Criminal Law - Franklin J. Hogue, Laura D. Hogue, and Marcus S. Henson

• Publication year: 2001

Criminal Law

Franklin J. Hogue^*

Laura D. Hogue^** and

Marcus S. Henson^***

I. Introduction

This Article surveys criminal law in Georgia for the reporting period June 1, 2000 to May 31, 2001. By survey, we mean that we combed the hundreds of opinions that our appellate courts produced this year and selected for inclusion only those cases that expanded the law in some area, overruled case law, struck down a statute, or struck us as so entertaining that we couldn't leave it out. Thus, our caveat: This Article in no way supplants the careful and detailed case-specific research that must be done in actual cases to find the appropriate law for the situation at hand.

II. Pretrial Issues

A. Demurrers

Careless drafting of charging documents by prosecutors and haphazard review of them by defense lawyers allow many defendants to be tried on imperfect accusations and indictments. In State v. Jones,¹ the court of appeals upheld the trial court's granting of a special demurrer when the accusation alleged Jones's failure to heed a police officer's signal to stop his car, but failed to say how the officer gave the signal.² The statute sets forth several ways in which an officer may signal a citizen to stop.³ Because a person may commit the crime in more than one way, the accusation should have specifically informed the defendant in which way the statute had been violated.⁴

The authors note that this imperfection often appears in accusations and indictments in drug cases. The Official Code of Georgia Annotated ("O.C.G.A.") section 16-13-30 sets forth ten situations that constitute a drug crime.⁵ For example, the authors have encountered many drug cases in which the charging document alleges the offense of "sale" of a controlled substance, but then describes the defendant's actions in a variety of ways including possession, possession with intent to distribute, distribution, or having a controlled substance under one's control. Such a broad charging document begs for a special demurrer to be filed.

B. Venue

The murky "slight evidence" standard for proving venue has finally been abolished. In Jones v. State,⁶ the Georgia Supreme Court "disapproved" of the slight evidence standard of proof for establishing venue⁷ that had previously been set forth in Minter v. State.⁸ Once a plea of not guilty has been entered, the State must prove at trial each and every element of the crime, including venue, beyond a reasonable doubt.⁹ The supreme court recognized that the slight evidence exception to the State's burden of proof will no longer be recognized in any appeal from a judgment of conviction.¹⁰

C. Search and Seizure

Each year the courts face scores of appellate cases involving alleged violations of defendants' expectations of privacy. Very seldom do the cases result in the announcement of a new principle of law. More often they involve the application of established principles to old facts or, sometimes, a slight variation of the same facts. Rather than review them all this year, we invite the reader to consult the following opinions produced this year in the area of searches and seizures: State v. Causey¹¹ (articulable suspicion); Taylor v. State¹² (articulable suspicion/evading roadblock); Vaughn v. State¹³ (articulable suspicion/suspicious activity in a suspected drug area); McBriole v. State¹⁴ (articulable suspicion/turn signal); Johnson v. State¹⁵ (articulable suspicion where officer recognized driver from previous stop involving suspended license); State v. Murphy¹⁶ (articulable suspicion where officer stops vehicle based on possible equipment violations, but fails to investigate the equipment after the stop); Emery v. State¹⁷ (automobiles); Duke v. State¹⁸ (automobile stop); State v. Burnett¹⁹ (confidential informant); Turner v. State²⁰ (consent search); State v. Alexander²¹ (eluding roadblock/undermining officer credibility); State v. Forehand²² (emergency ordinance); State v. Peterson²³ (exigent circumstances); Patman v. State²⁴ (plain feel/probable cause to search person); State v. Staley²⁵ (probable cause); State v. Jones²⁶ (probable cause to arrest); Barraco v. State²⁷ (probable cause to search person); Montero v. State²⁸

(probable cause/withdrawal of consent); Bragg v. State²⁹ (reliability of informant); Henderson v. State³⁰ (scope of traffic stop); Powell v. State³¹ (search incident to arrest); Christopher v. State³² (search warrant/probable cause); Roberson v. State³³ (search warrants/failure to disclose informant's deal with government); Dean v. State³⁴ * (sufficiency of motion to suppress); Smith v. State³⁵ (suspicious vehicle/what constitutes flight for purposes of valid seizure); Barnett v. State³⁶ (Terry patdown and authority to order out of car, show hands, and forcibly remove from car); Tran v. State³⁷ (tip from known informant of unknown reliability); Berry v. State³⁸ (traffic stop/lack of state tag); Bell v. State³⁹ (traffic stop/scope of permissible investigation); State v. Gibbons*⁴⁰ (traffic stop/scope of permissible investigation); State v. Sims⁴¹ (traffic stop/scope of permissible investigation); State v. Mallard⁴² (vehicle stop after leaving premises where warrant about to be executed/good faith exception not applicable in Georgia); State v. Shephard⁴³ (warrantless entry).

