March 10th, 2008 Rob Leonard Posted in Expert Witnesses, Case Law Updates No Comments »
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.
June 19th, 2006 Rob Leonard Posted in Evidence, Trial Tactics, Case Law Updates No Comments »
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.
June 15th, 2006 Rob Leonard Posted in Search & Seizure, Case Law Updates 2 Comments »
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.
May 17th, 2006 Rob Leonard Posted in Search & Seizure, Case Law Updates 1 Comment »
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.
May 3rd, 2006 Rob Leonard Posted in Case Law Updates No Comments »
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.
May 1st, 2006 Rob Leonard Posted in Evidence, Case Law Updates 1 Comment »
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.
April 26th, 2006 Rob Leonard Posted in podcasts, Case Law Updates No Comments »
Click here to listen to the podcast.
I previously wrote a post about this case. You can see it here.
April 25th, 2006 Rob Leonard Posted in IAC, Case Law Updates No Comments »
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.â€
April 3rd, 2006 Rob Leonard Posted in Case Law Updates No Comments »
Ryan v. State, Case No. A05A1587 (February 6, 2006).
The Georgia Court of Appeals affirmed most of Ryan’s convictions but reversed his convictions for possession of drugs with intent to distribute.
He had possessed 2.3 grams of marijuana and a pipe with meth residue on it. No evidence that 2.3 grams of marijuana was suggestive of drugs sales rather than a “personal use” amount was presented. The Court also says that “There was no evidence…that an illegal market exists for the sale of methamphetamine pipe residue.”
The Court rejected the State’s argument that other evidence (drug paraphernalia, scales,pay sheets, and his prior drug convictions (including one for possession of meth. with intent)) supported the convictions. “Although this evidence…may be relevant, it is insufficient …without evidence that he actually possessed marijuana or methamphetamine in quantities typical or suggestive of drug sales or evidence that the amounts in his possession could be sold.” Helton v. State, 271 Ga. App. 272 (2005); Talbot v. State, 261 Ga. App. 12 (2003).
March 28th, 2006 Rob Leonard Posted in podcasts, Case Law Updates 2 Comments »
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.Â
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.
March 22nd, 2006 Rob Leonard Posted in Search & Seizure, podcasts, Case Law Updates No Comments »
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).
March 21st, 2006 Rob Leonard Posted in Search & Seizure, Case Law Updates No Comments »
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.Â
March 20th, 2006 Rob Leonard Posted in Evidence, Case Law Updates No Comments »
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.
March 19th, 2006 Rob Leonard Posted in Evidence, Case Law Updates 1 Comment »
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
| Note: This post was authored by Pete Patterson, a third-year student at Stanford Law School.Â
In Crawford v. Washington, the Supreme Court held that a witness’s out-of-court testimonial statement cannot be presented at trial against a criminal defendant unless the witness is unavailable to testify and the defendant had a prior opportunity to cross-examine the witness. The Court left “for another day,†however, “any effort to spell out a comprehensive definition of ‘testimonial.’†This effort begins tomorrow with oral argument in Hammon v. Indiana, which presents the question of whether an oral accusation made to an investigating officer at the scene of an alleged crime constitutes a “testimonial†for purposes of the Confrontation Clause. Richard D. Friedman of Ann Arbor, Michigan will argue for the petitioner that his accuser’s statements were testimonial and therefore should not have been admitted at trial. Thomas M. Fisher, the Solicitor General of Indiana, will argue for the respondent that these statements were not testimonial and therefore were properly admitted. Mr. Fisher will split time with Assistant to the Solicitor General Irving Gornstein, who will also argue (on behalf of the United States as an amicus curiae) that the statements were not testimonial. The parties’ briefs are available here; the U.S.’s amicus brief is available here. The case will be argued in tandem with Washington v. Davis, which presents a similar question – whether an alleged victim’s statements to a 911 operator naming her assailant constitute testimonial statements subject to the Confrontation Clause restrictions enunciated in Crawford. Back out on the porch, an officer again asked Ms. Hammon what had happened. This time, she informed the officer that she and her husband had indeed had an argument. Unlike her husband, she claimed it was violent – culminating with him shoving her head into the broken heater glass and punching her in the chest. At the officer’s request, Ms. Hammon completed a battery affidavit conveying these allegations. The State charged Hershel Hammon with domestic battery. Because Amy Hammon refused to testify at trial, the only evidence presented against him was the officer’s account of Ms. Hammon’s oral accusation and the affidavit completed shortly thereafter. These were admitted under, respectively, the “excited utterance†and “present-sense impression†exceptions to hearsay. The defense did not present any evidence of its own; Hershel was convicted of domestic battery and sentenced to one year in prison, with all but twenty days suspended. While Hammon’s appeal was pending, the U.S. Supreme Court issued its decision in Crawford. Crawford identified core examples of “testimonials†- prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and police interrogations – but declined to offer a comprehensive definition The Indiana Supreme Court held that the Confrontation Clause permitted admission of Amy Hammon’s oral accusation, but not her affidavit. That court established a subjective test, holding that a statement is “testimonial†under Crawford (and thus must be subject to cross-examination) if it is “given or taken in significant part for purposes of preserving it for potential future use in legal proceedings.