Georgia Cases Daily

2003-07-01T18:39:00.000-04:00

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."

2003-07-01T18:34:00.000-04:00

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.

2003-07-01T18:11:00.000-04:00

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.

2003-07-01T17:42:00.000-04:00

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.

2003-07-01T17:28:00.000-04:00

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.

2003-06-30T15:29:00.000-04:00

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.

2003-06-30T14:21:00.000-04:00

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.

2003-06-30T14:13:00.000-04:00

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."

2003-06-26T09:26:00.000-04:00

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.

2003-06-23T17:10:00.000-04:00

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.

2003-06-16T23:10:00.000-04:00

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!

2003-06-14T07:51:00.000-04:00

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.

2003-06-12T21:58:00.000-04:00

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.

2003-06-12T17:13:00.000-04:00

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.

2003-06-12T17:07:00.000-04:00

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.

2003-06-12T16:58:00.000-04:00

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.

2003-06-12T16:47:00.000-04:00

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.

2003-06-12T16:39:00.000-04:00

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."

2003-06-12T16:23:00.000-04:00

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.

2003-06-10T07:16:00.000-04:00

GCIC Not Necessarily Reliable or Accurate

Grooms v. State, A03A0244

Appellant challenged his conviction for aggravated child molestation. He first challenged the sufficiency of evidence against him at trial. The sole evidence of molestation was the 11-year-old victim’s testimony. The Court found that a single witness was enough to substantiate a claimed fact.

The Court also held that his custodial statements were admissible because he blurted them out while the officer was reading Miranda warnings to him.

Finally, the Court rejected the appellant’s ineffective assistance of counsel claim, reasoning that trial counsel properly decided not to call the alibi witness because he believed that the alibi witness’s testimony might by perjured. Secondly, the Court found sound trial strategy to trial counsel’s decision to admit the interview tape of the child victim because he wanted to use the tape to impeach the victim on dates. The decision not to get jail phone records to impeach the mother’s testimony that she had not called the appellant in jail did not prejudice the trial’s outcome.

The most bizarre of findings was that counsel was not ineffective for failure to impeach the victim’s mother’s criminal history, reasoning that the GCIC was not reliable.

Evidence Sufficient to Convict for Affray

Watson v. State, A03A0769

The Court held that evidence was sufficient to prove appellant guilty of affray and that it was not error to charge on self-defense. However, absent a written request to charge that if either was the aggressor of the other and either was defending herself, that it was impossible to convict either of affray, the Court had no record to review.

The appellant challenged the array but presented no record for the Court to review.

Motion to Suppress Properly Denied – Go Dawgs!

Tucker v. State, A03A1463

The investigation in this case began as the narcotic squad suspected drug activity at the UGA campus (“I’m shocked, shocked to find gambling in Casablanca.”). The police arrested an individual on campus in possession of a large amount of drugs. He became a CI and made a cell phone call to his dealer and arranged a drug transaction. A detective listened in (but did not tape) the phone call. The detective drove to appellant’s house and watched what happened. When appellant left his apartment, apparently to meet the CI, the detective became scared that appellant recognized him. The detective approached appellant, and appellant shoved him. The detective patted him down and found drugs on him. He then got consent to search the appellant’s house where more drugs were found.

The Court found that the detective had probable cause for the warrantless search because he had information that the appellant would possess drugs and because the detective corroborated the CI’s information about the appellant.

I wonder if the CI could locate an SEC championship ring for the detective?

2003-06-09T16:51:00.000-04:00

The Website is Back from Vacation

I am pleased to report that I will have the website back up an running, beginning today. I have been busy over the last week or so working on an appeal of a murder conviction. So, though I have been swimming in the caselaw, none of it has been recent. I will make every effort not to let my job get in the way of the website in the future. Today's cases will be up momentarily.

Scott Key

2003-05-29T22:17:00.000-04:00

Defendant Failed to Make a Proper Record on Batson

Bowden v. State, A03A0472

Appellant appealed the lower court's denial of his Batson challenge to the State's strikes. The only record, however, of the racial composition of the State's strikes came in the form of discussion between counsel on the record. No party stipulated to the race of persons struck by the State, and jury selection was not taken down. Hence, there was no record from which the defense could appeal. The Court found, also, that if the numbers were correct, that the defense failed to make out a prima facie case of discrimination. The Court reasoned further that the panel selected did not have fewer jurors than the venire panel.

Barnes, in a concurring opinion, noted that the percentage of a particular race had nothing to do with a prima facie case. That analysis is focused solely on the percentage of persons of a particular race struck out of a litigant's total strikes.

2003-05-28T18:13:00.000-04:00

The Cops Shouldn't have Been there, but . . .

Brown v. State, A03A0618

The police entered the appellant's home after a third party answered the door and consented to allow him to enter. He pointed toward where appellant was at the time. The State, according to the court, was unable to show that the party had the right to consent to allow the officer into the home. The Court was further concerned that appellant was willing to go into the house, no matter who gave him consent to enter.

However, because there was evidence to show that the officer left the home and re-entered that the appellant's request, the Court found that the entry did not taint the eventual consensual encounter between the appellant and the law enforcement. The Court found that intervening circumstances attenuated the illegal entry and justified the eventual interview and consent to search.

2003-05-28T18:01:00.000-04:00

If the Beer Cooler Spills out During the Wreck, then the State has Probable Cause

Malone v. State, A03A1646

Appellant contended that the State had no reason to place him under arrest for DUI. However, the evidence showed that he lost control of his vehicle, flipped over, and ran into a ditch. Along the way, a cooler containing beer was thrown into the ditch. The responding police officer noticed that appellant had red eyes, his speech was slow, and that he smelled like beer. Based on demeanor and the accident, he placed appellant under arrest.

The Court of Appeals said that this evidence was enough to arrest the appellant for DUI.

2003-05-27T21:47:00.000-04:00

Good Faith Exception to Miranda?

Williams v. State, A03A0800

Appellant was under arrest when a police officer approached and asked what had happened. the officer testified that she did not know that appellant was under arrest because he was laughing when she approached. She asked appellant what had happened and asked about the location of the weapon because she was worried that a child in the area would discover it and be hurt. The Court found that the appellant knew that the officer did not know that he was under arrest and that she spoke to the officer anyway. Hence, the statement was freely and voluntarily made (?)

2003-05-27T21:44:00.000-04:00

Interpreter Understood Things Well Enough; Denial of Motion for Mistrial Okay

Falak v. State, A03A0265

Apellant argued that the Court erred in refusing to grant a mistrial after a witness testified that "he was a bad man . . . a drinker." The Court held that a mistrial was not appropriate because the State did not solicit the comment. Further, the Court found that the error was not harmful because the appellant allowed a much worse statement into evidence on cross-examination without objecting.

Appellant also complained that he arabic interpreter did not speak he dialect and that appellant could not follow him, and that he refused to slow down when he asked him to do so. The interpreter testified that appellant understood the testimony well enough to understand what was being said and the nature of the proceedings. Hence, the Court found no error.

Finally, the appellant argued that the trial lawyer was ineffective for not calling he expert to dispute how the interview of the child took place. Counsel testified the she thought that trial was going well and did not wish to lose closing by calling the expert. The Court found that the decision was trial strategy.

2003-05-26T22:39:00.000-04:00

Officer Had Probable Cause to Stop Vehicle and Detain Driver

Lancaster v. State, A03A0502

Appellant was driving his car on Buford Highway when an officer pulled him over because one of his brake lights was not functioning. However, two of his three brake lights were functioning. Appellant argued that the statute only required two brake lights to work. The fact that a third was malfunctioning, therefore, was not illegal and should have warranted a stop. The Court considered the argument but, ultimately, reasoned that the officer believed that the one failed brakelight was a violation of Georgia law; hence, his stop was proper.

