What is calendar call or a pretrial court date for a criminal case in Fulton County?

/in , , , , , , , , , , , , , , , , , /by

If you are charged with committing a crime, there are many different hearings and/or court dates that you may have to attend. One of those is, what some jurisdictions refer to as, calendar call or pretrial hearing. What is calendar call or pretrial hearing? A calendar call and/or pretrial hearing is a court date where the judge is wanting to know the status of where the case is, i.e., ready for trial or needing additional time.

What is the purpose of calendar call or pretrial? The purpose is to inform the court where the attorneys are in the case so that the court can set the case for trial. Some examples that an attorney would announce at calendar call or pretrial is that negotiations still pending, still reviewing discovery, still investigating, still missing discovery from the prosecutors, still waiting on medical documents or reports, still waiting on testing etc. Generally, nothing of significance happens at this court date unless you plan to enter a plea and close your case out. Some counties have calendar call or pretrial a week or two after arraignment. Typically, the scheduling for calendar call or pretrial is dependent on the county you have a case in and the judge you are in front of. Some counties and judges set calendar call or pretrial a month or two out.

If you or someone you know has been charged with a crime and has a pending case in Fulton County, having a lawyer help you through the process can ensure your rights are protected. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

I am a student charged with stalking on Georgia Tech’s campus. What should I expect?

/in , , , , , , , , /by

If you are a student on Georgia Tech’s campus and charged with stalking, you case will have two components: a criminal component and an administrative component.

The criminal component will be investigated and charged pursuant to O.C.G.A. §16-5-90(a). O.C.G.A. § 16-5-90(a) provides that “[a] person commits the offense of stalking when he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.”

“Contact,” has been broadly defined as, “any communication including without being limited to communication in person, by telephone, by mail, by broadcast, by computer, by computer network, or by any other electronic device; and the place or places that contact by telephone, mail, broadcast, computer, computer network, or any other electronic device is deemed to occur shall be the place or places where such communication is received.”

Furthermore, “harassing and intimidating,” is defined as, “a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose.

A person who commits the offense of stalking is guilty of a misdemeanor (up to 12 months in jail and $1,000 fine or both). If convicted of stalking a second time (or any subsequent conviction) the person will be punished as a felony and can be sentenced to at least one year in jail and no more than ten years in jail.

Many people are unaware that an accusation of stalking on Georgia Tech’s campus also carries an administrative component. The school will conduct an administrative hearing and the consequences range from no longer being able to reside on campus to being suspended from school. You may (and should) have an attorney represent you at this hearing.

If you have been accused of stalking on Georgia Tech’s campus, you need an experienced attorney to protect your rights and help you obtain the best outcome. The Law Office of W. Scott Smith is experienced in stalking defense. Call our office at 404-581-0999 today for a free consultation.

 

 

 

I was arrested for DUI at a roadblock/checkpoint. What do I do?

/in , , , , , , , , , , , , , , , , , , /by

Georgia law and the United States Constitution requires that police officers possess a certain level of suspicion in order to stop a driver. Police officers must have reasonable articulable suspicion that a driver is, has, or is about to break the law in order to pull them over. However, DUI checkpoints and roadblocks are an exception to this requirement, and police do not have to have any suspicion whatsoever to stop a car passing through a checkpoint.

If you have been arrested at a checkpoint, you may be wondering how to best defend your case. The good news is that the State must show that the roadblock was conducted in such a way that complies with Georgia law. In the case of Baker v. State, 252 Ga. App. 695 (2001), the Georgia Court of Appeals articulates the six prongs which must be shown to support a stop at a checkpoint. The Court in Baker held that a roadblock is valid when:

  1. The decision to implement the checkpoint in question was made by supervisory officers and not officers in the field;
  2. The supervisors had a legitimate purpose in conducting a checkpoint;
  3. All vehicles passing through the checkpoint are stopped, not just “random” vehicles;
  4. The delay to drivers is minimal;
  5. The checkpoint operation is well identified as a police checkpoint (think flashing lights, marked vehicles, and traffic cones);
  6. The screening officer’s training and experience are sufficient to qualify him to make an initial determination as to which motorists should be administered field sobriety tests.

This test is all-or-nothing. If the prosecutors cannot show each and every one of these elements, the stop and any subsequent observations, statements, or arrests may be suppressed.

If you have been arrested at a checkpoint, you may have a valid defense in your case. Call our office for a free consultation and find out what your best options are. 404-581-0999. Written by Attorney Katherine A. Edmonds.

What Kind of Intent is Required for Assault?

