Georgia Trial Evidence

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It is so very important to put everything into trial of the case.  It is very difficult to win a case on appeal.  The case of Pounds v. State is a good example where the appellate court, here the Supreme Court of Georgia found error but still allowed a conviction to life in prison without parole to stand.

Can a witness testify to what another person told them even if the other person does not testify at trial?  The general rule is no they cannot.  The Supreme Court of Georgia determined it was error for the trial court to allow into trial the statements of an unavailable witness; however, the court found the error was harmless.  The Supreme Court allowed the conviction to stand.

In the Supreme Court of Georgia, decided: November 5, 2024, POUNDS v. THE STATE William C. Pounds III was convicted of malice murder and other crimes related to the shooting death of Kendra Jackson.  ​ He appealed, arguing that the trial court made several evidentiary errors and that his trial counsel was ineffective.

​Background:

    • The crimes occurred on June 12, 2015.
    • ​Pounds was indicted in December 2015 and tried in October 2017. ​
    • He was found guilty and sentenced to life without parole for malice murder. ​
    • The felony murder count was vacated by law, and the aggravated assault count merged with the malice murder count for sentencing. ​
  2. Incident Details:
    • Pounds had relationships with both Jackson and another woman, Vicinda Crawford, for 10 years.​
    • On June 12, 2015, the day Pounds was supposed to marry Crawford, Jackson was found dead in Pounds’s home. ​
    • Pounds claimed Jackson committed suicide, but his accounts of the events were inconsistent.

​Trial Evidence:

    • The State’s expert testified that Jackson did not have the gun in her hand and was not standing when shot.
    • ​Witnesses testified about Jackson’s positive outlook on life and her future plans, contradicting the suicide claim.
    • ​Jackson’s daughter testified about past incidents of violence (one of which was eight years old) by Pounds against Jackson.

​Appeal Arguments:

    • Evidentiary Errors: Pounds claimed the trial court erred in admitting certain hearsay statements and other-acts evidence.
      1. The hearsay statements introduced at trial were made by Kendra Jackson to her coworkers, Laquisha Jordan and Jackie Bush.

Laquisha Jordan: Jordan testified that a few months before Jackson’s death, Jackson told her that she loved life, her kids, and had plans for the future. Jackson also said that if anyone ever claimed she committed suicide, Jordan should not believe it.

Jackie Bush: Bush testified that she reconnected with Jackson in April 2015.  Jackson expressed sadness about missing out on events in Bush’s life and was excited about participating in future events, such as shopping and decorating for Bush’s baby.

​These statements were admitted under the state-of-mind exception to the hearsay rule, but the court assumed, without deciding, that their admission might have been an error.  ​ However, any error was deemed harmless given the strong evidence against Pounds.

​The state of mind exception is a rule under the hearsay exceptions in the law of evidence.  Specifically, it allows for the admission of a statement that reflects the declarant’s then-existing state of mind, emotion, sensation, or physical condition.  This can include statements about the declarant’s intent, plan, motive, design, mental feeling, pain, or bodily health.  The purpose of this exception is to provide insight into the declarant’s state of mind at the time the statement was made, which can be relevant to understanding their actions or intentions.  The state of mind exception is referenced under OCGA § 24-8-803 (3).

    • Ineffective Counsel: Pounds argued his counsel was ineffective for not objecting to a juror who knew Jackson’s stepmother.​
  2. Conclusion:
    • The Supreme Court of Georgia affirmed the conviction, finding no reversible errors in the trial court’s decisions.

If you are looking to do a free consultation with a experienced Georgia criminal defense trial attorney please do not hesitate to contact our law office at 404-581-0999.

Criminal Receipt of Goods and Services Fraudulently Obtained in Forsyth County

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While it’s clearly illegal to fraudulently purchase goods and services with forged and fake financial transaction cards, currency and other financial devices, it is also illegal in Georgia to receive money, goods, services, or anything of value when you know that these goods were fraudulently obtained.

 

What’s the law on criminal receipt?

