Prosecuting Attorneys’ Council of Georgia

UPDATE WEEK ENDING JULY 29, 2016

State Prosecution Support Staff THIS WEEK: • Tattoos; Demonstrative Evidence his right hand, showing the scars from that Charles A. Spahos Executive Director • Similar Transactions injury, to the jury. On cross-examination, the prosecutor said, “You showed the Jury your • Statements; Coercion Todd Ashley arm. Show me,” and appellant complied. The Deputy Director • Jury Instructions; Judicial Commentary prosecutor then asked appellant, “What are • Prior Difficulties; Indictments those tattoos on your arm?” Over objection, Robert W. Smith, Jr. appellant pointed out one tattoo that he General Counsel • Search & Seizure said was the victim’s mother’s nickname and • Jury Deliberations; Excusal for Cause Lalaine Briones another that he said was the letter “C,” for State Prosecution Support Director • Best Evidence Rule; O.C.G.A. § 24-10- “Christian.” The prosecutor then inquired 1001 et seq. about tattoos on appellant’s hand, and he Sheila Ross • DUI; Sufficiency of Evidence testified that they said “Jim”(a homonym for Director of Capital Litigation • Forfeitures; Self-incrimination “GEM”) and “Hood.” The prosecutor asked what “Jim Hood” means, and appellant said, Sharla Jackson • Search & Seizure Domestic Violence, Sexual Assault, “Gentlemen everywhere are maintained.” The and Crimes Against Children • DUI; Williams prosecutor asked, “Maintaining what?” and Resource Prosecutor • Jurors; Right to Fair Trial appellant answered, “You’re maintaining self- control, all that.” Gilbert A. Crosby • Statutory Right to Speedy Trial; Waiver Sr. Traffic Safety Resource Prosecutor The Court stated that whether appellant was physically able to inflict the victim’s injuries Joseph L. Stone was certainly a relevant issue in this case. Traffic Safety Resource Prosecutor Tattoos; Demonstrative Thus, it was appropriate for defense counsel Evidence to explore that issue on direct examination Gary Bergman State Prosecutor Smith v. State, S16A0398 (7/5/16) of appellant, and to have him show the jury any physical manifestations, such as scars, Kenneth Hutcherson Appellant was convicted of felony murder supporting his testimony. Likewise, it would State Prosecutor in connection with the death of his two- have been proper for the prosecutor to ask month-old daughter. He first contended that about this topic on cross-examination, even Austin Waldo the trial court erred by allowing the State to if it had not already been broached on direct. State Prosecutor cross-examine him about tattoos on his arm. The relevance of appellant’s tattoos was far less The record showed that in an effort to dispute evident. The State conceded that the tattoos that he had the right-hand strength needed were not relevant to the determination of the to inflict the injuries the victim suffered perpetrator’s identity, as tattoos are in some in the way the medical examiner said the cases, but argued that appellant “opened the injuries had occurred, appellant testified on door” to cross-examination about his tattoos direct examination that he is naturally right- by showing the jury his right hand and arm up handed but that his dominant hand is now close, which allowed the jury to see the tattoos. his left hand because he broke his right wrist The Court noted that the prosecutor previously. Defense counsel then received the may have had concerns that the jury had seen trial court’s permission to have appellant show tattoos on appellant’s hand and arm and that

1 CaseLaw Update: Week Ending July 29, 2016 31-16 the tattoos could depict words or images — sitting on the floor of the minivan with the In so holding, the Court noted that rather say, a tattoo of the victim’s name inside a heart sliding door on the driver’s side open after than engaging in a straightforward analysis — that might influence the jury even though helping her three-year-old sister B.L. and the of similar transaction evidence under the the tattoos were not at that point reflected in other children into their seats. Ashley walked old Evidence Code and the copious case law the record or admitted as evidence. Any such up to the minivan, reached inside, grabbed interpreting it, the Court of Appeals majority concerns would have been more properly K.L. by the wrist, pulled her out of the looked for “persuasive” guidance to the new addressed by the prosecutor asking to minivan, and began dragging her up the street Evidence Code and cases interpreting the examine appellant’s hand and arm before they as she screamed and tried to get away. K.L. new Code and the Federal Rules of Evidence, were displayed to the jury, and raising any managed to break free from Ashley and ran to which may have accounted in part for how objections at that point. Moreover, any such her mother, shaking and crying. The woman the majority went astray. At the least, the concerns were reduced when, before asking yelled at Ashley and saw him “touching Court stated, the majority opinion’s reliance appellant any questions about the tattoos, himself” as he reached into her minivan a on those sources unnecessarily complicated its the prosecutor demanded that appellant show second time and tried to grab B.L., who analysis. “In many a case, the result may be the prosecutor his arm, which appellant did. scrambled away from him. Ashley ran off. the same whether an issue is analyzed under Only then did the prosecutor ask about the At trial, the State presented similar our old or new Evidence Code, but as we have tattoos, drawing defense counsel’s relevance transaction testimony regarding three recently emphasized to lawyers, if that is so, objection; without the prosecutor at that incidents involving Ashley at the trailer park it is ‘happenstance, at least without careful point articulating any potential relevance to pool during the summer of 2011: (1) an comparison of the old and new law.’