By Scott Key, skey@sexton-morris.com

 
Financial Transaction Card Theft Statute is Unconstitutional

Mohamed v. State, S03A0083

The Court declared O.C.G.A. Section 16-9-31(d) to be unconstitutional because it shifts the burden to the defense to prove his innocence. The relevant language is as follows: "When a person has in his possession or under his control two or more financial transaction cards issued in the names of persons other than members of his immediate family or without the consent of the cardholder, such possession shall be prima-facie evidence that the financial transaction cards have been obtained in violation of subsection (a) of this Code section."



posted by Scott at 6:39 PM

 
Motion to Suppress Properly Granted; Demurrer Properly Granted

State v. Langlands, S03A0162

The superior court properly granted appellee's motion to suppress his confession. Appellee requested an attorney during his interrogation. The police continued to talk to him, saying that they "really needed to talk" to the attorney when one was appointed to "get his side of the story." Appellee then gave a statement.

Secondly, the Court properly granted appellee's demurrer to two counts of possession of a firearm by a convicted felon. He was convicted of a "first-degree" misdemeanor charge in Penn. that was punishable by five years in prison. Since he was not on notice that he was a felon in Georgia, he could not be convicted of an offense with a predicate element being the status of a felon in Georgia.




posted by Scott at 6:34 PM

 
The State Cannot use a Prior Conviction in Sentencing unless the Defendant was Represented by Counsel when the Conviction was Entered

Thompson v. State (on Cert.), S02G1882

The Supreme Court of Georgia held that, before the State can introduce any prior convictions in aggravation of sentencing, the State must prove that the defendant either had counsel or was informed of his right to counsel. In this case, the State conceded that the Petitioner did not have counsel when he entered his three prior pleas. Hence, the Court of Appeals should have reversed and remanded the case for sentencing.


posted by Scott at 6:11 PM

 
A Very Interesting Dissent

Jackson v. State, S03A0507

The Supreme Court affirmed, without opinion, the Fulton County Superior Court's decision to cut Terry Jackson's court-appointed fee for representation on a malice murder trial from $40,000 to $10,000 ($18.55 per hour). Justice Fletcher dissented, reasoning that "The policy of this State is to 'provide the constitutional guarantees of the right to counsel . . . to all of its citizens in criminal cases." Justice Fletcher reasoned that he had no record to review to determine whether the trial court abused its discretion.


posted by Scott at 5:42 PM

 
Court Properly Refused to Charge on Accident

Griffin v. State, A03A1397

The appellant challenged the court's refusal to charge the jury on accident. The court affirmed reasoning that, since the defense never admitted to the charges, the appellant was not entitled to a defense on accident.

posted by Scott at 5:28 PM

 
It is Not Plain Error for an Expert to Bolster a Witness's Credibility

Horne v. State, A03A0546

The trial counsel allowed the State's expert to testify that a the victim was telling the truth and that her version was not consistent with a lie. Appellant asked for review under the plain error standard. The Court declined to review under the plain error standard, reasoning that it would only do so in "exceptional circumstances." The Court also noted that it will not limit the plain error rule to death penalty cases, as the Supreme Court of Georgia does.
posted by Scott at 3:29 PM

 
State Could use First Offender "Conviction" in Sentencing Hearing

Villegas v. State, A03A1297

The trial court used appellant's first offender plea to aggravate his punishment. However, because the act leading to the charge was evidence of bad character, the Court could properly consider the first offender charge.
posted by Scott at 2:21 PM

 
Counsel was Effective in Spite of Taking Expert Witness Money and Buying Lake Property

Caudell v. State, A03A0582

Caudell payed a $10,000 fee to hire a forensic expert. He also said that he needed the money to buy lake property and that, if he didn't hire an expert, he would refund the $10,000 plus an additional $1,000. The attorney admitted that he never had a written fee agreement and that he never put the fee into escrow.

The Court held, "although Caudell may have demonstrated exreme improprieties with the fee arrangement, which may have been highly improper, without more, an improper fee agreement does not constitute ineffectiveness of trial counsel."
posted by Scott at 2:13 PM

 
Judge Properly Refused to Accept Verdict

Easley v. State, A03A0674

Appellant was convicted of possession of a firearm during commission of a crime and aggravated assault. The jury initially came back with a verdict of guilty of aggravated assault, possession of a firearm, and involuntary manslaughter. The judge refused to accept the verdict and sent the jurors back to deliberate. The jurors came back again with a conviction of aggravated assault and a not guilty verdict of involuntary manslaughter.

The Court of Appeals upheld the verdict and reasoned that the trial court did the right thing when it instructed the jurors to render a consistent verdict.

