and there unlawfully with intent to commit theft. 16. 4. Ivey Jeffrey L. Hollandsworth Bridget L. COUNT 4: And the Grand Jurors aforesaid in the name and behalf ofthe Citizens ofGeorgia further charge and accuse the said DARRELL BROWN AND ANDRE LEE with the offense ofKIDNAPPING for that the said DARRELL BROWN AND ANDRE LEE in the County and State aforesaid. . without lawful authority and hold said person against her will.Brown v. 19. contrary to the laws of said State. 18.

Lord Two Thousand Five. COUNT 7: And the Grand Jurors aforesaid in the name and behalf ofthe Citizens ofGeorgia further charge and accuse the said DARRELL BROWN AND ANDRE LEE with the offense of POSSESSION OF A FIREARM DURING THE COMMISSION OF A CRIME for that the said DARRELL BROWN AND ANDRE LEE in the County and State aforesaid. said crime being against the person of another. peace and dignity thereof. SCOTT BALLARD District Attorney 2& . did have on their person a firearm. . Georgia Appendix 77 COUNT 5: And the Grand Jurors aforesaid in the nam':) and behalfofthe Citizens ofGeorgia further charge and accuse the said DARRELL BROWN AND ANDRE LEE with the offense ofKIDNAPPING for that the said DARRELL BROWN AND ANDRE LEE in the County and State aforesaid. without lawful authority or warrant and hold said person against her will.Brown v. on the 14TH day ofJUNE. the good order. during the commission of a crime of Armed Robbery. the good order. COUNT 6: And the Grand Jurors aforesaid in the name and behalf ofthe Citizens of Georgia further charge and accuse the said DARRELL BROWN AND ANDRE LEE with the offense ofKIDNAPPING for that the said DARRELL BROWN AND ANDRE LEE in the County and State aforesaid. the good order. peace and dignity thereof. contrary to the laws of said State. to wit: a handgun. Lord Two Thousand Five.'. did abduct Caitlin Williams. did abduct Alton Brown. and which crime was a felony. on the 14TH day ofJUNE. Lord Two Thousand Five. peace and dignity thereof. without lawful authority or warrant and hold said person against his will. on the 14TH day of JUNE. contrary to the laws of said State. contrary to the laws of said State.

Brown v. Georgia Appendix 78
IN THE SUPERIOR COURT OF FAYETTE COUNTY
STATE OF GEORGIA

STATE OF GEORGIA

v.

t!r)

INDICTMENT NO:

(JSp..,- D13S{11)
o{~)

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DARRELL BROWN & ANDRE LEE

ADDITIONAL WITNESS LIST

OFFICER TURNIPSEED
CLAYTON COUNTY POLICE DEPARTMENT

E. DAIR BRADLEY
401 LAKESIDE VILLA DRIVE
HAMPTON, GA 30228
ALTONBROWN
8104 WEBB ROAD
RIVERDALE, GA 30277
CAITLIN WILLIAMS
9115 MANDARIN DIRVE
JONESBORO, GA 30236
LYNETTE MONTGOMERY
10245 DEEP CREEK PLACE
UNION CITY, GA 30291
JACOB GENTRUP
105 MORNING CREEK CT
JONESBORO, GA 30238
REYNALDO FRANCO
GUADALUPE FRANCO
2816 RIDGEVIEW TRL
JONESBORO, GA 30238

'2.7 ..'

Brown v. Georgia Appendix 79

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Parish of Jefferson

THE STATE OF LOUISIANA

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Twenty-Fourth Judicial District Court

Twenty-Fourth Judicial District

JOHN M. MAMOULIDES. District Attorney, of the Twenty-Fourth Judicial District Court of
the State of Louisiana. who. in the name and by the authority of the said State, prosecutes in its behalf, in
proper person comes into the Twenty-Fourth Judicial District Court of the State of Louisiana, in and for the
PARISH OF JEFFERSON and gives the said Court here to understand and be informed that one

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late of the Parish aforesaid. on or about the TWENTY-SECOND day of
Lord One Thousand Nine Hundred

SEVENTY-EIGHT

in the year of our

AUGUST

with force and arms, in the Parish aforesaid, and

within the jurisdiction of the Twenty-Fourth Judicial District" Court of Louisiana, in and for the Parish
aforesaid.

violated R. S. 14: 64 in that they did rob Stuart A. McClain of

U. S. currency and property valued at $100:00 while armed with a
dangerous weapon, to-wit:

a gun,

A TRUA;COPY OF~
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DEPUTY CLERI<:

24TH JUDIe! r',.L DISTRICT COUIJ
PARISH ()P JEH'ERSON, LA.

contrary to the form of the Statute of the State of Louisiana, in such case made and provided, and against
the peace and dignity of the State.

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COMPLAINT NUMBER

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STATE'S
EXHIBIT

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Brown v. Georgia Appendi'X-ml

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PARISH OF JEFFERSON
STATE OF LOUISIANA
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DEFENDANT'S ACKNOWLEDGEMENT OF CONSTITUTIONAL
RIGHTS AND WAIVER OF RIGHTS ON ENTRY OF A
PLEA OF GUILTY
TO THE DEFENDANT, BY THE TRIAL JUDGE

PERSON-TO-PERSON:

Your attorney has indicated to me that he has advised you of your
rights (1) to a trial by jury, (2) to confront your accusers, and (3)
agalnst self-incrimlnation and that by entering a plea of guilty, you are
waiving or giving up these rights. He has also indicated to me that you
have advised him that you understand these things.
Is that cor~ect?
I want you to convince me also that you understand what you are doing
by entering this plea of guilty. Consequently, I am going to explain the
nature of the crime to which you are pleading guilty and I will also explain
the consequences of a plea of guilty.
If you have any questions, or if you do
not understand anythlng I say, stop me and I will answer your questions and
give you any additional instructions which you may desire.

you had~ir't, tell this court how old you are?
1.

You are pleading guilty to the crime of

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which occured on the ~day of
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The maximum sentence which I can im~
years at~-labor.
There is no probation, parole or suspension of sentence for the crime of
Armed Robbery or Attempted Armed Robbery.
Do you understand that?
2.
Do you understand that the plea of guilty is your decision, and no one can
force you to so plead? To plead guilty is your voluntary aot anq ~ust be free
from any vice or defect which would render your ability to plead guilty inadeq1
Has anyone used any force, intimidation, coercion or promise or reward against
either you or any member of your family for the purpose of making or forqing
you to plead gUllty?
.

is waiving his or her right to trial by jury his or her right to confront his accusers. his or her rlght against self­ incrimination. and in the event of a conviction. one would be appointed for you. By entering a plea of guilty. intelligently and voluntarily has entered this plea of guilty knowin( the consequences. you are waiving or giving up these rights. that is. By entering this plea of gUilty. that you will be sentenced as follows: accept your 3. (b) an illegal search and seizure. Do you understand that? 5. (c) an illegal confession. or not gUilty You have the right to hire an attorney of your choice to defend you at that trial. I. You have the right to a trial by jury. if you could not afford an attorney. have informed the defendant of his or her rights. that his or her only appeal is for review of jurisdictional defects. If you were to go on trial. and (e) the fact that the state might not be able tc prove said charge or that a jury would find ~70U guilty. If you plead guilty. you are waiving or giVing up these rights. if the jury finds you guilty. such as: (a) an illegal arrest. Do you understand that by pleading guilty you are waiving or giving up these rights? 7. By entering a plea of gu~lty. the maximum sentence the court could impose under the law. and this court adcepts your plea. you have the right to confront your accusers and to compel testimony on your behalf from your ~ittResses. Po you understanQ that? 4. you would have the right to appeal Again.Brown v:"GeorgurAppefid!jC&l­ :. and I am entirely satisfied that the defendant knowingl~ willingly. which will cost you nothing. which would not cost anything. as attorney for the defendant. particularly the nature of the crime to which he or she is pleading gllilty. one wIll be appointed for you. and lastly. you are waiving or giving up these rights. by entering this plea of guilty.0000 f) 'age 2 Have you been advised by your counsel that in the event I ?lea of -guilty. you are telling this court that you have in fact committed the crime to which you are pleading guilty? BY DEFENDANT'S ATTORNEY: I.~ AT~ . also. Do you understana that? 6. and the fact that the defendant. At any jury trial. in the event of a appeal. you do not have the right to assert any allegations of defects. which jury may either find you Juilty as charged. guilty of a lesser crime. (d) an illegal line-up. ~u--i. If you cannot afford an attorney. Do you understand that by pleading gUilty. was present during the recitation of the foregoing colloquy between the defendant and the trial judge at the time of the defendant's plea of gUilty.

