May 12, 2014 at 4:12 PM

Remember when prior DUI’s were always admissible as similar transactions? Yeah, well.

Posted by in DUI, Evidence

Jones v. State, A13A1940, ___ Ga.App. ___, ___ S.E.2d ___, 14 FCDR 1127, 2014 WL 1259124 (March 28, 2014). DUI convictions reversed; trial court erred by admitting evidence of prior DUI as similar transaction under 2013 Evidence Code. In both incidents, defendant took State breath test; evidence was admitted “for the purpose of showing ‘[k]nowledge and intent,’ that is, ‘the intent to drive knowing that he was less safe … because he was before.’” Court of Appeals reverses, holding that no showing of intent or knowledge was relevant, given that DUI is a general intent crime. 1. Intent. “‘Evidence is relevant which logically tends to prove or disprove any material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant.’ Hoffer v. State, 192 Ga.App. 378, 382–383(3)(b), 384 S.E.2d 902 (1989) (citation and punctuation omitted). ‘The relevance of other crimes evidence to intent is determined by comparing the defendant’s state of mind in committing both the extrinsic and charged offenses.’ United States v. Zapata, supra, 139 F.3d 1355, 1358 (11th Cir., 1998) (citation omitted). Where the issue addressed is the defendant’s intent to commit the offense charged, the relevancy of the extrinsic offense derives from the defendant’s indulging himself in the same state of mind in the perpetration of both the extrinsic and charged offenses. The reasoning is that because the defendant had unlawful intent in the extrinsic offense, it is less likely that he had lawful intent in the present offense. United States v. Beechum, 582 F.2d 898, 911(III)(C) (5th Cir., 1978) (footnote omitted). See United States v. Delgado, 56 F.3d 1357 (11th Cir., 1995) (stating that the Eleventh Circuit court ‘look[s] to Beechum, the seminal case in any Eleventh Circuit 404(b) analysis, and its progeny to discern whether the district judge abused his discretion in admitting … other crimes evidence.’). In this case, the evidence adduced at trial, absent the similar transaction evidence, was sufficient to enable a rational trier of fact to find that Jones intended to drive after he had consumed alcohol to the extent that he was a less safe driver on January 21, 2011. See Prine [v. State, 237 Ga.App. 679, 515 S.E.2d 425 (1999)] (‘the “intent” required is proved through proof of the commission of the act itself’); see generally Collins v. State, 177 Ga.App. 758, 759(2), 341 S.E.2d 288 (1986). The additional evidence that he had done so on a prior occasion did not logically tend to prove that Jones did so in this instance, because no culpable mental state was required to commit the crime in the first place. See generally [State v. Ogilvie, 292 Ga. 6, 8–9(2)(a), 734 S.E.2d 50 (2012)]; Myers [v. State, 302 Ga.App. 753, 691 S.E.2d 650 (2010)]; Hoffer [v. State, 192 Ga.App. 378, 380(1), 384 S.E.2d 902 (1989)]. Accordingly, the trial court erred in permitting the similar transaction evidence to be admitted to prove intent. See generally McMullen v. State, 316 Ga.App. 684, 690–693(2), 730 S.E.2d 151 (2012); King v. State, 230 Ga.App. 301–304(1), 496 S.E.2d 312 (1998).” 2. Knowledge. “Admission of the similar transaction evidence as proof that Jones knew that drinking alcoholic beverages made him a less safe driver did not elucidate or throw light upon whether, in this instance, he committed the same crime again; no culpable mental state was required.” Distinguishing cases where prior DUI was admitted to show malice as an element of murder or manslaughter. “In this case, the purposes for which the trial court admitted evidence of the prior conviction were not relevant to, or probative of, the commission of the crime charged. The state has not set forth any appropriate purpose for which evidence of the prior DUI conviction was admitted, and we find none.”

