Georgia Criminal Law Blog

Today in an per curiam decision, the United States Supreme Court reversed the Virginia Supreme Court and remanded the case to Virginia in light of Melendez-Diaz v. Massachusetts.  This is good news for the lawyers and defendants everywhere that wish to challenge scientific evidence in their trials.  It means that the government still has to bring live witnesses to trial to testify and be subject to cross-examination.  It was widely thought that the four dissenters in Melendez-Diaz granted cert on this case in an effort to quickly overturn Melendez-Diaz after Justice Souter retired and was replaced by Justice Sonya Sotomayor.

Arizona v. Gant - Click here to read the full opinion.Today the U.S. Supreme Court limited the circumstances under which officers may search the passenger compartment of a vehicle after it’s driver had been arrested.  The Court ruled that an officer can only search a vehicle if it is for officer safety or if there is reason to believe that there is evidence in the car that relates to the crime which the driver was arrested for.The searches that we are talking about here are called searches incident to arrest.  Don’t confuse this with an inventory search, which is done whenever a vehicle is impounded.The practical application of this case will be moderate, but this isn’t a huge opinion for most people that get arrested.  People that have a sober passenger to drive the car, can turn the car over to them and avoid the inventory search.  If there is somebody that can come pick up the vehicle, that would work too.If the officers want to get around this, all they have to do is start towing every vehicle and do inventory searches instead of searches incident to arrest.  I guess I am a cynic.

http://www.gasupreme.us/pdf/s08a1057.pdf

Bradshaw v. State.

I am not going to summarize it because it is a “must read” opinion.  But the quote of the day is “grossly disproportionate.”

