Georgia Criminal Defense Lawyer Blog

The passage of tough sex offender laws three years ago has been criticized by civil rights groups as being too harsh and too broad. Georgia lawmakers are now contemplating changing the toughest provisions of the sex offender laws to quell the debate.

The Macon Georgia Telegraph has the story.

The tougher laws against sex offenders were passed in 2006 in hopes of preventing the state from becoming a haven for sex offenders. Indeed, the laws passed in 2006 are said to be among the toughest in the nation and have sparked many court cases and controversy. One provision prevents offenders from living or working within 1,000 feet of almost anywhere children congregate. Another provision prevents offenders from volunteering in churches.

The current law also treats those convicted with crimes such as statutory rape, which deals with consensual relations, the same as those who are convicted of more serious crimes such as child molestation. Proposed changes would allow offenders convicted of statutory rape to petition the court to be removed from the state’s sex offender registry.

Other changes would allow the homeless to use a street on which they stay when registering instead of having to provide a home address so as to comply with the law. Offenders would also not be required to hand over internet passwords to officials under the revised law.

The changes in the law are supported by sheriff’s groups, defense attorneys, civil rights groups, and many lawmakers. We'll see.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Our firm is also listed in the Bar Register of Preeminent Lawyers by Martindale-Hubbell.

No surprise, but TI was finally sentenced. And the deal was as sweet as expected. A federal judge in Atlanta sentenced rapper Clifford “T.I.” Harris Jr. to one year and one day in federal prison. The sentence stems from an incident in October 2007 in which T.I. attempted to purchase machine guns and silencers in a Midtown parking lot from undercover ATF agents.

The plea deal T.I. made with the U.S. Attorney’s Office has come under fire as another example of a celebrity receiving a light sentence. The federal sentencing guidelines suggest that a defendant who pleads guilty to such offenses should receive nearly five years in prison. However, the plea deal also required T.I. to serve 1,500 hours of community service, pay a $100,000 fine, and be confined to his home for one year. T.I. has already served over 1,000 hours of his community service requirement.

Page Pate of our firm was interviewed by Entertainment Weekly about TI's extraordinary deal. He has also previously provided expert commentary to the local media on this high-profile case.

U.S. Attorney David E. Nahmias defended the plea deal by arguing that T.I. has made hundreds of appearances in front of thousands of kids denouncing gangs and crime. The hope is that T.I.’s appearances will deter some kids from entering a life of crime. Former U.N. Ambassador and Atlanta Mayor Andrew Young also applauded the large impact T.I.’s community service has had on reaching kids in underprivileged communities. Young and T.I. worked together in a community outreach program in New York.

T.I.’s sentence of one year and one day may be reduced to around 10 months for good behavior. The sentence is set to begin in late May when he will voluntarily report to prison.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Our firm is also listed in the Bar Register of Preeminent Lawyers by Martindale-Hubbell.

In one of our firm's recent appeals, the Georgia Supreme Court last week determined that a Georgia statute prohibiting medical doctors from issuing blank prescriptions was constitutional despite its vague language. The Court was sharply divided, and there were two separate dissenting opinions. (Our firm represents the doctor.)

In Raber v. State, Dr. Raber was charged with 33 counts of unlawfully issuing prescription forms which were signed but left blank. Dr. Raber, a small town doctor, left the pad of 33 prescriptions signed in blank with a nurse practitioner on his staff while he was out of town. The nurse took the pad to her residence. However, at the residence, the nurse’s daughter stole some prescriptions. Someone forged one of the signed prescriptions to obtain a powerful drug, and this resulted in the death of another woman who died of a drug overdose. The investigation into the death resulted in the discovery of the 33 prescriptions signed in blank by Dr. Raber.

