Georgia Criminal Trial and Appellate Law Blog

A Very Strange Whole Court Opinion

Johnson v. State, A08A0473, 2008 Ga. App. LEXIS 857  (July 16, 2008)

A frightened clerk at the Motel 8 called the police to complain that she thought there was "drug activity" in Room 215.  Police arrive and interview two people in the parking lot who say that they have come to purchase marijuana.  Police claim that the smell burnt marijuana outside Room 215.  The clerk decides to evict and requests help in entering the room because she is frightened.  The police go in with her and find marijuana in plain view and more drugs in the coat pockets of occupants.  The majority voted to reverse the conviction to the extent that drugs found in clothing was illegally found but held that it was legal to go into the motel room with the clerk.  You would think that it would be the other way around.  A dissent written by Judge Ruffin and joined by Phillips and Adams would have reversed the entire case on the illegal entry into the room.  The dissent accuses the majority of ignoring Supreme Court precedent.

Three Reversals in the Past Week

Three criminal convictions were were reversed in the past week.  One involved the sufficiency of evidence for items pawned at a pawn shop.  One involved the failure to establish venue.  The other, and perhaps biggest reversal, involved the erroneous admission of similar transactions evidence.

Smith v. State, A08A0751, Sufficiency of Evidence to Convict for Theft by Receiving

The victim had speakers stolen from his boat while it was moored to a dock on September 16.  Weeks later, the victim's brother finds speakers for sale at a pawn shop.  The victim is called and identifies the speakers as his.  The shop owner pulls his records and identifies Smith as the person who pawned the speakers. on October 3.  Smith went to trial and testified that he bought the speakers at a flea market and later pawned them to get gas money for his commute.  The trial judge took the motion for directed verdict under advisement.  He later ruled against the defendant on a post-trial JNOV.  The Court of Appeals reversed the conviction, reasoning that there was nothing about the speakers that should have alerted Smith that they were stolen.  Smith did not try to conceal his identity when he pawned the speakers, and he stuck to his story that he bought them at a flea market. 

Bell v. State, A08A0656, Insufficient Evidence of Venue

Bell was convicted of trafficking cocaine and misdemeanor obstruction.  Law enforcement testified that the Bell sold drugs to a confidential informant in a Burger King parking lot in Glynn County.  He then drove away.  As he attempted to drive away, an officer placed his body in the car and held the steering wheel.  Bell got out of the car and ran away before struggling with a second officer.  The Court of Appeals affirmed the trafficking conviction because there was circumstantial evidence that the drugs were located in the parking lot in Glynn County.  The obstruction conviction was reversed because there was insufficient evidence to establish that the struggle with the officer took place in Glynn County.

Usher v. State, A08A0419, Improper Similar Transactions Evidence

Usher was convicted of burglary, robbery, and aggravated assault with intent to rape a 91-year-old woman. Usher's sole defense at trial was mistaken identity.  The victim's age and the fact that she did not have her glasses on when the robbery hapened was part of this defense.  To establish identity, the State introduced two similar transactions.  In each, Usher entered two homes near his home and took "portable items" belonging to person over the age of 50.  The Court reverses, holding that identity evidence must be so similar that there is a "signature trait" common among all of the similar transactions and the accused offense.  Because the facts of the similars were fairly generic and because neither involved violence, they were inadmissible to prove identity.

About to Be Blogging Again

I resumed this blog as part of a New Year's Resolution.  No, this blog has not gone the way of most New Year's Resolutions.  Instead, another resolution got in the way.  That resolution was to start my own practice, which I have done.  I have settled in, and I am ready to get serious about this resolution again.

My new information is as follows:

J. Scott Key, P.C.

70 Macon Street

P.O. Box 2696

McDonough, GA  30253

scottkey@bellsouth.net

The blog will resume very soon.

To Catch a Predator NOT!

The COA reverses the conviction for computer pornography and child exploitation on sufficiency grounds.  While there are numerous ways to allege the offense, the State chose to allege that he used a computer online service to solicit a person he believed to be a minor to engage in conduct that would constitute the act of child molestation by enticing her to witness an act of masturbation, "an act which would constitute an immoral and indecent act in the presence of the child."  The specific act was masturbation over a web camera.  The Court reversed, reasoning that the "child" (undercover officer posing as a child) was never in his presence and that virtual presence over the internet is the functional equivalent to "presence" during phone sex.  While the court affirmed a count for distributing pornographic materials over the internet, Selfe had received a probated sentence for that offense.  The overturned count was one for which Selfe had been placed on probation.

Might I also add that Appellant's attorney is as handsome as he is smart.

The case is Selfe v. State, A07A2162 (January 30, 2008). 

Will Affirm for Food

The Fulton Daily Report is front page with this story today about the budget shortfall with the Court of Appeals.  Chief Judge, Barnes, testified before the legislature about the dire financial situation facing the COA.  While creating new crimes and tinkering with procedure is a fun hobby under the dome, it is not quite so fun to equip the judicial system to handle it.  While judges and indigent defenders are inadequately funded, it appears that prosecutors are still doing quite well. 

