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.

Traffic Tickets in Roswell Municipal Court

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If you have been cited for a traffic violation in the Municipal Court of Roswell, it is important to understand your options. Paying the fine without negotiating is an admission of guilt and could result in points being assessed on your driver’s license. Points can result in higher insurance rates and, if enough points are accumulated, a suspension of your driver’s license. For drivers under 21 years of age, 4 points will suspend your license. For drivers over 21 years of age, 15 points will suspend your license.

Hiring a lawyer to negotiate with the prosecutors can prevent points from being assessed to your license in a few ways:

  • Negotiating a dismissal of the charges
  • Negotiating a reduction to an offense that does not involve an assessment of points
  • Negotiating the use of a Nolo Contendre plea

If you have been cited for a traffic offense in the City of Roswell, it is important to understand your options. Call our office at 404-581-0999 for a free consultation today.

Traffic Tickets in Johns Creek Municipal Court

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If you have been cited for a traffic violation in the Municipal Court of Johns Creek, it is important to understand your options. Paying the fine without negotiating is an admission of guilt and could result in points being assessed on your driver’s license. Points can result in higher insurance rates and, if enough points are accumulated, a suspension of your driver’s license. For drivers under 21 years of age, 4 points will suspend your license. For drivers over 21 years of age, 15 points will suspend your license.

Hiring a lawyer to negotiate with the prosecutors can prevent points from being assessed to your license in a few ways:

  • Negotiating a dismissal of the charges
  • Negotiating a reduction to an offense that does not involve an assessment of points
  • Negotiating the use of a Nolo Contendre plea

If you have been cited for a traffic offense in the City of Johns Creek, it is important to understand your options. Call our office at 404-581-0999 for a free consultation today.

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.

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.

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.

Georgia Criminal Street Gang

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Being charged with criminal street gang activity in Georgia is a serious legal matter that involves allegations of participating in criminal activities while being employed by or associated with a criminal street gang. Under Georgia law, particularly the Georgia Street Gang Terrorism and Prevention Act, individuals can be charged with this offense if they are accused of commission, attempted commission, conspiracy to commit, solicitation, coercion or intimidation to commit certain crimes, such as any drug offense, acts of violence, firearm offenses, thefts, human trafficking, racketeering and many other offenses. The law is designed to target not just the criminal acts themselves, but also the organized nature of the activities, which the state often alleges coordination, planning, and recruitment of members to carry out illegal activities.  Our law firm is seeing an uptick in indictments in Fulton, Dekalb, Clayton, Cobb and Coweta Counties on gang charges.

In Georgia, prosecutors have increasingly used social media posts, rap lyrics, and other forms of online expression as evidence in criminal street gang cases. This practice is part of a broader tactic used by the state to demonstrate gang affiliation, establish intent, or link individuals to criminal activities.

Here are some ways in which prosecutors use these forms of evidence:

  1. Gang Affiliation: Social media posts or music lyrics that mention specific gangs, symbols, or slang can be used to show that a defendant is associated with a gang. This is often a critical piece of evidence in cases where proving gang membership is important to securing a conviction under Georgia’s Street Gang Terrorism and Prevention Act.
  2. Intent and Motivation: Lyrics and posts that reference violence, criminal behavior, or that describe specific incidents can be used to establish intent or motive for crimes. Prosecutors may argue that these expressions reflect a mindset or belief system aligned with criminal activities.
  3. Admissions of Criminal Activity: If a defendant boasts about or admits to committing crimes in their lyrics or social media posts, prosecutors will use this as direct evidence of their involvement in illegal activities. Such admissions may bolster other evidence in a case.
  4. Coordinating Criminal Activity: Social media can be used to show coordination or communication among gang members, which can help prosecutors prove conspiracy or organized criminal conduct. This is particularly relevant in demonstrating the collective action of a gang.

However, the use of these forms of expression in criminal cases can be controversial, particularly when it involves artistic forms like music. This is often artistic expression, particularly in genres like rap, often includes fictional or exaggerated elements that do not necessarily reflect the artist’s real-life actions or intentions. Despite these concerns, courts have allowed such evidence when it is deemed relevant to the case.

In Georgia, this approach has been employed in high-profile cases, where prosecutors aim to crack down on gang-related crime by demonstrating that individuals are part of a broader criminal enterprise.

Defending against charges of criminal street gang activity can be challenging, as it often involves complex legal arguments about the individual’s involvement with the gang and the nature of the alleged criminal activities. Defense strategies may include challenging the evidence of gang membership or arguing that the accused’s actions were not part of any organized criminal activity. Given the serious implications of such charges, including the potential for long-term imprisonment and a lasting criminal record, it is crucial for anyone facing this charge to seek experienced legal representation.

Atlanta criminal street gang criminal defense Attorney Scott Smith has the experience to combat these allegations with a proven record. If you or a loved one is facing a charge of violation of criminal street gang activity it is imperative that you contact our office at 404-581-0999 for a free consultation.

 

Trafficking in Georgia

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There is good news if you are charged with trafficking Cocaine, Dilaudid, Demerol, OxyContin and Oxycodone, Vicodin, Fentanyl, Ritalin, Adderall or Methamphetamine in Georgia.  As it stands currently, the court has authority to probate a portion of your sentence.  In July 2024, the Court of Appeals announced new guidelines the trial court may follow in sentencing someone to trafficking in cocaine or methamphetamine.

