Criminal Law
| Publication year | 2016 |
Criminal Law
Bernadette C. Crucilla
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As in prior periods, this year's survey of criminal law will include only a few of the most significant cases and statutory amendments. Due to the constant evolution of criminal laws in our society, it is simply not practical to attempt to make note of every legal development.1 Therefore, the discussion is limited to those changes that will have the widest application and interest to criminal law practitioners for the period from June 1, 2015 through May 31, 2016.
As usual, statutory changes in this survey period correlate closely with the times in which we live. These changes include loosening renewal requirements for firearms carry licenses, permitting law enforcement use of concealed surveillance devices inside homes, legalizing medical marijuana oil, and the usual and customary accessions to Georgia's library of crime. Each will be discussed in turn.
A. Firearms, Concealed Surveillance, and Witness Identification
The renewal process for firearms carry permits was expanded this year. For example, a carry permit holder is now allowed to renew his or her license if there are ninety or fewer days remaining before the expiration of a current carry license or if thirty or fewer days have passed since
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the expiration of said license.2 Further, the mere presentation of a carry license set to expire shall be prima facie evidence to any probate judge that the fingerprints of the holder are on file with the judge who issued the license, and the judge shall need merely to request a nonfingerprint based criminal records check within five days.3 This streamlines the criminal records check process for the applicant so that new fingerprint cards do not need to be obtained every time a renewal license is sought.4
Furthermore, in order to ensure court records are kept up to date, the statute now mandates all judges presiding over a case wherein a felony conviction results to inquire at sentencing whether the person holds a weapons carry license.5 If so, then he or she must notify the judge who issued the license of the change in conviction status such that the individual will not be erroneously issued another permit.6
Concealed surveillance laws have been updated such that law enforcement officials (or their agents, such as confidential informants) can now freely record the actions of a person if taken in the presence of the law enforcement officer or agent, even where such activities occur in a private place such as a residence.7 This will make it a lot easier for law enforcement officials to record controlled drug buys.8
The Georgia General Assembly has also required all law enforcement agencies conducting live or photo line ups or show ups9 to adopt written policies10 to help standardize such procedures and reduce suggestibility.11
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B. Medical Marijuana Oil
With the enactment of "Haleigh's Hope Act,"12 medical marijuana oil is now legal in the state of Georgia.13 More specifically, it is now legal to have up to twenty fluid ounces of marijuana-extract oil containing a relatively low amount of tetrahydrocannabinol (THC) if it has been prescribed by a physician and is in a pharmaceutical container.14 Low-THC oil is defined as an oil that contains no more than five percent by weight of THC, which is the main psychedelic ingredient in marijuana.15 Possession of such an amount without a prescription is a misdemeanor.16
One can obtain the necessary prescription for low-THC oil for the treatment of any of the following medical conditions: (A) cancer, if end stage or the treatment produces wasting or recalcitrant nausea and vomiting; (B) amyotrophic lateral sclerosis, if severe or end stage; (C) seizure disorders, if related to epilepsy or head injury; (D) multiple sclerosis, if severe or end stage; (E) Crohn's disease; (F) mitochondrial disease; (G) Parkinson's disease, if severe or end stage; and (H) sickle cell disease, if severe or end stage.17
A person who possesses more than twenty fluid ounces or one who manufactures, distributes, dispenses, sells or possesses with intent to distribute low-THC oil is guilty of a felony that carries one to ten years in prison.18 There are also ranges of punishments tied specifically to the amount of THC oil possessed (or distributed) all the way up to a trafficking amount.19
C. New Crimes or Sentencing Changes
As in previous years, the legislature has added to Georgia's library of crime this survey period. When it was not outright adding crimes, the General Assembly was making enhancements to the sentencing structure of existing crimes.