OF~.Brown v. as the defendant in this case. free and Voluntary act of pleading guilty to above men~ioned crime. I1RIGINAL IN TnISF.:Rf{ .r. I am ent1rely satisfied that the defendant was aware of the nature of the crime to which he or she has plead guilty. Georgia Appendix 82 .-- --. /"5') COP. intelligent. that my attorney and the trlal jUdge have explalned the ature of the crime to which I am pleading gUilty. I FURTHER ACKNOWLEDGE THAT MY ACT OF PLEAnl~G 8UILTY IS A KNOWING INTELLIGENT FREE AND VOLUNTARY ACT ON MY PART. therefore. LA.1 0 () C} 9 () '-l Y THE DEFENDANT: I. It is also a conviction.:~!. all of my rights to me. and that I have een given every opportunity by the trial judge to ask questions in open ourt about anything I do not understand and about all of the consequences egarding my plea of guilty. as listed above. I am completely satisfied with the explanations f my attorney and the judge.(.ib~F~.:::JTY CLf. have entered into the foregoing colloquy with the defendant. ~~~ \~\-")\ )"J\ l})l\ DEFENDANT BY THE TRIAL JUDGE: I. land "hat rights I am waiving or giving up..:4:. .~ 24TH JUDJt:I/lL lJISTRICT COURT !'ARtm-i OF Hir'FERSON. lE. I know that no one can force e to plead gUilty I know that by pleading guilty I admit I committed the said crime. I know this plea of guilty is more than a confession. acknowledge that the forego~ng has een read to me. Nothing remains except for the JUdge to give judgment and give me my punishment. understands the consequences of sald plea of guilty and has made a knowing. that the defendant dld in fact commit said crime.··Jccept the defendant's plea of guilty DATE /1. I waive all delays for sentencing and acknowledge I am ready for sentencing. I.':}t.­ age J :. --- ~2:S:.1---2f/ ~~~g J u DGE?"~ A TR' ON . as trlal jUdge.

and no one can force you to so plead? To plead guilty is your voluntary aot an~ ~ust be free from any vice or defect which would render your ability to plead guilty inadeq' Has anyone used any force. 2. or if you do not understand anything I say. Consequently.~19 ~ The maximum sentence which I can impo~ years at har labor. and (3) agalnst self-incrimLnation and that by entering.. I am going to explain the nature of the crime to which you are pleading guilty and I will also explain the consequences of a plea of guilty. First. n ().'.] 1 VOJ\f\& A. coercion or promise or reward against either you or any member of your family for the purpose of making or for~ing you to plead gUllty? ­ . BY THE TRIAL JUDGE PERSON-TO-PERSON: Your attorney has indicated to me that he has advised you of your rights (1) to a trial by jury. you are waivlng or giving up these rights. G~ f~~ \ DEFENDANT'S ACKNOWLEDGEMENT OF CONSTITUTIONAL RIGHTS AND WAIVER OF RIGHTS ON ENTRY OF A PLEA OF GUILTY TO THE DEFENDANT.13 . Georgia Appendix 83 o DOD .Brown v. 7 .fd-.a plea of gUilty. parole or suspensl0n of sentence for the crime of Armed Robbery or Attempted Armed Robbery. intimidation. TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON STATE OF LOUISIANA NUMBER 7 ~ :-d. Is that correct? I want you to convince me also that you understand what you are doing by entering thlS plea of guilty. tell this court how old you are? you had? 1. Do you understand that? Ci . stop me and I will answer your questions and give you any additional instructions which you may desire. (2) to confront your accusers. Do you understand that the plea of guilty is your decision. (J G ------- DIVISION STATE OF LOUISIANA vs. He has also indicated to me that you have advised him that you understand these things. There is no probation. If you have any questions.. You are pleading guilty to the crime of And how much schooling'have ~ Cl ~ ~VZ:: \ which occured on the ~day of ~ . Flled 6 .

If you cannot afford an attorney. If you were to go on trial. and I am entirely satisfied that the defendant knowingl~ Willingly. If you plead guilty. At any jury trial. you are waiving or giving up these rights. By entering a plea of guilty. in the event of a appeal. By entering a plea of gualty. po you understand that? ~uilty 4. that his or her only appeal is for review of jurisdictional defects. (d) an illegal line-up. you do not have the right to assert any allegations of defects. which jury may either find you as charged. was present during the recitation of the foregoing colloquy between the defendant and the trial judge at the time of the defendant's plea of guilty. and the fact that the defendant. guilty of a lesser crime. particularly the nature of the crime to which he or she is pleading gUilty.' /7 \ ( '-. Do you understand that by pleading guilty. if you could not afford an attorney. you would have the right to appeal Again. by entering this plea of guilty. By entering this plea of guilty. intelligently and voluntarily has entered thlS pl~~)Of gUilty knowin\ the consequences. Do you understand that by pleading guilty you are waiving or giving up these rights? 7. you are telling this court that you have in fac~ committed the crime to which you are pleading guilty? BY DEFENDANT'S ATTORNEY: I. q 6 Have you been advised by your counsel that in the event I accept your Jlea of ~uilty.->. his or her r~ght against self­ incrimination. Do you understand that? compe~ 5. as attorney for the defendant. that is. one would be appointed for you./{/ . one wlll be appointed for you. you are waiving or giv. and lastly. is waiving h~s or her right to trial by jury his or her right to confront his accusers. if the jury finde you gUilty.. and in the event of a conviction. that you will be sentenced as follows: 3. and this court adcepts your plea. the maximum sentence the court could impose under the law. also. WhlCh would not cost anything. I. you have the ri9~t to confront your accusers and to testimony on your behalf from your ~ittResses. (b) an illegal search and seizure. (c) an illegal confession.0 n .:1 f'. Do you understan~ that? 6. and Ie) the fact that the state might not be able tc prove said charge or that a jury would find you guilty. You have the right to a trial by jury. you are waiving or giving up these rights./' . r-'\/l/l f) / /d/.Brown v.. such as: la) an illegal arrest. have informed the defendant of his or her rights. Georgia Appendix 84 ?age 2 o n .ing up these rights..~/\ . which will cost you nothing. or not guilty You have the right to hire an attorney of your choice to defend you at that trial.

~ D '5\T\~ ' 2. as listed above. all of my rights to me.ACKNOWLEDGE THAT MY ACT OF PLEAO!~G 8UILTY IS A KNOWING INTELLIGENT FREE AND VOLUNTARY ACT ON MY PART.Brown v. I FURTHER. intelligent. free and voluntary act of pleading guilty­ to above men~ioned crime. I. It is a~so a cnnv1ct1on. acknowledge that the foregoing has been read to me. understands the consequences of sa1d plea of guilty and has made a knowing. I am completely satisf1ed w1th the explanations of my attorney and the judge.7~#/ JUDGE 7 ~ DEPUTY CLERK 24TH JUDICIAL DiSTRICT COURT PARISH OF JEFFERSON. and '. that my attorney and the tr1al jUdge have expla1ned the nature of the crime to which I am pleading guilty. I am ent1rely satisfied that the defendant was aware of the nature of the crime to which he or she has plead guilty. Nothing remains except for the Judge to give judgment and give me my punishment. have entered into the foregoing colloquy with the defendant. I know this plea of guilty is more than a confession.''> :'\) ~1' . as tr1al judge./J-)j' DATE /~~-.hat r1ghts I am waiving or g~ving up. LA_ . and that I have been given every opportunity by the t~1al judge to ask questions in open court about anyth1ng I do not understand and about all of the consequences regarding my plea of guilty. '. that the defendant d1d in fact comm1t said crime.-~ccept the defendant's plea of guilty If:. I know that no one can force me to plead guilty I know that by pleading guilty I admit I committed the said crime. Georgia Appendix 85 Page 3 BY THE DEFENDANT: I. as the defendant in this case. therefore.j\ DEFENDANT BY THE TRIAL JUDGE: I. I waive all delays for sentencing and acknowledge I am ready for sentencing.

