WHAT'S THE DECISION NEWSLETTER
To Search through these continually updating defense-oriented caselaw summaries, click on EDIT in the menu bar at the top of your web browser, and click on FIND. Type a search term in the pop-up search box.
WHAT’S THE DECISION JANUARY, 2000
Cases: Citations in the summaries are of authority relied on in the decisions.
Discovery: In a special concurrence in a decision affirming a rape conviction [Dickerson v. State, Case No. A99A1432, (December 12, 1999)], Presiding Judge Blackburn provides a useful discussion of the requirements of O.C.G.A. § 17-16-8: "The prosecuting attorney … and the defendant’s attorney … shall furnish to the opposing counsel as an officer of the court, in confidence, the names, current locations, dates of birth, and telephone numbers of that party’s witnesses." The prosecution may not fail to furnish information simply because it is "not in its file," and that the prosecution has a duty to make reasonable efforts to obtain that information. Marshall, 230 Ga. App. 116 (1998). [The opinion notes that, because it was later shown that the defense could have obtained impeachment material, it would have reversed the conviction based on the prosecution’s failure to provide the birth date of the witness, and the trial court’s erroneous denial of a defense motion to compel, except that the defendant had waived the issue by not asking for a continuance.]
Innocent? Prove it!: Illinois has just imposed a moratorium on carrying out death sentences, largely because of the success of the Center for Wrongful Convictions at Northwestern University in Chicago in freeing people from Illinois’ death row. But these are death cases, where the stakes are so high that considerable resources are devoted to investigating the cases which catch the attention of the Center.
The Innocence Project at the Cardozo Law School in New York, taking only older cases where evidence still exists which can now be DNA tested, has helped to exonerate dozens of innocent prisoners. But these are DNA cases peculiarly susceptible to unambiguous determinations.
The inescapable, frightening conclusion is that, even aside from these cases, there must be a significant number of innocent people in prison facing the impossible requirement of proving a negative. Since the burdens shift after conviction, an actually innocent person convicted after a trial in which there were no significant legal errors must prove his or her innocence.
A recent Frontline program, "The Case for Innocence," [focusing on the DNA cases] demonstrated just what such people face. In many cases, even where new DNA results cast serious doubt on convictions, such doubt is not enough to even get a new trial. [For example, the prosecution argues that even if the semen is now shown not to be from the defendant, there can be other explanations [even if not presented at trial] for its presence.] In one of these cases, the Chief Justice of the Texas Supreme Court made it painfully clear that the defendant could not get a new trial because he had not proved his innocence. A dissenting justice said, essentially, that it is simply wrong not to grant relief in the face of persuasive doubt.
Showing the weaknesses of the justice system may be one way to help persuade a court to do the right thing. [One factor is that the prosecution and police are simply people, and are burdened with caseloads. A telling fact is that of more than sixty DNA exoneration cases, not a single one has been reopened for investigation.]
A transcript and other materials about the Frontline program [airdate Jan. 11, 2000; program no.1808] are available from www.pbs.org.
INEFFECTIVE ASSISTANCE
Turpin v. Bennett, Case No.s S99A1708, S99X1747 (January 18, 2000)
In a 5-2 decision in this death penalty case, the Court held that it was ineffective of trial counsel not to request a continuance when their psychiatric expert [who it turned out was suffering from AIDS-related dementia when he testified] abandoned his original diagnosis of the defendant, and testified that whoever committed the crimes was a vicious maniac, and that the defendant needed only Tylenol for headaches and Zantac for stomach problems. The Court affirmed the habeas court’s finding that it was ineffective for counsel not to take some action in response to the unexpected and radical change of opinion of the expert, who appeared ill and whose behavior in court was inappropriate. The death sentence and the conviction were reversed.
The habeas judge was Ben J. Miller of Butts Superior Court. Bennet was represented by Douglas W. Gilfillan and Stephen S. Cowen of Atlanta.
JUROR MISCONDUCT
Mullins v. State, Case No. A99A1457 (November 19, 1999)
In a 4-3 decision, amphetamine and marijuana convictions were reversed because the trial court failed to declare a mistrial after hearing conflicting testimony about whether two of the jurors had improper communications with a third person during a recess. It was reported to the court that the comment was made to the jurors that the defendants would not be on trial if they were not guilty. The jurors testified that they had not responded, but one of the defendants testified that one of them said, "Yeah, I know." The trial court denied mistrial motions, admonished the entire jury to disregard anything they may have heard. The trial continued. Just prior to the charge conference, the defense repeated its request that the two jurors be removed. The trial court did so after the defense agreed to proceed with ten jurors.
The Court of Appeals said that when an irregularity is shown as to juror conduct, there is a presumption of prejudice that the prosecution must rebut beyond a reasonable doubt. Holcomb, 268 Ga. 100 (1997); Cooke, 230 Ga. App. 326 (1998). Although saying that the circumstances here presented a close question, the Court noted that no inquiry was made as to whether the two jurors had said anything to the rest of the panel. The agreement to proceed with ten jurors in an attempt to avoid contamination of the jury did not waive the issue, as one of the dissenters felt. The dissent said, essentially, that the trial court’s findings that the jurors remained impartial, as they had stated, and that the "Yeah, I know" comment had not been made should be upheld on appeal.
The trial judge was David E. Barrett of Lumpkin Superior Court. The Appellants were represented by Roland H. Stroberg of Gainesville.
SEARCH & SEIZURE; EVIDENCE [relevancy]
Tyson v. State, Case No. A99A1603 (December 3, 1999)
At a flea market, several citizens flagged down an officer and told him that they had seen the defendant, a booth operator, molesting a girl – having her sit on his lap, rubbing his hand between her legs, "hunching" her like a dog, keeping her from getting away. When the child did pull away, the witnesses could see that the defendant had an erection. The girl and her mother were no longer there. The defendant’s van was close by and the officer asked for, and got, consent to look in it. The officer found a TV/VCR setup, a mattress, three firearms, used latex gloves, several pairs of panties, and a jar of Vaseline. The defendant, who had denied possession of any weapons, said he’d forgotten about the guns, and the whole thing was unbelievable since he had been similarly accused at another flea market. The officer gave the defendant a citation for no proof of insurance, and left.
Later, the mother of the child was tracked down. She initially denied having been at the flea market, then only denied having left the child with the defendant. The child’s grandfather brought her and the mother to the police station. The child denied that anything had happened. The officer returned to the flea market and, without a warrant, arrested the defendant. An inventory search of the van produced pornographic videos including one of bestiality, adult magazines, a blowup doll with pigtails, soiled panties, dildos, used condoms, and pictures of naked children.
Aside from everything else, the Court noted that nothing in the record established that the victim at issue at trial was the same girl the witnesses had told the officer about.
The Court reversed the child molestation conviction, holding that since no crime had been committed in the presence of the officer, and nothing had corroborated the statements of the witnesses in any way, there had been no probable cause to arrest the defendant. Therefore the seizure and inventory search of the van were improper, and the trial court had erred in denying the motion to suppress the evidence seized in the search subsequent to the illegal arrest. Further, since the sexual material introduced at trial was not linked to the crime, it was not admissible simply to show the defendant’s interest in sex. Simpson, S99G0245 (November 1, 1999).
The trial judge was Dorothy A. Robinson of Cobb Superior Court. The Appellant was represented by George T. Smith of Marietta.
CROSS-EXAMINATION
Scott v. State, Case No. A99A2296 (December 6, 1999)
The only evidence against defendant Scott in this forgery case came from Angela Agnew. She had attempted to buy a dress with a forged check at a store in a mall. The clerk was suspicious and summoned security. Agnew admitted knowing the check was a forgery. She then implicated Scott, saying she had gotten the forged check from him, and that he was waiting outside. He was intercepted as he was driving away in the car described by Agnew.
At trial, Agnew for the first time said she had passed other forged checks which she had gotten from Scott. She testified that there were no other pending charges regarding this case. Scott’s counsel sought to cross-examine her about whether she was on first offender probation and whether there was a pending bench warrant for her. The Court held that the trial court improperly disallowed this cross-examination which was meant to explore the possible motives [such as a concern about her pending probation revocation] Agnew may have had to bring Scott into the case, and to testify about other checks for the first time. The defense was not, as the State argued, improperly attempting to impeach Agnew on general credibility grounds. Nealy, 239 Ga. App 651 (1999); Hines, 249 Ga. 257 (1982). The conviction was reversed since, Agnew’s credibility being a substantial issue, it could not be said that the error was harmless.
The trial judge was Melodie S. Conner of Gwinnett Superior Court. The Appellant was represented by Barry M. Hazen of Atlanta.
WIRETAPPING
Bishop v. State, Case No. A99A2332 (December 15, 1999)
O.C.G.A. § 16-11-66 prohibits recording of a phone conversation by someone not a party to the conversation, except in the case of conversations of a child where the parents have obtained consent from a superior court judge. Here, the parents of a 13-year-old child called the police when they overheard her having a sexually oriented conversation with a 38-year-old male neighbor in which they also discussed killing the girl’s parents. The police refused the parents’ request for a wiretap on their phone. The parents then [without any superior court judge’s consent] secretly taped all calls to and from their home.
The Court, in a thorough discussion of this issue, reluctantly agreed with Bishop that the trial court erroneously denied his motion to suppress the tapes which recorded his conversations with the child, and reversed the conviction. The Court could not accept any of the ways put forward as establishing consent: the parents’ "vicarious consent" on behalf of the child; the child’s implied consent; or the child’s subsequent ratification of the recording.
The trial judge was George H. Kreeger of Cobb Superior Court. The Appellant was represented by J. William Morse and Marc D. Cella of Marietta.
PROBATION REVOCATION
Merneigh v. State, Case No. S99A1580 (January 18, 2000)
The defendant was sentenced in 1987 on burglary and theft cases. He received a split prison/probation sentence on the burglary and a consecutive probation on the theft. In 1991, his "probation provisions" were revoked after an arrest and he was sentenced to two years imprisonment. After completing that sentence, he was again arrested, and the theft probation was revoked and a five year prison sentence was imposed.
The Supreme Court, after the Court of Appeals had denied Merneigh’s application for discretionary appeal, granted his petition for cert. The Court held that any ambiguity in the original revocation in 1991 had to be construed in Merneigh’s favor, and thus it had to be read as having also revoked the theft probation, even though it had not yet begun. Revocation of a probation that has not yet begun is proper in situations such as this, and the Court reversed the current revocation, there being in existence no probation to revoke. O.C.G.A. §§ 17-10-1; 42-8-34(g).
The trial judge was Robert J. James of Douglas Superior Court. The Appellent proceeded pro se.
PROSECUTORIAL MISCONDUCT
Bolden v. State, case No. S99G1005 (January 18, 2000)
In a DUI case the prosecutor argued to the jury that "..I thought [the officer] was very credible.." compared to the defendant. Counsel objected, and the trial court remarked that credibility was for the jury, and that the prosecutor could argue that. The Supreme Court agreed that this was improper injection of the prosecutor’s own beliefs; and it reversed the Court of Appeals, which had found that Bolden had waived the issue by not renewing the objection. Shirley, 245 Ga. 616 (1980).
The trial judge was Lenwood A. Jackson of Fulton City Court. The Appellant was represented by William C. Head and Thomas J. Thomas of Atlanta.
EXPERT TESTIMONY – EYEWITNESS RELIABILITY
Johnson v. State, Case No. S99G0759 (February 28, 2000)
The Georgia Supreme Court has just opened the door to the use of expert testimony on the issue of eyewitness reliability. The Court held, in a unanimous opinion, that "...trial courts are not automatically required to admit [such evidence, but where] eyewitness identification ... is a key element of the State's case and there is no substantial corroboration of that identification by other evidence trial courts may not exclude expert testimony without carefully weighing whether the evidence would assist the jury in assessing the reliability of eyewitness testimony and whether expert ... testimony is the only effective way to reveal any weakness in an ... identification."
The Court found, however, that the trial court here had not abused its discretion in excluding the expert testimony since there was similar transaction evidence; and the identification of the defendant by the victim of this ATM robbery was corroborated by a witness who testified that she had seen the defendant acting suspiciously at the scene.
The trial judge was Constance C. Russell of Fulton Superior Court. The Appellant was represented by Jennifer N. Foster of Atlanta. Amicus briefs on behalf of the Appellant were filed by James C. Bonner, Jr. and Michael Mears of Atlanta.
There will, of course, be seminars offered to discuss the type of case in which such critical testimony can be used, the substance of what the experts can testify to, how to present the testimony, and who the available experts are. Dr. Elizabeth Loftus, the pre-eminent national expert on eyewitness identification reliability, is scheduled to speak at a GACDL-sponsored event in August.
It has long been known that mistaken identifications are a huge factor in wrongful convictions. It is critical that the defense be prepared to take advantage of the opportunity opened by this case to present this type of expert evidence.
JURY CHARGE re: Obstruction of Officer
Strobhert v. State, Case No. A99A1960 (December 12, 1999)
An officer saw the defendant commit a traffic offense, and saw what seemed to be blood and vomit on the defendant. The officer was driving his personal vehicle, but was wearing a sheriff’s jacket. As he walked towards the defendant’s car he identified himself to the defendant as a deputy. The defendant started to drive off, knocking the officer down, hitting the officer’s truck’s door, and running into a dumpster. The officer again approached and managed to get handcuffs around one wrist of the defendant. The defendant ran to a nearby trailer. The officer again approached, with his gun drawn, ordering the defendant to the ground. The defendant complied, but then continued to struggle as the officer repeatedly identified himself as an officer.
Throughout the incident, the defendant kept repeating things such as, "You’re stealing my car," "You’re trying to beat me up," " What did I do?’ "Leave me alone," "I need to see your ID." The owner of the trailer and other arriving officers assisted in subduing and arresting the defendant.