[cite] the tattoos, it would have been appropriate occasion when the assistant property manager Where there is ample authority available on for the trial court to sustain the objection. and another woman saw Ashley staring an issue under the applicable Evidence Code, But, the Court stated, tattoos are often inappropriately at young girls ranging in age there is no need to look elsewhere. And so it difficult to see clearly and to comprehend, from five to ten years old; (2) Ashley’s repeated should be clear that we render no opinion on and especially on cross-examination, it may touching of a ten-year-old girl on her torso just how this case would be decided under the new have been within the trial court’s broad below her breasts when the girl’s mother went Evidence Code.” discretion to allow the prosecutor to ask a few inside for a few minutes to use the restroom; questions to try to establish the relevance of and (3) an incident when the police were Statements; Coercion the tattoos, although this also risked eliciting called after the assistant property manager and Blackwell v. State, A16A0172 (5/20/16) improper evidence and the overruling of other adults saw Ashley repeatedly squirting the objection should then have been made a five-year-old boy with a powerful water Appellant was convicted of manufacturing conditional. The prosecutor started down gun so hard at close range that the boy was methamphetamine in the presence of a child. this path, simply asking appellant to explain crying and had red marks on his skin. These The evidence showed that based on a tip, an what was symbolized by the tattoos the jury three incidents led the trailer park to seek the investigator and his partner knocked on the may have seen. These questions elicited trespass notice against Ashley. front door of a home, which was answered evidence that benefitted appellant, which A divided Court of Appeals reversed by a resident, and asked for appellant. The he otherwise might not have been able to his conviction, finding that under the old resident led them to the garage, where they introduce — that he had the victim’s mother’s Evidence Code, the trial court abused its found appellant, his wife, their three-month- nickname tattooed on his harm (indicating discretion in admitting the similar transaction old daughter, and another man. As he entered a close bond with the victim’s mother); that evidence. Ashley v. State, 331 Ga.App. 794 the garage, the investigator detected a strong he was a Christian; and that he was focused (2015). The Supreme Court granted the chemical odor and saw “an active meth lab on maintaining self-control. Thus, the Court State’s petition for writ of certiorari. cooking” a few feet from where appellant and concluded, any error was harmless given the The Court concluded that under the old the other occupants were sitting. overwhelming evidence of appellant’s guilt. Evidence Code and the cases interpreting it, the Appellant contended that the trial trial court acted within its discretion in admitting court erred in admitting his statement to the Similar Transactions the evidence of Ashley’s conduct at the pool investigator that he knew methamphetamine State v. Ashley, S15G1207 (7/8/16) involving the ten-year-old girl and the five-year- was being manufactured in the garage a old boy as proof of his intent when he grabbed few feet from his three-month-old child. Ashley was convicted of kidnapping a K.L. and tried to grab B.L. — particularly in view Specifically, he argued that the statement was seven-year-old girl, attempting to kidnap her of Ashley’s protestations, both before and at trial, made in response to threats, undermining its three-year-old sister, and criminal trespass that he acted with innocent or even helpful intent. voluntariness and admissibility. The evidence at the trailer park where his father lived. The Court also concluded that even if the evidence showed that the investigator obtained the The evidence showed that on September 4, of Ashley’s leering at young girls at the pool was statement after appellant agreed to waive his 2011, a woman was preparing to take her not properly admitted on the issue of intent, the Miranda rights at the scene. The investigator four daughters, ages seven and under, in her trial court could have properly admitted it for testified that he did not threaten appellant minivan. The woman was on her front porch, other purposes and the other evidence of Ashley’s or promise him anything to obtain the locking the door, and seven-year-old K.L. was guilt was strong, so any error was harmless. statement. He did, however, ask whether

2 CaseLaw Update: Week Ending July 29, 2016 31-16 appellant wanted to claim ownership of the follows: “I charge you that to find the defendant in the indictment.” And the Court found, drugs, and he possibly stated that appellant’s guilty of the crime charged, the State need only the trial court instructed the jury that the child might be taken into state custody. The prove that the defendant committed at least State bore the burden to prove each essential investigator also told appellant that “there[ ] one act which satisfies each and every element element of the charged crimes, as well as [was] a good chance” appellant’s wife would of the crime charged. Merely because two or venue, beyond a reasonable doubt. The trial be going to jail, given her presence with the more separate acts are listed in the charge does court also instructed jurors that it had not child in front of an active methamphetamine not require the State to prove all of the listed intended by any of rulings or comments lab. Appellant produced the testimony of a acts to find the defendant guilty of the crime to express any opinion on the evidence or person who was present during the interview. charged. In addition the presence of the word, guilt of the accused. Accordingly, the Court She testified that the investigator informed and, in the description of actions taken by the concluded, the trial court did not err in appellant that “it was time to man up and accused is not required for the State to prove making the complained-of comment here. that if [appellant] didn’t tell [the investigator] each act listed.” everything that [the investigator] found in that The Court found that although the Prior Difficulties; Indictments house belonged to him that [the investigator] instruction was not perfectly clear, the essence Everhart v. State, A16A0652 (5/25/16) was going to take his wife to jail and his of the instruction was a correct statement of child to [the Georgia Division of Family and the law: If a crime may be committed in more Appellant was convicted of first degree Children Services].” She