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

• Jurisdiction: United States,Federal,Georgia
• Publication year: 2004
• Citation: Vol. 56 No. 1

Criminal Lawby Laura D. Hogue^* and Franklin J. Hogue^**

I. Introduction

In this year's survey of criminal law in Georgia, we selected only cases in which a new rule of law was announced, a case of first impression was presented, a case with unusual or interesting facts was presented, or the case, while saying nothing new, set forth well-established law about topics that we could all use a reminder of from time to time.

II. Pretrial Issues

A. Speedy Trial

When a motion for speedy trial is filed pursuant to the Sixth Amendment of the United States Constitution,¹ and a motion to dismiss alleging a speedy trial violation is subsequently filed, the trial court must enter findings of fact and conclusions of law setting forth its analysis pursuant to Barker v. Wingo² The court must conduct the four-step Barker v. Wingo analysis³ and must enter findings of fact and conclusions of law consistent with that opinion. If the court does not do so, the Georgia Court of Appeals held in Bryant v. State⁴ and Smith v. State,⁵ and the Georgia Supreme Court held in Williams v. State,⁶ that the denial of the motions to dismiss will be remanded to the trial court to conduct this essential analysis.

In two instances, the State of Georgia appealed trial court orders granting statutory speedy trial discharges,⁷ and in both State v. Shields⁸ and State v. Edminson,⁹ defendants prevailed, having sufficiently shown that discharge and acquittal were required for failure to try defendants during the time required by the statutory speedy trial demand.¹⁰

B. Double Jeopardy

If a mistrial is declared over the defendant's objection, the defendant cannot be retried unless it can be shown that the mistrial was manifestly necessary. In Payne v. State,¹¹ defendant was charged with various sexual offenses against his stepdaughter, who, after accusing him, recanted to a Department of Family and Children Services ("DFCS") caseworker. The stepdaughter explained she had accused Payne because she was angry at him for disciplining her, and she acquired knowledge of the sex acts she accused Payne of having committed upon her by viewing pornography at her father's home. The State moved to prohibit any evidence that the child had viewed pornography as violative of the Rape Shield Statute.¹² The motion was granted.¹³

At trial defense counsel cross-examined the State's DFCS worker and elicited testimony that the child had recanted.¹⁴ When defense counsel examined her further to elicit the child's explanation for having lied about Payne, the DFCS worker explained that the child "stated that she had seen a pornographic movie."¹⁵ Defense counsel tried to stay within the parameters of the pretrial ruling by questioning the witness about the child's anger at having been disciplined by Payne; however, on re-cross, defense counsel became concerned that the unresponsive answer concerning pornography could lead the jury to conclude that Payne had been the one to show the child the pornography. Because of this concern, defense counsel returned to the subject and was immediately silenced by the prosecutor, who objected and moved for a mistrial. The motion was granted over defense's objection, which was raised in a motion to bar a retrial.¹⁶

The Georgia Court of Appeals held that defense counsel did not ask any question that would reasonably have led the DFCS worker to testify about the pornography.¹⁷ Moreover, the court concluded that once the witness testified, it was important for defense counsel to make certain that the jury did not impute to his client the alleged victim's viewing of the pornographic images.¹⁸ That being the case, there was no "manifest necessity for the declaration of a mistrial without Payne's consent."¹⁹ Thus, the trial court erred in denying defendant's plea of former jeopardy.²⁰

C. Statute of Limitations

The court of appeals, in Tompkins v. State,²¹ addressed the complexities of assessing the proper statute of limitations for cases concerning crimes against minors.²² First, in Tompkins the court established the rule that the seven-year limitation period for noncapital felonies committed against children under the age of fourteen is a general statute of limitations, not an exception to the four-year statute of limitations that applies to noncapital felonies committed against children between the ages of fourteen and sixteen.²³ The importance of this ruling is that any exception to the statute of limitations must be pleaded in the indictment in order for the State to rely upon it. If the seven-year statute of limitations is an exception to the four-year statute of limitations, the State would be required to plead in the indictment that the child was under fourteen in order to proceed with the seven-year, versus the four-year, limitations period.²⁴ In Grizzard v. State,²⁵ the Georgia Court of Appeals held that in order for the State to rely upon the seven-year limitations period, it must allege in the indictment, and prove, that the victim was under the age of fourteen.²⁶ The holding assumes that the seven-year period is an exception to the four-year limitations period.