/in , , , , , , , , , , , , , , /by

According to O.C.G.A § 16-5-20, a simple assault includes any action that places another in reasonable apprehension of immediately receiving a violent injury. This statute includes an element of general intent, meaning that it doesn’t matter what the person performing the action intended to do- it only matters what the person observing the action apprehended.  In other words, there is no requirement that a person intended to create an apprehension of receiving violent injury. Technically, this means that something as simple as shaking your fist at someone (general intent because you intended to do the fist-shaking) could be charged as assault if the victim says that they apprehended a violent injury as a result- even if the accused never intended to actually harm the victim (meaning to cause the harm would be specific intent which is not an element of simple assault in Georgia).

O.C.G.A. § 16-5-21 defines aggravated assault as simple assault combined with one of three statutory aggravators: 1. intent to rob, rape or murder, 2. use of a deadly weapon or an offensive weapon likely to or actually resulting in serious bodily injury, or 3. shooting towards people from a vehicle without justification. There are many things that can be classified as deadly weapons if they are used in an offensive manner: automobiles, firearms, metal pipes, knives, etc. That means that any time a gun is involved and a victim is in apprehension of receiving an injury, regardless of the accused’s intent to harm anyone, aggravated assault charges could result.  It is important to note that aggravated assault still does not require specific intent. Basically, it doesn’t matter what the accused intended, only what the other party perceived.

Aggravated assault carries huge penalties in Georgia and could result in up to 20 years in prison. It is important that your attorney understands the elements of the charged crime and holds the State to their burden. If you have been charged with simple assault or aggravated assault in Fulton, Dekalb, Cobb, Gwinnett, or Clayton counties, you need a lawyer. Call our office today at 404-581-0999 for a free consultation.

 

 

Georgia Supreme Court Clarifies Rules About Hearsay

/in , , , , , , , , , , , , , /by

In Georgia, the rules of evidence only allow hearsay evidence (a statement being made outside the current trial and being offered for its truth) if the hearsay meets certain exceptions. Each of the exceptions are based on the fact that if the statement meets one of the exceptions, it has a high level of reliability. Just a few of these exceptions include:

  • Present sense impression- This happens when a person is describing something as it is happening. This type of hearsay is though to be reliable because there is no time for the person making the statement to create a lie.
  • Excited utterance- This happens when a person makes a statement while they are under the stress or excitement of a situation. This type of hearsay is thought to be reliable because the person making the statement is still excited about the event they just witnessed or endured so they are truthfully saying something spontaneous.
  • Statements made for medical treatment- This happens when a person tells a person something so that they may be medically treated. This type of hearsay is though to be reliable because a person tells the truth if they need medical care.

In a Georgia criminal defense case, prosecutors will often try to have hearsay evidence admitted under what is called the Residual Exception Rule. The Residual Exception Rule says that statements that have guarantees of trustworthiness may be admitted after a judge (the “gatekeeper” in a trial) examines the totality of the circumstances under which the statement was made and any evidence corroborating the statement. Prosecutors will often try to use this catch-all rule to bring in the most damning evidence, even if it doesn’t fit into one of the many hearsay exceptions.

A new Georgia Supreme Court case, The State v. Kenney, tightens the reigns on the use of the Residual Exception Rule. In Kenny, the State attempted to have a hearsay statement admitted under the Residual Exception Rule. After the Court had examined the statement and found that it lacked exceptional guarantees of trustworthiness and thus was inadmissible, the State attempted to have the statement admitted under the present sense exception or excited utterance exception. The Supreme Court ruled that once the State attempts to have a hearsay statement admitted under the Residual Exception Rule, they have waived the right to try to have the statement admitted under any of the other hearsay exceptions.  The Supreme Court guides that things such as the closeness of the relationship between the witness testifying in trial and the person making the statement and the level of intoxication of the person making the statement should be considered when determining if a hearsay statement has an exceptional guarantee of trustworthiness.

As you can see, the rules of evidence in a Georgia criminal defense case, particularly the ones surrounding hearsay evidence, are complex. But, even if incriminating statements have been made about you, there are ways to prevent the jury from hearing about them. It is important to hire an attorney who is comfortable with these rules and will fight to keep unfair evidence out of your trial. The attorneys at W. Scott Smith are educated in the hearsay rules and will work with you to make sure your case is as strong as possible when it is presented to a jury. If you are charged with a crime and would like to be represented by seasoned trial attorneys, call our office today at 404-581-0999.

 

Self Defense In Georgia: Immunity Hearing in Fulton County

/in , , , , , , , , , /by

If you are charged with a crime in Fulton County and believe you acted in self-defense, you are entitled to an immunity hearing. We will need to file an immunity motion and request a hearing in Fulton County Superior Court.

