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Caselaw Update: Week Ending April 24, 2015 17-15 Possibility of Parole.” the Trial Court Denied Prolongation, Even a Short One, Is Unreasonable, Felony Murder

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Caselaw Update: Week Ending April 24, 2015 17-15 Possibility of Parole.” the Trial Court Denied Prolongation, Even a Short One, Is Unreasonable, Felony Murder Prosecuting Attorneys’ Council of Georgia UPDATE WEEK ENDING APRIL 24, 2015 State Prosecution Support Staff THIS WEEK: • Financial Transaction Card Fraud the car wash transaction was not introduced Charles A. Spahos Executive Director • Void Sentences; Aggravating into evidence at trial. The investigating officer Circumstances testified the card used there was the “card that Todd Ashley • Search & Seizure; Prolonged Stop was reported stolen,” but the evidence showed Deputy Director that the victim had several credit cards stolen • Sentencing; Mutual Combat from her wallet, and the officer could not recall Chuck Olson General Counsel the name of the card used at the car wash, which he said was written in a case file he Lalaine Briones had left at his office. Accordingly, appellant’s State Prosecution Support Director Financial Transaction Card conviction for financial transaction card fraud Fraud as alleged in Count 2 of the indictment was Sharla Jackson Streeter v. State, A14A1981 (3/19/15) reversed. Domestic Violence, Sexual Assault, and Crimes Against Children Resource Prosecutor Appellant was convicted of burglary, two Void Sentences; Aggravat- counts of financial transaction card fraud, ing Circumstances Todd Hayes three counts of financial transaction card theft, Cordova v. State, S15A0110 (4/20/15) Sr. Traffic Safety Resource Prosecutor and one count of attempt to commit financial Appellant appealed from the denial of his Joseph L. Stone transaction card fraud. The evidence showed Traffic Safety Resource Prosecutor that she entered a corporate office building, motion to vacate void sentences. The record went into the victim’s office and stole a wallet showed that in 1997, he was indicted for malice Gary Bergman from the victim’s purse. Appellant then used murder, armed robbery and kidnapping with State Prosecutor the credit cards in the stolen wallet to purchase bodily injury. The State filed a notice of intent goods and services. to seek the death penalty. In May of 1999, Leah Hightower State Prosecutor Appellant contended that the evidence appellant entered negotiated pleas of guilty was insufficient to convict her of Count to all three charges and was sentenced to life Kenneth Hutcherson 2 of the indictment charging her with in prison without the possibility of parole for State Prosecutor financial transaction card fraud based on her malice murder, a consecutive term of life in unauthorized use of the victim’s BB&T card prison without the possibility of parole for Nedal S. Shawkat to purchase a car wash. The Court agreed. the armed robbery, and a third term of life State Prosecutor Although the video recording showing in prison without the possibility of parole for the kidnapping, the sentence to be served Robert W. Smith, Jr. appellant using some type of financial State Prosecutor transaction card to purchase the car wash was concurrently with the sentence for malice introduced and played for the jury at trial, murder. In 2014, appellant filed a “motion Austin Waldo and the victim testified that appellant did not to vacate void sentence,” contending that his State Prosecutor have her permission to use her BB&T card sentences were void “as a result of the trial at the car wash, no evidence was presented court’s failure to make a contemporaneous showing that the victim’s BB&T card was the specification, beyond a reasonable doubt, the card appellant actually used to pay for the car statutory aggravating circumstance required wash transaction. The name of the card was by O.C.G.A. § 17-10-32.1(b) authorizing not visible on the recording and a receipt for imposition of a life sentence without 1 CaseLaw Update: Week Ending April 24, 2015 17-15 possibility of parole.” The trial court denied prolongation, even a short one, is unreasonable, felony murder. The Court disagreed. When the motion, but the Supreme Court reversed. unless, of course, good cause has appeared in the jury returns guilty verdicts on both The Court stated that it was clear the meantime to justify a continuation of the felony murder and malice murder charges in that under former O.C.G.A. § 17-10- detention to pursue a different investigation. connection with the death of one person, it is 32.1(b), a defendant who pleads guilty in a In other cases, the detention is not prolonged the felony murder conviction, not the malice death penalty case could not be sentenced beyond the conclusion of the investigation murder conviction that is “simply surplusage” to life without parole unless the judge that originally warranted the detention, but and stands vacated by operation of law. But, contemporaneously made a specific finding it is claimed that the investigation took too