Georgia Criminal Defense Lawyer Blog

The Court of Appeals of Georgia has held that a conspirator’s statements made after his arrest which incriminate a co-conspirator are only admissible against the conspirator who made the statements, since such statements effectively end the conspiracy. The court also held that allowing statements from the interrogation of a non-testifying conspirator is a violation of the defendant’s right to confront those who testify against him.

In Verdree v. State, the defendant, Verdree, was convicted by a jury of armed robbery, kidnapping, aggravated assault, possession of a firearm during the commission of a crime, and use of a firearm by a convicted felon. Between November 1997 and March 1998, three Taco Bell restaurants were robbed. In each case, the robber would enter the targeted restaurant when it opened for business and threaten the employees with a silver handgun. The robber would then order an employee to open the safe and force the employees into a large refrigerator.

Victims from the first two robberies stated that they could see that the robber was missing a front tooth even though part of his face was covered with a stocking cap. Surveillance videotapes also revealed images of the robber’s face. Investigators also asked Verdree’s mother if the man in the pictures was Verdree or one of his brothers. The mother allegedly replied that she could tell it was Verdree, since the man in the photo had a broken tooth. At trial, the mother explained her statements by saying that she meant the man in the photo looked more like Verdree than her other children. Investigators then attained an arrest warrant for Verdree and went to his girlfriend’s home. Officers saw Verdree through the window along with his girlfriend and cousin. His cousin, Roberts, answered the door and told the officers that Verdree was not there. Upon searching the home, police found Verdree hiding along with a silver handgun which belonged to Roberts.

Police soon discovered that a car seen in the surveillance video belonged to Roberts, and he was subsequently arrested. During interrogation, Roberts explained that he didn’t know of the robbery before or after it occurred, but that he had driven Verdree to the specific Taco Bell on the morning in question. At trial, an investigator told the jury what Roberts had said during interrogation, and Verdree was subsequently convicted.

On appeal, Verdree argued that Roberts’ statements should not have been admissible at trial. The appellate court agreed. Under Georgia law, a conspirator’s post-arrest statements to police incriminating a co-conspirator terminate the conspiracy. As a result, the statements can only be used against the conspirator that made the statements. Furthermore, allowing Roberts’ testimony violated Verdree’s Sixth Amendment right to confront his accuser, since Verdree did not have an opportunity to cross-examine Roberts at trial. The court deemed this violation to be harmful error, because Roberts’ statements were the only pieces of undisputed evidence which placed Verdree at the Taco Bell on the morning of the final robbery. For these reasons, the appellate court ordered that Verdree receive a new trial. However, Verdree may be retried on all counts.

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. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

A single-car wreck near Savannah Georgia left a 9-year-old boy dead this past weekend. The driver, James Malcolm Bell, has been charged with vehicular homicide, DUI, and reckless driving.

The Savannah Morning News has the story.

Police reported that Bell, 23, was driving a 1998 Corvette when it skidded off a road and crashed into one or more trees before becoming partly submerged. The vehicle, which only had two seats, was carrying four people at the time of the accident. None of the occupants were wearing seatbelts. The 9-year-old passenger was unresponsive at the scene and pronounced dead at Memorial University Medical center.

Bell turned himself into authorities earlier this week after being released from the hospital on Sunday evening.

His defense lawyer will likely attempt to convince a judge to release him on bond sometime this week. Under Georgia law, vehicular homicide in the first degree is a felony and carries with it a sentence of between three and 15 years. Homicide by vehicle in the second degree is a misdemeanor.

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. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

On Tuesday, jurors in a Chatham County courtroom heard testimony of how a Savannah man urged the killing of a convenient store clerk during an armed robbery.

The Savannah Morning News has the story.

On December 23, 2005, Vipin Patel, 65, was gunned down while working at his Kwik Way Food Mart in Garden City during an apparent armed robbery. Prosecutors believe four men entered the convenient store with the intention of robbing it while a fifth man remained outside in a getaway car. After the shooting, the getaway car ran out of gas and the men had to run from the scene on foot.

It is alleged that the shooter, 23 year-old Hector Gibson, fired his gun at the urging of 35 year-old Harry Roosevelt Newkirk. It was Newkirk’s cousin, 23 year-old Anthony Gerald Haynes, who told jurors that Newkirk instructed Gibson to shoot Patel, and that Newkirk was one of the men who had planned the robbery. Prosecutors also offered evidence showing Newkirk carrying the store’s safe out the front door immediately following the shooting.