O.C.G.A. 16-3-24.2 gives you this right to an immunity hearing. At this hearing, a judge will determine if you acted in self-defense and the judge can dismiss your case.

Soon after you are arrested, start gathering information that may assist in your defense. Get contact information for any potential witness so we can interview them. Write down everything you remember about the case and why you believed you had to use force.

The Fulton County Superior Court judge has a duty to determine before trial whether a person claiming the use of threats or force in self-defense or defense of property is immune from prosecution.

You have the burden of proof at the immunity hearing in proving that you were justified in using force by a preponderance of the evidence.

If the Fulton County Superior Court judge rules against you in an immunity hearing, you can still have a jury trial and argue self-defense to the jury. It might be easier to win at trial due the burden of proof being beyond a reasonable doubt. At the immunity hearing, the burden is on the defense to prove self-defense. At trial, the burden shifts to the State to show that the defendant was not acting in self-defense.

If you are arrested for any crime in Fulton County where you believe you acted in self-defense, 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.

The Statute of Limitations in Georgia

/in , , , , , , , , , , , /by

The statute of limitations means how long the State has to bring charges against an individual after a crime has been committed (not how long the state has to actually try the case). In Georgia, there are several categories of crimes that determine the length of the statute of limitations:

  • Murder- none
  • Other felonies punishable by death or life imprisonment- 7 years
  • Forcible rape- 15 years
  • Offenses of armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, and aggravated sexual battery when DNA evidence is used to establish the ID of the accused – none
  • Trafficking a person for sexual servitude, cruelty to children in the first degree, rape, aggravated sodomy, child molestation or aggravated child molestation, enticing a child for indecent purposes, or incest against children less than 16 years old committed on and after July 1, 2012- none
  • Other felonies- 4 years
  • Felonies committed against victims less than 18 years old- 7 years
  • Misdemeanors- 2 years

The statute of limitations is “tolled” (or suspended) until the crime becomes known. This means that the clock does not start running until the crime is known. The state often argues that the crime becomes “known” when the state becomes aware of the charges (i.e. a victim reports the crime to authorities). However, a recent Georgia Supreme Court decision, State v. Jones (case cite: S22A0425), clarifies this issue. The Georgia Supreme Court held in Jones held that a crime becomes known, and thus the statute of limitations begins running, when the crime is known to the victim. This means that if a victim waits until the statute of limitations has run out, charges may not be brought. The Court cites their earlier decision in Harper v. State saying that ““the actual knowledge of a crime victim about the crime is imputed to the State for purposes of applying the tolling provision”, and that “the correct date to apply in analyzing the statute of limitation is the date that the crime became known to the victim of the crime.”  Another decision, Womack v. State clearly says that “it seems to be well settled that . . . the knowledge of the victim is the knowledge of the State . . . .”

If you believe that you have been charged with a crime outside of the statute of limitations in Fulton, Dekalb, Gwinnett, Cobb or Clayton Counties, it is important that you work with an experienced criminal defense attorney who understands the nuances of the law. At the Law Office of W. Scott Smith, our attorneys will leave no stone unturned to ensure that charges brought against our clients are legal. If you need representation for any criminal offense, call our offices at 404-581-0999.

Enticing A Child for Indecent Purposes in Fulton County

/in , , , , , , , , , , , , /by

Enticing a child for indecent purposes is a serious crime in Fulton County. It is imperative that you retain a qualified attorney immediately if you are being accused of Enticing a child for an indecent act. Many allegations of enticing a child are false. Even if you know the allegation of enticing a child against you is made up, you still must take it very seriously and aggressively defend yourself. The Fulton County District Attorney’s office has a unit dedicated to prosecuting sex crimes.

O.C.G.A. § 16-6-5 defines Enticing a Child for indecent purposes as follows:

A person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.

The Fulton County District Attorney must prove a joint operation of (1) the act of enticing a child and (2) the intention to commit acts of indecency or child molestation.

Enticing a Child for Indecent Purposes is different than Child Molestation because of the extra element of asportation. The asportation element is satisfied with the taking involving physical force, enticement or persuasion. The evidence must show some movement of the child. It can be slight movement.

Indecent Acts means illicit sexual conduct. Because the statute refers to both indecent acts and child molestation, it is reasonable to assume that indecent acts are different than acts punished by the child molestation statute.

Neither consent nor lack of knowledge of the child’s age is a defense to prosecution under the Enticing a Child statute.

The statute is intended to protect children from sexual predators. It is unlawful to entice any child under the age of 16.