D. Custodial Statements—Hope of Benefit

Suppose the defendant has invoked his right to the assistance of counsel in response to his Miranda warnings during a custodial interrogation by police.⁴⁴ Suppose also that the officer told the accused that he could change his mind and give a statement without counsel if he desired.⁴⁵ Suppose that the court of appeals held that this did not constitute a violation of Edwards v. Arizona⁴⁶ and Hicks v. State⁴⁷ prohibiting police initiation of further interrogation after an invocation of Miranda rights. And, finally, suppose that before the incriminating statements came tumbling out, the officer said things to the accused like the following:

Tell the truth if you want me to be in a position to say that you cooperated .... I am the one who can put in a word for you .... You can still help yourself by telling the truth .... I am the one who can put you in touch with other people you can talk to that might be willing to help you, like the GBI.⁴⁸

Surely, you say, the court of appeals ruled that these comments held out the slightest hope of benefit in violation of O.C.G.A. section 24-3-50, and thus defendant's incriminating answers should have been excluded from trial.⁴⁹ Well, you would be wrong, according to the court in Caldwell v. State.⁵⁰ We wonder: What other reasonable meaning could Caldwell have attached to the officer's comments other than that "help" meant something beneficial to Caldwell's possible punishment?⁵¹

III. Discovery

A. Request for Continuance

Under the Criminal Discovery Act,⁵² a reciprocal obligation on the State and the defense requires them to provide "the names, current locations, dates of birth, and telephone numbers" of their respective witnesses—in the case of the State, no later than ten days before trial.⁵³ The statute, according to the supreme court in State v. Dicker-son,^54, imposes a duty on the producing party to acquire the information.⁵⁵ Saying that the information "is not in my possession" will not cut it.⁵⁶ Moreover, if the State fails to provide such identifying information about its witnesses, the defendant must request a continuance in order to preserve the error, something Dickerson failed to do.⁵⁷

B. Witness Statements

The question in Taylor v. State⁵⁸ was what the discovery statute⁵⁹ required when it obligated the parties to "produce" written statements of witnesses the party intended to call at trial.⁶⁰ Taylor complained because the State had not allowed him to photocopy witness statements.⁶¹ Unlike other parts of the discovery statute, O.C.G.A. section 17-16-7 "does not contain the express language requiring the party in possession, control or custody of the discoverable statement to allow the item to be photocopied."⁶² Under the rules of statutory construction, the supreme court concluded that the Legislature deliberately chose to exclude express language requiring each side to allow the other to copy its witness statements, especially considering that other parts of the statute included language pertaining to copying and photographing documents and things.⁶³ Thus, while the court noted that counsel, as a professional courtesy, should allow copying of statements, a refusal to do so would not constitute reversible error.⁶⁴

Having experienced far too many unnecessary and contentious discovery disputes, the authors hope that the supreme court's encouragement that lawyers be courteous when it comes to their photocopy machines will be heeded by all, and that if the Legislature did not deliberately leave out language concerning copying in O.C.G.A. section 17-16-7, it will add such language soon.

IV. Guilty Pleas

The Georgia Supreme Court in Bazemore v. State⁶⁵ reversed the denial of Levon Bazemore's habeas corpus petition, finding that Mr. Bazemore's 1990 guilty plea was not constitutionally valid⁶⁶ under the mandate of Boykin v. Alabama.⁶⁷ The transcript of the plea hearing lacked the necessary colloquy by the court in which the pleading defendant would be advised of the constitutional rights he is waiving and questioned about the voluntariness of his plea. At the habeas hearing, Bazemore's trial counsel testified that he "usually" had a discussion with his clients about their constitutional rights, but he could not remember anything about this particular case. Bazemore testified that he was not advised of his rights or the consequences of his guilty plea.⁶⁸

The trial court denied the habeas, finding that the trial attorney's testimony regarding his usual practice and Bazemore's "familiarity" with the criminal process was sufficient to satisfy the mandate of Boy kin.⁶⁹ The supreme court disagreed, holding that the trial attorney's inability to...