The Court rejected appellant's other argument that the officer detained the driver beyond the scope of the original stop to investigate for drugs without reasonable articulable suspicion to do so. However, the officer saw marijuana residue in the floorboard. Plus, the driver appeared to be nervous and did not stop the car at the first available opportunity. Hence, the stop was based upon articulable suspicion.

2003-05-26T22:28:00.000-04:00

Solicitor's Office Did Not File Accusations out of Time

State v. Thompson, A03A0088; State v. Lee, A03A0094

The Fulton County Solicitor's office delivered accusations to the clerk within the statute of limitations. However, the clerk did not file them in until after the statute of limitations had passed. The Fulton County State Court judge dismissed the accusations as untimely filed. The Court of Appeals reversed holding that accusations are considered timely filed at delivery, not at the time of file stamping. Because the Solicitor delivered the accusations within the statute, the time stamping was irrelevant. Further, absent evidence to the contrary, the Court presumed that public officials acted in an honest manner.

2003-05-26T22:22:00.000-04:00

Error Not Preserved; Evidence Properly Admitted Under the Necessity Exception to the Hearsay Rule

Scott v. State, A03A0053

Appellant argued that the lower court should not have admitted his prior inconsistent statement because he did not lay a proper foundation. Though appellant objected, he did not specifically raise the foundational objection. Absent a statement of the specific grounds for objection, appellant had nothing to complain about on appeal. Said the Court, "this is a court for review and correction of error, we cannot consider objections to evidence different from those raised on appeal."

Appellant also complained about evidence admitted under the necessity exception to the hearsay rule. The Court passed on the hearsay argument and held simply that the admission of the statement was not prejudicial to appellant's case.

2003-05-23T09:19:00.000-04:00

Jury Verdict Finding Defendant Not Insane Upheld

Serritt v. State, A03A0164

Appellant was convicted of burglary, entering an auto., etc. The director of treatment services at a north Georgia mental health center testified that, while she was at home, the appellant appeared in her bedroom with a beer in his hand. She told him to leave, and he obeyed. He drove away in her Lincoln Town Car. Employees of the clerk's office testified that the appellant repeatedly showed up and demanded copies of certain records, the same ones everyday. Eventually, the clerks made copies of the records in advance, anticipating his arrival.

The court-ordered evaluation showed that appellant understood courtroom procedure and that he could appreciate right from wrong. However, she found that he did not appreciate right from wrong while under the influence of alcohol. However, at the time of the crime, he was voluntarily intoxicated.

Insanity is an affirmative defense which the defendant must prove by a preponderance of the evidence. The jury found that the appellant had not done so, and the court of appeals upheld that verdict.

2003-05-22T12:47:00.000-04:00

Failure to Request a Limiting Instruction Was Not Ineffective Assistance of Counsel

Laye v. State, A03A0539

Appellent argued that the trial attorney should have requested a limiting instruction, after the State introduced a prior conviction of possession of cocaine with intent to distrubute, that the prior conviction should only have been admissible to substantiate the possession of a firearm by a convicted felon charge. Since the evidence was also admissible as a similar transaction in the possession of cocaine with intent to distribute charge for which he was on trial, the jury instruction would not have been proper. Hence, the court found no ineffectiveness.

2003-05-20T09:25:00.000-04:00

New Trial Not Proper Simply on the Basis of New Evidence for Impeachment of State's Witnesses

Dowd v. State, A03A0884

Appellant was convicted of child molestation and filed a motion for new trial alleging newly-discovered evidence from defendant's relatives that victim lied about the molestation. Holding that the testimony was merely hearsay testimony (not substantive evidence) offered to impeach the victim's testimony, the appellant failed to show any basis for a new trial.

2003-05-20T09:21:00.000-04:00

Right to Counsel Extends to Motion to Withdraw Guilty Plea

Schlau v. State, A03A0486

The lower court denied appellant's motion to withdraw guilty plea, filed pro se. The lower court never had a hearing on the matter. The court, however, remanded the case to the lower court to determine if appellant was indigent and qualified for appointed counsel to assist him with filing his motion to withdraw he guilty plea.

2003-05-20T09:16:00.000-04:00

Roadblock was Proper; Seizure was Supported by Probable Cause

Powers v. State, A03A0036

The Putnam County Sheriff's Office and the U.S. Forest Service both conducted a roadblock. Appellant approached the roadblock in a dumptruck when an officer noticed that he had an expired tag. The officer asked him to pull over to the side of the road and approached the vehicle and smelled alcohol on the appellant's breath. A forest service agent approached the vehicle and noticed a rifle therein. An officer gave the driver a field sobriety test and determined that the driver was impaired by drugs.

While processing the citation, the officer asked for consent to search the vehicle and received consent to search. The search revealed a quantity of drugs. After the arrest, the appellant refused consent to search his home for drugs.

The Court held that the roadblock was established constitutionally, reasoning the the LaFontaine factors are not "absolute criteria which must be satisfied before a roadblock is legitimate." Instead, the LaFontaine factors serve as a guide to the Court to make a finding, under the totality of circumstances, that a roadblock is legitimate. The Court upheld the lower court's determination that the roadblock was valid.

2003-05-16T21:19:00.000-04:00

Counsel not Ineffective, Sentencing was Proper

Hunter v. State, A03A0005

The Appellant argued that the lower court erred in not charging a lesser included offense of robbery. However, he never submitted a written request to charge on robbery. Hence, the failure to charge on it was not error. Further, the evidence did not authorize such a charge.

Appellant also challenged the State's use of prior convictions in aggravation of punishment. However, when the trial court asked if appellant wanted to postpone sentencing, appellant said that he did not want to do so. Hence, the Court held that the objection was waived.

Appellant raised ineffective assistance of counsel but failed to question trial counsel at the first opportunity. Hence the argument, also, was waived.

2003-05-16T21:10:00.000-04:00

Defendant Took Control of Defense at Trial; Had Second Thoughts on Appeal

Cummings v. State, A03A0187

The appellant appealed his conviction for burglary, armed robbery, aggravated assault, and possession of a firearm during the commission of a felony.

He challenged the admission of his videotaped statement to the police, arguing that it was not incriminating and was played simply to establish that he was connected to a previous murder. The Court gave a limiting instruction with respect to the previous murder, and the Court of appeals found that the limiting instruction was sufficient. Though the statement was not an actual confession, it was, nevertheless incriminating.

Cummings objected to the playing of an audiotape at trial of a witness who never actually testified. However, Cummings insisted that it be admitted, over his attorney's recommendations otherwise. Hence, he could not be heard to complain on appeal that the tape was hearsay.

He also objected to the court's charge to the jury on motive. However, the Court held that the defense made motive relevant by pursuing a theory that the victims framed him for the crimes as revenge for a murder of their relatives that they believed he committed.

Appellant also raised some allegations of ineffective assistance of counsel, which proved pretty groundless.

2003-05-15T21:53:00.000-04:00

Indictment, Jury Charges Just Fine

Hogan v. State, A03A0029

Appellant challenged his conviction for Aggravated Assault, asserting that the trial court erroneously charged “an assault is an attempt to commit a violent injury to the person of another.” The court found that, since appellant requested the charge, he could not complain of error.

He also challenged the indictment’s language, arguing that it failed to allege that he “unlawfully assaulted” the victims. Since assault is unlawful, in and of itself, the additional language was not necessary.

