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

• Publication year: 1999

Criminal Lawby Franklin J. Hogue^* and

Laura D. Hogue^**

I. Introduction

The Georgia Court of Appeals and Supreme Court produce a prodigious number of opinions in criminal cases every year. We reviewed 940 cases for this reporting period. We refrained from straying outside the reporting period, even though one recent case of significance tempted us greatly.¹ Look for it in next year's review.

We are trial lawyers, so we organized this article in roughly the order in which issues may arise in the average case. If no opinions of note came out of the appellate courts in a given area of law, such as in the area of bonds and pretrial release, we simply did not include a section with that heading.

II. Pretrial Issues

A. Right to Counsel

The issue of one's right to counsel arises most often in misdemeanor cases when defendants, following conviction in a pro se trial, appeal on the grounds that the court denied their right to counsel. Waiver of counsel requires a showing on the record that the defendant forfeited this constitutional right knowingly and intelligently.² The court of appeals reversed four convictions in this reporting period because the record failed to show that these pro se defendants waived their right to counsel.³

"When an accused is placed on trial for any offense, whether felony or misdemeanor, for which [she] faces imprisonment, the constitutional guarantee of right to counsel attaches. As with all constitutional rights, the accused may forfeit this right by a knowing and intelligent waiver. Waiver of counsel requires more than a showing of a knowledge of right to counsel; there must also be evidence of relinquishment" of this right.⁴

The trial judge has a "serious and weighty responsibility" to protect accused citizens "whose life or liberty is at stake" by insuring that they know the perils of proceeding to trial without a lawyer.⁵ The judge must determine through a dialogue with the defendants that they understand the risks and, in spite of them, desire to proceed without counsel.⁶ The burden shifts on appeal from the defendant to the state; the state must "prove that the defendant received sufficient information and guidance from the trial court upon which to knowingly and intelligently relinquish this right."⁷ And when the record is silent, waiver is never presumed.⁸

B. Jeopardy

A reversal of a conviction by the appellate court rarely means that the state cannot try the defendant again. One important exception, however, arises when a prosecutor engages in misconduct '"intended to subvert the protections afforded by the Double Jeopardy Clause.'"⁹ Such misconduct occurred in Wilson v. State¹⁰ when the prosecutor "improperly asked Wilson during cross-examination: 'Mr. Wilson, did you try to negotiate a nolo contendere plea in this charge?'"¹¹ While the trial court did grant an immediate mistrial, it later denied defendant's plea in bar of double jeopardy when the State sought to retry him.¹² The court of appeals reversed, finding it

impossible to believe that an error which is so blatant and so contrary to the most basic rules of prosecutorial procedure and conduct could have been simply a negligent act. To allow this prosecutor's action to be categorized as a mistake would require this Court to assume that this prosecutor was totally lacking the foundational knowledge for prosecutorial conduct in a courtroom.¹³

Nevertheless, we wonder.¹⁴

C. Demurrer and Motion to Quash

In a case of first impression, the Georgia Supreme Court ruled that O.C.G.A. section 40-6-275 was unconstitutionally vague.¹⁵ This statute requires drivers involved in a traffic accident on a multilane highway "to move [their] vehicles out of harm's way unless the accident includes personal injury, death, or extensive property damage."¹⁶ Truck driver Johnny Johnson collided with another driver on Interstate 85. The crash rendered the other driver's car inoperable, but he was able to pull it off the roadway. Johnson, however, stopped his tractor-trailer in the middle lane of the three-lane highway about two hundred feet up the road from the disabled car and began to place warning markers behind his truck. A pickup truck slammed into Johnson's truck, killing the three occupants. Johnson was accused of vehicular homicide, predicated upon his failure to comply with O.C.G.A. section 40-6-275.¹⁷

The supreme court ruled that the phrase "extensive property damage" failed to withstand a vagueness attack because the statute did not "'so definitely and certainly define the offense that a person of reasonable understanding can know at the time of the commission of the act that the law is being violated.'"¹⁸ The court reasoned that extensive property damage could mean different things to different people:

