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).