Georgia Supreme Court Blog

March 17, 2010

Court Majority: Sex Offender Registration Not Punishment, May be Applied to Non-Sexual Offense Against Minor

Filed under: Carol Hunstein, criminal law, Harold Melton, sex offenders — bce30064 @ 5:32 pm

In a 5-to-2 vote, the Supreme Court of Georgia has ruled against a man convicted of false imprisonment of a minor and upheld the state’s sex offender registration law as constitutional.

When Jake Rainer was 18, he and three others planned to rob a 17-year-old girl after arranging to meet her to buy some drugs. When she got into their car to complete the transaction, they drove away. They stopped twice, trying to steal her purse and push her out of the car. Eventually they succeeded. Witness identifications later led to the arrest of the four men.

In 2001, Rainer pleaded guilty in Fulton County to false imprisonment and robbery and was sentenced to 10 years, with five in prison and the rest on probation. After serving a year on probation, he learned for the first time he was required to register as a sex offender. See Rainer’s Online Sex Offender Profile. Rainer challenged the law’s application to his case because the crime he was convicted of did not involve any sexual activity. The State filed a motion to dismiss his constitutional challenge, and the trial court granted it, finding that the registration statute – Official Code of Georgia 42-1-12 – is constitutional. Rainer then appealed to the state Supreme Court, arguing that the requirement he register as a sex offender constitutes “cruel and unusual punishment” and violates his constitutional right to due process because it is overly inclusive.

But in today’s opinion, written by Justice Harold Melton (data), the majority states that Georgia’s sex offender registration requirements “are regulatory, and not punitive, in nature.”

“Specifically, because the registration requirements themselves do not constitute punishment, it is of no consequence whether or not one has committed an offense that is … sexual in nature before being required to register.” The law defines a sexual offender as anyone “[w]ho has been convicted of a criminal offense against a victim who is a minor or any dangerous sexual offense.”

“Under the statute, one only needs to have committed a … criminal offense against a victim who is a minor … in order to meet the statutory definition of … sexual offender for purposes of registration,” the majority states. The law is not overly inclusive, the majority finds. Rather, it “advances the State’s legitimate goal of informing the public for purposes of protecting children from those who would harm them.”

But in her dissent, Chief Justice Carol Hunstein (data) disagrees, finding the statute “unconstitutionally over-inclusive.”

“[T]he statutory scheme creating the sex offender registry seeks to protect children not from all harm, but from harm by those who have committed certain designated offenses,” the dissent says. “[A]lthough a sexual offense may occur during a kidnapping or a false imprisonment, such conduct would clearly be covered by other provisions of the statute. Rainer should not be characterized as a sex offender, she states in the dissent. “I am a parent. I am a grandparent. I care about the children of this state. But I am also obligated to care about the constitutional rights of all those affected by its laws.” Justice Robert Benham joins in the dissent.

Case Details:
Attorney for Appellant (Rainer): Ann Marie Fitz
Attorneys for Appellee (State): Thurbert Baker, Attorney General, Joseph Drolet, Sr., Asst. A.G., Paige Elizabeth Boorman, Asst. A.G.
Summary by Georgia Supreme Court Public Information Office

More Information:

  • Georgia Supreme Court Opinions Database: Rainer v. The State (S09A1900)
  • Georgia Criminal Law Information: From the Center for Legal Solutions

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  • March 9, 2010

    Court Reverses Dekalb Murder Convictions Due to Trial Court Evidence Errors

    Filed under: Carol Hunstein, criminal law, evidence, Harold Melton, murder — bce30064 @ 8:48 pm

    Steven Manley (Source: GA DOC)

    The Georgia Supreme Court has reversed the murder convictions and life prison sentences given to Steven Manley and Robert Allen for the 2007 shooting death of Emmett Whatley in DeKalb County.

    According to the evidence and briefs filed in the case, Whatley, known as “Black,” lived in a house on Chapman Circle with his 12-year-old son. He had a recording studio in the basement, and frequently had friends over to play music. Alexandria “Alex” Phillips was one of them. According to prosecutors, in January 2007, Phillips told her neighbors, Steven Manley and Cody Allen-Brown, about Whatley’s studio, and they asked if Whatley had any guns or money. She told them she knew he had money. Phillips testified that the two men then decided to “hit a lick,” or rob Whatley, and she helped them set it up. Her boyfriend, Robert Allen, was also involved. Around midnight on Feb. 8, 2007, the three men drove in Allen’s Lincoln Navigator SUV to Whatley’s house, calling Phillips from the car for directions. After watching Whatley leave with a woman, the men parked and waited until Whatley returned and got out of his car. When he tried to run, Allen-Brown shot him in the back. The men then left, and Whatley bled to death. The next morning, his son found him in the front yard with his keys and two cell phones. Phone records led police to Phillips, whose phone records and statements led them to the three men.

