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]