The defendant was charged with the traffic offense, aggravated assault, and obstruction of an officer. [He was acquitted of aggravated assault.] At trial, the jury asked for a clarification of the term "offering violence" concerning the obstruction charge under O.C.G.A. § 16-10-24. The court instructed the jury that they should consider the ordinary meaning of those words, but subsequently charged that a conviction would be authorized on proof of "verbal threats of force or violence."
The Court reversed the obstruction conviction since nothing that the defendant had said was a threat; and since the instructions were therefore not adjusted to the evidence, the jury could have been confused and may have convicted based on a theory not supported by the evidence. Hightower, 210 Ga. App. 386 (1993); Rice, 217 Ga. App. 456 (1995); Joiner, 163 Ga. App. 521 (1982).
The trial judge was Richard S. Gault of Forsyth Superior Court. The Appellant was represented by George H. Law III of Gainesville.
NO PROOF OF INSURANCE
Bailey v. State, Case No. A99A2065 (December 8, 1999)
The defendant was fined $1,203 upon conviction of driving without proof of insurance. The defendant, however, had produced evidence in court that he had had insurance in effect at the time of his citation. The Court vacated the fine since O.C.G.A. § 40-6-10 (a)(4) provides that upon such a showing that insurance was in effect, the court shall reduce the fine to no more than $25.
The trial judge was Lenwood A. Jackson of Fulton Traffic Court. The Appellant was represented by Thomas L. Walker of Tucker.
HEARSAY [prior consistent statements]
Phillips v. State, Case No. A99A1903 (January 10, 2000)
In a rape and aggravated child molestation case, the trial court, over objection, allowed [under the authority of Gibbons, 248 Ga. 858 (1982)(concerning prior inconsistent statements) and Cuzzort, 254 Ga. 745 (1985)(concerning prior consistent statements)] testimony from both a DFACS worker and a police officer as to statements by the victim and her sister which were consistent with their trial testimony. The officer was also allowed to testify as to the consistencies. The Court stated that, although the victim’s statements might have been admissible under the Child Hearsay Statute [O.C.G.A. § 24-3-16], that was not so as to her sister’s statements since the part of the statute which would have allowed such statements was ruled unconstitutional in Woodard, 269 Ga. 317 (1998).
The Court discussed the holding of Woodard: Cuzzort is not to be construed to permit prior consistent statements regardless of whether the veracity of a witness had been challenged; otherwise, such statements could be used solely to improperly bolster the testimony of an unchallenged witness. Only when an affirmative challenge is made as to recent fabrication, improper influence, or improper motive of the witness, is a prior consistent statement admissible, and then only if it was made prior to the existence of the asserted motive, influence or fabrication. Here, the defense had charged that the mother improperly influenced the children because of antagonism arising out of a guardianship litigation which had happened three years before the statements to the officer and the DFACS worker.
The Court, in considering whether the error in allowing the testimony was harmful, found that even though the DFACS worker’s testimony was not raised as an issue on appeal, it had been objected to at trial. Since that testimony was erroneously admitted, the officer’s testimony was not cumulative of other legally admitted or unobjected to evidence of the same facts. Since the case turned on the seriously questioned credibility of the witnesses, the Court reversed the convictions.
The trial judge was Andrew Fuller of Dawson Superior Court. The Appellant was represented by Christopher W. Duncan and Sean A. Black of Toccoa.
VENUE
In the Interest of N.T.S., Case No. A99A1783 (January 28, 2000)
The 13-year-old child here allegedly threw a toy truck at another child, and was adjudicated delinquent for the act of disorderly conduct/affray. The Court reversed the adjudication, holding that the detective having testified only as to the name of the street on which the offense occurred, venue had not been established. Graves, 269 Ga. 772 (1998).
The trial judge was R. Michael Key of Troup Juvenile Court. The Appellant was represented by William L. Jones of LaGrange.
WITNESS BOLSTERING; IMPROPER ARGUMENT
Booker v. State, Case No. A99A2464 (January 26, 2000)
The Court reversed the defendant’s convictions for armed robbery, burglary, aggravated assault and a firearms offense, holding that the trial court erred in allowing a testimony that another state’s witness [McCoy] had previously given truthful information about an unrelated set of murders. This improperly bolstered the credibility of McCoy, and also prejudiced the defendant by the implied association to the murderers. The testimony could not be allowed as impeachment of McCoy who, though called as a state’s witness, testified that Booker was not involved in the crimes at issue in the trial. The state properly confronted him with his contradictory pre-trial statements, but went too far when eliciting the testimony about McCoy’s having provided truthful information as to the unrelated homicides. The prosecutor’s argument to the jury on this was therefor also error. Williams, 261 Ga. 640 (1991); Stephens, 261 Ga. 467 (1991).
Further, the prosecutor’s argument to the jury that he had successfully prosecuted murder cases without testimony from the victims improperly injected facts not in evidence. Simmons, 174 Ga. App. 171 (1985).
The trial judge was William W. Daniel of Fulton Superior Court. The Appellant was represented by Monique D. Moyse of Atlanta.
SEARCH & SEIZURE
State v. Williams, Case No. A99A2133 (January 21, 2000)
The Court affirmed the trial court’s granting of the motion to suppress the drugs found on the defendant’s person, holding that probable cause for arrest was not supported by the facts [even when combined] that the defendant, 51 minutes before the flight, paid cash for a one-way plane ticket from Miami to Atlanta, that a number that he had given the airline as one in Miami turned out to be a business in Atlanta, that he was extremely nervous [hands shaking, jaw clenching, heart beating so hard as to be noticeable through his clothes] when approached by authorities, that he gave inconsistent answers about his travels, and that his initial consent to a search resulted in the discovery of a roll of plastic wrap in his backpack.
The defendant then refused consent to a pat down, and said he did not have anything taped to his leg after an officer noticed that one of his pants legs was not flat to his leg. There was no testimony that there appeared to be a bulge indicative of the presence of contraband. Despite the defendant’s expressed desire to terminate the encounter, he was detained and taken from the airport in Clayton County to the DEA office in Fulton County where a drug dog alerted on the backpack.
A search warrant was obtained from a Clayton County magistrate, and, an hour and a half after the initial stop, the defendant was searched. Taped to his leg with plastic wrap was 407 grams of cocaine. There was marijuana in his shoe, and over a thousand dollars in his pocket.
The trial court held that the Clayton County warrant could not authorize a search in Fulton County [this issue was not addressed on appeal]; and that the officers had not established probable cause to arrest prior to the defendant’s withdrawal of his consent to search. The actions of the officers exceeded a permissible brief investigatory detention, and amounted to an improper arrest. Florida v. Royer, 460 U.S. 491 (1983); Murphy, 230 Ga. App. 365 (1998); Smith, 216 Ga. App. 453 (1995).
The trial judge was William H. Ison of Clayton Superior Court. The Appellee was represented by Suellen Fleming of Jonesboro.
JANUARY, 1999
STIPULATION RE: FELON STATUS
BUTLER, S98A1718 [1-19-99] [99FCDR 368]; cites Old Chief re: stipulation must be agreed to if otherwise there is prejudice, and the stipulation obviates any need for the state to produce anything on that element.
HEARSAY
[wholly w/o probative value]
DAY, A98A2169, 12-15-98. Reversal of traffic offense where only evidence was hearsay which is "wholly without probative value" and cannot support a conviction even if not objected to. Cites: 24-3-1; Higgins v. Trentham, 186/264 [‘38].
RECIDIVIST
WILLIAMS, A98A2294, 1-5-99. Recid. sentence vacated since state did not have admissible evidence to support recidivist status. Cites 17-10-7; Ramsey, 218 App. 692.
VERDICT FORM
RUCKER, S98A1634, 1-19-99. The "safer" way is to leave a blank for the jury to fill in, rather than listing guilty options above not guilty. Cites Chapman, 258 Ga. 214 [4][88].
JURY STRIKE
[Police Officer]
DAVIS, A98A1731, 1-14099. Reversed because court failed to strike officer for cause. Cites Hutcheson, 246 Ga. 13 [80].
CO-DEF. GUILTY PLEA
PINCKNEY, A98A1992, 1-22-99 Reversed because court allowed evidence that co-defendant had pled guilty. Cites Duke, 205 App. 689 [92]; Hendrix, 202 App. 54 [91]; 24-3-52.
SEARCH WARRANT
[Failure to inform Magistrate of all facts]
ROBERTSON, A98A2408 [1-21-99] Denial of motion to suppress reversed because officer did not tell magistrate that informant had criminal record; that he was seeking police help on pending case; and was angry at defendant concerning his pass at informant’s wife. Veracity of informant is critical to magistrate’s decision. Cites State v. Turner, 192 App. 839 [89]; Perkins, 220 App. 524 [1996]; Hockman, 226 App. 521 [97]; Pailette 232 App. 274 [98].
AFFIRMATIVE DEFENSE
[State has Burden to Disprove]
HAYES, A99A0209, 1-21-99. State has burden to disprove affirmative defense [justification, e.g.], once raised. Cites Taylor, 231 App. 73 [98].
FEBRUARY, 1999
CONFESSION tainted by illegal ARREST
STATE v GUILLORY, A98A1885; 2-4-99. Exclusion of tainted confession affirmed. Good review. Confession may be voluntary under Fifth Amendment, but is tainted when Fourth Amendment is violated by illegal arrest. Officer investigating bomb threat on college campus entered dorm room of defendant, spoke with him, and eventually got confession from him. No probable cause existed for arrest; no authority to enter room. Cites Steagald v U.S., 451 U.S. 204 [81][entry without warrant forbidden without exigency or consent]; Dunaway v New York, 442 U.S. 200 [79][arrest must be supported by probable cause]; Brown v. Illinois, 422 U.S. 590 [75][arrest without probable cause results in exclusion of resulting statement]; Wong Sun v U.S., 371 U.S. 471 [63] and Taylor v Alabama, 457 U.S. 687 [82] and Thompson, 248 Ga. 343 [81][bad arrest leads to exclusion of later statement unless intervening events purge taint].
SEARCH
[container; plain view; exigency; good faith exception]
STATE v GALLUP, A98A2005; 2-9-99. Granted suppression motion affirmed where officer investigating rented storage shed burglaries opened refrigerator and found marijuana. Right to be in shed did not extend to opening refrigerator. Opinion based on Georgia Constitution. Cites Gilreath, 247 Ga. 814, and Banks, 229 App. 414 re: exigency; 17- 5 – 30 [exclusionary statute]; Gary, 262 Ga. 573 [no good faith exception in Georgia].
PAT DOWN
CONSENT
[mere acquiescence is not consent]
CORLEY, A98A2018; 2-8-99. Good review of frisk principles. Citing Terry v Ohio, 392 U.S. 1 [68], conviction reversed where lump did not appear to be a weapon; nor did defendant voluntarily consent by obeying instructions to take it out of his pocket so officer could see what it was. [It was not argued that search was justified under "plain feel" doctrine.] Cites Hayes, 202 App. 204 [91]; State v Williams, 220 App. 100 [96]; McGaughey, 222 App. 477 [96]; Minnesota v Dickerson, 508 U.S. 366 [68][‘plain feel’ ]; Schneckloth v Bustamonte, 412 U.S. 218 [73][State has burden of showing consent was voluntary.]
INVESTIGATIVE STOP
ATTAWAY, A98A2377; 2-8-99. Denial of motion to suppress reversed where officer did late night stop of car which had been repeatedly driving around a subdivision where there had been vandalism. This would justify "closely observing" the car, but not stopping it. Cites Hughes, 269 Ga. 258 [98]; Bonner, 233 App. 215 [98].
PROSECUTORIAL MISCONDUCT
LUKE, A98A0606; 2-8-99. Conviction reversed where prosecution essentially argued that the judge would have dismissed the case if the defense had any validity.
MERGER
CHADWICK, JR., A98A2293; 2-2-99. Marijuana possession conviction vacated since only proof was that it was in defendant’s blood – that could not support both possession and DUI charges.
SUFFICIENCY OF EVIDENCE
ADKINSON, A98A2206; 2-5-99. Conviction reversed where only evidence that substance was marijuana was chemist’s and officers’ beliefs that it was. [No lab test was done.]
NECESSITY EXCEPTION
AZIZI, S98A1879; 2-22-99; murder conviction reversed where victim’s statements to others allowed under the necessity exception - but for some of statements there was insufficient indicia of reliability. Cites 24-3-1[b]; Carr, 267 Ga. 701 [97].
NON-PROBATIVE HEARSAY
JOHNSON, A98A2328; 2-9-99. Theft conviction reversed where victim said cop told her that the serial #s on the recovered stolen gun matched those she gave in report - but nothing else to show truth of that. Can’t base conviction on such testimony.
CREDIT FOR TIME WHEN PROB. REVOKED
FRANKLIN, A98A2382; 2-10-99. Def. has right to receive credit for time served, including under first offender sentence, when having probation revoked. Cites 16-9-1; 42-8-38; 42-8-60; State v.Boyd, 189 App. 617 [88].
LOSS OF FINAL CLOSING ARGUMENT
WILLIAMS, A98A2315; 2-9-99. If co-def. puts up evidence, you also lose argument. Don’t get blindsided by this - try to work this out w/ co-def. atty., or use as part of motion for severance. Cites 17-8-71; 24-9-20; Lackey, 246 Ga. 331 [80]; Kennebrew, 267 Ga. 400.
PROFESSIONALISM
SMITH v NICHOLS, S98A1979, 2-22-99. In a habeas case the Court castigates the prosecutor for not communicating with defense counsel. Might be useful when you’re complaining that the ADA has not been open with you. [Defendant was mistakenly released on bond. Prosecutor realized error and had defendant rearrested, rather than speaking w/ counsel about having client turn self back in. Result was year of habeas litigation.]
