Georgia Criminal Law News: May 2018


Recent Parole Successes at the Law Firm of Shein & Brandenburg

The firm represented J.H. before the parole board. He was released on March 27, 2018 after serving 18 years of a life sentence for Armed Robbery, False Imprisonment, and Possession of a Firearm.

The firm also represented C.A. who was sentenced to serve 15 years for sale and possession of heroin. She will be released in April after serving just 4 years.


 Brown v. State, Supreme Court of Georgia

Case No. S17A1582 (February 5, 2018)

HUNSTEIN, Justice.

Appellant Melvin Brown Jr., was tried and convicted of murder and related offenses

On April 29, 2014, an Athens-Clarke County grand jury indicted Appellant for charges related to crimes committed against Javious Tucker and Cyntrelis Boggs as follows: malice murder of Tucker (count 1); felony murder of Tucker predicated on aggravated assault (count 2); felony murder of Tucker predicated on terroristic acts (count 3); felony murder of Tucker predicated on possession of a firearm by a convicted felon (count 4); aggravated assault of Tucker (count 5); terroristic acts against Tucker (count 6); possession of a firearm by a convicted felon (count 7); aggravated assault of Boggs (count 8); and three counts of use of a firearm by a convicted felon during the commission of another felony (counts 9-11). Following a trial from August 12-14, 2014, a jury found Brown guilty on all counts. The trial court subsequently sentenced Brown pursuant to OCGA § 17-10-7 (a) to life without parole for malice murder (count 1), 20 years consecutive for aggravated assault (count 8), and to three consecutive 15-year sentences for the weapons charges (counts 9-11), for a total sentence of life without parole plus 65 years. The felony murder counts were vacated by operation of law and all remaining counts merged for sentencing purposes without challenge from the State. Brown appeals, claiming that the evidence was insufficient to support his convictions, that he received ineffective assistance of counsel, that other acts evidence was erroneously admitted at trial, and that the trial court erroneously failed to grant Brown’s motion for a mistrial. Because we find that the trial court committed reversible error by admitting Brown’s other acts evidence, we reverse.

This Court has adopted the Eleventh Circuit’s three-part test for determining the admissibility of other acts evidence, requiring that a trial court make findings that:

(1) the evidence is relevant to an issue in the case other than the defendant’s character, (2) the probative value is not substantially outweighed by undue prejudice, and (3) there is sufficient proof for a jury to find by a preponderance of the evidence that the defendant committed the prior act. [Cit.] When weighing the probative value of other acts evidence against its prejudicial effect, Georgia courts apply the balancing test set forth in OCGA § 24-4-403, which similarly tracks its federal counterpart. See Fed. R. Evid. 403. On appeal, a trial court’s decision to admit evidence pursuant to OCGA § 24-4-404 (b) is reviewed for a clear abuse of discretion, a review requiring the appellate court to make a “common sense assessment of all the circumstances surrounding the extrinsic offense, including prosecutorial need, overall similarity between the extrinsic act and 7the charged offense, as well as temporal remoteness.” (Citations omitted.) Parks v. State, 300 Ga. 303, 305-306 (794 SE2d 623) (2016).


Here, Brown did not claim that the shooting was the result of an accident or mistake. Instead, defense counsel argued in his closing remarks that Brown’s actions were justified, claiming that Brown shot the victims in self-defense; thus, whether his actions were the result of an accident or mistake was irrelevant. See OCGA § 24-4-401 (defining relevant evidence as that “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”); Parks, 300 Ga. at 306. Accordingly, because accident or mistake was not at issue, it was error for the trial court to admit the 2006 guilty pleas on that ground pursuant to Rule 404 (b). Brown’s argument that he committed the shooting, but his actions were justified, we conclude that the trial court abused its discretion by admitting the question whether intent was a material issue in this case.

