A Recent Georgia Supreme Court Decision on Withdrawing Guilty Pleas

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A Georgia Supreme Court case that was recently decided sheds light on what circumstances would allow a guilty plea to be withdrawn and highlights the importance of hiring an experienced criminal defense lawyer early in the process of defending yourself against serious criminal charges.

In Moody v. State, decided on May 16, 2023, the Georgia Supreme Court explains when and why a defendant may choose to withdraw their guilty plea. In Moody, Jeremy Moody was charged with the rape and murder of a 13-year-old girl and the murder of her friend in Fulton County. The crimes occurred on April 5, 2007, Moody was indicted on April 20, 2007, and the State filed written notice that they were seeking the death penalty on May 1, 2007. Moody’s trial began on April 10, 2013, but Moody pleaded guilty to all charges shortly after trial began. The sentencing phase of Moody’s trial began on April 15 and, before a sentence was pronounced, Moody announced that he wished to withdraw his guilty plea.

In normal cases, according to O.C.G.A. § 17-7-93 (b), a defendant may withdraw their guilty plea at any time up until their sentence is pronounced. But, in cases where the State is seeking the death penalty, a defendant may only withdraw their guilty plea “to prevent a manifest injustice.” Browner v. State, 257 Ga. 321 (1987). In this case, Moody argues that his plea was not knowingly and voluntarily entered and that this creates a manifest injustice. The Court found that Moody was 35 years old, had completed his G.E.D., and was not under the influence at the time of his plea. Moody also told the judge that he understood what the plea meant and that he had sufficient time to discuss the plea with his lawyer. The Court found that Moody was not coerced into pleading guilty and that he was not doing so for any reason other than because it was what he wanted to do.

This case highlights why it is important to be represented by an experienced criminal defense lawyer. Although you may withdraw a guilty plea at any time before the sentence is pronounced in cases in which the State is not seeking the death penalty, it is very difficult to withdraw a plea after you have been sentenced by the court. The lawyers at W. Scott Smith are experienced in pre-trial negotiations and will work alongside you to determine if a plea bargain is in your best interest. If you desire a trial, the lawyers at W. Scott Smith will guarantee that you get your day in court. Call our office at 404-581-0999 today for a free consultation.

Rape- Cobb County

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Rape is a serious crime in Georgia. O.C.G.A. § 16-6-1 defines rape as follows:

  1. A person commits the offense of rape when he has carnal knowledge of:
    1. A female forcibly and against her will or:
    2. A female who is less than ten years of age.

Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.  Any penetration, however slight, is sufficient and can be proven by direct or circumstantial evidence. The fact that the person allegedly raped is the wife of the defendant shall not be a defense to a charge of rape.

How do you define “force” in a rape case in Georgia? Force means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation. Lack of resistance, induced by fear, is force.

The elements of Rape in Georgia are 1) penetration, 2) force, and 3) against her will. If the person is underage, then force is implied. If the person is above the age of consent, but due to mental incompetence or severe intoxication, then finding of constructive force based on penetration.

The law on Rape in Georgia does not require physical injury or semen.

A person convicted of Rape can be punished by death, by imprisonment for life without parole, by imprisonment for life with the possibility of parole or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment to be followed by probation for life. Any person convicted of rape is subject to the sentencing provisions of O.C.G.A. §§ 17-10-6.1 and 17-10-7.

In addition, the person could be on the Sex Offender Registry for life.

A person convicted of rape can also be held to account for civil liability. Furthermore, if the rape was committed by the defendant while he was acting in his scope of his employment, his employer may also be held liable.

If you face charges in Georgia for Rape, it is imperative that you do not make any statements to law enforcement or to anyone else and immediately seek help from an experienced attorney handling Rape cases in Georgia. You must protect your rights and take this matter very seriously.

The statute of limitation for a prosecution of rape is 15 years.

Here is what you should do if arrested for rape in Cobb County.

