Criminal Law

JurisdictionUnited States,Federal
Publication year2022
CitationVol. 74 No. 1

Criminal Law

J. Scottt Key

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J. Scott Key*

I. Introduction

This Article reviews some of the most important opinions impacting the practice of criminal law delivered by the Supreme Court of the United States and the Supreme court of Georgia covering the period from June 1, 2021 to May 31, 2022, as well as legislation adopted by the Georgia General Assembly during the 2021 session.1 This Article is designed to be a mere overview to both prosecutors and defense attorneys of decisions and new statutes and serves as a broad guideline to how these decisions will affect the practices.

II. Supreme Court of the United States Decisions

Although the Supreme Court of the United States has delivered multiple decisions during the term, this Article addresses one decision.2 Most of the cases decided by the Court dealt primarily with jurisdictional matters,3 the method of execution in death penalty cases,4 and either the interpretation of federal criminal offenses5 or the application of the federal sentencing guidelines.6

The case of Hemphill v. New York7 dealt with the overlap between the Confrontation Clause of the United States Constitution and the notion of

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"opening the door" for relevance purposes.8 This case began in 2006 when a stray nine-millimeter bullet killed a two-year-old child in the Bronx. The state of New York initially charged Nicholas Morris with murder but later allowed him to plead to a lesser charge. Morris admitted to possessing a .357-magnum revolver and not the nine-millimeter handgun originally charged in the indictment and used in the killing. However, an eyewitness described the shooter as wearing a blue shirt. Several years later, police discovered Darrell Hemphill's DNA on a blue sweater that had been recovered from Morris's house. Hemphill was placed on trial for the child's murder. At trial, Hemphill testified that nine-millimeter ammunition had been found at Morris's apartment.9

The prosecution then introduced evidence of Morris's guilty plea, noting he admitted to possessing .357-caliber bullets and not nine-millimeter bullets.10 Morris's plea testimony was introduced over a Confrontation Clause objection, as Morris was unavailable to testify, and Hemphill did not have the ability to cross-examine Morris at the plea hearing. The question for review was whether Morris's plea hearing transcript was admissible over a Sixth Amendment Confrontation Clause objection. The State of New York argued Hemphill opened the door to the testimony by offering evidence of the nine-millimeter bullets.11

In an 8-1 decision, the Court reversed Hemphill's conviction, reasoning that though the mention of the nine-millimeter bullets may have made the plea allocution transcript relevant, in no way did the defense waive the right to Confrontation.12 "Hemphill did not forfeit his confrontation right merely by making the plea allocution arguably relevant to his theory of defense," began Justice Sotomayor.13 She concluded, reasoning:

The Confrontation Clause requires that the reliability and veracity of the evidence against a criminal defendant be tested by cross-examination, not determined by a trial court. The trial court's admission of unconfronted testimonial hearsay over Hemphill's objection, on the view that it was reasonably necessary to correct Hemphill's misleading argument, violated that fundamental guarantee.14

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III. Decisions of the Supreme Court of Georgia

Cook v. State15 represents a seismic shift in Georgia criminal procedure.16 In November 2013, Cadedra Cook entered a negotiated plea to felony murder and armed robbery.17 She was sentenced to life with the possibility of parole and twenty years to run concurrently with the life sentence. Six years later, Cook moved for an out-of-time appeal, alleging she was deprived of her appeal due to ineffective assistance of counsel. The Polk County Superior Court denied her motion, and she appealed.18 The Supreme Court of Georgia considered supplemental briefing on the following two questions:

[1] Should this Court reconsider whether a criminal defendant who alleges that she was deprived of her right to appeal because of her counsel's alleged ineffective assistance . . . be permitted to seek a remedy for that alleged constitutional violation by filing a motion for out-of-time appeal in the trial court, as opposed to filing, as her exclusive remedy, a petition for writ of habeas corpus?
[2] How do considerations of stare decisis apply in this analysis?19

Criminal appellate practitioners have long relied on an out-of-time appeal where, because of no fault of the client, the deadline to file a motion for new trial or notice of appeal was missed.20 In appointed cases, for instance, deadlines are frequently missed during the handoff of the case from trial counsel to appellate counsel.21

