GA Code § 17-10-1.2 (2021)
2021 Georgia Code|Title 17 - Criminal Procedure|Chapter 10 - Sentence and Punishment|Article 1 - Procedure for Sentencing and Imposition of Punishment|§ 17-10-1.2. Oral Victim Impact Statement; Presentation of Evidence; Cross-Examination and Rebuttal by Defendant; Effect of Noncompliance; No Creation of Cause of Action or Right of Appeal

    In all cases in which the death penalty may be imposed, subsequent to an adjudication of guilt and in conjunction with the procedures in Code Section 17-10-30, the court shall allow evidence from the family of the victim, or such other witness having personal knowledge of the victim's personal characteristics and the emotional impact of the crime on the victim, the victim's family, or the community. Except as provided in paragraph (4) of this subsection, such evidence shall be given in the presence of the defendant and of the jury and shall be subject to cross-examination.   The admissibility of the evidence described in paragraph (1) of this subsection and the number of witnesses other than immediate family who may testify shall be in the sole discretion of the judge and in any event shall be permitted only in such a manner and to such a degree as not to inflame or unduly prejudice the jury. As used in this paragraph, the term "immediate family" means the victim's spouse, child, parent, stepparent, grandparent, grandchild, sibling, stepbrother, stepsister, mother-in-law, father-in-law, sister-in-law, or brother-in-law and the spouses of any such individuals.   In all cases other than those in which the death penalty may be imposed, prior to fixing of the sentence as provided for in Code Section 17-10-1 or the imposing of life imprisonment as mandated by law, and before rendering the appropriate sentence, including any order of restitution, the court shall allow the victim, as such term is defined in Code Section 17-17-3, the family of the victim, or such other witness having personal knowledge of the crime to testify about the impact of the crime on the victim, the family of the victim, or the community. Except as provided in paragraph (4) of this subsection, such evidence shall be given in the presence of the defendant and shall be subject to cross-examination. The admissibility of the testimony and evidence in support of such testimony shall be in the sole discretion of the judge and in any event shall be permitted only in such a manner as to allow for cross-examination by the defendant and to such a degree as not to unduly prejudice the defendant. If the judge excludes the testimony or evidence in support of such testimony, the state shall be allowed to make a proffer of such testimony or evidence.   Upon a finding by the court specific to the case and the witness that the witness would not be able to testify in person without showing undue emotion or that testifying in person will cause the witness severe physical or emotional distress or trauma, evidence presented pursuant to this subsection may be in the form of, but not limited to, a written statement or a prerecorded audio or video statement, provided that such witness is subject to cross-examination and the evidence itself will not be available to the jury during deliberations. Photographs of the victim may be included with any evidence presented pursuant to this subsection.   If the accused has been convicted of a serious violent felony as defined in Code Section 17-10-6.1, attempted murder or attempted kidnapping, or any violation of Code Section 16-5-90, 16-5-91, 16-7-82, 16-7-84, or 16-7-86, and the victim or a representative of the victim is not present at the presentence hearing, it shall be the duty of the court to inquire of the prosecuting attorney whether or not the victim has been notified of the presentence hearing as provided in Code Section 17-17-5. If the court finds that the prosecuting attorney has not made a reasonable attempt to notify the victim, the presentence hearing shall be recessed in order to provide the victim the opportunity to attend prior to sentence being imposed; provided, however, that prior to recessing the presentence hearing, the court shall allow the state or the accused to call any witnesses who were subpoenaed and are present at such presentence hearing. Following any such testimony, the presentence hearing shall be recessed and the victim shall be notified of the date, time, and location when the presentence hearing shall resume.     