  1. Hire an attorney – Make sure that attorney actually handles and tries rape cases. Most criminal defense attorneys do not handle rape cases. Make sure the attorney you talk to does regularly handles rape cases in Georgia.
  2. Avoid making any statements – Do not walk into the police department and profess your innocence. The police will not believe you. Do not think you can show up at your first court date and tell the prosecutor and judge that you are innocent and expect the charges to be dropped. If you are arrested for rape, you have to start preparing for your jury trial. Do not make any statements to anyone except your lawyer.
  3. Start gathering important evidence
    1. Gather and preserve any physical evidence in your possession that might relate to the child making the accusation. This includes clothing, photos, video or any other tangible object.
    2. Gather and preserve any documents that might relate to this accusation including emails, texts, social media, phone records, GPS records, computer records or any other document that might show where you were when this incident allegedly occurred.
    3. Witnesses – Immediately make a list of any person who you think might have information about this rape accusation. Do not discuss the case with this person but pass this list of potential witnesses to your attorney and let your attorney contact them.

Here is what you should never do if arrested for rape in  Cobb County.

  1. Never talk to the alleged victim or the family.
  2. Never have any contact with the alleged victim through a 3rd party or through social media.
  3. Never talk to law enforcement without an attorney present.
  4. Never talk to a child welfare agency or any other governmental agency without an attorney present.

 

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.

Affray Law – DeKalb Lawyer

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Fighting by two or more people in a public place to the disturbance of the public tranquility is a misdemeanor offense in Georgia known as affray. All misdemeanor offenses carry a maximum penalty of 12 months in jail and/or a fine of $1,000.

Affray requires an intent to fight, so it is a highly defensible case if you simplt were a victim of the fight and had no intent to engage in the fight. The State must prove you were a willing participant. With that being said, self-defense is defense that can be explored and used in Affray cases. Even if you did engage in the fighting, but you did so in self-defense, this would be a full legal defense to the charge of Affray. Interestingly, automatic reflexes which including pushing back will also not rise to intent to fight.

Other defenses of Affray include focusing on where the fight occurred. Affray in Georgia requires it to have happened in a public place. Georgia law has held that jails and prisons are not public places for purposes of this statute. Likewise, fights at homes and other private property would not be unlawful under the Affray statute.

Affray, being a finger-printable offense, is one that remains on one’s criminal history forever. Paying a fine or pleading guilty will result in a lifetime criminal conviction. Given the various defenses that come into play wit Affray charges, it is important to consult with a skilled criminal defense lawyer who can advocate for you. Call us today for a FREE CONSULTATION at 404-581-0999 if you or a loved one has been charged with Affray in DeKalb County or anywhere in Georgia.

Aggravated Stalking in Fulton County, Georgia

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Aggravated Stalking in Fulton County, Georgia

By: Attorney Erin Dohnalek

In Georgia, aggravated stalking is charged as a felony. It is set out in O.C.G.A. § 16-5-91. This statute states that an individual commits aggravated stalking when:

  • He/she violates a “no contact” or “stay away” provision of their bond;
  • He/she violates a temporary restraining order, temporary protective order, permanent protective order, preliminary injunction, or permanent injunction ordering them to have no contact with the alleged victim;
  • He/she violates a “no contact” or “stay away” condition of their pretrial release, condition of probation, or condition of parole; and
  • The individual follows, places under surveillance, or contacts the alleged victim without his/her consent for the purpose of harassing and intimidating.

In Georgia, there is no requirement that the accused has to have actual notice of the “no contact” provision as a condition of bond, pretrial release, probation/ parole, or from a temporary protective order. The contact alone is enough, even if the accused was not aware of the “no contact” order. See Revere v. State, 277 Ga. App. 393 (2006). “Contact” can also be established by phone, email, or mail. It does not need to be in-person contact in order to be sufficient to convict for aggravated stalking. See Murden v. State, 258 Ga. App. 585 (2002).

Additionally, even if the alleged victim allowed contact, or initiated contact, after the “no contact” provision was ordered, that does not mean that an accused can no longer be prosecuted for aggravated stalking. An accused can be prosecuted if the alleged victim changes his/her mind, and decides that they no longer want contact with the accused, if at the time of the contact there is a “no contact” provision in place. See Revere v. State, 277 Ga. App. 393 (2006).