Reversing course from rulings by three-judge panels, the full 11th U.S. Circuit Court of Appeals has ruled unanimously that criminal defendants’ rejection of their appointed counsel can amount to a waiver of their right to counsel altogether.That conclusion came in the court’s reinstatement of two convictions—one of a man accused of making a series of bomb threats in Macon and another man accused in the death of his 3-month-old daughter in DeKalb County. Prior panels had found that the defendants had been deprived of their constitutional right to counsel when trial judges allowed them to represent themselves despite their indications they wanted a free lawyer—just not the one they had been assigned. But when the full 11th Circuit reviewed the cases, all 12 of the judges agreed to reinstate the Macon bomb threat conviction and only Judge Rosemary Barkett dissented from the reinstatement of the DeKalb murder conviction. In that case, she said the defendant should get relief because there was no record the trial judge warned him of the dangers of representing himself. The decisions may give trial judges some comfort about defendants who represent themselves even when they vacillate over whether that’s what they want to do. “I think the main thing the opinion does is it takes the judge out of the quandary” that occurred in the Macon case, “where the defendant does not give him a definitive answer in words, but through his actions,” said George F. “Pete” Peterman III, the first assistant U.S. attorney at the federal prosecutor’s office in Macon, which prosecuted the bomb threat case against Eddie M. Garey Jr.However, the 11th Circuit’s rulings do not appear to portend a rash of defendants trying to feel their way through the complexities of a criminal trial. Notwithstanding the string of similar cases in the 11th Circuit, Peterman called the fact pattern presented in the Macon case “fairly unusual” in his experience.Moreover, a U.S. Supreme Court decision in June could still curb judges’ exercise of their freedom to take defendants’ refusal to get along with appointed counsel as a waiver of the right to a lawyer. In Indiana v. Edwards, 128 S.Ct. 2379, the high court held that judges may force mentally ill defendants to accept a lawyer’s help when the defendants “are not competent to conduct trial proceedings by themselves.”“Hopefully we’ll see more application of the Edwards rule that you can’t fire your trial counsel,” said Columbus attorney William J. Mason, who represented Garey at the 11th Circuit. “And this would have been a nice one to start with.”Garey had asked U.S. District Judge Clay D. Land to disqualify his appointed lawyer, Scott C. Huggins of Macon, contending that Huggins’ law office had been one of the targets in the alleged 2003 bomb threats. Land found there was no conflict of interest and gave Garey two choices: keep Huggins or represent yourself. Garey, who has been described by his current counsel as being paranoid schizophrenic and by the 11th Circuit as having paranoid personality disorder, said he would “involuntarily” act as his own lawyer. After a jury trial in which Huggins served as stand-by counsel Garey was found guilty on various counts, including obstruction of justice and threatening to use a weapon of mass destruction, and sentenced to 30 years in prison.Garey appealed, and in April 2007, 11th Circuit Judge Stanley F. Birch Jr., joined by a federal district judge visiting from Florida, wrote that Garey deserved a new trial because his actions were insufficient to invoke his right to self-representation. Judge Susan H. Black dissented.In August 2007, another panel issued a similar ruling in the habeas case of Melvin C. Jones, charged in connection to the death of his 3-month-old daughter. That opinion said the evidence showed Jones had dropped his daughter head first onto a bed and she suffered a fatal subdural hematoma. Before his 1996 trial, Jones had been given Claudia S. Saari of the DeKalb County public defender’s office, who had been with the office for eight years at the time. In the DeKalb case, Jones had told DeKalb Judge James H. Weeks (now on senior status) that the public defender’s office wasn’t equipped to handle such a serious case. After some back and forth during which Jones tried to represent himself, then reconciled with Saari only to insist on new counsel again, Weeks ultimately relieved Saari of her duties. The judge told Jones he was “making a horrible mistake,” but Jones represented himself at the three-day trial during which he was convicted of felony murder and cruelty to children and was sentenced to life in prison.Jones got a lawyer on appeal, and the state Supreme Court rejected his arguments that he hadn’t validly waived his right to counsel. When the federal habeas case landed at the 11th Circuit, Birch, 11th Circuit Judge Edward E. Carnes and a judge visiting from the 9th Circuit, Melvin Brunetti, agreed Jones also was entitled to a new trial. Brunetti’s opinion said Jones’ rejection of Saari didn’t amount to a sufficiently clear waiver of his right to counsel.Black carries the courtBlack, the lone dissenter among the judges on the two panels, wrote the en banc opinions in both cases. In the Garey case, she wrote that an earlier 11th Circuit decision, Marshall v. Dugger, 925 F.2d 374 (1991), was wrongly decided to the extent it indicated a waiver of right to counsel could not occur without an affirmative request for self-representation by the defendant.“Today we recognize it is possible for a valid waiver of counsel to occur not only when a cooperative defendant affirmatively invokes his right to self-representation,” wrote Black, “but also when an uncooperative defendant rejects the only counsel to which he is constitutionally entitled, understanding his only alternative is self-representation with its many attendant dangers.”Black cited cases out of the 2nd, 6th and 9th Circuits as having concluded that a litigant may waive his right to court-appointed counsel by rejecting his assigned counsel. In contrast, she wrote that the 3rd Circuit had, in her words, suggested “only dilatory behavior or other misconduct might justify waiver by conduct.”She explained that the court didn’t mean to encourage judges to make uncooperative defendants represent themselves—judges simply have discretion to conclude a defendant has waived his right to counsel, she wrote. Noting the recent high court decision allowing judges to order defendants to keep their lawyers, Black wrote, “Our decision today is meant to provide trial courts with guidance and discretion—not to force courts to discharge counsel against their better judgment.”Barkett concurred in the decision to uphold Garey’s conviction, citing among other factors that the trial judge “extensively warned Garey on the record of the dangers of self-representation” and required Huggins to remain on as stand-by counsel. But she dissented from the decision to uphold Jones’ conviction.Despite the vote of 11-1, Black’s en banc opinion in the Jones case suggested the court had a more difficult time on the issue of whether Jones had been properly warned.The DeKalb trial judge had not warned Jones of the dangers of self-representation, wrote Black, adding that contrary to the opinion by the state Supreme Court on direct appeal, there was nothing in the record to show Saari testified that she had counseled him on those dangers. “If confronted with this record on direct appeal,” wrote Black, “we would be unable to say the Government had established Jones’ waiver was knowingly made.” The problem for Jones was that the 11th Circuit was not hearing a direct appeal, but a habeas corpus case in which, Black said, the burden is on the defendant, not the government. As a result, Jones had the burden to show he did not understand the dangers of self-representation, Black wrote. Although he was 21 years old when charged, had minimal experience with the criminal justice system and was provided no stand-by counsel, she wrote, that he was not mentally ill and demonstrated some understanding of courtroom rules and procedures helped show that his waiver “was not unknowing.”In her dissent, Barkett wrote that she thought ordering a defendant to proceed pro se against his wishes, without stand-by counsel, is “rarely constitutional.” But she said she didn’t need to go that far, because the trial judge hadn’t warned Jones about the hazards of self-representation.Alston & Bird associate Matthew D. Richardson, who was appointed to represent Jones at the 11th Circuit, said Thursday he was seriously considering filing a petition asking the U.S. Supreme Court to look at the case. He said the 11th Circuit had adopted an “interesting new standard” on what demonstrates knowledge of the dangers of self-representation that’s possibly out of step with other circuits.“Now a criminal defendant has the burden of proving a negative,” said Richardson. “Now he’s got to prove that he doesn’t have knowledge. … The absence of the warnings is typically evidence of lack of knowledge.”Mason said he will seek an appeal of the decision in Garey’s case at the U.S. Supreme Court. “I’m pretty sure that Mr. Garey is going to require that I do,” said Mason, noting with some irony, “The 11th Circuit won’t let him fire me.” Mason said he also would have to pursue two sentencing issues that had been raised on appeal but not addressed by either the 11th Circuit panel or the en banc court. The successful en banc argument in Garey’s case was made by Washington lawyer Elizabeth D. Collery of the Department of Justice. Senior Assistant Attorney General Paula K. Smith of the Georgia Department of Law argued in defense of Jones’ conviction.A spokesman for state Attorney General Thurbert E. Baker, Russ Willard, said the AG’s office was very pleased with the decision. “The court’s ruling will give another tool to judges to deal with defendants who try to game and delay the system,” said Willard.The cases were U.S. v. Garey, No. 05-14631, and Jones v. Walker, No. 04-13562 (Aug. 20).

