Georgia Criminal Law News April 2017

Georgia Criminal Law News

April 2017



STATE v. GILREATH,April 2017. Superior Court, Forsyth County.

Mr. Gilreath was sentenced to life in prison for murder. This case was won on appeal related to the court not allowing a witness to testify to all the information that was available that supported Mr. Gilreath’s defense that someone else caused the death of the victim. The case was remanded for a new trial. During our preparations for a new trial we uncovered an insurance policy that the other party involved took out on the victim just six months before the victim died. This evidence along with other important discoveries not located by the original trial attorney resulted in a plea agreement from life to 20 years in prison. Though we could not prove beyond a reasonable doubt another person killed the victim there was enough evidence that would have resulted in at least a hung jury which then would have forced a third trial. Each time a case is tried by the state the chances get less and less that the defendant will be acquitted. It was a win for the client.

Georgia Court of Appeals

Hampton v. State

Case No. A16A1270 (October 13, 2016)

CONFIDENTIAL INFORMANT: The State has a limited interest in protecting an informant whose identity is known.

The State’s ability to withhold an informant’s identity and testimony is limited to the public

interest in effective law enforcement, which must be balanced against the materiality of the informant’s identity and possible testimony in the defendant’s case.

An informant’s materiality is high when the defendant claims that the informant entrapped him outside the presence of other witnesses.

Lloyd v. State

Case No. A16A0727 (October 18, 2016)

JUROR MISCONDUCT: The instructions need to come from the judge, not the police officers.

When shown, burden is on the State to disprove prejudice.

During jury deliberations in this self-defense case, one of the jurors asked an officer to explain the law of “stand your ground” and then gave a presentation to the rest of the jurors based on the information given by the officer. This was misconduct. Since the jury was 11-1 in favor of acquittal until the “presentation” was given, the State could not overcome the presumption of prejudice.

The rule in this state when juror misconduct is shown in a criminal case is that prejudice is presumed and to avoid reversal, the state must disprove prejudice beyond a reasonable doubt. That presumption is not changed under the new Evidence Code.

The Court in its opinion notes that the presumption of harm from juror misconduct is a longstanding one. The genesis of the rule in this state appears to  be Gholston v. Gholston, 31 Ga. 625 (1860), where it is stated without citation to an earlier source.

Hill-Blount v. State

Case No.A16A1697 (October 26, 2016)

JUROR MISCONDUCT: Improper communication must be inherently prejudicial to be reversible error.

When there is improper communication with a jury, the verdict will not be disturbed unless the communication was so inherently prejudicial to the defendant that the verdict must be deemed inherently lacking in due process.

During jury deliberations, , a juror asked the court bailiff if the defendant’s criminal history should come into play during the jury’s consideration of the case. The bailiff answered the juror’s question by saying “I told him that that was not available, we didn’t have anything on him, nothing to go the jury.”

Moreover, the improper communication was not shown to be prejudicial. To disturb a jury’s verdict, the improper communication must involve “statements, that were so inherently prejudicial to the defendant that the verdict must be deemed inherently lacking in due process.” Causey v. State, 319 Ga. App. 841 (2013).

Parker v. State

Case No. A16A1252 (November 1, 2016)

CLOSING ARGUMENT: State cannot use conviction that was used to impeach defendant’s credibility to argue that he had a propensity to commit crimes.

The State cannot introduce a conviction to impeach the defendant’s credibility, and then use that conviction to argue that because of that conviction, he has a propensity to commit crimes.

The Court of Appeals holds that the defendant’s testimony reasonably left the jury with the impression that he had never been in trouble before, so it was appropriate for the State to disprove this

factual testimony with evidence of the prior conviction as provided in O.C.G.A. §34-6-621.

The State’s closing argument, however, was improper. The prior conviction was introduced for the impeachment of the defendant’s testimony, not as evidence of other acts under O.C.G.A. §24-4-404 (b). But even if it had been admitted under 404(b), the State was still prohibited from using the evidence to argue that the defendant had a propensity to commit the type of crime that he was on trial for.

State v. Vickers

Case No. A16A0792 (November 1, 2016)

SEARCH & SEIZURE: Officers cannot enter a home or its curtilage without a warrant, consent, or exigent circumstances.

The trial court properly suppressed drugs that law enforcement seized from a car parked within the curtilage of the defendant’s property without a warrant, consent to search, or exigent circumstances.

“We decline to alter the established Georgia rule that vehicles, like any other item of location within the curtilage of residence, are not to be searched without a warrant, consent, or exigent circumstances.”

Raheem v. State

Case No. A16A1362, A16A1363 (November 16, 2016)

GUILTY PLEA: Invalid because defendant not advised of Boykin rights. State has burden of establishing that plea was knowingly and voluntarily entered

When the record doe not “affirmatively disclose” that a defendant was informed of the three Boykin rights, the remedy is automatic reversal.

The trial court granted the defendant’s motion for out- of-time appeal regarding his 1981 motor vehicle theft conviction and his 1982 burglary conviction. The defendant argued that his guilty pleas were not knowingly and voluntarily entered because he was not informed of all his Boykin rights before entering his pleas.

Advice and waiver of the three Boykin rights are interpreted as a “strict constitutional requirement, with reversal the automatic consequence if a deviation is found to have occurred.” Because the record does not show that the defendant was advices of all three Boykin rights, his guilty pleas are invalid and his convictions were reversed.

