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

• Publication year: 2000

Criminal Lawby Franklin J. Hogue^* and

Laura D. Hogue^**

I. Introduction

This year we surveyed hundreds of criminal law cases to select those we thought most worthy of inclusion in this survey. We have no doubt that other lawyers practicing criminal law would have included other cases and left out some we included. This is a survey of the vast ever-changing landscape of criminal law, and the practitioner may use this article as a starting point for the careful and detailed research that must be done in actual cases.

II. Pretrial Issues

A. Jeopardy

In Hooker v. State,¹ jeopardy attached when defendant pleaded guilty in state court to failing to stop at the scene of an accident, DUI, and following too closely, thereby precluding the State from prosecuting defendant in superior court for an aggravated assault that arose out of the same incident.² The sheriff, in a "compassionate measure,"³ advised defendant to complete an alcohol treatment program quickly and to plead guilty to the misdemeanor charges in state court in order to save his driver's license. The sheriff, in a further attempt to help defendant, requested that the secretary in the district attorney's office send the misdemeanor paperwork to state court so that defendant could plead guilty there. She did so without conferring with the district attorney.⁴

Defendant entered his plea in state court. Some time later, the district attorney sought an indictment against defendant for the felony charge. Defendant filed a plea of former jeopardy, which the superior court granted on the misdemeanors.⁵ The court of appeals reversed, observing established law that

the acceptance of a defendant's misdemeanor plea constitutes a bar to his prosecution on felony charges arising from the same transaction where an assistant district attorney having jurisdiction over all the offenses had made an election, whether intentionally or by default, to dispose of the charges separately rather than requiring all the offenses to be bound over to superior court.⁶

The result would have been different had defendant, through his attorney, attempted to manipulate the system by pleading guilty in state court in an effort to create a bar to prosecution in superior court.⁷ But, in this case, defendant pleaded guilty pro se in state court, and superior court trial counsel had not attempted to manipulate the system in any way.⁸ The "well-intended but misguided acts of commission and omission by Sheriff Stephens and the secretary who assisted him in the district attorney's office" barred the state from further prosecution.⁹ The sheriff is unlikely to take such a "compassionate measure" the next time.

The Supreme Court of Georgia faced a jeopardy question of first impression in Buice v. State.¹⁰ Buice had been indicted in 1994 and again in 1996 for child molestation. Just before the cases were to be called for trial, the State moved to nol pros the 1994 indictment and proceed on the 1996 indictment. When the case was called for trial, the State moved the court to vacate the nolle prosequi order and to reinstate the 1994 indictment because the State had meant to nol pros the 1996 indictment, not the 1994 indictment. Over objection, the court vacated its order to nol pros the 1994 indictment and, without requiring the State to re-indict defendant, allowed the 1994 case to proceed to trial.¹¹

The supreme court ruled that

in light of well-established Georgia law regarding the plenary control courts of record retain to revise or vacate orders and judgments during the term at which they were entered, we hold that an order of nolle prosequi may be vacated within the same term of court in which it was rendered in those instances where the State has demonstrated a meritorious reason and there is no prejudice to the accused which would constitute a manifest abuse of the trial court's discretion in vacating the order.¹²

In Buice the State demonstrated a meritorious reason—the prosecutor mistakenly tendered the wrong indictment—and Buice suffered no prejudice because he knew that the State was prepared to proceed against him at trial on either indictment.¹³ The supreme court added that its "holding likewise applies to nol pressed accusations."¹⁴

B. Demurrer

In Johnson v. Athens-Clarke County ¹⁵ a case that illustrates that no law, however minor, should stand unchallenged in the hands of a thorough defense lawyer, the supreme court struck down a municipal loitering ordinance for vagueness.¹⁶ A police officer observed Johnson sitting on a wall at the same intersection in a drug area four times over two days, after having been told to move along. On the fifth sighting, the officer asked Johnson whether he was visiting anyone, to which Johnson answered no and informed the officer that he lived a mile away. The officer asked Johnson why he was there; Johnson asked the officer why he was harassing him. The officer answered Johnson by arresting him.¹⁷

