Criminal Law - Franklin J. Hogue and Laura D. Hogue

• Publication year: 2011

Criminal Law

by Franklin J. Hogue* and Laura D. Hogue**

I. Introduction

We have culled through the most important criminal cases of this reporting period¹ and selected those that resulted in changes to criminal case law that will likely have an effect upon the way prosecutors and defense attorneys approach criminal cases in Georgia.

II. The Applicability of the Exclusionary Rule to Probation Cases

In the case of State v. Thackston,² Hulon Thackston was a probationer in Douglas County. In March 2007, he was stopped in Paulding County; his car was searched, and he was charged with possession of metham-phetamine. In October 2007, Douglas County issued a probation violation warrant. When law enforcement showed up at Thackston's

* Partner in the law firm of Hogue & Hogue, LLP, Macon, Georgia; Faculty, National Criminal Defense College; Adjunct Faculty, Mercer University, Walter F. George School of Law. Atlanta Christian College (B.A., magna cum laude, 1980); Emmanuel School of Religion (M.A., summa cum laude, 1983); Georgia State University (M.A., summa cum laude, 1988); Mercer University, Walter F. George School of Law (J.D., cum laude, 1991). Member, State Bar of Georgia; President-Elect, Georgia Association of Criminal Defense Lawyers; Member, National Association of Criminal Defense Lawyers.

** Partner in the law firm of Hogue & Hogue, LLP, Macon, Georgia; Faculty, National Criminal Defense College; Adjunct Faculty, Mercer University, Walter F. George School of Law. Columbus College (B.A., cum laude, 1986); Mercer University, Walter F. George School of Law (J.D., magna cum laude, 1991). Member, State Bar of Georgia; Former Chair, Amicus Committee, Georgia Association of Criminal Defense Lawyers; Member, National Association of Criminal Defense Lawyers.

1. This Survey chronicles developments in Georgia criminal law from June 1, 2010 to May 31, 2011. For an analysis of Georgia criminal law during the prior survey period, see Franklin J. Hogue & Laura D. Hogue, Criminal Law, Annual Survey of Georgia Law, 62 Mercer L. Rev. 87 (2010).

2. No. S10G1337, 2011 WL 2118928 (Ga. May 31, 2011).

apartment to arrest him, they saw methamphetamine on a table. They acquired a search warrant and found more methamphetamine and some drug paraphernalia.³

Thackston moved to suppress the drug evidence in the new Paulding County case. The Superior Court of Douglas County, Georgia, granted that motion on the grounds that the drugs found in the apartment "constituted fruit of the poisonous tree" from the bad traffic stop search.⁴ Paulding County then dismissed its case. Thackston filed a plea in bar in the Douglas County probation revocation case, arguing that collateral estoppel prevented Douglas County from contesting the successful motion to suppress, based upon the same searches, in Paulding County. The trial court agreed, and the Georgia Court of Appeals affirmed.⁵

The Georgia Supreme Court, however, reversed the court of appeals, declaring, for the first time in Georgia, that the exclusionary rule does not apply to a probation revocation hearing.⁶ The court observed that the United States Supreme Court adopted a balancing test when deciding whether to extend the exclusionary rule to a context other than a criminal trial.⁷ On the one side, the exclusion may deter law enforcement from trampling on citizens' right to privacy.⁸ On the other side of the scale are the costs of withholding information in the process of seeking the truth.⁹

The Georgia Supreme Court weighed these two concerns and looked at the results of this balancing test in several other jurisdictions, taking into account the purpose ofprobation, which is to promote rehabilitation and integration back into society, and concluded that

[b]ecause application of the exclusionary rule to probation revocation proceedings would achieve only marginal deterrent effects and would significantly alter and affect the proper administration of the probation system in this state, we find the deterrence benefits of the exclusionary rule do not outweigh the costs to the system. Therefore, under the proper balancing test, neither the federal nor state constitutions require application of the exclusionary rule in state probation revocation proceedings.¹⁰

3. Id. at *1.

4. 5. 6. 7. 8. 9. 10.

Id. Id. Id.

Id. at *2 (citing Illinois v. Krull, 480 U.S. 340, 347-48 (1987)). See id. at *1. Id. at *3. Id.