The problem for the majority was that the line of cases which created the right to an out-of-time appeal lacked a statutory basis.22 As said by the majority,

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In sum: even though the General Assembly statutorily established habeas corpus as the exclusive procedure for vindicating a convicted defendant's constitutional rights, including the deprivation of the right to appeal, and established the contours of the procedure to seek such relief, this Court allowed and then expressly endorsed a procedure parallel to, but distinct from, habeas corpus for convicted defendants to seek vindication of alleged constitutional violations that frustrated their right to appeal. And allowing convicted defendants to do so in turn allowed them to circumvent the requirements and restrictions imposed by the Habeas Corpus Act.23

Why do convicted defendants want to "circumvent the . . . Habeas Corpus Act?'24 For one, a defendant has the right to a direct appeal and to the assistance of counsel in the process of a direct appeal.25 No such right exists under Georgia's Habeas Corpus Act.26 A habeas corpus action takes place in the county of incarceration, sometimes hundreds of miles from the county of conviction.27 Finally, if a habeas plaintiff is unsuccessful, there is no right to appeal; rather, appeal is only allowed in the discretion of the court.28 In short, a convicted defendant on direct appeal has the right to appeal and the right to effective assistance of counsel on that appeal. On habeas, the indigent petitioner is left to navigate legal procedures from inside a prison, without the right to counsel or an appeal.29

Turning to the questions for review, the court found that the line of cases allowing an out-of-time appeal was erroneous, lacking any statutory basis.30 However, the line of cases allowing for out-of-time

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appeal in criminal cases runs far back in time and through perhaps hundreds of cases. Notwithstanding: they are all overturned. The court next turned to stare decisis issues.31 According to the majority, "stare decisis is not an inexorable command."32 In cases, such as Cook, where the majority determined that the line of cases is lacking in statutory support, the court decided that "considerations of stare decisis apply with less force."33 In sum, the court held that "[w]e cannot say, however, that entrenchment of the trial court out-of-time appeal procedure in Georgia weighs so heavily in the stare decisis analysis that we should retain our erroneous precedents."34 In short, if a criminal defendant, even one represented by counsel, misses a deadline to file a motion for new trial or direct appeal, the right to appeal is forfeited. Then, the defendant's sole remaining remedy is the Habeas Corpus Act, regardless of the client's potential indigence or level of education or intellect.35

Cook drew a three-judge dissent, authored by Justice Nels Peterson.36 The dissenters agreed with much of the majority's analysis. However, the dissent was concerned about principles of stare decisis as well as the fallout that criminal appellants would face as a result.37 Justice Peterson wrote, "[i]n my view, stare decisis exists for cases like this one, and I would retain our incorrect precedent as the lesser of two evils."38 More particularly, the dissent was concerned that the effect will be chaotic to the system:

Granting a motion for out-of-time appeal allows the claims to be resolved promptly by the judge who presided over the trial. It avoids the need for an inmate to grapple with the procedural hurdles of filing a habeas petition, avoids the need to transfer records between jurisdictions, and reduces travel costs for lawyers and prisoners.39

Cook raises more questions than it answers. Short of a fix from the General Assembly, there is likely much litigation ahead. What, for instance, will happen when a defendant makes a request for appointed

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appellate counsel, the appointment is delayed or the motion is not timely filed, and the statute of limitation for habeas expires?

In Maxwell v. State,40 the court addressed the question of whether a misdemeanor conviction for firearms charges bars a subsequent felony charge related to the same guns.41 In Maxwell, a shooting victim was taken to the hospital for a gunshot wound to the head, where he later died. Police learned that the victim was taken to the hospital by a car occupied by Zonnique Maxwell and his co-defendant Tyquarius Washington, along with two other individuals. Police searched and found a handgun on Maxwell and a revolver and a pistol on Washington.42

Maxwell was charged in the State Court of Chatham County for the misdemeanor offense of possession of a handgun by a person under the age of eighteen.43 Maxwell was also indicted for two counts of felony murder, aggravated assault, one count of carrying a weapon by an underage person without a license, three counts of possession of a firearm during the commission of a felony, and seven counts of street gang activity. All but the state court charges were dismissed; Maxwell plead guilty and was sentenced to serve twelve...

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