Does this decision re-institute the inconsistent verdict rule?

Court’s Decision to Dismiss a Case Overturned

State v. Perry, A03A1020

Appellee was charged with disrupting a school function, criminal trespass, and affray. At the arraignment, the defendant read a letter from the school board requesting that the case be dismissed. Over the State’s objection, the judge dismissed the case, reasoning that it had gone far enough.

The State appealed, and the court reversed the lower court. In so doing, it reasoned that the State had the right to go forward on its case if it so desired and should not be prevented from doing so simply because the judge thought that the prosecution should not go forward.

posted by Scott at 9:26 AM

 
Lower Court Properly Dealt with Juror Misconduct Issue

Wilkins v. State, A03A1360

Appellant challenged the lower court’s failure to dismiss jurors for misconduct after they were overheard discussing the “a recent Flash Foods Convenience Store.” The case involved the robbery of a Flash Foods convenience store. The Court determined that the issue was not one of juror misconduct, since the jury had not been sworn. The proper motion would have been a “motion for removal and replacement of individual jurors.”

However, the issue was within the discretion of the trial court. Further, “when misconduct is shown, prejudice is presumed and the State has the burden of proving beyond a reasonable doubt that no harm occurred, or the juror should be removed.” Further, the misconduct has to be so prejudicial that “the verdict is deemed inherently lacking in due process.” Since the jurors were questioned and answered that they were neither biased nor were they discussing the case, the judge did not abuse his discretion.

The State had no Right to Enter the Home and Search the Home for Drugs

State v. Schwartz, A03A0163

The police had a warrant to pick up Charles Walker for Aggravated Stalking. Before they entered the home, an officer peeped into the window and saw a female smoking what he believed to be marijuana. The officer at the window informed the officer at the door what he saw. The officer knocked but did not identify himself. A male opened the door and stepped outside where he closed the door behind him. The officer asked whether Walker was at the home, and the resident said that he did not live there. The resident refused to allow the officer into the home three times. After the officers insisted, they were allowed into the home. They learned that the suspect was not home. They then told the female resident what they saw through the window, and she gave the drugs to them.

The Court reasoned that the search violated the appellants’ fourth amendment rights. The arrest warrant did not empower them to search the home, and the warrant did not give the police the right to enter the home without knocking. Furthermore, they did not view the inside of the home from a place where they were entitled to be (the house sits 100 feet from the road, and the activity could not be seen from a public vantage point). The warrant did not allow them to enter to search for someone who did not reside there.

Since the suspect was wanted for a non-violent crime, the police had no safety reason to peek in the window before knocking and entering the home.

Further, no exigent circumstances justified the search since the State produced so evidence that the police could even see into the home.

Severance of Defendants

Moore v. State, A03A0405

Appellant argued that the lower court erroneously denied his motion to sever. However, the severance issue is reviewed on an abuse of discretion standard of review. The appellant had to prove three factors: (1) the number of defendants created confusion as to the law and evidence to be applied to each; (2) a danger existed that evidence admissible against one defendant might be considered against the other notwithstanding instructions to the contrary; (3) the defenses are antagonistic to each other or each other’s rights.

Moore failed under this test, and the court affirmed the lower court’s decision.

Statement was Admissible under the Necessity Exception, Judge Need not Rule on the Admissibility of Specific Acts of Violence by the Victim Before Trial

Scott v. State, A03A0468

Appellant challenged the Court’s decision not to rule on the Rule 31.1 admissibility of specific acts of violence by the victim. Though the preferred practice would be a pre-trial ruling, the appellant was unable to show harm from the court’s ruling pre-trial.

The Court held that trial counsel was not ineffective for failing to object to evidence that was admitted under the necessity exception to the hearsay rule. Since the statement would have been admissible over objection anyway, there was no error (the witness was unavailable, the statement was reliable because it was made pursuant to a police investigation, and the statement was necessary).

State Court Judge Cannot Sentence a Defendant to 12 months in a Probation Detention Center

Anderson v. State, A03A0668

The State court judge sentence appellant to serve 365 days in a State Probation Detention Center. However, O.C.G.A. Section 42-8-35.4 provides that a person can only be sentenced to a probation detention center if convicted to a felony and sentenced to a period of not less than one year on probation or who has already been sentenced to probation on a forcible misdemeanor or misdemeanor of a high and aggravated nature.