In presenting such evidence, the victim, the family of the victim, or such other witness having personal knowledge of the impact of the crime on the victim, the victim's family, or the community shall, if applicable:   Describe the nature of the offense;   Itemize any economic loss suffered by the victim or the family of the victim, if restitution is sought;   Identify any physical injury suffered by the victim as a result of the offense along with its seriousness and permanence;   Describe any change in the victim's personal welfare or familial relationships as a result of the offense;   Identify any request for psychological services initiated by the victim or the victim's family as a result of the offense; and   Include any other information related to the impact of the offense upon the victim, the victim's family, or the community that the court inquires of.     The court shall allow the defendant the opportunity to cross-examine and rebut the evidence presented of the victim's personal characteristics and the emotional impact of the crime on the victim, the victim's family, or the community, and such cross-examination and rebuttal evidence shall be subject to the same discretion set forth in paragraph (1) of subsection (a) of this Code section.   No sentence shall be invalidated because of failure to comply with the provisions of this Code section. This Code section shall not be construed to create any cause of action or any right of appeal on behalf of the victim, the state, or the accused; provided, however, that if the court intentionally fails to comply with this Code section, the victim may file a complaint with the Judicial Qualifications Commission.     (Code 1981, §17-10-1.2, enacted by Ga. L. 1985, p. 739, § 1; Ga. L. 1993, p. 1660, § 2; Ga. L. 2009, p. 192, § 1/SB 151; Ga. L. 2010, p. 214, § 4/HB 567.)   Law reviews.   - For annual survey of death penalty decisions, see 57 Mercer L. Rev. 139 (2005); 58 Mercer L. Rev. 111 (2006). For annual survey of law on evidence, see 62 Mercer L. Rev. 125 (2010). For article, "Criminal Procedure," see 27 Ga. St. U.L. Rev. 29 (2011). For note on 1993 amendment of this Code section, see 10 Ga. St. U.L. Rev. 113 (1993). For case comment, "Booth v. Maryland: Admissibility of Victim Impact Statements During Sentencing Phase of Capital Murder Trials," see 21 Ga. L. Rev. 1191 (1987).   JUDICIAL DECISIONS   Constitutionality.    - O.C.G.A. § 17-10-1.2 contains sufficient safeguards within the statute to ensure that victim impact evidence will not be admitted which reflects on factors which the court has found constitutionally irrelevant to death penalty sentencing and which could result in the arbitrary and unconstitutional imposition of the death penalty. Livingston v. State, 264 Ga. 402, 444 S.E.2d 748 (1994).    O.C.G.A. § 17-10-1.2 is not an unconstitutional ex post facto law. Livingston v. State, 264 Ga. 402, 444 S.E.2d 748 (1994).    O.C.G.A. § 17-10-1.2 is not unconstitutional and it is not an ex post facto law violation to apply the statute to a crime that was committed before the statute was enacted. Speed v. State, 270 Ga. 688, 512 S.E.2d 896 (1999).    O.C.G.A. § 17-10-1.2 is not unconstitutional as written and the trial court properly reviewed the state's victim impact testimony prior to trial and did not admit unduly inflammatory or prejudicial evidence. Gissendaner v. State, 272 Ga. 704, 532 S.E.2d 677 (2000).    Trial court did not err by denying a defendant's motion to declare as unconstitutional the statute allowing victim impact evidence during sentencing as the Georgia Supreme Court found O.C.G.A. § 17-10-1.2 to be constitutional. Thomason v. State, 281 Ga. 429, 637 S.E.2d 639 (2006).   Scope of victim impact testimony.    - Evidence is limited to the impact of the specific crime on the community and does not extend to testimony concerning anger in the community about increasing lawlessness or crime in general. McClain v. State, 267 Ga. 378, 477 S.E.2d 814 (1996), cert. denied, 521 U.S. 1106, 118 S. Ct. 2485, 138 L. Ed. 2d 993 (1997).    Victim impact statements were proper which focused on the witnesses' relationship with the victim and how the victim's death had affected the witness personally, and which did not focus on the victim's social status, nor provide a detailed narration of the emotional and economic suffering of the victim's family. Turner v. State, 268 Ga. 213, 486 S.E.2d 839 (1997).   Psychiatrist testimony on impact to child.    - Victim impact testimony of a psychiatrist who had treated the victim's child both before and after the murder was not improper. Carruthers v. State, 272 Ga. 306, 528 S.E.2d 217, cert. denied, 531 U.S. 934, 121 S. Ct. 321, 148 L. Ed. 2d 258 (2000), overruled on other grounds, Vergara v. State, 283 Ga. 175, 657 S.E.2d 863 (2008).   Silent videotape depicting murder victim admissible.    - Silent videotape depicting a murder victim that was killed during an armed robbery of an armored car that showed the victim alive in various settings and which was narrated by the victim's oldest daughter at trial was within the statutory description of admissible victim impact evidence permitted by O.C.G.A. § 17-10-1.2 and the trial court did not err by allowing the videotape to be played at the defendant's trial. Tollette v. State, 280 Ga. 100, 621 S.E.2d 742 (2005).   Testimony from non-family members.    - Testimony about the emotional impact of the crime on the community may include testimony by witnesses who are not family members regarding the impact the crime had on witnesses personally. Walker v. State, 282 Ga. 774, 653 S.E.2d 439 (2007), cert. denied, 129 S. Ct. 481, 172 L. Ed. 2d 344 (2008), overruled on other grounds, No. S10P1859, 2011 Ga. LEXIS 267 (Ga. 2011).   Opinions about defendant and murders inadmissible.    - Trial court abused the discretion granted by O.C.G.A. § 17-10-1.2 in allowing murder victims' family members to testify by offering opinions about the defendant and the murders because such victim impact evidence unduly prejudiced the jury; the witnesses testified that the victims were "shot and left in a patch of kudzu as if they were a piece of trash on the side of the road," that the victims were "left under trash and branches, left to die," and that the crimes were "a senseless, selfish act of nothing but wickedness and evil." While some of the witnesses' characterizations may have been supported by the evidence presented at trial, the witnesses did not have personal knowledge of many of the facts to which the witnesses testified, and the statements, even if supported by the evidence, were particularly inflammatory and prejudicial coming from members of the victims' families; further, the witnesses were also improperly allowed to present the witnesses' own unduly prejudicial characterizations and opinions of the defendant. Bryant v. State, 288 Ga. 876, 708 S.E.2d 362 (2011).   Discretion of court.    - Introduction of oral victim impact testimony is controlled by O.C.G.A. § 17-10-1.2, and the introduction of such evidence is solely within the discretion of the trial court. Cronan v. State, 236 Ga. App. 374, 511 S.E.2d 899 (1999).    Failure to allow defendant to cross examine the victim pursuant to O.C.G.A. § 17-10-1.2 was not a basis for invalidating the sentence. Williams v. State, 226 Ga. App. 720, 487 S.E.2d 470 (1997).   No basis for invalidating sentence.    - Failure to comply with O.C.G.A. § 17-10-1.2 does not provide a basis for the invalidation of a sentence. Brantley v. State, 268 Ga. 151, 486 S.E.2d 169, cert. denied, 522 U.S. 985, 118 S. Ct. 449, 139 L. Ed. 2d 384 (1997).   Testimony of spouse of murder victim admissible.    - Testimony of the spouse of a murder victim, who sobbed while testifying, was not improper because the questions asked had been approved by the trial court prior to trial and there was no indication that the spouse's testimony was prolonged or that the spouse's display of emotion disrupted the trial. Jones v. State, 267 Ga. 592, 481 S.E.2d 821, cert. denied, 522 U.S. 953, 118 S. Ct. 376, 139 L. Ed. 2d 293 (1997).    Religious references in victim impact statements were permissible since the references were an essential part of a glimpse into the victim's life and did not comprise an unduly large portion of the statements. Pickren v. State, 269 Ga. 453, 500 S.E.2d 566 (1998).    Permitting the sole surviving victim of the defendant's crimes to testify during the sentencing phase regarding the impact on the witness regarding the murder of the witness's child was not erroneous. Henry v. State, 278 Ga. 617, 604 S.E.2d 826 (2004).    Trial court did not err by allowing emotional victim impact evidence during sentencing as O.C.G.A. § 17-10-1.2 allowed evidence of the impact of the crime upon the victim, and the victim gave a short and limited statement. Paige v. State, 277 Ga. App. 687, 627 S.E.2d 370 (2006).   Testimony from parents admissible without reading statements.    - Victim impact evidence was properly admitted through the testimony of a child murder victim's father that, since the crimes, he had suffered depression, nightmares, had trouble sleeping, and had seen a psychiatrist, and the testimony of the child's mother that her sadness, crying, and being in a "dazed state" had spurred her to visit a psychologist for three months and a counselor for six months. It was not required that the victims read their statements. Foster v. State, 288 Ga. 98, 701 S.E.2d 189 (2010).    