at 2:09 PM

Judicial comment reverses voluntary manslaughter conviction

New case!Haymer v. State, 323 Ga.App. 874, 747 S.E.2d 512 (August 27, 2013). Physical precedent only. Conviction for voluntary manslaughter and aggravated assault reversed based on trial court’s improper comment. During cross, defense counsel got detective to admit that he lied to defendant during interrogation about having found his fingerprints on a cellphone at the scene. Trial court interrupted, commenting “it’s quite all right for the police officers to do that in order to test a person. So move on.” Held, trial court’s comment could be seen by jury as expressing opinion on both detective’s credibility and voluntariness of defendant’s statement. “Through its comment, the trial court gave its imprimatur to the interrogation techniques used by the detectives while interviewing Haymer. Consequently, as in Murphy [v. State, 290 Ga. 459, 722 S.E.2d 51 (2012)], the trial court’s comment could have been construed by the jury as expressing a favorable opinion on the lead detective’s abilities and thus as bolstering his credibility, which was a disputed material fact in this case. Furthermore, in Dean v. State, 168 Ga.App. 172, 174–176(3), 308 S.E.2d 434 (1983), we held that the trial court’s comment before the jury that a police interrogation complied with constitutional and statutory requirements constituted an impermissible expression of opinion. We reasoned that such a comment, which was made in the context of the trial court ruling on the admissibility of the defendant’s statement to the police, improperly bolstered the credibility of the interrogating officer and invaded the province of the jury, which was charged with ultimately determining what weight, if any, to given to the defendant’s statement. Id. See also Chumley [v. State, 282 Ga. 855, 856-858(2), 655 S.E.2d 813 (2008)]; Ray v. State, 181 Ga.App. 42, 44(3), 351 S.E.2d 490 (1986). Like in Dean, by intimating its approval of the lead detective’s interrogation techniques, the trial court bolstered the credibility of the detective and invaded the province of the jury, which was charged with ultimately determining what weight to afford the conflicting statements made by Haymer.” Acknowledging that the court may generally explain rulings, “there nevertheless is a line that the trial court cannot cross when explaining the basis for its ruling. As the Supreme Court indicated in Murphy, 290 Ga. at 460–461(2), 722 S.E.2d 51, gratuitous comments before the jury that go beyond explaining a ruling and plainly intimate the trial court’s opinion on the credibility of a witness or on a disputed issue of material fact are improper under OCGA § 17–8–57. See also Boyd v. State, 286 Ga. 166, 168(3), 686 S.E.2d 109 (2009) (‘Pertinent remarks made by a trial court in discussing the admissibility of evidence or explaining its rulings do not constitute prohibited expressions of opinion.’) (citations and punctuation omitted; emphasis supplied). Here, the trial court went beyond ruling that defense counsel’s question was argumentative to gratuitously comment on the propriety of the lead detective’s interrogation techniques, and, therefore, the court’s remark comes within the parameters outlined in Murphy.