 

Theodore  Roundtree waived trial and pleaded guilty to trafficking in methamphetamine (Count 1) and possession of a firearm by a convicted felon (Count 4). ​ The trial court sentenced  Theodore Roundtree to 25 years, to serve 15 in prison and 10 on probation on Count 1, and 10 years to serve concurrent on Count 4.  The State not happy with the sentence appealed, arguing the trial court deviated from the mandatory minimum term of imprisonment and failed to sentence Theodore Roundtree to the maximum sentence under the recidivist statute. ​

 

Theodore Roundtree had a prior conviction in 2009 for fourteen felony counts in Gwinnett County. ​ The State indicted  Theodore Roundtree for trafficking in methamphetamine, possession of a firearm during a felony, fleeing and attempting to elude a police officer, and possession of a firearm by a convicted felon for his actions on February 5, 2022. ​The State agreed to a cap of serving 25 years under OCGA § 16-13-31 (e) (3) for Count 1 and 10 years concurrent on Count 4.

 

Under OCGA § 16-13-31 (e) (3) any person who sells, delivers, or brings into this state or has possession of 28 grams or more of any person who sells, delivers, or brings into this state or has possession of 28 grams or more of methamphetamine, amphetamine, or any mixture containing either methamphetamine or amphetamine, as described in Schedule II, in violation of this article commits the felony offense of trafficking in methamphetamine or amphetamine and, upon conviction thereof, shall be punished as follows: …

 

If the quantity of methamphetamine, amphetamine, or a mixture containing either substance involved is 400 grams or more, the person shall be sentenced to a mandatory minimum term of imprisonment of 25 years and shall pay a fine of $1 million. This is the top tier trafficking.

 

The statute allows the State to seek a reduced or suspended sentence upon any person convicted of violating the Code section if the person “provides substantial assistance in the identification, arrest, or conviction of any of his or her accomplices, accessories, coconspirators, or principals.” OCGA § 16-13-31 (g) (1).

 

It also allows the trial court, in its discretion, to depart from the mandatory minimum sentence specified for an offender under the Code section if the judge concludes that: (i) The defendant was not a leader of the criminal conduct; (ii) The defendant did not possess or use a firearm, dangerous weapon, or hazardous object during the crime; (iii) The criminal conduct did not result in a death or serious bodily injury to a person other than to a person who is a party to the crime; (iv) The defendant has no prior felony conviction; and (v) The interests of justice will not be served by the imposition of the prescribed mandatory minimum sentence. OCGA § 16-13-31 (g) (2) (A).

 

The sentencing departure range applicable to a person convicted under OCGA § 16-13-31 (e) (3) is “12 years and six months to 25 years imprisonment and a fine of not less than $500,000.00 nor more than $1 million.” OCGA § 16-13-31 (g) (2) (B) (x).

 

OCGA § 16-13- 31 (h) provides that “[a]ny person who violates any provision of this Code section shall be punished as provided for in the applicable mandatory minimum punishment and for not more than 30 years of imprisonment and by a fine not to exceed $1 million.”

 

OCGA § 17-10-1 (a) (1) (A) provides: Except in cases in which life imprisonment, life without parole, or the death penalty may be imposed, upon a verdict or plea of guilty in any case involving a misdemeanor or felony, and after a presentence hearing, the judge fixing the sentence shall prescribe a determinate sentence for a specific number of months or years which shall be within the minimum and maximum sentences prescribed by law as the punishment for the crime. The judge imposing the sentence is granted power and authority to suspend or probate all or any part of [*7] the entire sentence under such rules and regulations as the judge deems proper …

 

Because the trafficking statute does not include the language “adjudication of guilt or imposition of sentence shall not be suspended, probated, deferred, or withheld prior to serving the mandatory minimum term of imprisonment prescribed by this Code section” as it used to then the court retains jurisdiction under 17-10-1 to probate a portion of the sentence.  In summation, a penal statute’s use of “shall be imprisoned” or “shall be punished by imprisonment,” standing alone, does not mean a court cannot probate a portion of the sentence.

 

If you have been accused of trafficking Cocaine, Dilaudid, Demerol, OxyContin and Oxycodone, Vicodin, Fentanyl, Ritalin, Adderall or Methamphetamine, 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.

You’ve Been Charged with a Misdemeanor DUI in Fulton County: What to Expect

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In Fulton County, the mandatory minimum sentencing for a DUI (Driving Under the Influence) conviction varies based on factors such as prior offenses, whether the DUI resulted in injury, and whether the offense involves certain aggravating circumstances. Here’s a general overview:

  1. First Offense: For a first DUI offense, the minimum sentence generally includes:
    • A mandatory minimum of 24 hours in jail. You will generally receive credit for any time that you’ve already served. For example, if you served 12 hours immediately after your arrest, then you would have 12 more hours remaining to serve in custody. Some judges will suspend any remaining time.
    • A minimum of 40 hours of community service.
    • Completion of a DUI Alcohol or Drug Use Risk Reduction Program.
    • Mothers Against Drunk Driving (MADD) Victim Impact Program
    • $300 fine (excluding court costs)
  2. Second Offense: For a second DUI offense within 10 years:
    • A mandatory minimum of 72 hours in jail with credit for any time served.
    • A minimum of 240 hours of community service.
    • A longer period of probation and potentially longer mandatory completion of a DUI risk reduction program.
    • Mothers Against Drunk Driving (MADD) Victim Impact Program
    • $600 fine (excluding court costs)
  3. Third Offense: For a third DUI offense within 10 years:
    • A mandatory minimum of 15 days in jail.
    • A minimum of 300 hours of community service.
    • A longer period of probation and completion of a DUI risk reduction program.
    • Mothers Against Drunk Driving (MADD) Victim Impact Program
    • $1,000 fine (excluding court costs)
  4. Aggravating Factors: If there are aggravating factors such as high blood alcohol content (BAC) or causing serious injury or death, the minimum sentences can be more severe.

If you’ve been charged with a DUI do not hesitate. Call our office today at (404)581-0999.