As we have repeatedly explained, “‘[a] defendant who enters a not guilty plea makes intent a 404 (b) evidence because the prior aggravated assaults were clearly more prejudicial than probative. The second prong of our 404 (b) analysis requires us to weigh the probative value of the other acts evidence against the danger of unfair prejudice. See Olds v. State, 299 Ga. 65, 70 (786 SE2d 633) (2016) (“for evidence of other acts to be admitted under Rule 404 (b), the evidence must pass the test of OCGA § 24-4-403”). Rule 403 provides that “[r]elevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” As the Eleventh Circuit previously explained, “[o]ne of the dangers inherent in the admission of extrinsic offense evidence is that the jury may convict the defendant not for the offense charged but for the extrinsic offense,” because “the material issue which imposes a substantial burden on the government to prove intent, which it may prove by qualifying Rule 404(b) evidence absent affirmative steps by the defendant to remove intent as an issue.’” (Emphasis added.) Bradshaw v. State, 296 Ga. 650, 656-657 (769 SE2d 892) (2015) (quoting United States v. Edouard, 485 F3d 1324, 1345 (11th Cir. 2007)). But see Old Chief v. United States, 519 U.S. 172 (II) (A) (117 SCt 644, 136 LE2d 574) (1997). However, because the parties did not raise this issue, we do not address it. (In our opinion the Supreme Court’s decision here may be relevant to habeas review).

Here, in light of Brown’s self-defense claim, the probative value of the other acts evidence was extremely low at best. This is because “probative value depends . . . upon the need for the evidence. When the fact for which the evidence is offered is undisputed or not reasonably susceptible of dispute, the less the probative value of the evidence.” Id. at 76. By asserting self-defense, Brown did “not deny the intent to inflict injury, but claim[ed] authority for the act under the legal excuse of reasonable fear of immediate serious harm to oneself or another.” White v. State, 255 Ga. 731, 733 (342 SE2d 304) (1986). As such, “the only factual issue in the case was whether [self-defense] was the reason for the admitted act.” (Punctuation omitted.) Parks, 300 Ga. at 307 (quoting United States v. Commanche, 577 F3d 1261, 1268 (10th Cir. 2009)). “‘The fact that [Brown] had committed an assault on another person . . . [nine] years earlier had nothing to do with his reason for . . . shooting the victim,’” and “really has no purpose other than to show appellant’s propensity toward violence.” Parks, 300 Ga. at 307 (quoting Commanche, 577 F3d at 1268). In fact, as detailed in Division 1 supra, the State had other admissible evidence available to rebut Brown’s self-defense claim without the introduction of the prior aggravated assaults. See Hood, 299 Ga. at (4).

Because self-defense claims are fact specific to each individual case, and because the other acts evidence filled no narrative holes in the State’s presentation of evidence, the “slight cumulative probative value [toward proving intent that] can be ascribed to the [extrinsic evidence] was substantially outweighed by its danger of creating prejudice.” United States v. Spletzer, 535 F2d 950, 956 (5th Cir. 1976). See also Beechum, 582 F2d at 914 (“[I]f the Government has a strong case on the intent issue, the extrinsic offense may add little and consequently will be excluded more readily.”). Consequently, the trial court erred in admitting the other acts evidence for the purpose of showing intent. It was also error for the trial court to admit the other acts evidence as proof of Brown’s plan.

The Fifth Circuit has explained that other acts evidence used to establish a plan is admissible because, it involves no inference as to the defendant’s character; instead his conduct is said to be caused by his conscious commitment to a course of conduct of which the charged crime is only a part. The other crime is admitted to show this larger goal rather than to show defendant’s propensity to commit crimes. United States v. Krezdorn, 639 F2d 1327, 1331 (5th Cir. 1981)3 (quoting 22 Charles Alan Wright & Kenneth A. Graham, Jr., Federal Practice & Procedure: Evidence § 5244, 500 (1978)).