Counsel was not deficient in failing to object to the prosecutor's victim impact argument during opening statement because negative characterizations of the victim were proper since the characterizations were relevant to evidence later offered to explain the context in which the drug-related crimes occurred, and the prosecutor's allusion to the fact that the victim was no longer alive was relevant to the murder charge; a witness's testimony and photographs of the witness's injuries were directly relevant and admissible to prove the charge against the defendant of committing aggravated assault on the witness. Lacey v. State, 288 Ga. 341, 703 S.E.2d 617 (2010).   Counsel not ineffective for failing to object to impact statement from sibling.    - Trial counsel was not ineffective for failing to object to the victim's sibling giving impact testimony during sentencing on the ground that the defense had no prior notice of the sibling's testimony because the defendant failed to explain how the sibling's testimony prejudiced the defendant, given that the trial court had already heard the victim's testimony that the victim had been hospitalized for over a month as a result of the knife attack, that the attack had paralyzed the victim, that the victim could not live with the victim's spouse because of the victim's disability, and the victim's only income was social security disability payments. Jackson v. State, 316 Ga. App. 588, 730 S.E.2d 69 (2012).   Testimony held not victim impact evidence.    - Testimony that was given by the child of a person who was killed in a multi-car collision caused by a juvenile, which provided the child's personal observations of teen driving habits in the area where the collision occurred and was offered by the state to show that it was in the interests of the community for the juvenile to be treated as an adult, was not victim impact evidence, but the juvenile court did not err by admitting the testimony. In the Interest of W.N.J., 268 Ga. App. 637, 602 S.E.2d 173 (2004).   Leading questions authorized.    - Trial court acted within the court's discretion in allowing the prosecutor to ask leading questions of the victim's spouse in order to ensure that the spouse's testimony remained within the parameters outlined in O.C.G.A. § 17-10-1.2. Jones v. State, 267 Ga. 592, 481 S.E.2d 821, cert. denied, 522 U.S. 953, 118 S. Ct. 376, 139 L. Ed. 2d 293 (1997).    Procedural irregularity does not constitute reversible error absent a constitutional violation. McClain v. State, 267 Ga. 378, 477 S.E.2d 814 (1996), cert. denied, 521 U.S. 1106, 118 S. Ct. 2485, 138 L. Ed. 2d 993 (1997).    Although the trial court erred in overruling defendant's objections to victim impact references in the state's opening statement and in the testimony of two witnesses, the appellate court did not need to reverse the defendant's convictions and sentences because the error was harmless beyond a reasonable doubt as the comments and testimony would have been admissible in the sentencing phase and as the defendant had confessed both to a friend, who testified at trial, and to law enforcement officers in a videotaped confession that was played for the jury. Lucas v. State, 274 Ga. 640, 555 S.E.2d 440 (2001), cert. denied, 537 U.S. 840, 123 S. Ct. 163, 154 L. Ed. 2d 62 (2002).   Proper procedures.    - Procedure best comported with requirements of O.C.G.A. § 17-10-1.2 whereby witnesses prepared written statements, a pretrial hearing provided defendant the opportunity to challenge the content of the statements, and, at trial, the state asked the witnesses to read their statements and the witnesses were then available for cross-examination. Turner v. State, 268 Ga. 213, 486 S.E.2d 839 (1997).   Jury instructions.    - When victim impact evidence is given in the sentencing phase of a death penalty or life without parole case, the trial court should instruct the jury regarding the purpose of the evidence. Turner v. State, 268 Ga. 213, 486 S.E.2d 839 (1997).   Harmless error.    - Although some of the victim impact testimony admitted over the defendant's objection was improper, the testimony did not require reversal of the defendant's death sentence because the admission was harmless beyond a reasonable doubt. Stinski v. State, 286 Ga. 839, 691 S.E.2d 854, cert. denied, 562 U.S. 1011, 131 S. Ct. 522, 178 L. Ed. 2d 385 (2010).    Cited in Raulerson v. State, 268 Ga. 623, 491 S.E.2d 791 (1997); Taylor v. State, 264 Ga. App. 665, 592 S.E.2d 148 (2003).   RESEARCH REFERENCES   ALR.   - Victim impact evidence in capital sentencing hearings - post-Payne v. Tennessee, 79 A.L.R.5th 33.   Admissibility of victim impact evidence in noncapital state proceedings, 8 A.L.R.7th 6.