I’m charged with Felony Murder, but I didn’t kill anyone

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In Georgia, there are two ways you can be charged with murder without pulling a trigger, so to speak. The first way is being charged with felony murder. The other is being charged as party to a crime, but that is for a different blog. Felony Murder means an individual died during the commission of a felony, even if there was no intent to cause a death. The underlying felony must be of the type that is inherently dangerous, or the circumstances of the felony create a foreseeable risk of death.

To give you an example, person X and person V get into a fight. X has no intention of ending V’s life but beats V so badly, 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. Aggravated battery is an inherently dangerous felony, and it caused the death of V. It is also becoming increasingly common for the state to charge a dealer or provider of drugs with felony murder after someone dies from an overdose.

The penalty for felony murder is the SAME as malice murder or 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 for a free case consultation at 404-581-0999.

Arrest for Trafficking at Hartsfield Jackson Airport

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If you or a loved one is arrested for Trafficking in Clayton County at the Atlanta airport, it is important that you act immediately to protect yourself. Do not wait until your court date to get an attorney and to preserve evidence.

The Clayton County District Attorney has a dedicated division to prosecute cases involving Trafficking case. They will vigorously prosecute you if you are transport drugs through the airport.
Do not think that just because you are innocent that the charges will be dismissed. Drug charges are aggressively prosecuted in Clayton County.

Make sure your attorney has had felony jury trials and has won these cases. Do not let an attorney handle your case who does not specifically handle drug cases. Many drug cases are won at a motions hearing. It is imperative that you get body cams, dash cams, search warrants and take witness statements of anyone involved in the search and seizure of the drugs.

The law may say you are presumed innocent but in drug cases, you have to prove your innocence.

Here is what you should do if arrested for Trafficking at the airport in Clayton County.
1. Hire an attorney – Make sure that attorney actually handles and tries drug cases in Clayton County. Most criminal defense attorneys do not handle these cases. Make sure the attorney you talk to does regularly handles drug cases in Georgia
2. Avoid making any statements – Do not proclaim your innocence to the police at the airport. 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 trafficking, you have to start preparing for your jury trial. Do not make any statements to anyone except your lawyer.
3. Start gathering important evidence
a. Gather and preserve any physical evidence in your possession.
b. 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.
c. Witnesses – Immediately make a list of any person who you think might have information about this 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 trafficking at the airport in Clayton County.
1. Never talk to law enforcement or the Clayton County District Attorney’s office without an attorney.

If you are arrested for trafficking at the airport in cocaine, heroin, marijuana, methamphetamine or any other illegal drug in Clayton County, please call our office 24/7 at 404-581-0999. We will sit down with you and fully discuss your case and what to expect in court. There is no charge for the initial consultation. You will only retain us if you feel we are the best law firm to represent you. It is your case and your life so you need to hire the lawyer that you feel gives you the best chance to win.

Conditional Discharge or Drug First Offender

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Conditional Discharge or Drug First Offender is a once in a lifetime opportunity that allows someone who has been charged for the first time with possessing drugs or a non-violent property crime related to drug or alcohol addiction to resolve their case without a felony conviction. The resolution will typically involve probation and some sort of rehabilitation and treatment. Once the terms of the sentence are completed successfully the case will be dismissed and will not be considered a conviction. Conditional discharge may still be available even if you have previously used first offender. Drug offenses can have significant collateral consequences. If you or a loved one has been charged with a drug offense, it is very important you speak with an experience attorney. Please give us a call at 404-581-0998 for a free case consultation.

Trafficking at Airport

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Trafficking marijuana or cocaine at the Atlanta airport is a serious offense.  Our law firm has successfully handled hundreds of these cases in Clayton County.  The first step in successfully handling these cases is knowing the law.