May 1, 2014 at 12:29 PM

Georgia Supremes: Georgia law limits expert evidence on low IQ

Posted by in Evidence

New case!Thompson v. State, S14A0235, ___ Ga. ___, ___ S.E.2d ___, 14 FCDR
____, 2014 WL 1588478 (April 22, 2014). Felony murder conviction affirmed;
trial court properly excluded expert evidence of defendant’s low IQ, “which,
his counsel argued, was relevant to his defense that the shooting was
accidental because his mental disability prevented him from understanding how
to use the crossbow properly.” “Evidence of a criminal defendant’s mental
disability may be presented in support of a defense of insanity or delusional
compulsion (see OCGA §§ 16–3–2 and 16–3–3); a claim of incompetency to stand trial
(see OCGA § 17–7–130); or, since such pleas were authorized, a plea of guilty
but mentally ill or guilty but mentally retarded (see OCGA § 17–7–131)—none of
which Appellant raised in this case.[fn] For more than 150 years, however, this
Court has consistently upheld the exclusion of evidence of a defendant’s
diminished mental condition when offered to support othe r defenses or to
negate the intent element of a crime. See, e.g., State v. Abernathy, 289
Ga. 603, 607–608, 715 S.E.2d 48 (2011) (‘“[M]ental abnormality, unless it
amounts to insanity, is not a defense to a crime.”’) (quoting Wallace v.
State
, 248 Ga. 255, 262 (282 S.E.2d 325 (1981)); Paul v. State, 274
Ga. 601, 603, 555 S.E.2d 716 (2001) (rejecting the defendant’s argument that
‘he was entitled to introduce expert evidence of his mental impairment tending
to show his lack of intent to kill,’ because ‘the expert evidence was
irrelevant to the state of mind necessary to determine guilt in light of the
defendant’s refusal to assert an insanity defense or that he was mentally ill
at the time of the conduct in question’); Selman v. State, 267 Ga. 198,
200, 475 S.E.2d 892 (1996) (same); Reece v. State, 212 Ga. 609, 609–610,
94 S.E.2d 723 (1956) (‘Weak-mindedness alone is no defense to crime. The evidence
in the record that the defendant had the m entality of a child nine or ten
years old does not relieve him from responsibility for crime.’ (citation
omitted)); McKethan v. State, 201 Ga. 23, 38, 39 S.E.2d 15 (1946) (‘That
the accused, though able to distinguish between right and wrong, might be
unable to evaluate the quality and consequences of his act to the same degree
as a normal or average individual, is no defense.’); Goosby v. State,
153 Ga. 496, 496, 112 S.E. 467 (1922) (holding that the trial court did not err
in prohibiting a witness from testifying that the defendant was ‘weak-minded,’
because ‘the answer would have been immaterial, as weakness of mind would not
have constituted a defense nor excused the crime’); Rogers v. State, 128
Ga. 67, 68, 57 S.E. 227 (1907) (affirming the exclusion of evidence that ‘the
defendant, from the time of his childhood, had been of feeble intellect and
weak intelligence,’ because the defense was not that he ‘was either an idiot or
an insane person, or that he labored, at the time of the homicide, under any
form of delusional insanity’); Studstill v. State, 7 Ga. 2, 3[6] (1849)
(‘It is not competent to prove that the defendant is of weak mind, where it is
admitted that he is neither idiot, lunatic nor insane.’), overruled on other
grounds in Armistead v. State, 18 Ga. 704, 707 (1855).[fn] See also Bryant
v. State
, 271 Ga. 99, 101, 515 S.E.2d 836 (1999) (affirming the exclusion
of expert testimony that the defendant suffered from post-traumatic stress
disorder stemming from childhood sexual abuse because that mental state was
‘not relevant to Bryant’s defense of accident’ in shooting the victim). It
should be noted that Georgia takes a more restrictive position on this issue
than many other jurisdictions, where the admission of evidence relating to a
defendant’s deficient mental condition to support defenses other than those
based on diminished mental capacity or to negate a required element of a crime
has b een authorized by statute or judicial decision in at least some
circumstances. See generally Paul H. Robinson et al, Criminal Law Defenses,
Vol. 1, § 64(a) (2013). Georgia, however, is not such a jurisdiction, and if
the law established by our longstanding precedent is to change, it would be
better done as a matter of public policy legislated by the General Assembly.”
Benham concurs specially, encouraging legislative reform. Melton concurs in
judgment only.