Johnson was convicted in municipal court on a charge of loitering. He appealed to the superior court, arguing that the ordinance should be declared void for vagueness, but the court affirmed his conviction.¹⁸ Because he raised a constitutional challenge, Johnson appealed to the Georgia Supreme Court. The court declared the ordinance to be vague because, unlike the Georgia loitering statute¹⁹ that has withstood a vagueness attack, the ordinance added the phrase '"or under circumstances which cause a justifiable and reasonable alarm or immediate concern that such person is involved in unlawful drug activity.'"²⁰

The ordinance failed to withstand the scrutiny of the supreme court because

an innocent person unfamiliar with the drug culture could stand or sit in a "known drug area" without knowing the area had such a designation, and could return to the area for a legitimate reason, or for no reason at all, and, as the facts of this case show, be subject to arrest and conviction.²¹

The ordinance, therefore, '"does not provide fair warning to persons of ordinary intelligence as to what it prohibits so that they may act accordingly.'"²² The ordinance also failed because it '"affords too much discretion to the police'" to act in an arbitrary and discriminatory way.²³

In another attack on a local ordinance, the supreme court in Thelen v. State²⁴ struck down as vague a Clayton County ordinance that prohibits "any . . . unnecessary or unusual sound or noise which . . . annoys . . . others."²⁵ Pete Thelen was convicted for violating this ordinance after neighbors complained that he was repeatedly taking off and landing his helicopter on his private dock on Lake Spivey.²⁶ The supreme court concluded that the ordinance did not put Thelen on notice because the adjectives "unnecessary" and "unusual" modifying "noise" were "inherently vague."²⁷ These vague words leave it to people of ordinary intelligence to guess at what they mean and allow police, judges, and juries to apply them on an ad hoc basis and perhaps in arbitrary and discriminatory ways.²⁸ So, while the supreme court did not condone any interference with the tranquility and sanctity of Thelen's neighbors, it believed that Clayton County could do a better job in drafting its noise ordinance.

In last year's Georgia Survey,²⁹ we wrote about Powell v. State's³⁰ expulsion of the state from interference in consensual sodomy between adults in a private place.³¹ Defendant in Howard v. State³² attempted to persuade the court to extend its reasoning in Powell to strike down the solicitation of sodomy statute.³³ The court declined to do so.³⁴ Perhaps Howard was not the best case in which to make such an argument.

Howard entered the men's restroom in a restaurant while a waitress was cleaning it. Howard locked the door, would not let the waitress leave, then offered her "$20 for a blow job."³⁵ She refused, so he attempted to force her to perform sodomy. She escaped from the restroom, and Howard was later convicted of solicitation of sodomy, attempt to commit aggravated sodomy, and false imprisonment.³⁶ The court's decision in Powell, however, does not extend the right to privacy to sodomy generally, nor does it protect the solicitation of sodomy in particular. The court "can narrowly construe the solicitation of sodomy statute to only punish speech soliciting sodomy that is not protected by the Georgia Constitution's right to privacy."³⁷ Therefore, offering to pay for oral sex in a public place is not protected speech. Justice Sears dissented, arguing, in essence, that it makes no sense to permit two people to engage in sodomy but to prohibit them from talking about it beforehand.³⁸ She argued that the statute should have failed constitutional muster because it is overbroad.³⁹

C. Calendaring Cases and Continuance

In Cuzzort v. State⁴⁰ the district attorney for the Lookout Mountain Judicial Circuit assigned cases to particular judges and then placed those cases on the court calendar. Cuzzort appealed this procedure, claiming that it violated Uniform Superior Court Rule 3.1.⁴¹ The rule provides, in pertinent part:

In multi-judge circuits, unless a majority of the judges in a circuit elect to adopt a different system, all actions, civil and criminal, shall be assigned by the clerk of each superior court according to a plan approved by such judges to the end that each judge is allocated an equal number of cases.⁴²

The supreme court agreed with Cuzzort and found that the Lookout Mountain Judicial Circuit violated the clear mandate of the rule by allowing the district attorney to make case assignments and set the calendar.⁴³ The court went on to find that this method constituted an abuse of discretion under Official Code of Georgia Annotated ("O.C.G.A.") section 17-8-1 because it allowed the district attorney to call cases out of order rather than in accord with the statute, which says that cases on a criminal docket should be '"called in the order in which they stand on the docket unless the defendant is in jail...