In order for other acts evidence to be admitted for the purposes of establishing a plan, the evidence should “logically raise[] an inference that the defendant was engaged in a larger, more comprehensive plan. The existence of a plan then tends to prove that the defendant committed the charged crime, since commission of that crime would lead to the completion of the overall plan.” Id. Other acts evidence may also be considered part of a common plan “[i]f the uncharged offense is ‘so linked together in point of time and circumstances with the crime charged that one cannot be fully shown without proving the other. …’” (Citations omitted.) Id.

Here, Brown’s 2006 convictions of aggravated assault did not tend to establish a larger goal, nor were they so connected with the crime charged that the murder could not be fully shown without proving the prior assaults. Finally, they were not relevant to the ultimate issue in the case – i.e., whether he acted in self-defense. Instead, the other acts evidence primarily established one thing – Brown’s propensity toward violence, which the State seemed to acknowledge at the pretrial hearing by stating that the purpose of these convictions was to show Brown’s propensity to respond to verbal altercations by “using a firearm, shooting at folks when he’s not in an immediate danger at the time.” Because Brown’s prior aggravated assault convictions did not show that he was engaged in a larger plan or scheme, the trial court erred in admitting the 2006 convictions as 404 (b) evidence establishing a plan. Since the admission of this evidence pursuant to OCGA § 24-4-404 (b) was erroneous, we must review the record de novo to determine whether the trial court’s error was harmless. Smith v. State, 299 Ga. 424 (2) (d) (788 SE2d 433) (2016). “The test for determining nonconstitutional harmless error is whether it is highly probable that the error did not contribute to the verdict.” (Citation omitted.) Timmons v. State, ___ Ga. ___, ___ (807 SE2d 363, 368) (2017). “In doing so, we weigh the evidence as we would expect reasonable jurors to have done so, as opposed to assuming that they took the most pro-guilt possible view of every bit of evidence in the case.” Boothe v. State, 293 Ga. 285, 289 (745 SE2d 594) (2013). Here, the evidence underlying Brown’s guilt is not overwhelming.

Though there is no dispute that Brown and Tucker were engaged in an ongoing altercation, and that Brown eventually shot Tucker, there were no eyewitnesses to the shooting other than Brown. Moreover, while the forensic evidence indicates Brown took steps toward and shot into the car multiple times, there is ample conflicting evidence concerning whether he acted in self-defense. In addition to the facts recounted above, the record also includes evidence that: Tucker became “very upset” and “heated” after the pair’s initial confrontation outside the house and, because of this, followed Brown down the hill and continued to provoke him; Boggs believed Brown was attempting to place distance between himself and Tucker immediately prior to the shooting; Tucker had a gun in his possession during the encounter; Brown and other witnesses retreated back up the hill, fearing that Tucker had pulled a weapon from his trunk in order to shoot Brown; Brown told nearby witnesses he believed Tucker was going to pull a gun on him prior to getting his own weapon; Tucker knew of, and could have taken, a different route to leave the neighborhood, but chose to follow Brown up the hill; and Tucker’s car was still in motion immediately prior to the shooting. In light of the entirety of the evidence presented at trial, we cannot say that it is highly probable that the error did not contribute to the verdict. Accordingly, we must reverse Brown’s convictions. Because we reverse Brown’s convictions for the erroneous admission of 404 (b) evidence, we do not address his remaining claim of trial court error or his claims of ineffective assistance of counsel.

Hourin vs. State, Supreme Court of Georgia,

Case No. S17A0962 (August 28, 2017)

The defendant was a non-physician owner of a medical clinic. He was charged with unauthorized distribution of controlled substances. Police executed a search warrant at the clinic, seizing evidence. The defendant moved to suppress the evidence seized from the search of the office. He claimed that the “knock and announce” rule codified in OCGA § 17–5–27 was violated. The statute requires officers to knock and announce their presence before using force to enter a premises to execute a search warrant. Here, the defendant claimed that this rule was violated because while agents did come into the front of the office to serve the search warrant and

announce their presence, other agents simultaneously entered the back door of the office through an open back door and began the search. “The trial court concluded that an announcement simultaneous with entry satisfied the statute [OCGA § 17–5–27]. Because the statute requires the announcement to precede entry, this conclusion was error.”


