The Court of Appeals agreed with Dominguez that the search was unlawful because the State failed to show that the deputies were still investigating the failure to properly signal a right turn at the time they called for the canine unit.There was no evidence that the deputies were waiting on information on the validity of the driver’s license, insurance or registration.Further, there was no evidence that the deputies were writing a citation or even thinking about whether to write a citation or issue a warning.Therefore, the search was unlawful.The Court of Appeals noted that Dominquez’s nervousness alone was not sufficient to justify a detention beyond the initial traffic stop.

My suggestion, if you are ever in this situation where a warrant has been issued, immediately rescind your refusal. Make sure you are loud enough to where other jail administrators hear you. Do your best to get the names of the witnesses who hear you rescind your refusal.

Shirley Ogilvie appealed her convictions of vehicular homicide in the second degree (OCGA § 40-6-393(c)) and failing to stop for a pedestrian in a crosswalk (OCGA § 40-6-91(a)). Shirley argued the trial court erred by declining to give Ogilvie’s requested charge on accident.

The trial court failed to explain to the jury the defense of accident. OCGA § 16-2-2 provides: “[a] person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.” The Georgia Supreme Court has held ” ‘Accident’ is an affirmative defense whereby it must be established a defendant acted without criminal intent, was not engaged in a criminal scheme, and was not criminally negligent, i.e., did not act in a manner showing an utter disregard for the safety of others who might reasonably be expected to be injured thereby.

A charge on accident is not warranted based on a factual defense showing that no crime was committed. For example, if a defendant asserts that he did not run a red light because the light was green at the time he passed through an intersection, a charge on accident is not warranted. The defendant in such a case is not asserting that he ran a red light as a result of misfortune or accident, but that he did not run a red light and therefore committed no crime.

In this case, however, Ogilvie admitted under oath that she failed to yield to a pedestrian in a crosswalk. She never claimed that the pedestrian was not in the crosswalk when she struck him or that her car was already in the crosswalk when she first saw him. The trial court therefore erred by refusing to give the requested charge on accident, and Ogilvie’s convictions were reversed.

Following trial, Reginald Boykins was convicted of possession of cocaine and sentenced to four years imprisonment. He appealed his conviction and the denial of his motion to suppress drug evidence seized from his vehicle to the Court of Appeals, arguing that the vehicle search violated his Fourth Amendment rights under the United States Constitution.

Officer Morales of the DeKalb County Police Department saw Mr. Boykins pull his vehicle up and talk to a woman walking in a high crime area. Reginald quickly drove off when Morales turned the patrol car around. Suspecting prostitution, Morales approached Reginald. Reginald said his identification was in his apartment, but he gave Morales his name and birth date. After discovering Reginald had an outstanding probation arrest warrant, Morales asked Reginald to get out of the car, put him in handcuffs and placed him in the custody of a second officer. Morales then searched Reginald’s vehicle, finding cocaine in the center console.

Morales stated he searched the “wing span within [Reginald's] vehicle” where he discovered the illegal drugs. Pursuant to Arizona v. Gant, where the State does not show the person arrested still has some way to access to the center console of a vehicle, the police cannot search the vehicle. Thewre are other exceptions which may permit search of a vehicle, but those were not present here. The search was illegal.

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.

The court held it is a balancing test. The question whether a confession is the product of a free will be answered on the facts of each case. The court held:

No single fact is dispositive. The workings of the human mind are too complex, and the possibilities of misconduct too diverse, to permit protection of the Fourth Amendment to turn on such a talismanic test. The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct are all relevant. The voluntariness of the statement is a threshold requirement. And the burden of showing admissibility rests, of course, on the prosecution

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

The jury charge and the response to the question led the jury to believe that they could convict him of child molestation based on a conversation alone, without concluding that he placed his penis in her vagina as alleged in the indictment.  As such, the court should have instructed the jury: no, sexual conversation alone constitute an indecent act because that is not what the State alleged.

It is so important to make sure the indictment is perfect in form and substance.  The State must prove all the elements beyond a reasonable doubt.  The judge, for his role, must properly instruct the jury to narrowly focus their deliberations on the elements of the indictment.