Georgia Supreme Court Clarifies Rules About Hearsay

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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.

 

Bestiality and Necrophilia Crimes in Georgia

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by Mike Jacobs

 

Bestiality is a serious crime in the State of Georgia.

O.C.G.A. § 16-6-6:  A person commits the offense of bestiality when he performs or submits to any sexual act with an animal involving the sex organs of the one and the mouth, anus, penis or vagina of the other.

A person convicted of bestiality shall be punished by imprisonment not less than 1 nor more than 5 years.

Necrophilia is a serious crime in Georgia.

O.C.G.A. § 16-6-7: A person commits the offense of necrophilia when he performs any sexual act with a dead human body involving the sex organs of the one and the mouth, anus, penis or vagina of the other.

A person convicted of necrophilia is punishable by imprisonment for not less than 1 nor more than 10 years.

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.

First Offender Sentencing in Georgia

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First offender treatment is available in Georgia for anyone who has not been previously convicted of a felony and is not charged with a serious violent felony. Serious violent felonies are murder, felony murder, armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, and aggravated sexual battery. Anyone charged with one of those offenses is automatically ineligible for first offender unless the charge is reduced to a lesser offense.

If a defendant receives first offender treatment, it can be both a blessing and a curse. If there are no issues during the period of probation, then no official conviction will ever be reported and the record itself will seal from public view. However, if the defendant commits a new offense while on probation or has any issues at all, then the judge has discretion to revoke the first offender status and re-sentence the defendant up the maximum sentence allowed by law.

While serving the sentence which will undoubtedly involve a period of probation, the defendant is not technically convicted of a crime but still cannot possess a firearm. After successful completion, all gun rights are restored.

Finally, first offender status can be granted retroactively if the defendant was eligible for first offender treatment at the time of the original plea but was not informed of his or her eligibility. Still, there is discretion, and the judge must find by a preponderance of the evidence that the ends of justice and the welfare of society are served by granting retroactive first offender status.

If you are charged with a crime in Georgia, then you should always consult with an attorney as to whether you are a candidate for first offender treatment. If you have already pled guilty, then you should still reach out to discuss whether you can receive retroactive first offender treatment. Give us a call today at 404-581-0999.

The Commerce Clause to the United States Constitution and Criminal Law

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I am interrupting my review of sentencing law to write about the “Commerce Clause” of the United States Constitution. Recently, I listened to an excellent podcast on the Commerce Clause. I encourage you to listen to is here.

The commerce clause is the legal fiction used to grant the federal government virtual unfettered jurisdiction in matters traditionally reserved to the states. The producers of the podcast at More Perfect note that the Commerce Clause was used effectively during the civil rights era to bring freedom to the oppressed. What they did not have time to develop is that the commerce clause has since been used to lock up a disproportionate number of African Americans. Until relatively recently, crime was largely a matter for states. Today, the federal government has gone beyond its traditional role to prosecute street-level, hand-to-hand drug sales, local fraud, and a host of other crimes that do not have a meaningful impact on interstate commerce.

Since the federal government got involved in the prosecution of what was typically thought of as local crime, the number of persons incarcerated in federal prisons has risen drastically. For instance, from 1980 to 2015, persons incarcerated in federal prison increased from 22,037 to 185,917, a 743% increase. Federal incarceration for drug offenses during the same period is even more severe with a 1826% increase. This prison growth occurred while the U.S. population increased by less than 50%. And, with over 10,000 attorneys, DOJ is the world’s largest “law firm!”

So, while most Americans were pleased to see the federal government use the commerce clause to desegregate the south, today it is frequently used as a means of inserting the federal government into local criminal matters. You will have to read my recent blog on mandatory minimum sentences to appreciate the impact of the federal government being involved in low-level and local crimes.

Georgia Analysis of Utah vs. Strieff Decision

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by Ryan Walsh

The Fourth amendment of the United States Constitution protects citizens from unreasonable searches and seizures. Traditionally, evidence found after a 4th amendment violation is excluded under what is known as the “fruit of the poisonous tree” doctrine. That is, any evidence recovered after a fourth amendment violation occurs is suppressed by the court and cannot be used against the defendant in his case. However, in the last ten years the United States Supreme Court has limited this exclusionary “fruit of the poisonous tree” doctrine to situations where exclusion is the last resort by highlighting a number of exceptions. ryan-walsh

Exceptions to the exclusionary rule under federal law include when an officer acts in good faith in what he believes is a legal search, when evidence is acquired through an independent source, when evidence would inevitably been discovered without the unconstitutional source, and the attenuation doctrine. The attenuation doctrine states that evidence is admissible when the connection between the 4th amendment violation and the evidence found is distant or the connection between the 4th amendment violation has been interrupted by a change in circumstances. The recent United States Supreme Court opinion, Utah vs. Strieff directly addresses the attenuation doctrine, creating situations where intervening circumstances cause Georgia citizens to be subject to searches and seizures that would otherwise be unreasonable under the Fourth amendment of the United States Constitution. Utah vs. Strieff, 579 U.S. ___ (2016).

