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.

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.

License Consequences for DUI Convictions in the Municipal Court of Lawrenceville

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By: Attorney Erin Dohnalek

In Georgia, an individual may be charged with DUI under the following circumstances:

  • If he/she was in actual physical control of a moving vehicle while he/she was under the influence of alcohol to an extent that it was less safe for them to drive.
  • If he/she was in actual physical control of a moving vehicle while he/she was under the influence of any drug to an extent that it was less safe for them to drive.
  • If he/she was in actual physical control of a moving vehicle while he/she was under the influence of a combination of any two or more controlled substances, which does include alcohol, to an extent that it was less safe for them to drive.
  • If he/she was in actual physical control of a moving vehicle while his/her alcohol concentration was .08 grams or more, or at any time within three hours after such driving ended.
  • If he/she was in actual physical control of a moving vehicle while there was any amount of marijuana or a controlled substance, as defined by O.C.G.A § 16-13-21, present in his/her blood or urine.

If an accused is convicted of a DUI in the Municipal Court of Lawrenceville, pursuant to O.C.G.A § 40-6-391, his/her license will be suspended. This is a mandatory suspension required by the Department of Driver’s Services. The length of the suspension is decided by how many prior DUI convictions he/she has had in the last five years. Those suspensions are as follows:

  • If the accused has not had a prior DUI conviction in the last five years:
    • The suspension will be for a period of 120 days.
    • During that suspension, the accused will be eligible for a limited permit to drive if he/she is a resident of Georgia, and he/she has not had a prior DUI conviction in the last five years.
    • After the 120-day license suspension, the accused will be eligible to get their permanent license back if he/she has completed a Risk Reduction Course, otherwise known as DUI school, and paid a $210 reinstatement fee.
  • If this is the second DUI conviction in the last five years for the accused:
    • The suspension will be for a period of 18 months.
    • For the first 4 months of the suspension, there will be a hard suspension with no eligibility for a limited permit. This means for the first 4 months, he/she will not be able to drive.
    • After the first 4 months, he/she may be issued a limited permit if he/she installs an ignition interlock in their vehicle.
    • After the full 18 months, the accused will be able to reinstate their permanent license if he/she has completed a substance abuse evaluation, and recommended treatment, and has shown proof of that completion to the Department of Driver’s Services.
  • The most serious license suspension happens to drivers who have been convicted of a third DUI in the last five years.
    • If that occurs, the driver will be considered a Habitual Violator.
    • This will require a 5-year license suspension, and there is no eligibility for a limited permit.
    • Only after two years can an accused be eligible for a probationary license to drive.
    • It is very important that the accused not drive if he/she is a Habitual Violator, as he/she could be arrested for a felony, if caught driving, that carries at least one year in jail.

Contact Us

Due to the severity of the license suspension consequences of a DUI conviction, 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 defending a DUI, 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 DUI in Lawrenceville, and you are worried about the license consequences associated with a conviction, please call our office today at 404-581-0999 for a free consultation.

I got pulled over for a traffic violation and was told I have a warrant! What now?

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It can be incredibly upsetting and unnerving to find out you have a warrant out for your arrest. If you are pulled over for speeding, expired tag, or other traffic violations, police officers run your name through a database that will notify them if you have an outstanding warrant for your arrest. This could be a warrant in the same county as your traffic offense, a different county in Georgia, or even a different state. Many times, police officers cannot tell you what crime the warrant alleges you committed and can only see what county or State the warrant is from.

What to do if you are told at a traffic stop that you have an outstanding warrant:

  • Be courteous to the officer
  • Do NOT make any statements about what the warrant is for, if you know, or any specific facts of the incident
  • Remember that everything you say to the officer is ON VIDEO- both from body-worn camera and cameras inside the police car
  • Understand that if the police officer tells you that you have a warrant, you MUST go with the officer. If you refuse, you risk being charged with additional crimes.
  • CONTACT US!

At the Law Offices of W. Scott Smith, our lawyers 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 a pending criminal charge, please call our office 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.

 

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.

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.

 

The consequences of being charged with criminal street gang activity in Georgia are severe. This charge can result in enhanced penalties, including extremely long prison sentences and higher fines, compared to the penalties for the underlying criminal acts alone. For instance, if an individual is convicted of a crime like armed robbery and it is proven that the crime was committed as part of gang activity, the person could face additional years in prison on top of the sentence for the robbery. The law is also designed to make it easier for prosecutors to hold individuals accountable for the actions of the gang, even if they were not directly involved in every criminal act committed by the gang.

 

The state must prove four elements in a criminal street gang case. First the state must establish that the alleged criminal street gang is a group of three or more individuals, whether formal or informal, that engage in criminal street gang activity. The state then must show that the alleged is employed by, or merely associated with, the criminal street gang. The third element shows that the criminal street gang activity was committed by the defendant. Lastly the prosecution must establish that a nexus was met from the criminal street gang activity.

 

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 activity 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.

 

Family Violence Battery with an Uncooperative Alleged Victim

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Family Violence Battery is defined in O.C.G.A. 16-5-23.1 as intentionally causing substantial physical harm or visible bodily harm to another person who are:

  • Spouses or former spouses;
  • Individuals who have a child together;
  • Parents and children;
  • Step-parents and step-children;
  • Foster-parents and foster-children; and
  • Individuals living or formerly living in the same household.

The State of Georgia also takes family violence offenses very seriously and they can prosecute the accused of family violence, even if the victim does not want to press charges. A family violence battery can either be characterized as a felony or a misdemeanor, depending on the past criminal history of the accused. A major consequence of a family violence battery conviction is that any future convictions of the same crime is an automatic felony. The first conviction of a family violence battery is sentenced as a misdemeanor, however, the second and subsequent convictions have a maximum penalty of 5 years in prison.

It is not uncommon for an alleged victim in a Family Violence Battery case to be reluctant to testify or even want the charges to be dismissed altogether. It is very difficult, although not impossible, for the State to prove its case without having an alleged victim testify.

Due to the severity of the penalties for a family violence charge, it is of vital importance to hire an experienced criminal defense attorney who is knowledgeable of all possible options for an accused dealing with such a serious charge. At the Law Offices of W. Scott Smith, our lawyers are trained at defending such allegations. Therefore, if you have been charged with Family Violence Battery and the alleged victim is reluctant or does not want to testify, please call our office today at 404-581-0999 for a free consultation.