Finally Hogan alleged ineffective assistance of counsel asserting that trial counsel was ineffective in his failure to test the weapon for prints. The Court found that any error was harmless since two witnesses testified that they saw appellant wielding the boxcutter.

No Brady / Miranda Violation in Molestation Conviction

Black v. State, A03A0454

Appellant was convicted of child molestation for reaching into his girlfriend’s daughter’s pants, following her into the living room and reaching into her top. When the girl later told a school counselor, the police began investigating appellant. The victim later recanted her statement.

During an interview with the police, Black told the detective that “if he touched her, he didn’t realize it.” He also said that he loved watching her do stuff around the house. The Court held that Miranda warnings were not necessary because Black gave his statement during a voluntary and non-custodial interview.

Black also alleged a Brady violation after he requested, and the State never produced, DFCS records. The State countered that it had no such documents in its possession. Black never alleged that the D.A. had control of DFCS records. Further, he could not demonstrate that such records existed. (Kyle v. Whitley?). Note: It seems strange that there was no Motion for In Camera Inspection.

The State later called the mother, followed by two witnesses to impeach her testimony. Black alleged that the State called her solely for purpose of impeachment. The Court held, however, that the State did not know how she would testify as she did. The State demonstrated a good faith basis that she would testify that she saw the molestation and was surprised or entrapped by her answers on the stand.

Robbery is a Continuous Event, Even if it Takes Place Over Time During a Ride in a Car

Lewis v. State, A03A0501

Appellant argued that his convictions for armed robbery, theft by extortion, and theft by taking motor vehicle should have merged together. The Court agreed as to the armed robbery and theft by extortion. The motor vehicle offense, however, was separate and distinct.

The evidence showed that the appellant pulled a knife on a taxi driver, placed the driver in the trunk, and took his money, cell phone, and wallet. He later drove away in the taxi.

The Supreme Court had previously held that “the taking of property in a single transaction from a victim at two sites under the same roof constitutes one robbery.” The State argued that this rule did not apply within a moving car, particularly since the victim was transferred from the passenger compartment into the trunk (is the trunk a “different roof” from the roof of the car?)

The Court held that, because the thefts happened within a short time, involving a single victim, and in a single car, the theft by extortion should have merged into the armed robbery.

The motor vehicle theft was separate, however, and subject to a consecutive sentence. The Court had previously held that robbing someone of his money and driving away in his car are separate crimes. Hence the vehicle theft did not merge (good thing they didn’t charge hijacking).

The moral of the story: leave the cabbie in the trunk next time!

2003-05-14T15:36:00.000-04:00

No Need to Plead Omissions from Affidavit in Support of Search Warrant

Watts v. State, A03A0929

The Court of Appeals remits the case back to the lower court after the Supreme Court heard the case on Cert. The Supreme Court held that, when a criminal defendant files a Motion to Suppress, challenging the sufficiency of information in an affidavit for a search warrant, he need not plead the specific insufficiency. The Supreme Court held as such (much to the chagrin of the Court of Appeals) reasoning that the State has the burden of proving that it sufficiently alleged enough information in its affidavit to prove probable cause to a neutral and detached magistrate.

Evidence Properly Suppressed

Blance v. State, A03A0466

The Court of Appeals held that officers properly stopped and searched the contents of a car. The car had out-of-state plates and was leaving a crime scene. The Court reasoned, under Carroll, that there were exigent circumstances that would allow the officers to search without first obtaining a warrant.

Officer had Probable Cause for a Brief Investigative Stop

Brown v. State, A03A0616

Dispatch called an officer to the scene of a Waffle House at approximately 2:00 A.M. The officer arrived to find Brown leaving the scene in his pickup truck. He ran him down to investigate him when he found evidence of DUI.

The Court of Appeals affirmed the denial of the motion to suppress, reasoning that the officer had reason to stop the suspect briefly to investigate the alleged fight at the Waffle House (What, a fight at the Waffle House? What, a drunk person leaving Waffle House?)

Similar Transaction Properly Admitted

Hostetler v. State, A03A1057

Appellant was convicted of child molestation. He challenged the admission of similar transaction evidence against him. Though he was accused of touching his victim’s breast and vagina, the State introduced similar transactions against him that all involved the appellant going to public places, watching children, and masturbating.

The Court held that close counts in horseshoes, hand grenades, and similar transactions (or something to that effect). Conviction was affirmed.

2003-05-12T15:13:00.000-04:00

I Reckon He's Guilty

Nunnally v. State, A03A0578

Appellant polled the jury after conviction. One of the jurors, when asked if guilty was his verdict, answered "I reckon." Another launched into an explanation before being asked again if it was his verdict. The defenant never objected to the jurors' statements and never challenged the verdict (he merely made an observation). Hence, the Court did not reverse on that basis. The case was remanded, however, to determine if the pro se defendant had been adequate time to retain counsel before being taken to trial pro se.

2003-05-08T16:42:00.000-04:00

Supreme Court Reverses Grant of Motion to Suppress

State v. Tye, S03A0395

The lower court granted defendant's motion to suppress, reasoning that the person who gave consent to search had a low IQ and was mentally impaired. Hence, the officers intimidated the person into consenting to the search. The lower court never ruled on the plain view issue in its order granting the motion to suppress. The Supreme Court found that, because the issues was raised below but not ruled on, it could consider the issue.

Since Dodd v. City of Gainesville disposed of the right for any reason rule, how can the Court reverse on an issue where the lower court never ruled?

2003-05-08T16:31:00.000-04:00

Double Jeopardy did not Attach

State v. Perkins, S02G1850

Appellee was charged with felony vehicular homicide with reckless driving as the underlying offense. The court mistakenly separated out the underlying reckless charge. Defendant hurredly plead to it in probate court. When he was subsequently indicted for vehicular homicide in Superior Court, he filed a plea in bar, arguing that double jeopardy attached in probate court. The court granted the motion, and the Court of Appeals affirmed. The Supreme Court took cert. and reversed the lower court's decision, reasoning that the probate court never had jurisdiction to hear the matter. Hence, the sentence and conviction were both void. Therefore, double jeopardy never attached.

2003-05-08T16:02:00.000-04:00

Case Remanded for Sentencing

Williams v. State, A03A0699

The trial court sentenced appellant as a recidivist believing that it had to impose a certain sentence and that it could not probate the sentence. Since the State had not given notice that it intended to seek recidivist punishment, the decision to sentence within the minimum and maximum sentence provided in the statute was in the trial court's discretion.

2003-05-08T15:53:00.000-04:00

Grant of Motion to Suppress Affirmed

State v. Harris, A03A0183

Officers approached a motel and saw several people standing around and talking. When they saw the police officer, they went to their rooms. Officers then saw Harris walk up. They detained him and asked for ID. When he said that his ID was in the room, they asked him to go get it and followed him into his room. One of the officers saw keys in the room and took the keys to enter the vehicle and look for the suspect's ID. The officer entered the vehicle and found a large amount of cash in it. He then called in a drug dog to do a free air sniff. The dog alerted to the vehicle. They then obtained a search warrant and went into the trunk finding cocaine. The Court found that the detention was not supported by any articulable suspicion (nervousness is not enough). Though the discovery of the money would have justified a detention and free air search, the initial detention tainted everything found thereafter.

2003-05-08T15:42:00.000-04:00

Traffic Conviction Set Aside Because Appellant Not Advised of Right to Counsel and Dangers of Proceeding Without an Attorney

Barnes v. State, A01A0624

Appellant plead guilty to driving on a revoked license and later appealed arguing that there was not valid waiver of the right to counsel on the record. The Court held that, in order for a plea to be valid, there must be a finding by a judge on the record that the accused understands the possibility of jail, that the rules of evidence will be enforced, the complexities of voir dire, the fact that strategic decisions about calling witnesses and testifying will be made without an attorney, and that issues must be properly preserved and transcribed to be presented on appeal.

