Atlanta Theft Crimes

NEW CASE just published

Bell v. State, A11A0118 (July 5, 2011).

Following his 2005 conviction for rape, defendant appealed from the denial of his motion for new trial.

During voir dire, the panel member stated that he had heard of a person named James Bell who was accused of a previous sexual assault in another county, and asked if it was the same person because the victim in that assault was his grandmother.

The State responded: “Your grandmother is [name omitted]?” To which the juror responded: “My grandmother is Ardella [name omitted].”

When questioned if he knew James Bell, the juror responded that he did not, but wondered if it was the same person.

The State then responded: “I can’t go into the past. That’s what the judge was getting at and that’s what I’m getting at. We can’t talk about what happened in the past, just talking about today.

The juror was then asked whether his relationship with his grandmother would affect his ability to be fair and impartial, he responded that “I would hope so. I guess I could because I don’t know James Bell. I can’t say that I know him.”

Defense counsel requested to approach and moved for a mistrial.

Although the motion for mistrial was premature – the proper procedural tool for the defense to have used was either a “challenge to the poll” or a motion for a postponement to impanel other jurors who had not heard the remark. However, regardless of the label which defense counsel placed on his motion, his import was clear, i.e., that the prospective jurors had been prejudiced by the remarks and that the appellant was entitled to a new panel from which to choose a jury to hear his case.

The law in Georgia provides “[w]hen a prejudicial matter is improperly placed before the jury, a mistrial is appropriate if it is essential to the preservation of the defendant’s right to a fair trial.”

Due process requires “a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.”

Here, although the prospective juror at issue said he was not sure if the defendant was the same James Bell accused of raping of his grandmother, rather than leave the questioned unanswered, and move on to another juror, the State elicited more information from the juror. Specifically, the State asked if the juror’s grandmother was ” [name omitted]” thereby providing the other prospective jurors with the name of another alleged rape victim in a crime for which Bell was not on trial.

This comment by the state was inherently prejudicial and deprived Bell of his right to begin his trial with a jury free from even a suspicion of prejudgment or fixed opinion.

Because the trial was tainted from the beginning, Bell’s conviction was reversed.

An Office Depot in Fulton County had video and still photographs, clearly showing Fields’s unobstructed face and body from several angles, stealing laptops. Fields’s features, which matched those of the man in the video, were described by the interviewing officer who identified Fields in the courtroom. Two witnesses testified that Fields appeared to be the man in the video, and the State itself urged in closing argument that Fields was the man stealing the laptops in the video.

Thus, the uncontroverted direct evidence that Fields was the original thief, the State’s closing argument that Fields was the original thief, and the fact that “no evidence identified any original thief other than.

Fields was later arrested and charged with, among other things, theft by receiving (one count for each laptop).

Under OCGA § 16-8-7 (a), [a] person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. “Receiving” means acquiring possession or control or lending on the security of the property.

The Georgia Supreme Court has explained this offense as follows: “The offense of theft by receiving is intended to catch the person who buys or receives stolen goods, as distinct from the principal thief. An essential element of the crime of theft by receiving is that the goods had been stolen by some person other than the accused.” The State correctly pointed out that it has no burden to prove that the accused did not steal the goods if the principal thief is unknown, but this does not change the fact that if direct and uncontested evidence identifies the defendant as the original thief, the defendant cannot be convicted of theft by receiving.

FIELDS v. THE STATE, 2011 Ga. App. LEXIS 585, July 1, 2011