III. Mandatory Minimum Sentences for Juvenile Offenders

In Adams v. State,¹¹ Mitchell Lee Adams was indicted and convicted for the crimes of aggravated child molestation and child molestation against a toddler.¹² Pursuant to the mandatory sentencing provisions of section 16-6-4(d)(1) of the Official Code of Georgia Annotated (O.C.-G.A.),¹³ Mitchell was sentenced to life imprisonment for aggravated child molestation, the first twenty-five years of the sentence to be served in prison without the benefit of parole and the remainder of his life to be spent on probation.¹⁴ Mitchell was twelve years old at the time the indicted offenses were alleged to have occurred.¹⁵ The Georgia Supreme Court considered two constitutional challenges to Mitchell's sentence: (1) a challenge to the constitutionality of the mandatory sentencing provision, as applied to a fourteen-year-old, and (2) whether Mitchell could have been too young to be prosecuted as an adult.¹⁶

As a matter of first impression, the court considered the constitutionality of the mandatory sentencing provisions of O.C.G.A. § 16-6-4(d)(1), as applied to a minor.¹⁷ Adams propounded an Eighth Amendment¹⁸ challenge to the constitutionality of his sentence, asserting that such a sentence constituted "cruel and unusual punishment as applied to him."¹⁹ The court noted that during the time that Adams's appeal was pending, the United States Supreme Court decided the case of Graham v. Florida,²⁰ which held that the Eighth Amendment to the United States Constitution "prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide."²¹ As Adams's sentence provided for his eventual reentry into society-albeit after twenty-five years-unlike a life without parole sentence, the court found no categorical Eighth Amendment violation, turning instead to an analysis of whether Adams's sentence was "grossly disproportionate" to

11. 288 Ga. 695, 707 S.E.2d 359 (2011).

12. Id. at 695-96, 707 S.E.2d at 361. The actual age of the victim was never clear from the record, though the supreme court's best guess was that she was around four years old. Id. at 704 n.3, 707 S.E.2d at 367 n.3 (Hunstein, C.J., concurring specially).

13. O.C.G.A. § 16-6-4(d)(1) (2011).

14. Adams, 288 Ga. at 696, 707 S.E.2d at 361 (majority opinion).

15. Id. at 704, 707 S.E.2d at 367 (Hunstein, C.J., concurring specially).

16. Id. at 696, 707 S.E.2d at 361-62 (majority opinion).

17. Id. at 696, 707 S.E.2d at 361.

18. U.S. Const. amend. VIII.

19. Adams, 288 Ga. at 700, 707 S.E.2d at 364.

20. 130 S. Ct. 2011 (2010).

21. Adams, 288 Ga. at 700-01, 707 S.E.2d at 364 (quoting Graham, 130 S. Ct. at 2034).

his crime.²² The court noted that sentencing was a job for the legislative branch of government, and that the judiciary must defer to the discretion of the legislature "unless the sentence imposed shocks the conscience."²³ The court determined that the evidence presented at trial was that Adams committed numerous acts of molestation upon a young child, including acts of sodomy, which, in their minds, did not make his sentence grossly disproportional to his crime; therefore, the court rejected Adams's Eighth Amendment challenge to his sentence.²⁴

Additionally, the court addressed the applicability of the juvenile s challenge to his prosecution, as it may have resulted in his being illegally prosecuted for offenses that occurred before he had reached the age of thirteen.²⁵ under Georgia law, a child under the age of thirteen "shall not be considered or found guilty of a crime."²⁶ The indictment under which Adams was prosecuted listed a range of dates for the criminal behavior, all involving time frames during which Adams would have been at least thirteen years old.²⁷ But at trial, "Adams moved for a directed verdict, arguing that the State failed to prove that the crimes occurred during the period of time set forth in the indictment."²⁸ The trial court ruled that the dates set forth in the indictment were not essential elements of the charging document, thereby instructing the jury that the State would have met their burden of proof so long as the evidence supported a finding that the charged offenses were committed at any time within the applicable seven-year statute of limitations.²⁹

The ruling was an appropriate one, except that it now opened up the possible time frame for the commission of those offenses to a time when Adams could have been less than thirteen years old and, therefore, ineligible for adult prosecution. Consequently, before sentencing, Adams filed a motion to dismiss the indictment.³⁰ The majority of the supreme court held that the burden of production of evidence supporting the affirmative defense of "infancy" lay upon the defendant, "unless the

22. Id. at 696, 701, 707 S.E.2d at 361, 365 (quoting Graham, 130 S. Ct. at 2022) (internal quotation marks omitted).

23. Id. at 702, 707 S.E.2d at 365 (quoting Widner v. State, 280 Ga. 675, 676, 631 S.E.2d 675, 677 (2006)) (internal quotation marks omitted).

24. Id.

25. Id. at 696, 707 S.E.2d at 361-62.

26. O.C.G.A. § 16-3-1 (2011).

27. Adams, 288 Ga. at 695, 707 S.E.2d at 361.

28. Id.

29. Id. at 695-96, 707 S.E.2d at 361.

30. Id. at 696, 707 S.E.2d at 361-62.

[S]tate's evidence raised the issue."³¹ Finding that the record from the trial did not demonstrate that appellant's age was proven, the defense bore the burden of producing such evidence in order to properly raise an infancy challenge, and the defense failed to do so; therefore, the challenge was not properly asserted.³²

Justice Hunstein, joined by...