a plea ...A. The defendant waived all legal delays and requested immediate sentencing. _ The Court advised the defendant of all of his rights.. l. eA~PcrJ).. appeared before the bar of the court this day represented by~OHN ALES Attorney.J}. PARISH OF JEFFERSON 24th Judicial District Court State of Louisiana 78-2120 No. The defendant waived these rights and a waiver of rights was ex­ ecuted and filed intv the reeord. Divisio.-__ ~ DARRELL BROWN _ 3-19-79 Date E.y-'_ Cd._. lOC-Orig. his right to confront his accusers and his right against self-incrimination and the defendant acknowl­ edged that he understood. LEBLANC DISTRICT ATTORNEY DONELON JUDGE CURRAULT SENTENCE The defendant.. . The defendant withdrew his former plea of NOT GUILTY and tendered to the State of~UILTL1'_Q .-BROWN ------------. VS.RMEtL RQBBERL . SAID SENTENCE IS WITHOUT BENEFIT OF PAROLE.0 STATE OF LOUISIANA. giving the defendant credit for the time served frorIL- The defendant is committed to the Louisiana Department of Corrections for execution of sen­ tence in conformity with L. including his right to a trial by jury. .. The court sentenced the defendant to imprisonment at hard labor for a term of TEN (10) Y~RS ~ _ _. OPY OF THE ORIGINAL ~o~~ __ if Entry No IJ: DEPUTY CLERK 24TH JUDICiAL DISTPICT COURT PARISH qf· JEFFERSON. PROBATION OR SUSPENSION.". 15 :824.1\.R.Brown v. # 4-Sent. Georgia Appendix 86 n ~' 't "~'J: . Plea . The defendant reported his date of birth as__ 2.S.S.5-6~ and his age as .

=.=. You.. are hereby commanded to carry out in full every part of the aforesaid sentence. SUSPENSION OF SENTENCE .=.··'­ in the year of our Lord.. in the City of Gretna. OR .~R. "e" Parish of Jefferson.RT FOR TIlE PARISH OF JEFFERS01V DIVISION "C" DOB: 2-5-60 NO. PROBATION. BROWN was by due for~ of law lately befQre our 24th ~udicial District PLEAD Court for the Parish of Jefferson of Violating Revised Statute 14:64 ( ARJI1ED ROBBERY ) and was thereupon sentenced to imprisonment at hard labor.S..of the same. WInlESS. JUDGE .-day of _-=-MAR!=-=-:.A. 15:824.CH:. and defendant is committed to..9:.1·. the Louisiana Department. . Georgia Appendix 87 STATE 0F (lLOUIEuANA I l ~XJYElVTY~FOURTI{JUDICUL DISTRICT COU. 78-2120 ITE}1 NO. NOW. for . u.=.::... Division L· c. And for so doing this shall be your sufficient warrant and authority. the said Sheriff. 8-12698-78 COMMITMENT WHEREAS DARREL A. THEREFORE. JR.TH---'---. . " . DEFENDANT TO BE GIVEN CREDIT FOR TIME SERVED FROM AUGUST 22. CURRAULT.".:_~ ~.­ TEN (10) YEARS . WIlliOur BENEFIT OF PAROLE.. NESTORL.Bro~~ v. of Corrections for execution of said sentence in conformity with L..S. this r·~··· c'-. _ _ _-=1:. at the Hall of Sittings . 1978 TO DATE OF TRANSFER. one thousand nine hundred and SEVENTY-NINE J UD GE _ . presiding in the 24th Judicial District Court.

hath obliged the Americ.Brown v. the counties of N'ew-Caftle.it\lticn 0: 1. ~. is in confequence thereof diifoh·cd. and Georgia. as may. South-Carolina·. by virtue of the pO"'er delegated {GI'us. that of late years.EE. and to aifert the right.86·-r· ~9­ THE 'Ri:i t: . whe're no government. Virginia.:. "1 i~. to the re[peC1ive afl{:mblies and convelltio:1S of the United States. which condua bc­ ing repugnant to the common rights of mankind. Kent and Suflex on Delaware.:t-l3ritain for many years part.. one thoufand feven hundred and feventy fit.-red~ that the follow­ ing rules and regulatioDi be ado}1ted for th~ future go\"erlJl:n~!lt of thi. fufficient to th~ eXIgencies of their ~lfairs. Maryland. hath been hitherto e£1:abllfh­ ed. Rhode-H1and. as free­ men. and accordingly it hath been. ~ . North­ Ca'rolina.tives of the people.. New-York.ituents il. ' And whereas the independence .of the United States of America 11a5 b:'len alfo ~Ie­ dared. New-Jerfcj'. Maff:lchu­ [etts-Day. . Georgia Appendix 88 1 ~$ 'I I . allrl for whofe benefit all governme~t is intended. WHEREAS the conduct of. given by their reprefentatives met together ill General Congrefs..'" :~. '1 1 ~. I. and to make laws to bind them in all cafes whatfoever. in the city of PhiJadelphia~ And'whereas it hath been recommended by the [aid Congre[s on dIe fifteenth of May laft.~ II unr. :md the. "\Ve ther~fore·tlle reprdentatives of the people. and aiferted a right to raife taxes upon the people of Amerira. without their confent. and' 'an politicd conneaion bet\-een th~m. in the opinion of the reprcfcllt:l. and privileges they are entitled to.of nature and reafon. and America in generi!. on.the fourth day of July. Preanllili:. ilielegiilliture of Gre.done by the general confent of all the people' of the States of New-Hampfhire.· I }~ I~I ':. Penllfylvania. *THE CONSTITUTION OF THE ~tatr of eeorg(a. I. The: "'Th!! Confriturio:J gave place tll th~ CQ!l:!. p::rticular•. they have plainly Jeclared. DO'ordain and deClare. Conneaicut. beft conduce to the happincfs.!lls.··. and it is hereby ordained andclccl. by the laws . by" the faid 'fIono'rable Congrefs. lias been fo oppreffive on the people of America. from whom an power originates. to adopt fuch government. State. and fafety of their confi. clown of Great Britain. to oppofe fuch opprelIive meafures.

fo th. unlers the members of each county agree fOT a longer or {horter period. ex:cept the county of Liberty. Th {bali llave .iJ. and of:m executive coun­ cil. A on different laws and 0 for their pe: IX. Til." member> from each couu" 'i* ~lceFt Libcr.fhall-De-ftiled' Hono"able·. Thomas and St. and known by the name of Camden. below Canouchee. except thofe coun­ ties which are not yet entitled to [end ten members. at Savannah. VIII. George 111al1 bt: another coun~y. four member. The parifhes of St.t!tat .. executive. as is herein after pointed out: and the reprdelltatives. {Ii ccunty l1i. above Canouchee~ !hall be another county. as is herein after direCted. fix fclJors l11al VI. Patrick {hall be another county.: any . III. II. an({ J'udieiary departments {hall be feparate amI dif­ ." 1. The ceded lanus north of Ogechee fuall be one county. chofen. who. EleCtion of Re­ prefc:nutives. where the governor reudes. and known by the Rame of Chatham.. and known by the name of Glynn•. and known by the name of Wilkes. Andrew. on the /irf!: Tuefday in December."'1 d'rart­ tla~. and the lower part of St. }. fembly.erfon titne of the military ~em. It {hall be an unalterable rule.v. {hall be ru:lother county and known by the name of Liberty. "-and the reprefentatives fo eleCl:ed ihall meet the firft Tuefday in January following. Par: .1bly to be anDual. V. memberea til they ha proteitant own right two hundr' VII. The pariih of St. Juc. and be at an end yearly aIlLl every year. The Theporf ::~. . Paul {hall be another county.gbm.nd town The port and town of Savannah fuall be allowed four members to reprefr:nt theil'" Df Sava~n3h. that the Houfe of AiTembly fhall expire. The reprefentation ihall be divided in the following manner. reprefentatives fo.. James. John. No c :tny" p. The parilhes of St. The paTiih of Chrifl: Church. The legiGative. alfo they. {h:illl be eldred yearly.o IV thorclJ. Au his own rig any mechan a right to. and every year. and known by the name of Rich­ mom!. they !hall proceed to tne dlOice of a Governor. Wilkes county.hn:cod.."~ts difrill~1.i:­ c:cutive coun.. Camden. :R'. Chllnam. The parifhes of St. t<l be chofe' eletHon. AITer. on the day preceding the day of dection menti­ oned in the foregoing rule. and known by the name of Effingham. and lhat ihall be allowed fourteen. ttte remaining number of repre[entatives illall be called the Haufe of Alfembly: and the majority of the members of the faid houfc {hall have power to proceed 011 bufine[". The legiflature of this State 01a11 be compored of the reprcfentatives of the peapk.:tl:Ol eighty. viz. and St.:!nativ'd' ~. St. Governor &. by ballot out of their own body. e. GJY~~l... llt::r:'::.. David and St. The hot they find il its own ol1i fupplying iJ or times wi "r. Philip. and known 'by the name of Burke. Philip. Matthew. ten luembers from each county.' One of each county {hall alway~ attend. two from each county.DIGEST OF THE 8 l_r:. fuall be another county.. IV. l)'-fourtem. which contains three parifhes. trade. TI as may be ( and regula! Iation cont. Liberty. \~ ecuuve an JU· • elie. fh X.. of the. Mary {haU be another county. • . ten ·eit. and the upper part of St.tt Ilelth~r exerclfe die powers proper! y belongmg to the other. by monthly rotation. The parifh of St. where the Camden. or any uther place or places where the Haufe of Alfembly for the time being {hall direct On the lirlt da y of the m~eting. this is not intended to exclude ei­ ther member attending:. Eftir. The pariih of St.