Since Anderson fit neither category, the Court could not legally sentence him to a year in the detention center.

posted by Scott at 5:10 PM

 
He Who Does the Search Bears the Burden

Burrell v. State, A03A0386

Appellant challenged the search that revealed that he was in possession of weapons. On appeal, he alleged that the State never presented sufficient evidence to show that the search and seizure were lawful. More specifically, the officer who initiated the encounter with him was not called to testify. The State argued that the appellant should have secured the officer's attendance at teh hearing "to ensure the trial court received what he considered pertinent information." However, the Court held that the State had the burden to secure any witness necessary to meet the State's burden.

The Court reversed the finding on the motion to suppress.

7 years is too Long to Hold a Motion for New Trial

Roebuck v. State, A03A1100

The issues on appeal were unremarkeable. What is interesting is that the Court scolded the lower court because "it took far too long in this case for the trial court to consider Roebuck's motion for new trial." In fact, it took seven years!
posted by Scott at 11:10 PM

 
A Possible Distinction from the Hanson, Gibbons, Faulkner Line of Cases

Anderson v. State, A03A0420

Appellant challenged the lower court’s denial of his motion to suppress evidence used to convict him for Possession of a Firearm by a Convicted Felon.

The officer stopped the car because the front-seat passenger was not wearing a seatbelt. He had the appellant (driver) step out of the car and asked him about his travel itinerary. He then allowed him to return to the car before asking the passenger to step out and asking him about their itinerary. The passenger gave a completely conflicting story.

He issued the passenger a warning and told him that both were free to go.

Based upon the conflicting stories and the nervousness of both driver and passenger, the officer asked the driver for consent to search. Pursuant to the search, the officer found the firearm and an “imitation controlled substance.”

The Court affirmed the denial of the motion to suppress, reasoning that the officer had reasonable suspicion to continue the traffic after he issued the warning to the passenger because the nervousness and the conflicting stories was reasonable suspicion to continue the detention after the completion of the traffic investigation. Furthermore, the fact that the officer may have thought that the two were free to leave did not mean that they were not detained. The relevant question, according to the Court, is whether a reasonable person in their position would have felt free to leave under the circumstances.

No Character Evidence Introduced; Counsel was Effective

Browne v. State, A03A0262

Appellant challenged the admission of a statement from the officer that, to conduct a photo line-up, he decided not to use an older photo that he had of him. Appellant objected, reasoning that the testimony that the officer had an old photo of him suggested that he had a prior conviction. The Court reasoned that the testimony suggested no such thing (perhaps the officer also ran a modeling agency?)

He also challenged trial counsel’s calling of four alibi witnesses who gave conflicting stories at trial. Since counsel had interviewed them and did not know that they would give conflicting stories, his decision to call them was not ineffective assistance of counsel.

Look Out: They Can Get You for Golf Cart DUI!

Coker v. State, A03A0201

Appellant was found guilty of Driving with a Suspended License and DUI for having a BAC of .14 while driving his golf cart in Peachtree City. He challenged the Suspended License conviction, arguing that a local ordinance allowed people to drive without a license on the public roads in Peachtree City. The Court held that Georgia law pre-empted the local ordinance and actually made it illegal to drive the golf cart on the roads without a license.

Maybe there should have been a requirement that he yell fore while driving after the 6th beer.

GBI Crime Lab Accreditation; Severance

Thrasher v. State, A03A0289

Appellant challenged admission of DNA results against him because the certificate of accreditation for the crime lab did not bear signatures. The Court ruled that such an issue went to weight of DNA results and not to admissibility.

He also challenged the court’s refusal to sever one of the burglary offenses. However, joinder was proper because the offense was part of “a series of criminal acts closely connected by geography, time, and manner so as to constitute a scheme or plan of criminal conduct.” Since this burglary was part of a continuing series of acts, it was properly joined to the other offenses.

posted by Scott at 7:51 AM

 
DUI Reversed Because Suspect not Afforded the Right to Independent Test
Johnson v. State, A03A1486

Appellant was charged with DUI and appealed the admission of his breath test result. The evidence showed that the officer read implied consent warnings to him. When he asked appellant if he would submit to a state-administered breath test, appellant responded that he wanted a urine test. While on the scene, he later asked the officer “When can I take my chemical test?”

The lower court determined that the appellant waived his right to an independent test by failing to request one affirmatively. The Court found, however, that appellant’s statements could reasonably be construed as a request for an independent test. Hence, under O.C.G.A. Section 40-5-67.1, the Court should have suppressed the State’s test result. The Court reasoned that the DUI statute should not set up technical pitfalls for a person who honestly requests an independent test. Further, since the question on the implied consent card does not ask if the suspect wants an independent test, trial courts should not infer from the answer a waiver of the right to an independent test.

The Court also held that it was improper to charge the jury that they could infer intoxication, since the BAC level should never have been admitted in the first place.