at 12:27 PM

U.S.Supremes: anonymous 911 call supports DUI stop

New case!Prado-Navarette v. California, 12-9490, ___ U.S. ____, 134 S.Ct. ____, ___
L.Ed.2d ___, 2014 WL 1577513 (April 22, 2014). Affirming California
Court of Appeal; trial court properly denied motion to suppress, as officers
had articulable suspicion for stop. Stop was based on call to 911 from
anonymous source, who said she’d been forced from the road at a certain
location, giving a description of the offending vehicle including make, model
and tag number. The officer encountered the described vehicle about 18 minutes
later, about 19 miles away on the same highway. The officers smelled marijuana
as they approached the vehicle, and ultimately found 30 pounds of marijuana in
the truck. 1. Anonymous tip “was sufficiently reliable to credit the
allegation that [defendant’s] truck ‘ran the [caller] off the roadway.’”
Indicia of reliability here: caller’s claim of eyewitness knowledge and
contemporaneous call to 911; officers’ location of defendant’s v ehicle
consistent with caller’s report; and caller’s use of 911, which gives law
enforcement the ability to identify and trace callers. a. “By reporting that
she had been run off the road by a specific vehicle … the caller necessarily
claimed eyewitness knowledge of the alleged dangerous driving.
That basis
of knowledge lends significant support to the tip’s reliability. [Illinois
v. Gates
, 462 U.S. 213, 234, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)]. (‘[An
informant's] explicit and detailed description of alleged wrongdoing, along
with a statement that the event was observed firsthand, entitles his tip to
greater weight than might otherwise be the case’); Spinelli v. United States,
393 U. S. 410, 416 (1969) (a tip of illegal gambling is less reliable when ‘it
is not alleged that the informant personally observed [the defendant] at work
or that he had ever placed a bet with him‘).” b. Contemporaneous reports are
“treated as especially reliable,”
citing h earsay exceptions for present
sense impressions and excited utterances. c. Use of 911. “A 911 call has
some features that allow for identifying and tracing callers, and thus provide
some safeguards against making false reports with immunity. … As this case
illustrates … 911 calls can be recorded, which provides victims with an
opportunity to identify the false tipster’s voice and subject him to
prosecution. … The 911 system also permits law enforcement to verify important
information about the caller.” (Cits. omitted). “None of this is to suggest
that tips in 911 calls are per se reliable. Given the foregoing
technological and regulatory developments, however, a reasonable officer could
conclude that a false tipster would think twice before using such a system. The
caller’s use of the 911 system is therefore one of the relevant circumstances
that, taken together, justified the officer’s reliance on the information
reported in the 911 call.” 2. Content of repo rt was sufficient to raise
articulable suspicion of “drunk driving.”
“Reasonable suspicion depends on
the factual and practical considerations of everyday life on which reasonable
and prudent men, not legal technicians, act. Under that commonsense approach,
we can appropriately recognize certain driving behaviors as sound indicia of
drunk driving,” citing cases from various jurisdictions finding
articulable suspicion of impaired driving based on ‘weaving all over the
roadway,’ ‘cross[ing] over the center line’ on a highway and ‘almost caus[ing]
several head-on collisions’ driving ‘all over the road’ and ‘weaving back and
forth,’ and ‘driving in the median.’ “Indeed, the accumulated experience of
thousands of officers suggests that these sorts of erratic behaviors are
strongly correlated with drunk driving. See Nat. Highway Traffic Safety Admin.,
The Visual Detection of DWI Motorists 4-5 (Mar. 2010), online at http://nhtsa.gov/staticfiles/nti/pdf/808677.pdf
(as v isited Apr. 18, 2014, and available in Clerk of Court’s case file). Of
course, not all traffic infractions imply intoxication.
Unconfirmed reports
of driving without a seatbelt or slightly over the speed limit, for example,
are so tenuously connected to drunk driving that a stop on those grounds alone
would be constitutionally suspect. But a reliable tip alleging the dangerous
behaviors discussed above generally would justify a traffic stop on suspicion
of drunk driving. The 911 caller in this case reported more than a minor
traffic infraction and more than a conclusory allegation of drunk or reckless
driving. Instead, she alleged a specific and dangerous result of the driver’s
conduct: running another car off the highway. That conduct bears too great a
resemblance to paradigmatic manifestations of drunk driving to be dismissed as
an isolated example of recklessness. Running another vehicle off the road
suggests lane-positioning problems, decreased vigilance, impair ed judgment, or
some combination of those recognized drunk driving cues. See Visual Detection
of DWI Motorists 4-5. And the experience of many officers suggests that a
driver who almost strikes a vehicle or another object – the exact scenario that
ordinarily causes ‘running [another vehicle] off the roadway’ – is likely
intoxicated. See id., at 5, 8. As a result, we cannot say that the officer
acted unreasonably under these circumstances in stopping a driver whose alleged
conduct was a significant indicator of drunk driving.” This is true although
“the reported behavior might also be explained by, for example, a driver
responding to an unruly child or other distraction. But we have consistently
recognized that reasonable suspicion ‘need not rule out the possibility of
innocent conduct.’
United States v. Arvizu, 534 U.S. 266, 277, 122
S.Ct. 744, 151 L.Ed.2d 740 (2002). Nor did the absence of additional suspicious
conduct, after the vehicle was first spotted by an officer, dispel the
reasonable suspicion of drunk driving. It is hardly surprising that the
appearance of a marked police car would inspire more careful driving for a
time. Cf. Arvizu, supra, at 275 (‘[s]lowing down after spotting a law
enforcement vehicle’ does not dispel reasonable suspicion of criminal activity).
Extended observation of an allegedly drunk driver might eventually dispel a
reasonable suspicion of intoxication, but the 5-minute period in this case
hardly sufficed in that regard.” Scalia, writing for Ginsburg, Sotomayor and
Kagan, dissents on each point,
additionally noting “The circumstances
that may justify a stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868,
20 L.Ed.2d 889 (1968), to investigate past criminal activity are far from
clear,
see United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct.
675, 83 L.Ed.2d 604 (1985), and have not been discussed in this litigation.”