Let’s take a hypothetical situation that we see often in our drug trafficking cases from the Atlanta airport.  Hypothetically speaking, John Passenger arrived in the Atlanta airport on  a flight from the Dominican Republic. After disembarking, he did not follow the other passengers but began wandering aimlessly in the seating area next to the gate. Two Clayton County police officers, Officer Slammer and Officer Book’em, had been informed that John Passenger would be on the flight. The officers were dressed in plain clothes, with no weapons visible. They approached John Passenger from behind, and one officer said, “Excuse me, sir, I’m a police officer. Can I talk to you for a minute?” John Passenger turned and responded, “Yes,” in English, but when the officers asked him if he spoke English, he smiled and responded in English that he did not. John Passenger told the officers, through an interpreter, that he was in Atlanta for personal reasons and that he was employed as a construction worker. Officer Slammer asked to see the palms of John Passenger’s hands, and he saw that they were smooth and free of calluses. At this point, John Passenger began to appear very nervous; his hands shook and he began to sweat.

Officer Slammer explained to John Passenger that he was a narcotics officer; he asked permission to search John Passenger and his luggage, but John Passenger agreed to a search of his person only and not of his luggage. When asked why he was hesitant to allow his luggage to be searched, John Passenger replied that it contained X-rated material and women’s lingerie and that he would be embarrassed by a search. Agent Officer Book’em asked if John Passenger would rather have a drug sniffing dog check the luggage for narcotics, and John Passenger said that he would rather have a dog check the luggage. They proceeded to baggage claim, where the defendant’s bag was located.

Agent Officer Slammer called for a dog from the Tri-City Narcotics Unit. He also told John Passenger he was not under arrest. The K-9 unit arrived less than 15 minutes later, and the agents arranged for the dog, named K-9 Drug Dog, to check a line of four bags, including John Passenger’s luggage.  K-9 Drug Dog alerted to John Passenger’s bag. The officers again asked John Passenger if he would agree to a search of the bag. John Passenger responded that he would agree only if he could do the search himself, but the officers did not agree to this proposal. Officer Slammer then ordered John Passenger detained. The officers took him and the bag to the narcotics office, where Agent Espana, who spoke Spanish, informed John Passenger of his Miranda rights. The officers obtained a search warrant for the bag. Inside, they found five kilos of cocaine.

This hypothetical was taken from a real case.  Clearly, John Passenger did not adequately protect his rights in that he agreed to allow a k-9 dog at the Atlanta airport to do a free air sniff around his bag.  Second, he agreed to go with officers to allow the K-9 to sniff his luggage.  Lastly, he agreed to allow officers to search his bag without a warrant.  Obviously, even if you are not trafficking drugs at the airport, you should always protect your rights and never consent to a search unless it is requested by TSA for security purposes in order for you to fly.  Secondly, you should always be polite and respectful of law enforcement when you decline to permit them to search your luggage or walk with them to a location you do not want to go.  If they tell you you are under arrest then obviously comply with their commands.

One hopes a bad thing will not happen to you as you are travelling through Atlanta’s International Airport, but sometimes bad things happen to unassuming innocent people.  If you find that law enforcement has charged you with Trafficking Cocaine or Trafficking Marijuana at the Atlanta airport by searching your luggage and finding drugs, it is important that you hire a skilled criminal defense attorney to represent you if you are charged with this offense. The lawyers at our law office are experienced at defending these types of crimes and will work tirelessly to discover defenses in your case and protect you from these severe punishments. Call our office today at 404-581-0999 for a free consultation.

What is First offender and can I use it?

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What is it? First offender treatment allows you to enter a guilty plea, but it is not considered a conviction. If you successfully complete all the terms of the sentence, the case will be dismissed, and you will be exonerated as a matter of law. This means that you can honestly say that you have not been convicted of a crime and all your civil rights are restored.

Can I use it? The answer is a lawyer’s favorite, it depends. If you have been charged with a crime and have never pleaded guilty to or been convicted of a felony, you may be eligible for First offender treatment under OCGA § 42-8-60. There are certain charges that, by statute, the answer is an automatic no. Offenses considered serious violent felonies (murder, armed robbery, kidnapping, etc.), most sex crimes, and DUI are not eligible. While, it can be used on both misdemeanor and felony offenses, it is generally advised not to use it on misdemeanors. However, every case is different. First offender is a once in a lifetime chance and once you use it, you can never use it again. It is important to discuss all your options with an attorney before making the decision to use or decline first offender.