ving a right to vote at allY ­ cleaion. ~ne reprhe • cae '" JCntCltlvc VI.. hcreiri agreed t<l be chofen by the people :It large. No­ ..'1 h county ave ten clcll:ors.il1ftitution. viz.nnt: ofpaff­ laws and ordinances thall be fent to the eY. ~i!lificati(Jni oj e!edors. county and known by . VIII.. which Glynn & Cam. !hall'han a right to. provided fuch 1a\"s and regulations be not repugnant to the true intent and meaning of :>'ny rule or regu­ lation contilined in this confritution •• The houft>. alld jf thirty. or on their returning home from fuch de8ioD. fix.ltioll. they lhall proceed . or gj~e-a11J' other hindr~nce ro E'c:B:ions to h~ any' p. or during the II e.mber.. diua. who arc ill a fiate of alarm. {hall have )ly {hall expire. if forty.•. and liable to pay tax in this'State. appoint its own oHicers.oc to the good order and well being of the State. At their tid!: .p. X. The two coullties of Glynn and .~·::its of dea~n for fupplying intermediate vacancies. for their perufal and advice. or fome propO't}" to the amount of tWQ hundred and fifty pounds. if eighty.ecutive council after tbe iecond reading.erfon entitled _t.of clettion. 1 be ~r. _if an hundred and upwards.. entatives fo eleEled any other place or ~El:.1I1ty.vtry perfon. :ll1l1 p0l1effed in his own right of ten> pounds value.· tioll by b. :In.. or allY ot~er officers. and known by ers to reprefcnt theil" The AlfembJy to make laws and rc::gd:uions_ l\1a}· t'l:'PCOol Ilaws­ chute its o~tn fpe"ker.n.. 'who ~alifimio? of fhall have reGded 'at leaft twelve months in this State. each .Q vote. vote 'at all .allti. except the freeholders of the counties of Glynn :m~ Camden.1)<. pron"d et1 t 1le III h a b'ltants af the f:al'd' county llIal fI-.DCCS. IX. The repre[entatives {hall be chofen out of the refidents in 'each COUIlt}'. if fixty. and 111fo they. and three months_ in the county Reprcfentau\'Cs where they ihall be de~ed. as fpccified in the articles of this conftit1. tel].ond.· '. and all iug laws and or. appear at any' e1eClion in a militnry charaCter" to the mtent dmt aU eJeCliOlls rna}' be free and open. 35 111ner.c.! direCl: . {}-la 11 1lave Ol1'~ ' me.e r.ople: And the houfe Ihall chufe iJs own fpealer. Im~y. menti­ 0 F G E 0 R G I A. except in cafes of great necefflty anet dJugcr. and iliall1Je: poifeJTed in theil' own right of twO hundred and fifty acres of bnd.e houle of aficmbly {hall have power to make fuch bws and regulations may be conduci.c anJ (Jpun. All male wIlite inhabitallt5. an executive coun­ except thofe coun­ L co Lln ty {hall a Iwa j~ fs the members of :nded to exclude ei­ :s {hall be called the aid hou[1. or foJdier. ten members y of Liberty. Alllaws and ordinances fidl be three times read. puint it5 oiii. at which time two executi·\'e coun­ fellors {hall be chafeo from them. ~.. 9 The port and town of Sunburv {hall be allowed two members to reprefent their trade. o. f. as is direaed for the other counties. they {hall have two.l!leEl:ions for reprefent:nives. nor flulJ ~ny military officer. aU ). in any other county. a Xl."ollowiilg regulations. all other coU!~iies tliat'" m'ay hereafter be laid out by the houfe of af. tel~b!y. '. ~c[entatives of the II be eleaed yearly. fr. above Canouchee.era. No officer whatever: {hall ferve any procef. TI. and thall have been refident fix' mumhs in this State.C~mden {hall have one reprefentative each. un· til they llave refidents fufficient to qualify them for more: And they DIal! be of the proteltant religion. of ajlembly !hall alfo have power to repeal bws aad ordinances they find injurious to the pe.the f. ' ~other Reprefentath:es of new counm'S apportioned. on dilferent and fepaTilte days. four.eltc. and who fhall have the liberty of chuling one member each. time of the laid eleaion.Brown v. and {hall have power of adjonrnment to any time or times within the ye:lr. {hall yote by ballot perfonally. or being of any mechanic trade.aJl b. bdow Canouchee. tI V. -either in going: to the place... two nlc:'ltlbt::rs. 0 known by the name y the name of Rich- Iwn 'by the name of VII. of the age of twenty one years.. . Georgia Appendix 90 LAW S e fepararc ami dif­ the other. and )' of elcaia. and of the age of twenty one years. and e. {hall be unger . three.. fettle its own rules of procE:<:ding.llul. Sunbury.ntl each reaG!i!lg.