†Applying its new subjective test, the Indiana court affirmed, explaining that the police officer’s questions were posed to determine whether anything requiring police action had occurred and Ms. Hammon’s responses were given to convey basic facts about the situation. Neither was motivated by a desire to preserve evidence for later use in trial. Hershel Hammon filed a petition for certiorari, which the Supreme Court granted. Hammon and Indiana offer competing definitions of “testimonial,†neither of which is the same as the definition established by the court below. In Hammon’s view, the inquiry into whether a statement is “testimonial†should turn on the statement’s function. While declining to provide a “detailed or precise exegesis of what that function is,†he contends that criminal accusations made to a police officer are at the functional core of testimony. Furthermore, consideration of the speaker’s, not the questioner’s, perspective is critical: the speaker is the person whom the accused has a right to confront, and the best standard for determining whether the speaker’s statement is testimonial is whether a reasonable person in the speaker’s position would anticipate use of the statement in investigation or prosecution of a crime. The categorization of testimony as an excited utterance is irrelevant to this analysis. The “[e]xcited utterance doctrine was not fashioned until many years after the framing of the Confrontation Clause, and thus cannot provide an exception to the constitutional rule. Indiana responds to this functionally based definition with its own historically based definition of “testimonial,†which it deems a “resemblance†test. Under that inquiry, extrajudicial statements are testimonial only when they resemble the forms of testimony that were produced by the abusive inquisitorial practices that gave rise to the Confrontation Clause. The history of civil-law practices, specialty and prerogative court practices, and Marian-statute practices (which were marked by formal, coercive, and structured settings) provide the relevant context for this inquiry. Modern-day analogues include affidavits, deposition transcripts, trial transcripts, grand-jury testimony, and responses to police interrogation. Indiana stresses that the Court in Crawford used the term “interrogations†in a colloquial sense rather than the broader technical sense used in Miranda analysis. Colloquially, interrogations are the formal, coercive, and structured questioning portrayed in “good-cop, bad-cop†scenes in television and the movies. This distinction is critical to the “immediate-safety†corollary to the state’s “resemblance†rule: Testimonial statements do not include statements made in response to police actions or questions reasonably related to an objectively reasonable concern for the immediate safety of any persons or property. These interactions are not interrogations and hence not testimonial because they bear none of the hallmarks of formal interrogations. Police activity that is motivated by a desire to secure the safety and security of the public was not what the framers were concerned about when fashioning the Confrontation Clause. Indiana contends that its immediate-safety corollary extends to statements such as Ms. Hammon’s, even though it may initially appear that the statement was not necessary to defuse an actively confrontational situation. When police officers come to the scene of a domestic disturbance, it is often necessary to further question the participants to determine whether the danger has subsided. Indiana attacks Hammon’s reasoning as unsupported by the text and history of the Confrontation Clause. Furthermore, the functional test and reasonableness standard advanced by Hammon would capture nearly all hearsay statements, an outcome clearly rejected by Crawford. Finally, Indiana claims that domestic violence cases are easy to distinguish from the inquisitorial abuses sought to be avoided by the Confrontation Clause. In domestic violence cases, it is the defendant, rather than the prosecution, that is responsible for the absence of the accuser. The victim is often intimidated by the defendant or concerned that testifying would damage their relationship. The defendant also retains the right to call the victim to the stand at trial if cross-examination is desired. As a practical matter, prohibiting presentation of statements made by victims of domestic violence to investigative officers would make it much more difficult to bring spousal abusers to justice. Because such prohibition is not required by the text and history of the Confrontation Clause, it is inappropriate to place this additional burden on law enforcement officials. The United States, which has filed an amicus brief on behalf of Indiana, provides an alternative definition of “testimonial†that hinges on whether the statement was a product of emergency questioning. The U.S. contends that testimonial statements display three central features that characterize the inquisitorial civil-law model: (1) clear conveyance to the declarant that the statement is for use in a legal proceeding; (2) likelihood that the situation will be exploited to shape the statement for future trial; and (3) and weak probative value making the statement an inferior substitute for live testimony. By contrast, the U.S. explains, statements – such as Amy Hammon’s – made to officials faced with an apparent emergency, and who ask questions reasonably necessary to resolve that emergency, display none of these characteristics. Therefore, they are not testimonial and thus not barred from use by the Confrontation Clause. |
March 15th, 2006 Rob Leonard Posted in podcasts, DUI discussion, Case Law Updates 1 Comment »
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).Â
March 13th, 2006 Rob Leonard Posted in Case Law Updates No Comments »
On February 13, 2006, the Georgia Supreme Court issued the opinion in Johnson v. Smith (S06A122). The Court held that the record must indicate that the defendant was advised of his rights under Boykin v. Alabama, 395 U.S. 238. Boykin holds that the Defendant must be advised of and waive his right three federal constitutional rights: 1) the privilege against compulsory self-incrimination; 2) the right to trial by jury; and 3) the right to confront ones accusers.