2003-05-08T14:28:00.000-04:00

Court Reverses Lower Court's Grant of Appellee's Motion to Suppress

State v. Baker, A03A0070

Appellee was charged with possessing drugs. The evidence before the lower court showed that a Cobb County officer approached appellee and his friends after they were found standing around near the school. The officer patted down all of the people and found nothing. Appellee asked if he could leave, and the officer denied his request. A license check determined that Appellee had a suspended licese for a previous drug violation. When the officer began asking about the conviction, appellee told the officer he could check for himself to see if he had drugs. The officer did, and he found drugs.

The lower court granted the motion to suppress, finding no reason for the pat-down search. The Court reversed and remanded reasoning that the search was consensual and was unrelated to the pat-down. The Court remanded the case for the lower court to determine whether the consent was freely and voluntarily given as the result of a lawful detention.

2003-05-08T14:17:00.000-04:00

Plea Agreements Governed by Contract Principles

Brown v. State, A03A0136

In exchange for a sentence of twenty years (with five on probation), Brown agreed to "give truthful testimony in any related matter" involving co-defendants. During the plea hearing, Brown testified that he and a co-defendant decided to rob an IHOP and that he furnished the gun to Farmer to use during the robbery. At trial he denied giving the gun to Farmer and testified that he lied about planning the robbery. The State moved to set aside the guilty plea, and the lower court granted the motion. The Court upheld the lower court's decision, reasoning that the State and Brown had entered into a contract. Since the appellant materially breached it, the State had a right of recission, leaving Brown in the place where he was pretrial -- facing prosecution.

Questions: (1) if he truthfully did not participate and actually lied when he entered his plea, did he really breach? (2) If he is truly placed back into the position that he was in before he entered his plea, then will the State be able to use his admissions at the plea against him?

2003-05-08T14:03:00.000-04:00

Lawyer Effective though Suspended from Practice of Law at Time of Trial

Zinnamon v. State, A03A0433

Appellant challenged his lawyer's effectiveness at trial. At the time of trial, the attorney was suspended from the practice of law in the state of Georgia. The Court held that the attorney's suspension from the practice of law was not per se ineffectiveness of repesentation.

2003-05-07T11:57:00.000-04:00

Evidence Insufficient to Convict

English v. State, A03A0079

Appellant challenged his conviction for driving without insurance, under O.C.G.A. Section 40-6-10. The evidence at trial showed that the appellant failed to produce insurance information when such information was requested of him. At trial, he admitted that he knew he did not have a license and that his girlfriend owned the car, there was no evidence that he knew that the vehicle was uninsured.

Unfortunately for English, however, the court affirmed his conviction on about ten other charges.

2003-05-02T15:10:00.000-04:00

The State Can Admit both BAC results at a DUI Trial

State v. Kruzel, A03A0869

The State appealed the lower court's ruling prohibiting the State from admitting a breath strip containing two results (0.100 and 0.108). The Court held that, though the State cannot use the higher result in its accusation, it still could do so as an evidentiary matter at trial. Hence, the State was allowed to introduce to the jury that the appellee had tested at .100 and .108.

2003-05-01T08:32:00.000-04:00

State Allowed to Aggravate Punishment with Convictions when There was No Record that the Pleas were Freely and Voluntarily Entered

Note: This Case Contains a Great Analysis to Use for a Collateral Attack on an old Guilty Plea

Hall v. State, A03A0988

Appellant appealed his conviction as a recidivist for aggravated assault and possession of a firearm during the commission of a felony. He challenged the conviction arguing that the trial court erroneously admitted two felony convictions when the plea transcript failed to show that the pleas were entered freely and voluntarily.

The Court held that, for purposes of a collateral attack on a conviction sought to be used to enhance punishment, the State had the initial burden to prove the existence of the previous guilty plea and of showing that the defendant was represented by counsel in felony cases. The burden then shifts to the Defendant to show an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to present evidence of a constitutional irregularity, the burden shifts back to the State to prove that the plea was taken constitutionally. The State can meet this burden by introducing a “perfect” transcript of a guilty plea, which reflects a colloquy between judge and defendant wherein the defendant was informed of and specially waived his right to trial by jury, the privilege against self-incrimination, and his right to confront his accusers. If the State introduces anything less than a perfect transcript, the judge must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the Boykin rights.

In this case, the appellant did not deny that he read the form that was used for him to enter his guilty plea.

Further, the appellant challenged the charge that jurors had a “duty to convict” if they believed that the defendant was guilty beyond a reasonable doubt. Though the Court expressed that the better practice is to charge that the jury would be authorized to convict in such circumstances, charging on “duty to convict” is not reversible error.

Trial Court did not Err in Denying Motion to Sever Defendants. However, State’s Decision to Try a Particular Defendant First May Render Severance a Nullity

Avellaneda v. State, A03A0513

Appellant Avellaneda was indicted along with Cancino for trafficking in cocaine and a firearms violation. Avellaneda filed a motion to sever, arguing that Cancino could testify that Avellaneda had no knowledge of Cancino’s drug involvement and was merely present during a buy. He stressed that Cancino would take the fifth if they were tried together.

Before trial, the Court granted the Motion to Sever. Pursuant to O.C.G.A. 17-8-4, the State chose to try Avellaneda first. Avellaneda called Cancino, and Cancino took the fifth.

Avellaneda argued that, because Cancino would not provide exculpatory evidence unless he were tried first, the State’s decision to try Avellaneda first rendered the severance meaningless. The court agreed and determined that it was appropriate to evaluate the state’s election about which order to try cases under the same analysis they would use to evaluate whether a motion to sever should have been granted.

The Court reasoned that, whenever a defendant moves to sever based upon a co-defendant’s ability to provide exculpatory evidence, he must prove (1) a bona fide need for the testimony; (2) the substance of the testimony; (3) its exculpatory need and effect; and (4) that the co-defendant will testify if the cases are severed.

Because, in this case, Cancino made his willingness to testify conditional upon being tried first, the Court found that the Appellant had not met its burden under the four-part test. The Court reasoned that “we would create a situation where, following his own trial, the witness would be more inclined to ‘throw a bone’ to his co-defendants by testifying favorably to them because his own case had been disposed of and he had little to lose by testifying.” (Why couldn’t the State cross-examine on this point and leave it up to the jury?)

2003-04-30T21:08:00.000-04:00

Similar Transaction Evidence Properly Introduced; Evidence Sufficient to Support Conviction

Weston v. State, S03A0235

Appellant argued that the State failed to introduce sufficient evidence to convict him of murder and armed robbery. A witness saw the appellant speeding away from the victims’ residence at approximately the time they were killed. Further, when the appellant saw the witness a few days later, he put his index finger to his lip as a “be quiet” signal. He later sold the victims’ jewelry and lawnmower to buy crack. The State found that the evidence was sufficient to authorize conviction.

The State also allowed evidence in of an invasion of another elderly person a few days before the home invasion in this case, where the appellant had stolen merchandise to buy crack. The Court held that the evidence was properly admitted as a similar transaction to show that appellant had committed the armed robbery in the instant case.

Counsel’s Decision not to Interview Witness Not Ineffective

McCutchen v. State, S03A0272

Appellant’s sole enumeration of error was ineffective assistance of counsel. He alleged that his attorney did not meet with him enough to prepare adequately for trial. The Court held that “there is no magic amount of time which counsel must spend in actual conference with his client.”

