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”.