November 15, 2013 at 12:33 PM

Convictions reversed; judge’s affair with public defender required recusal

Posted by in Procedure

New case!State v. Wakefield, A13A1436, ___ Ga.App. ___, ___ S.E.2d ___, 13 FCDR ____, 2013 WL 5951946 (November 8, 2013). Convictions of five unrelated defendants reversed based on judicial misconduct; evidence supported finding that judge who presided at trials was then involved in an undisclosed sexual relationship with the public defender who represented defendants. 1. Judge violated Canon 3(E)(1) of the Code of Judicial Conduct “when he failed to disclose his [sexual] relationship with [public defender] Cornwell or to recuse himself from these trials.” Canon 3(E)(1) “provides in relevant part: ‘Judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned, including but not limited to instances where … (a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding.’ (Emphasis supplied.) … To disqualify a judge, a bias ‘must be of such a nature and intensity to prevent the complaining party from obtaining a trial uninfluenced by the court’s prejudgment.’ [Jones County v. A Mining Group, 285 Ga. 465, 467 (678 S.E.2d 474) (2009)]; see also Hargrove v. State, 299 Ga.App. 27, 31–32(2) (681 S.E.2d 707) (2009) (a trial court’s failure to recuse sua sponte ‘“will warrant reversal only where the conduct or remark of the judge constitutes an egregious violation of a specific ethical standard, and it must support the inescapable conclusion that a reasonable person would consider the judge to harbor a bias that affects his ability to be impartial”’) (emphasis in original), quoting Lemming v. State, 292 Ga.App. 138, 141(1) (663 S.E.2d 375) (2008)).” “[T]he record before us supports a reasonable inference that Judge English’s ongoing and intimate relationship with Cornwell during each of the five trials at issue caused him to harbor a bias ‘of such a nature and intensity to prevent the complaining party from obtaining a trial uninfluenced by the court’s prejudgment’ and could lead to ‘a reasonable perception of lack of impartiality by the judge, held by a fairminded and impartial person based upon objective fact or reasonable inference.’ Jones County, 285 Ga. at 466–467; see also New York Advisory Committee on Judicial Ethics, Opinion 11–45 (April 28, 2011) (if a relationship between an attorney and a judge is ‘ongoing and appears to be sufficiently close as to give rise to a perception that the judge’s impartiality might reasonably be questioned,’ or ‘is such that a reasonable person could reasonably conclude that the relationship might influence the judge—and thus call into question the judge’s impartiality,’ then ‘disqualification is required’). As other courts have held in similar circumstances, we therefore conclude that when Judge English failed to disclose his relationship with Cornwell or to recuse himself from the trials at issue here, he violated Canon 3(E)(1). See Inquiry Concerning Trammell, 48 Cal.4th CJP Supp. 56, 63–65 (1999) (judge who engaged in a sexual relationship with a criminal defendant while presiding over cases against two co-defendants was guilty of ‘willful misconduct,’ including ‘bad faith’ in his ‘corrupt purpose’ of furthering that relationship, and violated Canon 3(E) when he failed to disclose the relationship).” 2. “Judge English’s violation of Canon 3(E) is not harmless error. As our Supreme Court has recently emphasized, ‘[j]udicial integrity is a state interest of the highest order because the power and prerogative of a court to resolve disputes rests upon the respect accorded by citizens to a court’s judgments which, in turn, depends upon the issuing court’s absolute probity.’ (Citation and punctuation omitted.) [Mayor & Alderman of City of Savannah v. Batson-Cook Co., 291 Ga. 114, 728 S.E.2d 189 (May 29, 2012), see below]. ‘It is vital to the functioning of the courts that the public believe in the absolute integrity and impartiality of its judges, and judicial recusal serves as a linchpin for the underlying proposition that a court should be fair and impartial.’ (Citation omitted.) Id. Specifically, Canon 3 E(1), ‘an inclusive catch-all provision for analysis of alleged disqualifying judicial conduct,’ sets ‘a general standard that the appearance of partiality requires recusal [.]’ Id. at 121(2) (emphasis supplied).” 3. Makes no finding on the propriety of trial court’s finding that defendants were denied due process by the secret relationship between the judge and public defender.

