Georgia Criminal Defense Lawyer Blog

On Monday, the Supreme Court of Georgia reversed the convictions of two men who were found guilty of murdering a DeKalb man at his home recording studio. The DeKalb County District Attorney’s Office must now decide whether it will retry the men.

WABE News and the Atlanta Journal Constitution have the story.

Prosecutors say that Steven Manley and Robert Allen planned to rob the home of Emmett Whatley in February of 2007, because they knew he stored large sum of cash there. However, the state claims that their robbery plans went askew when Whatley was shot and killed in his front yard. After a jury trial, Allen and Manley were convicted and received life sentences for Whatley’s death.

Allen and Manley’s criminal defense attorney won a reversal of the murder convictions on appeal, since the trial judge failed to allow defense attorneys to fully cross-examine state witnesses. WABE legal analyst Page Pate told WABE listeners that, “The Supreme Court is trying to send a message to trial judges in this state that you need to let defense attorneys probe about special deals.” Specifically, Pate explained, “Any sort of benefit that may accrue to the witness by testifying for the state needs to be explored at trial.”

The Supreme Court also ruled that a statement given by Manley should have been suppressed, since the statement came after Manley had asked for an attorney. In the statement, Manley admitted to being in Whatley’s neighborhood on the night of the murder.

The Court of Appeals of Georgia recently upheld a trial court’s ruling which suppressed a defendant’s statement due to being involuntary. The court reasoned that the interviewing officer told that the defendant that he had committed theft by taking rather than armed robbery which induced the defendant to make the statement.

In State v. Klepper, the defendant, Klepper, was indicted for armed robbery in Fulton County. On the day in question, Klepper was suspected of committing an armed robbery in a store parking lot. An officer saw Klepper in his vehicle detained him. Officer Orrick, the investigative officer, then arrived at the scene with the alleged robbery victim. The alleged victim was able to positively identify Klepper as the perpetrator. Klepper and Orrick, who knew each other from college, began a personal conversation. During this conversation, Orrick brought up the issue of whether the alleged crime was theft by taking instead of armed robbery.

The original officer then drove Klepper to jail. During the ride, the officer stated that Orrick would probably charge Klepper with armed robbery. Klepper responded that Orrick told him it was theft by taking. Upon arriving at jail, Klepper wrote a handwritten statement in which he admitted to putting his fist under his shirt and telling the alleged victim to hand over his or her money. Klepper also wrote, “This is not an armed robbery, this is theft by taking.” On another page, Klepper had written but struck through “Please help me as much as [you] can.”

Klepper’s attorney moved to suppress these statements as involuntary and the trial court agreed even though Orrick denied telling Klepper that his actions constituted theft by taking. Upon appeal, the state argued that the proffered evidence only showed a hope of benefit that began in Klepper’s own head. However, it is well established law that for a statement to be admissible it must be made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear if injury. The state bears the burden of showing that a statement is voluntary by a preponderance of the evidence, and the trial court considers the totality of the circumstances when deciding if the statement is voluntary. On appeal, a trial court’s factual findings will not be disturbed unless clearly erroneous.

When the appellate court reviewed the evidence, it found that the trial court’s factual findings were supported by the evidence. Specifically, the court noted that 1.) Orrick admitted to starting the conversation concerning the lesser offense 2.) Klepper told the original officer of the conversation with Orrick and 3.) Klepper admitted to the lesser offense in his written statement. As a result, Klepper’s custodial statements were suppressed.

Our criminal defense lawyers have won numerous suppression hearings due to police officers or prosecutors making promises or threats to defendants accused of serious crimes. In our experience, there is almost always an issue of admissibility any time law enforcement garners a statements or confession through promises, manipulation, threats or physical abuse. A good criminal defense lawyer will challenge the admissibility of a confession or incriminating statement by conducting a thorough investigation including where and under what conditions the statements were given, the length of time the defendant was interrogated, what promises or threats were made, and whether the defendant was intoxicated or mentally impaired.

The Court of Appeals of Georgia recently reversed the denials of motions to dismiss based on speedy trial grounds in two different cases. The court found that the 35 and 36 month delays were both presumptively prejudicial and violated a defendant’s right to a speedy trial under the four-part balancing test.

In Davis v. State, the defendant, Davis, was arrested for kidnapping with bodily injury, burglary, armed robbery and aggravated assault in March of 2005. 17 months later he filed a motion for immediate trial or dismissal which the trial court denied. However, Davis was able to post bond at the time. Davis then filed a second motion in April 2008, which was denied, 35 months after the arrest.

In Ditman v. State, the defendant, Ditman, was arrested for child molestation on October 11, 2005 for molesting the three year old son of his girlfriend. On May 22, 2006, Ditman demanded a speedy trial. However, in July of that year, Ditman’s counsel asked for a continuance, since the state had failed to comply with discovery demands and he failed to locate the mother of the victim. Prosecutors then told defense counsel that if he dropped the speedy demand the discovery would be made available. Counsel did so to which Ditman wrote several letters in protest. Ditman’s counsel then withdrew from the case and he received a new attorney in May of 2007. In June of that year, nearly 36 months after arrest, Ditman’s counsel filed a motion for discharge and acquittal on speedy grounds which the trial court denied in October of 2008.

Under the law, the right to a speedy trial is violated if 1.) the length of delay is presumptively prejudicial and 2.) the Barker four-part balancing test weighs in favor of the defendant. The clock begins to tick, for purposes of the length of a delay, at the time of the arrest or when formal charges are brought. The law is also clear that any delay approaching a year raises a threshold presumption of prejudice. If a court finds this presumption, it will then engage in a four-part balancing test. This includes 1.) the length of delay; 2.) the reasons for delay; 3.) defendant’s assertion to the right to a speedy trial; and 4.) the prejudice to the defendant. No one factor is necessary or sufficient to give rise to a violation.

In Davis, the court found that 33 months of the 35 month delay was attributed to the state, and that the delay was attributed to a lack of diligence. While a deliberate delay weighs more heavily against the state, a lack of diligence also weighs against it. The court then noted that there were two long periods in which Davis failed to assert his right to a speedy trial which weighed against him. However, Davis was able to show prejudice, since two of the robbery victims had made exculpatory statements. The two were illegal aliens who could not pick Davis out of a photographic line up. In balancing these factors, the court found that the trial judge erred in not finding sufficient prejudice to support a speedy trial claim.