Finally, a single incident of stalking is not sufficient to convict an accused of aggravated stalking. There must be a pattern of harassing and intimidating conduct, and generally a single incident alone is not enough. See State v. Burke, 287 Ga. 377 (2010).

Sentencing:

Any individual convicted of this crime in Fulton County will be sentenced to 1-10 years in prison, and fined up to $10,000. However, the reduced charge of aggravated stalking is characterized as a “violation of a criminal protective order.” This charge is a misdemeanor and the sentencing is much less punitive. An experienced criminal defense attorney may be able to negotiate sentencing to fall under the misdemeanor statute.

Contact Us

Due to the severity of the punishment for aggravated stalking, it is of vital importance to speak with an experienced criminal defense attorney about your case. At the Law Offices of W. Scott Smith, our lawyers are trained to know every aspect of this crime, we understand the defenses to the charge, we take pride in advocating for our clients’ constitutional rights, and we detail all options for our clients when defending their case. If you or a loved one has been charged with aggravated stalking in Fulton County, please call our office today at 404-581-0999 for a free consultation.

Using the Alibi Defense in Georgia

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An alibi is a defense to criminal charges in Georgia where the defendant says that they weren’t at the scene when the crime occurred.

According to Georgia law, as codified in O.C.G.A. § 16-3-40, an alibi defense involves the impossibility that the person accused of a crime was at the scene of the offense when it was committed. The evidence presented must reasonably exclude the possibility that the defendant was present. IN other words, an alibi is evidence that the defendant was somewhere else when the crime was committed. The defendant doesn’t only have to show that he was somewhere else when the crime was committed but that it was reasonably impossible that he was at the scene of the crime.

For example, if you are charged with murder in Dekalb County, but you are on surveillance video over an hour away in Cherokee County at the time of the murder, you have a valid alibi defense. Additional evidence, such as receipts from establishments in Cherokee County, or people to testify that you were with them in Cherokee County at the time of the murder will strengthen your alibi defense and create the reasonable impossibility that you were at the scene of the murder as required by Georgia law. It is important to hire an experienced attorney right away to help you gather and preserve the evidence you need for this defense.

In Georgia, defendants are required to provide prosecutors notice of their intention to present an alibi defense. However, this notice has several restrictions, as spelled out in O.C.G.A. § 17-16-5. First, the prosecutor must ask for the notice within 10 days of arraignment (or at such time as the court permits). Then, the defendant must provide written notice to the prosecutor within 10 days of the prosecutor’s demand or 10 days before trial, whichever is later. Along with the notice, the defendant must also provide the specific place where they claim to have been during the commission of the crime, and the identity of the witnesses the defendant will present to establish the alibi. In return, the prosecutor must provide the identity of witnesses they will use to rebut the alibi within 5 days of the defendant’s notice or 5 days before trial.

As you can see, the rules surrounding an alibi defense are complex. It is extremely important to have an experienced attorney by your side to help navigate the rules and preserve your right to present an alibi defense. The attorneys at W. Scott Smith possess a wealth of experience defending serious crimes like rape, murder, armed robbery, and aggravated assault, all of which may be defeated with an alibi defense. If you have been charged with one of these serious crimes in Gwinnett, Cobb, Fulton, Dekalb, Clayton, or Henry County, call our office at 404-581-0999 for a free consultation.

Polygraph Evidence in Georgia

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Polygraph tests can be a powerful tool in criminal defense. The tests are widely accessible, portable, relatively inexpensive, painless, and simple to administer. However, it is important to understand how polygraphs can be used in court before deciding if a polygraph would be helpful to your case.

In Georgia, polygraph results are only admissible if both parties agree before the test is administered that the results can be used in court regardless of what they results show. This rule comes from the Georgia Supreme Court case State v. Chambers, which was decided in 1977.   That means that your attorney and the prosecutor will have to agree to who administers the test, what questions are on the test, when and where the test is given, and that the results will be admissible during your trial before you take the test. If there is no agreement, the test results cannot be used.

However, the State cannot use your refusal to consent to a polygraph test against you. In Brown v. State, a 1985 Georgia Court of Appeals case, the court reiterated that only the results are admissible, not the fact that a defendant refused to take a polygraph. It is also important to note that a defendant does not have to be represented by counsel at the time they agree to have the results of a polygraph test admitted in court.