at 12:32 PM

Can you steal a house without taking it anywhere? Yes, says CoA

Posted by in Offenses

New case!Harris v. State, A13A1427, ___ Ga.App. ___, ___ S.E.2d ___, 13 FCDR 3397, 2013 WL 5813641 (October 30, 2013). Theft by taking, RICO and related convictions affirmed. 1. Asportation not an element of theft. Convicted of theft of real property – vacant homes that defendant and his co-defendants took over and leased out – defendant wrongly argues that the State was required to prove asportation as an element of theft. Defendant “argues that he actually ‘took’ nothing because the property involved was real property which remained in its original place at all times. But this argument is belied by the statutory definition of the offense, which may be committed ‘regardless of the manner in which the property is taken or appropriated. (Emphasis supplied.) OCGA § 16–18–2. Thus, we have held that ‘[t]he word “theft” is not, like “larceny,” a technical word of art with narrowly defined meaning, but a word of general and broad connotation, covering any criminal appropriation of another’s property to the taker’s use.‘ (Punctuation omitted; emphasis supplied.) Ruppert v. State, 284 Ga.App. 456, 458(1)(a) (643 S.E.2d 892) (2007). The statute does not define the term ‘appropriate,’ but we note the definition in Black’s Law Dictionary: ‘[t]o make a thing one’s own … to exercise dominion over an object to the extent, and for the purpose, of making it subserve one’s own proper use or pleasure.’ Black’s Law Dictionary (6th ed., 1990). See also Doe v. State, 290 Ga. 667, 668 (725 S.E.2d 234) (2012) (‘In construing [a] statute, we apply the fundamental rules of statutory construction that require us to construe the statute according to its terms, to give words their plain and ordinary meaning….’). In this case, the evidence authorized a finding that Harris, without permission from the rightful owner, made use of real property by charging rent to tenants. This unauthorized exercise of dominion over the real property was sufficient to support his conviction for theft by taking.” 2. Intent. “Harris also argues that, based on evidence that he was willing to return the property if the rightful owner ever inquired, he lacked intent to steal the properties. But ‘regardless of whether [Harris] intended to take the [properties] and withhold [them] permanently, his intent to take [them] for his own temporary use without the owner[s'] authorization evinces an intent to commit a theft. Once criminal intent at the time of taking is proved, it becomes irrelevant whether the deprivation is permanent or temporary.’ (Punctuation omitted.) Smith v. State, 172 Ga.App. 356, 357(2) (323 S.E.2d 257) (1984).”