Similarly in Ditman, the court found the 36 month delay to be presumptively prejudicial. In its analysis under Barker, the court found that the state was slow to comply with discovery requests which caused the continuance, and that 23 of the 36 month delay was directly on the hands of the state. However, while Ditman did assert his right by filing a motion, he also withdrew that motion. Yet, the court also noted that 16 months elapsed between his motion for discharge and the trial court’s denial which meant his initial withdrawal could not be weighed heavily against him. The court further found that Ditman was prejudiced, since he could not find the victim’s mother who stated that her son had never mentioned any abusive acts and that she never saw any physical signs. The court ruled that these factors weighed in favor of Ditman, and that the trial court should have granted the motion for discharge and acquittal.

Our criminal defense lawyers have successfully won several speedy trial challenges. In our experience, it is not uncommon for prosecutors to drag out prosecutions in order to gain some advantage at trial or to simply keep a defendant in custody for a longer period of time. As in these cases, a long delay can severely impact a defendant’s case due to a greater chance of having to deal with missing witnesses or lost evidence. However, in some cases, it may be advantageous for a defendant to delay a trial especially if the defendant is out on bond or if the district attorney may lose interest in the case. An experienced criminal defense attorney will know when it is advantageous to bring a speedy trial claim and when it is simply better to allow a case to sit.

The Supreme Court of Georgia recently held that the state’s failure to disclose a co-defendant’s changed sentence from the plea agreement, which allowed the co-defendant to potentially reduce his sentence after testifying against the defendant, robbed the defendant of his right to impeach the co-defendant by showing a motivation to lie.

In State v. Gonnella, the defendant, Gonnella, was convicted of felony murder but acquitted of malice murder. On the night in question, Gonnella and his friend Evans drove to an apartment to buy marijuana from Williams. Williams stated that he had no marijuana, but that he had $500 to buy marijuana if Evans found a seller. Gonnella and Evans left, but then drove back at Gonnella’s request. While Evans waited in the car, Gonnella went into the apartment at which time Evans heard a gunshot. Gonnella later told Evans that Williams went for his gun and that a struggle ensued during which time the weapon was discharged. The two men then drove to Evans’ brother’s home where Gonnella stated that he had killed someone. Gonnella gave the brother his bloody shirt, and Evans later disposed of the gun in a wooded area. Evans eventually told police the location of the gun, and police were able to match the gun to the bullet pulled from Williams. Police also learned that the bullet was fired close to the skin and that it traveled downward into Williams’ head.

Evans and Gonnella were then indicted on three counts with Count One being malice murder. Before trial, Gonnella asked the court for an order forcing the state to reveal all agreements between the state and any of its witnesses. At the hearing, the state disclosed a plea agreement with Evans. Gonnella then simply asked the state to disclose any future plea agreements. When Evans took the stand, the state gave Gonnella a document entitled “Plea Agreement.” According to the agreement, Evans would plead guilty to voluntary manslaughter as to Count One and receive 20 years with 15 in prison. In exchange, Evans would testify against Gonnella at trial.

However, the state failed to provide a document entitled “Defendant’s Change of Plea.” In that document, Evans altered his plea from “not guilty” to “guilty” to voluntary manslaughter. On these forms, there is a sentence which reads: “In addition, the defendant waives any right to modification of the sentence to be imposed pursuant to this agreement, and agrees that he shall not seek modification of said sentence in the future.” However, this text was crossed out on Evan’s change of plea form. The lack of this text meant that Evans could ask for a better sentence for himself after testifying against Gonnella.

Under the U.S. Supreme Court case Brady v. Maryland, the state has a duty to reveal any agreement with a witness which concerns criminal charges against the witness. Failure to comply with Brady constitutes a due process violation. For a defendant to succeed on a Brady claim, he must show that the state possessed evidence helpful to the defendant, that the state suppressed the evidence, that the defendant did not have the evidence nor could he through reasonable diligence, and that a reasonable probability exists that the outcome would have been different had the state disclosed the evidence.

The Supreme Court of Georgia reasoned that being able to impeach the state’s primary witness is of great importance. In this case, the state denied Gonnella the ability to impeach Evans by demonstrating a motive to lie. The Court explained that if the state had disclosed the change, Gonnella would have had the opportunity to show that the state left open the possibility that Evans could receive a lighter sentence. Gonnella would have been able to argue that the state did this so that Evans would be motivated to testify in such a way as to ensure Gonnella’s conviction. Thus, the state denied favorable evidence that Gonnella could not have found by reasonable diligence. The Court also found that there is a reasonable probability that the outcome would have been different, since the jury acquitted Gonnella of malice murder and the other witness, Evans’ brother, also had a motive to lie which was to protect his brother.

Our criminal defense attorneys have defended numerous clients who have had co-defendants testify against them at trial. In our experience, it is not uncommon for a defendant to be denied full knowledge of deals or agreements that are made between the government and witnesses. It is also not uncommon for a witness or a co-defendant to lie in hopes of getting a better deal. A good criminal defense attorney will pressure the state by filing disclosure motions and conducting independent investigations to ensure that a jury knows of any deals that a witness has accepted and whether the witness is telling the truth about what happened. An independent investigation often consists of running background checks, interviewing other witnesses and persons who know the witness as well as reviewing police and court transcripts for inconsistent statements.

The Court of Appeals ruled earlier this month that an officer lacked probable cause to make a search incident to arrest, since the arrest was supported entirely by a third party’s statement that the suspect placed something in his pocket. The Court reasoned that there must generally be some evidence directly linking the suspect to the suspected criminal activity to support probable cause.