O.C.G.A. section 16-9-35 reads A person commits the offense of criminally receiving goods and services fraudulently obtained when he receives money, goods, services, or anything else of value obtained in violation of subsection (a) of Code Section 16-9-33 with the knowledge or belief that the same were obtained in violation of subsection (a) of Code Section 16-9-33.

If you are found guilty of the criminal receipt of goods and services fraudulently obtained in Forsyth County you are guilty of a felony and can potentially serve prison time.

As with all fraud and forgery crimes we have discussed so far, knowledge and intent are essential elements of committing this crime. The State must be able to prove beyond a reasonable doubt that you had the required intent to commit the crime, which in this case would be the knowledge that the goods or services were fraudulently obtained before receiving them, or once aware they were fraudulently obtained to return the goods or alert authorities.

 

Call us today!

If you believe you may be under investigation or have already been charged with criminal receipt of goods and services in Forsyth County, please call our office immediately at 404-581-0999

Child Molestation in Douglas County

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Child Molestation is a serious crime in the State of Georgia. If you are arrested in Douglas County  for child molestation, please do not make any statements to the police. It is imperative that you retain a qualified attorney immediately if you are being accused of child molestation. The Douglas County District Attorney’s Office has a unit called the Crimes Against Women and Children Unit and they zealously prosecute these cases and they are very prepared. Many allegations of child molestation are false. Even if you know the allegation of child molestation against you is made up, you still must take it very seriously and aggressively defend yourself.

If you are arrested, you will be on a calendar the next day for First Appearance. At this hearing, the Douglas County Magistrate Judge will read the warrants to you. They then might consider bond depending on the allegations but will likely deny bond in a child molestation. You will then need to file a motion for a formal bond hearing and a preliminary hearing. These hearings take place at the Douglas County jail.  It is crucial to get an attorney retained to be at the First Appearance hearing at the Douglas County courthouse.

O.C.G.A. § 16-6-4 defines child molestation as follows:

A person commits the offense of child molestation when such person: Does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the accused OR by means of electronic device, transmits images of a person engaging in, inducing, or otherwise participating in any immoral or indecent act to a child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.

Child Molestation is a specific intent crime. Whether the accused has the requisite intent when he committed the act of child molestation is up to a jury. The jury can infer the requisite intent of “arousing or satisfying sexual desires” from the commission of the act. However, proof of the accused’s actual arousal is not required. Intent can be inferred from the testimony of the victim or from the actions of the accused.

No penetration is required for child molestation. All that is required is the touching of the child’s body along with the requisite intent. It does not matter whether the child was clothed or unclothed in determining whether the act was immoral or indecent.

The indictment does not have to allege the specific details of the child molestation. It can use general language of the statute.

The punishment for child molestation is a mandatory of 5 years to 20 years in prison. If it a second conviction for child molestation then it can be life in prison or a mandatory 10 years up to 30 years in prison.

If someone is making an allegation of child molestation against you in Douglas County, it is imperative that you do not talk to the police, do not talk to the person who is accusing you of child molestation and call us. Time is of the essence to properly investigate the allegations.

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. Our office is in downtown Atlanta.

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.

Changes to the Mandatory Minimum Sentences for Drug Trafficking Cases in Fulton County

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A recent Georgia Court of Appeals decision, Roundtree v. State (372 Ga. App. 518), now allows a portion of the mandatory minimum sentence for drug trafficking cases to be served on probation.

Historically, cases that involved a conviction under O.C.G.A. § 16-13-31 required that the defendant be sentenced to a mandatory minimum amount of time to be served in confinement. The amount of time depends on the weight of the drugs. In an exciting ruling by the Court of Appeals, the sentencing court may now use their discretion to allow some or all of that mandatory minimum to be served on probation.

By way of example, in the past a person convicted of trafficking 400 grams or more of cocaine would be sentenced to a mandatory minimum of 25 years in prison. Now, a court could allow a portion (or all!) of that 25-year sentence to be served on probation.