also testified that than one way, it is sufficient for the State to cruelty to children for the willful deprivation the investigator threatened to “tear … apart” show that it was committed in any one of the of necessary sustenance by failing to seek appellant’s mother’s home, where appellant separate ways listed in the indictment, even medical care for the victim (Count 1); second claimed to be living. She further claimed that if the indictment uses the conjunctive rather degree cruelty to children for causing cruel appellant “raised [his hands] up and said all than disjunctive form. Thus, it did not shift and excessive physical and mental pain to right, whatever you find belongs to me.” the burden of proof to the defense to instruct the victim by failing to seek medical care The Court noted that a statement by the jury that the prosecution need prove only for him (Count 2); first degree cruelty to police that makes the defendant aware of the use of a firearm or a replica. children for causing cruel and excessive potential legal consequences is in the nature Appellant next argued that he was physical and mental pain to the victim by of a mere truism that does not constitute a entitled to a new trial because the trial court inflicting multiple physical injuries(Count 3); threat of injury or promise of benefit within violated former O.C.G.A. § 17-8-57 when and aggravated battery for causing brain and the meaning of former O.C.G.A. § 24-3-50. it told jurors, “you now have a pretty good internal injury to the victim (Count 4). The Here, appellant was advised of his Miranda idea where things happened.” Specifically, victim was a three-month-old infant at the rights, waived his right to counsel, and agreed he contended that the trial court’s statement time of the crimes. The evidence showed that to speak with the investigator. During the conveyed to jurors that the court thought that appellant demanded money from the victim’s conversation, the investigator told appellant venue and a number of essential elements of mother to buy marijuana and cigarettes. about the legal consequences of his arrest the crime had been proven and that the trial When she refused, appellant jerked the young and the police investigation, and appellant court’s statement “served to highlight” the victim out of a car seat and started beating him conceded that he knew about the active State’s argument that the defense was false. repeatedly in the ribs with a broom handle. methamphetamine lab in the house. The trial The Court disagreed. Appellant also shook the victim. The victim court therefore did not err in finding that The Court noted that the full quote was not taken to the hospital until a couple of appellant freely and voluntarily made this stated, “Now I want to caution you about days later, despite noticeable injuries. statement to police. one other thing. You now have a pretty Appellant argued that the trial court erred good idea about where things happened, all by failing to hold a hearing before admitting Jury Instructions; Judicial that’s — you know, the distances, times that evidence of prior difficulties between him Commentary may be important in this case. This is not a and the victim. The Court noted that prior Graham v. State, A16A0297 (5/24/16) freelance committee work where somebody to the new Evidence Code, former Uniform needs to go out and do anymore evaluation or Superior Court Rule 31.3 required notice Appellant was convicted of hijacking investigation. Don’t get on Google, don’t get of an intent to introduce evidence of similar a motor vehicle and aggravated assault. He on Maps, don’t go check out whose address transactions and a hearing in order to decide first contended that the trial court erred by is what. Stay away from all that stuff as it whether the evidence was admissible But even instructing the jury that the State did not have relates to this case.” Therefore, the comments when this Rule was still in effect, evidence to prove all of the acts listed in each count of here were made in the context of telling jurors of prior difficulties between a defendant and the indictment. The record showed that the not to do their own investigation. Thus, the a victim — as opposed to prior transactions hijacking charge accused appellant of obtaining Court found, they are more akin to the trial or occurrences — was admissible without a vehicle “while in possession of a firearm and a court’s inartful comments in Atkins v. State, notice or a hearing. Under the new Evidence replica of a firearm,” and the aggravated assault 253 Ga.App. 169, 170-71 (2) (2002), which Code, however, O.C.G.A. § 24-4-404(b) — charge alleged that he “did brandish a firearm included an admonishment that prospective not Rule 31.3 — governs admission of prior and a replica of a firearm.” The court charged as jurors “listen carefully to the facts as contained difficulty evidence. O.C.G.A. § 24-4-404(b)

3 CaseLaw Update: Week Ending July 29, 2016 31-16 incorporated Rule 31.3’s notice requirement or mental pain.” O.C.G.A. § 16-5-70(b) deliberations began. Briefly stated, the record (but not the hearing requirement) for evidence (Emphasis added). The State’s indictment showed that the jury received the case at 4:17 of other crimes or wrongs, but specifically omitted these essential elements of the crime p.m. and were excused until the next day at excludes from this notice requirement and therefore failed to charge appellant with 6:15 p.m. The next morning, the courtroom “evidence of prior crimes, wrongs, or acts any crime at all. Therefore, Count 1 of the deputy reported that when he opened the door [that is] offered to prove … prior difficulties indictment was fatally defective and would to the jury room, a juror stated: “[S]he wants between the accused and the alleged victim.” have been dismissed if appellant’s counsel had out, she can no longer be a part of this, bring an O.C.G.A. § 24-4-404(b). Therefore, the filed a general demurrer. alternate in, she wants out.” With the consent Court stated, “[b]ecause the statute excludes of the parties, the court brought in the juror from the notice requirement evidence of prior Search & Seizure to inquire as to the circumstances. Without difficulties between a defendant and a victim State v. Cook, A16A0432 (5/25/16) stating