CASE LAW UPDATE – OPINIONS WEEKLY 11/23/12

CASE LAW UPDATE – OPINIONS WEEKLY 11/23/12
Forfeiture

Davis v. Georgia, A12A1132 (11/15/2012) – OCGA § 16-13-49 (e) permits the forfeiture of property in drug cases involving more than “one gram of cocaine. In instant case, during forfeiture proceeding testified that the amount of drugs that was seized was approximately one gram and that it tested positive for cocaine (an undertermined amount of cocaine). In reversing the forfeiture, AC holds that the testimony was not sufficient to prove that it was more than one gram of cocaine.

Jury

Toomer v. State, S12A0976 (11/19/2012) – SC closely examines step 2 of the 3 step process in a Batson challenge (“(1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven [the proponent’s] discriminatory intent”). In overruling several prior Georgia appellate decisions, SC held “the proponent of the strike need not offer an explanation that is “concrete,” “tangible,” or “specific.” The explanation need not even be “case related.” The explanation for the strike only needs to be facially race-neutral. See Purkett, 514 U.S. at 766 (accepting as race-neutral the explanation that a struck juror “had long hair” and “a mustache and a goatee type beard” and “the mustaches and the beards look suspicious to me”)”. [This is a difficult case to summarize…and as a trial practitioner I encourage you to read the entire opinion including the dissent; my personal impression is that it gives both parties in a case a convenient way to avoid a Batson or a McCollum challenge.]

Parole

Pate v. State, A12A1279 (11/15/2012) – AC remands sentence because TC imposed special conditions of parole. “[A]ny attempt by a court to impose its will over the Executive [Branch] by attempting to impose as a part of a criminal sentence conditions operating as a prerequisite of or becoming automatically effective in the event of a subsequent parole of defendant by the State Board of Pardons [and] Paroles would be a nullity and constitute an exercise of power granted exclusively to the Executive [Branch].”

Speedy trial

Sosniak v. State, S12A0799 (11/19/2012) – Overruling prior decisions which allowed a direct appeal, SC holds that to appeal a denial of a pre-trial motion for a constitutional demand a defendant has to follow the interlocutory appeal procedures of OCGA § 5-6-34 (b).

Case Law Update from Opinions Weekly November 9 & 16, 2012

Business records

Registe v. State, S12A1190 (11/5/2012) – I included because it is rare to come across a case that discusses OCGA 16-11-66.1 (Access to stored wire and electronic communications and transactional records) and the relevant United States Code. In instant case, police subpoenaed phone records which telephone company complied with and turned over. D argued that it violated the above Georgia code. SC held that the subpoena was proper because “voluntary release of non-content records, including subscriber information, ‘to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency’.” In a separate dicta, SC also reminded us that “[a]s an initial matter, telephone billing records are business records owned by the telephone company, not the defendant. As a result, defendants generally lack standing to challenge the release of such records under the Fourth Amendment because they do not have a reasonable expectation of privacy in records belonging to someone else.”

Cross Examination

Howard v. State, A12A1465 (11/2/2012) – Although it did not raise to the level of reversible error (because of the facts of the case), this was quite disturbing. “As pertinent here, the transcript shows that the trial court called for a break during the prosecutor’s cross-examination of Howard. When the proceedings resumed, the prosecuting attorney first asked Howard if he had a chance to speak with his lawyer during the break, and Howard responded that he had a brief moment with him. The prosecuting attorney then said “Yeah, you were able to get your story together, weren’t you?” and defense counsel objected, calling the question “outrageous.” The trial court overruled the objection and the following exchange took place: Prosecuting Attorney: “You were getting your story together, weren’t you? Howard: “No. I don’t know what you’re talking about, I’m just having a consult with my lawyer, I don’t know what you mean by getting your story together.” Prosecuting Attorney: “Well, what did y’all talk about?” Howard: “That ain’t got nothing to do with you, that’s between me and my lawyer.” Prosecuting Attorney: “So you won’t tell us?” Howard: “You ain’t got nothing—that’s between [me] and my lawyer.” Prosecuting Attorney: “All right.” Defense counsel then offered to answer the question, and the Court admonished both counsel that they were not to testify in the presence of the jury. And the court also “remind[ed] the jury that nothing the lawyers have to say is evidence in this case.” The prosecuting attorney then moved onto another line of questioning. We have little hesitancy in concluding that it was improper for the prosecuting attorney to ask Howard what he and his attorney talked about and to raise the implication that Howard and his attorney were fabricating a defense, and to imply Howard’s failure to reveal his confidential conversation with his attorney meant he had something to hide. Further, we agree with Howard that the trial judge had an obligation to rebuke counsel, give curative instructions or grant a mistrial after a proper objection was made under the plain terms of OCGA § 17-8-75.”