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1. Terroristic Threats and Acts
The commission of a terroristic threat used to be a felony.20 Now, however, the making of such a threat shall be a misdemeanor unless the threat "suggest[s] the death of the threatened individual," in which case it shall be a felony and shall carry a sentence of one to five years in prison.21 Interestingly, when the threat is to retaliate for (or intimidate anyone from) attending a judicial proceeding or for providing any official information about a crime, the punishment shall increase to five to twenty years in prison.22
2. Criminal Street Gangs
The Criminal Street Gang Statute23 has been amended to increase penalties from a maximum of fifteen years up to twenty years in prison.24 In addition, a new section provides that any person who violates the gang statute by giving an inmate a weapon, drugs, cell phone, or any other contraband shall face a prison term of two to twenty years that will run consecutively to any other sentence.25 Additional portions of the statute increased punishment for holding a leadership position in or for organizing a gang.26
Some additional changes of note make the already-liberal evidentiary provisions even more expansive, providing that evidence of a prior conviction of any gang member for any crime under the gang statute shall be admissible against any other member of the gang, and it will not be subject to any of the restrictions of the hearsay statute.27
3. Incest
Incest prohibitions have now also been expanded to include relations by half-blood.28 For example, half and whole-blood grandparent and grandchild are now included, as are half and whole-blood aunts and uncles and their respective nieces or nephews.29
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4. Harassing Phone Calls
The statutory prohibition against harassing phone calls has also been expanded to include all harassing communications, whether by telecommunication, email, text-messaging, or any other form of electronic communication.30 It is correspondingly now entitled "Harassing Communications" rather than "Harrassing Phone Calls."31 In addition, the venue requirements have changed. Proper venue shall now be in the county where the communication either originated or was received.32
5. Law Enforcement Animals
Last year's expansion of the animal cruelty statutes extended into this year to apply to law enforcement animals including police dogs, police horses, or "any other animal trained to support a peace officer, fire department or state fire marshal in performance of law enforcement duties."33 Similarly to the animal cruelty statutes, the penalties range in degree from "harming a law enforcement animal in the first degree" (for intentionally causing the death of a law enforcement animal) which is a felony and carries a possible prison sentence of eighteen months to five years, all the way down to "harming a law enforcement animal in the fourth degree" (for intentionally causing injury to the animal), which is a misdemeanor of a high and aggravated nature, and carries possible imprisonment of twelve months and a fine.34
All degrees of harming a law enforcement animal require that the animal be in the performance of its official duties.35 The statute also requires the payment of restitution to the agency harmed by the action.36
As in previous years, this period was also significant for its activity in the appellate courts. Although there is no particular way to neatly categorize the case law developments, some of the more significant or interesting changes are set forth below.
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A. Insanity Defense and Attorney-Client Privilege
In a matter of first impression, the Georgia Supreme Court ruled that merely raising the insanity defense does not waive the attorney-client privilege where the evaluating experts "neither serve as a witness at trial nor provide any basis for the formulation of other experts' trial testimony."37
In Neuman v. State,38 the defendant was indicted and tried for shooting to death the husband of the woman with whom he was having an affair while the husband was outside of his son's daycare center. The defense contracted with both a psychologist, Dr. Peter Thomas, and a forensic psychiatrist, Dr. Julia Rand Dorney, to provide an initial evaluation of the defendant's psychological issues and report back to the attorneys. Based upon these reports, the attorneys then hired an expert to conduct his own forensic evaluation and to testify at trial.39
At trial, the defendant's trial experts testified that the defendant suffered from long standing "bipolar disorder with psychosis" and delusions making him "incapable of distinguishing right and wrong."40 Upon learning that the defendant had met with both Drs. Thomas and Rand Dorney, the State subpoenaed the records concerning their evaluations and interviews, over the defendant's objection. The trial court conducted an in-camera inspection and then turned over the records to the State. Although they never intended to have these doctors testify, in light of the courts' rulings on the evidence, the State decided to call the doctors as part of their case-in-chief.41 After a hotly-contested trial that included expert testimony from both sides, the jury rejected the insanity defense and found the defendant guilty but...
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