Further, the trial attorney’s decision not to interview a witness to see if he had coerced appellant into committing the crime was not ineffective assistance because the attorney did not believe that he would be a credible witness and because coercion is not a defense to murder.

Court Properly Excluded Evidence of Cocaine Use and Properly Refused to Charge on Voluntary Manslaughter

Daniels v. State, S03A0454

Appellant asserted that the court improperly granted the State’s Motion in Limine regarding the victim’s alleged cocaine use. He argued that evidence of cocaine in victim’s system would have bolstered appellant’s justification defense. The Court held, however, that the Appellant had the burden of presenting evidence that the cocaine made the victim more violently.

The Court also held that the trial court properly rejected the request to charge on voluntary manslaughter, reasoning that the defense of self-defense was inconsistent with voluntary manslaughter and that there was no evidence of provocation

No Error in Charging Felony Murder with Aggravated Battery as Underlying Felony

Lowe v. State, S03A0511

Appellant was convicted of murder after he set fire to the victim and caused his death. Before appeal, she filed a Motion in Arrest of Judgment arguing that the charge of felony murder with the underlying offense of aggravated battery failed to allege a crime. Appellant argued that the indictment was insufficient to allow him to know what the aggravated battery was.

However, the Court held that appellant had the burden of filing a special demurrer for a more definite indictment. Further, the alternate malice murder count alleged that she caused the death of the victim by “pouring a flammable liquid over [him] and igniting same . . .” The Court held that count two of the indictment provided sufficient notice to allow appellant to know what the underlying aggravated battery was.

An Offer He Couldn’t Refuse – Life without Parole in Exchange for Waiver of Appellate Right

Rush v. State, S03A0554

Appellant appealed on ineffectiveness grounds after entering a plea to life without parole. The State waived the death penalty in exchange for the recommendation of life without parole. Finding that the waiver was valid, the Supreme Court dismissed the appeal (undue influence?)

Conviction Affirmed in Spite of Prosecutor’s Failure to Pay Bar Dues; No Special Venue Charge Necessary

Shahid v. State, S03A0668

Appellant challenged his murder conviction, arguing that the Court should have charged the jury that venue was an essential element of the charge. Though the Court held that such a charge would be a good idea, the indictment, itself, alleged that the crime took place in Fulton County

Further, the Court held that the prosecutor’s failure to pay bar dues did not per se violate Shahid’s rights and did not prejudice Shahid at trial.

Finally, the court held that trial counsel’s failure to object to the prosecutor’s statement that appellant was in the habit of carrying a gun did not prejudice the outcome of the trial.

Evidence Sufficient to Convict Police Officer for Aggravated Assault

Richardson v. State, A03A0307

Appellant asserted that the jury improperly convicted him for aggravated assault on the passenger of a car. The evidence showed that the car hit Richardson and knocked him to the street. He then fired on the car. He was acquitted of aggravated battery on the driver but convicted of aggravated assault on the passenger.

The passenger testified that he “leaned to the side” and “was scared.” However, the State never asked him what he was afraid of or if he thought he was about to be killed. The evidence, however, was good enough for the court of appeals, which affirmed the conviction.

No Fatal Variance in Indictment

Edward v. State, A03A0604

The indictment alleged that the purported burglary was committed at “the dwelling house of another, to wit: Talbot Jones, located on Hwy 111 North . . .” The State never proved that the house belonged to Jones. However, the Court found that the variance was not fatal because it was not material. It sufficiently identified the house and was sufficient to give appellant notice of the alleged events and charges.

2003-04-30T15:06:00.000-04:00

State did not Make an Improper Argument; Statement not Admissible under Necessity Exception

Messick v. State, S03A0017

Appellant appealed his murder conviction arguing that: (1) the State improperly argued in closing that appellant could have left a bloody footprint at the scene and (2) that the State erred in excluding a hearsay statement from Billy Hicks to Susan Cotton that he actually killed the victim.

The Court determined that the argument was a proper inference from the evidence. Though the parties had stipulated that the prints were not made by the appellant's boots, the stipulation did not prevent the State from arguing that it was made by other shoes of the appellant.

Finally, the Court held that the statement was not admissible under the Necessity Exception to the Hearsay Rule because it was made to a "self-describe acquaintance, at the end of an all-day drinking session 10 days after the murder." Hence, the Court held that it did not have sufficient guarantees of trustworthiness and was, therefore inadmissible.

2003-04-30T15:00:00.000-04:00

Out of Time Appeal Properly Denied by Lower Court

Simmons v. State, S03A0013, S03A0014

Appellant sought review of the lower court's denial of his Motion for an Out of Time Appeal. He alleged that original counsel from 1972 coerced him into withdrawing his Motion for New Trial. However, he presented no evidence before the lower court to suggest that the attorney coerced him to withdraw the motion. Absent the factual determination, the Court found that there was nothing to review on appeal and nothing to rebut the presumption that appellant, himself, decided to dismiss the motion.

2003-04-28T17:24:00.000-04:00

"Chase Car" was Actually Part of the Roadblock

Fischer v. State, A03A0951

Appellant challenged the lower court's denial of his motion to suppress, arguing that he was stopped by an officer who lacked reasonable articulable suspicion. The police set up a roadblock that covered 19-41 and posted a second vehicle on Talmadge Road. Fischer turned off of the "primary" roadblock on 19-41 and was stopped by the single officer on Talmadge Road. An officer testified that the vehicle on Talmadge Road was a "chase car." However, the Court upheld the lower court's finding of fact that the chase car driver was part of the roadblock and that it was stopping all vehicles that passed from any direction. Hence, the Court affirmed the lower court's denial of the motion to suppress because the findings of fact were not "clearly erroneous."

2003-04-26T21:44:00.000-04:00

Slip and Fall Did not Happen at the "Approach" to the Store

Food Lion v. Isaac, A03A0533

The lower court denied Appellant's Motion for Summary Judgment in a personal injury case where appellee had slipped and fallen in the parking lot of a Food Lion. Under the law, Food Lion had a duty to inspect and repair the store's premises and approach to keep the area safe for invitees. However, since the injury took place in a parking lot, away from the sidewalk in front of the store, the Court held that the area was not an approach. Hence, the landlord that owned the parking lot had a duty of care.

Judge Barnes, in her dissent, argued that whether the area was an "approach" was a question of fact for the jury. She also reasoned that a parking lot could be an approach, since it is an area used by customers to enter the store.

2003-04-25T12:33:00.000-04:00

Testimony Held Admissible Under Necessity Exception

Cargile v. State, A03A0686

The appellant appealed his conviction for possession of marijuana. The evidence at trial showed that police received a tip that marijuana was at the appellant's residence. His son took police to his bedroom where police found a small quantity of marijuana. They applied for a search warrant for the rest of the house. While waiting for the warrant to arrive, an officer received consent to search from appellant's wife. Police found marijuana in the master bedroom and later tested appellant's urine for marijuana when he claimed that it really belonged to his son.

The GBI crime lab witness never tested the substance found in the bedroom. However, the Court of Appeals found that there was circumstantial evidence sufficient to convict because the appellant's urine tested positive for marijuana.

The appellant's wife invoked marital privilege and refused to testify. The Court of Appeals held that hearsay she gave to the police was admissible under the necessity exception to the hearsay rule. The Court held that the lower court properly found that the testimony was more probative than other evidence, had guarantees of trustworthiness, and that the declarant was unavailable to testify. Hence, the court found no error in the police officer testifying that the wife told him that her husband smoked marijuana in the house and that his marijuana use had been causing problems.

Finally, the Court held that evidence of the marijuana in appellant's urine was not a similar transaction but was directly linked to the crime charged.

