Forced Blood Draws

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Georgia State Patrol Night Hawks Division has gone to a new system in Fulton County. If you refuse to take a breath test at the jail on the Intoxilyzer 5000, the trooper will seek a telephonic warrant with a magistrate judge to force you to give the State a sample of your blood. If the judge believes there is enough evidence a driver was driving under the influence to the extent he was less safe, the judge will give the trooper permission to strap you down to a restraint chair and have a jail nurse stick a needle in your arm to draw blood for testing. This is going on right now in Fulton County and the City of Atlanta.

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.

Must charge accident to jury

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OGILVIE v. STATE

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.

Cannot search car post arrest

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BOYKINS v. STATE –

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.

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.

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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.

statements to cops are excluded where the statements stem from an illegal arrest

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In 1975, the Supreme Court of the United States held in Brown v. Illinois, 422 U.S. 590 (95 SC 2254, 45 LE2d 416) (1975), statements derived from an illegal arrest or detention should be suppressed where the statements were not ‘sufficiently an act of free will.’  In Brown, the police broke into the defendant’s apartment, searched it, and then arrested him, all without a warrant or probable cause.  After being taken to a police station and being advised of his Miranda rights, the defendant made incriminating statements. The Court rejected the argument that the defendant’s statements were admissible despite his obviously illegal arrest because advising a defendant in custody of his Miranda rights automatically dissipates the taint of an illegal arrest.

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

The exact language of the indictment or accusation is extremely important as that allegation is what the State must prove

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SMITH v. THE STATE, 2011 Ga. App. LEXIS 590, July 1, 2011, the indictment against Smith alleged committed child molestation by “unlawfully perform[ing] an immoral and indecent act upon the person of [A. S.], a child under the age of sixteen (16) years, by placing his penis in her vagina with intent to arouse and satisfy the sexual desires of said child and said accused. . . .” The trial court gave the jury the following instruction as to the child molestation offense: “[a] person commits the offense of child molestation when that person does an immoral and indecent act to a child less than 16 years of age with the intent to arouse and satisfy the sexual desires of the person and the child.” During deliberations, the jury sent a note to the trial court asking, “Can a sexual conversation alone constitute an indecent act?” and “What is the State’s standard definition of immoral and indecent act?” Following discussion with counsel, the trial court instructed the jurors: “You’ll have to refer to the charge as a whole and the indictment and the evidence.

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.

First post

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In my first post I would like to recognize two of Atlanta’s finest attorneys. It just so happens I work with both of them in my office. Attorney Mike Jacobs is the the epitome of the next generation of great lawyers. Mike Jacobs recently got a murder case dismissed in DeKalb County. It was described by a Atlanta criminal investigator as the fastest dismissal on a murder case in Georgia’s history. The local media interviewed Mike Jacobs and our Client.

Daniel Farnsworth is the other attorney. Attorney Daniel Farnsworth was recently recognized by our colleagues in the State of Georgia as having the criminal Case of the Year; the award is called the COTY award. On his office desk is an incredible trophy recognizing his legal accomplishments. As a young lawyer who has gotten several major cases reduced or dismissed, his abilities in legal research and legal writing of motions and appeals are unheard of for such a young lawyer.