GOLDEN RULE ARGUMENT
[asking jurors to put selves in shoes of victim/defendant]
HAYES , A99A0418, 2-9-99. Although counsel may not, in argument to the jury, ask that they imagine themselves in the position of the victim or the defendant, it is error [harmless in this case] to prohibit asking jury to put itself in position of a witness. So, consider couching arguments about witness bias, motive, etc. in those terms - "wouldn’t you say what state’s witness Jones said given that she has no danger of being caught in a lie, that she is the prosecutor’s mistress, and that she is being paid $5,000 to testify as an ‘expert’ in fashion eyewear about which anybody can say anything." [an issue in the case is whether the glasses the perp. was wearing were real or just for show]
MERE ACQUIESCENCE IS NOT CONSENT
STATE v HARRIS, A98A2185, [2-1-99]. Grant of Motion to Suppress affirmed where officer asked woman to empty her purse - she did so. This is acquiescence to authority, but this is not enough to show free, knowing consent to search - not shown that she knew she had right to refuse. Cites Sutton, 223 App. 721 [96]; State v Williams, 226 App. 346 [97]; Rogers, 206 App. 654 [92].
CIRCUMSTANTIAL EVIDENCE
INSUFFICIENT CONNECTION TO CONTRABAND
DIGGS, A98A1172; [9-14-98]; 98FCDR3537. Conviction reversed on general grounds where evidence did not exclude other reasonable hypotheses. Fact -based, but good case to use in negotiation and m. for directed verdict [f’prints found on battery in scales in bag containing the marijuana]. Sort of a mere presence, spatial proximity case, but with other circumstantial evidence. Cites Savage, 229 App. 560 [97].
MISTAKE OF FACT DEFENSE
WILLINGHAM, A98A1409, [11-25-98]. We’ve discussed this before- guy says it was an accident [rather than a mistake of fact as to who he was groping] that he has his hands in his girlfriend’s daughters pants in bed [see Redd, A98A0561, 4-15-98; also Randall, A98A 2220, 10-2-98 [discussing dif. between mistake of fact and mistake of law]]. Willingham did try to claim mistake, but still screwed it up because he only admitted leading-up-to part of the act, and denied actually doing anything he was charged with. Appellate court ruled that the trial judge did not err in denying the request for a mistake of fact instruction, because if a defendant is denying the act he’s charged with he’s saying he didn’t do it whether knowingly or mistakenly. [ed. note: Mistake of fact is a great defense, but it has no bite unless you go straight for it. A wishy-washy presentation of it won’t wash.]
SEARCH OF PERSONS DURING
EXECUTION OF SEARCH WARRANT
CLARK, A98A1110, 12-3-98. Conviction reversed where officers executing search warrant in a bar where codefendant’s mere presence did not give officers the right to do a pat down. As to other codefendants, there was reasonable cause to be concerned they were armed [which they were], but as to a certain Coley, there was no justification for the patdown which revealed marijuana. Cites Ybarra v. Illinois, 444 U.S. 85 [79].
CONFIDENTIAL INFORMANT
[identity]
EVANS, A98A1331, 12-3-98. Conviction reversed where trial court failed to conduct in-camera review to decide if identity of informant had to be disclosed. Good review of when that must happen [where informant could be critical witness for the defendant]. Cites Moore, 187 App 387 [88]
SCIENTIFIC EVIDENCE
IZER, A98A2475; 2-5-99 Speeding conviction reversed because evidence based on laser speed detectors not shown to be reliable. Good review of how to challenge new science. Cites Harper, 249 Ga. 519 [82]; Hubbard, 207 App. 703 [93]; Smith, 250 Ga. 438 [83]; Manley, 206 App. 281 [92].
SEXUAL BATTERY
[Elements]
D’AURIA, S98A2002, 2-8-99. Reversed because state failed to allege specific intimate body part touched. Cites 16-6-22.1.
"WHAT’S THE DECISION" JUNE, 1999
Carl Greenberg, Editor, State Cases
Note: This is the first issue of "What’s the Decision" since January of 1994 which has not had the benefit of Chandelle Summer as the State Cases Contributing Editor. Not only is putting this publication together one of those classically thankless jobs, it’s not even remunerated! So, Chandelle, on behalf of GACDL, a sincere Thank You! for your years of service.
Comments and Questions: If you have any, please direct them to Carl at the Fulton County Conflict Defender, Inc. [email: carl@fccd.com]
This month’s practice tip: The most succinct citation of Georgia criminal law is the Checklist [Parts I and II] of the Unified Appeal process for death penalty cases [but applicable to any case]. Don’t leave your office without a copy of those seven pages.
Cases: Citations in the summaries are of authority relied on in the decisions.
At press time: Marijuana DUI law struck down as violating constitutional equal protection rights. The Georgia Supreme Court, in Love v. State, S99A0509; decided June 1, 1999, addressed the provisions of O.C.G.A. § 40-6-391(a) which prohibit driving while having any amount of marijuana in the driver’s blood or urine. Although experts testified that marijuana can be detected in a person’s blood for days after usage, and in the urine for months; and further that detectable amounts of marijuana metabolites can be detected in someone who inhaled the marijuana smoke passively and "second-hand," the Court rejected the Appellant’s attack on the "zero-tolerance" aspect of the statute.
However, the statute also provides that someone who has been prescribed marijuana for medicinal purposes may not be convicted unless it is proven not only that there was marijuana in his system, but that he was thereby rendered incapable of driving safely. The Court found this to be an equal protection violation because it was "…unable to hold that the legislative distinction between sanctioned and unsanctioned users …is directly related to …public safety."
The Appellant was represented by David E. Clark and Jessica R. Towne, Clark & Towne, of Lawrenceville.
SUFFICIENCY of EVIDENCE;
BURGLARY JURY CHARGE
THOMPSON, S99A0503; 5-17-99
Felony murder and burglary convictions reversed. The Court held that the evidence showing the following was insufficient to support a burglary conviction: The defendant and two others drove to the home of a drug dealer with the plan that one of them would lure him away, and the others would then burglarize his house. One co-defendant entered the house at the victim’s invitation. Thompson briefly left the area. When he returned he heard shots and saw both co-defendants fleeing from the direction of the house. Nothing was taken from the house, and the victim was found with his feet inside his door and his body outside. Thompson could not be guilty, even as a party to the crime, of burglary since there was no showing of an unauthorized entry by any of the defendants.
The Court cautioned that juries should not be instructed as to both "unauthorized entry" burglary and "unauthorized remain[ing] in" burglary. [O.C.G.A. § 16-7-1]
Although other felonies were proved which could have supported the felony murder conviction, the jury returned a general verdict, and since they might have based the felony murder conviction on the burglary, that conviction [as well as the conviction for possession of a firearm during the commission of a crime] also had to be reversed. [Dunagan, 269 Ga. 590 (3) (1998)].
The trial judge was Walter J. Matthews of Floyd Superior Court. The Appellant was represented by John F. McClellan, Jr. of Rome.
REASONABLE DOUBT - JURY CHARGE
Ward, S99A0547: 5-3-99
Felony murder conviction reversed where the trial court elaborated on the pattern instruction as to what reasonable doubt is by adding, "Now, …a better way to express that is simply if you honestly believe that the defendants are guilty then find them guilty. If you honestly believe the defendants are not guilty then find them not guilty." The Court found that the "honest belief" instruction improperly lowered the standard of proof to one "more akin to the preponderance standard [in] civil trials." Reading the charge as a whole, the Court could not conclude that this was a harmless error. Spearman, 267 Ga. 600 (1997); Gober, 247 Ga. 652 (1981). [This was the second trial of the case, which involved shots fired between "rival group[s] of women." The first jury had deadlocked on the felony murder charge.]
The trial judge was William M. Fleming Jr. of Richmond Superior Court. The Appellant was represented by Richard O. Ward of Augusta.
DUI - SEQUENTIAL BREATH TESTS
DAVIS, A99A0008; 4-29-99
DUI conviction reversed where officer asked defendant for more than two breath tests. Under O.C.G.A. § 40-6-392(a)(1)(B), "No more than two sequential series of a total of two adequate breath samples each shall be requested …" An adequate sample is defined as "… a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis." The officer’s testimony that a test is "outside the parameters" if the pair of readings are more than 0.020 grams apart, and thus not usable, did not mean, the Court held, that that test didn’t count as one of the two allowed by the statute.
The trial judge was Robert G. Walther of Floyd Superior Court. The Appellant was represented by James S. Garner III of Rome.
DUI – PROOF of SIMILAR TRANSACTIONS
SHEFFIELD, A99A0014; 4-21-99
DUI conviction reversed because the state’s attempt to prove a prior DUI offense solely by means of a certified copy of a prior conviction was insufficient. Stephens, 261 Ga. 467 (6). Given the circumstantial nature of the case, although sufficient to support the conviction, the Court could not find the error harmless. [The officer approached a stopped pickup truck which was partially blocking the road. The engine was running, and the defendant, highly intoxicated, was slumped over the wheel. There was no direct evidence of his having driven the truck.]
The trial judge was Timothy C. Cramer of Spalding State Court. The Appellant was represented by Larkin M. Lee (Virgil Brown & Assocs.) of Zebulon.
DUI – IMPLIED CONSENT RIGHTS
MILLER, A99A0544; 4-28-99
DUI conviction reversed because officer’s mere testimony that he had read to the defendant his implied consent rights from a card, without testifying as to the content of the card [and the card not being put in evidence] was insufficient. State v. Hassett, 216 Ga. App. 114 (1995). Thus, the trial court should have granted the motion to suppress the breath test results, and no conviction under O.C.G.A. § 40-6-391 (a)(5) [unlawful blood alcohol level]could be supported.
The trial judge was C.J. Gober Jr. of Cherokee State Court. The Appellant was represented by Jerry L. Webb Jr. of Atlanta.
PROBATION REVOCATION – HEARSAY
OVERBY, A99A0533; 4-22-99
Probation revocation reversed. Defendant was on ten years probation for growing marijuana. The State sought to revoke the probation based on allegations of battery and cruelty to children. Although even "slight evidence" is sufficient to revoke probation, the evidence here [pictures of injuries to the defendant’s sister and the testimony of the officer as to what the sister told him that the defendant had done] was entirely non-probative hearsay. [The sister did not testify.] The trial court erred when it revoked four years of the probabtion. Goodson, 213 Ga. App. 283 (1994). The State’s argument that the hearsay was properly relied on under the "necessity exception" [O.C.G.A.§ 24-3-1 (b)] was rejected. Higgs, 256 Ga. 606 (3) (1987).
The trial judge was George H. Bryant of Franklin Superior Court. The Appellant was represented by Billy I. Daughtry Jr. of Elberton.
SEARCH & SEIZURE - INVESTIGATIVE STOP
IN THE INTEREST OF T.J.B., A99A0367; 4-29-99
Adjudication of Delinquency (based on illegal drug possession) reversed. An officer watched as this juvenile (who was known to him) bicycled through a known drug area. The officer saw that the juvenile did not stop as he usually did when the officer visited with other subjects, and a few minutes later he saw him come out of a house which the officer did not believe the juvenile had any reason to visit. The juvenile then rode off after seeing the officer. The officer radioed an alert concerning possible drug activity. The juvenile turned sharply and sped up when he saw another officer. The juvenile was cornered, stopped, and was told that he was going to be patted down for weapons. The patdown resulted in the seizure of a pill bottle containing cocaine.
The Court held that, at worst, what the officers observed was that the juvenile "…was not projecting his usual affable persona toward [the] officers…" but the circumstances did not establish a particularized, objective basis for an investigatory stop, and the juvenile’s motion to suppress was erroneously denied. Terry v. Ohio, 392 U.S. 1, 21 (1968); Hughes, 269 Ga. 258 (1998); Vansant, 264 Ga. 319 (1994).
The trial judge was Donald E. Manning of Glynn Juvenile Court. The Appellant was represented by Luz F. Cloy of Brunswick.
RECIDIVIST SENTENCING
BRADSHAW, A99A1056; 4-12-99
Recidivist sentence reversed in burglary case because at sentencing the trial judge stated his belief that O.C.G.A. § 17-10-7(c) [the recidivist statute] required the imposition of the maximum prison term for burglary [20 years]because this was a recidivist conviction, saying, "I have no discretion."
The Court remanded for the trial court to exercise the discretion it did have to probate or suspend part of the sentence. Banks, 225Ga. App. 754, 757 (1997)
The trial judge was William M. Fleming Jr., of Richmond County. The Appellant was represented by Paul W. David of Augusta.
MARIJUANA POSSESSION
HANSON, S99A0502; 5-5-99
Felony marijuana possession conviction reversed because O.C.G.A. § 16-13-2 was amended effective April 29, 1997 restoring any case of possession of less than an ounce of marijuana to a misdemeanor offense [regardless of whether it was a subsequent possession offense]. No savings clause had been attached to the amendment – therefore Hanson’s pending prosecution had to be abated. Robinson, 256 Ga. 564 (1986).
The decision was a 5-4 split decision. The dissent argued that the amendment only affected punishment – thus the prosecution itself could go forward, but no felony sentence could be imposed.
The trial judge was Michael C. Clark of Gwinnett County. The Appellant was represented by Thomas P. Lenzer and Robert W. Lenzer (Lenzer & Lenzer) of Norcross.
JURY INSTRUCTIONS – SELF-DEFENSE; DUTY TO RETREAT
JACKSON, A99A0435; 4-23-99
Aggravated Assault conviction reversed. The State raised the issue of retreat when cross-examining the Defendant by asking him why he could not "…have gone ring around the rosie all night long …" to get away from the man who was confronting him. The Defendant shot the man who was not backing down despite the Defendant’s display of a gun. Even though not requested, the trial court had a duty to instruct the jury as to lack of duty to retreat and erred by not doing so. Spear, 230 Ga. 74 (1973).
The trial judge was Richard E. Hicks of Fulton Superior Court. The Appellant was represented by Steven E. Phillips of Atlanta.