Finally, the admission of polygraph evidence is governed by the Georgia Rules of Evidence in that the test must be administered in a reliable manner and the person testifying about the results (the polygraph examiner) must be qualified as an expert.

If you are charged with a serious crime, it is important to speak with an experienced criminal defense lawyer before agreeing to take a polygraph test because once you agree, the results will be admitted in your trial regardless of what the results say. The lawyers at W. Scott Smith are experienced in representing clients charged with murder, rape, child molestation, drug offenses, gang crimes and aggravated assault, and know how to leverage polygraph evidence to benefit our clients. If you are facing criminal charges in Gwinnett, Fulton, Cobb, Douglas, Forsyth, Dekalb, Clayton, or Fayette County, call our office at 404-581-0999 today for a free consultation.

Sexual Battery

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A person commits the offense of sexual battery when he intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person.

How does the law define intimate parts? It is defined as the primary genital area, anus, groin, inner thighs, or buttocks of a male or female and the breasts of a female.

The intent to do the act is a question of fact for the jury to decide.

Whether there is a conflict in the evidence of whether the victim voluntarily submitted to the contact, it is for a jury to decide that conflict in testimony.

Sexual battery does not require any sexual contact. It only requires the non-consensual, intentional physical contact with the victims’ intimate body parts.

Prior to 2021, an individual younger than 16 years old was legally incapable of consenting to sexual contact. In the case of Watson v. State, the Supreme Court construed the statute to require actual proof of the victim’s lack of consent, regardless of the victim’s age.

Sexual battery is punished as a misdemeanor of a high and aggravated nature. However, if the victim is under 16 years of age, it is punishable as a felony.

The rule of lenity does not apply between sexual battery and child molestation because child molestation requires additional proof of the defendant seeking to arouse his own sexual desires, which is not required for sexual battery. Furthermore, sexual battery requires proof of physical contact and the victims lack of consent, which are not required for the offense of child molestation.

How Your Lawyer Can Prove That the State’s Witnesses Are Lying

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“Impeach” is simply a fancy term for showing that a witness is less than truthful and telling the jury that the witness’s testimony should not be believed. According to the Georgia Evidence Code (O.C.G.A. § 24-6-607), the credibility of any witness may be attacked by any party, including the party calling the witness. This means that a defendant may impeach, or attack the credibility of, any witness the state calls or that the defense calls.

There are several ways to attack the credibility of witnesses. The first is under O.C.G.A. § 24-6-608 by bringing in evidence through another witness that the witness you wish to impeach is untruthful. This evidence is only allowed in the form of opinion or reputation. Evidence of truthful character is only admissible after the witness’s truthfulness has been attacked. For example, if John testifies for the State in a criminal trial, the defense may call a witness, Sally, and ask Sally about John’s reputation for truthfulness in the community. Sally may testify that John has a reputation for being a liar. The State may not, however, call Tommy to testify that John has a reputation for being truthful until after John’s character for truthfulness has been attacked. If Tommy testifies that John is truthful, the defense attorney may ask Tommy on cross-examination about specific instances in which John lied (like “are you aware that John lied about his credentials on his job application?”).

Next, a witness may be impeached by evidence of a conviction of a crime under O.C.G.A. § 24-6-609. Evidence that a witness has been convicted of any felony is admissible. If the witness has been convicted of a crime that involves an act of dishonesty or making a false statement, it is admissible regardless of whether it was a felony or a misdemeanor. Witness convictions are only admissible for 10 years from the date of conviction or the release of the witness from confinement, whichever is later. However, if the judge finds that evidence of these convictions is more probative than prejudicial, the conviction may still be admissible outside of that 10-year time limit. In this case, the party that wants to use the conviction must provide the other party notice. Georgia does not allow convictions that were later discharged because of a first offender program to be used against a witness. Additionally, a witness that has plead “nolo” to a crime cannot have that conviction used to impeach them. Witnesses who were convicted as juveniles cannot generally be impeached with their juvenile conviction unless a judge decides that that juvenile offense would be admissible to attack the credibility of an adult.

