Prosecuting Attorneys’ Council of Georgia

UPDATE WEEK ENDING JANUARY 18, 2013

State Prosecution Support Staff THIS WEEK: silver vehicle occupied by several males was driven through the store’s parking lot; it was Charles A. Spahos driven very slowly, circled the parking lot, Executive Director • Firearms Offense then parked; after the robbery, the vehicle • DUI; Implied Consent Rights Chuck Olson left. Responding to a 911 call, police officers General Counsel • Forfeiture arrived at the store and, during their investi- gation, found on the ground outside the store Joe Burford a pack of Newport cigarettes. A crime lab State Prosecution Support Director analysis revealed Larry Garard’s fingerprints on the cigarette pack. Officers initiated a traf- Laura Murphree Firearms Offense Capital Litigation Director Barnes v. State, A12A1846 (1/7/2013) fic stop of a silver passenger vehicle registered to Tahje Williams; Garard was the driver. Gary Bergman Appellant was convicted of one count of Appellant, Garard, Williams and three other State Prosecutor armed robbery, one count of aggravated as- individuals were in the vehicle. Officers found sault, and two counts of possession of a firearm a shotgun in the trunk. Garard and Williams Clara Bucci State Prosecutor during the commission of a felony. Appellant were arrested, after which they gave the police contended that (1) the evidence was insufficient statements implicating appellant in connection Fay Eshleman to support the convictions because it consisted with the robbery. The State called both men State Prosecutor solely of the testimony of his alleged accom- as witnesses at appellant’s trial. They testified plices, and (2) the court erred in imposing two that they traveled in to the gas station; appel- Al Martinez sentences on the firearm possession charges lant, Garard and Williams entered the store State Prosecutor when there was only one victim in the charged and that appellant and Garard had the guns. Todd Hayes incident. The Court affirmed the conviction for Garard testified that the shotgun the officers Traffic Safety Resource Prosecutor armed robbery and one of the convictions for later found in Williams’s vehicle was the gun possession of a firearm during the commission he had used in the robbery. of a felony, but vacated the remaining firearm The Court found that a defendant may possession conviction and remanded the case not be convicted on the uncorroborated testi- for resentencing. mony of an accomplice; however, only slight The Court noted that appellant contended evidence of a defendant’s identity and partici- that the evidence was insufficient to support pation from an extraneous source is required the convictions because the State relied solely to corroborate the accomplice’s testimony and on the testimony of his alleged accomplices. support the verdict. If the testimony of one The evidence showed that three masked men, accomplice is supported by the testimony of two of whom had guns, entered a BP gas sta- another accomplice, the evidence is sufficient tion. One of the men pointed a gun at the to sustain a conviction. Here, Garard and cashier and demanded money; the cashier Williams corroborated one another’s testimony described the guns as having long barrels, and in several respects. Further, the testimony of opined that the guns were probably shotguns. both accomplices was corroborated by other The men grabbed money from the register and evidence, such as appellant’s testimony that several packs of cigarettes, and ran out of the Garard, Williams and Blackford were at his store. Seconds before the robbery occurred, a house the night of the robbery. Thus, a jury