her opinion or that of her fellow jurors, and, unlike Rule 31.3, says nothing about she stated that she believed they “would be a mandatory hearing, we decline to read it Cook was charged with possession of still in that room all week.” The trial court as implicitly mandating a hearing before marijuana with intent to distribute. The trial explained that they had only deliberated for admission of evidence of prior difficulties.” court granted his motion to suppress and two hours, and they needed to take more time Accordingly, the trial court did not err in the State appealed. The evidence showed to deliberate. The juror replied that she tried to failing to hold a hearing. that Cook was transported at his request by complete the deliberation process, “but I just Appellant also argued that his trial ambulance to a hospital following a traffic feel like I don’t want to be a part of it.” The trial counsel rendered ineffective assistance by accident. Upon arrival, hospital security court again explained the jury’s responsibility to failing to file a general demurrer to Count 1 officers searched the backpack he was carrying examine the evidence and deliberate and asked of the indictment. The Court agreed. Count in his lap. The officers found a mason jar of if the juror could talk to the other jurors and 1alleged that appellant committed cruelty marijuana and called the police. When a try and reach a verdict. The juror responded, to children in the first degree in violation police officer responded, he searched the bag “Yes, ma’am, I can do that. We have to have of O.C.G.A. § 16-5-70 when he willfully and found the drugs and some clothing. The one verdict. And if they keep what they going deprived the victim “of necessary sustenance officer had no personal knowledge of what on and on [sic], ain’t nobody coming together to the extent said child’s health and well-being the security personnel had seen, nor did he … but I’m not going to be forced to go along were jeopardized by failing to seek medical smell the marijuana himself, and none of this with what they were saying just to put a verdict attention for said child after noticing injury information was included in his police report. on the table. I can’t do that.” During the and illness to the child which continued to The officer arrested Cook and then obtained a ensuing further conversation between the court worsen[.]” But, the Court found, the State’s search warrant. and juror, the juror appeared to be upset and allegation that appellant failed to seek medical The Court affirmed. The Court noted that crying, and the trial court attempted to calm attention for the child “after noticing injury the only testimony presented was that of the her. After the juror returned to the jury room, and illness to the child which continued police officer who was called to the hospital. the trial court decided to excuse her and replace to worsen” was not sufficient to charge any Importantly, the officer did not testify that her with an alternate. crime when the State alleged only that this he personally smelled marijuana. Notably, Here, the Court found, the trial court’s deprivation constituted denial of “necessary the State did not present any testimony from main concern was that the juror was visibly sustenance.” “ ’Necessary sustenance’ has the hospital security officers who allegedly upset and had reached a fixed and definite been defined by our Supreme Court as ‘that smelled the marijuana, confiscated the bag, opinion so soon after the deliberation began which supports life; food; victuals; provisions’ and searched it. Moreover, the State did not without fully vetting the evidence with the … Our statute, in the use of the word argue that Cook consented or that there were other jurors. The juror had expressed that ‘sustenance,’ means that necessary food and exigent circumstances justifying a warrantless her mind was made up, she “wanted to go,” drink which is sufficient to support life and search. Therefore, on these facts, the Court and she could “no longer be a part of this.” maintain health.” The denial of necessary and found that it must conclude, as a matter of law, Legal cause for excusing a juror arises when appropriate medical care for a child under 18 that the State failed to meet its burden under the court determines, in its sound discretion, years of age can constitute cruelty to a child § 17-5-30(b) to prove that the warrantless that the juror holds an opinion so fixed when it causes the child “cruel or excessive search of Cook’s bag was lawful. and definite that he or she cannot lay it physical or mental pain”, under O.C.G.A. aside and decide the case on the evidence § 16-5-70(b) but it does not constitute a Jury Deliberations; Excusal presented and the court’s charge. Although denial of ‘sustenance’.” In order for the State for Cause the juror did equivocate about her ability to to have charged appellant sufficiently with Bethea v. State, A16A0377 (5/26/16) deliberate, there was evidence that she had cruelty to children in the first degree for the reached an unwavering opinion fewer than failure to seek timely medical care following Appellant was convicted of voluntary two hours into the deliberation. Unlike other the severe beating of the victim, the State manslaughter and concealing the death of cases where, for example, a trial court erred needed to allege that the failure maliciously another. He contended that the trial the trial by excusing a lone holdout after more than caused the child “cruel or excessive physical court erred by excusing a juror for cause after two days of deliberation, there was evidence