Johnson challenged the entry of his plea alleging that it was made not knowingly, voluntary and intelligently made. Once raised by the defendant, the burden is on the State to prove that it was knowing, voluntary and intelligently made. And examination of the plea transcript revealed only that one of those three rights was waived on the record. His trial counsel testifed at the habeas hearing that he had gone over the “legal rights” with his client. Based on that the habeas court denied Johnson’s claim. The Supreme Court took the case on a certificate of probable cause and reversed the habeas court. They said the since the record did not indicate what “legal rights” his counsel advised him of, that was not sufficent to establish that a valid plea had been entered.
This is a good case to illustrate just how important it is to perfect a record. This was no crackpipe case. It was a Murder and Armed Robbery case where the defendant got 3 consecutive life sentences for the shooting death of a store clerk in Houston County. Mr. Johnson has been serving that sentence since 1984. I understand that the District Attorney’s office is deciding whether or not to try this case. Mr. Johnson represented himself before the Georgia Supreme Court.
March 11th, 2006 Rob Leonard Posted in Evidence, Case Law Updates No Comments »
I spoke to Louis Turchirelli, who was the lawyer on Pitts v. State, which I wrote a post on recently. I asked him if he was going to take the case up on appeal to the U.S. Supreme Court. He advised me that there was a similar case pending already.  I went to the Supreme Court website and found two cases pending. Davis v. Washington which has been docketed as case number 05-5224.Â
Hammon v. Indiana, docketed as 05-5705 will be argued in tandem with Davis v. Washington. Davis deals specifically with 911 calls and whether they are “testimonial.” Hammon deals with a statement made to an officer at the scene of a crime. The Hammon case appears so plainly to be “testimonial” that I am having a hard time why the Supreme Court would waste its time on that case. Frankly, its a little concerning that they granted cert at all.
The cases are scheduled to be argued on March 20, 2006, so we may soon see whether Pitts will remain the law in Georgia. I’ll let you know when the opinion comes out.
March 3rd, 2006 Rob Leonard Posted in Evidence, podcasts, Case Law Updates 2 Comments »
The Georgia Supreme Court has ruled in Pitts v. State that 911 calls are not testimonial and therefore admissible when a witness is not available despite an objection on 6th amendment grounds and Crawford v. Washington.Â
Click here to listen to the discussion.Â
Below is a post that I wrote on 2-28-06. I deleted it and moved it here because it was causing a problem with the podcast RSS feed.
The Georgia Supreme Court has ruled in Pitts v. State that 911 calls are not testimonial and therefore admissible when a witness is not available despite an objection on 6th amendment grounds and Crawford v. Washington. I should note that the statement would still need to meet a hearsay exception like res gestae or excited utterance.
The bizarre part of this case is where the Court gives examples of how a 911 call may be testimonial or not. It gave an example of a case where a spouse called in to report that her husband had violated his parole as being testimonial because the purpose was to establish an evidentiary fact and not to prevent a crime in progress. Well, in the Pitts case, it too had a spouse mention that her husband was violating his parole.  The court said that part of the tape â€came close†to being testimonial but wasn’t really because she was just trying to explain why the prior difficulties made the current situation a dangerous one.
The flood gates have been opened and barred in place with such wide discretion that almost every 911 call will be non-testimonial. They have really carved out 2 exceptions to Crawford that swallow the rule. 1. To avert a crime progress. 2. To seek assistance in preventing immediate harm. 90% of calls are going to fall in one of these categoreis as non-testimonial. The Court does say that a call may contain a mixture of testimonial and non-testimonial and that those tapes should be redacted. But as I pointed out a minute ago, there may be a third exception that will allow testimonial statements in that explain conduct.
March 2nd, 2006 Rob Leonard Posted in Evidence, DUI discussion, Case Law Updates 3 Comments »
Webb v. State (A05A2335). On January 24, 2006, the Georgia Court of Appeals held that the trial court did not err in admitting a numerical estimate of the defendant’s blood alcohol level based on the horizontal gaze nystagmus test. This opinion could have devastating effects on a less-safe DUI case and will make it much more likely that the State can get a conviction on a case with relatively little evidence.
Every attorney defending one of these cases needs to object to this testimony and needs seriously consider hiring an expert on the HGN. The HGN has been held to have reached a level of verifiable certainty in the scientific community and is admissible as a basis upon which and officer can determint that a driver was impaired by alcohol. However, it may be an open question as to whether it has reached that same level as a basis for determining the numberical level of a driver’s blood alcohol level. See footnote 3 of the opinion.
February 25th, 2006 Rob Leonard Posted in podcasts, Case Law Updates No Comments »
Palma v. State is a case that came out of the Georgia Supreme Court recently. It says that a defense lawyer can argue punishment in closing argument in the context of a witness’s motivation to lie. This case is an extension of the rule that the lawyer can explore witness bias in being a witness for the prosecution and the potential sentence that the witness will avoid in exchange for testifying.
Click here to listen to the podcast about Palma v. State. I wrote a previous post about that case on January 23, 2006.