In Lawrence v. State, the defendant, Jack Lawrence was convicted of cocaine possession after a traffic stop. On the night of his arrest, an officer saw a vehicle swerving before it came to a stop in the middle of a road outside of a club known for drug activity. A man then walked from the club to the vehicle and got inside. The car then swerved off the road. The officer conducted a traffic stop and recognized the driver as Lawrence’s wife due to Lawrence’s history of drug offenses. The wife denied picking anyone up from the club but then admitted that she had. The officer then asked if there were any drugs in the vehicle and she replied that she didn’t think so. The officer stated that if he found any drugs in the vehicle the wife and Lawrence would probably go to jail. The wife responded “[W]ell, Jack put something in his pocket.” Not knowing the contents of Lawrence’s pocket, the officer instructed Lawrence to exit the vehicle and empty his pockets. Lawrence then pulled out a bag of cocaine which resulted in his arrest and eventual conviction.

Upon Lawrence’s appeal, the state argued that the search of the pocket was incident to Lawrence’s arrest and therefore valid. However, for such a search to be valid, the arrest must be supported by probable cause. Under the law, probable cause is described as being less than a certainty but more than a mere suspicion. It is a relatively low threshold to meet and may even exist given the totality of the circumstances. That is to say a combination of suspicious circumstances may give rise to probable cause. However, for the totality of the circumstances to give rise to probable cause, there generally needs to be some evidence which directly links the suspect to the suspected criminal activity. For instance, the smell of contraband, extreme nervousness, furtive movements or a reliable tip from an informant may be some circumstances that, when combined with others, can give rise to probable cause.

The court reasoned that the circumstances in this case do not show probable cause, since the officer’s suspicions arose entirely from an ambiguous comment made by his wife. As such, the court reversed Lawrence’s conviction finding that the contraband should have been suppressed by the trial court.

Our criminal defense lawyers have also won many drug cases due to officers performing searches after a suspect was illegally arrested. In our experience, there is almost always an issue of whether a search was properly conducted any time drugs are discovered in a vehicle or on a person. To show that there was no probable cause, and thus no grounds to arrest and/or search, a criminal defense attorney will conduct an independent investigation including obtaining police video and recordings, reviewing witness and police statements, and assessing any technology that may have been used by law enforcement such as laser, radar, taps or dog sniffs.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon, Madison and Savannah. 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 Supreme Court of Georgia recently suppressed the confession of a murder suspect after finding the confession to be involuntary. In particular, evidence suggested that the suspect had been beaten by police, shocked with a Taser, stripped naked and denied medical attention before he confessed to the murder.

The Atlanta Journal Constitution has the story.

In State v. Lynch, the defendant, Lynch, was suspected of killing a man in DeKalb County and then driving the victim’s car to North Carolina. Officers in North Carolina spotted the car which resulted in a high speed police chase. Lynch was eventually taken into custody and later interviewed by detectives from DeKalb County which is when he confessed to the murder. However, before detectives from DeKalb County could interview Lynch and obtain the confession, Lynch claimed that he was assaulted and denied medical care.

At a pre-trial hearing to determine whether the confession was admissible, only Lynch and one detective from DeKalb testified. Lynch testified that he had been beaten, tasered, stripped of his clothes and denied medical attention until he gave a statement to police. Moreover, the detective who obtained the confession was impeached on the stand. The trial court ruled that a statement given to police under such circumstances was the product of duress and coercion and therefore involuntary and inadmissible. The Georgia Supreme Court upheld the ruling.

Under Georgia law, involuntary confessions or statements made by a defendant are not admissible at trial. For a statement to be admissible, it must be made freely and voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury. Furthermore, it is the state that must show that a confession is voluntary by a preponderance of the evidence. The trial court then makes a ruling based on the totality of the circumstances, and the trial court’s ruling will not be disturbed unless it was clearly erroneous.

The Supreme Court found that Lynch’s testimony and the fact that the detective was impeached on the stand supported the trial court’s ruling to suppress the confession. The Court further blasted the prosecution for not making a greater effort in determining what happened prior to the confession. Specifically, none of the North Carolina officers who arrested and detained Lynch ever testified as to what happened.

Our criminal lawyers have successfully won pretrial suppression hearings for many clients charged with serious crimes. As this case shows, statements made by suspects are often the product of promises, threats, manipulation or outright physical abuse. In our experience, there is almost always a question of whether such statements made to police are admissible at trial. A good criminal defense attorney will challenge the admissibility of a confession by investigating where and under what conditions the confession was given, how long the interrogation lasted, what promises were made, whether any forms of abuse were involved, whether the suspect was intoxicated or not in his or her right mind when the statement was made

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 Eleventh Circuit recently vacated the sentence of a defendant after determining that the district court improperly found that he was a leader in a drug conspiracy for purposes of the Sentencing Guidelines. That erroneous finding had increased his sentence by four levels.

In US v. Martinez, the defendant, Martinez, pled guilty to conspiring to distribute and to possess with the intent to distribute 100 kilograms or more of marijuana. Specifically, he made weekly shipments of pounds of marijuana from Texas to Florida, used fictitious return addresses and used wire transfers to receive drug proceeds. When sentencing Martinez, the district court found that he took a leadership role in shipping the marijuana. This led to an increase in his sentence by four levels under the United States Federal Sentencing Guidelines and resulted in a 78 month sentence. To have this four level increase, a court has to find that the defendant was either an organizer or a leader, and that the criminal activity involved either five or more participants or was otherwise extensive. The Sentencing Guidelines put forth seven factors which a court considers when determining if a defendant is a “leader” or an “organizer”: decision making authority, nature of participation, recruitment, right to a larger share of the proceeds, degree of participation in planning, scope of illegal activity and degree of control over others.

The increased sentence was largely due to the judge’s reliance on Martinez’s Presentence Investigation Report (PSI) which had been prepared by a probation officer. The PSI stated that he “orchestrated” weekly shipments of marijuana and recruited others. Martinez strenuously objected to the idea that he orchestrated shipments, recruited others or was a leader in any way. If a defendant objects to a fact contained in a PSI, the government bears the burden of proving the fact in dispute by a preponderance of the evidence. However, during the guilty plea, Martinez admitted to orchestrating drug shipments and that he used others in the scheme. When a defendant admits a fact during a guilty plea, the government does not have to provide evidence of those facts.