Section (h) of a Georgia statute which deals with controlled substances states that, “[i]t shall be unlawful for any practitioner to issue any prescription document signed in blank.” Dr. Raber’s attorney argued that this law is unconstitutionally vague, because it does not define what a physician must do to “issue” a prescription document. In other words, the law does not give a physician notice that it is illegal to provide a prescription signed in blank to a member of his medical staff. The trial judge denied this argument, and the defense appealed the decision to the Georgia Supreme Court.

The Court’s majority noted prior sections of the statute in question state that a prescription is issued only when the name and address of the patient, the kind and quantity of the controlled substance, directions for taking, the signature and name of the physician, and the DEA registration number are present. The Court also noted that the other sections imply that a prescription is only issued when the “ultimate user” has received it. However, the Court found that section (h) is different, because it calls the form a “prescription document” instead of just a “prescription” which is used in the other sections. The majority reasoned that section (h) deals with only prescriptions that are signed but that have no other information listed, and thus, there does not need to be the additional information which is required by the other sections for a physician to issue a prescription. The Court also explained that the prescription does not need to be given to the “ultimate user” for it to be issued under section (h).

Thus, according to the majority, a doctor who hands a prescription signed in blank to any person for any reason has committed a felony.

Three justices dissented. Justice Hunstein found section (h) to be unconstitutionally vague and criticized the majority’s opinion as one which will lead to absurd results. For instance, Hunstein notes that a doctor who momentarily hands a signed but blank prescription to a nurse while he looks up a drug’s name has committed a felony under the majority’s interpretation. Justice Hunstein believed that the Georgia legislature enacted the statute at issue in order to punish doctors who are drug dealers. The purpose was not to incarcerate doctors who are trying to carry out their patients’ legitimate medical needs. Hunstein also argued that the majority failed to exercise common sense by giving the term “issue” a separate meaning under section (h), and that “issue” under section (h) should require that the prescription be given to the ultimate user.

Justice Melton also dissented, to which Chief Justice Sears joined, by writing that the majority’s definition of “issuance” is simply wrong. Melton believed that a prescription can only be issued when it is given to its ultimate user.

The case was covered by the National Law Journal as an important decision in the area of criminal law.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Our firm is also listed in the Bar Register of Preeminent Lawyers by Martindale-Hubbell.

Recently, the Georgia Court of Appeals was asked to determine if the introduction of a prior independent act which places a defendant’s character at issue should result in a mistrial when the defendant does not induce error nor open the door to the independent act. The court ruled that a mistrial should be granted in such cases.

In Smith v. State, the defendant, Michael G. Smith, was convicted by a jury of kidnapping, aggravated assault, and burglary. The conviction stems from three intruders entering an apartment which was occupied by the owner. One intruder put a gun to the head of the owner and asked for a man by the name of “Rod” as well as for information about where the “dope” was located. The owner managed to escape and saw the men leaving in a white Dodge Intrepid. The owner was friends with a man named Rodney Milledge who was the man the intruders were looking for. Milledge contacted the police and told them he believed Michael Smith committed the invasion. It was also discovered that Smith’s girlfriend owned a white Dodge Intrepid, and that Smith had taken it on the night in question.

On redirect examination of Smith’s girlfriend, the prosecutor showed that Milledge went to her residence looking for Smith while carrying a gun two weeks prior to the invasion. Smith hid in a closet at the time. The prosecutor then asked her why Smith thought Milledge was upset. The defense objected arguing that the question was irrelevant and that the defense did not open the door to any prior bad acts. The judge allowed the girlfriend to answer the question. It was revealed that Smith had stolen cocaine from Milledge. The defense then moved for a mistrial which the trial court denied.

The appellate court determined that the evidence showing that Smith had stolen Milledge’s cocaine was a similar but independent offense. The general rule is that a defendant is to be tried only for the offense charged in the indictment. Court rules state that if the state wishes to introduce such independent acts it must give notice and a hearing by the trial court must be held. At the hearing, the state must make three showings for the evidence to be admissible. The court found no such notice or hearing to exist in this case. As a result, the court concluded that a mistrial should have been granted, since the defense did not induce error and it did not open the door to the prior act.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Our firm is also listed in the Bar Register of Preeminent Lawyers by Martindale-Hubbell.