If I ! f I I I I CO:ltiner.. except as before excepted. and enjoy all the odier benefits of a free citizen. but if the perfon {hall give up fuch di£linCl:ion. JL\II. in each county. and in [uch cafe. a penalty not exceeding five pounus.ye.repofed in me. What perfons iw.. Th to the faid off ta-ry commiffio • The.y diJqu. being met. to be pointed out and direCted by act of the Tegif. And if . nor (hall any perfon wIlo holds any title of nobility be entitled to a vote.lifi­ cation.me to the beG: of my knowledge. Any fiyc of the reprefentati'. f I A. in order to qualify them to take their feats. ant! they or all yother member. as before direCl:ed. Every perron abfenting himfelf from an eleCtion. XII.. viz.and the / XIX. cllfe may be.. T. and fhall: have a right to fit.ature. for the benefit of thi5 State. or affirmation. So llelp me God! ) 1 I ! R~Tr"c. Oath. The manner of e1e€ting reprefentatives {hall be by ballot. XXI.( XX. and reprerent. he fhall be entitled to a vote. provided neverthele[3. {halt hai'c powet to admininer tIle following oath to e~ch oLher. to:!I1 other men­ bers that attend. and on doling the poll. and alfo the apprcprhtion thereof. ap.cs ele€ t ed. The intermediate And all com hand..Iny reprefentative fhall be:­ arpointcd. Pt:rf<m. at fuch eleEl:ion.lal de­ kgatcs to h. fldc. B. and al­ fo a certificate returned to the houfe of reprefentatives. do voluntarily and folemn1y fwear. whilfl: f~ch perfon claims his title of nobility. f'~th row . and that I will execute the­ f. that a reafonable­ ex~cufe fhall be admitted XIlI. being fo fworn. who {hall provide a convenient box for receiving the faitl ballots.. I DIGEST OF THE Xf. under this or any other State or States. or affirm as the.Jmi. EI~~or·s~o:. the mode of recovery. or hold any pail: of honor.he executi. if requir~d. or tmy perron bear­ ing <l!ly military commiilion. do folemnly [wear. or be capable offerving as a re­ prefentative. Every perfon entitled to Yote /hall take the fol!owiIlg: oath. ill the manner :13 may be direCl:ed by any future legi!lature.lJlots 11Ia11 be j. which {hall be given in the county where [uch perrOll relides.fclitati\·cc. The c~ntinental delegates fhall be appointed annually by ballot. and that I have obtained my eIe€tion without fraud ai-­ bribe whatever. not vot­ ing fubje& to line. pointed . tution thereo: 1hall in no in the me~tins.. No pedon bearing any pofl: of profit under this State.. title of no­ hili. then.to them by th XXIII. in the houfe of alrembly. and Hull be taken by t\'l'O or more jufiiccs of rhe peace. viz. XV. mftered.. the b. appointed tc feat ilialJ im: hcldiftg fuch By this at apofl: of pro: XVIII. and will truly perform the trufls. Rei'rcfetJ.~tiv<s to be de. debate and vote. N one . and be deemed a part thereof.apable of it feJt. .10 Perfons to vote whc:re they re .. fhail in the houfe adminiiter the cath.wheulheyart ~. that I will bear true allegiance to the State of Gear.'e po. XVI. C I A. Th( . and the fupport of tne conftitution thereof. except oHicer~. as before directed.£}~cl I>y ballot. {bali be fubjeCl: to. gia. and fhall neglect to give in his or their ballot. {hall be e]e[l:ed a reprefentati. of the militia. th:lt have been taken. B.om­ pared in public. that I do owe true allegiance to this State. fubje€t however to the regulatiom contained in the twelfth article of the­ confeder:ltion of the United States~ XVII. XIV. -No perron fhall be entitled to more than one vote. and t!H . The call the houre they {land ad. ant! will fuppon the ccnflitution thereof. profit or truftin this State.:h.: govern aU appoint. .nnu­ al1y~ 'and t1t:em­ ed 3 pnt of the alfcmbly. So help me God! . with the lift of votes. and the majority imme­ diately decbredj a certificate of the fame being given to the perrons elected.

fhall in no inftance grant.' :The governor !hall. that I will. which I. ~ cafe may be.. Jt.gib1c. and ·ufe my utmofl: ende:lvors to proteCt the people thereof in the fecurc enjoyment of all their rights. The governor~ with the ad. fupport. can the houfe of of aifembly together. whiHt fuch . . during the l.vith the advice of the'executive council) exereiCe tlle -. except officers. XXIII. to the beft of my lkiltand judgment. to be pointed efz.Brown v. at dIe period to whieh my continuance in the [aid office is limited by the confiitution : And Oath·. who may determine therein as they !hall judge fit. according to tIle laws of this State and the confl. and the great feal of the State. and the fupport of ion without fraud Q). it is 110t to be l:mderftood that the office of a jufiice of the peace is 11 of profit.r. do folemnly promife and fwe:tt. under his commi!1icr •• hand.rm of my appointment. which he (ut". XVTII. tary commilIion. '. tution thereof. execute th<: faid 'Office faithfully and confcicl1­ tioully. {hall fill up all Fill ui' all "3­ cancies in offi(e intermediate vacancies that fhall happen in offices 'til the next general el~tl:ion : and illue ail And all commifIions. when d.. and !hall not be eligible How tho{!. that t WIll. or fufpend a fine. by the repreft:ntatives there­ of.. before the time which .Ie offerving as 'a re­ : State.ern. And I do further folemnly promiCe and [wear. nd al- they ftand adjourned ·to.} ~~ to the [aid office for more than one year out of three. being m~t.::il. rr"lintaill. The governor !hall be chofen annually by ballot. . and perufillg the Jaws al'·d ordinances offered to them by the llOufe of aifembly. affection. B.. hel<! . until the me~ting.'tall be taken."r 2nd t. to the State of Geor­ at I will execute the· :e. fueh difrinaion. that a reafonablc- XIX. nor {hall hc hold any mili. and f.:. Ihe a[cntbly.:ore y. fhall be i/fued by the governor.. he ld enjoy all the other 11 pointed to a'ni place of profit OT military com miffioll. to the ·utmoft of my pow. to ::II other me~­ viz.fmu" \Vl. Ihall appoint. The governor's oath:: 'I. or partiality..~(.~n 10 prdide in couu.. . . and the confi:itlltion of the fame.ereof. XIV.~\:"<:rs cf go.: governor {hall refide at [uch place as the houre of alfembly for the time being His rdiden"". The. or :my perron bear­ States. XXI. . A. eleCted governor of die State of Georgia. XXII.t Jaw :md juftice in mercy be executed in all judgments.this artide. J\is f. co~n'1J. except :when they are taking into confideration.al< one-3 ol1f:ofllCeolp:--c- II poft lall negletl: to' give il1> Ity not exceeding five . The governor may prefide in the executive council at ~ll times. The governor.i. !hall have power to .-e only in the cafe of pardons. and th~. without favor. G o\"t:. at No rerfO!lIO .of the a/fembly.. that I will peaceably and quietly refign the government to which I have been elected. . franchifes and privileges i and that the laws and ordinances of the State be duly obferved. oath. that I ftitution th~reof. and {hall: and be deemed a part twelfth article of the­ e. in and in fuch cafe.. No per[on {hall hold more than one office of profit. reprefentative {hall be:: arpoimc(~ XX.. under tJlis State. and remiffioll of fines.. but he may reprieve a criminal. So led.'t fhall immediately become vacant. executh'e powers of government.e {hall accept. and def~l1d the State of Georgia. . and he fhall be incapable of re-election \vhilfl: holdiftg fuch office. according to Jaw. provide a convenient ballots {hall be ~om­ J the majority imme­ cfons ekcted.-ice of the executive council. plaIt lnd they or :1n yother ttll. <:ivil and military.. {hall be given ill tIle nor {hall any perron . nd lhe fame time. Georgia Appendix 92 LAW S 0 F G E 0 R G I A. or affirmation. with the advice of the executive council. under :my other State or States.~ Y by ballot. By . fa..May coo"e~e upon any emergency.

E\'ery cou::lfellor. the \vhole of the executiH~ council illall attend.appoint their own officers.-.. XXXII. with their remarks thereon. it !hall be the duty of the governor. . tha t time. Pretdl ho. Propnfed at\\t'ndrncnts how Gdi\"er~d.'~1I. orJ..l"eliucnt 3< of­ uens of council now UF po..DIGEST OF THE u T're::dc'J:t:':\ Dath P.::Stiperior 'Cc !?. alTcmbly. or when called t:pon by the houfe of a.. Au. fitting and c.h:<l. ua:1::cs. (". contrary to the articles of this confiitu'tion.dJ:ed and fif (~". that any bufinefs that !hall be at thi~ time commu­ nicated to the council.. To fccrctary &c Executive pow­ er how long to "xii1. and the executive council. llnler.o:d ':than two hu XXXVI. So help me God.(hall hav~ power: to . in the abfcnee or fi. {hall have power of entering his proteft again!!: any mearures in council he haS' not confented to. ordinances [ent· to the council !hall be returned ill five days after. . until leave given by the council. being prerent. XXXII..XXXllI. XXV. XXVI. prevented by iicknefs. The council [hall always vote by counties. fent with' any propofed amendmeilts to any law or ordinance. fhall deliver their reafons for fuch prcro[ell amendments...executive coullcil {hall meet the day after their eleetion. ·l' by a c "·r'.'~. :md proceed to the choice of a preGdent out of their own body-they.t.~ to him by tbe fpeaka of th:. i' . No perron filall be eligible to the office of governor who has not refidcd three }'ears in this State. The prefident of the executive council. :\na.overed::o the whole houfe at.. ~ . The executivl. The fame oath to he adminillerea by the rpeaker to the prelident of the council.' . in any manner whatever. A committee from the council. or rome ~ther urgent l:ecelIity. jaIl be cc :. Prdicc::t when XXIX. except the [peaker. I will not. XXVIII. that I have not accepted of the government whereunto I am elec. or otherwife reveal the fame. and all this I fwenr without allY rcfen'ation whatever.' This oath 10 b~ adminifhrc. cu­ ttn:d~ l'o\yer9 ofCJHn­ cil ref2e~ing 12W.:~Qunty of ( . Council to vote by clJunt:e:3. and in that cafe. a majority of the council I1lal1 make a board to examine the laws and 'orcli­ nan::cs rent them by the houle of ailcmbly. XXX. B. I do aIfo folemnly fwear.inted. 'When allY affair that requires feereey 111311 be laid before the governor.. and not individually.: power !hall exii1: 'til renewed as pointed out by the rules 'of this conil:itution. unco­ vered. Oath.. During the litting of the aifembly.. and he is hereby obliged to admini(l:er the following oath._. XXXI.cknEfs of th~ aa" gover­ governor.:::.t.'. provided he does it ill three days. either by fpeaking.'flie governc <'~houfe of ail . GO'lern"r nuy a«miHilkr oath of (<creey to council. The. to any perfon whatever.~lander ill fil~: f?.~1i~~~1f:~' XXXV. {hall excrcife all the powers of the governor. and fettle their own rules of pro~eedillC:s.. writing. cIA. X~CVII.tTembly. So help me God. viz.' And the fame oath !hall be adminiil:ered to the fecretary and other officers ne­ celTary to carry the bUllnefs into execution. and all laws and. .1" 'TIle feeo . ':The four {'The next And Tut ifI'he-next "jThenext lle like' . do folemnly fwear.d lail:ly.tThe thir. to nor.