However, even with Martinez’s admissions, the appellate court found that his actions did not fit within the seven elements which would make him a “leader.” First, the term “orchestrate” is not synonymous with control. Moreover, there was no evidence that he recruited any of his co-conspirators, or that they were his subordinates. He also did not claim a larger share of the proceeds and was in fact destitute. In addition, it was unclear where he was in the chain of command. And finally, the fact that he “utilized” others did not show control over others. Instead, Martinez had always maintained that he was equally involved with his co-conspirators. Since the government failed to provide evidence of a leadership role, the 11th Circuit vacated the sentence and instructed the district court judge to resentence Martinez.

Obviously, it is important for people convicted in federal court to understand that they generally have the right to appeal their sentence if they were convicted at trial. In most cases, the United States Federal Sentencing Guidelines will determine how a convicted person is sentenced, but district court judges can and do make mistakes when employing the Guidelines.

An experienced criminal appeals attorney will analyze a sentence for any inconsistencies with the Guidelines and relevant statutes (usually, 18 U.S.C. Section 3553) and can raise any sentencing issues on appeal. In fact, our lawyers have won several recent federal appeals and have reduced our clients' sentences by a few months to many years.

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 had to determine if a suspect could be briefly detained where the facts showed that he was driving slowly and looking into the woods of an area where an alleged car thief was hiding. The court held that on these facts alone a person could not be detained.

In Thomas v. State, the defendant, Thomas, was convicted of possession of methamphetamine, possession of a firearm during a crime, and obstructing a police officer. The facts showed that a man by the name of Morris stole a car and abandoned it at a house on Penland Road in Walton County. Police believed that Morris then went to hide in the nearby woods.

An officer saw Thomas in his truck driving very slowly along the same road while looking into the woods as if trying to find someone. Thomas apparently stopped and continued driving very slowly several times. The officer ran Thomas’ tags and discovered that Thomas lived near Morris. This led to the officer stopping Thomas’ truck. While approaching Thomas, the officer saw a cell phone in Thomas’ hands and took the phone after Thomas refused to hand it over. The officer searched the call history and saw Morris’ number. Thomas explained that he was looking for pulp wooders. The officer then asked Thomas to get out of the truck so that the officer could take a picture of Thomas, but Thomas refused. As a result, the officer arrested Thomas for obstruction. A gun was found in the truck, and meth was later found on Thomas at the jail.

The encounter between Thomas and the officer was a second tier encounter. This is where an officer may briefly detain a suspect if the officer has a particularized and objective basis for suspecting that a person is involved in criminal activity. Here, the court reasoned that Thomas had not broken any traffic laws, presented a valid license, and explained that he was looking for pulp wooders. Thus, the court held that his arrest for refusing to get out of the truck to be photographed was illegal. Moreover, the evidence found after the arrest should have been suppressed.

Our criminal defense lawyers have also won many drug and weapons cases due to police officers executing illegal stops of persons and vehicles. In our experience, there is almost always a question of whether a stop was lawfully conducted any time drugs or weapons are found on a person or in a vehicle. To challenge a stop that reveals contraband, a criminal defense attorney must be able to argue that the officer had no legal reason to detain or arrest the person and that consent was not given. An experienced criminal attorney will do this by conducting a battery of assessments which may include reviewing police and witness statements, obtaining police video recordings, and analyzing any form of technology which led to the stop such as radar, laser, sensors, taps or dog sniffs.

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 an eight year delay between the time of a defendant’s arrest date and trial date was presumptively prejudicial. The court went on to find that the state failed to rebut this presumption, and upheld the trial court’s dismissal of charges based on the right to a speedy trial.

In State v. Porter, the defendant, Porter, was arrested for allegedly molesting his child in 2000. He was indicted in 2001 and released on bond. New allegations arose in 2004 that he had molested his other child, and the trial judge issued a bench warrant for his arrest in 2005 for failing to appear on those charges. He was arrested in 2006 and a second indictment was issued against him for the new allegations. In 2006, the state moved to set a trial date for both cases. In 2008, the trial judge recused herself, and the case was transferred and set for trial in December 2008. The defendant then moved the court twice for continuances followed by a motion to dismiss or plea in bar for violation of his right to a speedy trial. The trial judge agreed and dismissed the 2001 charges. The state appealed the ruling.

The Sixth Amendment and the Georgia Constitution promise criminal defendant’s the right to a speedy trial. The courts use a two part test to determine if a violation of this right has taken place. First, the court will look to see if the time between arrest and trial is presumptively prejudicial. Here, eight years had passed from arrest to trial, and the court found this to be presumptively prejudicial. Second, the court will look to see if the delay was uncommonly long, who was responsible for the delay, the timeliness of the defendant’s assertion of his right to a speedy trial, and prejudice to the defendant. The court found that nearly 7 years of the delay was the government’s fault, and that the state failed to rebut the actual prejudice suffered by Porter. The court found this to be true even though Porter didn’t raise his right to a speedy trial until 2009.

Our criminal defense attorneys have also won dismissals in numerous child molestation cases in many parts of Georgia. It is important to understand that a conviction for child molestation can severely impact the rest of a person’s life through long periods of incarceration and having to register as a sex offender once released. Hiring an experienced criminal defense attorney early on is often critical to winning these cases, since an investigation into a molestation case is multifaceted. Among the many steps in an investigation, a criminal defense attorney will look for inconsistencies in the statements made by the alleged victim, hire medical or psychological experts to give testimony on what events took place, and examine the context of each case in order to determine if the child was coerced by a third party.

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 held that a traffic stop is improper where the suspect simply parks in front of a residence where criminal activity has taken place.

In Pritchard v. State, the defendant, Pritchard, was convicted of a single count of possession of methamphetamine. On the day of Pritchard’s arrest, an unidentified person called the Newton County Sheriff’s Department to report suspicious vehicles around a residence that the police had previously identified as a “drug house.” Upon arriving, the deputy was flagged down by the caller who stated that a truck and a Camry had just pulled out of the residence. As the deputy approached the Camry, Pritchard, the driver, pulled into another driveway. A different deputy then went to converse with Pritchard and discovered that she did not live there. The deputy then instructed Pritchard to pull out of the driveway. The deputy later testified that the driver was “stopped” and not free to leave at this point. As the deputy was speaking to Pritchard, he saw a clear plastic baggie in the middle console which later tested positive for methamphetamine and subsequently led to her conviction.