Johnson vs. State, Supreme Court of Georgia,

Case No. S17A1105 (Oct. 2, 2017)

When the prepared transcript of trial proceedings is not sufficiently correct and complete to allow the identification and evaluation of errors, the affected defendant is entitled to a new trial. The original transcript and verbatim transcript materials from the underlying murder prosecution were destroyed in a fire at the court reporter’s home. Instead, the prosecution produced a 14-page, double-spaced narrative transcript of the proceedings, which the lower court held to be correct and complete. The produced transcript, however, contained only brief summaries of testimony from the prosecution’s 14 witnesses, which did not delineate whether the testimony was received on direct- or cross-examination. The transcript indicated that appellant raised 14 evidentiary objections at trial, which were overruled, but it did not identify the basis for those objections. And the transcript left out entirely the charge to the jury.

On appeal, the defendant challenged that the loss of the transcript required the grant of a new trial. The Supreme Court agreed. The transcript’s deficiencies deprived appellant of his right to an appeal, which cannot be had without a meaningful record to review. Having been denied his right to an appeal, appellant was entitled to a new trial. Important here is that the entire transcript was missing. Where only portions of a transcript are missing, especially those not required by law to be transcribed, an appellant must show harm to be entitled to a new trial.


State v. Wilkins, Supreme Court of Georgia,

Case No. S17A0873 (Oct. 2, 2017)

To be admissible as non-hearsay under Rule 801(d)(2)(E) a coconspirator’s statement must have been in furtherance of the conspiracy—even if made during the concealment phase. In a multiple murder prosecution, the trial court excluded on the defendant’s motion in limine to exclude statements made by a codefendant while he was attempting to avoid arrest. While surely made during the concealment phase of the crime, the codefendant’s statements were merely incriminating. The Court affirmed the exclusion of this evidence. Georgia’s new rule borrows in part from the former Code section 24-3-5, in that it would admit statements made during the concealment phase of the conspiracy, which the federal rule would not. However, the present Rule incorporates from the Federal Rule the requirement the statement must have been made in furtherance of the conspiracy. Coconspirator statements not made to advance or conceal the conspiracy, but only to disclose the scheme are not admissible against the accused, since they were not in furtherance of the conspiracy.


State v. Jefferson, et al, Supreme Court of Georgia

Case No. S17A1085 (October 30, 2017)

The Court affirmed the trial court’s order declaring OCGA § 16-15-9, unconstitutional on its face. The statute, which permits the admission of others’ convictions for gang-related activity in a wholly unrelated gang prosecution against an accused, violates the Confrontation Clause. The defendants were being prosecuted under the Gang statutes. The State served notice of its intent to introduce into evidence certified copies of the convictions of four people to show they were gang members. None of the four people associated with these four certified convictions were the 18 involved in the trial against these specific defendants. In serving this notice, the State relied on OCGA § 16–15–9 which seems to allow this practice.

The defendants responded by objecting to the notice and contending that this practice violated their Sixth Amendment rights to the confrontation of witnesses. The trial court agreed and held that the statute was unconstitutional. The Supreme Court holds that the trial court was right and the judgment in question is affirmed. Relying on Kirby v. United States, 174 U.S. 47 (1899), the Supreme Court holds that “OCGA § 16–15–9 is unconstitutional on its face to the extent it authorizes the admission of the convictions of non-testifying non-parties as evidence of a criminal street gang,” proof of which is an element of the crime in gang cases.


Timmons v. State, Supreme Court of Georgia

Case No. S17A1149 (October 30, 2017)

The trial court erred in allowing the State to rebut the defense’s evidence of the victim’s character of violence with specific bad acts (violent and racist Facebook posts) rather than opinion evidence. The State may rebut evidence of the victim’s pertinent character trait with evidence of the defendant’s pertinent character trait, but that evidence must be opinion evidence, not specific acts. So even if the defendant here implicitly raised the issue of the victim’s character for violence (he didn’t), the specific, unrelated Facebook posts were inadmissible to rebut it. The majority concludes that the error here was harmless. In dissent, Justice Hunstein, joined by Justice Nahmias, disagrees with the harmless-error analysis. The dissenters believe that the majority applied the wrong standard (sufficiency all over again) and did not give proper weight to all the inferences the jury needed to make to reach guilt.