Busy Day in The Supreme Court

All Supreme Court Opinions discussed below are available on the Supreme Court's website.  Below are the more interesting and notable cases.

Foster v. State, S07A1754, 1/28/08

The Supreme Court reverses Foster's conviction for the offense of malice murder.  Evidence produced at trial showed that Foster had the mental capacity of a fourteen year old, had a learning disability, and suffered from depression and anxiety.  A psychologist also testified that he did not know right from wrong at the time he committed the act.  The Court instructed the jury on Not Guilty, Not Guilty by Reason of Insanity, Guilty Beyond a Reasonable Doubt, Guilty but Mentally Ill, and Guilty but Mentally Retarded.  However, the trial court failed to instruct the jury on the fact that the defendant, if found GBMI or GBMR, would be incarcerated.  The trial court also failed to define GBMI or GBMR.  While this error would have been harmless had there been no evidence to support a verdict it, there was such evidence in this case.  Ultimately, because the jury charge, taken as a whole, was misleading and incomplete, the Supreme Court reverses this conviction.

Warren v. State, S07A1561, 1/28/08

The Supreme Court reverses this murder conviction after the trial court instructed that the jury could infer the intent to kill from the use of a deadly weapon.  Because the defendant, in his confession, said that he did not intend to kill and believed that he had not mortally wounded the victim, the error was not harmless.

In re Waldrop, S08A0367, 1/28/08

This is a very interesting attorney discipline case, which underscores the importance of mitigating evidence and the role of remorse.  Waldrop was sentenced, under the first offender act, to a single count of possession of N-N-dimethylamphetamine.  While the bar views a first offender plea as a conviction, for which disbarment is a possible punishment, the bar chose to suspend Waldrop for a period of twenty-four months.  In mitigation, the bar considered that there was no evidence that any client was harmed by the attorney's actions.  An experienced psychologist testified that Waldrop had no substance abuse problem.  Waldrop had a distinguished military record and was actively involved in the military reserves.  He had availed himself of the lawyer's assistance program and had tested negative multiple times when given random drug screens. 

Thompson and Hunstein dissented, arguing that Waldrop had failed to demonstrate that he deserved less than disbarment because he failed to testify at his proceeding.  He failed to tender a transcript of the plea, and he failed to show remorse for his actions.

The Affirmances Just Keep on Coming

Four criminal cases came out yesterday. 

In Gaines v. State, A08A0144, the Court held that the State properly established venue, not because any of the witnesses said that the offense happened in Dawson County, but because they answered questions where the prosecutor used "Dawson County" in the question.

In Jones v. State, A07A2226, trial counsel was not ineffective in failing to impeach a witness with a prior conviction where one of two trial attorneys chose not to question him about his record out of fear of what he might say and where appellate counsel failed to tender a certified copy of the conviction at the motion for new trial hearing.

White v. State, A07A2427, involved a stabbing at Reidsville State Prison.  The corrections officer required over a 100 stitches to repair his injuries.  He was cut as he walked by the inmate's cell.  Though no weapon was recovered, the picture of the big pool of blood outside the cell and the guard's testimony that he saw the defendant charging at him just before he was cut got the job done sufficiency-wise.

In Wightman v. State, A08A0027, the COA held that blackmail meets the "force" element of rape.  There, the victim testified that the defendant told her that, if she reported him, nobody would believe her and she would end up in foster care.  This threat, and the victim's young age satisfied the force element.

Vouching and Skinny Animals

The COA decided three cases of interest yesterday, two of which dealt with vouching for the credibility of witnesses; in one case, prosecutor's comments were at issue, and in another a witness's comments and a prosecutor's comments were at issue. 

In Boyd v. State, A08A0250, the issue is whether the prosecutor vouched for the child witness's credibility when he argued that he has children and can tell when children are lying.  He then argued that the child was soft-spoken and quiet.  From their demeanor, he argued that it was obvious that they were telling the truth.  The COA sidestepped the first premise in the prosecutors syllogism:  "I can tell when children are lying," and characterized the argument as simply an inference from the evidence presented.  The trial court was affirmed.

In Goldey v. State, A07A2119, comments were at issue in an ineffective assistance of counsel claim.  Trial counsel went nowhere near the sword and had a strategic reason for everything.  When the victim's mother testified that she believed her daughter's outcry was credible, trial counsel said he didn't want to call attention to it.  When the prosecutor compared the defendant to John Wayne Gacy, trial counsel said that, because jurors laughed, he didn't think that they took the comparison seriously (looks like they really did).  Trial counsel did not request a charge on bare suspicion because he does not like the charge and believes it confuses the jurors on reasonable doubt.  Affirmed.