The Court of Appeals noted that a police officer must have a particularized and objective basis for suspecting a person of criminal activity in order to make an investigatory stop. Furthermore, the Supreme Court of Georgia has held that an officer lacks a reasonable and articulable suspicion necessary to stop a person who is driving near or parking near a location where crimes have been committed. Here, the only evidence to justify a traffic stop was that Pritchard’s vehicle was in front of a “drug house.” Thus, the traffic stop which led to the methamphetamine was a violation of Pritchard’s Fourth Amendment rights which required her conviction to be reversed.

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 a suspect who walks away from police in a known drug area and appears nervous does not form enough of a particularized suspicion necessary to detain or seize the suspect.

In Walker v. State, the defendant, Walker, was convicted by a jury of possession of cocaine and two counts of misdemeanor obstruction of an officer. During the daylight hours of March 27, 2007, four Covington police officers were driving through a high-drug area in an unmarked car. The area received ongoing complaints about drug activity, but the police had not received any complaints on this particular day. They came upon four men, including Walker, standing in the street, and as the car came to a stop, the four men began walking out of the street and into a yard. An officer got out of the vehicle and told the men: “hey, hold on guys, come here, come here.” Walker complied. The officer noted that Walker was very nervous and patted Walker down for weapons but found none. The officer then asked if he could search Walker. Walker responded that the officer had already searched him. The officer explained that, “a search is where I go inside pockets. . . do you have a problem with me doing that.” Walker consented. In addition to checking every pocket, the officer pulled Walker’s pants out from his stomach and found a small bag in the crotch area. Walker attempted to pull away but was tackled and police ultimately used a taser gun on him. Cocaine was found in the small bag.

The appellate court determined that the stop made by the officers was a Terry stop. During a Terry stop, an officer may only detain a person briefly if he has a particularized and objective basis for suspecting that the suspect is involved in criminal activity. Yet, the officer here could not articulate a particularized basis for suspecting Walker of criminal activity, since nervousness and walking away are not enough to detain a suspect for purposes of a Terry stop. Thus, the detention was illegal. Furthermore, the search would have been invalid even if Walker had not been illegally detained, because a search in this case would only be legal if Walker had consented to it. However, he only consented to his pockets being searched and not his crotch area. Consequently, the search was illegal and the cocaine should have been suppressed. The court reversed Walker’s conviction as a result.

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 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.

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.

The Supreme Court of the United States recently ruled that a person who calls a drug dealer in order to make a misdemeanor drug purchase cannot be said to have facilitated the felony of drug distribution. In holding so, such a person cannot be convicted of the felony of using communications to facilitate drug distribution.

In Abuelhawa v. United States, the defendant, Abuelhawa, arranged to buy cocaine over the phone from a man named Mohammed Said. Prior to the arrangement, the FBI acquired a warrant to tap Said’s cell phone to listen for drug deals. The FBI monitored six calls that were placed between Abuelhawa and Said during which Abuelhawa arranged for two separate transactions for one gram of cocaine each time.

Under federal law, the two purchases by Abuelhawa were misdemeanors and the two sales by Said were felonies. However, federal law also provides that it is a felony “to use any communication facility in committing or in causing or facilitating” certain felonies including the felonies committed by Said. As a result, the government charged Abuelhawa with six felonies under this law for the six calls placed between Abuelhawa and Said. Abuelhawa moved for acquittal arguing that his calls to Said did not facilitate Said’s felonies. The District Court denied his motion, and Abuelhawa was convicted by a jury on all six felony counts.

On appeal, the Court of Appeals for the Fourth Circuit agreed with the District Court and reasoned that ‘facilitate’ should be given its common meaning: “to make easier or less difficult, or to assist or aid.” The Fourth explained that the phone calls made the sale of cocaine easier and possible, and thus, Abuelhawa did facilitate the felony distribution of cocaine. The Supreme Court granted cert in order to resolve a split among the circuit courts.

The Court disagreed with the Fourth’s interpretation and reversed Abuelhawa’s felony convictions. The Court reasoned that Congress provided a more lenient punishment for the buyers of drugs than for the sellers under these circumstances. If the government were allowed to increase the penalty of the buyer for facilitating the action of the seller, the calibration of punishment established by Congress would be upended.

The Court also looked at the history of the law. It reasoned that simple possession of a controlled substance was once a felony; however, Congress downgraded the crime to a misdemeanor in 1970. At the same time, Congress also limited the communications provision to prohibiting only the facilitation of a drug felony. Thus, Congress reduced the culpability for possession, and imposing a felony in such a case would be inconsistent.

The government further contended that Congress often adds aggravating factors to laws, and that the phone is simply an aggravating factor. However, the Court noted that there is no language stating that Congress wanted a first-time buyer’s six phone calls to attain a small amount of drugs for personal use to subject him to 24 years in prison when misdemeanor possession would only carry one year for each buy. Thus, the felony of facilitating a drug distribution should apply to those using phones to coordinate illegal drug operations and not to a first time buyer seeking a small amount for personal use such as Abuelhawa.

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.

In a landmark 5-4 decision, the Supreme Court of the United States determined that police may not conduct a warrantless search of a car after its occupant has been arrested unless he poses a threat to officer safety, or there is a need to seize evidence of the crime for which the arrest was made. The decision is a radical departure from the longstanding rule that police may search a vehicle after arresting its occupant.

In Arizona v. Gant, the defendant, Gant, was arrested for driving with a suspended license and having a warrant for failing to appear in court on a prior charge of driving without a license. The arrest stemmed from an anonymous tip that an address Gant was staying at was being used to sell drugs. When police knocked on the front door, Gant answered and told the police that the owner was out. Police later discovered Gant had a warrant out for his arrest and returned to the scene. When police returned, they arrested two other people who were placed in the back of police cars. They then saw Gant drive into the parking lot. Gant parked his car about 30 feet away from the officers. He then got out of the car and began walking towards the officers. Gant and the officers met about 10-12 feet from the vehicle. Gant was immediately arrested and placed in the backseat of a patrol car. In total, there were five officers and three arrested individuals. The officers then conducted a search incident to the arrest and discovered cocaine in the pocket of a jacket on the backseat of Gant’s car. As a result, Gant was also charged with possession of a narcotic drug for sale and possession of drug paraphernalia.