Newkirk’s defense attorney argued that Newkirk was by himself when the other men enticed him into joining. Defense counsel also alleged that prosecutors made deals with the co-defendants in exchange for testimony against Newkirk. In fact, Haynes was able to plead guilty to voluntary manslaughter in return for his testimony against Newkirk and the other men. Newkirk’s attorney also introduced evidence showing that Haynes had given conflicting statements about what had occurred.

Gibson, the shooter, was convicted of murder last year.

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. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

Federal and state authorities are probing allegations of misconduct on the part of Cochran police officers. However, the FBI and GBI have released few details about the investigation.

The Macon Telegraph has the story here.

The GBI reported that the current accusations stem from a 2008 investigation in which two former Cochran police officers were charged with enticing a child and interfering with custody. The two officers were working part-time in Pineview at the time the charges arose.

Brent Powell, one of the officers, was convicted of violation of oath of office and received five years on probation. The other officer’s case is still pending.

The mayor of Cochran, Gene Towns, has commented that no police officers have been arrested or suspended so far.

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. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

The House Judiciary Committee passed the Fairness in Cocaine Sentencing Act of 2009 last week which would remove the words “cocaine base” in federal drug statutes. If the bill becomes law, it would effectively close the wide gap between sentences for crack and powder cocaine.

The Minneapolis Star Tribune has the story.

In 1986, Congress passed the Anti-Drug Abuse Act which created the vast disparity. Many of the original supporters and drafters of the 1986 law have since come out to oppose it. The law essentially created a 100-to-1 sentencing disparity between crack and powder cocaine. For instance, a person convicted of possessing five grams of crack cocaine will receive a minimum sentence of five years. However, it would take 500 grams of powder cocaine for a person to receive the same sentence.

This disparity has fallen hardest upon African Americans. It is estimated that around 80% of those convicted of crack offenses are black even though the majority of crack users are white or Hispanic.

President Obama’s Administration seems to be onboard with the proposed change in the law. Last month Attorney General Eric Holder was quoted as saying that the difference in punishment is “simply wrong.” The President will have the opportunity to sign the bill into law assuming both the House and the Senate vote in favor.

And not a moment too soon, although it is uncertain whether this proposed law will be retroactive. It's too early to tell if this legislation will help those people who have already been convicted under the existing version of this 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. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

The Court of Appeals of Georgia has held that a police officer may not testify as to statements made by a co-defendant which implicate the defendant when the statements are gathered during the course of the investigation, and the defendant does not have an opportunity to cross-examine the co-defendant. Furthermore, the failure of defense counsel to object to such testimony constitutes deficient counsel.

In Grindle v. State, the defendant, Grindle, was convicted by a jury of robbery, aggravated battery, and battery. The conviction stemmed from an incident in a Walmart parking lot in which a man snatched a woman’s purse. Upon snatching the purse, the purse became entangled in shopping bags and the woman fell to the ground breaking her arm and causing other injuries. The woman described the man as a white male who jumped inside a light colored vehicle with a driver and a passenger in the backseat. A bystander had heard of the robbery and saw what he believed to be the getaway car on the road later that night. The bystander saw a driver, a front seat passenger with a roundish tattoo on his upper arm, and a backseat passenger. All three were looking into a purse which was being held by the front seat passenger. The man was able to take down the license plate number.

Detectives traced the number to a car driven by a woman named Gonzalez who had been arrested in her car along with two other people, Grindle and another man named Plunkett, the following day for snatching a purse from a woman in a K-Mart parking lot. At the time of the arrest, Gonzalez was wearing a ring which had been taken from the Walmart victim’s purse, and inside her car, there was a pager and a day-timer which came from the same woman’s purse. In addition, Grindle had a roundish tattoo on his upper arm.

Grindle denied being present at the Walmart robbery and told police that it was Plunkett who stole the purse in the K-Mart lot. However, according to a detective at trial, Plunkett stated during an interrogation that Grindle had taken the purse in the Walmart lot. Plunkett did not testify at trial, and defense counsel did not object to the detective’s testimony.