at 12:30 PM

Loitering statute makes allowances for muggles, CoA says

New case!Isenhower v. State, 324 Ga.App. 380, 750 S.E.2d 703 (October 28, 2013). Evidence didn’t support conviction for loitering on school property, where evidence showed that defendant left when told to do so. “[I]t is logical that upon being asked to leave by Edwards, Isenhower could not simply vanish into thin air, ‘disapparating’ like a character in one of J.K. Rowling’s ‘Harry Potter’ novels. (Isenhower was, after all, at Heard County High School, not Hogwarts.) Rather, before running afoul of the statute and violating its prohibition on any willful failure to remove herself, OCGA § 20–2–1180(b)(1), Isenhower first had to be given some reasonable amount of time to remove herself from the second floor of the building, reach her vehicle in the parking lot below, and drive off the school grounds. See generally Pressley v. State, 269 Ga.App. 143, 145(1)(c), 603 S.E.2d 699 (2004) (in the context of criminal trespass, OCGA § 16–7–21(b), to sustain a conviction, the person charged must be given a ‘reasonable amount of time’ to leave and must fail to do so); Hall v. State, 322 Ga.App. 313(3) 744 S.E.2d 833 (June 18, 2013) (in the context of loitering, OCGA § 16–11–36, courts have considered the length of time a defendant was present on the premises as a factor in determining guilt) and Hubbard v. State, 311 Ga.App. 671, 673(1), 716 S.E.2d 777 (2011) (same). The undisputed testimony shows that Isenhower spent approximately two to four minutes walking from the second floor of the building to the parking lot. No testimony indicates that she intentionally delayed in driving off school premises, nor does any testimony show that she resisted leaving.”

at 12:27 PM

Trial jurors still not entitled to take notes

New case!Owens v. State, A13A1449, ___ Ga.App. ___, ___ S.E.2d ___, 13 FCDR 3260, 2013 WL 5543182 (October 9, 2013). Armed robbery conviction affirmed; no ineffective assistance based on failure to ensure that jurors were provided with note pads and pencils. Trial court noted the omission as the State’s fifth witness was called, and offered note pads to the jurors, but they declined. “Owens argues that notepads would have been helpful to the jury in light of conflicts in the evidence already presented. … We know of no provision entitling a defendant to demand that jurors be furnished with the means for taking notes in every case, nor has Owens pointed us to any such law. To the contrary, absent special or unusual circumstances, the decision whether to allow the jury to take notes lies in the sound discretion of the trial court. See Potts v. State, 259 Ga. 96, 104(21), 376 S.E.2d 851 (1989) (trial court did not abuse discretion in allowing jurors to take notes); Miller v. State, 307 Ga.App. 598, 598–599, 705 S.E.2d 697 (2011) (within trial court’s discretion to allow jurors to take notes); Williamson v. State, 142 Ga.App. 177, 178(3), 235 S.E.2d 643 (1977) (trial court did not abuse discretion in instructing juror not to take notes because the case was not complicated); White v. State, 137 Ga.App. 9, 10(1), 223 S.E.2d 24 (1975) (in absence of special or unusual circumstances, note-taking left to judge’s discretion). We find no special or unusual circumstances in this case sufficient to remove the issue of note-taking from the trial court’s discretion. Therefore, Owens has failed to establish that his trial counsel was deficient in failing to move for a mistrial or to demand that writing materials be furnished to the jury.”

at 12:27 PM

Runaway (special grand) jury couldn’t explore subjects outside mandate

New case!State v. Lampl, 325 Ga.App. 344, 750 S.E.2d 685 (October 28, 2013). Trial court properly granted motion to dismiss charge of perjury; special grand jury was improperly considering a matter beyond the scope of its charge when defendant testified. Special grand jury was summoned to investigate matters pertaining to county officials and employees; the project as to which defendant testified was a city, not county, project, and defendant himself was a city, not a county, employee. “A special purpose grand jury may be impaneled ‘for the purpose of investigating any alleged violation of the laws of this state or any other matter subject to investigation by grand juries as provided by law.’ OCGA § 15–12–100(a). … In this case, the Clayton County Superior Court entered an order impaneling the special purpose grand jury ‘for the purpose of investigating public corruption and various crimes allegedly committed by currently or previously elected county officials and county employees.’ It is undisputed that Lampl was an employee of the City of Morrow, and that he was neither a currently or previously elected county official or county employee. Furthermore, our review of the transcripts of the special purpose grand jury proceedings indicate that the investigation focused on Lampl and the contracting irregularities related to the Olde Towne Morrow project, a matter that did not involve county officials or county employees. Accordingly, we agree with the trial court that the special purpose grand jury did not have the authority to investigate Lampl or the Olde Towne Morrow project. Likewise, we agree with the trial court that the special purpose grand jury lacked the authority to subpoena Lampl for the purpose of investigating the Olde Towne Morrow project and his involvement in the same. While a special purpose grand jury may subpoena witnesses and compel evidence, its power to do so is limited to matters which relate directly or indirectly to the authorized investigation. See OCGA § 15–12–100(c). Here, the special purpose grand jury was not authorized to investigate Lampl or the Olde Towne Morrow project. As Lampl’s perjury charge arose out of his testimony during this unauthorized investigation, the trial court did not err in dismissing the perjury count. See State v. Bartel, 223 Ga.App. 696, 696–697, 479 S.E.2d 4 (1996) (‘The law of Georgia does authorize a perjury prosecution against witnesses who swear falsely in testimony before local grand juries conducting civil investigations, so long as the grand jury is lawfully conducting an investigation authorized by state law’) (emphasis supplied).”