Does the term 'extensive property damage' depend upon the quantity of physical damage to a vehicle? If so, what percentage of the vehicle must be damaged, ten percent, twenty percent, or fifty percent? Or does the term depend upon the part of the vehicle which is damaged? If so, must the damage be more than cosmetic; does damage to a fender and door suffice; or must the damage be to a mechanical part? Or, does the term 'extensive property damage' depend upon the cost of repairs? If so, does the term mean the cost of repairs must exceed $500, $1,000, or $5,000? Reasonable people will differ in their approach to these questions—and the statute provides no answers.¹⁹

The statute, therefore, had to be declared unconstitutional.²⁰

In another case involving statutory construction, the court of appeals held that the criminal abortion statute did not apply to a woman who caused the death of her near-term fetus by shooting herself in the abdomen with a handgun.²¹ O.C.G.A. section 16-12-140(a) says:

Except as otherwise provided in Code Section 16-12-141, a person commits the offense of criminal abortion when he administers any medicine, drugs, or other substance whatever to any woman or when he uses any instrument or other means whatever upon any woman with intent to produce a miscarriage or abortion.²²

The court observed that "[t]his statute is written in the third person, clearly indicating that at least two actors must be involved."²³ Because the court must give statutory words their plain and ordinary meaning, it followed that "O.C.G.A. [section] 16-12-140 does not criminalize a pregnant woman's actions in securing an abortion, regardless of the means utilized."²⁴ Jacquelyn Aretha Hillman, therefore, committed no crime under Georgia law; the trial court should have granted her motion to quash the indictment.

In a case of first impression, the supreme court again expanded the felony murder rule.²⁵ The court stated, "A person commits felony murder when, while committing a felony, he or she causes the death of another person, irrespective of malice. O.C.G.A. Sec. 16-5-l(c). The underlying felony must also be one that is dangerous per se; that is, its attendant circumstances must create a foreseeable risk of death."²⁶ Defendant led police in a high-speed chase which ended when he collided head-on with another car, killing its driver.²⁷ The supreme court ruled that felony fleeing and eluding a police officer, which results in the death of another in a traffic accident, can serve as the underlying felony to support a charge of felony murder.²⁸

A successful attack on a statute occurred in Powell v. State.²⁹ The supreme court held that the sodomy statute, O.C.G.A. section 16-6-2, infringes upon our constitutional right to privacy "insofar as it criminalizes the performance of private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent."³⁰ Powell was indicted for rape and aggravated sodomy of his wife's seventeen-year-old niece. The niece testified that Powell "had sexual intercourse with her and engaged in an act of cunnilingus without her consent and against her will."³¹ Powell admitted the acts with his wife's niece, but testified that she had consented. The trial court charged the jury on rape and aggravated sodomy, but also charged the jury on the lesser offense of sodomy. The jury acquitted Powell of rape and aggravated sodomy, but found him guilty of sodomy.³² This verdict set up the attack on the statute, because it meant the jury found the state had failed to prove that the act of cunnilingus had been performed "'with force and against the will' of the niece."³³ Therefore, the court had to decide whether the statute authorized the State to intrude upon our right to engage in a private consensual act of oral sex. The Court ruled it did not, thereby throwing the State out of the bedroom.³⁴

D. Discovery

In State v. Glenn,³⁵ the court of appeals held that the state did not waive its privilege to withhold the identity of a confidential informant even though the state paid the informant.³⁶ The trial court granted the defense's request to reveal the informant's identity because the privilege against revealing, the court reasoned, comes from a desire to protect "upright citizens" who give information to the police, not "people who are willing to sell, to market the information they have for a price."³⁷ In reversing the trial court, the court of appeals noted that the privilege belongs to the state, not the informant, and the state preserves its interest in withholding the identity of informers in order to encourage the free flow of information about criminal activity even if the police pay the informant.³⁸

E. Continuance

Trial judges have broad discretion in granting or denying motions to continue. During the past year, only three cases of interest arose in connection with rulings on such motions.

In Brady v. State,³⁹ though the evidence was sufficient to convict James Lee Brady of statutory rape, incest, and child molestation, the court of appeals reversed his conviction because the trial court denied the defendant's motion to continue.⁴⁰ The motion was based upon the State's failure to provide...