Criminal Law
| Publication year | 2017 |
Criminal Law
Bernadette C. Crucilla
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The adversarial nature between prosecutors and those charged with crimes makes criminal law, in particular, be in a constant state of transformation. Thus, as in prior years, this year's survey of criminal law will include only a few of the most significant cases and statutory amendments.1 Due to this constant evolution, it is simply not practical to attempt to make note of every single legal development. Therefore, the discussion this period has been limited to the changes that will have the widest application or interest to criminal law practitioners from June 1, 2016 through May 31, 2017.
As is typical, the statutory changes in this survey period are closely reflective of the times in which we live. Such changes include the following: expansion of the definition of sexual abuse to include acts involving trafficking a person for sexual servitude,2 a shift to allow retroactive sentencing as first offenders,3 a change to more politically-correct terminology for the disabled,4 and additions to the diseases for
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which the possession of "low THC oil" is lawful.5 This period is also significant for changes to accountability courts,6 establishment of certain requirements for parents and guardians within the rubric of juvenile courts,7 important changes to the DUI laws8 and, as usual, a litany of additions to Georgia's lexicon of crimes and registration requirements of sex offenders. Each will be discussed in turn.
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A. New Crimes and Sex Offender Registration Changes
As part of the legislature's addition of litany to our lexicon of crimes this period, new requirements have been added for sex offenders required to register. Each will be discussed in turn.
1. Back the Badge Act
The Back the Badge Act9 defines "public safety officer" to include peace officers, correctional officers, emergency health workers, firefighters, highway emergency responders, and officers of the court.10 Additionally, it created the crime of hijacking a motor vehicle by making it a designated felony and a serious delinquent act for which pretrial release is not presumed in juvenile court.11
The Act also provides increased penalties for aggravated assault or battery against public safety officers (including mandatory imprisonment), but allows the court to depart from these minimum mandatory sentences if both the state and the defendant agree.12 It also creates a new felony obstruction crime, which carries a one to five-year sentence for placing urine, feces, vomitus, or seminal fluid on a public safety officer in the discharge of his official duties.13 Lastly, it expanded the definition of "penal institution" to include any place of confinement for purposes of the crime of riot in a penal institution.14
2. Hijacking a Motor Vehicle, Manufacture/Distribution of False Insurance Documents, "Upskirting," and Fentanyl and its Derivatives
Senate Bill 10415 was the legislative means of accomplishing the following: (1) creating the new crime of second-degree hijacking a motor vehicle; (2) changing punishments for distribution of false insurance documents; (3) prohibiting the use of a device to film underneath someone's clothing (upskirting); and (4) including sale, manufacture, delivery, or possession of fentanyl and its derivatives within the
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trafficking class of controlled substances.16 Each will be discussed in turn.
Senate Bill 104 created the crime "hijacking a motor vehicle in the second degree," which carries a possible sentence of one to twenty years (depending on whether it is the first, second, or third conviction). Further, carjacking in the first-degree is only bailable before a superior court judge, and is further designated as a forcible felony, among other things.17 Part V of Senate Bill 104 enhances the punishments for the unlawful manufacture, sale, or distribution of false insurance documents, raising a first offense from a misdemeanor to a felony that carries two to ten years' imprisonment and a fine of $10,000.18
Part V(A) made it a felony to use a device to film through or underneath someone's clothes where a reasonable expectation of privacy exists.19 The felony carries a sentence of one to five years and a fine of $10,000 for either committing the act or disseminating the images therefrom.20 Certain entities are exempt, including law enforcement, prosecutors, and businesses that have signage of its unlawfulness visible.21
Part VII now includes the sale, manufacture, delivery, or possession of fentanyl and its isomers or derivatives within the prohibition of trafficking controlled substances.22 Fentanyl and its isomers, salts, derivatives, and analogs were added to Schedule I; Thiafentanil was added to Schedule II; and Carfentanil was relocated within that section as a Schedule II drug.23 Along those lines, as far as Schedule I, II, IV, and V drugs are concerned, House Bill 23124 modified and expanded the list of controlled substances and dangerous drugs to include the fentanyl analog structural class.25
3. Sex Crimes of Interest
This legislative session, the Georgia General Assembly attempted to rid Georgia of sex trafficking (of both adults and minors) through House
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Bill 341.26 The Bill added "solicits by any means" to the sex trafficking statute, thereby making every type and kind of sex trafficking illegal.27 It also increases the punishment for the sex trafficking of minors or those with developmental disabilities.28 While crimes such as pimping and pandering shall remain misdemeanors, keeping a place of prostitution shall be punished as a misdemeanor of a high and aggravated nature, and twenty-four hours' jail time shall be mandatory.29
Further, sex trafficking is added to those crimes for which a person must register with the sex offender registry and the mandatory probation is clarified, such that it be imposed upon the final consecutive sentence, rather than at the end of each individual sentence.30 Sex trafficking is also included in the list of "dangerous sexual offenses occurring after June 30, 2017."31
Senate Bill 25032 expanded the list of individuals who are prohibited from loitering at a child-care facility, school, or anywhere minors congregate to those who are (or should be) registered sex offenders in another state.33
In addition to this period's vigorous legislative activity, the appellate courts were not without similar assertiveness. Although there is not a neat categorization of cases possible, some of the more significant or interesting developments are set forth below.
A. Felony Murder Oddities
As one of the few southeastern states that has codified the felony murder rule,34 this survey period included some of the Georgia oddities surrounding the rules that have been enforced via appellate court decisions. At least four cases this period highlight such oddities.
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In Dubose v. State,35 the defendant was convicted of felony murder for shooting his girlfriend with her own pistol after discovering her unfaithfulness.36 He was convicted and sentenced to felony murder and argued that, under the "modified merger rule" adopted in Edge v. State,37 felony murder cannot be predicated on possession of a firearm; thus, he believed he should only have been convicted of voluntary manslaughter (based on his sudden fit of passion when learning of her unfaithfulness).38 The Georgia Supreme Court held that the evidence showed the defendant shot his girlfriend with her own Browning 9mm (and not his Glock, as he contended); thus, the killing was independent of his possession of her Browning 9mm and the modified merger rule did not apply.39 The felony murder conviction was held proper.40 In Williams v. State,41 the court used a number of tenets of statutory construction to hold that contributing to the deprivation or delinquency of a minor cannot qualify as a predicate offense for a felony murder conviction.42
In two other cases this period,43 the supreme court held that felony murder should not have properly merged with malice murder, but more appropriately should have been vacated by operation of law.44
B. DUI Blood Draws: Establishing Voluntary Consent or Exigent Circumstances to Circumvent Warrant Requirement
In the opinion of our appellate courts, a number of cases were significant for defining what establishes voluntary consent or exigent circumstances sufficient to circumvent the warrant requirement necessary to draw someone's blood to check for driving under the influence of alcohol or drugs.45
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In State v. Williams,46 after the supreme court remanded the first Williams case,47 the lower court granted the defendant's motion to suppress and the state appealed.48 The Georgia Court of Appeals held that the state failed to establish actual voluntary consent for the blood draw because the defendant appeared confused during field sobriety, was unable to follow directions, and had to lean on the officer while walking down the hospital hallway to have his blood drawn.49
Another case decided this period was State v. Brogan.50 The trial court granted the defendant's motion to suppress...
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