The opinion in Tompkins disapproves of the holding in Grizzard. The court in Tompkins held that the seven-year limitations period is a general limitations period, not an exception to the four-year statute of limitations; therefore, it is not necessary for the State to plead age in the indictment to try and utilize the lengthier limitations period.²⁷ Of course either period of limitations is tolled when the indictment alleges that the victim is under the age of sixteen until the time that the child reaches the age of sixteen.²⁸

D. Demurrers: Sufficiency and Constitutionality of the Charging Documents

Two Georgia statutes²⁹ were declared unconstitutional by the Georgia Supreme Court during this reporting period. First, in Cooper v. State,³⁰ the constitutionality of the implied consent statute³¹ was challenged. The implied consent statute authorized the seizure of blood from any driver of a vehicle involved in an accident that resulted in serious bodily injury or death.³² Because the statute did not require any determination of whether probable cause existed to suspect the driver committed any crime, the statute violated state³³ and federal³⁴ constitutions and was declared unconstitutional.³⁵

Second, in Mohamed v. State,³⁶ the Georgia Supreme Court declared a section of the financial transaction card fraud statute³⁷ unconstitu- tional.³⁸ The financial transaction card fraud statute provided that possession of two or more financial transaction cards, in the names of persons other than the suspect or his immediate family, would "be prima-facie evidence that the financial transaction cards" had been criminally obtained.³⁹ The court held that this mandatory presumption impermissibly shifted the burden of proof to the defendant to prove that he did not criminally obtain the cards.⁴⁰ Mohamed's defense was that he found the cards on the ground; yet, the burden-shifting permitted by the statute undermined that defense and effectively eliminated the other sections of the financial transaction card fraud statute that established other elements of proof necessary for the crime. Therefore, the burden-shifting language of that statute was unconstitutional.⁴¹

In State v. Langlands,⁴² the State waged an unsuccessful challenge to a trial court's decision to grant a demurrer on two counts of the indictment against Langlands. Defendant was charged with possession of a firearm by a convicted felon and felony murder. The predicate felony for the firearm offense was a 1985 conviction in Pennsylvania for involuntary manslaughter, and the predicate felony for the felony murder offense was the possession of a firearm. Under Pennsylvania law⁴³ involuntary manslaughter was categorized as a misdemeanor, but it carried a maximum sentence of five years.⁴⁴ The Georgia Supreme Court determined that the trial court was correct in finding that Georgia's felon-in-possession-of-a-firearm statute⁴⁵ failed to provide "sufficient notice to persons with out-of-state misdemeanor convictions that their convictions may serve as predicate felony offenses" for the crime of possession of a firearm by a convicted felon.⁴⁶

There were several other instances where the appellate courts identified fatal errors in indictments that were sufficient to support the granting of general and special demurrers. Through its rulings the appellate court reminds prosecutors that it is imperative to plead every essential element of the crime in the indictment because "there can be 'no conviction for the commission of a crime[,] an essential element of which is not charged in the indictment.'"⁴⁷ In Spence v. State,⁴⁸ the court of appeals held that the indictment, which charged Spence with the crime of fleeing and attempting to elude a police officer, merely recited a description of the statute along with some, but not all, of the elements of the offense, which rendered the indictment fatally deficient.⁴⁹ The fleeing and eluding statute⁵⁰ provides that it is

unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop.⁵¹

The court of appeals held that the indictment was fatally defective because it failed to allege: (1) that Spence intended to elude the police when he failed to stop his car; (2) which signals Spence ignored (visual or audible); and (3) which signals were given by the police.⁵²

In State v. Burrell,⁵³ the court of appeals both affirmed and reversed a trial court determination concerning multiple charges of aggressive driving and reckless driving, all arising out of the same incident.⁵⁴ After being cut off in traffic by the driver of an Acura, Burrell chased the car at a high rate of speed and in a reckless manner. The...