What else should you know? The decision to grant first offender is entirely up to the judge; even if you are eligible there are times that a judge will not allow it. There are risks to using first offender. If you violate probation, the judge has the right to bring you back, adjudicate you guilty and resentence you to the maximum punishment with credit for the time you were on probation. For example, your sentence is 5 years, the max for the offense is 10 years and you violate your probation after 2 years. The judge can increase your sentence from 5 years to 10 years, but you would get credit for the 2 years. That would leave you with 8 years left and you would be a convicted felon. Now, that doesn’t mean that just because you violate your probation the judge will automatically do that. It really comes down to what the violation is. This makes it very important to have an attorney with you for any sort of probation revocation proceeding.

Prior False Allegations Are Admissible in a Child Molestation

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You are accused with child molestation and your accuser has previously falsely accused another person of child molestation. Can you bring up these prior false accusations in your case? The answer is yes.

The Georgia Supreme Court held in State v. Burns, that a defendant in a child molestation prosecution may bring up evidence that the alleged victim has previously made false accusations of child molestation. This evidence is admissible to attack the credibility of the victim and show that the current charges did not occur.

In this case, James Burns was charged with aggravated sexual battery, aggravated sodomy, and incest. It was discovered that the alleged victim had made up a prior rape allegation.

The Rape Shield Statute of Georgia does not prohibit testimony of previous false allegations by a victim. This is because prior false accusations establish that the victim has a propensity to make false statements regarding sexual misconduct. The Rape Shield Statute in Georgia is designed to prohibit bringing up the victim’s past sexual conduct. But it does not protect the victim in cases where a false allegation was made.

A criminal defendant has a Sixth Amendment right to make a full defense. A defendant has the right to bring up prior false allegations where it can be shown that the allegation was indeed false. The Sixth Amendment also grants the defendant the right of confrontation. This includes the right to physically face the person who is testifying against him and the right to conduct a thorough cross-examination. A defendant is guaranteed the opportunity for effective cross-examination.

In addition, the due process clause of the Fourteenth Amendment guarantees a criminal defendant a meaningful opportunity to present a complete defense. The defendant does not have a right to offer any testimony that is either privileged, irrelevant or excluded under the rules of evidence. However, if the defendant has evidence of a prior false allegation of the alleged victim then it is admissible in order to protect the integrity of the trial.

In State v. Burns, the Georgia Supreme Court has made a bright line rule that prior false allegations are admissible, regardless of other rules of evidence.

If you are charged with aggravated child molestation, child molestation, sexual battery, rape or any other sexual offense in Georgia, it is imperative that you aggressively defend yourself and learn everything you can about the alleged victim. If the alleged victim in your case has ever made up an allegation against any other person, you must use this information to your advantage when confronting your accuser in court.

If you are charged with any sexual offense in Georgia, please contact us at 404-581-0999

Fraud in Obtaining Public Assistance, Food Stamps or Medicaid – O.C.G.A. § 49-4-15

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In Georgia, it is a crime to make a false statement, fail to disclose information, impersonate another, or engage in other fraudulent activities in obtaining public assistance such as food stamps and Medicaid.

This crime can be charged as either a misdemeanor or felony depending on the total amount of the value of the public assistance. If the amount of food stamps or public assistance is less than $1,500, then it will be charged as a misdemeanor. In Georgia, the maximum penalty for misdemeanors is 12 months in custody and a $1000 fine. If the value of public assistance exceeds $1500, it will be treated as a felony. Under Georgia law, individuals convicted of felony fraud in obtaining food stamps or Medicaid face a one to five-year imprisonment.

 

The statute lays out several different examples of fraudulent activity that can fall under this statute:

 

(1) Knowingly using, altering, or transferring food stamp coupons to purchase food stamp coupons in any manner not authorized by law;

(2) Knowingly possessing food stamp coupons or authorizations to purchase food stamp coupons when he or she is not authorized by law to possess them;

(3) Knowingly possessing or redeeming food stamp coupons or benefits when he or she is not authorized by law to possess or redeem them; or

(4) Knowingly using food stamp coupons or benefits in any manner or for purposes not authorized by law.

 

Apart from being susceptible to arrest under this statute, the legislation mandates that the individual is also obligated to reimburse the state.