The third Tuefday in March. and continue as above.'e coun­ cil.ttee. pute.:mbly. by the feereiary of the council. All caufes.'.s hOlv mr of the council. fhall be tried in the county where the defendant reticles. All matters of breach of the peace.' [11. {hall be captain general and com­ mander in chief over all the militia. Militia com­ mlffior. OF GEORGIA. ::nd proceed IV~ powet: to appoint XXXIII. .di()n~ hetwI'con th<-m how J". in the county of Richmond. to be delivered from the JegiiJati"e body to f3 I. XXXV. All militia commiffions fhall fpecify. Georgia Appendix 94 LAWS of the governmer. in the county of Effingham. the fame fb311 be communicated by meifage. three . Governor"s nu­ long to (onti. Every county in this State that 11as.ide. unco­ ce or fi. 'afed amen\lmeilts to orofed amcndil1ent" tIle [peaker. before the governor. ?ul'erio~ court except as hereafter mentioned. which court !hall conlift of the chief juRice. two hun­ dred and fifty men. by a committee of the faid council. er. The next Tuefday in the county of Camden. XXXVIII. The like courts to commence in OClober. ferent counties. a. tllat the perfall commiffioned . :. Suptrior enure how eflablifhed and "here to be heM.Brown v. XXXIX. thall continue during good behaviour.XXXvII. in any county where there is not a fufficient mim­ ber of inhabitants to form a court. In all tt. in the county of Liberty. . ordinances fent· to rks thereon.egiJlature and cxccutiYC tranf­ . in the county of Burke.ckncfs of th. and Junfd"lhol). and he is hereby at this time commu­ either by fpeaking. of what nature roever. except in cafes of real eftates.. litOlr. The -next Tuefday in the county of Glynn.' XXXVI. {hall be tried in the next adjacent county where a court is held. and upwards. by bill of the legillature. There !hall be eftabIi{hed in each county a court. to be tried. felony.l1d in that e the Jaws and 'onli­ :.. and thofe counties that have a 'lefs nUlIiber than two huridred and fifty. murder. until leave gil'en i and all this I [welIr d other officers ne­ nted out by the rules XXXII.mfaClions between the legiflative and executive bodies.. and when they become too numerous for one battalion.lame was commItte the S tate. eaion.. All matters in difpute between contending partie~. The governor. to be called a Superior 'Court. fame county. !hall be formed into a bat­ talion. CrimiIla!•• whfretned. All . nnc. On the firft Tuefday in March in the county of Chatham. or executive council. they {hall be formed into more. fhall be tried in the fupreme court.within the county. <Ind other military and na\'<l1 forces belonging to this State. refiding in dif­ Where trieel. las not refidcd three the got-ernor. for the time being. r. 'to be held twice in each year. and from the cxecuti. between any parties refiding in the Matters in dif•. Battalions ho'\\' formed. The founh Tuefday in March. The next Tuefday in the county of 'Wilkes.caufes and matters of difpute. And Tucfday fortnight. and from lh\l govel'l1or to the boufe of afi. XL. or hereafter may have. to be tne difpute. entering l1is 'protefl: d he does it in three lIe executive council leeefIity. by a comm. and treafon againfl: · d·111 th e county were h ' ..lil­ 1100gr:d. both civil and criminal. The' fecond Tuefday in March. So help me God.t n. d • All 'matters (' f t Ile r. ly.>1y. which !hall be tried in the county .vhere fuch real e~ate lies. {hall be formed into independent companies. XXXII. XXXIV. liable to bear arms.

{hall chufe fix. of conrcience be contintlecl as heretofore praEl:ifed. and twelve may fimb bill. and the jurors. and their llam~5 to be put -together into the box-. provided it be not reptlgnant to the niles :md r-:gulations contained in this conftitutiol1. the fum of court lange.re. The [pecial jury {hall be {wem to bring in a Y<:rditl according to law." LVI. wIlich caufe !ball be determined within the [pace of ten day. and in that cafe. Jury.whole'eighteen to be fummoned. pro"l'ided it be not repugnant to juf\:ice. XLIX. plaintiff and defendant. who than ~ach of them in rotation give their opinion. each party. and lan<. and be tried. except in the cafe of ~ court mer· chant. and from which there fh:tll be no appeal. Spec. and {hall not be al­ lowed to bring in a fpedal verdia. the juttices to appoint others ill their room pro temp. All executiolls exceeding five pounds.A c where the pr ". and the dHlance of'time between the lirf\: and [econdtria! {hal! not exceed fourteen days: And all maritime caufes to be triEd in like manner. eftate fh. a fpecial court to be called by the chief juflice. And if any plaintiff or defendant in civil c<lufes {hall oe dilfatisfied with the determination of ~ht: jury. cor~ner. to be nominated:1$ follows. XLIV. and that the jurifdi8ion thereof be extended to try (aUreS pounds. XLV. claimants. N( except thofe . Captures.. Exct . Th~ jury {haLl be [worn to bring in a vania accaIding to hw. an ~ppeal is made to the Continental Congrefs. or he ing to the 3( wife altered XLII. iball be the fpecial jury to try the c:lufe. 1 ings.. XLVIII.. of which they !hall judge. Capturcli hy fe. XLVIII.1I1 :fha. the fenior juf\:ice on the bench !hall all: as chief juftice. attorney for the {bte. as well as of faa. f( LIlI. -- "'Eft genera! elea: appoimedby LII. 110t arilountillg to more th:m ten XLVII. XLVI. fields ( through the { LVIll. All it be not rep conre-nt.. then. have any doubts concerning points of law. and the opinion they entertain of the evidence. the. being prefent.. and confcience.' and the firf\: twelve that are drawn l'ut. provided recurity be given for debt ami cons. viz. The mode of proceeding and appeal thall be th~ fame as in the fuperior courts. J houre of aff XLI. fix more names j1J:l!l be takt~n indiiFerently out of a box provi~ed for that purpofe.::n. by the then fenior juftice in the [aid county. The jurr {hall be judges of law. AI1Jleals how to they {hall be at liberty within three days to enter an ':lppeal from that verdier. con£h~ble. And in cafe of the abCence of any of the aforementioned officers. but if all. -LIX. they {hail apply to the bench. or en':ll:.re. to be tried in the county where [uch fhall be carried in.. No grand jury !haU'confifr oflds than eighte. . and the rules and regulations contained in this can· ftitutioll. Th fchroll.. s« a-~ of 17.:. rudge-s of l"w and fact. Every 'ticated copic out and dq for proving I CnnLlju". EJecu~ion':i 1. LV•. {hall be frayed until th:: firfr Monday in March. wheT the motto. All XLIII. both by fea and land. Co"rt of <o"r'i.l where and hOYi tried. with the clerk of the county. upon application of the cap­ tors. Sch pence of the and the opinion they entertain of the evidence. in cafe of the abfence of the chief jufiice. or 'any o( the jury. unlefs after' the fecond trial.DIGEST OF THE I. demand a new trial by a fpeci"l jury. A LTV. fon fo author they fhall hav from that inh. fllPl LVIi. !bye<!. equity... fheriiF...\ tlm~e or more of the juftices refiJing in the county. or in his abo fence. That the court how n. Howfwom.l ju:y how r~\'orn.