Finally, Morgan v. State, A07A2445, involves animal cruelty charges.  Law enforcement reported to calls that animals at a residence were mistreated and malnourished.  They arrived without a search warrant and heard barking in the back yard.  They went to get someone from animal control, which they had time to do, but not to magistrate court, which they apparently did not have time to do.  They entered the residence without a warrant and found that they were in bad shape.  That evidence was admitted over objection.  The Court found that there were exigent circumstances to enter the residence because of the reported condition of the animals and the barking.  As to the thing about going to get animal control but not going to get a warrant, the COA finds that there was no evidence about how long it would have taken to get a warrant; in the absence of this evidence, the court found an exigency (doesn't the state have the burden of proving the exigency?).  Conviction affirmed.

Entrapment with a Tip of the Hat to Helen of Troy

There may really be no such thing as entrapment, even in Homeric epics.  In Lightsey v. State, A07A2236, decided two days ago, the Court of appeals affirmed a conviction for a defendant who sold cocaine to a paid confidential informant.  The dealer was on his bicycle (life lesson -- if your dealer rides a bicycle, you are no rock star).  When the CI rode into the neighborhood, he asked her to come over.  She asked him where she could buy drugs in the area, and he offered her a packet of cocaine, which she purchased for $20.  The rest is history.  Lance Armstrong, Jr., complained on appeal that he was entitled to an instruction on entrapment.  The COA held that Lance will be sitting out this year's Tour de France.

To get the instruction, he had to show that

1. the idea of the crime originated with the state agent;
2. the agent's undue persuasion, incitement, or deceit induced the crime;
3. the defendant was not predisposed to commit the crime

The COA hangs its hat on the fact that the defendant called the CI over to him.  However, the CI is the one who brought the whole subject of drugs up.  A guy on a bicycle, you would think, would be incited to act with an offer to make $20 because he would like to buy a car one day.  How do we know the guy didn't want to use the drugs but was willing to let it go for the money?  Okay, it's probably not a jury question.

 

What is interesting is the reference to The Iliad.  How difficult is it to prove entrapment?  Here's how hard it is according to our COA:

"Lightsey's argument notwithstanding, there is no attractive nuisance doctrine embedded in the law of entrapment.  The fact that the informant was an attractive female does not show that Lightsey was induced to sell drugs to her as a result of undue persuasion, incitement, or deceit.  And this is true, even if the informant was a modern day Helen of Troy."

Maybe if he'd given the drugs away? 

So ends the story of the rock that sailed a thousand ships.

Unwise Versus Patently Unreasonable All Things Being Equal

The Court of appeals issued two opinions in the last week essentially reaffirming well-established legal principles.  Yet, they are helpful in the way they succinctly discuss two issues that can be confusing: (1) is it really ever possible to show that trial counsel was ineffective, and how exactly do you show it; and (2) what exactly is equal access anyway.  The two cases underscore just how subjective appellate issues can be even as they masquerade as  objective standards.  This is probably good news if you can craft a compelling statement of facts that makes your client look sympathetic to the factfinder.

The first case is Arellano v. State, A07A1782, a case where appellate counsel threw the proverbial ineffective assistance of counsel kitchen sink at the appellate courts, criticizing everything but trial counsel's choice of tie that morning.  The COA made short shrift of all of it.  The issues raised are not particularly compelling or interesting.  However, the court's reasoning is, and it may give you an opening to persuade the court on appeal.

The Court distinguishes between matters of strategy and tactics, which, even if unwise, do not amount to ineffective assistance of counsel, and strategy that is "patently unreasonable."  If a tactic is patently unreasonable, then it appears that the tactic rises to the level of ineffective assistance of counsel.  In other words, if the tactic merely sucks, then trial counsel can collect $200 while the client goes directly to jail.  If trial counsel really really sucks then the client gets a second trial. 

As for me in my practice, I do lots of rehearsals and careful word choosing before I place the "you're about to be subpoenaed; please help me and don't get mad" phone call to trial counsel knowing that "it was strategy" is the trump card that the trial attorney can alway play to kill my client.  Now, maybe there is another chance.  You can look at the facts and the law and possibly prove to the court or courts that the tactic was so bad that it was "patently unreasonable."  Arellano may be a helpful case.

Another objective yet subjective issue is when it is appropriate to direct a verdict when drugs are found in the middle of a bunch of people -- the equal access question.  Again, this seems to be yet another appellate issue where your talents as a "Statement of Facts" writer are important. 

In Sherrer v. State, A07A1998, the COA held that:

• Possession may be joint or exclusive
• actual or constructive
• spatial proximity alone is insufficient to prove joint constructive possession of contraband
• mere presence, without proof of participation, is insufficient to support a conviction
• the state must prove that the defendant had the power and intent to exercise control over the contraband

It seems like there is a fine line between "mere spatial proximity" and "constructive possession" for directed verdict purposes.  Short of your client being in a coma while present near drugs and other people, it all turns on how good your facts are or can appear to be.  The theme here, as in the IAC case, is that there is much room for subjectivity beneath the veneer of the objective standards.