WASHINGTON - The Supreme Court ruled Wednesday that a convicted killer deserves a new trial because jurors heard testimony that should have been excluded. His ex-girlfriend made the statements shortly before he killed her.

The justices, in a 6-3 vote, reaffirmed the rights of criminal defendants to confront witnesses against them, even in cases where the defendant is responsible for the witness’ absence.

The issue arose in the case of Dwayne Giles, arrested in the shooting death of Brenda Avie in 2002, several weeks after she told police that Giles had assaulted her and threatened to kill her.

Justice Antonin Scalia said in his majority opinion that domestic violence, though “an intolerable offense,” does not justify “abridging the rights of criminal defendants.”

In dissent, Justice Stephen Breyer said the court should have ruled that defendants forfeit their constitutional right to confront witnesses when they are responsible for the witness’ absence from trial. Wednesday’s ruling, Breyer said, “grants the defendant not fair treatment, but a windfall.”

Domestic violence experts said they feared a ruling for Giles would dissuade victims from going to authorities and make it harder to convict offenders.

The ruling does not alter the admissibility of a victim’s prior statements when a defendant kills someone to prevent him from testifying. In that case, the earlier statements may be used.

See Opinion here.

Mason et. al. v. Home Depot et. al;  S07A1486

The issue is that the standard for experts in a criminal case is governed by a Georgia case called Harper.  The standard in civil cases is governed by Daubert, a federal case.

The court holds that it is not an equal protection violation because all criminal defendants are treated the same and all civil litigants are treated the same.

Click here to read the full opinion of the Supreme Court.

Today the U.S. Supreme Court decided Davis v. Washington (Slip Opinion 05-5224) and Hammon v. Indiana (Case No. - 05-5705, which those of us that deal with any cases involving domestic violence have been anxiously awaiting for.

You may recall what I wrote about Pitts v. State here.  Pitts dealt with 911 calls and their admissibility when a witness was unavailable to testify at trial.  The Crawford v. Washington ramifications of those calls were decided by the Georgia Court of Appeal in Pitts.  Click the link above to review that discussion.

Today the U.S. Supreme Court decided two cases that were almost exactly like Pitts.  In a joint opinion, the Court issued a ruling that seems like it would have affirmed, at least the judgment of the Georgia Court of Appeals had the Pitts case gone up that far.  Scalia, writing for the Court, held that when the statement is made for the purpose of gathering evidence of past conduct to assist with a future prosecution, and there is no ongoing emergency, the statement is testimonial and inadmissible.  If the statement is made for the purpose of stopping an emergency in progress, then it is nontestimonial and admissible.