since appellant’s sentence of life imprisonment of a statutory aggravating circumstance long, perhaps because the officer spent too was appropriate for both felony murder and beyond a reasonable doubt. Here, the Court much time inquiring about matters unrelated malice murder, appellant suffered no harm found, this did not happen; the plea court to the investigation. In these cases, the courts from the trial court’s action in vacating the did not specify an aggravating circumstance examine whether the police diligently pursued malice murder conviction and retaining the at the time of sentencing, so the statutory a means of investigation that was likely to felony murder conviction. requirement was not met. Consequently, confirm or dispel their suspicions quickly, Appellant also argued that the trial court appellant’s imposed sentences of life without during which time it was necessary to detain erred by denying his request to charge the the possibility of parole were void and must the defendant. jury regarding the law of mutual combat as a be vacated. Accordingly, the Court remanded Here, the Court found, the facts presented basis for finding he committed only voluntary the case to the trial court with the directions the second sort of claim. The Court noted manslaughter. But, the Court noted, that his sentences of life in prison without that less than 13 minutes elapsed between the appellant’s own testimony was that he did not the possibility of parole be vacated and that start of the traffic stop and appellant’s arrest. want to fight the victim. So, even if there was appellant be resentenced according to the The video recording of the stop reflected the evidence that the victim wanted to fight, there applicable law at the time of his plea. officer actively engaging in tasks related to the was no evidence that appellant wanted to fight purpose of the stop during those 13 minutes. also. As such, the evidence did not warrant Search & Seizure; Prolonged As he talked with appellant, the officer such instructions since appellant testified Stop obtained appellant’s driver’s license from he acted in self-defense in the fight and did Griffith v. State, A14A2181 (3/19/15) him, tested the tint of appellant’s windows, not intend to kill the victim. Moreover, the discussed the window tint violation with unlawful killing of one who has given the Appellant was charged with VGCSA. him, and wrote a warning for that violation. slayer no provocation other than the use of After the trial court denied his motion Moreover, the officer initiated the check of words, threats, menaces, or contemptuous to suppress, the Court granted him an appellant’s tag at the very beginning of the gestures, cannot, in this State, be graded to interlocutory appeal. The evidence showed stop and determined that the check would be voluntary manslaughter, under the doctrine that appellant was stopped for a window tint needed to verify appellant’s insurance. While of mutual combat. Under either of these violation. The officer immediately radioed a delay in the response time to a check would precepts, the trial court did not err by refusing dispatch to check appellant’s out-of-state tag. not justify appellant’s detention indefinitely, to charge the jury regarding mutual combat. After the officer finished writing the warning, the police are not constitutionally required to but before he had received the results of the move at top speed or as fast as possible. At a tag check from dispatch, the officer made a traffic stop, the police can occasionally pause comment to appellant about the prevalence for a moment to take a breath, to think about of crime on that stretch of highway and then what they have seen and heard, and to ask a asked appellant if he had anything illegal in question or so. Under the circumstances, the his vehicle. Appellant admitted that he had Court determined, it agreed with the trial a meth pipe and methamphetamine in the court that the detention was not unreasonably vehicle, and the officer arrested him. A search prolonged beyond the time required to fulfill of the vehicle revealed methamphetamine. the purpose of the traffic stop. Accordingly, Appellant did not dispute the validity the motion to suppress was properly denied. of the stop, but argued that the officer unreasonably prolonged it. The Court stated Sentencing; Mutual Combat that an investigatory stop of a vehicle cannot Tepanca v. State, S15A0045 (4/20/15) be unreasonably prolonged beyond the time required to fulfill the purpose of the stop. Appellant was convicted of malice Such claims are of two sorts. In some cases, a murder, felony murder, aggravated assault, detention is prolonged beyond the conclusion and possession of a firearm during the of the investigation that warranted the commission of a felony. Appellant argued that detention in the first place, and in those cases, the trial court erred in merging his conviction the courts generally have concluded that such a for malice murder into his conviction for 2 CaseLaw Update: Week Ending April 24, 2015 17-15.
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