4 CaseLaw Update: Week Ending July 29, 2016 31-16 showing that, very early on, the juror had the jury because the hard drive used in that In so holding, the Court noted that ceased deliberating with the other members investigation had “crashed.” neither party addressed (either below or of the jury and “wanted out” of the process. Appellant argued that Peluso’s on appeal) whether Peluso’s testimony was The fact that the juror eventually stated that identification testimony was inadmissible admissible under O.C.G.A. § 24-10-1004. she could be impartial and deliberate did not because it was based on his viewing Instead, both parties relied exclusively on require the trial court to ignore the numerous photographs and videos that were unavailable Georgia cases published before the enactment times she equivocated or the other evidence to the jury. More specifically, he contended of the new Evidence Code and that these cases showing that she expressed a fixed and that such opinion evidence was improper were all readily distinguishable from the issue definite opinion and did not make the trial because it tended only to establish a fact that before the Court. court’s credibility decision to strike her error. average jurors could decide for themselves. Furthermore, the Court found, the record was The Court stated that because this case DUI; Sufficiency of Evidence clear that, despite excusing the juror, the trial was tried after January 1, 2013, our new Cash v. State, A16A0269 (5/27/16) court carefully considered avoiding excusing Evidence Code applied. And O.C.G.A. § 24- the juror simply because she might be in the 10-1001 et seq., Georgia’s new “best evidence Appellant was convicted of two counts minority or a potential holdout. The trial rule,” squarely addresses the situation at hand of DUI following a bench trial. The evidence court voiced her concern that jurors not be — i.e., the admissibility of secondary evidence showed that in the early hours of the morning, removed simply because they were holdouts, of the contents of a recording or photograph an officer activated the blue lights on his vehicle saying “the [mere] fact that one juror does that has been lost or destroyed. Generally, and pulled onto the shoulder of the road behind not agree with the other [does] not constitute under O.C.G.A. § 24-10-1002, “[t]o prove a car that was stopped on the shoulder. The cause for removal.” Instead, the court’s basis the contents of a writing, recording, or officer approached to determine whether the for excusing her was the juror’s unwillingness photograph, the original writing, recording, driver needed assistance. The officer smelled the to meaningfully participate in deliberation or photograph shall be required.” However, odor of alcohol on appellant’s person. Further based on a thorough review of the evidence. O.C.G.A. § 24-10-1004 outlines several investigation led to appellant’s arrest. Appellant Accordingly, the Court found no error. exceptions to this general rule. In relevant agreed to a breath test and the results registered part, O.C.G.A. § 24-10-1004 provides that alcohol concentrations of 0.114 and 0.117 Best Evidence Rule; O.C.G.A. “[t]he original shall not be required and grams. At trial, the officer identified a copy § 24-10-1001 et seq. other evidence of the contents of a writing, of the breath test results, but the State never Patch v. State, A16A0524 (5/26/16) recording, or photograph shall be admissible tendered the results into evidence, and they if … [a]ll originals are lost or have been were not admitted. The court found appellant Appellant was convicted of three counts destroyed, unless the proponent lost or guilty, and merged the less safe count into the of computer or electronic pornography and destroyed them in bad faith.” per se count. child exploitation. The evidence, briefly stated, Here, the Court found, it was Appellant contended that the evidence showed that appellant, using the username undisputed that the State sought to present was insufficient to support his per se count “heeeyyy_waitaminute”, conversed online with “other evidence” (i.e., Peluso’s testimony) conviction. The Court agreed. Given its failure Land, an adult female police officer he believed of the contents of video recordings and to tender the Intoxilyzer 5000 test results into was a 14-year-old girl. During the explicitly- photographs that had been destroyed when evidence, the State admitted — and the Court sexual conversations, he masturbated for her on a hard drive used in the 2008 investigation found — that it presented insufficient proof a webcam. However, the officer was never able of appellant malfunctioned. Thus, under of this charge. Accordingly, the Court held, to see appellant’s face. O.C.G.A. § 24-10-1004(1), an original appellant’s conviction for driving under the At trial, the State presented evidence of recording or photograph is not required at influence must be reversed, and appellant a prior incident in 2008, when appellant was trial and secondary evidence of its contents could not be retried on this count. investigated in Cobb County for engaging in is admissible if “[a]ll originals are lost or have Moreover, the Court found, the State’s similar unlawful conduct with his heeeyyy_ been destroyed, unless the proponent lost or mishandling of the breath test results also waitaminute account. This evidence showed destroyed them in bad faith.” And here, it undermined the trial court’s finding of that appellant conversed with Peluso, a retired was undisputed that the relevant videos and guilt as to the less safe count. The Court officer, who created an online account in photographs were destroyed when the hard noted that the evidence with respect to this which he led appellant to believe he was a drive used in Peluso’s 2008 investigation charge was sufficient. Testimony regarding 13-year-old girl. Appellant sent her pictures “crashed.” Moreover, there was no evidence appellant’s location that night, appearance, of himself, and invited her to view him via (and appellant did not even allege) that the smell, unsteadiness on his feet, admitted a webcam. But unlike Land, Peluso was able State intentionally destroyed the videos and consumption of alcohol, and performance on to see appellant’s face on the webcam, and photographs in bad faith. As a result, Peluso’s the horizontal gaze nystagmus test supported during his testimony, he identified appellant testimony regarding the contents of the lost or the trial court’s determination that appellant as the individual who appeared in the pictures destroyed photographs and video recordings had driven his vehicle while under the influence and on the webcam. However, those images was admissible under the plain language of of alcohol to the extent he was less safe to and videos were unavailable to present to O.C.G.A. § 24-10-1004(1). drive. However, as the State conceded, the