Advance copy of July’s WTD - HOPNEWS version
"WHAT’S THE DECISION" JULY, 1999
Carl Greenberg, Editor, State Cases
Websites: www.gacdl.org [Ga. Assoc. of Criminal Defense Lawyers]
www.gidc.com [Ga. Indigent Defense Council]
www.fccd.com [Fulton County Conflict Defender, Inc.]
www.pap.state.ga.us [Ga. Board of Pardons and Paroles]
www.ganet.org/corrections [Ga. Department of Corrections]
www.law.emory.edu [good links to resources]
www.mindspring.com/~fclawlib [Fulton County Law Library] www.state.ga.us/courts/supreme [Ga. Supreme Court; many links, including most Ga. Courts’ Rules]
www.iclega.org [Institute for Continuing Legal Education in Georgia]
www.gabar.org [Ga. State Bar; check your CLE hours]
www.findlaw.com [everything law, nationwide]
www.law.cornell.edu [includes up-to-date U.S. Supreme Court opinions]
http://oyez.nwu.edu [N’western University’s U.S. Supreme Court site]
http://psych-server.iastate.edu/faculty/gwells/homepage.htm
[Iowa State Prof. G. Wells’ excellent site re: eyewitness identification]
And, just what it says: www.dumbcriminalacts.com
Comments and Questions: If you have any, please direct them to Carl at the Fulton County Conflict Defender, Inc. [email: carl@fccd.com]
Cases: Citations in the summaries are of authority relied on in the decisions.
READ THIS CASE READ THIS CASE READ THIS CASE READ THIS CASE
DISCOVERY
STATE v. LUCIOUS, S99A0099; 6-14-99
In an interlocutory appeal in a death penalty case, the Georgia Supreme Court [in an 4-3 decision] upheld the constitutionality of the 1994 Criminal Procedure Discovery Act, O.C.G.A. §17-16-1 et. seq. [Read This Statute] In doing so, the Court reversed the trial court’s order that Lucious was entitled to most of his discovery requests since he had not "opted in" under the discovery statute; and further held that Uniform Superior Court Rule 30.3 [mandating that the prosecution furnish witness information on request] is unenforceable.
"Opting in" means a defendant agrees to a reciprocal duty to provide the prosecution with certain discovery [as to alibi witnesses, e.g.]. Not opting in means, under Lucious, that the prosecution has no obligation to provide, among much else, a trial witness list or scientific evidence. The majority stated that "…there is no general constitutional right to discovery in a criminal case," but on the other hand, that a "…panoply of discovery rights exists separately from the Act, and provides abundant discovery opportunities…" The dissent [Benham, Fletcher and Sears] helpfully provides a list of such discovery rights. [Read and Copy this Dissent.]
The trial judge was Matthew O. Simmons of Clayton Superior Court. The Appellee was represented by Michael Mears and Kenneth D. Driggs of the Multi-County Public Defenders, Atlanta, and David J. Walker Sr., of Jonesboro. An amicus brief was submitted by John R. Martin and Donald F. Samuel, of Atlanta.
READ THIS CASE READ THIS CASE READ THIS CASE READ THIS CASE
SEARCH & SEIZURE,
Investigative Detention
STATE v. KWIATOWSKI, A99A0119; 6-2-99
Grant of motion to suppress evidence of 27 pounds of marijuana affirmed. Defendants were stopped in a parking lot in a known drug area, claimed to be lost, had Virginia licences [one of which turned out to be suspended] but a North Carolina tag, acted nervous, and refused to consent to a search of their car. The police detained them for fourteen minutes until a drug dog was brought to the scene. The Court held that the initial, proper, noncoercive inquiry escalated into an improper detention since there was nothing in the circumstances to give the police a reasonable, articulable suspicion of criminal activity. [There was no evidence that the police intended to cite the defendants for any traffic offenses.] McClain, 226 Ga. App. 714 (1997); Barnes, 228 Ga. App. 44 (1997); U.S. v. Mendenhall, 446 U.S. 544 (1980);
The trial judge was David Motes of Barrow Superior Court. The Appellee was represented by William E. Hicks of Winder.
FIRST OFFENDER
WILLIAMS, A99A0594; 5-27-99
At a bifurcated trial, the defendant was acquitted of entering an automobile, but convicted of possession of a firearm by a person on probation as a first offender [O.C.G.A. §16-11-131]. That conviction was reversed. His first offender probation had already been revoked due to other convictions at the time he was found in possession of two guns. The indictment only alleged the "currently on probation" violation, and the State could not prove that element of the crime.
The trial judge was Elizabeth Long of Fulton Superior Court. The Appellant was represented by Anna Blitz of Atlanta.
HEARSAY,
Necessity Exception
HARRISON, A99A0843; 5-28-99
In a joint trial, husband and wife Jerry and Kimberly Harrison were each convicted of simple battery. Each was the victim of the other, the batteries arising out of a domestic dispute. They each invoked the marital privilege. O.C.G.A. §24-9-23(a). Invoking the hearsay necessity exception, O.C.G.A. §24-3-1(b), the prosecution elicited testimony from a police officer as to what each of them had said to him about the altercation. Because the State did not explain why other witnesses to the fight were not called to testify, the State did not meet its burden of showing the necessity for the hearsay related by the officer. Drane, 265 Ga. 663 (1995).
DISCOVERY
BAKER, A99A0437; 5-26-99
Defendant’s aggravated assault conviction was reversed. He had "opted in" to the discovery process of O.C.G.A. §17-16-1 et. seq., but the prosecution failed to provide him, with the required 10 days notice, that the arresting officer was going to testify that the defendant had given a statement [that the shooting was in self-defense, because the victim had pulled a gun], instead giving this notice on the morning of trial. The defense moved for either a continuance or an order precluding the use of the statement. [The planned defense had been that the defendant was not the perpetrator.]
The State argued, among other things, that, a] because the defendant’s current attorney had not adopted his previous public defender’s motions, the State was not obligated to produce anything; that, b] it had difficulty obtaining counsel’s address; that, c] when it did get the address, it did not have the statement; that, d] it did not "discover" the statement until the weekend before trial; and that, e] it was unaware of it being "…written, that the State is required to interview all witnesses ten days before trial."
The trial court’s failure to grant a continuance was a abuse of discretion in light of the defense having informed it of the significant difference the statement made to the planned defense.
The trial judge was Gail S. Tusan of Fulton Superior Court. The Appellant was represented by Steven E. Phillips of Atlanta.
EVIDENCE,
Insurance Policy
BRYAN, S99A0649; 6-14-99
The defendant’s convictions for malice murder and arson were reversed. The Supreme Court held that it was error for the trial court to allow evidence that the defendant’s husband had increased his automobile liability insurance three months prior to the defendant purposefully crashing the car and burning her mother, who was a passenger. Such evidence is inadmissible without independent evidence of a nexus between the insurance and the crime. Stoudmire, 261 Ga. 49 (1991).
JURY INSTRUCTIONS,
Aggravated Assault
ELROD, A99A0100; 5-13-99
Aggravated assault conviction reversed due to trial court’s erroneous recharge as to the elements of aggravated assault. The jury asked whether they could convict the defendant of aggravated assault if the gun never discharged. The trial court instructed the jury that "..if the [assault] places the victim in reasonable apprehension … it makes no difference if the weapon was loaded or could … be fired." Since the indictment specifically alleged a "shooting," it was improper to allow the jury to convict based on a "reasonable apprehension" assault. Hunley, 227 Ga. App. 234 (1997).
The trial judge was W. Ralph Hill Jr. of Walker Superior Court. The Appellant was represented by Amy A. Petulla of Rossville.
"WHAT’S THE DECISION" AUGUST, 1999
Carl Greenberg, Editor, State Cases
Comments and Questions: If you have any, please direct them to Carl at the Fulton County Conflict Defender, Inc. [email: carl@fccd.com]
Cases: Citations in the summaries are of authority relied on in the decisions.
90% in the shade: The Board of Pardons and Paroles adopted a 90% guideline, effective for convictions on or after January 1, 1998. Inmates serve 90% of the prison sentences imposed for convictions of the offenses listed below. Apparently, the Board will depart upward of the 90% guideline much more frequently than downward. Be aware of this when advising clients, and during plea negotiations and sentencing hearings. [Serious crimes subject to mandatory minimums, such as rape and armed robbery, are not part of the 90% guideline.]
Agg. Assault Cruelty to Children
Agg. Battery Enticing a Child for Indecent Purposes
Agg. Assault on Officer Feticide
Agg. Battery on Officer Hijacking a Motor Vehicle
Agg. Stalking Incest
Attempted Murder Involuntary Manslaughter
Attempted Rape Robbery
Burglary of a Residence Statutory Rape
Bus Hijacking Vehicular Homicide while DUI or Habitual Violator
Child Molestation Voluntary Manslaughter
VENUE
Bradley v State, Case No. A99A0013 (June 9, 1999)
The defendant’s DUI and traffic offense bench trial convictions were reversed because of the prosecution’s failure to prove venue. The officer named the roads on which the offenses happened, but did not specify the county. The officer was a state trooper, and so no inference could be made that he was acting within the territorial jurisdiction of a particular county. Although the state asserted that the trial judge was familiar with the location of the intersection, no judicial notice of the location was taken by the trial court on the record, nor did the parties have an opportunity to be heard on the issue. The Court of Appeals said that it was not authorized to take judicial notice to legitimize the judgment. Calloway, 227 Ga. App. 775 (1997).
The trial judge was Timothy C. Cramer of Spalding State Court. The Appellant was represented by Larkin M. Lee and Bentley C. Adams III of Zebulon.
DOUBLE JEOPARDY
Taylor v. State, Case No. A99A0710 (June 29, 1999)
The defendant was convicted of three offenses of DUI, and given consecutive sentences, based on evidence that he was driving under the influence of, at the same time, alcohol, cocaine and marijuana. In deciding that this was a violation of substantive double jeopardy rights, the Court of Appeals determined that the legislative intent in the DUI statute was not to punish for each substance. O.C.G.A. § 40-6-391(a) provides, inter alia, that "a person shall not drive while under the combined influence of alcohol and drugs." These amounted to improper multiple convictions and punishments for crimes arising from the same criminal conduct. Teal, 203 Ga. App. 440 (1992).
The trial judge was Clarence F. Seeliger of Dekalb Superior Court. The Appellant was represented by Billy L. Spruell and Paul McGee of Atlanta.
HEARSAY
Ledford v. State, Case No. A99A0735 (June 28, 1999)
The defendant was convicted for the offense of intentionally inhaling paint fumes, a substance containing toluene, in violation of O.C.G.A. §16-13-90, 91). The can of spray paint was put in evidence, its label listing toluene as an ingredient. The Court of Appeals held that this was hearsay, and that the necessity exception did not apply since the prosecution could have had the paint tested by the crime lab. Even when introduced without objection, hearsay lacks probative value to establish a fact. Curtis, 190 Ga. App. 173 (1989).
The trial judge was William T. Boyett of Whitfield Superior Court. The Appellant was represented by David L. McGuffy of Dalton.
MIRANDA
State v. Baker, Case No. A99A1474 (June 30, 1999)
The defendant made statements admitting that he owned the cocaine found at his uncle’s house. The trial court held that these statements were inadmissible because of a Miranda violation, and because the statements were involuntary. A police officer followed the defendant, but did not stop his car. When the defendant pulled into an alley, stopped, ran to the front of a house, and then walked towards the back he was stopped and other officers arrived. The owner of the house consented to a search. Cocaine was found behind boards nailed to the house. The officer immediately handcuffed the defendant, said that he knew the drugs belonged to him, said that the owner would be arrested along with the defendant and his brother (who had been in the car with him) unless he confessed. When another relative arrived, another officer began to pull out his revolver. The defendant admitted that the drugs were his. The officer asked the defendant to write out a statement, and the defendant agreed. Now the officer read the defendant his Miranda rights.
The trial court’s exclusion of the statements was appealed by the prosecution. The Court of Appeals held that the state had not met its burden of proving by a preponderance of the evidence that the confession was voluntary. Brooks, 244 Ga. 574 (1979). Further, the reading of the Miranda rights at the time they were read did not remove the taint of the written confession caused by the coerced oral statement. Clewis v. Texas, 386 U.S. 707 (1967); Livingston, 264 Ga. 402 (1994).
The trial judge was Harry J. Altman of Lowndes Superior Court. The Appellee was represented by Karla L. Walker of Valdosta.
SEARCH and SEIZURE
State v. Burns, Case No. A99A0285 (June 25, 1999)
The trial court’s finding that the defendant’s traffic stop was unjustified was affirmed on appeal. Three days after a purse-snatching, the police stopped the defendant in a car fitting the description ("older model yellow Monte Carlo") given of the car involved in the purse-snatching which had occurred two miles from the location of the stop. A police dog performed a free air sniff around the car, and alerted. Cocaine was found behind a vent. The Court found that the description of the car in this case was not sufficiently precise, especially given the delay between the crime and the stop, to justify the stop. Vansant, 264 Ga. 319 (1994).
The trial judge was Albert Pickett of Columbia Superior Court. The Appellee was represented by Raymond J. Doumar of Augusta.
LESSER OFFENSE
Shaw v. State, Case No. A99A0143 (June 15, 1999)
The defendant’s convictions for aggravated assault on police officers during a chase were reversed. Because there was evidence that the defendant had shot into the air, and not at the officers, his request for jury instructions on the lesser offense of reckless conduct was properly denied as to the offense of aggravated assault with a deadly weapon under O.C.G.A. §16-5-20(a)(2); but improperly denied as to the offense of aggravated assault with intent to injure under O.C.G.A. §16-5-20(a)(1). Since the record was unclear as to which type of aggravated assault the jury had convicted him of, the defendant was entitled to a new trial.