2003-04-23T22:55:00.000-04:00

Trial Counsel Effective In Spite of Failure to Object to Victim's Hearsay and Extremely Brief Closing

Woodall v. State, A03A0273

The appellant appealed his conviction for child molestation on his sixteen-year-old cousin, raising ineffective assistance of counsel as his sole enumeration of error. Several of the alleged ineffective decisions were patently baseless. However, a few merit discussion. The Court appeared to agree that trial counsel allowed inadmissible victim hearsay statements into evidence. The opinion does not provide the substance of the statements, but the Court ultimately held that the statements were not outcome-determinative and their admission could have been a matter of trial strategy.

The appellant argued that the prosecutor's repeated reference to the complaining witness as a "victim" "saturated the jurors' minds with the presumption that the other person is already recognized as 'the victim.'" He argued that trial counsel's refusal to object to the reference was ineffective assistance of counsel. The court made short shrift of the argument, reasoning that the attorney made a strategic decision not to object and citing the appellant's acquittal of rape and enticing a child for indecent purposes.

Finally, the appellant argued that trial counsel's closing argument was ineffective. The Court actually quoted it, in its entirety in approximately half of one column of text. Reading between the lines, the Court seems to concede, somewhat, that the argument was bad. HOWEVER, because the appellant was acquitted of two of three counts and trial counsel was never called to answer questions about the brevity of his closing, the Court held that the argument could have been strategic.

2003-04-22T18:21:00.000-04:00

No News from the Courts for Two Days

Neither the Georgia Court of Appeals nor the Supreme Court of Georgia have issued any opinions in the last two days. Hence, I have had nothing to report here. Stay tuned for an update on decisions as they come out.

2003-04-18T15:30:00.000-04:00

Court Agrees that Search was Bad

State v. McCloud, A03A0400

The trial court granted appellee's Motion to Suppress, and the State appealed the ruling. The evidence showed that a trooper stopped appellee for loud music. The trooper testified that the driver appeared to be nervous and that he issued the citation to the driver who was then free to leave. However, the appellee did not sign the citation. Instead, the citation read "Jail" at the bottom, showing that the ticket had not actually been served at the scene. The trial court found that "severe doubt is cast upon the credibility of the only State's witness [the trooper]" The court determined that the suspect was detained at the time of the alleged "consent" and that the consent was neither free nor voluntary.

Because factual and credibility findings are subject to the clearly erroneous standard of review, the Court affirmed the lower court's grant of the motion to suppress.

2003-04-18T11:22:00.000-04:00

No Error when Defendant was in Court in Handcuffs when Jury Panel was Present

Smith v. State, A03A0987

The Court of Appeals held that it was not error for the jury panel to see the defendant in handcuffs. The Court asked jurors if anything happened in court that caused them to have a bias or prejudice against Smith, and none of the jurors responded.

2003-04-18T11:16:00.000-04:00

Photograph of Defendant in Lineup with Differently-Colored Background not Unduly Suggestive

Evans v. State, A03A08868

Appellant challeged the admissibility of an in-trial identification because the witness viewed a photo lineup in which the appellant had a differently-colored background from the other persons who participated. The Court of Appeals held that such a lineup was not unduly suggestive.

2003-04-18T10:47:00.000-04:00

Defendant Received Effective Assistance of Counsel from Attorney who was Later Disbarred and Convicted of a Felony

Talbot v. State, A03A0120

Appellant's attorney was convicted on possession of cocaine and disbarred for unprofessional behavior. The Appellant only met with his client for fifteen minutes before trial and did not prepare him to testify. The Court held that, because the attorney presented appellant's only defense, filed standard motions, and did a pretty good job at trial.

The Court remanded the case to determine whether Talbot was forced to testify without being admonished that he had the right to remain silent (in other words, hint hint, here's a way to reverse the conviction).

2003-04-18T10:31:00.000-04:00

Juror's Testimony not Allowed to Impeach a Verdict in a Civil Case

Newton v. Foster, A03A0700

A party to a civil action submitted a juror's affidavit and submitted the juror's testimony at a hearing on his motion for new trial. The lower court reversed the verdict, and the opposing party appealed. The juror testified that members of the jury went to the accident scene to do a viewing on their lunch break. The Court of Appeals held that testimony from a juror can never be used to impeach a verdict on a civil case, though it can in a criminal case.

Judge Ellington's concurrence, while recognizing the state of the law, comments that the law should be different whenever there is timely oral testimony of juror misconduct.

2003-04-18T10:14:00.000-04:00

Superceding Indictment; Search and Seizure; Chain of Custody

McKinney v. State, A03A0394

The appellant was convicted of kidnapping, burglary, and aggravated assault. He appealed claiming that he was convicted on a defective indictment. The alleged attack happened in 1989, but he was not indicted until 1995. Appellant filed a special demurrer, claiming that the statute of limitations had run. The State submitted another indictment alleging that the statute of limitations was tolled until the State learned appellant's identity. The State elected to proceed with the second indictment. The Court held that jeopardy did not attach on the first indictment, and nothing barred the State from proceeding on a second withou first dismissing the other one.

Appellant also challenged the admissibility of evidence found after the State obtained a second search warrant. The first search warrant was defective, and the appellant argued that the information found on the second warrant was fruit of the poisonous tree. The court held that the information used to obtain the second search warrant was not gained by exploiting information gained from the first search.

Finally Appellant argued that the State had failed to establish chain of custody because the person who took the rape kit evidence from the victim never testified. The Court held that bare suspicion of tampering is not sufficient to break the chain of custody when the evidence at trial shows that the blood was handled in a routine manner.

2003-04-15T22:44:00.000-04:00

Mail is Just Fine for Worker's Comp. Notice

American Mobile Imaging v. Miles., A03A0018

Appellant company appealed Workers Comp. determination asserting that they never received notice of a hearing. The Board sent out notices by regular mail but did not send them via certified mail. The Court held that regular mail was acceptable under the code section, and there was no certified mail requirement. Hence, the hearing officer's finding that notice was proper was proper.

2003-04-15T22:41:00.000-04:00

Just the Fax Ma'am not Enough to Lien on Me

Phillips v. Historic Properties of America, A03A0346

Appellant filed suit to perfect a materialman's lien against appellee's property. At the time of the filing of the lien, appellant faxed a copy of it to appellee. The lower court granted summary judgment to appellee, reasoning that statute required notice by registered mail, certified mail, or statutory overnight delivery. Since notice was not proper under the statute, the Court found that summary judgment was proper. Further, the Court reasoned that fax notice is inherently unreliable.

2003-04-15T22:33:00.000-04:00

An Eye for an Eye

Berrell v. Hamilton, A03A0556

The Court affirmed the trial court’s grant of summary judgment to defendant eye doctor. The doctor performed a glaucoma laser treatment that left plaintiff susceptible to eye infection. During follow-up visits, the plaintiff did not complain of any unusual difficulties. He later developed an eye infection and lost sight in his eye. Plaintiff argued that the doctor failed to check the eye for leakage.

Plaintiff’s expert testified that the failure to do the leakage test breached the standard of care. However, he could not testify that the eye was leaking when the plaintiff appeared for his last checkup. Further, none of the eye doctors who treated the infection noticed the leak. Hence, the Court held that the lower court’s grant of summary judgment was proper because no issue of fact existed as to proximate cause.

2003-04-15T22:31:00.000-04:00

Angry Reverend Strikes Again

Holmes v. Anchor Center, A03A0240

You know that the case is going to be affirmed when the opinion starts out this way: “The appellant in this action adds yet another chapter to this seemingly endless saga of his pro se journey through the courts.”