The punishment for Enticing A Child is a mandatory of 10 years imprisonment up to 30 years and at least 1 year of probation.

The Fulton County District Attorney’s office vigorously prosecutes these cases.

Do not wait until the Fulton County District Attorney actually returns an indictment against you for Enticing a Child before seeking an attorney. It is vital that you immediately retain an attorney and get to work in defending yourself of these allegations.

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

Child Hearsay in Georgia

/in , , , , , , , , , , , /by

If you are charged with child molestation, cruelty to children, or any crime, in Georgia, where a child is the alleged victim, the State will fie a Motion to Admit Child Hearsay testimony.

This is pursuant to O.C.G.A. 24-8-820. This status is the Georgia Child Hearsay Statute.

O.C.G.A. 24-8-820 reads as follows:

(a) A statement made by a child younger than 16 years of age describing any act of sexual contact or physical abuse performed with or on such child by another or with or on another in the presence of such child shall be admissible in evidence by the testimony of the person to whom made if the proponent of such statement provides notice to the adverse party prior to trial of the intention to use such out-of-court statement and such child testifies at trial, unless the adverse party forfeits or waives such child’s testimony as provide in this title, and, at the time of the testimony regarding the out-of-court statements, the person to whom the child made such statement is subject to cross-examination regarding the out-of-court statements.

All that is required is:

  1. Notice to the defendant of the State’s intention to use such statements.
  2. The child testifying at trial, unless the defendant waives it.
  3. The person to whom the statements were made is subject to cross-examination.

You will need to be prepared to challenge the credibility and the underlying facts of any witness who takes the stand against you and claims that the child made statements to them about the sexual contact or physical abuse. Do not waive the child’s presence at trial. Make the child testify.

In cases of child molestation, there is rarely physical evidence. The entire case comes down to credibility. It is the defendant’s credibility vs. the child’s and the child’s witness’s credibility. Do not forfeit the right to a thorough cross-examination of the child and their witnesses.

These child hearsay witnesses can include testimony of physicians, investigators, parents, other family members, forensic interviewers and any other person who spoke to the child about the allegations.

You must be prepared to challenge each of these statements.

Child Molestation and Cruelty to Children carry severe penalties in Georgia. Do not make statements to the police about the allegations. You must hire a qualified attorney and be prepared to vigorously fight your case at trial.

Please call us at 404-581-0999 if you are charged with any crime involving a child in Georgia.

Governor Kemp Signs Bill that will Enhance Penalties for Fleeing and Eluding in Fulton County, Georgia

/in , , , , , , , , , /by

By: Attorney Erin Dohnalek

On April 25th, 2022, Governor Kemp signed legislation to further public safety efforts in the State of Georgia. One of the bills that he signed, which was passed in the House, as well as the Senate, will enhance or increase penalties and sentencing for individuals charged with fleeing or attempting to elude a police officer in Fulton County. This bill went into effect on July 1st, 2022.

This bill states that:

  • It is unlawful for a driver to fail to stop his/her vehicle or attempt to flee or elude a police officer when he/she is given a visual or audible signal to stop.
  • Any person convicted of a first, second, or third violation of this law will be guilty of a high and aggravated misdemeanor.
  • Any person convicted of a fourth or subsequent violation of this law will be guilty of a felony.

Sentencing:

  • The penalties for a first conviction will be a fine of at least $1,000 and 30 days in jail.
  • The penalties for a second conviction within a 10-year period will be a fine of at least $2,500 and 90 days in jail.
  • The penalties for a third conviction within a 10-year period will be a fine of at least $4,000 and 180 days in jail.
  • The penalties for a fourth conviction, and any subsequent conviction, within a 10-year period will be a fine of at least $5,000 and 12 months in custody.

This bill will dramatically change the penalties for fleeing and eluding in Fulton County. A high and aggravated misdemeanor generally means that the accused will have to serve the entire jail-sentence in custody without the possibility of receiving 2 for 1 credit. The fourth conviction of this crime in a 10-year period will constitute a felony offense. Furthermore, a nolo contendere plea will not avoid mandatory jail time, or a conviction.

Any arrests that occur prior to July 1st, 2022, in Fulton County, for fleeing or attempting to elude a police officer will still be pursuant to the prior statute that allows for lower penalties and sentencing. However, if an accused is arrested for fleeing and eluding on, or after, July 1st, 2022, the sentencing will be enhanced pursuant to this new law.

Contact Us

Due to the severity of the punishment for fleeing and eluding based on this new legislation, 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 new law, 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 fleeing and eluding in Fulton County, Georgia, please call our office today at 404-581-0999 for a free consultation.