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

• Publication year: 2010

Criminal Law

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

I. Introduction

This year we selected a small number of significant cases and amendments to Georgia criminal law on which to focus this Survey.¹ This narrower focus allows slightly more in-depth treatment within the space limitations and may be more useful, so we hope, to practicing trial lawyers in the ever-changing area of criminal law.

II. Pretrial Issues

A. Right to Counsel

In 2002 in Alabama v. Shelton,² the Supreme Court of the United states mandated that the right to counsel, guaranteed by the sixth

* 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; Past-President, Macon Association of Criminal Defense Lawyers; Georgia Association ofCriminal Defense Lawyers; Member, National Association of Criminal Defense Lawyers.

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

1. For analysis of Georgia criminal law during the prior survey period, see Franklin J. Hogue, Criminal Law, Annual Survey of Georgia Law, 61 MERCER L. REV. 79 (2009).

2. 535 U.S. 654 (2002).

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Amendment to the United States Constitution,³ required the appointment of counsel to any person who could face a sentence of incarceration, including a sentence in which the term of imprisonment was to be probated because the probation could one day be revoked.⁴ The Georgia Supreme Court followed suit, stating "that absent a knowing and intelligent waiver, no indigent person may be imprisoned for any offense, or sentenced to a probated or suspended prison term, unless he was represented by counsel at his trial."⁵

During this reporting period, the question arose in Alford v. State⁶ whether this directive applied retroactively. In 1995 Alford was convicted ofDUI and ofbeing a minor in possession ofalcohol following a bench trial in Muscogee County, Georgia. The trial judge sentenced him to twelve months probation. Some time after the Supreme Court of the United States' decision in 2002, Alford filed a petition for habeas corpus challenging the validity ofhis plea and conviction because he was not provided appointed counsel. The habeas court denied the petition, finding that Alford was not entitled to appointed counsel because he was not sentenced to any term of imprisonment.⁷ The Georgia Supreme Court granted a certificate of probable cause to review the habeas court's order, expressly to determine whether Alabama v. Shelton⁸ should be applied retroactively to Alford, as he was unrepresented by counsel.⁹

In deciding whether a case should be applied retroactively, the court must first determine whether the rule announced by the new case is, indeed, a "new rule" or simply a declaration of a rule "dictated by precedent [that existed] at the time the [appellant's] conviction became final."¹⁰ The Georgia Supreme Court agreed with the holdings of the United States Court of Appeals for the Eleventh Circuit and the South Carolina Supreme Court that concluded Shelton did apply retroactively because it was a "new rule."¹¹ Accordingly, the Georgia Supreme Court likewise announced that Shelton must be applied retroactively in Georgia.¹² For Alford, though, this was not the end of the inquiry.

3. U.S. CONST. amend. VI.

4. Shelton, 535 U.S. at 664, 672-74.

5. Barnes v. State, 275 Ga. 499, 501, 570 S.E.2d 277, 279 (2002).

6. 287 Ga. 105, 695 S.E.2d 1 (2010).

7. Id. at 105, 695 S.E.2d at 2.

8. 535 U.S. 654 (2002).

9. Alford, 287 Ga. at 105, 695 S.E.2d at 2.

10. Teague v. Lane, 489 U.S. 288, 300-01 (1989).

11. Alford, 287 Ga. at 106, 695 S.E.2d at 3 (citing Howard v. United States, 374 F.3d 1068, 1081 (11th Cir. 2004); Talley v. South Carolina, 640 S.E.2d 878, 882 (S.C. 2007)).

12. Id. at 108, 695 S.E.2d at 4.

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Retroactive application of a rule on collateral—as opposed to direct—review (a habeas corpus petition being collateral) is limited to only two situations: (1) if the new "rule places certain kinds of primary, private individual conduct beyond the power ofthe criminal law-making authority to proscribe," or (2) if it "requires the observance of those procedures that . . . are implicit in the concept of ordered liberty."¹³ The Georgia Supreme Court held that the right to counsel is implicit in the concept of ordered liberty as it directly affects the accuracy of the conviction and "alters our understanding of the bedrock procedural elements essential to the fairness of a proceeding."¹⁴ The denial of the habeas petition was reversed, and Shelton will be applied retroactive-

ly.¹⁵

With only one dissent,¹ the Georgia Supreme Court opinion reminds us of the letter penned by Clarence Earl Gideon to the United States Supreme Court in January 1962 in which he wrote, "The question is very simple. I requested the court to appoint me attorney and the court refused."¹⁷ The next year, the Supreme Court of the United States declared in its landmark decision of Gideon v. Wainwright,¹⁸ "reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth."¹⁹