trorJlies liG"A except thare who al'e authorifed fo to do by the hOltfe ofaiTcmbly. -LIX. All the cofts attending any acEon in the fuperiour courtlhallnot exceed h 1 . the' widow fr.p"bJic mord.. fu.and -.~mitt(d. the fum 0'f tree poun d 5. fon fo authorifed {hall be found guilty of mal prae. No per [on ihall be allowed to plead jn the '~Durts of law in this State. to be tXtdnrtA. .ot . two termli. nor excelIive bail demandea~ ri"e~&boij'r. and meadows covered with fueep and cattlc. All civil officers in each county ihaJl be annually elected on the day of tlle general election. whereon ihall be engraved.cept thofe of their own prafeffion~. an elegant houfe. or ill his :lb· plication of the cap-.. an d tlat no cau tie be a 11 owe d to d epel1 d'1U t Ile {iupenor court longer than.-on the other fide. Je tak~n indifFerently ) be fummoned.! nobis hd'C otia fecit.e. where the prefent conven.:s how ~p­ {or proving wills.' the motto. Exceffive fines {hall not be levied. Dell.. A regifter of probates ihall be appointed by the Iegiffature in every county.lld . how arpointcd. Pro bono publico .ous toler­ it be not repugnant to the peace and fafety of the State. Cccrt·l:oufcs and jailF. at her option.: except jufiices of the peace. contillu. have any doubts hall ~ach of them in ~ 1:S . The great feal of this 'State llJall have the following device: on olle fide a. and ill that cafe. fields of corn. iing to hw.Offic(rs I-. and granting letters of adminilhation. The. with the' clerk ble. Every officer of the 'State 'thaU 'be liable to be called to account 'by' the houfe of aifembly.. be not repugnant to ontained in this COil· . This is not intended to exclude any perfon. or her dower... LV. from that inherent privilege of every jrt'fman.xLVIII. the fuperior courts. LVIi. and if any per. and regifters of probates" who fuall b. and 'ws.Gmtfdiu· {chroH. unlefs' otherwife altered by any future afr of the legiflature.LI._ {hare.tice before the houfe of affembly. liis or her Eftatf> not to~e' tlltaHed..Brown v. Countyofficcrs. • See a~'l: of 178Sh No. and the motto.Eftates'-{hall not:be entailed.them. unkfs by aden. Schools fhall be erected in each county.e county where fuch junice. 307-. ex. 'ticated copies of the feveral re(:ords now ill the potielIion of this State Ihall be made where kept. all other intefrates eftates to be divided accord· iog to the aB: of diftribQtion. Conftitution of the State of Georgia i . a river running: through the fame. L. and the :pugnant to the rules LIII.. LVI.when a perron dies intell:ate.r defendant in civil n. ". confent.hool••. ~.ow callcd 10 2C­ count. howlunO"[o XLIX. each party. pence 6f the State.. he fpace of ten days. viz. Regiflrrof pro­ LII.all have a child's dividtd. Georgia Appendix 96 LAWS Q'F GEORGIA.lt. the abfence of the Rice.A ~ourt houfe and jail !hall be ereCled at the public expence in each COUlity. XLVIII. LIV. they thall have power to fufpend .~'elve that are drawn nd from which there and {hall not be al. lIry.md divitc. Sup:rior rourt c. ental Congrefs. :lnd the jurors. .:' with a thip under full fail. cers.. to plead his own caufe. and other build­ ings. appointed by the houfe of afl~mbly~ fr according to Jaw. re praCtifed. All per[ons whatever Ihall have the free exercife of their religion. LVIII. how eftate fhall be divide'd equally among their children. .. 1'0il1t<o. m that verdiCt. LX.­ PubJ:cf. E~eTY county fllall keep the public recordsbelol1 ging to the fame. . and· th"t g to more ·th::n ten cafe of a cOllrt mer· ted fecurity be gi\·en. and' authen.pport any teacher" or teachers. out and i:h~pofited in that county to which they belong.. or the future legilhture !haH point o:lt and direa. as the Jegifiature lhall hereafter point out. provitlt:d RtI:g. and not exceed fourteen ·:elve may find a l?ill. . and fupported at the general e}..frs.:ion. b. and ihall not. the liberty. made in the reign of Charles the fecond. ". cauft.. the jultices to .

B. Jr Ed. a true and jult account of his faid adminifhatioll. none effeCt Ill. as well the judges of the prerogative courts cf Canterbury and York for the time'-being. (j. chat. D. The condition of this obligation is fuch.egree. of any denomination" {hall be allowed a feat in the legif_ lature.DIGEST OF THE 16 . and trial by jury. to remain inviolate forever. chattels ar:d credits which ibll be found remaining.ho fhall ba­ hy the {ai. The principles of the habeas corpus aa !han be a part of this con(Htution. c. of C.the: hands and polfef-. LXII. and 21: other-the goods. fpecifying the altcr:.:: to be made. having power to commit adminifl:ration of the goods of pel:­ fons dying intefb. if a equ. The con dit10n of :.-. U at the time of his death. in the name of the ordinary. f< tels and credits. Vau~han. 1-61°. All ortlin._. deceafd. D. s n & ~J C. chattels and credit:. That if the within bounded A. t ion nOlv aitfr'" LXIII. and appoi ""~~:'~r was made " exhibit the " ved accord <r render and " be~ng firft I ~. " fion of any other perron or perrons for him.d i dile to the 01 plufage of tl fhall have an' _f uDaD of the inteR: . and in the: ' firfl: year of the Independence of the United States of Americ:l. viz. 1671.(2) and the fanoe goods. B E it tnaflfd. the value of the efi. A. ha V(: rower to take }. the fifth day of February. brutions to dt the fame. chattels and credits of the faid deceafed. at or-before: " the_ day of next enfning . Clergymen in­ dizib!e. ~.al d. by the judg -~~i'~. and the petitions from each county to be figned by a majo­ rity of voters in each county within this State: At which time the aucmbly fhall order a convention to be called for that purpore. « -y{r upon the f. enabled to ma tate. LXI. No clergyman. minifrratioDr. 10. !l6. B. chattels and credits of the [aid deceafed 1. ( t II. Proviti. and truly admi'flifrer acc0rding..""d.. without petitions from a oujority of the counties. poucfIion or knowledge of him the {aid A. as all other ordinaries and eccldiaflical judges and every of thein. take fufEcient bonds with two or more able fun:ties. at or H before the da y of Aud all the re!l a"nr!' t< re:fi<1ue of the [aiel goods.!.~ fuch perf01 . fuppofin fuch cafes uft V. Whiel purpofc:s.:tions to be made. lion of the faid A. c. Freedom of the prefs. do well.to law ~ (3) And further. ii. " manner following. DONE at Savannah. /hall and may upon their refpeCl:ive granting and committing oJ.. z.\te. . No alteration !hall be made in this confiitution. afrer the Ift day of JUlie. and and judges re adminiftrators (3) and' upon equal diftrillu' of every fort I children. mulalif mutandis. This cOlllliru. An all fir the better [ettling Of Inttjl'ates Ejlates-. refpea being had to . LX." cree or fcn .~. in Convention. 3. F r~edom of prd' & trbl by jurr. . which at any tim~ after {hall come to the liands or poRtf'­ ~.\ Habeas Corpus.te. o_r into the hands and poueffioll of any other perron or per­ " fons' for him. laws in fuch c. or into.. by one. ad-:~ U miniftrator of all and fingular the goods.lIe' bonds.-'Ti~s who have pow_ er to grant ad. in the year ~ of our Lord one thoufand feven hundred and [evenly-feven. That all ordinaries. fhall di form followir of the intefta' fuch perfons cafe any of tl being heir at {hall be adval {haTe which: diftribution i ". ~ ed. and the fame [0 made do exhibit or " caufe to be exhibited into the regifrry of court.. ac­ cording to tne petitions preferred to the affembly by the majority of the countie/l ~\l as aforefaid. adminiftration5 of the goods of perfons dying illtcftate. of th~ refpeEtive perfon or perfons to WllOIn any admilliflr::tioll is to be com­ mitted. B."vich the condition in form and. which have:: or {hall come to the " hands._ '! U do make or caure to be made a true and perfell: inventory of all and lingular the " good~. do· " make aT cauf.

