Court of Appeals Victory-Trafficking of Cocaine

On November 26, 2012, attorney Daniel Farnsworth received a final decision on a pending appeal.

The case originated in Henry County.  Client was stopped for allegedly following too closely behind the vehicle in front of her.  After a brief encounter, the officer stated he was going to issue a warning citation and finished writing the citation approximately 5 minutes into the encounter.  The officer then impermissibly extended the scope of the traffic stop by fishing for other alleged criminal activity.  The officer based his “hunch” of other criminal activity based upon nervousness of the client.  The officer was repeatedly denied permission to search the client’s vehicle (SMART MOVE! NEVER GIVE PERMISSION TO SEARCH).  More than 12 minutes into the traffic stop, the officer walked his K9 unit around the vehicle.  The K9 unit “indicated” on the vehicle which was then search.  During the search the officer uncovered over 28 grams of cocaine in the vehicle.

The trial court denied client’s motion to suppress but gave the client a certificate of immediate review.  Client next asked the Georgia Court of Appeals to grant an application for interlocutory review since the case was still pending in Superior Court.  The Court of Appeals granted the application and agreed to look at the case while the case was still on-going.  Normally, the Court of Appeals reviews a case when the case is completed.  Seizing on this rare opportunity, the client’s appeal was filed on March 27, 2012.

Mr. Farnsworth received the final decision from the court and immediately went to the end of the opinion…”Accordingly, because the officer illegally detained [client], the order of the trial court is reversed and the case is remanded with direction to grant [client’s] motion to suppress.”

VICTORY!!!  Case dismissed.

Weems v. State

A12A1353, Georgia Court of Appeals

During jury selection, the prosecutor cannot make remarks which would prejudice the panel. Doing so, requires the panel to be excused under a challenge to the poll.

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.