Jones, Gardiner, & Luccis v. Medlin, Warden, Supreme Court of Georgia

Case Nos. S17A1061, S17A1062, S17A1063 (November 2, 2017)

The Court reverses the denial of habeas relief to three petitioners who were convicted of murder in the 90s under Brady because the government withheld from them evidence that witnesses could not identify the killers and that another person had threatened to commit a racially motivated crime similar to the one that the victim suffered—hours after the defendants here had been incarcerated.


Thompson v. State, Supreme Court of Georgia

Case No. S17A0935 (November 2, 2017)

The Court here reverses the defendant’s convictions for murder and armed robbery because the trial court abused its discretion in admitting evidence of a subsequent armed robbery that was wholly unconnected to the allegations in this case. Because the evidence in the present case

was largely circumstantial and the state relied on the propensity inference in argument, the error cannot be said to have been harmless. This is a murder appeal in which the issue is whether the trial court erred when it admitted Rule 404 (b) evidence of two other incidents involving the defendant. The first incident was a subsequent attempted armed robbery which occurred 3.5 years after the murders in question. Evidence of this incident was admitted to show motive for the murders. The Supreme Court holds that this evidence was erroneously admitted and constitutes reversible error. The murders and this incident were not commonly connected as part of a common scheme. Since the incident did not prove motive for the murders; it could only have established the defendant’s propensity to commit crime which is not a proper purpose under Rule 404 (b). The trial court did not err, however, in admitting evidence that the defendant was a drug dealer who purchased an assault rifle, as that evidence was properly relevant to prove motive.



Floyd v. State, Georgia Court of Appeals

Case No. A17A1058 (July 20, 2017)

            The State failed to prove kidnapping where the only evidence of movement was that the defendant pointed a gun at a 12-year-old boy who was in his bedroom, forced him to stand up from his bed, and made him retrieve various items from around the room and place them in a bag for the defendant. Floyd was charged with kidnapping the boy by forcing him to stand up from his bed, at gunpoint, and retrieve various items from around the room and place them in a bag for Floyd to take. The evidence was insufficient to  prove kidnapping of the boy. He was not forced to leave his bedroom. Moreover, “the movement simply was incidental to the crime of armed robbery; it did not conceal or isolate [the brother], it did not lessen the risk of detection, and it was not done for the purpose of avoiding apprehension. Thus, the State failed to establish the required element of asportation.”


Daniel v. State, Georgia Court of Appeals

Case No. A17A0746 (August 2, 2017)

Failure to inform client that recidivist sentence meant that he would be ineligible for parole is deficient performance. Daniel was convicted at trial of burglary and other offenses. Since he had three prior felony convictions, he received a sentence of 20 years to serve without parole in accordance with OCGA § 17–10–7 (c). On appeal, Daniel contended that his lawyer was ineffective for improperly advising him on the effect of the recidivist notice. Specifically, he argued that trial counsel improperly explained that despite the State’s recidivist notice, the trial court ultimately had discretion as to whether or not he would be sentenced as a recidivist. The Court of Appeals holds this to be wrong legal advice, thus the defendant’s motion for new trial should have been granted based on ineffective assistance of counsel. The trial judge did not have such discretion. Instead, once the notice was filed, the provisions of OCGA § 17–10–7 (c) applied automatically once the defendant was convicted of a felony. “[T]he recidivist statute has been a long standing feature of our criminal justice system, … [I]t is succinct, clear and explicit and applies automatically upon an offender’s conviction as a recidivist.” Alexander v. State, 297 Ga. 59, 65 (2015).