As you can see, having a lawyer that can zealously advocate for a probated sentence in a serious case like this could prevent you from serving many years in prison. The lawyers at the office W. Scott Smith are experienced in fighting for our clients. If you face drug trafficking charges in Fulton County, call us today for a free consultation.

Statutory Rape in Cherokee County

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Statutory Rape in Cherokee County is a serious crime in Georgia.

O.C.G.A. § 16-6-3 defines Statutory Rape as engaging in sexual intercourse with any person under the age of 16 years old who is not your  spouse.

Statutory Rape requires corroboration and cannot stand solely on the unsupported testimony of the victim.

In Georgia, it is not a defense to Statutory Rape that the accused believed the victim was of the age of consent.

Many people have the idea that if they have consensual sex, then they did not break the law. That is not true.  Individuals who commit statutory rape in Cherokee County can face serious felony charges. In addition to a prison sentence, a person faces being put on the Sex Offender Registry and has limits on housing and job opportunities and loses their right to vote and own a firearm.

To be convicted of Statutory Rape in Cherokee County, it is not necessary to fully penetrate the vagina or to rupture the hymen. Only slight penetration of the vulva or labia is sufficient. Proof of force is unnecessary for statutory rape.

If you are arrested in Cherokee County for Statutory Rape, you will see a Cherokee Magistrate judge the following day. At this initial court date, the Cherokee Magistrate Judge will read the warrant to you and may consider bond. If bond is not given at first appearance, you will be reset to a preliminary hearing and bond hearing date in front of another Cherokee County Magistrate judge.

The punishment for Statutory Rape is very serious. O.C.G.A. § 16-6-3 mandates that the sentence be from 1 to 20 years in prison. If the defendant is 21 years or older, then the mandatory sentence is 10 years up to 20 years in prison with at least one year on probation. If the victim is at least 14 years old but less than 16 years old and the person convicted is 18 years old and is no more than 4 years older than the victim, then it is a misdemeanor and a maximum of 12 months in custody.

If the defendant is over 21 and convicted of statutory rape, he or she cannot plead under the First Offender Act.

If you face charges in Cherokee County for Statutory 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 Sex Offenses. You must protect your rights and take this matter very seriously.

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.

Changes to the Mandatory Minimum Sentences for Drug Trafficking Cases

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A recent Georgia Court of Appeals decision, Roundtree v. State (372 Ga. App. 518), now allows a portion of the mandatory minimum sentence for drug trafficking cases to be served on probation.

Historically, cases that involved a conviction under O.C.G.A. § 16-13-31 required that the defendant be sentenced to a mandatory minimum amount of time to be served in confinement. The amount of time depends on the weight of the drugs. In an exciting ruling by the Court of Appeals, the sentencing court may now use their discretion to allow some or all of that mandatory minimum to be served on probation.

By way of example, in the past a person convicted of trafficking 400 grams or more of cocaine would be sentenced to a mandatory minimum of 25 years in prison. Now, a court could allow a portion (or all!) of that 25-year sentence to be served on probation.

As you can see, having a lawyer that can zealously advocate for a probated sentence in a serious case like this could prevent you from serving many years in prison. The lawyers at the office W. Scott Smith are experienced in fighting for our clients. If you face drug trafficking charges, call us today for a free consultation.

Rape in Fulton County

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

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 Fulton 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.
    • 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.
    • 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.
    • 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  Fulton 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.

Defenses to Trafficking Marijuana in Forsyth County

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Being charged with trafficking marijuana in Forsyth County is a serious charge. In Georgia, if you are found guilty of trafficking 10-2,000 pounds of marijuana, you will be sentenced to a mandatory minimum of 5 years in prison and a fine of $100,00.00.

The State often has strong evidence in a marijuana trafficking case, often because the accused is arrested with the marijuana in their possession. However, an experienced defense attorney can evaluate your case for defenses. The most successful defenses are often proving to the court that your constitutional rights were violated in some way during the search or seizure that led to the discovery of the marijuana.