It is unclear what will happen with the statements that have mixed testimonial and nontestimonial statements in them.  What seems clear to me is that they would go as far as the Georgia Court of Appeals did on some of the statements in the Pitts case.  The Georgia Court of Appeals said that a statement in Pitts (wife said husband was violating his parole) “came close” to being testimonial, but that it really wasn’t because she was just explaining.  I think this statement would be viewed as testimonial by the U.S. Supreme Court.  Past conduct, even very “fresh reports” of past conduct are most likely testimonial.  The Court seems to be serious about an accused’s confrontation rights, but only time will tell.

Today the United States Supreme Court decided Hudson v. Michigan (Slip opinion 04-1360).  The opinion was authored by Justice Scalia in four parts.  Thomas, Alito, Roberts concurred with all four parts, while Kennedy concurred with only parts One, two and three and concurred in Judgment.  Breyer filed a dissent which Stevens, Souter and Ginsburg joined.

It is a 51 page opinion, so it doesn’t exactly qualify as “light reading.”  Here is my extremely “boiled down” summary.

The majority has taken a combination historical and societal interest approach in deciding this case.  They weigh the societal interest in not letting off criminals against the deterrent effect of the exclusionary rule on law enforcement.  Scalia says,

“the grave adverse consequence that excluding relevant incriminating evidence always entails the risk of releasing dangerous criminals. Imposing such a massive remedy would generate a constant flood of alleged failures to observe the rule, and claims that any asserted justification for a no-knock entry had inadequate support. Another consequence would be police officers refraining from timely entry after knocking and announcing, producing preventable violence against the officers in some cases, and the destruction of evidence in others.”

The majority opines that there is not much need for deterrence in this arena because where an officer has a reasonable suspicion to believe that destruction of evidence will take place or that life-threatening resistance will result, the knock-and-announce requirement is not required anyway.  They say that deterrence can be achieved through civil rights suits, internal police investigation and increasing police professionalism.

The dissent authored by Justice Breyer is very lengthy and can be summed up better by Breyer himself, rather than me:

“In Wilson v. Arkansas, 514 U. S. 927 (1995), a unanimous Court held that the Fourth Amendment normally requires law enforcement officers to knock and announce their presence before entering a dwelling. Today’s opinion holds that evidence seized from a home following a violation of this requirement need not be suppressed As a result, the Court destroys the strongest legal incentive to comply with the Constitution’s knock-and-announce requirement. And the Court does so without significant support in precedent. At least I can find no such support in the many Fourth Amendment cases the Court has decided in the near century since it first set forth the exclusionary principle in Weeks v. United States, 232 U. S. 383 (1914). See Appendix, infra. Today’s opinion is thus doubly troubling. It represents a significant departure from the Court’s precedents. And it weakens, perhaps destroys, much of the practical value of the Constitution’s knock-and-announce protection. “

For more analysis, go see SCOTUS Blog.

On May 8, 2006, the Georgia Court of Appeals held that where a police officer was engaged in a first tier encounter with a defendant and the defendant fled the scene, the flight is not PC to arrest the defendant for obstruction of an officer. The court notes that the flight could be enough to give the officers a reasonable suspicion to justify a brief investigatory stop, but it is not PC to arrest.

“What made that initial encounter lawful was that the officers did not detain Dukes. Because the officers lacked reasonable articulable suspicion, not only did they have no authority to detain Dukes, but he had the concomitant right to leave the first-tier encounter. During such an encounter, the officer may not detain the citizen or create the impression that the citizen may not leave.”

Opinion here.

There is nothing particularly earth shattering about this opinion, but I thought it was interesting to see some of the Justice’s insights. It was a 5 to 2 decision with Sears and Melton dissenting.

The Court found that the victim became angry after discovering that he had been sold counterfeit drugs. He returned to the area where the purchase was made and confronted appellant, who then shot the victim at close range and killed him. The Court found that this and other evidence introduced at trial supported the jury’s verdict.