5 CaseLaw Update: Week Ending July 29, 2016 31-16 test results were considered by the trial court 49(o)(3), in that appellant had not included Search & Seizure in reaching its verdict, inappropriately and therein information as to the nature and State v. Dotdson, A16A0266 (6/3/16) harmfully contributing to the finding of guilt. extent of his interest in the cash, the date of Thus, while the properly admitted evidence was the transfer, the identity of the transferor, and Dotson was indicted for manufacturing sufficient to support the less safe finding, the the circumstances of his acquiring an interest marijuana, other drug offenses, and two evidence was not overwhelming, particularly in the cash. The court further found that firearms offenses. The trial court granted his since the officer did not encounter appellant appellant “ha[d] instead chosen to assert a motion to suppress and the State appealed. until after appellant had stopped his vehicle on blanket right against self-incrimination in not The Court reversed. the side of the road. The breath test results, on meeting the requirements of [that statute],” The evidence, briefly stated, showed that the other hand, showed that appellant had an and it noted that he had “never requested a a sergeant with police department received alcohol concentration well above the legal limit stay of the forfeiture proceedings pending the over a period of several weeks complaints from following his arrest. Under these circumstances, outcome of his criminal prosecution.” neighbors of Dotson’s residence that Dotson the Court found it highly probable that the The Court affirmed. The Court found was shooting guns outside his residence at all test results, which were never admitted into “unconvincing” appellant’s argument that times of day, causing several senior citizens to evidence, influenced the verdict. Accordingly, the privilege set out in the Fifth Amendment fear for their safety. Each caller feared Dotson the Court concluded, appellant was entitled to and in O.C.G.A. § 24-5-506 overrides the and wished to remain anonymous. Dotson a new trial on the less safe count. clear and well-settled requirement that, to lived at an address which had two trailers on be sufficient, an answer in a civil forfeiture it. Dotson lived in the back trailer. Dotson Forfeitures; Self-incrimination proceeding must include the information had several prior felony drug and weapons Loveless v. State, A16A0479 (5/27/16) requested in O.C.G.A. § 16-13-49(o)(3) convictions, including prior felony convictions and noted that appellant cited no Georgia for carrying a concealed weapon and possession Pursuant to O.C.G.A. § 16-13-49 cases on point that supported his argument. of marijuana. The sergeant obtained a search (2014), the State filed a civil in rem complaint The Court stated that there is no blanket warrant for “weapons including but not limited to forfeit two amounts of cash (and other Fifth Amendment right to refuse to answer [to], handguns, long guns, weapons parts, personal property) that law enforcement questions in noncriminal proceedings. The ammunition and any other items related to officers had allegedly found in close proximity privilege must be specifically claimed on a firearms.” The search of the back trailer resulted to methamphetamine and marijuana during a particular question and the matter submitted in the seizure of two mason jars of marijuana search of appellant, his vehicle, and a room to the court for its determination as to the and several spent shotgun shells from the yard in an extended stay hotel. Appellant answered, validity of the claim. The questions must at behind the back trailer. claiming ownership of one of the amounts of the very least be considered on an individual When the officers finished the search of cash ($12,231) and demanding its immediate basis and answered accordingly. But here, the back trailer, they drove past the front trailer. return; denying allegations that the cash was appellant made a blanket refusal to answer As they drove by, one of the investigators saw found in close proximity to the drugs and that and did not consider each question on what appeared to be several marijuana plants the cash had been used for, was intended to be an individual basis and specifically claim in the yard around the front trailer’s back used for, or constituted proceeds from illegal privilege on each question. The burden is porch. When no one answered the door at drug activity; contending that the officers on the individual claiming the privilege to the front trailer, the sergeant telephoned the had obtained the property in violation of his state the general reason for his refusal to sheriff’s office and gave them the information Fourth Amendment rights; and, stating that answer and to specifically establish that a real needed to apply for a second warrant to search he was facing drug charges in a related criminal danger of incrimination existed with respect the front trailer. During the warrant search of matter, asserting his rights under the Fifth to each question. Further, the Court noted, the front trailer, the officers seized more jars of Amendment (against self-incrimination) and appellant was not compelled to give evidence marijuana, a shotgun, and scales. The officers under O.C.G.A. § 24-5-506(a) (prohibiting for or against himself in order to answer the also seized Dotson’s driver’s license and other a person charged in a criminal proceeding forfeiture petition, inasmuch as he could have personal effects. from being compelled to give evidence for or requested a stay of the forfeiture proceeding The State argued that the trial court against himself). Appellant also contended while the criminal case was pending, but did erred in determining that the searches were that “answering the statutory requirements not do so. Accordingly, the trial court did not not supported by probable cause. The Court of O.C.G.A. § 16-13-49(o) may” provide the err in striking the answer for failing to meet agreed. The Court noted that the affidavit in State with evidence to be used against him, the strict pleading requirements of O.C.G.A. support of the first search warrant described and that he was an innocent owner of the cash. § 16-13-49(o)(3). the back trailer, its location, and the area to The State moved to strike the answer Nevertheless, appellant argued, the trial be searched. In relevant part, the affidavit as insufficient. Following a hearing, the court erred because he raised a sufficient defense also conveyed the following information to trial court granted the motion and entered under the Fourth Amendment. However, the issuing magistrate: Dotson’s neighbors a default judgment for the State. The trial the Court found, in the absence of a legally had complained to police that Dotson was court found that the answer had failed to sufficient answer, the trial court was without shooting guns outside his residence at all times meet the requirements of O.C.G.A. § 16-13- authority to consider the suppression issue. of the day; several senior citizens feared for