B. Search and Seizure

1. Search Incident to Arrest. In Simmons v. State,²²⁰ John Henry Simmons Jr. was riding in the backseat of his friend's Buick when they pulled into the parking lot of a fast food restaurant. A police officer recognized the car because the day before he had discovered that it was not registered or insured. Armed with that information, the officer arrested the driver as the driver walked from the car toward the restaurant. He then ordered the front seat passenger and Simmons out of the car so that he could search it. The officer found a small amount

13. Talley v. South Carolina, 640 S.E.2d 878, 882 (S.C. 2007) (quoting Teague, 489 U.S. at 311) (internal quotation marks omitted).

14. Alford, 287 Ga. at 107-08, 695 S.E.2d at 4.

15. Id.

16. See id. at 108-11, 695 S.E.2d at 4-6 (Carley, P.J., dissenting).

17. ANTHONY LEWIS, GIDEON'S TRUMPET 82 (Vintage Books ed. 1989) (internal quotation marks omitted).

18. 372 U.S. 335 (1963).

19. Id. at 344.

20. 299 Ga. App. 21, 681 S.E.2d 712 (2009).

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of marijuana in the armrest between the front seats. He then arrested Simmons, handcuffed him behind his back, and put him in the back seat of a patrol car.²¹

An officer drove Simmons to jail while Simmons sat alone in the back seat.²² After placing Simmons in jail, the transporting officer then searched the back seat of his patrol car and found a paper bag wedged into the seat with "79.67 grams of a substance containing 72.4 percent cocaine."²³ Simmons was indicted and convicted for trafficking in cocaine after losing a motion to suppress the drug evidence against

him.²⁴

Recognizing that Simmons lacked standing because he had no possessory interest in the car itself or anything inside it, the Georgia Court of Appeals concluded that Simmons could challenge the search anyway because his argument was that he was illegally detained during the search.²⁵ The court then discussed its holding in the driver's appeal.²⁶ Relying on New York v. Belton,²⁷ the court held that after having legally arrested the driver, the officer was authorized to search the car and any containers in it incident to the arrest of the driver.²⁸ After the court had reached this conclusion in the driver's case, however, the Supreme Court ofthe United States issued its opinion in Arizona v. Gant.²⁹ The Court's decision in Gant limited its decision in Belton by holding that the police may "search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search."³⁰ Thus, the court of appeals remanded Simmons to the trial court to reconsider its denial of Simmons's motion to suppress in light

of Gant.³¹

2. Collateral Estoppel in Search and Seizure. In Thackston v. State,³² a Douglas County, Georgia judge placed Hulon Thomas

21. Id. at 21-22, 681 S.E.2d at 713-14.

22. Id. at 22, 681 S.E.2d at 714.

23. Id.

24. See id. at 21-22, 681 S.E.2d at 713-14.

25. Id. at 26, 681 S.E.2d at 716-17.

26. Id. at 26, 681 S.E.2d at 717.

27. 453 U.S. 454 (1981).

28. Simmons, 299 Ga. App. at 26, 681 S.E.2d at 717 (quoting Swicord v. State, 293 Ga.

App. 545, 547, 667 S.E.2d 401, 403 (2008)).

29. 129 S. Ct. 1710 (2009).

30. Simmons, 299 Ga. App. at 26, 681 S.E.2d at 717 (quoting Gant, 129 S. Ct. at 1719

(2009)) (internal quotation marks omitted).

31. Id. at 26-27, 681 S.E.2d at 717.

32. 303 Ga. App. 718, 694 S.E.2d 136 (2010).

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Thackston Jr. on probation in 2001 for distribution of methamphet-amine. In March 2007, Paulding County, Georgia law enforcement stopped Thackston for a traffic violation, searched his car and his person, and found methamphetamine in his pants. Paulding County charged him with the new offense of possession of methamphetamine while Douglas County issued a probation arrest warrant for the new

₃₃

crime.³³

In October 2007, while executing the probation arrest warrant at Thackston's Paulding County...