The trial judge was Robert P. Mallis of Dekalb Superior Court. The Appellant was represented by Gayle D. Bacon and Maryann F. Blend of Decatur.
WHAT’S THE DECISION SEPTEMBER, 1999
Carl Greenberg, Editor, State Cases
Comments and Questions: If you have any, please direct them to Carl at the Fulton County Conflict Defender, Inc. [email: carl@fccd.com]
Cases: Citations in the summaries are of authority relied on in the decisions.
He who laughs last …
Often, simply having the last argument to the jury can make all the difference. If your trial tactics include preserving your right to speak last to the jury [O.C.G.A. § 17-8-71; §24-9-20(c) (if the defense presents no evidence except the defendant’s own testimony, it has the right to open and conclude argument)], be aware of recent authority on what can lose you that right:
Williams v. State, 236 Ga. App. 351 (1999). If a co-defendant puts in evidence, you both lose last argument. [The co-defendant had tendered a statement of a witness in an attempt to impeach him.]
Kennebrew v. State, 267 Ga. 400 (1996). Whether or not evidence is formally tendered, if the jury is exposed to it [for example, the reading of a statement by a witness, or the playing of a tape, or the displaying of a photograph], final argument is lost. See, Aldridge v. State, A98A2012, March 24, 1999; Seavers v. State, 208 Ga. App. 711 (1993); Warnock v. State, 195 Ga. App. 537 (1990).
On the other hand:
Davis v. State, 235 Ga. App. 256 (1998): Although held to be harmless, it was error not to let the defense have last argument where counsel had simply read five sentences from a document in an impeachment attempt in the manner set out in O.C.G.A. § 24-9-83.
Dasher v. State, 233 Ga. App. 833 (1998): The trial judge told defense counsel that if he cross-examined the co-defendant he would lose the right to final argument. [Counsel, under protest, chose not to cross-examine.] The Court reversed, saying that regardless of what counsel had chosen to do, the error would have been harmful. Givens v. State, 264 Ga. 522 (1994) is cited: "The right to make final argument … is an important one, and harm is presumed when that right is erroneously denied."
Whitehead v. State, 232 Ga. App. 140 (1998): The trial court erred in requiring the defense to tender a document it was using in an impeachment attempt, and thus causing the defense to forfeit last argument. This was "presumptive harm."
RIGHT TO BE PRESENT AT TRIAL
Brooks v. State, Case No. S99A1014 (September 13, 1999)
The defendant was not present during two in-chambers conferences during which prospective jurors were struck and a Batson challenge resolved. These conferences were critical parts of the trial at which the defendant was entitled to be present. Art. I, Sec. I, Par. XII of the Georgia Constitution; Hanifa, 269 Ga. 797 (6) (1998); Goodroe, 224 Ga. App. 378 (1997). The record did not show that the defendant personally waived his right to be present, or that his attorney had waived his presence by express permission, or that the defendant subsequently acquiesced to the conferences having taken place in his absence. The Court reversed the conviction because of the infringement of this fundamental right of the defendant. Gilreath, 247 Ga. 814 (3) (1981); Locklin, 228 Ga. App. 696 (1997).
The trial judge was James H. Weeks of Dekalb Superior Court. The Appellant was represented by Gerard B. Kleinrock of Decatur.
RIGHT TO BE PRESENT AT TRIAL
Pennie v. State, Case No. S99A0553 (September 13, 1999)
In the absence of the defendant, but with counsel present, the trial court questioned a juror about a possible contact with a spectator. Defendant’s counsel later stated that he waived his client’s presence, but that waiver was not done in the defendant’s presence, and nothing else in the record showed that the defendant was aware of the juror questioning. The Court reversed the defendant’s murder conviction, holding that her right to be present at a substantive portion of her trial had been violated. Hanifa, 269 Ga. 797 (6) (1998); Perry, 216 Ga. App. 749 (1995).
The trial judge was Kenneth O. Nix of Cobb Superior Court. The Appellant was represented by Brian Steel of Atlanta.
ASSIGNMENT OF CASES
Cuzzort v. State, Case No. S99A1120 (September 13, 1999)
The defendant challenged the method of case assignments in the Lookout Mountain Judicial Circuit. In its decision of this interlocutory appeal, the Court held that the assigning of cases to the judges of the circuit by the District Attorney was a violation of Uniform Superior Court Rule 31.1 [which essentially mandates that any system of case assignments must assure that no person can choose the judge to whom a case is assigned]. The Court further held that it was an abuse of discretion to allow the District Attorney to call cases out of order from the calendar. O.C.G.A. §17-8-1 provides: " … [cases must] be called in [their] order … on the docket …" with certain exceptions in the discretion of the trial court. The Court held that reversal of the trial court’s denial of the defendant’s challenge was required regardless of the District Attorney’s unbiased manner in which he sought to move cases efficiently.
The trial judge was Ralph Van Pelt Jr. of Catoosa Superior Court. The Appellant was represented by Christopher A. Townley of Rossville.
SEARCH & SEIZURE
In the Interest of M.J.H., Case No. A99A0922 (September 10, 1999)
A juvenile and his friend were smoking marijuana in a pick-up truck which was parked, at 10:00 P.M., across two parking spaces in the lot of a public park. An officer saw the truck, decided to check it out, and activated his emergency lights. He approached the truck with his hand on his gun, and tapped on the window, which one of the occupants rolled down. The officer smelled the burning marijuana. A consent search turned up marijuana, and the juvenile and his friend were arrested for it. At a suppression hearing, the officer testified that he had seen nothing to support his concerns about vandalism or "turning tail spins" in the lot, that he was unsure whether the park’s hours were posted, and that the manner in which the truck was parked was not improper. He further testified that the defendant and his companion were not free to leave after he’d activated his lights. The Court affirmed the trial court’s grant of M.J.H.’s motion to suppress. Aranda, 226 Ga. App. 157 (1997); Attaway, 236 Ga. App. 307 (1999).
The trial judge was William L. Reilly of Pickens Juvenile Court. The Appellee was represented by H. Michael Bray of Canton.
JURY COMMUNICATION, RIGHT TO BE PRESENT, EX PARTE REQUEST
FOR FUNDS [DEATH PENALTY CASE]
Turpin, Warden v. Todd, Case No. S99A0431, S99X0449 (July 14, 1999)
The Court affirmed the habeas court’s order vacating the death sentence imposed in this case, based on improper bailiff’s communications with the jury while they deliberated on sentencing. Also, in deciding the defendant’s cross-appeal, it partially reversed the habeas court, remanding to it the issue of whether the defendant’s original appellate counsel should have raised the constitutionality of the trials court’s refusal to hold an ex parte hearing on the defense request for funds for an expert witness. On that issue, the Court directed that the habeas court apply the standard of review of appellate counsel effectiveness set out in Battles v. Chapman, 269 Ga. 702 (1998).
The habeas court’s factual findings were that the jury had spent nearly half their sentencing deliberations discussing the possibility of parole if the defendant was sentenced to life imprisonment. They decided to ask the judge about it since the instructions they had did not cover the issue. The foreman handed a note to a bailiff, who returned ten minutes later and told the jury to refer to the instructions they had been given. The jury believed that this response had come from the judge - but the bailiff had not actually brought their question to the attention of the judge. The jury had concluded that the defendant, if not sentenced to death, would be paroled in seven to ten years, and returned a verdict of death almost immediately after the bailiff spoke to them.
The Court found that this violated the defendant’s rights to have a jury deliberate free of outside influence, and to be present during material portions of his trial [including communications with the jury about their instructions]. Whitlock, 230 Ga. 700 (1973); Morris, 257 Ga. 781 (4) (1988).
The habeas judge was Shepherd L. Howell of Butts Superior Court. William L. Todd was represented by Stephen C. Bayliss, Jeffrey Ertel and Thomas H. Dunn of Atlanta; and an amicus brief was submitted on his behalf by Michael Mears of Atlanta.
SEARCH & SEIZURE
Howden v. State, Case No. A99A2157 (September 9, 1999)
The defendant worked late at his place of business, drinking while he worked. When he left in his van at about 10:00 P.M., an officer stopped him, detected the odor of alcohol, and arrested him for DUI. The officer testified at a suppression motion hearing that he was suspicious because the defendant left only minutes after the officer had pulled up to the area, because the defendant’s van had been backed up to one of the doors of the business, and because it was in an area known for criminal activity. The Court reversed the trial court’s denial of the motion to suppress, holding that under the totality of these circumstances, the investigative stop was not justified. Oboh, 217 Ga. App. 553 (1995).
The trial judge was William T. Boyett of Whitfield Superior Court. The Appellant was represented by James T. Ward of Dalton.
CROSS-EXAMINATION
Nealy [et. al., including Grant] v. State, Case No. A99A0808 (September 18, 1999)
The prosecution made a motion in limine that the defendants be precluded from cross-examining a State’s witness as to charges pending against him. The trial judge granted this motion. The Court reversed Grant’s armed robbery convictions for this violation of his Sixth Amendment confrontation rights. Hines, 249 Ga. 257 (1982).
[The legal newspaper in Fulton County headnotes the report of this case with the word "impeachment." This reflects a common misunderstanding. A witness can be impeached by showing that he has been convicted of crimes of moral turpitude. Asking him about pending charges is not for impeachment. Rather, it is to expose his possible motive for testifying (e.g., to curry favor with the State).]
The trial judge was Alice Bonner of Fulton Superior Court. Appellant Grant was represented by Suparna Malempati of Atlanta.
SEARCH & SEIZURE
McSwain, et. al. v. State, Case No. A99A1366 (September 15, 1999)
A State Patrol officer monitoring traffic on I-95 received a radioed lookout for a described car with four black males in it. The broadcast included names, and the license number, and stated that there was the possibility of some contraband in the trunk, but gave no other information. About an hour later, the officer saw a car fitting the description with four black males. He followed the car for a mile, and then pulled it over based solely on the broadcast. The driver said his license had been suspended. His eyes were bloodshot and glassy, and the odor of burnt marijuana emanated from his clothing. All four of the men consented to a search and, among other things, a pound and a half of cocaine was found in the trunk. The trial court’s denial of the motion to suppress was reversed, the Court saying that the broadcast lookout did not contain sufficient information to support any articulable suspicion of criminal activity to justify the stop. Tarwid, 184 Ga. App. 853 (1987).
The trial judge was A. Rahn III of McIntosh Superior Court. The Appellants were represented by George A. Waters of Richmond Hill.
JURY INSTRUCTIONS, IMPEACHMENT, GOOD CHARACTER
Sapp v. State, Case No. S99A0962 (September 13, 1999)
Convictions for murder, armed robbery, burglary, forgery, false imprisonment and firearms offenses were reversed because the trial court refused to give the defense’s request to charge on impeachment. The defense presented evidence that a State witness had prior convictions for several crimes of moral turpitude: theft, shoplifting, terroristic threats and giving a false name to police. The trial court plainly erred in refusing to give the impeachment instruction. The Court also found that the trial court had erred in refusing to give a requested charge on good character after the defense presented several witnesses who testified as to the defendant’s reputation for good character.
The trial judge was Loring A. Gray of Dougherty Superior Court. The Appellant was represented by David E. Perry of Albany.
JURY CHARGE, AGGRAVATED CHILD MOLESTATION
Skillern v. State, Case No. A99A1417 (August 27, 1999)
One of the counts in the indictment alleged that the defendant had committed the offense of aggravated child molestation by committing sodomy on the minor victim. The State presented evidence of that, but also presented evidence that the defendant had physically injured the child when he tried to penetrate her with his finger. Because the trial court charged the entire aggravated molestation code section [O.C.G.A. §16-6-4(c)], it was possible that the jury could have convicted the defendant for commission of the offense in a manner not alleged - that is, injuring the child during an act of molestation, rather than molestation by sodomy which was the manner alleged. The conviction on this count was reversed. Perguson, 221 Ga. App. 212 (1996).
The trial judge was Coy H. Roach of Cherokee Superior Court. The Appellant was represented by Wallace M. Rogers Jr. of Canton.
SEARCH & SEIZURE, OBSTRUCTING AN OFFICER
In the Interest of J.T., Case No. A99A2051 (August 30, 1999)
An officer drove his patrol car into an apartment complex known for drug activity. The defendant, a juvenile, was sitting on a bicycle talking to a female who was sitting on a car. The child pedals away, not obeying the officer’s command to stop. The officer chases but is unable to catch the child. A week later: the officer sees the child, who again pedals away, not obeying the officer’s order to stop, who again makes a futile attempt to catch the child. Another week later: the officer sees the child, and tries to sneak up on him. The child spots him, pedals away, doesn’t stop, officer can’t catch him. Finally, another few days later: the officer corners the child inside a restaurant, and grabs him, arresting him for obstruction for fleeing from him. The Court rejected the State’s argument that the officer had a lawful reason to stop the child the first time [for loitering in a drug area], finding that the officer had no articulable suspicion that the child was engaging in criminal activity. The Court reversed the child’s adjudication of delinquency. Barnes, 228 Ga, App. 44 (1997); Woodward, 219 Ga. App.329 (1995).
The trial judge was Gregory A. Adams of Dekalb Juvenile Court. The Appellant was represented by Marie F.M. Blue of Decatur.
MURDER, VOLUNTARY MANSLAUGHTER
Darden v. State, Case No. S99A0981 (September 13, 1999)
During a struggle, the defendant shot and killed the victim. A justification defense was raised. The jury found the defendant guilty of both felony murder [in that the death occurred as a result of an aggravated assault] and of voluntary manslaughter. The trial court sentenced the defendant for murder. The Supreme Court remanded the case for sentencing, holding that the jury’s finding of voluntary manslaughter necessarily meant that they found that the defendant had lacked "…the mens rea required to commit felony murder in that any malice … imputed from the underlying felony has been mitigated by the provocation which induced the … voluntary manslaughter." The defendant could be sentenced only for voluntary manslaughter.