6 CaseLaw Update: Week Ending July 29, 2016 31-16 their safety; and Dotson had a felony record, and this time, asked if Bowman would submit mere consideration of whether Bowman’s including convictions for concealed weapons to a blood test. Bowman, lying in a hospital intoxication affected his ability to voluntarily charges and marijuana possession. These facts bed, replied saying, “yeah, whatever you got consent allows DUI suspects to employ — namely, the multiple calls from concerned to do.” And subsequently, with the officer the very behavior the State is attempting to citizens and Dotson’s prior convictions for present, hospital personnel drew Bowman’s thwart as a shield to any prosecution of such felony drug and firearms offenses — were blood for testing. behavior. But, the Court stated, a trial court sufficient to allow the magistrate to make an The trial court granted Bowman’s motion may consider a suspect’s lucidity and ability independent determination of probable cause to suppress, finding that Bowman did not to comprehend questions in determining that a crime was being or had been committed make a valid Fourth Amendment consent to whether that suspect’s statements were and supported the magistrate’s decision to the search of his blood, citing Williams v. State, rendered involuntary as a result of intoxication. issue the first search warrant. 296 Ga. 817 (2015). The State appealed. Thus, there is no logic to any argument that The State also contended that the search The Court stated that in reviewing the intoxication should not also be a factor in of the front trailer was supported by probable record, including the video-recording of determining whether a suspect’s consent to cause. Again, the Court agreed. The Court the DUI task-force officer’s interaction with a search is truly voluntary. Moreover, in its found that the officers saw the marijuana Bowman at the scene of the accident, there haste to condemn the trial court’s ruling as plants in plain view in the yard around the was no evidence that either officer threatened an across-the-board preclusion of DUI per se front trailer’s back porch, immediately after Bowman or prolonged his detention prosecutions, the State neglected to mention they finished the lawful search of the back unnecessarily in an effort to obtain his consent that nothing in the court’s ruling prevents trailer, and the officers then obtained a warrant to the blood test. However, the evidence did the State from obtaining a warrant to draw a to search the front trailer. Accordingly, the show that Bowman had been in a significant suspect’s blood in situations, such as this, in officers lawfully seized the marijuana and accident, suffered a cut to his head, and was so which the voluntariness of a suspect’s consent other items found in and around the front unsteady on his feet at the scene that the task- is difficult to determine. And while obtaining trailer. Thus, the Court concluded, both the force officer directed him to sit on the bumper a warrant no doubt imposes more of a burden warrant search of the back trailer and the of the patrol vehicle while he questioned him. on police officers than simply reading the subsequent warrant search of the front trailer And although Bowman was 20 years old at the implied-consent notice, in those drunk- were lawful and were supported by probable time, the task-force officer made no specific driving investigations where police officers can cause. Accordingly, the trial court erred in inquiries as to his level of education. In addition, reasonably obtain a warrant before a blood granting the Dotson’s motion to suppress. following Bowman’s arrest, the task-force officer sample can be drawn without significantly read him Georgia’s implied consent notice for undermining the efficacy of the search, the DUI; Williams drivers under the age of 21, but did not inform Fourth Amendment mandates that they do so. State v. Bowman, A16A0555 (6/7/16) Bowman of his constitutional rights under Miranda v. Arizona. Furthermore, the Court Jurors; Right to Fair Trial Bowman was charged with DUI (per found, while the task-force officer testified that Wilhite v. State, A16A0216 (6/8/16) se) and DUI (less safe). The evidence, briefly Bowman appeared to understand the implied- stated, showed that an officer arrived on the consent notice, his response to most of the Appellant was convicted of aggravated scene of a one-car accident. The car was nearly officer’s questions—which Bowman repeated sodomy, burglary, and terroristic threats. totaled, but Bowman, the driver, appeared to numerous times during the encounter—was He argued that his conviction was invalid only have a small cut on his forehead. The that nothing mattered and he “was going to because one of the jurors at his trial allegedly officer notice signs of intoxication and called jail anyway.” Moreover, both officers agreed had a hearing difficulty, and the trial court a DUI task force officer. Bowman stated that that Bowman was significantly intoxicated should have allowed an evidentiary hearing to he was 20 years old and admitted to having during the encounter, and in fact, the evidence determine whether the juror could follow the consumed several beers. In response to a showed that he made nonsensical comments evidence at trial. He further contended that his request that he perform field sobriety tests, about playing basketball with his brother and trial counsel rendered ineffective assistance by Bowman repeatedly muttered that he was vomited in the back of the patrol vehicle to the failing to litigate the issue of the juror’s