1 CaseLaw Update: Week Ending January 18, 2013 No. 3-13 could have found sufficient corroboration to the last sentence of the applicable implied trial, appellant was represented by counsel, of the accomplice testimony to support ap- consent notice, as set out in O.C.G.A. § 40- although appellant was not present. Thereafter, pellant’s convictions for armed robbery and 5-67.1(b)(2). That sentence states: “Will you the court found that all property claimed by firearm possession. submit to the state administered chemical appellant was declared to be contraband and Appellant was charged with, convicted tests of your (designate which tests) under the was forfeited to the State. of, and sentenced on two counts of posses- implied consent law?” Appellant contended Appellant, who appealed pro se, first sion of a firearm during the commission of a that by asking him if he would consent to a contended that the trial court erred by pro- felony. Each of the firearm possession counts test of his “blood, breath, urine or other bodily ceeding with the hearing, asserting that “[his in the indictment referred to one of the two substances,” the officer failed to designate a criminal case] is still pending and there has firearms possessed during the commission specific test or tests, as required by O.C.G.A. not been a conviction in this matter.” Appel- of the robbery of the cashier. However, the § 40-5-67.1(b)(2). The Court disagreed. The lant stated: “I argue that by § 62C.01 criminal State conceded that appellant could not be Court noted that an officer may advise a per- forfeiture—criminal forfeiture, (1) occurs only convicted and sentenced for two firearm pos- son of his implied consent rights and request after a conviction, (2) after the defendant is session counts when there was only one victim. multiple tests at one time; and the requesting convicted, he or she may also lose his or her The Court found that the facts showed that officer is authorized to decide which test or interest in the property.” The Court found ap- appellant can be convicted and sentenced tests shall be administered. “The determina- pellant’s assertion lacked evidentiary support only once for possession of a firearm during tive issue with the implied consent notice is and discerned no merit in his legal argument. the commission of a felony. Therefore, the whether the notice given was substantively The Court noted that the record before them, Court vacated the conviction on one of the accurate so as to permit the driver to make an though scant, confirmed that the action was two firearm possession counts. informed decision about whether to consent to pursued by the State, then considered and testing.” The Court stated that by including all ruled upon by the court, as an in rem civil of the statutorily-enumerated tests, the officer forfeiture proceeding under O.C.G.A. § 16- DUI; Implied Consent Rights “did not change the meaning of the notice, 13-49. Such proceedings do not require that Nagata v. State, A12A1957 (1/7/13) which begins by advising the defendant that a conviction against the property owner be ‘Georgia law requires you to submit to state proved as an element of civil forfeiture. Appellant was convicted of two counts of administered chemical tests of your blood, Appellant further contended that the trial DUI and of failure to maintain lane. Appellant breath, urine or other bodily substances.’” court erred by conducting the hearing outside claimed that the trial court erred by denying The Court found that the notice given was his presence. He asserted in his brief that “[b]y his motion to exclude results of tests of his sufficiently accurate to permit appellant to no fault of [his], he was not allowed to be pres- breath because the arresting officer failed, in make an informed decision about whether to ent at that hearing”; that he had “express[ed] giving the implied consent notice pursuant to consent to testing. Thus, the Court held, the to his attorney . . . that he indeed wanted to be O.C.G.A. § 40-5-67.1, to designate the specific trial court did not err in denying appellant’s present at the hearing to defend and reclaim state-administered test or tests for which con- motion to exclude the breath test results. his property”; and that his lawyer knew that sent was being requested. The Court found no he was incarcerated in a particular detention merit to appellant’s claim and affirmed. facility, yet his lawyer “failed to have [him] The evidence showed that upon observing Forfeiture transported to the court for the hearing.” Ac- appellant’s vehicle fail to maintain its lane of Orange v. State of Ga., A12A2213 (1/7/13) cording to appellant, the trial court denied him travel, a police officer initiated a traffic stop. “due process of law, which gives him . . . [the During the stop, the officer noticed that appel- In this civil in rem forfeiture case, ap- right] to be present to take the stand in [his] lant was not wearing a seatbelt, a strong odor pellant challenged a judgment declaring two own defense.” However, the Court noted that of alcohol was emanating from his person, and automobiles and a sum of money forfeited appellant failed to cite any evidence supporting that his eyes were red and watery. Appellant to the State of Georgia. The Court found no his underlying factual assertions - here, that his also admitted having had “a couple” of drinks, reversible error and affirmed. testimony was pertinent to whatever strategy the last of which he had about an hour before Pursuant to O.C.G.A. § 16-13-49, the that he and his lawyer were pursuing and that the traffic stop. Based on the officer’s observa- State filed a verified complaint for forfeiture, he had informed his lawyer that he wished to tions, appellant’s admission, and appellant’s alleging that law enforcement seized certain attend the hearing so as to take the stand (and performance on field sobriety tests, appellant property as having been used, or intended for thus be subjected to cross-examination); and was placed under arrest for driving under the use, to facilitate an illegal drug trade operation the Court would not speculate thereon. Given influence of alcohol. The officer then read to or as having been found in close proximity to the foregoing, the Court could not conclude appellant an implied consent notice from a the unlawful drug cocaine. The complaint that appellant, who was represented by counsel card. After the notice was given, appellant pertinently named as defendants in rem two at the civil hearing and whose evidence and consented to a state-administered chemical vehicles and $308 in U. S. currency and named argument were thus presented to and consid- test of his breath. appellant as an owner of these items. Appel- ered by the court in rendering its decision, was Appellant argued that the rights as read lant filed an answer, asserting ownership of nevertheless deprived of due process for reason to him were improper. Specifically, he pointed these items and sought their return. At the of his physical absence from the hearing.

2 CaseLaw Update: Week Ending January 18, 2013 No. 3-13