Appellant, Rev. Holmes sued a homeless shelter for malicious prosecution. The homeless shelter purchased property previously owned by the Rev.’s United Baptist Church. Later, the shelter took out a restraining order enjoining Holmes (who was frustrated that the church could no longer use the property) from coming within fifty yards of the property. Upon seeing Holmes near the property, Appellees notified the police. A police officer arrested Holmes for criminal trespass and for aggravated stalking.

The criminal court granted a directed verdict of acquittal on the criminal charges, and the Rev. filed suit for malicious prosecution. The Court of Appeals affirmed the lower court’s grant of summary judgment, finding that Anchor merely showed the restraining order to police, who took the information and placed the Rev. under arrest. Further, because the officers had probable cause to arrest the Rev., there was no issue of fact for a jury on the suit.

Dime Bag, Corner Pocket

Taylor v. State, A03A0553

Taylor appealed his conviction for VGCSA and tampering with evidence. He argued that the State had failed to introduce sufficient evidence to convict him of tampering with evidence. The evidence showed that, just before his arrest at a bar, he had attempted to put the individual bags of marijuana into the pockets of a pool table. His evidence showed that he inadvertently bumped the weed into the pocket (scratch?). Because evidence showed a substantial step toward hiding the evidence, the conviction was affirmed. The arguments advanced in enumerations two and three were actually worse than this one and do not merit a mention.

2003-04-15T18:25:00.000-04:00

Cite the Code Section if you Want to Challenge Sufficiency of Evidence.

Collier v. Merck, A03A0249

Appellant was convicted of DeKalb County Code Section 16-45.2, loitering for drug related purposes. He initially petitioned the Superior Court for Cert challenging the sufficiency of evidence to convict under the county ordinance. The superior court dismissed the petition. The Court of Appeals found that, because appellant never quoted or even summarized the code section, neither the Superior Court nor Court of Appeals had anything to review.

Further, the Court held that it could affirm the decision even though the Superior Court dismissed the Petition for a different reason. The Court found that, because the Appellee raised the issue below, the Right for Any Reason Rule applied. This is interesting in light of the Supreme Court's recent decision in City of Gainesville v. Dodd that struck down the Right for Any Reason Rule.

2003-04-15T18:16:00.000-04:00

Judge Improperly Rehabilitated Juror

Park v. State, A03A0220

The appellant, an Asian man, was convicted for several violent offenses against his wife and his wife's daughter. During voir dire, a juror said that he already believed that the defendant was guilty. The court then stated, "You seem pretty clear on that, and certainly you're familiar with the criminal justice system, so let me just ask you, are you telling the Court that you cannot, if you're selected on this jury, that you're not going to be able to listen to the evidence and make a decision based on that evidence?" The juror replied that he could "make a decision with anything. I'm just familiar with the past, with the number of domestic calls I've handled over the years [the juror was a police officer] where Asian families have been involved beating up their children with canes, and their wives at the same time because that was custom. And I have -- I guess you could say I have a bias against that."

He then added "But I can honestly sit there and make a rational decision of guilt or innocence, yes."

The Court then added that it was "certainly in no way trying to pressure you or make you give me any particular answer."

The court then denied defense counsel's motion to remove the juror for cause (?).

The Court of appeals reversed reasoning that "the trial judge is the only person in a courtroom whose primary concern, indeed primary duty, is to ensure the selection of a fair and impartial jury." Specifically, the court found that the court had rehabilitated the juror through its questions.

The interesting line from the case is "jurors who have expressed a bias may well mistakenly believe they can "set aside their preconception and inclinations." Does the Court's holding suggest that jurors who express a bias can automatically be removed for cause?

Interesting that he wasn't removed simply because he was POST certified.

2003-04-13T16:06:00.000-04:00

Enforcement of Settlement Agreement; Offer and Acceptance

Griffin v. Wallace, A03A0749

Appellants appealed the lower court's denial of their petition to enforce settlement agreement. Appellants purportedly accepted their opponents offer to settle, from a mediation session, that appellants asserted was still open at the time of acceptance. However, the acceptance letter made a new proposal regarding unsdiscovered and uncollected assets. Because, the parties had not had a "meeting of the minds" on whether the settlement offer was still open, the Court affirmed the lower court's denial. Further, because the "acceptance letter" left open material terms, the Court affirmed the lower court's finding that the parties had not formed a contract.

2003-04-12T09:59:00.000-04:00

Failure to Allow Defendant Access to Alleged Drugs for Independent Testing not Fatal to State

Dugger v. State; Daniely v. State, A03A0059

The lower court revoked the appellants' first offender status after they were stopped and drugs were found in Dugger's vehicle. The police lost the alleged crack found in the vehicle and appellants were unable to do an independant test to determine if it was, in fact, cocaine. Because "other evidence" was available to prove, by a preponderance of the evidence, that the substance was cocaine, there was sufficient evidence to revoke appellants' probation. Further, the lower court did not abuse its discretion in finding that Dugger was in possession of cocaine because the finding was an issue of credibility. Further, appellant could not rebut the inference that, because he possessed the car, he also possessed the contraband found within.

Daniely's probation was revoked, in part, because he was found to be associating with "disreputable characters" in violation of his probation. His explanation was that "I been growing up around [Marcel] all my life. It's hard." The lower court correctly found, by preponderance of the evidence, that Daniely had been hanging out with disreputable characters.

2003-04-11T23:41:00.000-04:00

Burglary; Impeachment; Sufficiency of Evidence

Jackson v. State, A03A0256

Appellant appealed his conviction for burglary. He first challenged the Court's omission of the word "therein" from its definition of burglary in instruction to the jury. The Court held that the lower court's charge that jurors could infer the intent to steal if the State proved an unlawful entry into a building that contained valuable items. Secondly, the appellant argued that it was error for the prosecutor to impeach her own witness with the police report. At trial, the witness testified that she did not identify the defendant as a suspect at the scene. The prosecutor received permission to lead the witness and impeached the witness with the police report after calling her attention to the specific circumstances of the statement. The Court held that the prosecutor properly impeached the witness with the statement.

Appellant also challenged the showup identification of the defendant at the scene. When the witness saw the suspect at the scene, he was surrounded by police officers. Though the court acknowledged that the one-on-one showup was suggestive, it held tha that there was no misidentification in the case because the witness had accurately described his clothing and physical features before she saw him.

Finally, the court held that the State did not need to present evidence that the defendant had stolen items in his possession to convict him of burglary, reasoning that the intent to steal was sufficient if there were goods inside the building.

2003-04-11T16:33:00.000-04:00

Dad, Can I Borrow the Car if I Don't Get Caught?

Metropolitan Property and Casualty v. McCall v. Smallwood, A03A0062

Defendants appealed the lower court's denial of their motion for summary judgment. Plaintiff sued the car's owners for an accident that took place while their adult son was driving the vehicle. At the time, the son did not have a valid driver's license. When deposed, the son testified that his father told him "not to get caught driving the vehicle" or he would have to take the car away from his live-in girlfriend. The testimony showed that the girlfriend frequently used the car and did not generally need to ask permission to use it. The son had no insurance to drive the vehicle, but plaintiffs sued the parents on a negligent entrustment theory, arguing that he was an authorized user who was covered by the insurance policy. The Court found that there was no question of fact that the son had not been given permission to use the car.

Judge Barnes, in her dissent (joined by Eldridge) argued that the lower court correctly found an issue of fact for the jury. The son's testimony that his father told him not to "get caught" driving suggested that he really allowed the son to drive the vehicle. Further, deposition testimony that the parents had given them the car because they were going through hard times suggested that the son had permission to use it.