The Georgia Court of Appeals was faced with deciding whether a trial court properly granted a defendant immunity when the alleged victim recanted her story and the state failed to produce any other evidence at a pretrial hearing. The court ruled that the defendant was entitled to immunity, since there was evidence for the trial court to find that defendant acted in self-defense prior to trial.

In State v. Yapo, the defendant, Yapo, and his girlfriend got into a fight on the way to a convenient store. The girlfriend held her car door open while Yapo drove which forced Yapo to pull the car over. The girlfriend then left the car and found a large bolt which she threw at the windshield and shattered it. She then got into the back-driver side seat and kicked the driver’s seat. This forced Yapo into the steering wheel and broke the seat. Yapo then retrained his girlfriend by grabbing her and giving her a “bear hug.” Someone called the police, and the girlfriend allegedly told the police at the scene that Yapo had choked her. From this incident, Yapo was arrested for battery and simple battery for choking his girlfriend.

Yapo moved to dismiss the battery charges by claiming he acted in self-defense and was therefore immune. At a pretrial evidentiary hearing, the girlfriend testified as to the facts stated above; however, she denied telling the police that she had been choked. The State had no other witnesses or evidence to offer the trial judge. The judge found the girlfriend’s testimony credible and ruled that Yapo was immune from the battery charges. The State appealed.

The State argued that the trial court erred in granting immunity, since the ruling will harm domestic violence prosecutions in the future. The State argued that domestic violence victims often recant prior testimony even though the alleged crimes actually occurred. However, the court reasoned that Georgia law clearly grants immunity to a defendant who acts in self-defense. Immunity for acting in self-defense is decided by a trial judge prior to trial, and the defendant must prove he acted in self-defense by the greater weight of the evidence. At Yapo’s pretrail hearing, the trial court found the girlfriend’s testimony to be credible and the state offered no other evidence. Thus, the appellate court concluded that this was enough evidence to properly grant immunity.

This opinion is important because the court recognized the defendant's right to a pretrial hearing on the self-defense claim. This type of immunity is provided by statute, but it is an unusual provision in Georgia criminal law.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Our firm is also listed in the Bar Register of Preeminent Lawyers by Martindale-Hubbell.

The Georgia Supreme Court recently had to decide whether the rule that prosecutors may not comment on a defendant’s pre-arrest silence is limited to situations where the defendant remains silent in the face of questions by state agents and where a defendant fails to come forward when he knows he is the target of an investigation. The Court held that the rule is not limited to these two situations.

In Reynolds v. State, the defendant, Reynolds, was arrested and convicted for aggravated battery. During closing arguments, the prosecutor told the jury that, “I want you to consider that Mr. Reynolds had the opportunity to stay . . . that night and call the police or wait for police to respond to give his version of the facts.” Reynolds’ attorney at trial did not object to the comment, and his attorneys upon appeal argued that the failure to object constituted ineffective assistance of counsel. The Court of Appeals rejected this claim, and it relied on a prior appellate court ruling which only restrained prosecutors from commenting on pre-arrest silence in the two situations noted above. Thus, the prosecutor was free to comment, since Reynolds’ silence did not occur during an interrogation or when he knew he was the target of an investigation. His attorneys appealed the appellate court’s decision to the Georgia Supreme Court.

A unanimous Supreme Court overturned the appellate court’s ruling. The Court reasoned that the failure to speak or act by a criminal defendant will often be judged as evidence of guilt, and as a result, allowing such comments about a defendant’s silence is far more prejudicial than probative. In doing so, the Court overruled prior cases which limited the rule that prosecutors may not comment on pre-arrest silence. The conviction of Reynolds was also reversed and remanded.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Our firm is also listed in the Bar Register of Preeminent Lawyers by Martindale-Hubbell.