If you a charged with a serious crime, it is important to think carefully about witnesses you call in your defense, as well as any untruthful character you may know about witnesses the state will call to testify against you. For example, it might not be beneficial to call witnesses in your defense that the State can impeach. Additionally, it is important to work with your lawyer to uncover any bad facts about the State’s witnesses that can be used to impeach them. By working with the experienced lawyers at W. Scott Smith, you can create the most effective strategy to defend your case and attack the State’s witnesses. If you have been charged with a crime in the metro Atlanta area, call our office today at 404-581-0999 for a free consultation.

Felony Murder

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If an individual dies during the commission of a dangerous felony the aggressor can be charged with felony murder even if there was no intent to cause a death. For example, if person X fights person V with no intention of ending V’s life but V ends up dying from his injuries. X will likely be charged with aggravated battery for the beating and felony murder based on the aggravated battery because V died from the injuries he sustained during the felony of aggravated battery by X.

If you or a loved one has been charged with felony murder it is important to reach out to a qualified criminal defense attorney as soon as possible. The penalty for felony murder is the SAME as a murder committed with the intent to kill. It carries a mandatory sentence of life in prison, with or without parole. In Georgia, 30 years of the life sentence must be served before you are eligible for parole. Give us a call at 404-581-0999 for a free consultation.

Sodomy in Fulton County

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Sodomy is a serious crime in Fulton County.  O.C.G.A. § 16-6-2 established two separate criminal offenses. O.C.G.A.  §16-6-2(a)(1) defines sodomy as the performance of or submission to a sexual act involving the sex organs of one person and the mouth or anus of another. O.C.G.A. § 16-6-2(a)(2) defines aggravated sodomy  as the commission of sodomy with force and against the will of the other person involved or with a person who is less than ten years of age.

The offense of aggravated sodomy protects individuals from violent acts where the offense of sodomy punishes consensual sexual behavior.

For sodomy, all that is required is contact between the sex organs of one person and the mouth or anus of another person. Proof of penetration is not required in a sodomy case unless is specifically listed in the indictment. Whether there was prohibited contact between the defendant and alleged victim is solely a question for a jury.

No corroboration is required in a sodomy case.

Aggravated Sodomy is different than Sodomy. In order to make out a case for Aggravated Sodomy, the State must show that the contact was made both with force and against the will or without the consent of the alleged victim. The standard of proof is the same as required for a rape case. Both the words and actions of the accused can be used to determine if the alleged victim was in reasonable apprehension of bodily harm.

O.C.G.A. § 16-6-15 prohibits the solicitation of sodomy. Solicitation of sodomy is defined as soliciting another individual to perform to a sexual act involving the sex organs of one and the mouth or anus of another and such act is to be performed in public in exchange for money or anything of value or by force or by or with an individual who is incapable of giving legal consent to sexual activity. In order to be convicted of solicitation of sodomy, the State must be present sufficient evidence of all three elements of the crime.

If you are convicted of sodomy, it is a felony punishable by not less than one nor more than twenty years in prison and is subject to the sentencing provisions of § 17-10-6.2 which requires the sexual offender to receive a split sentence including the minimum sentence of imprisonment.

Aggravated Sodomy is also a felony and is punishable by either life imprisonment or by a split sentence of imprisonment for not less than 25 years and probation for life.

Solicitation of sodomy is a misdemeanor. However if the solicitation is of someone under 18 years of age or the solicitation is for money then it is felony punishable of not less than 5 nor more than 20 years in prison.

If the victim is at least 13 years old but less than 16 years of age and the person convicted of sodomy is 18 years of age or younger and is no more than 4 years older than the victim, then the accused would be guilty of a misdemeanor and would not be subject to the sentencing provision of O.C.G.A. §17-10-6.2.

If you are arrested in Fulton County for sodomy or aggravated sodomy, you will be in the Fulton County jail at 901 Rice Street. You will be on the first appearance calendar the next morning at the Fulton County jail at 11:30am. After that date, you will be a preliminary hearing in Fulton County Magistrate Court.

Once your case is indicted, it will be transferred to Fulton County Superior Court for trial.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.