Winfrey v. State

Case No. A16A1609 (January 17, 2017)

APPEAL (GUILTY PLEA): You don’t waive your right to direct appeal if you don’t file a motion to withdraw guilty plea before filing a notice of appeal.

If the record doesn’t include everything you need for appeal, you should file a motion to withdraw guilty plea first. The appellate courts can only consider the evidence in the record.

A trial court does not impermissibly interfere in plea negations when it discussed the possible outcome of a trial but does not say that the defendant would be punished more harshly for choosing trial over plea.

The Court determined that while this “is a close case,” the trial court never explicitly told the defendant that he would be facing a longer sentence if he went to trial. The judge correctly informed the defendant that he was giving up the opportunity to negotiate the charges, that his sentence would be base on the jury’s verdict, and that the defendant’s parole eligibility would not be a factor in sentencing.

Bonner v. State

Case No. A16A1097 (November 17, 2016)

DOUBLE JEOPARDY: Cannot be convicted of hijacking and then theft by receiving the same vehicle. No matter how indicted, the goods must be stolen by someone other than the defendant. Hijacking a motor vehicle and theft by receiving are mutual exclusive crimes.


Under Current immigration rules, an alien who is convicted of a crime involving multiple moral turpitude (“CMT”) within 5 years (or 10 years for a legal permanent resident (“LPR”)) after admission and who is convicted of a crime “for which a sentence of one year or longer may be imposed” is deportable. In addition, any alien who is convicted of two or more CMTs, not arising out of the same scheme of criminal conduct is, deportable. Notably, CMT is not clearly defined in the Immigration and Nationality Act (“INA”); but it is generally agreed that crimes involving fraud, theft, intent to harm, and larceny fall in the category of CMT. According to the Board of Immigration Appeals, a CMT is nebulous, referring to crimes that “shock the public conscience,” that are “inherently base, vile, or depraved,” committed either with an “evil” intent or recklessly.

An alien also may be deported if convicted of an “aggravated felony.” A crime does not necessarily fall into the category of aggravated felony merely because it is a felony with an “aggravated” element under state law. Rather, an aggravated felony for purposes of immigration law is inter alia, (1) murder, rape, or sexual abuse of a minor; (2) illicit trafficking in a controlled substance; (3) illicit trafficking in firearms or “destructive devices”; (4) an offense involving money laundering; (5) a “crime of violence” as defined in 18 U.S.C. §16; (6) a theft offense (including receipt of stolen goods) or burglary offense for which the term of imprisonment is at least one year; (7) an offense relating to demand or receipt of ransom; (8) an offense relating to child pornography, (9) an offense relating to a failure to appear in court pursuant to answer or dispose of a charge of felony for which a sentence of two years or more may be imposed, etc.

Under federal immigration rules, a “conviction” arises from both a guilty plea and where a defendant offers a “plea of no contendere or has admitted sufficient facts to warrant a finding of guilt.” Thus, an Alford plea would not save a client from the immigration consequences of his guilty plea.

For example, the latest immigration rules and international USCIS policies issued by the White House greatly expand who may be deported and when.

Excerpt from “Immigration and Criminal Law in the Trump Administration: A Primer” by Attorneys Fakiha Khan and Kendra Mitchell.

We are Defenders

Defense lawyers and their clients should know that many people in removal proceedings actually have a way to fight their removal. Detention does not always equal deportation. There are generally four scenarios in which a person in removal proceedings might have an avenue of relief:

  1. Client has been present in the U.S. for at least 10 consecutive years (or 7 years for legal permanent resident with slightly different requirements than herein listed) AND has a qualifying U.S. citizen or permanent resident family member (parent, spouse, or child) AND does not have any disqualifying convictions (theft, drugs, violent offenses, aggravated felonies, etc. (DUI is okay)).
  2. Client’s spouse is a U.S. citizen AND client entered U.S. with a visa AND does not have any disqualifying convictions (theft, drugs, violent offenses, aggravated felonies, etc. (DUI is okay)).
  3. Client can prove (with strong evidence) that their country conditions support a credible/reasonable fear of persecution/torture specifically because of race, religion, political opinions, nationality, or membership in a particular group. (Note: general civil unrest or violence in a country is not enough to qualify for this defense).
  4. Client has been the victim of a (typically violent) crime in the U.S. that they have reported to the police and continued to cooperate with the prosecution process.

Excerpt from “We are Defenders – Different Playing Fields, Same Team” by Attorney Jessica Stern

What Matters: A State Court’s Reasoning or Only the Result?

The Supreme Court in Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011), held that when a state court decision lacks reasoning, federal habeas courts must “determine what arguments or theories support or… could have supported, the state court’s decision; and then it must ask whether it is possible fair minded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of the Court.” Id. at 102, 131, S.Ct. 770 (emphasis added). Because federal courts reviewing summary denials or unexplained rulings do not have any legal reasoning to review, they are forced to imagine all possible reasons why the state court denied relief and, in some cases, simply “craft a story that makes the state result justifiable.” Brittany Glidden, When the State is Silent: An Analysis of AEDPA’s Adjucation Requirement, 27 N.Y.U Rev. L. & Soc. Change 177, 190 (2001). This approach is not limited to legal issues, but applies to factual issues as well. But because state courts often do not make factual findings when they issue summary denials, federal courts must often “recreat[e]” possible scenarios and consider any “plausible factual findings” Id. at 191-192.

Attorney Marcia Shein is a nationally recognized attorney in federal pre-trialsentencingappeals and post-conviction relief whose articles, and personal interviews have been published in numerous state and national law journals. Contact our office today for a free case evaluation.