The trial judge was F. Marion Cummings of Polk Superior Court. The Appellant was represented by Aldous D. McCrory of Rome.
BATTERED PERSON SYNDROME
EVIDENCE OF CULTURAL BACKGROUND OF DEFENDANT
Nguyen v. State, Case No. S99G0014 (September 20, 1999)
A person may suffer from the battered person syndrome if [s]he exhibits certain characteristics common to people who have been physically and psychologically abused for a long time by some dominating person in their life; and evidence of the syndrome may be relevant and admissible for consideration in a case involving a claim of self-defense. Mobley, 269 Ga. 738 (1998). In Nguyen, the defendant sought to introduce expert testimony about her Vietnamese religious beliefs, values and cultural traditions to support her defense of justification to the charges that she’d committed aggravated assault on her husband and step-daughter. The Supreme Court affirmed the Court of Appeals decision affirming the trial court’s exclusion of testimony that the defendant suffered from the syndrome [no evidence was proffered that others with the same cultural background in the same situation would have developed a belief similar to the defendant’s as to being in physical danger]. However, it disapproved the Court of Appeals’ opinion to the extent that it held that evidence of a defendant’s cultural background is never relevant.
The trial judge was L.A. McConnell Jr. of Bibb Superior Court. The Appellant was represented by Thomas W. Herman of Macon.
Here is your advance look at October's What's the Decision.
Again, this will be added to the searchable case and memo file on the F drive [get into the F drive, click on the Carl F Drive folder, click on the A Aachen research document.]
HOPMEETING next Weds. [Nov. 3] at 4:00. There will be a brief ceremony during which Chris will sign an "Uncle!" document and tender it to Carl to commemorate the victory of the New York Yankees over that local team.
WHAT’S THE DECISION OCTOBER, 1999
Carl Greenberg, Editor, State Cases
Comments and Questions: If you have any, please direct them to Carl at the Fulton County Conflict Defender, Inc. [email: carl@fccd.com]
Cases: Citations in the summaries are of authority relied on in the decisions.
Concealed message: Read the cases carefully to find a hidden message.
CROSS-EXAMINATION, BRUTON
Cunningham [and Bussey] v. State, Case Nos. A99A1060; A99A1310 (Sept. 20, 1999)
Convictions for aggravated sodomy and aggravated child molestation were reversed.
The State made a motion in limine to prevent Cunningham from making any mention in front of the jury about the victim’s civil lawsuit against him based on the facts of the alleged crimes. The trial court granted this motion. The Court held that the right to a thorough and sifting cross-examination includes the right to ask about a witness’ financial interest in the outcome of the case. [O.C.G.A. § 24-9-64: evidence as to the motives of a witness to testify are always relevant and admissible.] Spitzberg, 233 Ga. App. 848 (1998); Boggs, 195 Ga. App. 605 (1990).
Cunningham had given a statement which implicated his co-defendant, Bussey by name. The statement, as redacted, was allowed in evidence at their joint trial. The Court held that substituting the words "another guy" did not cure the Bruton problem. Gray v. Maryland, __ US __ (118 SC 1151, 140 LE2d 294 (1998); Richardson v. Marsh, 481 US 200 (1987); Bruton v. U.S., 391 US 123 (1968); Hanifa, 269 Ga. 797 (1998); Kesler, 215 Ga, App. 553 (1994).
The trial judge was James H. Weeks of Dekalb Superior Court. Appellant Cunningham was represented by Elliot A. Shoenthal of Decatur. Appellant Bussey was represented by James S. Lewis of Atlanta.
DOUBLE JEOPARDY
Hooker v. State, Case No. A99A2070 (September 23, 1999)
After an automobile accident, the defendant was issued four citations: two misdemeanors and two aggravated assaults [for ramming a truck with two occupants]. The citations were issued at the same time, and plainly related to the same incident. The Sheriff delivered the citations to the District Attorney, and told him that a felony charge was among the citations. The Sheriff then tried to help the defendant get his driver’s license back quickly and to save his job by advising him to go through an alcohol treatment program and to plead guilty to the misdemeanors in State Court; and he asked a secretary in the District Attorney’s office to send the misdemeanor citations to State Court. The Sheriff did not tell the State Court of the pending felony charges.
The defendant pled guilty to the misdemeanors as advised; but was subsequently indicted on them and on the aggravated assaults by the District Attorney. The defendant filed a plea of former jeopardy, which the trial court granted as to the misdemeanors, but denied as to the felonies. The Court of Appeals held that prosecution of the aggravated assaults was also barred since those charges arose out of the same conduct as the misdemeanors to which the defendant had pled, and all of the charges were known to the proper prosecuting officer. O.C.G.A. §16-1-7 (b); State v. McCrary, 253 Ga. 747 (1985). The Court distinguished Powe, 181 Ga. App. 429 (1987)[affirmed on cert., Powe, 257 Ga. 563 (1987) (citing Baker, 257 Ga. 567 (1987)], in which it was held to be unreasonable to impute knowledge of a prosecutor in one office to prosecutors in another office. In that case, though, it was a defense attorney who had manipulated the system, whereas the misguided efforts of the Sheriff here could not be held against this defendant.
The trial judge was Walter C. McMillan Jr. of Emanuel Superior Court. The Appellant was represented by Wilmer L. Salter Jr. and Jason A. Craig of Vidalia.
EVIDENCE IN AGGRAVATION OF PUNISHMENT
Beecher v. State, Case No. A99A1117 (September 29, 1999)
The State properly served notice to the defendant, prior to his first trial for arson, that it intended to present previous convictions at sentencing in support of an aggravation of punishment. O.C.G.A. §17-10-2. That trial ended in a mistrial. The State did not reserve the notice prior to the second trial, at which he was convicted. The Court vacated his sentence, and remanded to the trial court for re-sentencing, holding that the State had not given clear notice that the priors would be used at the second trial. Hewell, 238 Ga. 578 (1977).
The trial judge was David L. Cavender of Tattnall Superior Court. The Appellant was represented by Richard D. Phillips and Joseph C. Kitchings of Ludowici.
RIGHT TO COUNSEL
Martin v. State, Case No. A99A1343 (October 10, 1999)
On September 14, 1998, Martin’s child molestation case was called for trial. He said he wanted to represent himself, and asked how to subpoena witnesses. The trial court discussed with him the importance of having an attorney, explained the subpoena procedure, granted Martin a continuance, and advised him to apply for a public defender.
When the case was next called for trial, the trial court had Martin establish on the record, without an opportunity to explain, that he’d been given time to get an attorney, that he hadn’t qualified for the public defender, and that he’d been unable to hire any other attorney. The trial court asked him, "But you’re ready to go to trial, is that right?" Martin said he was.
Trial was held, and Martin was convicted.
The Court reversed, holding that there had not been a sufficient inquiry into the reasons Martin had been unable to hire an attorney. Lang, 226 Ga. App. 729 (7) (1997); Flanagan, 218 Ga. App. 598 (1995). That the public defender’s office had made a determination that he was ineligible for their services was insufficient. That was a determination that could not be delegated - a trial court must do that itself - and Martin had not been given an opportunity to explain his circumstances to the court. [Evidence taken at the motion for new trial clearly established Martin’s indigency at the time of trial.] Further, by not inquiring into Martin’s circumstances, the trial court had abrogated its discretion to appoint counsel even in non-indigent cases. Uniform Superior Court Rules 29.4 and 29.5; McQueen, 228 Ga. App. 732 (1997).
The trial judge was Ernest H. Woods III of Rabun Superior Court. The Appellant was represented by William B. Barker of Clayton.
SEARCH and SEIZURE, INFORMANT
Fiallo v. State, Case No. A99A1000 (October 6, 1999)
The affidavit which the narcotics agent used to support his request for a warrant to search the defendant’s home recited information from a confidential informant. However, the agent testified at the suppression hearing that this was the first time the informant had been used, and that therefore the agent did not consider him reliable. The Court reversed the conviction, holding that since the agent had corroborated nothing the informant said except where the defendant lived, there had been no probable cause to issue the warrant. Smith, 218 Ga. App. 12 (1995); Davis, 214 Ga. App. 36 (1994); Gary, 262 Ga. 573, 575 (1992). Further, the defendant’s subsequent statement should also have been suppressed as a fruit of the improper search. Arnold, 237 Ga. App. 857 (1999); Boatright, 225 Ga. App.181 (1997).
The trial judge was Frank D. Horkan of Lowndes Superior Court. The Appellant was represented by Ronald L. Beckstrom of Valdosta.
THEFT, VALUE
Denson v. State, Case No. A99A1865 (September 29, 1999)
The State proved that the defendant was guilty of theft by receiving stolen property [a flatbed trailer]; but the Court vacated the felony sentence, remanding for misdemeanor sentencing. Although the owner testified that he’d bought the trailer new for $850, that was insufficient to establish that it’s value was over $500 at the time of the theft. O.C.G.A. §§16-8-7; 16-8-12; Jackson, 267 Ga. 130 (1996); Baker, 234 Ga. App. 846 (1998). [The Court commended the State for its candor in acknowledging that a felony-level value had not been proven.] New York Yankees - October’s best!
The trial judge was William H. Isom of Clayton Superior Court. The Appellant was represented by Vincent C. Crawford of Decatur, and Thomas E. Stewart of McDonough.
FREE TRANSCRIPT
Kier v. State, Case No. A99A2343 (September 24, 1999)
The defendant’s first cocaine trial ended with a hung jury. The defendant, an indigent, timely requested [two weeks before retrial] a transcript of the first trial for possible use in impeaching the eyewitness, a narcotics agent. The trial court denied the request, saying that the defendant had not shown sufficient legal reason for it. The Court reversed the subsequent conviction, holding that the value of the transcript to the defendant, and the absence of other means by which to fulfill the function of the transcript established his entitlement to it, especially considering that the first jury had hung, apparently because of a reluctance to believe the witness. Britt v. North Carolina, 404 U.S. 226; Miller, 231 Ga. App. 869. The error in not granting the defendant a transcript was not harmless because the testimony of the witness at the first trial did, in fact, conflict with her testimony at the second trial.
The trial judge was Richard M. Cowart of Lowndes Superior Court. The Appellant was represented by Karla L. Walker of Valdosta.
SEARCH & SEIZURE, VISITOR
State v. Holmes, Case No. A99A1116 (October 10, 1999)
The police had a warrant to search the premises of a certain house and "any persons found therein or thereupon." As they ran toward the house, they saw the defendant outside it. He had his hands in his pockets, and he began to walk away. An officer, not in uniform, announced, "Police, search warrant." Another officer stopped the defendant, took his hands from his pockets, put him against a wall, and patted him down. The officer detected something that felt like a cookie. It was crack cocaine. The testimony at the suppression hearing was that the defendant was detained because of a general policy to conduct a pat down of everyone. The testimony was in conflict as to whether the defendant attempted to run.
The Court affirmed the trial court’s grant of the defendant’s motion to suppress. Regardless of the language in the warrant, the police were not authorized to search someone not named in the warrant without some independent justification such as for protection of the officers or to prevent disposal or concealment of items described in the warrant. Wallace, 131 Ga. App. 204 (1974). Since the defendant was outside, was not in proximity to anyone in the house, was walking away, did not appear to be armed, and was under constant observation so that he could not have disposed of anything without their knowledge, the search was illegal. O.C.G.A. § 17-5-28; Ledford, 233 Ga. App. 445 (1998); Bundy, 168 Ga. App. 90 (1983); Willis, 122 Ga. App. 455, 459 (1970).
The trial judge was John D. Allen of Muscogee Superior Court. The Appellee was represented by Michael E. Garner of Columbus.
MERGER
Green v. State, A99A1438 (October 15, 1999)
In separate counts, it was charged that the defendant "…did unlawfully have in his possession bolt cutters, a tool commonly used in the commission of burglary with intent to make use of them in a burglary…" and that he "…conspired to commit the crime of burglary of Wal-mart…and did go to the vicinity of Wal-mart with bolt cutters …" The Court held that since the same proof was needed to establish each offense, the offenses merged. The trial court erred in sentencing the defendant on each count. O.C.G.A. §§ 16-1-6; 16-1-7; Wells, 222 Ga. App. 587 (1996).
The trial judge was David T. Emerson of Douglas Superior Court. The Appellant was represented by Jennifer McLeod and James M. Money of Douglasville.
GUILTY PLEA
McDaniel v. State, S99P0874 (October 18, 1999)
In this death penalty case, the trial judge, during pre-trial discussions, told the defense that in the event the defendant entered a guilty plea, he would be reluctant to impose a death sentence, and was 90 percent certain that he would impose a sentence of life without parole. The defendant pled guilty, a bench sentencing trial was held, and the trial court imposed the death penalty. [The defendant was alleged to have killed both of his grandparents and his 10-year-old brother by shooting each of them in the head after he had used crack cocaine.] The Court held that what the trial court had done was to improperly participate in the plea negotiations rendering the guilty plea involuntary. Such insertion of the "force and majesty of the judiciary" is an improper influence. Uniform Superior Court Rule 33.5; Boykin v. Alabama, 395 U.S. 238 (1969); Skomer, 183 Ga. App. 308 (1987).
The trial judge was E. Byron Smith of Butts Superior Court. The Appellant was represented by Palmer C. Singleton III of Atlanta, and by W. Franklin Freeman Jr. and Michael A. Dillon of Forsyth. Amicus briefs on behalf of the Appellant were submitted by Jeffrey Ertel and Michael Mears of Atlanta.
HEARSAY
McWilliams v. State, S99A1098 (October 18, 1999)
After the defendant’s wife’s body was discovered in a creek, the defendant was asked to come to the police station and, according to an officer’s testimony, the defendant told him that two days earlier his wife had "just started again…cussing," and that she began kicking and knocking things over. He tried to stay out of her way, but she kept screaming and started hitting him. He choked her with both hands until she passed out. He wrapped her body in a blanket and dumped it into the creek. The trial court allowed the victim’s sister to testify that two weeks earlier the victim had told her that the beatings from the defendant had been getting worse.