Grant moved to suppress the evidence found in the jacket on the grounds that the search violated his Fourth Amendment rights. The trial court upheld the search, since the Supreme Court decided in New York v. Belton that officers may search the compartments in a vehicle after the occupant’s arrest. Gant was convicted and sentenced to three years in prison. The decision was then appealed.

The Arizona Supreme Court found the search unreasonable despite Belton. That Court relied on the logic of an earlier Supreme Court case, Chimel v. California, which suggested that a search incident to an arrest is unreasonable when officer safety and preservation of evidence is no longer an issue. The court reasoned that since Gant was in the back of a police car he posed no threat to safety or evidence. The case was then appealed to the Supreme Court of the United States.

The Court rejected the idea that an officer may search a vehicle under any circumstances so long as the occupant has been arrested. Instead, the Court agreed with the Arizona Supreme Court and adopted the Chimel rationale which authorizes police to search a vehicle incident to arrest only when the arrested individual is unsecured and within reaching distance of the vehicle’s passenger compartments at the time of the search. However, the Court went further to say that a search incident to arrest is also valid when it is reasonable to believe that evidence relevant to the crime for which the arrest was made may be in the vehicle. Since Gant and the other arrested individuals were of no threat to officer safety or the preservation of evidence and police could not expect to find evidence of driving with a suspended license in Gant’s vehicle, the search was held to be unreasonable.

The decision fractured the Court in a way which defied ideology. The majority opinion was written by Stevens and joined by Thomas, Ginsburg, Souter, and Scalia (who also wrote a concurring opinion). Alito, Breyer, Roberts, and Kennedy dissented.

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.

The Georgia Court of Appeals recently had to determine if circumstantial evidence which was consistent with both the prosecution’s story and the defendant’s story was enough to convict a defendant of burglary and criminal trespass. The court ruled that the evidence was insufficient to find the defendant guilty, since there was a reasonable alternative to the prosecution’s story.

In Parker v. State, the defendant, Parker, was convicted by a jury after he was accused of stealing a generator and a guitar from the victim’s barn. Parker argued he was simply dropping off a saw. Parker knew the victim through a friend which he stayed with. Five days before the incident Parker tried to sell a saw to the victim, but the victim did not want it. The victim then went out of town for a few days. When the victim returned, there was an answering machine message by Parker stating that he had left the saw in the victim’s barn; however, the victim never gave Parker permission to enter the barn. It was also then that the victim realized the generator and guitar were missing.

Parker then called the victim to ask if he could come by and talk about selling him the saw. The victim agreed and notified police that Parker would be coming. Soon after Parker arrived, officers arrested him. Three months later a friend of Parker’s told the victim that Parker had brought over a machine that was either a generator or an air compressor two weeks prior to the arrest, but that he never saw a guitar. Additionally, the friend Parker was staying with testified that she saw Parker at the victim’s house while the victim was out of town. Parker told her that he was dropping off a saw, and she never saw Parker take anything. Furthermore, the victim stated on cross that a friend of his entered his barn while he was away to retrieve a four-wheeler. This friend also saw Parker at the barn and described him as fidgety.

On appeal, Parker argued the circumstantial evidence was not enough for a conviction. The general rule is that for there to be a conviction based solely on circumstantial evidence, the facts must only be consistent with guilt and must exclude every other reasonable possibility. The state contended the evidence was direct, since witnesses saw Parker at the scene. However, the court disagreed by reasoning that the witnesses never saw Parker take anything. Furthermore, the court noted that proximity without additional evidence of participation in a crime cannot support a conviction. The only additional evidence offered was that the defendant was fidgety which the court dismissed as hearsay and of no value. Since there was another reasonable possibility aside from the state’s burglary story, a conviction of Parker was improper and the court reversed his convictions.

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.

The Georgia Court of Appeals recently held that marijuana found in a vehicle after a citation was issued should be suppressed as the result of an illegal search. The court based this ruling on the conclusion that the encounter was not consensual, and there was no reasonable suspicion of criminal activity.

In State v. Felton, the defendant, Felton, was in the passenger seat of a vehicle which was pulled over because the driver was not wearing a seatbelt. The officer noticed that the driver’s hands were shaky and that he had eye tremors. The officer took the driver’s license and returned to his police cruiser where he filled out a citation. The officer noticed that the driver and Felton were turning around to look at the officer while he was issuing the citation. When the officer returned, he asked the driver to step out of the car. The officer handed the driver the citation, and then asked for consent to search the driver’s car. The driver agreed and the officer told Felton to exit the car. During the search of the vehicle, the officer found a potato chip bag which contained marijuana. Felton admitted that it was his and was then arrested for possession.

Felton argued that the marijuana should be suppressed, since the initial stop was unjustified and the officer exceeded the scope of the initial stop. The trial judge found that the stop had ended when the license and citation were given to the driver. The judge also found that there was not sufficient evidence to expand the stop at that time to request a search. The state appealed.

The Georgia Court of Appeals noted the general rule that an officer exceeds the scope of a traffic stop when he continues to detain the person after the conclusion of the stop and then interrogates or seeks to search without reasonable suspicion of criminal activity. The evidence showed no reasonable suspicion to search. It is also illegal to search at the end of a traffic stop when an encounter with a police officer is not consensual in the absence of reasonable suspicion. The court found that at no time did the encounter between the officer and the men become consensual, since it was not apparent that the men were free to leave. This is partially because the officer made the driver exit the vehicle before giving the citation and then the officer asked to search. Thus, the search was illegal, since it was not a consensual encounter nor did the officer have any reasonable suspicion to believe that criminal activity was afoot. As a result, evidence of the marijuana was suppressed.

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.

The Georgia Court of Appeals recently had to determine if a jury instruction which allowed a jury to use a witness’ level of certainty as a factor in determining the reliability of an identification of a defendant was harmless error. The court ruled that such an instruction was not harmless under the facts of the case.