For example, a police officer must have some sort of reasonable suspicion that a suspect is engaged in, or has previously engaged in, criminal activity to initiate a temporary detention to investigate a crime. Then, to arrest and search a vehicle, an officer must have probable cause that a crime has occurred. If the state cannot prove that the officer had the required level of suspicion to temporarily or permanently detain you, the evidence they obtained must be suppressed and cannot be used against you.

If you have been accused of trafficking marijuana, it is important to hire an experienced criminal defense attorney that will review your case and search for all possible defenses. The lawyers at the Law Office of Scott Smith handle marijuana trafficking cases regularly and will work hard to protect your constitutional rights. Call us today at 404-581-0999 for a free consultation.

 

Supreme Court of Georgia Clarifies Admissibility of Prior False Accusation Evidence

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In a landmark decision on September 17, 2024, the Supreme Court of Georgia addressed the rules governing the admissibility of evidence concerning a victim’s allegedly false accusation of sexual misconduct against someone other than the defendant. The case, Gallegos-Munoz v. State, revolved around whether the trial court erred in excluding such evidence based solely on its determination that the evidence did not show a reasonable probability that the prior accusation was false.

Key Points of the Decision:

  • 2013 Evidence Code Prevails: The Court concluded that the rules set forth in Georgia’s 2013 Evidence Code govern the admissibility of prior-accusation evidence, superseding older decisional law that required a threshold determination of probable falsity.
  • Case Background: Gallegos-Munoz was convicted of child molestation based on accusations made by his girlfriend’s daughter. He sought to introduce evidence of a prior false accusation made by the victim against her biological father, which the trial court excluded.
  • Court’s Rationale: The Supreme Court vacated the Court of Appeals’ judgment, directing it to reconsider the admissibility of the prior-accusation evidence under the 2013 Evidence Code, specifically OCGA § 24-4-403 (Rule 403), which involves a balancing test of probative value versus prejudicial impact.

This ruling marks a significant step in clarifying the legal landscape for the admissibility of prior false accusation evidence in sex offense cases in Georgia.

The ruling emphasizes the application of Georgia’s 2013 Evidence Code, particularly OCGA § 24-4-403 (Rule 403). This means that courts must use the balancing test of probative value versus prejudicial impact when considering the admissibility of prior false accusation evidence, rather than relying on older decisional law.

Enhanced Defense Opportunities: Defendants in sex offense cases may have a better chance of introducing evidence of prior false accusations made by the victim. This can be crucial for building a defense, as it allows the jury to consider the credibility of the accuser more comprehensively.

Criminal defense Attorney Scott Smith and our law firm’s lawyers have the experience to combat these allegations with our proven record. If you or a loved one is facing a charge of rape and you feel as though the victim is laying and has lied in the past, it is imperative that you contact our office at 404-581-0999 for a free consultation.

Defenses to Trafficking Marijuana in Gwinnett County

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Being charged with trafficking marijuana in Gwinnett County is a serious charge. In Georgia, if you are found guilty of trafficking 10-2,000 pounds of marijuana, you will be sentenced to a mandatory minimum of 5 years in prison and a fine of $100,00.00.

The State often has strong evidence in a marijuana trafficking case, often because the accused is arrested with the marijuana in their possession. However, an experienced defense attorney can evaluate your case for defenses. The most successful defenses are often proving to the court that your constitutional rights were violated in some way during the search or seizure that led to the discovery of the marijuana.

For example, a police officer must have some sort of reasonable suspicion that a suspect is engaged in, or has previously engaged in, criminal activity to initiate a temporary detention to investigate a crime. Then, to arrest and search a vehicle, an officer must have probable cause that a crime has occurred. If the state cannot prove that the officer had the required level of suspicion to temporarily or permanently detain you, the evidence they obtained must be suppressed and cannot be used against you.

If you have been accused of trafficking marijuana, it is important to hire an experienced criminal defense attorney that will review your case and search for all possible defenses. The lawyers at the Law Office of Scott Smith handle marijuana trafficking cases regularly and will work hard to protect your constitutional rights. Call us today at 404-581-0999 for a free consultation.