The Court held that this testimony was not admissible under the necessity exception to the rule against hearsay because the prosecution had not established, as required, particular guarantees of trustworthiness of the witness. Although the evidence was sufficient to support the defendant’s murder conviction, the conviction was reversed because the improper testimony may have caused the jury to discount the defendant’s claims that the victim had been aggressive, and that he was therefore culpable only of voluntary manslaughter. Chapel, 270 Ga. 151 (1998). [See, O.C.G.A. §24-3-1(b).]
The trial judge was J. Carlisle Overstreet of Richmond Superior Court. The Appellant was represented by Peter D. Johnson of Augusta.
HEARSAY
Lindsey v. State, S99A1000 (October 18, 1999)
After a drive-by shooting, the police were talking to witnesses near the victim’s house. One of these witnesses testified, over defense objection, that while he was talking to the police someone in the crowd which had gathered yelled to him to tell the police that the defendant was the shooter. The Court held that this was not admissible under any hearsay exception, particularly neither as a necessity exception nor as an excited utterance. Although the evidence was otherwise sufficient to sustain the defendant’s conviction for murder, the Court said that because the improper testimony was so incriminating and not cumulative of other evidence, that it could not hold that it was highly probable that the testimony did not contribute to the verdict. The conviction was therefore reversed. O.C.G.A. §24-3-1(b); Teague, 252 Ga. 534 (1984).
The trial judge was Bernard J. Mulherin Sr. of Richmond Superior Court. The Appellant was represented by Joseph R. Neal Jr. of Augusta.
WHAT’S THE DECISION NOVEMBER, 1999
Carl Greenberg, Editor, State Cases
Comments and Questions: If you have any, please direct them to Carl at the Fulton County Conflict Defender, Inc. [email: carl@fccd.com]
Cases: Citations in the summaries are of authority relied on in the decisions.
Casting doubt on "I’m certain.": In October, the Department of Justice issued a publication containing guidelines for taking and preserving eyewitness evidence. They were prepared with input from experts and defense attorneys, as well as the usual suspects. One of the experts is Gary Wells, the Iowa State Univ. professor with the excellent website on this issue:
http://psych-server.iastate.edu/faculty/gwells/homepage.htm
The publication, including the guidelines, can be downloaded from the internet: http://www.ojp.usdoj.gov/nij/new.htm#pubs]
The guidelines are useful in two main ways: First, to help find weak spots in how identifications were made in a case. Second, to prepare cross-examinations of detectives and witnesses to demonstrate to jurors the formers’ lack of understanding of recognized principles of identification-evidence gathering as validated by the DOJ, and the reasons to question the reliability of the latters’ identifications.
There is some ingenuousness in the DOJ stuff. The guidelines on doing identification procedures are not much more than common-sense, and are not all that new, anyway; the Atlanta Police Dept. Field Manual, e.g., contains similar guidelines. Experts and the defense bar have for many years raised issues connected with the unreliability of eyewitness identification, regardless of how fairly an identification procedure was done. It’s only now, as DNA testing exonerates prisoner after prisoner, that the DOJ issues these guidelines.
Adherence to the procedures in the guidelines may, to some non-measurable extent, increase the reliability of identifications. But a harder problem is that human perception and memory work, and are affected, in ways not easily understood by John and Jane Juror. Hence, the expert-testimony issue: A case pending before the Georgia Supreme Court, which may be decided any day now, is Johnson, S99C0759. It’s a Fulton County case in which proffered eyewitness-expert testimony was disallowed over the argument that the testimony was necessary to educate the jury on what to consider when evaluating the reliability of an identification. Jennifer Foster of the Fulton County Public Defender’s Office did the appeal, and submitted a highly educational and persuasive brief.
There is good language in the DOJ publication and in U.S. v. Burrous, 934 F.Supp. 525 (E.D.N.Y. 1996) about how carefully an eyewitness’ identification must be evaluated, regardless of how certain the witness is.
EVIDENCE, re: use of drugs in reverse-sting operations
Dean v. Gober, S99A0691, S99X0692 (November 1, 1999)
Gober was arrested and charged with drug possession after buying methamphetamine from an undercover officer. [He was convicted in the criminal case.] He had brought a writ of mandamus against the Gwinnett County Police Department [Dean is the police chief] seeking an order that the police comply with O.C.G.A. §16-13-49(u)(1). That statute requires the destruction of any forfeited contraband which is dangerous to the public. The Court held that the drugs in Gober’s case were not subject to that requirement since the same statute exempts drugs which are evidence in a pending criminal case, but further held that the trial court’s order was correct insofar as it ordered the destruction of other forfeited drugs. Justices Carley and Hunstein dissented in part, raising the question of whether the majority opinion effectively bars reverse sting operations, and arguing that O.C.G.A. §16-13-35(c)(4) [allowing police to possess drugs while in the course of their official duties] should be read to allow police to use forfeited drugs for such sting operations. The case raises the possibility that the state legislature may clarify this in their next session.
[Possibly, in defense of a reverse sting prosecution, a motion to suppress could be made based on the use of drugs which by law should have been destroyed.]
The trial judge was Michael C. Clark of Gwinnett Superior Court. Gober was represented by Gregory W. Lancaster of Lawrenceville and Walter M. Britt and Deborah F. Weiss of Buford.
VOIR DIRE, re: excuse of juror for cause [officer]
Terrell v. State, S99P0584 (November 1, 1999)
In this death-penalty case, a prospective juror was a full-time military policeman, with arrest powers, with the Georgia National Guard. In denying the motion to excuse the juror for cause, the trial court said, "I think he can distinguish the difference between civil and military law." The Court noted that it is well-settled that full-time officers with arrest powers must be excused when challenged, and held that this error required reversal of the convictions. Hutcheson, 246 Ga. 13 (1980). Justice Hunstein dissented, saying that the record showed only that the juror was a readiness officer who’d been called to active duty six times in the last seven years, and that the rule in Hutcheson was being unjustifiably expanded to persons less connected with law enforcement than full-time police officers. Denison, 258 Ga. 690 (1988).
The trial judge was John M. Ott of Newton Superior Court. The Appellant was represented by John T. Strauss of Covington, and Tanya Greene of Atlanta.
RIGHT OF CONFRONTATION
Brooks v. State, S99A1263 (November 15, 1999)
The defendant and her brother were charged with murder. He refused to testify at her trial. His taped statement, though (which implicated his sister), was played for the jury. Although she had also given a taped confession, the Court reversed her conviction since the playing of the tape of her brother was a violation of her Sixth Amendment right of confrontation, and of O.C.G.A. §24-3-52, which provides that a confession of one joint offender made after the criminal enterprise is ended is admissible only against that offender. Livingston, 268 Ga. 205 (1997). The Court also dismissed the prosecution’s argument about the trustworthiness and necessity of the brother’s statement. Hanifa, 269 Ga. 797 (1998).
The trial judge was James F. Bass, Jr. of Chatham Superior Court. The Appellant was represented by Mark J. Nathan of Savannah.
GUILTY PLEA
Byrd v. Shaffer, S99A0934 (November 15, 1999)
The Court upheld the finding of the habeas court that the State did not show that the defendant’s guilty plea (to charges of terroristic threats and firearms offenses) was made knowingly and voluntarily. During the plea, the trial court did not inform Shaffer of the rights he would be waving, and Shaffer’s comments showed that he was not admitting guilt. The trial court erred in not inquiring further in light of those comments. At the habeas hearing, Shaffer testified that his attorney had not informed him of his rights (to the presumption of innocence, to confront witnesses, to remain silent or to testify, etc.). His attorney testified that it was his practice to inform clients of these rights. The Court held that the habeas court was authorized to resolve this conflict as it did, in favor of the defendant, and that it had correctly found that the State had not met its burden of showing a knowing and voluntary guilty plea. Bowers v. Moore, 266 Ga. 893 (1996). The Court distinguished Nash, 271 Ga. 281 (1999), where it had held that the initial burden of production is on a defendant who seeks to challenge a prior guilty plea which the State seeks to use to enhance punishment.
The habeas judge was John L. Parrot of Baldwin Superior Court. The Appellee was represented by Marcus C. Chamblee and Stephen D. Pereira of Roswell.
SENTENCING, FIRST OFFENDER
Fleming (and Burleson) v. State, S98G1795, S98G1900 (November 1, 1999)
These defendants, despite having prior convictions for serious violent felonies, were nevertheless entitled to have First Offender sentencing considered by the trial court. At the time of their sentencings [prior to the 1998 amendment of O.C.G.A. §17-10-6.1(b) - the serious violent felony statute] the plain language of that statute did not preclude such consideration under O.C.G.A. §42-8-60 [the First Offender statute]. The trial courts in each case essentially, and erroneously, determined that they had no authority to consider such sentencing. The Supreme Court, which had these cases on cert. from the Court of Appeals, reversed that Court’s decisions which had agreed with the position of the trial courts.
The trial judge in Fleming’s case was Ben J. Miller of Fayette Superior Court. Fleming was represented on appeal by Patricia A. Buttaro of Fayetteville. The trial judge in Burleson’s case was Thad W. Gibson of Lee Superior Court. Burleson was represented on appeal by Robert J. Pinnero of Albany.
AGGRAVATED SODOMY, AGGRAVATED CHILD MOLESTATION
Brewer v. State, S99G0864 (November 1, 1999)
The defendant was convicted of aggravated sodomy and aggravated child molestation based on the same conduct. The trial court merged the convictions and sentenced Brewer on the aggravated sodomy conviction. In light of its holding in State v. Collins, 270 Ga. 42 (1998), the Court held that, since there was no evidence that the act of sodomy had been committed by force, the aggravated sodomy conviction had to be reversed. "Force" means by physical force, or by threats of death or physical harm, or by mental coercion; and in this case, the victim specifically denied that the defendant did any of these things. However, the Court directed the Court of Appeals [from which the case had gone to the Supreme Court by cert.] to instruct the trial court to impose a sentence on the aggravated child molestation [after which Brewer would have the right to appeal that conviction].
The logic of all this is that O.C.G.A. §16-6-2 provides that aggravated sodomy is committed when the act is performed "with force and against the will." In Collins, a forcible rape case involving a child victim, the Court had refused to do away with the requirement of proving the element of force, although simply proving that the victim was under the age of consent was sufficient to prove the against-the-will element. However, like statutory rape, force is irrelevant under O.C.G.A.§16-6-4(c) [aggravated child molestation]. By definition, an act of sodomy on a child is aggravated child molestation.
The trial judge was Coy H. Temples of Whitfield Superior Court. The Appellant was represented by Michael R. McCarthy of Dalton.
JURY CHARGE, REASONABLE DOUBT
Coleman v. State, S99A1238 (November 1, 1999)
Although the Court did not reverse the murder, rape and aggravated sodomy convictions in this case, it "emphatically disapprov[ed]" a charge on reasonable doubt which includes language to the effect that such doubt "…does not mean a possibility that the defendant may be innocent…" Such language may suggest to the jury a higher degree of doubt than is constitutionally required; and the Court stated that "…continued use of [this language] in disregard of this opinion may result in the reversal of future convictions."
The trial judge was Isaac Jenrette of Fulton Superior Court. The Appellant was represented by Steven E. Phillips of Atlanta.
SENTENCING, re: consecutive sentences for possession of firearm during felony
Busch v. State, S99G0246 (November 1, 1999)
In a 4-3 cert. decision, the Court addressed the requirement in O.C.G.A. §16-11-106(b) that, upon conviction of possession-of-a-firearm-during-commission-of-a-felony, a five-year sentence be imposed to "run consecutively to any other sentence which the person has received." The defendant had been convicted of multiple counts of aggravated assault, armed robbery and the firearm possession offenses. In construing the statute, the Court said that it must look at the purpose of the statute, and "the old law, the evil, and the remedy," and must strictly construe the words of a criminal statute against the State. O.C.G.A. § 1-3-1(a); Hughes, 269 Ga. 819 (1998). Thus, contrary to the holding of the Court of Appeals, the trial court was deprived of sentencing discretion only insofar as a 106(b) sentence must be consecutive to the sentence on the underlying felony, not to all other sentences imposed in the case.
The trial judge was George F. Nunn Jr. of Houston Superior Court. The Appellant was represented by Elizabeth Lane of Macon and James C. Bonner Jr. of Atlanta.
EVIDENCE, re: lustful disposition
Simpson v. State, S99G0245 (November 1, 1999)
The Court upheld Simpson’s convictions for statutory rape and child molestation, finding that the record did not support a finding that certain sexually explicit letters were in fact introduced in evidence against him. [The letters were to his girlfriend and did not refer to the victim or young girls in general.] The Court, however, took the opportunity of this case, brought to it on cert. from the Court of Appeals, to "put forth a clear and cogent rule" in light of the unclear, unsettled law on this issue: "In a prosecution for a sexual offense, evidence of sexual paraphernalia found in the defendant’s possession is inadmissible unless it shows defendant’s lustful disposition toward the sexual activity with which he is charged or his bent of mind to engage in that activity. Under this rule, sexually explicit material cannot be introduced merely to show a defendant’s interest in sexual activity. It can only be admitted if it can be linked to the crime charged." Caldwell, 263 Ga. 560, (1993); King, 209 Ga. App. 529, (1993); Helton, 206 Ga. App. 215 (1992).
The trial judge was David E. Barrett of White Superior Court. The Appellant was represented by Carl S. Free of Cleveland and Mary C. Harris of Athens.