In Robinson v. State, the defendant, Robinson, was accused of committing two separate robberies. On October 14, 1999, a victim walked from his home to his car to retrieve his cell phone. He was approached by Robinson and another man. Robinson put a gun to the man’s head while the accomplice searched the man. They then walked the man back into his home where his wife and son were. The wife was on a telephone in her bedroom telling someone what was happening. The man gave the accomplice keys to a safe and retrieved money from the safe. Robinson then took the bedroom phone along with a kitchen phone and left with the money. The accomplice allegedly had a shirt over his head the whole time.

On October 20,1999, a man was approached by two men as he neared his home. The men pointed guns at the victim and took $286 from him. The victim reported to police that prior to the robbery he had noticed two men on bicycles. A nearby officer saw two men on bicycles and searched them. The officer discovered $286 but no weapons. One of the men was Robinson who admitted to the October 20 robbery.

A week after the October 20 robbery, the victims of the first robbery recognized Robinson in a newspaper story about the second robbery. They told the police and Robinson was charged with the first robbery as a result. At trial for the first robbery, the wife identified Robinson. In addition, fingerprints that were lifted from the phones had not been fully processed, but police testified they were not Robinson’s. Nonetheless, Robinson was found guilty and sentenced to 20 years for burglary and kidnapping and life for the three robberies.

Robinson moved for a new trial based on improper jury charge on identity and newly discovered evidence. The trial judge had told that jury that in assessing the reliability of the witnesses’ identification they could consider the witness’ level of certainty. It was also discovered after trial that the finger prints on the phones were of another man already in jail for another armed robbery. That man claimed that it was not Robinson who robbed the couple, but that it was in fact he and another man.

The Court of Appeals recognized that the Georgia Supreme Court ruled that “level of certainty” instructions were not allowed in assessing the reliability of the identification. In determining if the error was harmless, the appellate court reasoned that the couple picked Robinson out of a newspaper one week after the crime had occurred. In addition, the couple did not provide police with a description of the assailant on the night of the robbery, and they did not pick Robinson out of any kind of lineup or photo array. The court concluded that they could not find such an instruction to be harmless, and thus, the conviction was reversed and a new trial was set.

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.

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 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.

The Georgia Court of Appeals recently had to determine if evidence was sufficient to support a conviction for possession of methamphetamine with intent to distribute and possession of marijuana under a theory of constructive possession. The court held there was not sufficient evidence, since the defendant’s cousin had equal access to the drugs but was not charged.

In Xiong v. State, the defendant, Xiong, allowed a police officer to search his home after the officer received a tip that a stolen car was on the property. The officer found a car that had been stripped of parts in the carport, and after checking the VIN which showed the car as stolen, Xiong was placed under arrest. A search warrant for the property was then issued. In addition to auto parts strewn throughout the property, officers found 14 bags of methamphetamine and a gun in the master bedroom as well as a small amount of marijuana in the kitchen. Electronic scales and additional handguns were also found. Police also discovered a notebook with writing that inferred that the defendant’s cousin and others were handling drugs in exchange for money.

The defendant’s wife testified that the defendant’s cousin, Vang, had moved into the home prior to the arrest since he was unemployed and homeless. The wife moved out a couple of months later due to a separation, but she returned a few days before the arrest of her husband. Her testimony revealed that Vang had moved into the master bedroom with his wife while she was away. Vang moved out shortly before the arrest of Xiong due to the wife’s return, but he had left personal belongings behind and retained a key to the home. Several days later Xiong was arrested but his wife and cousin were never charged with any crimes.

Xiong was convicted on the drug charges under the state’s theory of constructive possession. Under Georgia law, there is a presumption of constructive possession of an entire premise by the owner. Yet, the state must show sole constructive possession by the defendant if the state only charges one of two or more people who had equal access to the drugs. Thus, the presumption of constructive possession can be rebutted by showing that someone else had equal access to the specific location where the drugs were discovered. The court found that Xiong’s cousin had occupied the master bedroom where the drugs were, and that he still had personal belongings in the bedroom as well as a key to the home. The cousin also had the same access to the scales and notebook as Xiong. Furthermore, evidence suggested that the notebook was not Xiong’s. The court reasoned that the only evidence which connected Xiong to the drugs was his own equal access. Since the state only charged Xiong and could not show sole constructive possession by Xiong, the court reversed the conviction.

As a result, the court firmly established the rule that a conviction based on constructive possession cannot stand where others have equal access but are not charged.

Our criminal defense lawyers have successfully defended serious drug cases using similar defenses and equal access theories. "Being in the wrong place at the wrong time" is not enough, by itself, to justify a criminal conviction.

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 rejected a defense lawyer's challenge to the state’s marijuana statute on constitutional due process grounds.

The case (In the Interest of D.H.) required the Court to decide whether Georgia’s possession of marijuana statute created a mandatory presumption of guilt in violation of constitutional due process guarantees. The Court held that the language of the statute does not violate the Constitution.

The ruling stems from the arrest of two juveniles for possessing marijuana. Police received a tip that two young men were involved in a drug deal at a gas station. Upon arriving, the police officers did not see anyone at the gas station; however, two teenagers matching the description were seen walking down a nearby road. The two officers stopped their vehicle and approached the two young men on foot. The suspects stated that they were coming from the gas station in question. The officers asked if they could search the two suspects and the suspects agreed. In the defendant’s pocket, an officer found rolling papers, and officers found marijuana on the other suspect. Both suspects admitted that they had just purchased the marijuana and were going to smoke it. The teenagers were issued citations for possession and were subsequently adjudicated as delinquent.

Their defense attorney appealed arguing that the text of the marijuana statute violates constitutional due process since it creates a mandatory presumption of guilt. The statute states that, “any person who is charged with possession of marijuana, which possession is of one ounce or less, shall be guilty of a misdemeanor. . .”

The Court disagreed with this argument, and it determined that a literal reading of the statue would result in the absurd consequence of a defendant who is automatically found guilty the moment he or she is charged with the possession of marijuana. The Court explained that the literal meaning of a statute will prevail unless it leads to an absurd result which the legislature did not intend. In such cases, the Court will interpret the language in a reasonable manner in order to conform to the legislative intent and to ensure the statute is valid. According to the Court, the intent behind the statute was to show that possession of one ounce or less of marijuana was punishable only as a misdemeanor and not as a felony. The intent was not to create an automatic presumption of guilt. Thus, the Court interpreted the statute so as not to violate due process.