On appeal, Grindle argued that his lawyer was ineffective for failing to object to the detective’s testimony. Under the Supreme Court case of Crawford v. Washington, the Constitution forbids out-of-court statements which are testimonial (made during the course of an investigation) and when the defendant cannot cross the person who made the statements. Here, Plunkett’s statements were made to police during the investigation and Plunkett was not available to testify at trial. Thus, Grindle’s attorney should have objected, and the failure to object was deficient. Furthermore, since Plunkett was the only one who identified Grindle as the Walmart purse snatcher, there is a reasonable probability that the outcome would have been different had defense counsel raised an objection. Thus, the court found that defense counsel was ineffective and that Grindle was entitled to a new trial.

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. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

The Court of Appeals of Georgia recently ruled that defense counsel is deficient when it fails to object to expert testimony which improperly bolsters a victim’s credibility. Specifically, a psychological expert may not testify that his evaluation of a victim “strongly suggests” sexual abuse as alleged, and the failure of defense counsel to object to such testimony constitutes deficient counsel.

In Pointer v. State, the defendant, Pointer, was charged with aggravated child molestation, child molestation, and incest in regards to his first daughter and two counts of child molestation in regards to his second daughter. A jury convicted him of child molestation and sexual battery against the second daughter. The jury found him not guilty on the other charges.

During trial, a clinical psychologist testified as an expert for the state. The expert told the jury that the second daughter had told him that Pointer had fondled her three separate times, and that he “he stuck his finger in her” during the last incident. In preparation for trial, the psychologist had displayed psychological testing cards for the daughter and assessed her responses. At trial, the prosecutor asked the expert his opinion of the girl’s responses. The expert replied that the responses were “consistent with her reports of being sexually abused by her father.” The prosecutor then asked for the expert’s overall impression. The expert replied that the result of the evaluation “strongly suggests that [the child] had been sexually abused as alleged.” The prosecutor then asked if the abuse was committed by Pointer. The expert agreed. Defense counsel only objected to the final question. The trial court sustained the objection by ruling that the expert could only state that the child was abused but the expert could not state who committed the act. However, defense counsel did not ask for curative instruction and none was given.

On appeal, Pointer argued that defense counsel should have objected to the “strongly suggests” language used by the expert, and that the failure to object constituted ineffective assistance of counsel. The appellate court agreed with Pointer. In order to obtain a reversal based on ineffective assistance of counsel, a defendant must show that trial counsel’s performance was deficient, and that but for the deficient performance there is a reasonable probability the outcome would have been different.

In regards to expert witnesses, they may not testify as to whether a child has been sexually abused unless jurors are not capable of drawing such an inference for themselves due to a lack of specialized skill or experience. This is because such testimony takes the ultimate issue away from the jury. However, it is generally okay for an expert to say that a victim’s psychological exam was consistent with sexual abuse. The court determined that the language “strongly suggests” falls in the middle of these two examples, but when taken into consideration with the “as alleged” language, the testimony was a factual conclusion which should have been left to the jury to decide. Thus, defense counsel was deficient for not objecting.

The court also held that but for the deficiency there is a reasonable probability that the outcome would have been different. This is mainly due to the fact that the evidence against Pointer was not overwhelming and was largely based on the credibility of the witnesses. In holding so, the court reversed Pointer’s conviction and ordered a new trial.

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. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

A Bibb County judge has thrown out charges against a former pastor and a former banker due to a defective indictment. The two men were charged with defrauding church members out of $600,000.

The Macon Telegraph has the story.

Jimmy Collins, 42, was the pastor of God’s Worship Center in Macon. Steven Pittman, 42, was a bank officer for BB&T. Prosecutors say that the two men obtained loans and lines of credit for around 10 church members. Collins allegedly found and influenced members to assist in his church’s alcohol and drug rehabilitation program as well as the Car Vision car lot in which he was a partner. Furthermore, Collins is said to have told the church members that the church would repay the bank loans.

Authorities also believe that the two men used false financial information about the church members, provided the bank with forged documents, and misrepresented the true nature of the loans. Records indicate that the scam may have persisted for as many as six years between 2002 and 2008.

The indictment totaled 13 pages and included a violation of the RICO Act, bank fraud, residential mortgage fraud, forgery, and theft. However, Superior Court Judge Phillip Brown ruled that the indictment lacked enough specificity to allow Collins and Pittman to know what they must defend against. The District Attorney’s Office can either create a new indictment or appeal Judge Brown’s ruling.

In addition to criminal charges, members have filed lawsuits against the two men and BB&T. Since the initiation of the suits, BB&T has settled with the church members.

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. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.