at 12:26 PM

Willful ignorance as proof of knowledge that drugs were in the car

Posted by in Evidence

New case!Garcia-Maldonado v. State, A13A2262, ___ Ga.App. ___, ___ S.E.2d ___, 13 FCDR ____, 2013 WL 5931975 (November 6, 2013). Conviction for methamphetamine trafficking affirmed; evidence was sufficient to prove defendant’s knowledge, or willful ignorance, of the drugs in the car he was driving. “The evidence showed that Garcia–Maldonado met Flores in the parking lot of a gas station shortly before the drug transaction, where he was given the keys to the green vehicle containing the approximately one-pound of methamphetamine and was instructed where to drive and park; that he arrived at the scene of the drug transaction first, parked the green vehicle, and appeared to wait for the second vehicle; that he was the driver and sole occupant of the green vehicle in which the drugs were stashed; and that, by his own admission, he had been offered a large sum of money to drive the green vehicle to the motel. This combined evidence, particularly in conjunction with the experienced officer’s testimony that large drug transactions often involve the use of two cars by drug dealers, was sufficient to authorize Garcia–Maldonado’s drug trafficking conviction. See, e.g., Aguilera v. State, 320 Ga.App. 707, 713(2) (740 S.E.2d 644) (2013) (affirming conviction for trafficking in cocaine where there was evidence from which jury could infer that defendant, who was the driver of the vehicle containing the cocaine, had knowingly ferried the drugs necessary for the drug transaction). See generally Floyd v. State, 207 Ga.App. 275, 282(2)(b) (427 S.E.2d 605) (1993) (‘It is a reasonable inference that, as the driver, [the defendant] was in control of the vehicle and had knowledge of its contents.’).” “Alternatively, ‘the knowledge element of a violation of a criminal statute can be proved by demonstrating either actual knowledge or deliberate ignorance of criminal activity.’ (Citations and punctuation omitted.) Able v. State, 312 Ga.App. 252, 258(3) (718 S.E.2d 96) (2011). Under the concept of ‘deliberate ignorance,’ the requisite knowledge can be shown where a defendant ‘has his suspicions aroused but then deliberately omits to make further enquiries [ ] because he wishes to remain in ignorance.’ (Citation and footnote omitted.) Perez–Castillo v. State, 257 Ga.App. 633, 634 (572 S.E.2d 657) (2002). See also Huckabee v. State, 287 Ga. 728, 734(6)(b), n. 7 (699 S.E.2d 531) (2010) (charge on deliberate ignorance appropriate ‘when the facts support the inference that the defendant was aware of a high probability of the existence of the fact in question and purposely contrived to avoid learning all of the facts in order to have a defense in the event of a subsequent prosecution’) (citations and punctuation omitted). Here, in light of the evidence previously discussed, the jury was authorized to find that Garcia–Maldonado acted with deliberate ignorance to the extent that he drove the green vehicle without question to the motel in return for a promise of $500.”

© 2013 Georgia Law Update: State & Federal Case Law Affecting Criminal Prosecutions in Trial Courts