In his dissenting opinion, Justice Harold D. Melton argues that because there is some evidence in this case that Bell could have acted out of a sudden passion, without malice aforethought, in shooting his attacker, see OCGA § 16-5-2 (a), I would hold that it was error for the trial court to refuse Bell’s request for a charge on voluntary manslaughter.  Chief Justice Leah Ward Sears joined in the dissent.

Read the opinion here.

Holmes v. South Carolina, 04-1327 was decided on May 1, 2006.  Read the slip opinion here.

Holmes was convicted of Murder in South Carolina.  On appeal, he complained that the South Carolina rules of evidence curtailed his defense.  In a unanimous decision authored by Justice Alito, the U.S. Supreme Court reversed his conviction because he “did not have a meaningful opportunity to present a complete defense.”

Georgia’s rule is very similar to South Carolina’s.

Read the “Some Other Dude Done It” section of the Daniel’s Georgia Handbook on Criminal Evidence (4-25 in the 2004 edition) and let’s start a discussion on whether this case will have any significant impact in Georgia.

For those of you that don’t have the book read: Bradford v. State, 204 Ga.App. 568; Henson v. State,205 Ga.App 419; Klinect v. State, 269 Ga. 570; Azizi v. State, 270 Ga.App. 709; Speed v. State, 270 Ga. 688; Santana v. State, 236 Ga.App. 66.; and Sullivan v. State, 242 Ga.App. 613.
I look forward to your comments.

Click here to listen to the podcast.

I previously wrote a post about this case. You can see it here.

Click here for the text of the opinion.

In a unanimous decision authored by Presiding Justice Carol W. Hunstein, the Supreme Court has reversed a Wilcox County Superior Court judge in Harden v. Johnson, S06A0425.
The Court found that upon the advice of counsel Howard Harden entered guilty pleas “to aggravated assault, false imprisonment, burglary, theft by taking, and possession of a firearm during the commission of a felony and was sentenced to 15 years in prison.” Harden subsequently filed a petition for habeas corpus and contended, among other things, that his trial counsel was ineffective. The trial court denied his petition and Harden appealed.
The Supreme Court has ruled “that the habeas court’s order must be reversed because the habeas court’s reliance on Harden’s statements of satisfaction with trial counsel, whether sworn or unsworn, was erroneous, as such statements are not relevant to a determination of an ineffective assistance claim.”

In Patterson v. State, the full Court of Appeals reversed Smith v. State, 257 Ga. App. 88 (2002), reestablishing a long line of cases which prohibit an expert witness from giving an opinion on another witness’s credibility and prohibits the witness from expressing an opinion on the ultimate issue of the defendant’s guilt for the purpose of rehabilitating the credibility of a witness whose veracity was attacked. 

In this case the State had put up an expert to testify that she believed the victim did not fabricate the charges against the defendant.

Click here to listen to the podcast.

The Supreme Court ruled 5-3 on Wednesday that it is unconstitutional for police without a warrant to search a home, if two occupants are present at the time and one consents but the other objects. The search may not go forward in the face of that objection, but the occupant must be present to have the objection count, the Court said in a decision written by Justice David H. Souter. The case was Georgia v. Randolph (04-1067).

Click here to listen to the podcast.

United States v. Grubbs was decided by a unamious Supreme Court today.  The opinion can be read here.  Mike at Crime and Federalism is up in arms about the opinion. 

SCOTUSblog: Tomorrow’s Argument in Davis v. Washington

This is the link to the SCOTUSblog post on the Davis v. Washington case that could overrule Pitts v. State.  Keep your fingers crossed, it was argued today.

I copied this post from SCOTUSblog, which is linked below.  They do a great job and you should check out their site.  I mentioned Davis v. Washington in a previous post.  This is the companion case that will be argued with it.  We should soon have some clarification as to what “testimonial” means.

SCOTUSblog: Tomorrow’s Argument in Hammon v. Indiana

On March 10, 2006 the Georgia Court of Appeal decided State v. Pierce (A05A1749).  The court clarifies the definition of “incarceration” and specifically holds that house arrest is not incarceration for the purposes of a DUI sentence under O.C.G.A. 40-6-391(c)(2)(B). 

Click here to listen to the podcast.