 

If you or a loved one has been charged with Fraud in Obtaining Public Assistance, Food Stamps, or Medicaid, call the criminal defense lawyers at Law office of W. Scott Smith for a FREE CONSULTATION at 404-581-0999.

My loved one has been arrested for a felony in Fulton County, what happens now?

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Everyone arrested for a felony within Fulton County will be taken to the Fulton County Jail or Rice Street to be booked in. After someone is booked, they will be scheduled for First Appearance, typically the next day. The purpose of First Appearance is to inform you of the charges and set a bond. First Appearance is heard by a Magistrate Court judge.

There are four factors that the judge will consider when setting or denying a bond. The factors are that the accused 1) is not a risk of fleeing the jurisdiction or failing to appear in court, 2) doesn’t pose a significant danger to any person or the community, 3) isn’t a risk of committing a new felony, and 4) is not a threat to intimidate witnesses or otherwise obstruct justice. The judge will also take the person’s criminal history, any history of failing to appear in court, and the nature of the allegations into account when considering bond. Bond may be denied based on the type of charge. There are certain crimes – e.g. murder, armed robbery, sex crimes, etc. – that can only be heard by a Superior Court judge.

If bond was denied and your loved one is still incarcerated, they are entitled to a preliminary or probable cause hearing. This is when the State has to bring witnesses to prove the allegations by a probable cause standard or that there is a reasonable belief that the accused committed the alleged act. It is very important to have an experienced advocate to cross-examine and challenge the State’s witnesses and evidence.

If your loved one has been arrested for a felony in Fulton County, please give us a call at 404-581-0999 for a free consultation.

Clayton County Sexual Battery

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Georgia law makes it illegal to intentionally make physical contact with the intimate parts of the body of another without their consent under O.C.G.A. 16-6-22.1(b). It defines intimate parts as the genital area, but also inner thighs, buttocks, and breasts of a female.  Skin to skin contact is not required, and physical contact through clothing is sufficient.

Sexual Battery is typically a high and aggravated misdemeanor. High and aggravated misdemeanors have harsher sentencing than standard misdemeanors, including a fine of up to $5,000. If sentenced to custodial time on a high and aggravated misdemeanor, it is typical to not be eligible to earn good time credit or be eligible for earlier release. If convicted of sexual battery against a child under 16, it is a felony offense carrying punishment of one to five years imprisonment. When convicted of sexual battery against someone over 16 years old, the State of Georgia considers it a felony offense carrying one to five years imprisonment. Similarly, when convicted of Sexual battery for the second time, Georgia will treat it as a felony offense. Both misdemeanors and felonies appear on criminal histories.

There are defenses to Sexual Battery in Clayton County and throughout Georgia. First of all, a defense would be if the incident did not occur.  Additionally, having the other party’s consent is a valid defense. The law requires actual proof of the victim’s lack of consent in order to be convicted of sexual battery.

If you or a loved one has been charged with Sexual Battery in Cobb County or anywhere in Georgia, call the Law Office of W. Scott Smith for a FREE CONSULTATION at 404-581-0999.

Fourth Amendment Waiver

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In Georgia, can a person on probation be illegally searched by law enforcement?  The answer is yes and no.  A probationer who has executed a Fourth Amendment waiver at the time of their plea may be subject to a warrantless search if there is reasonable suspicion of criminal activity or for the purpose of monitoring the extent of the probationer’s compliance or lack of compliance with the terms of their probation.  The general rule is that the police can search a probationer, who is subject to a special condition of probation waiving her Fourth Amendment rights and agreeing to searches of her person, property, residence, and vehicle, at any time, day or night, and with or without a warrant, provided there exists a reasonable or good-faith suspicion for the search, that is, the police must not merely be acting in bad faith or in an arbitrary and capricious manner such as searching to harass the probationer.

If you are challenging the illegal search under a Fourth Amendment waiver you will need to argue the search was without consent and the officer was conducting the search in bad faith or in an arbitrary manner.

If you feel as the police or law enforcement seized evidence illegally, please give us a call at our law firm at 404-581-0999 to discuss the possibility of representation.