In Utah, Edward Strieff left a home on foot that had been tied to drug activity and walked to a gas station. Officer Fackrell, who had been surveilling the home, approached Strieff, identified himself, asked Strieff for identification, detained him, and then questioned him regarding what he was doing at the residence. Officer Fackrell gave Strieff’s information to a police dispatcher, who told Fackrell that Strieff had an outstanding arrest warrant for a traffic violation. Strieff was arrested and a search of his person was performed incident to the arrest, where Officer Fackrell found methamphetamine and drug paraphernalia on Strieff. Strieff then moved to suppress the evidence of methamphetamine and drug paraphernalia. The State of Utah conceded that Officer Fackrell did not have reasonable suspicion for the stop, but argued that because of the arrest warrant, the connection between the unlawful stop and the search had been attenuated and the search incident to arrest and seizure were valid under the Fourth Amendment.

The United States Supreme Court agreed with the State of Utah. Despite the fact that the stop of Strieff was unlawful, the Court held that the valid arrest warrant created a change in circumstances that “attenuated” the illegal stop from the valid search and seizure. In looking towards whether there was a sufficient change in circumstances between the conduct that violated the fourth amendment and the discovery of methamphetamine and drug paraphernalia on Strieff, the Court looked to three factors. The three factors are (1) “the temporal proximity between the unconstitutional conduct and the discovery of the evidence, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct.” Brown v. Illinois, 422 U.S. 590, 603-604 (1975). The Court found that factor one favored Strieff in that the time between the unconstitutional conduct and the discovery of evidence was very brief. But the Court found that factors two and three favored the State. The existence of a valid arrest warrant was a significant intervening circumstance, and that Officer Fackrell was at most negligent in his stopping of Strieff outside the gas station. In discussing Officer Fackrell’s negligence, the Court addresses what they call his “good-faith mistakes.” Therefore, the evidence seized by Officer Fackrell was admissible at trial against Strieff. Now that we’ve analyzed the law applied by the United States Supreme Court, is the holding in Utah v. Strieff applicable to Georgia citizens?

Georgia’s restrictions on searches and seizures are greater than the protections provided by the United States Government. Georgia codified their exclusionary rule in O.C.G.A. §17-5-30. The language in that statute provides no good-faith exception to the exclusionary rule. Further, Georgia courts don’t officially recognize any specific exceptions to the exclusionary rule, but they do offer their rationale in determining whether evidence that could be excluded as “fruit of the poisonous tree” will be excluded. That rationale is most clearly articulated in Vergara v. State. Vergara v. State, 283 Ga 175 (2008). In Vergara, the Supreme Court of Georgia says, “Under the fruits doctrine as

explicated by the (United States) Supreme Court and adopted by this Court, we need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. … The more apt question … is ‘whether… the evidence … has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged by the primary taint.’” Vergara, at 182-183.

Applying the absence of a good-faith exception along with the guidance provided in Vergara, it’s unclear what Georgia courts would do if presented with the facts of Strieff. Edward Strieff was approached by Officer Fackrell and asked for his identification, which he provided. Fackrell ran his identification and saw the outstanding warrant, arrested, Strieff, and found the contraband. Because there is no good-faith exception to unreasonable searches and seizures under Georgia law, Officer Fackrell cannot be said to be merely negligent in his stop of Strieff. The evidence was clearly found as a direct result of the bad stop. And the evidence is of the sort that may not have been found independently or inevitably. There are strong arguments that this sort of evidence is still fruit of the poisonous tree under Georgia’s application of the Fourth Amendment.

However, until Georgia addresses this issue, it is unclear whether a valid arrest warrant can trigger a search incident to arrest for an otherwise unlawful stop. If you’ve been arrested and feel your Georgia rights have been violated, call the Peach State Lawyer today for a free consultation at 404-581-0999.