Criminal Law - Franklin J. Hogue

• Jurisdiction: Georgia,United States
• Publication year: 2009
• Citation: Vol. 61 No. 1

Criminal Lawby Franklin J. Hogue^*

I. Introduction

This year I selected a small number of significant cases and amendments to Georgia criminal law on which to focus this Survey. This allows slightly more in-depth treatment within the space limitations and may be more useful, so I hope, to practicing trial lawyers in the ever-changing area of criminal law. This survey period covers developments from June 1, 2008 to May 31, 2009.¹

II. The Sleepwalking Defense: Involuntary Act or Insanity?

In Smith v. State,² Tavaris Smith and his wife had a stormy marriage. Smith threatened to kill his wife and put a gun to her head on a previous occasion. Not surprisingly, she was considering divorcing him. On the night of June 5, 2003, however, Smith shot her while she slept, killing her.³

Smith hoped to defend against the charge of murder by offering evidence that he shot his wife while sleepwalking; therefore, he could not have formed the intent to kill.⁴ He indicated his desire to present expert testimony that he suffered from a physiological sleep disorder, which caused him to shoot his wife either while asleep or "in a state of confusional arousal due to the disorder."⁵

Smith did not file a notice of intent to present an insanity defense pursuant to section 17-7-130.1 of the official Code of Georgia Annotated (o.C.G.A.),⁶ arguing that he did not consider his defense to involve insanity.⁷ The trial court concluded, however, that Smith's sleepwalking defense amounted to a plea of not guilty by reason of insanity and, pursuant to the insanity statute, appointed an expert to examine him.⁸ In addition, the court charged the jury on insanity, explaining that Smith bore the burden of proving insanity by a preponderance of the evidence even though Smith's own expert testified that Smith was not insane at the time of the shooting.⁹ The jury convicted Smith of murder.¹⁰ on appeal to the Georgia Supreme Court, Smith argued that the trial court erred by requiring him to proceed under an insanity defense.¹¹ The court agreed and reversed his conviction.¹² Quoting from Wayne LaFave's Substantive Criminal Law,¹³ the court observed:

A defense related to but different from the defense of insanity is that of unconsciousness, often referred to as automatism: one who engages in what would otherwise be criminal conduct is not guilty of a crime if he does so in a state of unconsciousness or semi-consciousness. Although this is sometimes explained on the ground that such a person could not have the requisite mental state for commission of the crime, the better rationale is that the individual has not engaged in a voluntary act.¹⁴

Additionally, the court noted that the Model Penal Code¹⁵ and the majority of courts that have considered the sleepwalking defense have concluded that "people who commit potentially criminal acts because of such disorders should not be criminally responsible because they are not acting voluntarily and with criminal intent."¹⁶ The court also referred to its own dicta from a case sixty-five years earlier involving sleepwalking.¹⁷ In that case, the court concluded that an unconscious act without intent would run afoul of the statutory requirement that every crime involve the joint operation of criminal act and criminal intent.¹⁸

The additional rationale behind refusing to classify sleepwalking as an insanity defense is that "criminally insane defendants are often committed to a mental institution for mental rehabilitation," a treatment that would not help a sleepwalker.¹⁹ Unlike the criminally insane, who suffer permanent or semi-permanent disabilities, the sleepwalker's problem only occurs when he is sleeping.²⁰ This problem, while troubling, especially when there are guns around, is not a permanent mental disorder for which rehabilitative treatment would have any ameliorating effect.²¹

Thus, though sure to be applied only on rare occasions, it is now the law in Georgia that one who commits what would otherwise be a criminal act and who raises the defense that he or she did it while sleepwalking, or presumably in some other unconscious automaton-like state, need not proceed under the requirements of the insanity statute.²²

III. Hey, That's My Wallet: Lost But Not Abandoned

In Wolf v. State,²³ off-duty police officer Stan Moore, while providing security at a concert, spied a wallet lying on the ground outside the concert hall. He believed that the wallet had been lost but not abandoned by its owner. After picking it up, Moore looked inside the wallet three times; first, to ascertain its owner. Moore found William Wolf's driver's license, so he and other officers went to find him.²⁴

While carrying the wallet during the search for its owner, Moore could feel "'something granular . . . crunching around'" inside.²⁵ For a second time Moore looked inside the wallet, this time to ascertain the source of the crunching sensation, thinking that it was either drugs or that something made ofglass had broken inside the wallet. Moore found the crunching was caused by a bag of methamphetamine in the compartment of the wallet designed to hold money. Upon discovering the drugs, Moore looked in the wallet a third time, then looking for an automobile insurance card so that he could find the owner's car in the parking lot.²⁶

