THOMPSON, Chief Justice.
A jury found appellant Veasa Bun guilty of malice murder and other crimes in connection with the shooting death of Sheriff's Deputy Richard Daly.
1. The evidence presented at trial, considered in the light most favorable to the verdict, shows that on July 20, 2011, Deputy Daly and several other law enforcement officers pulled over a vehicle in which Bun was a passenger. Bun had been identified as a passenger in the vehicle by an officer who knew there was an outstanding warrant for Bun's arrest in connection with a previous robbery and aggravated assault. As Daly and the other officers approached the stopped vehicle, Bun grabbed and cocked a gun, stepped out of the car, and fatally shot Daly twice in the abdomen. Bun then shot at other officers as he fled into the nearby woods.
We conclude the evidence adduced at trial was sufficient to authorize a rational jury to find Bun guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Relying on the United States Supreme Court's decisions in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012),
3. Bun also claims he was entitled to a new trial because his trial counsel rendered ineffective assistance by failing to object to the testimony of Tracy Graham-Lawson, a former juvenile judge who had presided over a number of Bun's juvenile cases but is no longer acting in any judicial capacity. To establish ineffective assistance of counsel, Bun must show both that trial counsel's performance was professionally deficient and that but for the deficient performance there is a reasonable probability that the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Wesley v. State, 286 Ga. 355, 689 S.E.2d 280 (2010). A court considering a claim of ineffective assistance must apply a strong presumption that counsel's representation was within the wide range of reasonable professional assistance. Strickland, supra, 466 U.S. at 689, 104 S.Ct. 2052. "If there is no showing of deficient performance, we need not address the prejudice issue." Romer v. State, 293 Ga. 339, 344, 745 S.E.2d 637 (2013).
Lawson's testimony, offered during the sentencing phase of trial, related to factual information from Bun's juvenile court records, including information regarding Bun's delinquency dispositions, involvement in gang activity, poor academic record, psychological disorders, and drug use. She also offered her view that Bun's juvenile record indicated he was a threat to society and that he should receive a sentence of life without parole. On appeal, Bun claims counsel should have objected to Lawson's testimony because it was prohibited under Canon 2 of the Georgia Code of Judicial Conduct which states that judges "shall avoid impropriety and the appearance of impropriety in all their activities" and "should not testify voluntarily as [ ] character witnesses." Canon 2(A) and 2(B), Georgia Code of Judicial Conduct.
Bun's reliance on the Code of Judicial Conduct as the ground for exclusion of Lawson's testimony is misplaced. The Code of Judicial Conduct, which is intended "to provide a structure for regulating [judicial] conduct through disciplinary agencies," is limited in its application to officers "of a judicial system performing judicial functions" and, in some circumstances, to judicial candidates. See The Georgia Code of Judicial Conduct,
Judgment affirmed.
All the Justices concur, except BENHAM and HUNSTEIN, JJ., who dissent.
BENHAM, J., dissenting.
For the reasons set forth below, I respectfully dissent to the majority opinion.
1. The appropriate punishment for juvenile offenders has been an evolving area of the law for the past decade. Beginning in 2005, the U.S. Supreme Court held that juvenile offenders could not receive the death penalty. Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). Five years later, in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), the U.S Supreme Court held that a juvenile offender who had not committed a homicide could not be sentenced to life without parole. In 2012, the U.S. Supreme Court struck down mandatory sentences of life without parole for juveniles who had committed homicide. Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Roper, Graham, and Miller are all predicated on the fact that juveniles, who are biologically and emotionally immature, are less culpable than adults for their actions.
Georgia's law in regard to homicide and sentencing has also undergone some change in the last decade. In April 2009, the General Assembly enacted Ga. L.2009, p. 223, § 1 which amended OCGA § 16-5-1 to add the sentence of life in prison without the possibility of parole as one of the punishments for murder.