EVIDENCE, re: lustful disposition
Frazier v. State, A99A0880 (November 8, 1999)
The Court reversed Frazier’s convictions for child molestation, holding that the evidence of his sexual bent of mind was improperly allowed since it did not depict or refer to sexual contact with a child. [The evidence at issue was pornographic tapes and sex toys he used with his wife, a wedding night request to his wife that they participate in an adult group masturbation session, and a pre-wedding letter to his wife making explicit sexual requests.] Simpson, S99G0245 (November 1, 1999).
The trial judge was Linda Hunter of Dekalb Superior Court. The Appellant was represented by Virginia W. Tinkler of Decatur.
SEARCH & SEIZURE
Chinnis v. State, A99A1952 (October 22, 1999)
An officer saw the defendant, a white male, sitting in his truck with another white male at 2 A.M. in an African-American neighborhood, and a high-crime area, talking to an African-American who was leaning into the car. As the officer drove up, the African-American man walked away towards an apartment building. The officer stopped the defendant as he drove from the area, and he saw cocaine on the front seat. The Court held that the circumstances did not give the officer an objective basis for the stop, that the trial court erred in denying Chinnis’ motion to suppress, and it reversed the conviction. It did, however, find that Chinnis’ disobeying of the trial court’s repeated orders to stop audibly yawning, gesturing and talking during the trial supported the trial court’s holding him in contempt. Hughes, 269 Ga. 258 (1998); Vansant, 264 Ga. 319 (1994).
The trial judge was William H. Craig of Henry Superior Court. The Appellant was represented by Lloyd J. Matthews of Hampton.
RIGHT TO COUNSEL
Braswell v. State, A99A2218 (October 21, 1999)
The defendant, charged with deposit account fraud [involving bad checks to grocery stores], artlessly represented herself at a bench trial. The trial court had not asked her any questions about her need for counsel, or her readiness for trial, nor advised her of the dangers of proceeding pro se. She was convicted, and her argument at sentencing consisted of statements like "Dear God, please. Can I say something to my son? Oh, my God. I can’t believe this." The trial court sentenced her to four months in jail, followed by probation. The State argued that her waiver of counsel was shown by her signature on a lengthy, pre-printed form titled "Rights and Information Form." Apparently Braswell was illiterate, but the State asserted that her son had read the document to her. Holding that this was hardly enough to show that the trial judge had fulfilled his duty to determine whether the defendant had knowingly relinquished her right to counsel, the Court reversed the conviction. Clarke v. Zant, 247 Ga. 194 (1981); Hamilton, 233 Ga. App. 463 (1998); Burnett, 182 Ga. App. 539 (1987).
The trial judge was John D. Crosby of Decatur State Court. The Appellant was represented by Ronnie J. Lane of Donalsonville.
SEARCH & SEIZURE
State v. Sims, A99A1095 (October 18, 1999)
Officers had information that the damage to a high school playing field had been caused by a couple of people driving a "four-wheeler." They had no other specific information. About a mile from the school, the officers saw a four-wheeler in the defendant’s driveway. They approached the house, and entered it through a door leading to the basement. They "cleared" the basement, and then went upstairs, entering the home after opening a closed door. The defendant came downstairs in response to the officers’ announcement of themselves. One of them had drawn his gun. The defendant made inculpatory statements. The trial court granted his motion to suppress. The State appealed. The Court of Appeals affirmed the grant of the motion, the officers having had neither probable cause to search the home, nor exigent circumstances to enter it. Carranza, 266 Ga. 263 (1996).
The trial judge was Brenda Weaver of Pickens Superior Court. The Appellee was represented by Edwin Marger of Jasper.
SEARCH & SEIZURE
Threatt v. State, A99A1456 (November 1, 1999)
A concerned citizen reported that she saw the defendant driving very erratically, and had followed him to his apartment complex. An officer arrived, checked the tag which was registered to the defendant, and felt the hood of the car which was hot. The citizen pointed out the apartment into which the defendant had gone. The officer knocked on the door, and when a woman answered he saw a man inside fitting the description given by the citizen. The officer stepped inside the apartment. He had no warrant, nor had he been given consent to enter. Another officer was also present by this time. The Court held that the trial court erred in admitting evidence which was secured inside the apartment [that the defendant smelled of alcohol, that he initially denied drinking, that he admitted driving the car]. It was not improper for the officer to knock on the door, and after seeing the defendant the officer did have enough to form an articulable suspicion to support a brief Terry investigation. His entry into the apartment, however, could not be approved. The officers could have asked for permission to enter, or asked the defendant to step outside, or one of the officers could have gotten a warrant while the other stayed to make sure the defendant didn’t leave. Carranza, 266 Ga. 263 (1996); Hamrick, 198 Ga. App. 124 (1990).
Once the police did ask the defendant to step outside, their further observations of him, and his further statements were admissible. However, the Court reversed his DUI conviction since it could not find beyond a reasonable doubt that his wrongly admitted statements did not contribute to the verdict.
[Not affected by the warrantless entry issue was the defendant’s conviction of improper lane change, since that was supported by the testimony of the concerned citizen. But that conviction was reversed because the trial court gave inconsistent and confusing instructions to the jury as to the manner in which this offense could be committed.]
The trial judge was Maureen Gottfried of Muscogee State Court. The Appellant was represented by Melvin E. Cooper of Columbus.
WHAT’S THE DECISION December, 1999
Carl Greenberg, Editor, State Cases
Comments and Questions: If you have any, please direct them to Carl at the Fulton County Conflict Defender, Inc. [email: carl@fccd.com]
Cases: Citations in the summaries are of authority relied on in the decisions.
Online: "What’s the Decision" contents are on the GACDL and FCCD websites: www.gacdl.org // www.fccd.com
Holiday gift from the Court of Appeals: New Rules! Effective December 23, 1999. [A quick skimming of them revealed this welcome stocking-stuffer: no longer must the enumeration of errors be filed as an additional separate document - it’s sufficient to make it Part Two of the brief. (Rule 22b)]
The Rules are on the Web: http://www.state.ga.us/courts/appeals/carules.htm
EVIDENCE, re: use of drugs in reverse sting operations
Dean v Gober, S99A0691, S99X0692 (December 16, 1999)
This is the case, initially decided in November, which raised questions about the legality of reverse sting operations where the police use drugs which should have been destroyed. [Although holding that the drugs in Gober’s own case were not subject to destruction under the statute in question, the Court did partially affirm the trial court’s order requiring destruction of certain drugs in the possession of the Gwinnett County Police Department.]
In ruling on Gober's motion to reconsider its rejection of his cross-appeal, the Court revised its opinion to clarify the limited reach of the drug destruction statute [O.C.G.A. §16-13-49(u)]:
"The apparent impetus behind Gober's action, and the thrust of the motion for reconsideration he filed in the cross-appeal, is the elimination of "reverse stings" as a law enforcement tool. However, the underlying premise of his action, a reading of O.C.G.A.
§16-13-49(y) to provide that all seized controlled substances are summarily forfeited, is faulty. That statute provides for summary forfeiture of only a limited class of controlled substances: those contained in Schedule I of the Controlled Substances Act (see O.C.G.A. §16-13-25) and controlled substances whose owners are unknown. While the latter condition applied to drugs being held by the Gwinnett County Police Department in this case, it did so primarily because the state of the records maintained by the department rendered their owners unknown, as Dean [the police chief] admitted in his testimony. Controlled substances such as the methamphetamine Gober was convicted of possessing are not listed in Schedule I, so they are not summarily forfeited upon seizure so long as the owner is known. Since law enforcement officers are authorized by O.C.G.A. §16-13-35(c) (4) to possess controlled substances while acting in the course of their official duties, there is no prohibition in the Controlled Substances Act against the retention and legal use of seized controlled substances not listed in Schedule I so long as the owner of the drug is known and forfeiture proceedings have not been commenced. Thus, Gober's attempt to procure a ruling that reverse stings cannot be used because the drugs used in those operations cannot legally be maintained by law enforcement officers must fail."
Justices Carley and Hunstein again dissent, saying that the majority's opinion is an extreme and unreasonable statutory construction, and that there is no need to limit which drugs the police can use in reverse stings. They suggest that every police department keep good records as to the source of drugs it has so as to avoid the "unknown owner" problem raised by the majority decision.
[It does seem a bit much to have a forfeiture proceeding against already seized drugs which the "owner" can't lawfully possess anyway. In any event, a reverse sting case might be vulnerable, at least for now, to a motion to dismiss or to suppress based on the police having improperly used drugs which they should have destroyed, i.e.: Schedule I drugs, or drugs whose "ownership" is unknown. The burden would seem to be on the prosecution to show the provenance of the drugs.]
[Partial list of Schedule I substances: Heroin, LSD, Mescaline, Psilocybin, THC].
The trial judge was Michael C. Clark of Gwinnett Superior Court. Gober was represented by Gregory W. Lancaster of Lawrenceville and Walter M. Britt and Deborah F. Weiss of Buford.
JUVENILE PROCEDURE
In the Interest of S.P., Case No. A99A1554 (November 16, 1999)
This juvenile was found delinquent as to an aggravated assault [a "designated felony"]. The trial court failed to make the sufficiently specific written findings of fact needed to support such an adjudication. In a designated felony case O.C.G.A. § 15-11-37(b) requires that specific written findings be made as to five elements: 1] the needs and best interests of the juvenile, 2] the record and background of the juvenile, 3] the nature and circumstances of the offense, 4] the need for protection of the community, 5] the age and physical condition of the victim. The Court vacated the delinquency judgment, and remanded the case, directing the trial court to make such written findings.
The trial judge was H. Gibbs Flanders Jr. of Twiggs Juvenile Court. The Appellant was represented by Ralph N. Jackson of Dublin.
RAPE re: proof of force where victim is a child
Durham v. State, Case No. A99A1211 (November 19, 1999)
The defendant was convicted of two counts of statutory rape and one count of rape involving a 15-year-old victim. The Court reversed the rape conviction because the trial court erroneously instructed the jury that a rape is forcible as a matter of law where the victim is under the age of sixteen. Regardless of the age of the victim the state must prove the essential element of force in a rape [as distinguished from statutory rape] as a factual matter. Brewer, S98G0864 (November 1, 1999); State v. Collins, 270 Ga. 42 (1998).
The trial judge was Jon B. Wood of Walker Superior Court. The Appellant was represented by Charles G. Wright Jr. of Chattanooga, Tenn.
SEARCH & SEIZURE
Kazeem v. State, Case No. A99A1698 (November 18, 1999)
A bank manager who observed Kazeem and his co-defendant Aramolate suspected that they were casing the bank, and she called the police. The defendants were stopped a few minutes later near the bank by two officers. A search of their car turned up a stolen credit card and a forged driver’s license. The defendants were convicted of those offenses.
The two officers who made the stop did not testify at the motion to suppress those items from evidence. Why they didn’t testify was not explained. Other officers testified that the defendants were not free to leave after the stop, but they could not testify as to what information the initial officers had when they made the stop, nor could they relate what details may have been in the radio broadcast as to the suspicious persons/vehicle.
Although the bank manager testified at trial as to the specific actions of the defendants which caused her to be suspicious [one of them came in and picked up a lot of brochures without looking at them, instead watching employees, customers and security cameras; they drove away and came back, and the other defendant came in and asked about branch locations] her calls to the police were not as detailed. Also, even though other officers did have some detailed information, it was not shown that this information was relayed to the first two officers before the stop.
While a detaining officer is entitled to rely on information provided by other officers to form a particularized and objective basis for a stop, there was no evidence as to what information the initial officers had, not even whether they had heard the radio broadcast. The Court held that the prosecution had not met its burden of demonstrating a lawful stop, and reversed the convictions. State v. Holler, 224 Ga. App. 66 (1996); Oboh, 217 Ga. App. 553 (1995); Tarwid, 184 Ga. App. 853 (1987).
The trial judge was S. Lark Ingram of Cobb Superior Court. The Appellants were represented by H. Glenn Fogle Jr. of Atlanta.
SEARCH & SEIZURE
Migliore v. The State ex. rel. Cheney, Case No. A99A1045 (November 15, 1999)
Holding that the officer did not have cause to expand his traffic investigation to a drug investigation, the Court reversed the $41,000 forfeiture judgment against Migliore.
An officer saw Migliore’s car weaving as he drove south on I-95 with a passenger. The officer stopped him. Migliore told the officer he’d been driving from South Carolina and was tired. He showed the officer a Florida driver’s license and a car rental contract showing a William Moore as the renter. Migliore told the officer that Moore was his employer and had loaned him the car to drive home to Florida. The passenger, Tootle, told the officer she did not know who rented the car. The officer asked them how long they’d been in South Carolina, and what their relationship was. Migliore said he’d been there working and vacationing for three weeks. Tootle said she’d been there for three days. Migliore said Tootle was his girlfriend. Tootle said they were friends. The officer ran Migliore’s license which came back valid. The officer deployed his drug dog, Nora. Nora alerted, and the officer placed her inside Migliore’s car. Drugs and almost $41,000 were found. At trial, the officer testified that he had "walk[ed] the [dog]" because Migliore and Tootle had appeared nervous, and because their statements didn’t match.
The Court found that the trial court erred in deciding that the statements and behavior of Migliore and Tootle, and Nora’s alerts gave the officer probable cause for the search. The Court said that the statements were not meaningfully inconsistent, and that Migliore’s and Tootle’s apparently "different perceptions of the nature of their relationship" was not an uncommon thing. The Court compares a number of cases in analyzing whether the circumstances here justified the officer in deploying Nora. State v. Blair, A99A0799 (July 28, 1999); Simmons, 223 Ga. App. 781 (1996); Smith, 216 Ga. App. 453 (1995). The Court notes that a forfeiture action is quasi-criminal in nature, and that the exclusionary rule applies. Pitts, 207 Ga. App. 606 (1993).
The trial judge was A. Rahn III of Liberty Superior Court. The Appellant was represented by Richard D. Phillips and Joseph C. Kitchings of Ludowici.
Return to FCCD Homepage or INFEX Homepage