Moore found Wolf's car while another security officer found Wolf. Wolf acknowledged that the wallet was his but accused someone of planting the meth in it. However, a search of Wolf's person turned up the empty shell of a plastic pen—an item useful for ingesting meth—and Wolf was subsequently charged with possessing both the meth and the drug-related object. He moved to suppress both items but lost in the trial court.²⁷

The only search at issue on appeal was the second one, which was conducted after the discovery of the crunching sensation.²⁸ While the trial court correctly considered Wolf to have lost his wallet, the Georgia Court of Appeals held it was error to conclude that he had thereby abandoned it.²⁹ Voluntarily abandoned property leaves its owner with no expectation of privacy in it.³⁰ The question of abandonment, however, turns on the intent of the person whose property it is—whether he or she has in some way relinquished interest in it.³¹ This includes knowingly exposing it to the public, such as one does when leaving garbage outside the curtilage of a home.³²

Wolf, by contrast, did not relinquish any interest in his wallet, even claiming it as his when confronted by the police, and he did not even know until then that he had lost it.³³ What makes this case noteworthy for this Survey is that the court of appeals had never before addressed whether a person retains an expectation ofprivacy in an item that has been lost but not abandoned.³⁴ As a consequence the court surveyed the law in other jurisdictions, noting other courts have held that citizens retain their expectation of privacy in wallets and other personal effects when the item has been lost.³⁵ The court said, however, the expectation of privacy is diminished by losing the item because police may examine it to find out who owns it to return the item.³⁶

The "crunchy feel" search of Wolf's wallet violated Wolf's Fourth Amendment³⁷ expectation of privacy because the officer did not enter the wallet to ascertain the identity of its owner, as he did on the first and third searches.³⁸ Thus, the methamphetamine should have been excluded by the trial court.³⁹ Because Wolf's arrest was predicated on an illegal search of his wallet, the discovery of the hollow pen was also illegal and should have been suppressed as "'fruit of the poisonous tree.'"⁴⁰

IV. Res Gestae: A Hearsay Exception Whose Time Has Passed, Almost

In Cuyuch v. State,⁴¹ Canton Police officer Isin encountered Juan Pasqual bleeding from a cut on his arm. Pasqual told officer Isin that Pasqual's roommate, Leonardo Cuyuch, cut him. Upon inquiry, Pasqual told officer Isin where he and his roommate lived and that Cuyuch was still there at that time.⁴² officer Isin stayed with Pasqual while Sergeant Lummus went to the apartment to look for Cuyuch. While on the way, Sergeant Lummus encountered Francisco Lorenzo standing on the side of the road, yelling that his friend needed help. Because of a language barrier, Sergeant Lummus couldn't determine who Lorenzo was saying needed help. Sergeant Lummus put Lorenzo in his car and asked Lorenzo to direct him to the injured friend. Lorenzo directed Sergeant Lummus to the apartment where Cuyuch and Pasqual lived. When Sergeant Lummus arrived, Cuyuch was lounging on a sofa, calmly watching TV. Another person was also present, across from Cuyuch, watching TV.⁴³

Sergeant Lummus could not understand what Lorenzo was saying as he pointed to Cuyuch, who did not appear injured, so Lummus got somebody to translate. Lorenzo told the officers that Pasqual needed help, that Cuyuch had cut him, and that the knife Cuyuch had used was in the yard.⁴⁴

Sergeant Lummus found the knife and radioed Officer Isin to tell him that he had arrested Cuyuch. Officer Isin then drove Pasqual to the apartment to identify the person who had cut him. When Officer Isin and Pasqual arrived, Cuyuch was handcuffed and sitting in the back of Sergeant Lummus's patrol car. Pasqual told Officer Isin that Cuyuch was the person who had cut him.⁴⁵

At trial, the State could not locate Pasqual or his friend Lorenzo. The translator did not testify, so the State used the two police officers to make its case against Cuyuch by having them convey what Pasqual and Lorenzo said to them. Cuyuch was convicted of aggravated battery.⁴⁶ The court of appeals affirmed,⁴⁷ but the supreme court granted certiorari and reversed.⁴⁸

Using Crawford v. Washington,⁴⁹ the supreme court analyzed the confrontation issue.⁵⁰ The issue turned on whether Pasqual and Lorenzo's statements, which were clearly hearsay, were admissible as non-testimonial in this instance when made to the police to assist them in meeting an...