Demurrer

Chapman v. State, A12A0839 (11/2/2012) – Good opinion to review as it explains general & special demurrer and the legal remedies available when a demurrer is not timely filed: “A motion in arrest of judgment or habeas corpus are the only remedies available when no demurrer to the indictment is interposed before judgment is entered on the verdict. Therefore, a motion for new trial is ordinarily not the proper method to attack the sufficiency of the indictment. But, this Court has made an exception [in cases such as this one] when the motion for new trial raises the ground of ineffective assistance of counsel.”

 

DUI less safe

State v. Jennings, A12A1598 (10/26/2012) – Officers responded to a suspicious vehicle outside a residence. Contact made with D who smelled of alcohol, glassy and blood shot eyes. No f/s/t because officer was not certified. Arrested for DUI less safe. TC held no pc for arrest. In affirming MTS, AC cites prior case law “[i]t is well established that evidence which shows only that a defendant had alcohol in [his] body while driving provides insufficient probable cause to arrest for DUI. Impaired driving ability depends solely upon an individual’s response to alcohol. Because individual responses to alcohol vary, the presence of alcohol, in a defendant’s body, by itself, does not support an inference that the defendant was an impaired driver. Moreover, we have repeatedly held that the odor of alcohol on a driver’s breath or a positive result on an alco-sensor test shows only the presence of alcohol and does not support an inference that the driver is intoxicated and it is less safe for [him] to drive. The probable cause needed to conduct an arrest for DUI requires that the officer have knowledge or reason-ably trustworthy information that a suspect was actually in physical control of a moving vehicle, while under the influence of alcohol to a degree which rendered [him] incapable of driving safely.” In the instant case, “[w]hile the officer testified about certain physical manifestations that might indicate impairment, he also testified that other factors, such as the uneven, gravel-covered terrain and fatigue, could have caused those physical manifestations.”

Similar Transactions

Talifero v. State, A12A0807 (11/6/2012) – V took co-D’s marijuana w/o paying for it. Some time later, co-D and D were in a car when they saw V. D allegedly encouraged co-D to shoot V. D and co-D arrested shortly after the shooting. Marijuana located in console that co-D took possession of. At trial, D’s prior conviction for CCW and marijuana possession was admitted as a similar (prior occurred during a car stop). AC reversed conviction holding it was error to allow similar transaction because it was not similar: “The prior act of concealing a weapon not only has no significant similarity to being a party to the crimes of aggravated assault and possession of a firearm during the commission of a felony by encouraging another person to act, it has no relevance to those crimes. In the present case,Talifero encouraged Chisholm to “go ahead and handle your business, do what you got to do, man,” after which Chisholm shot at the men. In the prior act, Talifero admitted to police during a traffic stop that he was carrying his own concealed weapon as a passenger in the vehicle in the company of another individual; there was no confrontation and no assault. There is simply no logical connection between the two crimes”.

Case Law Update – November 2, 2012

Case Law Update – November 2, 2012

Higdon v. State, S12G0033 (10/29/2012) – D charged with 3 separate accusations in Catoosa (2 for deposit account fraud, one for txt), and an indictment in Walker (burglary). D plead guilty on all 4 cases at the same time. TC denied first offender treatment. Interpreting the first offender statute OCGA 42-8-60 and the words “one occasion”, SC affirmed TC’s ruling. “In sum, we hold that once a “a verdict or plea of guilty or a plea of nolo contendere” has been entered on a charging instrument, and the trial court grants a defendant first offender status for the offense or offenses alleged in that instrument, the defendant has availed himself of the first offender article on “one occasion” and may not benefit from it as to a sentence entered on another indictment or accusation.” [Practice note: if the indictments are somewhat related and the prosecutor agrees to join the indictments, then a defendant may be able to avail himself of first offender treatment on more than one indictment/accusation]

Johnson v State, S12A1149 (10/29/12) – Shooting/murder occurred. A day later D was charged with possession of a weapon. The gun was tested and determined to be the gun used in the murder. In a separate case/trial, D was acquitted of the gun possession. During the murder trial, DC counsel argued collateral estoppel and gun should not be admissible. SC affirmed admissibility of the gun since DC “never offered into evidence or even proffered any of the record of the prior trial to support the collateral estoppel claim”. [Note- on appeal, AC introduced the sentencing judgment but curiously did not raise IAC].

Welch v. State, A12A1080 (10/25/12) – This case in and of itself is not earth shattering except that it briefly discusses Hatley v. State, 290 Ga. 480 (2012). If you have any case dealing with the child hearsay statute OCGA 24-3-16, you must read Hatley. In discussing how that statute can survive a Confrontation Clause attack, the Hatley court states:
“the prosecution . . . notif[ies] the defendant within a reasonable period of time prior to trial of its intent to use a child victim’s hearsay statements and . . . give[s] the defendant an opportunity to raise a Confrontation Clause objection. If the defendant objects, and the State wishes to introduce hearsay statements under OCGA § 24-3-16, the State must present the child witness at trial; if the defendant does not object, the State can introduce the child victim’s hearsay statements subject to the trial court’s determination that the circumstances of the statements provide sufficient indicia of reliability.”