Confession not Induced by Hope of Benefit

Chandler v. State, A03A1495

Appellant appealed his conviction for child molestation. He argued that his confession was induced by the hope of benefit. After he confessed to sodomizing two minor males, the cops asked him what he wanted to see happen to him. He told them that he should not go to jail. The officers then asked why he thought jail was not a place that he should go.

The Court found that the officers had this conversation with appellant after he had confessed. Furthermore, they never actually promised him anything. Hence, the confession was, by a preponderance of the evidence admissible.

posted by Scott at 9:58 PM

 
A Re-Entry to Test Substance in Plain View to See if it is Drugs is Not a Search

Miller v. State, A03A0913

The SWAT team came into a house in response to a "shots fired" call. They found a pile of money and a substance on the kitchen counter that appeared to be crack cocaine. An officer returned to his car to get his test kit and tested the substance before determining that it was, in fact, crack cocaine.

The Court held that the re-entry to test the substance did not require a search warrant. The act of picking up the suspected crack to test it did not involve any further invasion into appellant's privacy because the substance had already been seen in plain view.
posted by Scott at 5:13 PM

 
You've Got to Know When to Fold Em . . .

Hester v. State, A03A0738

Appellant challenged the fact that his attorney never warned him of the range of possible punishment before going to trial. The record showed that appellant's GCIC printout was inaccurate and did not show his prior conviction for possession of cocaine with intent to distribute. When the prosecutor discovered the error in the middle of trial, the defendant was offered again the original deal. The defendant thought he would prevail and rejected the offer. On appeal, he said that he never knew that he could receive a life sentence.

For use of a prior conviction in aggravation of sentencing, the State had the burden of giving the defendant clear notice of all previous convictions it plans to use "to allow a defendant to examine the record to determine if the convictions are in fact his, if he was represented by counsel, and any other defect which would render such documents inadmissible."

The notice given was sufficient.


posted by Scott at 5:07 PM

 
Failure to Locate Disinterested Alibi Witness was Ineffective Assistance of Counsel

Tenorio v. State, A03A0656

Trial counsel employed a private investigator to look for witnesses who could establish that appellant was at work in Tifton instead of in Gwinnett County robbing a store. The investigator billed the attorney but never went to look for witnesses. Since finding witnesses was ultimately the trial attorney's responsibility, the failure to locate witnesses who had no relationship with appellant was ineffective assistance of counsel.

Further, given the "underwhelming" evidence presented by the State, the alibi defense was particularly crucial. Hence, the failure to investigate likely prejudiced the outcome of the entire trial.


posted by Scott at 4:58 PM

 
Molestation from 200 Feet Away

Rainey v. State, A03A0517

The victim of a child molestation was on a school bus. Appellant was in his house, nude from the waist down, and appeared to be masturbating. The victim never saw his penis and never even met the appellant. Nevertheless, the Court found that there was sufficient evidence to convict him of child molestation.

Further, the Court held that it was proper to deny the request for an instruction of the lesser included offense of public indecency, reasnoning that his alibi defense rendered the charge improper, since he never admitted that he was present.
posted by Scott at 4:47 PM

 
Good Discussion of Requests to Charge

Stewart v. State, A03A0414

Appellant challenged his conviction for Aggravated Assault alleging that the Court improperly limited his voir dire. He also challenged jury charges that the Court gave.

On the voir dire issue, the Court prevented him from asking follow-up questions after asking jurors if they knew anyone who had ever raised the issue of self-defense. The Court held that the Court did not abuse its discretion when it prevented the appellant from asking follow up questions, reasoning that "there is often a fine line between asking potential jurors how they would decide a case and questions that merely seek to explore bias or prejudice."

On the request to charge issue, the Court held that the charge was a correct statement of the law, though it did not come from the Pattern Charge. However, the reasoning had some interesting obiter dicta. Specifically, "It is a well-settled principle that not every quotation from a case is appropriate for a jury charge" Further, a requested jury charge should be given "only where it embraces a correct and complete principle of law adjusted to the facts and which is not otherwise included in the general instructions given."

posted by Scott at 4:39 PM

 
The FUBU Got Him

Williams v. State, A03A0015

Appellant challenged the sufficiency of evidence tying him to drugs found in an abandoned apartment. The police, pursuant to a warrant, entered the apartment where they found $1200 in cash, 28 grams of cocaine, 6.98 grams of heroin, 65 baggies.

Unfortunately for appellant, they also found a property receipt bearing his name, various photos of Williams, and a red and black FUBU sweater.

Two days later, police arrested Williams across the street from the same apartmen wearing the same red and black FUBU sweater.

The Court found that there was sufficient evidence to link him to the drugs.



posted by Scott at 4:23 PM