been rep::aled.f!embly t t.lon. e thereof as [\ 's State. and the .1 matters. ufed and received to the (onllitu­ tion a:ld torm cf Jaw of this land. all a. Be it mafled hy the repro/en/alive! of the freemen 1" thir State in general '!1ft. No. and b). if 'IJ1!e!t into the fr'Utral }s. a co tution for the rule and government of the faid State dnd people thereof: AntI divers goon and wholefome laws were heretofore made lind pafT'ed in this State province) and to the end that difputes and difficulties may not arife touching 'the prerent validity of the faid laws fo made and·paffed as aforefaid. pea: of the thirteen United Colonies of North America in general c a!Tembleu.l"ud mft.alar of the confl:i people in conve State. rol n.d has not b~en ~onJjnued 01' re'Vifed. That from and after paffing this ad:. June 7. to throughout the territory thereof. weaken.An All to extend and enforce the allthority of theftverallaws he~" tafire paf!ed in the thm province. or interfere with the refolves alld regula of the honorable the contineutal congrefs. and by t Be it thl!yifar.mLle. and J~ t '.~e pallm g of ining nea lons and rt ()f a family {l II.And. as well ftatute as common. anti until flu fIlti Au Afl to difcouroge difertionJ and to ptin!Jh all ft~h peifo1l1 deferterr.in as fall and . f. ' Noj. conp'ds or convention held ill and for this State. to all intents :Ind purpores. any law. ufage. and have-" Jative to crimi. . matter or thing at prefent a' our go"er.DIGEST OF THE 202 A. 'This aB was mad. or of any refolves and regulations ~ or any former aiTembly. . to declare the "faid colonies free and independent States. thall be of full force. ofEoJ?.'\S fettlemel lfary that aU d tate. the authority 0/ the fame. law.: in a change of government to the comrary in any wife 110twithfhnding. ~j5. 17. now State of Georgia.:m~t. within the (aid" ritory of Georgia. and for e 'es for ever 1'1 white perf ey have not negroes. "J4­ June 7. n province} as i and palling fud OPI HERE. criminal matters.S in convention a!Tembled on the fifth day of February in the year of our Lord thoufand fC\'en hundred and feventy-feven. Provincial bW~t 1. ~ave fixed on. and all the laws of England. And be it en(/. witho '. D. pIal all be difru: .fety of their conftituents in particular and America in ge And wh~reaf in con[cqucnce thereof... cunom. in for~e on?.7. sJ6. reIatt 113. and agreed to.: All to ammd th~ jeveral aElf for regulatitlg the pilotage ~o. fir "r. and heretofore ufed and adopted in the courts of law in this heretofore ufed in thisState" and (then province of Georgia) except in cafes of treafon. t:x­ cept tre. al flail of the nextI~" harhll" or em.rne do not contraditr. 1777· Oijolett:. fo far (Jccbedto be in [ull force. be it fu the firfr day ( ty-eightt and . as were heretofore had. 1777­ A. . Pre. W HEREAS it has been deemed neceffary by the reprefentatives of the. 0] the then Province. and th have diflolved all political connetl:ion between them and the crown of Great Bri And whereOf it hath been recommended by the faid congrefs to adopt fnch go' ment as might in the opinion of the reprefentati"es of the people of the [aid belt conduce to the [. as common re­ heretofore made in the' (then province) now St:lte of Georgia. bitt now State of Georgia. the reprefentatives of the people of this. hurt. /0 Clm/iT/u. virtu not repug-nant efteC1. article. {)fU yea'. : ice and cor orized to g as aforef: fettle. well fiat"t.

plant.:ou:. in '. and are here­ {.irtue of and in right of the {aid ten negroes. the faid white perfon or family fhalj not have rights for lI'~re than ten negroes. :md for every other white perfqn of the faid family £fty acrC3 of land.ed. That this act £ball. relative to in this State :.d. all1aws d have not I. made and agreed to by the rep"rerentativcs of A. !ons fhall be difiathed in time of alarm or annoyance by any enemy and obliged to remove i"Altered by ad Qf I7S0. 1. Georgia Appendix 99 LAW S 0 F G E 0 R G I A.j 7. ~4 Iii f the people congrefs ~al and thereby :reat Britain: fuch govern­ Ie faid States l in general :. II. t}:c Pieamhrt>.* N.36.~.59.~ith~n fix Jnonths fettle. :. notice thereof as fuch by all judges and other officers of juftice or government with. virtue and :eived as the rent adopted fo far as the . n r.d. and iive on the fame. be it fur!!>er mac?ed. without the (. lIT. that is to fay: Every fr~e ""'hite perfon or head of a family {hall be entitled to. and for the better flttting and jlrengthening this State. Speaker. That this aEl: fball be a general aCt. the property of fuch white per [on or family: Provided. n • . '0"(1" lWS conceal here­ ia.re maEled hy the repreflntativu of tbe jrmmn of thl! StMe of G!1rgifl I:nat"!t":!. :md iJlall be taken Gcmral. HERK-\S there remains much vacant and uncultivated bnd in this Sute. Be it therefr.~ n ~rll '~ :~ ''1 . Savannah. and by that means promote the increafe of its inhabitants. by authorized to grant fuch trOlaS or lots of land to fueh perfon or perfons fo obtain­ ing lands as aforefaid under awl by virtue of this 2. That from :md immediately L.• See a&.17-li8I.87. W. by perfons entitled to the fame in this State under the r:gulations and rules hereip fet forth.. XO. J777.gI:~sr of land.liol!. regulations tions of this • and in par­ ticular ~l An All for opening the land c1fice. (e'IJeral ports be ne:d /1JiQ/t.d offie< o· after the paumg of this aCt.Brown v. Ar. . a confti­ And whereas s State (then ling the pre­ the laid ter­ 'era! t1fimUJ lCl:. No.. . the people in convention aifembJed. and. t 111nd~~. Z6-l-1783. fettlement of which is of the higheft importance. ":/ I ! 'I I . 7. Cdt. .ne and fettle in chis State. and from thence to the end of the next ieflion of atlembly. in gml!ral '!IfemblJ nut. and that they have not had land heretofoI\: granted them.. of this State ar Lord one to. and ordered to be the rule and government of No. be :md continue and be ill force Continu. cultivate. or in cafe fudl perfon or per­ n. of Ii7!!. to alul :2°3 tfcuJ:.! v. and by tll! Oitth~rity of the lame.r of the confl:itutioll of the fame. No. this State. No. JONES.s...lmc b~ing fpecially pleaded. until the firfi day of January in the year of our Lord one thoufand feven hundred and feventy-eight.~~.:. 979-and I78~.£1:.h. allotted and granted him. And be it !/lofTed. . 777.t two hundred acres H""J r. W 1"0. pm\'cr and eIreEt. Pro~j[<J. wherefore it becomes neceffary that all due encouragement £bould be given t? pe. t ~. Nc. D.folls to co. and the fame {balI extend to and be in as full force. ~epfelllber· r6. and he or they {hall within fix To be ("ule.obtaining vacant lands. and in as fl>]] and ample a manner as the fame were formerly of fone in this State "(then province) as if the [aid territory \~'ere an independent State at the time of mak­ ing and pailing fuch laws. an office fnall be opened for the purporc of applying for pt:r. in this State. I. and the governoI er commander in chief fer the time being with Gc~ernor to the advice and canfent of the executive coullcil fhall bwe full power. and fifty acres for every negro.

I served the foregoing Petition for A Writ of Certiorari on: Scott Ballard. AFFIDAVIT OF SERVICE This is to certify that on March 11. STATE OF GEORGIA. . v. Box 1498 Fayetteville. District Attorney for Fayette County P. Esq. Georgia Attorney General 40 Capital Square Atlanta. Esq. Petitioner in Certiorari. GA 30214 Thurbert Baker. GA 30334 by depositing same in the United States Postal Service with adequate First Class postage affixed thereto: So sworn under penalty of perjury.O. Respondent in Certiorari.DOCKET NO: _ IN THE SUPREME COURT OF THE UNITED STATES DARRELL BROWN.2009.