hearing. “going to jail anyway.” Bowman failed the extent that he seemed to be choking. Indeed, The record showed that following a HGN and refused to take an alco-sensor test, upon arriving at the jail, Bowman’s condition question by the trial court clerk during voir again stating he was “going to jail anyway.” The was such that the on-site nursing staff would dire, Juror No. 2 stated, “I can’t hear too well” officer read him his implied consent rights, not admit him and directed the task-force and then instructed the prosecutor to “[s]peak and to a request to take a breath test, Bowman officer to take him to a nearby hospital. Thus, a little louder.” Appellant’s attorney followed responded, “F*** it, man, why not?” On the the Court stated, the evidence supports the trial up on the juror’s statement about her hearing way to the jail, Bowman vomited in the police court’s findings and certainly does not demand by asking, “Speaking in this tone of voice, are car. The nurse at the jail refused to admit him a conclusion contrary to the court’s ruling. you able to hear everything fine?” The juror and directed the officer to take Bowman to the Nevertheless, noting its legitimate interest replied, “So far.” Appellant’s counsel raised hospital. Once there, the officer once again in combating the deleterious effects of drunk- no objection to Juror No. 2, and she was read the applicable implied-consent warning, driving, the State argued that the trial court’s empaneled as a juror. At the end of trial, after

7 CaseLaw Update: Week Ending July 29, 2016 31-16 the jury returned its verdict, appellant asked failing to challenge Juror No. 2 or in failing to that the jury be polled. During this process, follow up on the juror’s hearing issues after the Juror No. 2 stated in response to several jury was polled. questions from the trial court clerk that she could not hear what the clerk was asking her. Statutory Right to Speedy Three years after trial, appellant’s post- Trial; Waiver conviction counsel filed a written motion State v. Marshall, A16A0744, A16A0748 (6/8/16) to question Juror No. 2 about her hearing difficulties, and the parties argued the matter The State appealed after the trial court at the hearing on appellant’s motion for new entered orders of discharge and acquittal in the trial. The trial court subsequently denied separate criminal cases of Cloyd Marshall and the motion to question the juror in its order Jessica Lucas on the ground that their statutory denying appellant’s motion for a new trial. rights to a speedy trial had been violated. The The trial court stated that after reviewing the record showed that following their respective transcript, especially the voir dire of Juror No. indictments, Marshall and Lucas, through 2, it was satisfied that “the juror in question the same appointed counsel, filed statutory was qualified and competent to serve.” demands for speedy trial. Both criminal cases The Court found that the record were assigned to the same trial court judge, supported the trial court’s determination. who distributed a case management order at During voir dire, Juror No. 2 was able to Marshall’s preliminary hearing and at Lucas’s answer numerous questions posed by counsel preliminary hearing. The case management and the trial court with no difficulty. Although orders set deadlines for discovery, for the filing she appeared to have some trouble hearing of motions, and a date upon which the trial when the trial court clerk spoke to her, first court would hear motions. The orders also during voir dire and later when the jury was placed the defendants’ cases on a trial calendar polled, these difficulties were not sufficient which was after the deadline for them to be to prompt appellant’s attorney to address the tried in accordance with their speedy trial matter further. demands. After the statutory speedy trial Nevertheless, appellant contended, he deadline had passed, the defendants filed pleas should have been allowed to question Juror in bar seeking the dismissal of their cases. The No. 2 because the issue of the juror’s hearing court granted the defendants’ motions and potentially affected his constitutional right to entered orders of discharge and acquittal. a fair trial. The Court disagreed. The Court The State argued that both Marshall and found that appellant failed to establish a Lucas waived their demands for a speedy trial basis for allowing the questioning of Juror “by failing to voice any objection” to the case No. 2 on constitutional grounds. Juror No. management order, which was distributed 2 informed the Court and counsel during to the parties at their respective preliminary voir dire that she could not “hear well,” and hearings and which set a trial date outside appellant’s attorney followed up at that time the two-term deadline imposed by O.C.G.A. by testing the juror’s hearing and he had the § 17-7-170(b). The Court disagreed. Citing opportunity to object to her service as a juror Thornton v. State, 7 Ga.App. 752, 753-754 if he was concerned about her ability to hear (1910), the Court held that mere silence the evidence. Accordingly, appellant had both and failure to object to the case management notice of the juror’s hearing issues and the order was not an affirmative act constituting opportunity to address the issue before trial, waiver of the statutory demand for a speedy which provided the requisite due process. trial. And nothing in the record reflected that Moreover, the Court found, appellant the defendants’ or their attorney’s silence was failed to establish that his trial counsel accompanied by any other conduct that would rendered ineffective assistance. Juror No. 2 indicate consent to the trial date in the case demonstrated an ability to hear and respond management order. Accordingly, the trial court not only to appellant’s counsel’s direct did not err in concluding that Marshall and question about her hearing, but also to his Lucas had not waived their statutory demands other questions and the questions posed by the for a speedy trial and that they therefore were prosecutor. Therefore he failed to show that entitled to an automatic discharge and acquittal his attorney rendered deficient performance in on statutory speedy trial grounds.

8 CaseLaw Update: Week Ending July 29, 2016 31-16