While it is clear that federal law allows life without parole sentences to be exacted on juvenile offenders who commit homicide as a matter of judicial discretion, the federal law does not prohibit this state from disallowing such sentences for juvenile offenders as a matter of state constitutional law. "It is a well-recognized principle that a state court is free to interpret its state constitution in any way that does not violate principles of federal law, and thereby grant individuals more rights than those provided by the U.S. Constitution." Powell v. State, 270 Ga. 327, 331, n. 3, 510 S.E.2d 18 (1998). Indeed, on many occasions this Court has held that the Georgia Constitution affords our citizens broader rights than the federal constitution. See, e.g., Statesboro Pub. Co. v. City of Sylvania, 271 Ga. 92(2), 516 S.E.2d 296 (1999) (Georgia Constitution affords broader free speech protection than the First Amendment of the U.S. Constitution); Grissom v. Gleason, 262 Ga. 374, n. 1, 418 S.E.2d 27 (1992) (Georgia Constitution's equal protection provision may provide greater rights than U.S. Constitution); Green v. State, 260 Ga. 625, 627, 398 S.E.2d 360 (1990) (Georgia Constitution provides broader protection than U.S. Constitution for right against self-incrimination); Fleming v. Zant, 259 Ga. 687, 690, 386 S.E.2d 339 (1989) (Georgia Constitution provides greater protection against cruel and unusual punishment than U.S. Constitution); Colonial Pipeline Co. v. Brown, 258 Ga. 115(3), 365 S.E.2d 827 (1988) (Georgia Constitution provides greater protection against excessive fines and forfeitures than U.S. Constitution).
In Georgia, we treat juveniles differently than adults as evidenced by our institutions (i.e., juvenile courts) and laws. See, e.g. OCGA § 17-10-14(a) (requiring juveniles who are sentenced to life in prison and who are younger than 17 to serve their time in a juvenile detention facility). As a state constitutional matter, we give up nothing by leaving open for juvenile offenders the possibility of rehabilitation and redemption for crimes they commit when they are biologically and emotionally immature. Indeed, life with the possibility of parole is not a "light" sentence for a juvenile offender. A person sentenced to life with the possibility of parole in this state must serve 30 years in prison before becoming eligible for parole. OCGA § 17-10-6.1(c)(1). Eligibility for parole does not mean a person will be released, but simply means the person may be considered for release by the State Board of Pardons and Paroles. A person very well could spend the entirety of his natural life in prison while being parole-eligible in this state.
Here, in addition to his life sentence without parole, Bun has been sentenced to serve a consecutive term of 70 years. Thus, even if parole eligibility was not at issue, the State has ensured that this young man will be a prisoner well into his eighties. Imposing such exorbitant sentences on juvenile offenders means we have given up all hope for their rehabilitation. This is in direct odds with the
Accordingly, because I believe it constitutes cruel and unusual punishment under our state constitution to impose the sentence of life without parole on a juvenile offender who commits homicide, I cannot join the majority opinion.
2. In addition to the constitutionality of the sentence imposed, I write because the testimony of Tracy Graham Lawson is deeply troubling whether or not an ethical violation occurred regarding her former status as a juvenile court judge for Clayton County. I believe counsel was deficient when he failed to object to her testimony at the sentencing hearing and that such deficiency was prejudicial to Bun.
Lawson, who was never tendered as expert, was allowed to testify, among other things, that Bun began his "criminal career"
Whether or not allowing Lawson to testify was a technical violation of judicial ethics, her testimony certainly had the appearance of impropriety inasmuch as Lawson was given a platform, under the guise of her professional status as a former juvenile court judge, to give her personal opinions about Bun while simultaneously admitting she could not be impartial where Bun was concerned. The fact that Lawson was no longer a judge at the time of her testimony does not mitigate the prejudicial effect the weight of her opinions had on the outcome of Bun's sentencing. Indeed, I can think of no case where a former judge has testified against a defendant in a current criminal proceeding and essentially testified as to her personal opinion on the defendant's predilection for criminality. When a defendant has a prior criminal record, we allow the certified copy of that prior record to speak for itself. We do not allow former prosecutors, former defense attorneys, and former judges involved in the prior case to testify about a defendant's character for sentencing purposes or otherwise.
I believe the fact that counsel made no effort to prohibit Lawson from testifying rose to the level of constitutionally ineffective assistance such that Bun is entitled to relief. Accordingly, I cannot join the majority opinion.
I am authorized to state that Justice HUNSTEIN joins in this dissent.