Attorney Page Pate of our firm was interviewed about the Court's decision on WABE FM 90.1, the Atlanta public radio station and NPR affiliate.

We did not represent the defendant in this case, but our criminal lawyers have helped people charged with Georgia drug crimes for 15 years. Although the constitutional argument was not effective in this case, challenges like this can (and should) be raised in drug cases involving marijuana prosecutions and illegal searches and seizures.

The Georgia Court of Appeals recently decided that a driver displaying nervousness, a failure to make eye contact, and certain indicators of drug use during a routine traffic stop do not constitute reasonable suspicion necessary to search the vehicle for weapons.

In Bell v. State, Bell and his passenger were stopped by two Catoosa County Sheriff’s officers for traveling 39 in a 25 mph zone. The officers approached the sides of the vehicle and spoke with both men. Both officers noticed that the men refused to make eye contact and that Bell seemed very nervous and appeared to be under the influence of a drug. One officer stated that Bell had a very dry mouth and that his eyes were slightly closed which was consistent with drug use.

Upon noticing these peculiarities, the officer asked Bell if he could search the vehicle, but Bell refused. The officer then requested that a K-9 unit be dispatched from another county. One officer had also noticed an expandable baton in the cup holder next to Bell. Since the K-9 would take a while to arrive, the officers ordered Bell and the passenger out of the car to alleviate any threat that may come from the baton, and the two men were then patted down for weapons. No weapons were found.

While searching the vehicle for additional weapons, the officers found a bag under the seat which contained scales and suspected methamphetamine. The officers found additional contraband inside a water bottle under the passenger seat. Bell and the passenger were subsequently charged for possessing the contraband.

In its decision, the Court of Appeals noted that the general rule is that an officer can only detain someone after the conclusion of a traffic stop if there is reasonable suspicion of criminal activity. The only possible reasonable suspicion of a crime under these circumstances would have been that Bell was driving under the influence. However, the officers performed no sobriety tests and did not hold Bell to perform a DUI investigation. The men were simply being detained until the K-9 unit could arrive to search for drugs. The court reasoned that nervousness and dry mouth alone cannot constitute reasonable suspicion necessary to detain a suspect for the suspicion of drug possession. Thus, the search of the vehicle was performed after Bell was illegally detained, and as a result, the trial court should have suppressed the contraband found during that search.

In most drug cases, the traffic stop is a critical issue in a successful defense of the case. If the defense lawyer is able to show that the stop was not proper, the evidence will be suppressed and the case usually dropped. Our criminal defense lawyers have won many motions to suppress in drug cases like this, and have insured that the constitutional rights of our clients are protected.

Last week, the Georgia Court of Appeals reversed the conviction of Arthur Tesler. Tesler was one of the Atlanta Police Officers involved in the botched drug raid, and tragic shooting death, of 92 year old Kathryn Johnston.

The Atlanta Journal Constitution has the story.

The court reversed Tesler's conviction because the DA's office failed to prove that Fulton County had jurisdiction over Tesler's false statements to the FBI. The FBI office where Tesler made those statements is in Dekalb County, not Fulton County.

According to Tesler's defense attorney, the DA in Fulton County rushed to indict the case without properly considering the venue problem.

Now that the state conviction has been overturned, Tesler will be sentenced only in federal court based on his guilty plea to federal charges. In the federal case, the government is expected to ask that Tesler receive 10 years in prison.

Our firm's criminal defense attorneys represented one of the police officers initially identified as a subject of the federal criminal investigation into this incident. Our client testified in front of a federal grand jury, but was not charged.

Tesler's sentencing in federal court may be the end of the criminal cases arising out of this tragedy, but there are several potential civil lawsuits that will no doubt be filed and keep this incident in the media for some time to come.

There have been changes made to the way police officers obtain and execute warrants as a result of this incident. We can only hope those changes will prevent another innocent person from being killed by police officers who were taking shortcuts and lying to cover up their mistakes.

A recent decision in Georgia helps clarify what is required to sustain a kidnapping conviction.

In Garza v. State, the Supreme Court of Georgia reversed the kidnapping convictions of Joey Garza, since the movements of his two victims were not adequate to constitute kidnapping under Georgia law.

According to the facts of the case, Garza entered the home of a woman and her three children after stating that he had left his wallet in the woman’s van. Garza locked the door, pulled out a handgun which he put against the woman’s head, and threatened to shoot her. He then struck the woman’s head with the gun which caused her to fall. While on the ground, Garza bound her wrists and ankles and placed her in a chair. After some time, Garza fell asleep and the woman and her two year old son managed to escape and alert police. The police entered the home and managed to rescue the woman’s infant. However, her nine year old son remained inside. When the police entered the home, Garza held the boy’s shirt and moved him to a different bedroom. Eventually, police negotiated the release of the boy for a six pack of beer. Garza was convicted of two counts of kidnapping, four counts of false imprisonment, and one count of aggravated assault.

Garza’s attorneys argued that the movement of the woman falling and being placed in a chair along with the boy being moved to a different room could not constitute kidnapping. Georgia law had previously recognized even a slight movement of the victim as being enough to convict someone of kidnapping. The Court was concerned with this standard, since a relatively minor crime like false imprisonment could turn into a major crime such as kidnapping with the smallest movement of the victim.

The Court overruled the old standard, and it instituted a new test which other states have adopted known as the Berry test. Part of the test examines the duration of the movement and whether the movement occurred during and inherent to a separate offense. Using this new standard, the Court partially reasoned that the woman falling and then being placed in a chair were movements of minimal duration, and the Court also determined that these movements were incidental to the charge of false imprisonment. The Court reached the same conclusion about the boy’s movement to a different bedroom within the house. Thus, these movements did not constitute kidnapping under the new standard.

Our firm has won criminal trials for people charged with kidnapping where the facts do not support a true kidnapping allegation. We hope judges and prosecutors will consider this decision before allowing a questionable kidnapping case to go to trial. There are many other crimes that may fit a certain set of facts. Trying to stretch the case into a kidnapping charge is not usually the best way to win a conviction, or promote justice.