Richardson v. State, A12A1157 (10/23/2012) – Two tier analysis when considering a motion to dismiss on constitutional speedy grounds: (1) “whether the delay is long enough to be presumptively prejudicial”. If yes, then (2) “whether the delay constituted a speedy trial violation”. For the second tier, the four Barker-Doggett factors are to considered: (a) whether the delay is uncommonly long; (b) the reasons and responsibilities for the delay; (c) the defendant’s assertion of the right to a speedy trial; and (d) the prejudice to the defendant. [good opinion to review if dealing with this issue]

Case law update week October 12, 2012

Case law update week October 12, 2012

Doyle v. State, S12A1036 (10/15/12) – Case provides a good reminder that if your client testifies, be careful not to ask questions explaining why the client did not contact the police or talk to anyone about the incident prior to his testimony. Prosecutor on cross and closing essentially commented on D’s silence or failure to come forward. Supreme Court held that was proper since D opened the door on direct.

Powell v. State, S12A1311 (10/15/12) – Prosecutor during closing stated: “If we think it’s a bad arrest, if we think there’s not enough evidence, what hap- pens to that case? It goes. We don’t bring it to indictment if we think the person is innocent, if there is not enough evidence.” Defense did not object. SC holds that although improper it does not rise to IAC level.

Owens v. State, A12A0881 (10/9/12) – Conviction reversed on IAC grounds when defense counsel failed to object to improper opinion testimony as to the identity of the perpetrator (witnesses testified that person on video surveillance was D). “It is well established in our case law that it is improper to allow a witness to “testify as to the identity of a person in a video or photograph when such opinion evidence tends only to establish a fact which average jurors could decide thinking for themselves and drawing their own conclusions”.

Case Law Update October 8-12, 2012

State v. Cleveland, A12A1148 (10/5/12): Car stopped for seat belt violation. D seated in back kept acting nervous and moving around. Officer also knew D previously arrested for drugs.  Terry pat down ruled valid but search of shoes exceeded the scope and drugs suppressed. [great analysis of Terry and pat downs]

Henley v. State, A12A1542 (10/3/12): During probation revocation hearing, the only evidence submitted that D committed a new felony offense was hearsay (there was other non-hearsay evidence that D committed misdemeanors).  Appellate court remands trial court’s ruling that revoked D’s probation for 4 years (max having to be 2 years).

Fisher v. State, A12A0976 (10/3/12): Held that trial court’s curative instruction was sufficient.  Nonetheless, watch out for the “golden rule” argument. In closing, prosecutor after discussing what the V must have felt during the crime: “what we can do is make sure that the people, each and every one of them that participated in that, are responsible for what happened because let me tell you[,] that could have been you, that could have been me, and that could have been our children that walked into that store.”

Case Law Update week of October 1-5, 2012

Case law update…Week of October 1-5, 2012

Grill v. State, S12A1177 (10/1/12): Defendant convicted for two counts of aggravated assault when he fired at the victim in quick succession. Citing a prior case, Supreme Court vacated one of the counts holding “[w]hen a victim suffers multiple wounds inflicted in quick succession, each infliction of injury does not constitute a separate assault.”

Simmons v. State, S12A0979 (10/1/12): As the first appearance judge was reading the charges and rights, Defendant spontaneously stated “I”m guilty, I’m guilty”. Supreme Court held these statements are admissible.

Johnson v, State, S12A1225 (10/1/12): Juror allowed to remain on the jury in spite of the fact that he said said that he expects the defendant to testify. Supreme Court held that juror’s later statement that he would do his best to follow the law as instructed was enough for him not to be struck for cause.

McBride v. State, S12A0843 (10/1/12): Evidence properly excluded where Defendant attempted to introduce evidence that the victim was smoking marijuana or distributing drugs at the time of his demise. Supreme Court held that there was insufficient factual nexus between this evidence and the conclusion for which it was being offered.

Leger v. State, S12A0833 (10/1/12): Supreme Court held evidence properly admitted: (1) A book titled FUGITIVE: How to Run, Hide, and Survive that was found in Defendant’s house since it is potentially evidence of flight which is relevant to question of guilt; (2) Defendant’s tattoo “God forgive me” that he got sometime after victim’s death and before his jury trial.

State v. Wilson, A12A1122 (9/25/12): Good and brief explanation of general and special demurrers.

State v. Wolf, A12A1117 (9/28/12): MTS upheld. Mailman calls the police after observing a vehicle with 3 occupants leaving a residence (suspected burglary). A day later, officer patrolling area (area with high number of burglaries) sees the same type vehicle and stops it. Drugs suppressed as Court of Appeals finds no a/s or p/c. [great opinion to review]