2003-04-10T17:52:00.000-04:00

No Error when All Witnesses for the State Allowed to Remain in Courtroom After Appellant Invoked the Rule

In the Interest of J.B., A03A0452

A parent appealed the lower court's finding of deprivation. Specifically, she argued that the juvenile court erred by allowing witnesses for DFCS to remain in the room after she invoked the rule of sequestration. The Court held that the lower court used its discretion properly when it decided to allow the witnesses to testify because the appellant could not show that she was harmed. The three witnesses testified about different events. Hence, there was no danger of improper influence or of witnesses shaping their testimony to force consistency. Furthermore, the Court found no harm in the lower court requiring the mother to testify in the middle of the Department's case in chief. There was no due process violation because the court had the discretion with respect to the order of proof.

2003-04-09T17:23:00.000-04:00

Court Upholds Trial Court's Construction of Ambiguous Contract

Thomas v. B & I Lending, A02A2162

Plaintiff was the original founder of B&I Lending, the defendant in the case. When another company bought B&I, Thomas entered into an employment agreement with the company. B&I later determined that Thomas had breached the employment agreement and removed him from his position of Chief Executive Officer and President of the company. The parties entered into a standstill agreement providing that no party would file suit against the other during a set period of time. After that time, the company had the right to file suit first. After the standstill date passed, Thomas filed suit first in Georgia. The Court of Appeals held that the contract was ambiguous. One paragraph provided that the agreement would expire on May 31. Another provided that, after May 31, the company had the right to file first in Delaware. Because the paragraphs were contradictory, the Court held that it was proper for the lower court to ascertain the parties' intent when they entered the contract by looking at "all the attendant and surrounding circumstances." The lower court determined, after reviewing the evidence, that the parties meant to allow the "right to file first" provision to survive the May 31 date. The Court of appeals upheld that determination, because the lower court had evidence to support its conclusion.

2003-04-08T18:01:00.000-04:00

Counsel not Ineffective for Allowing Alternate Juror to Witness Jury Deliberations

London v. State, A03A0720

A judge with the Muscogee County Superior Court allowed an alternate juror to witness jury deliberations. Before dismissing the jury, the judge instructed the alternate not to participate, and defense counsel failed to object to the court's decision. Defense counsel also failed to have the court poll the jury to determine whether the alternate influenced the decision. Though O.C.G.A. Section 15-12-172 provided a presumption that the alternate influenced the deliberations, the State offered no testimony to rebut the presumption. However, the Court held that defense counsel waived the right to the presumption by not objecting to the alternate witnessing deliberations (question: how do you waive a presumption?). The panel affirmed the conviction, reasoning that the defendant should have spoken up because he was in the courtroom during the unrecorded bench conference when the defense attorney waived the objection (question: could he hear the conference from the counsel table?).

2003-04-04T22:27:00.000-05:00

Summary Judgment Affirmed Due to Lack of Evidence of Constructive Knowledge by Defendant

Ergas v. Home Depot, A03A0650

Plaintiff was injured while walking in Home Depot after a piece of wood fell from shelf and hurt his wrist. Ergas believed that the molding on the shelf was damaged after a Georgia-Pacific rep. was stacking wood on the shelf. Because Plaintiff could not show (1) that a Home Depot Employee was in the immediate area who could have seen the hazard and removed it and (2) that the broken piece of wood had not been on the shelf long enough that it should have been found upon reasonable inspection, summary judgment was proper.

2003-04-04T22:20:00.000-05:00

No Illegal Detention if Officer Asks for Consent to Search after Suspect is Free to Go

Daniel v. State, A03A0071

An officer stopped Daniel for weaving over the center line. The officer gave Daniel a warning ticket for driving without his license on person and directed one of the passengers to drive the car. After telling Daniel that he was free to go, he called Daniel back to talk to him for a minute. He then mentioned that they were having drug problems in Atlanta and asked for consent to search the car. The search revealed 1.6 ounces of crack cocaine. Daniel said that he consented to the search because he thought the refusal would "seem rude." The Court held that the officer had not lengthened the detention to investigate for drugs because the driver was already free to go when the officer began a tier one encounter. Because the officer did not ask a series of questions unrelated to the traffic stop, the officer did not detain the driver.

2003-04-04T10:27:00.000-05:00

Denial of Right to Open and Conclude Deemed Harmless

Starks v. State, A03A0821

Defendant presented no evidence at trial other than his own testimony. Yet, trial court denied him the right to open and conclude. Such denial, however, was harmless because the evidence was overwhelming against him. Further, the court did not err in its failure to grant a motion for mistrial because it was a discretionary issue and the prosecutor could cross-examine on character after defendant put his character at issue.

2003-04-04T10:21:00.000-05:00

Inmate Can Stay in County Jail on Appeal only if a Lawyer Makes the Request

Schwindler v. State, A03A0671

Pro se Appellant petitioned to remain in the Chatham County jail during the appellate process. The Court held that such request was only proper if made by an attorney seeking access to his client during the appellate process. Since a pro se appellant needs no such access to a lawyer, it was proper to put him into the system.

2003-04-04T10:15:00.000-05:00

Judge Could Hear Case, Though not Yet Appointed as a Judge

Hurst v. State, A03A0016

Appellant challenged the legality of his sentence because judge's appointment was not filed before trial in compliance with O.C.G.A. Section 15-1-9.1. The Court held that the issue was not preserved and that it was not necessary to file the appointment before trial.

2003-04-04T10:10:00.000-05:00

Directed Verdict, Mistrial, Preserving the Record

Gordian v. State, A03A0159

In spite of the fact that alleged victim claimed that she was not afraid during an encounter, evidence that she was found after the incident quivering, shaking, and crying was sufficient for a trier of fact to find that she was in reasonable apprehension of immediately receiving a violent injury. Hence, there was sufficient evidence to survive a directed verdict motion. A mistrial was not warranted after a witness testified that the defendant had "committed credit card fraud against her" (curative instruction was sufficient) and after prosecutor mistakenly said that defendant was charged with possession of a firearm by a convicted felon (slip of the tongue). Finally, the appellant's constitutional claim had not been preserved before the court below.

2003-04-04T10:01:00.000-05:00

Summary Judgment, Mootness

Rosales v. Davis, A03A0470

Plaintiffs sued after a red camaro struck their vehicle. Defendants admitted that they owned the camaro but claimed that their car had been stolen that they had reported it stolen an hour after they noticed it was missing. Plaintiffs offered only hearsay in an attempt to establish that Defendants could have been driving the vehicle. Lower court denied motion for summary judgment. Plaintiffs attempted to render the appellate issue moot by dismissing against Rosales and not dismissing against John Doe Defendant. The Court held that dismissal against fewer than all parties required leave of the court. Further, the Court held that Plaintiffs had failed to provide even circumstantial evidence sufficient to survive a motion for directed verdict

2003-04-04T09:41:00.000-05:00

Ineffective Assistance of Counsel; Indictment; Requests to Charge

Lopez v. State, A03A0470

Lopez was convicted of kidnapping and two counts of aggravated assault. He appealed the lower court's refusal to give a lesser included instruction of false imprisonment, arguing that "this would negate the element of holding them against their will." The Court reasoned that the argument was "nonsensical" since holding a person against his will is an essential element of false imprisonment and kidnapping. The Court also held that the lower court had no duty to grant a mistrial simply because a witness testified that he had interviewed suspects. Finally, the Court held that it is not error for counsel to fail to challenge the jury array, holding that the decision not to do so is sound trial strategy.

2003-04-04T08:39:00.000-05:00

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