    In October 2008, a jury convicted Manley and Allen of murder and they were sentenced to life in prison plus five years. (Allen-Brown was also convicted of Whatley’s murder.)

    In a plea deal, Phillips pleaded guilty to aggravated assault and received a 6-year prison sentence in exchange for her testimony against the men. Phillips could have been convicted of Whatley’s murder along with the others and received a life sentence, which would require her to serve 30 years behind bars before becoming eligible for parole. Her 6-year sentence, on the other hand, did not require her to spend any particular amount of time in prison before she was eligible for parole.

    Robert Allen (Source: GA DOC)


    In an opinion written by Justice Harold Melton (data), the Supreme Court found that the “evidence was sufficient to enable the jury to find Manley and Allen guilty of the crimes for which they were convicted beyond a reasonable doubt.” But the trial court made several errors, and “we must reverse in both cases.”

    In their appeal, attorneys for both Allen and Manley argued the trial court erred in not allowing them to fully cross examine Phillips about the deal she got in exchange for testifying against them. “Based on the facts of this case, we agree,” today’s opinion states. “Allen and Manley were prevented from fully exploring the possibility that Phillips was biased in favor of the State due to her parole disparity…,” the Court held. “This evidentiary whipsaw potentially misled the jurors, and, as a result, requires that both convictions be reversed.”

    In the decision, the high court overruled its 2003 decision in Hewitt v. State, along with any other cases that relied on it, to the extent that they could be interpreted to mean “that a witness may never be cross-examined regarding eligibility for parole in order to show bias in favor of the State.”

    The Supreme Court also found that the trial court erred in restricting the cross-examination of the informant who implicated Allen-Brown in the killing to determine whether he might be biased in favor of the State. “The co-defendants should have been allowed to question the informant about the basis of his first offender plea for these purposes,” the opinion states.

    Finally, the trial court should have suppressed Manley’s statement to police that he was in Whatley’s subdivision the night of the murder to buy drugs. More than once, the record shows, Manley stated he wanted a lawyer present, yet detectives continued to interrogate him. “Under these facts, Manley unambiguously requested the presence of his lawyer, and any questioning should have stopped immediately,” the opinion stated.

    In a special concurrence, Chief Justice Carol Hunstein (data) agreed with the final judgment but takes issue with the overruling of case law. “No reasonable person could possibly interpret Hewitt v. State…as the majority does, i.e., as supporting the proposition that a witness may … never” be cross-examined regarding eligibility for parole. Nor can it cite to any case in which Hewitt was so interpreted to support this proposition. Accordingly, there is no basis whatsoever for the majority’s insistence on overruling this case…” Justice P. Harris Hines joined in the special concurrence.

    More Information:
    Georgia Supreme Court Opinions Database: MANLEY V. THE STATE (S10A0136), ALLEN V. THE STATE (S10A0137)
    Georgia Criminal Law Reference Page: From the Center for Legal Solutions

    Summary by the Georgia Supreme Court Public Information Office
    Attorney for Appellants (Manley and Allen): Gerard Kleinrock, DeKalb Public Defender
    Attorneys for Appellee (State): Gwendolyn Keyes Fleming, District Attorney, Lenora Grant, Dep. Chief Asst. D.A., Thurbert Baker, Attorney General, Mary Beth Westmoreland, Dep. A.G., Paula Smith, Sr. Asst. A.G., Chris Johnson, Asst. A.G

    February 24, 2010

    Georgia’s Death Row

    Filed under: criminal law, Death Penalty, murder — bce30064 @ 8:08 pm

    A significant share of the Georgia Supreme Court’s work is devoted to death penalty cases. As one might expect, death penalty cases are subject to extensive appellate review. Most of these cases will be heard before the Georgia Supreme Court as direct appeal of a verdict of guilt as well as subsequent challenges to the form and manner of the original trial.

    A February 1, 2010 query of the Georgia Department of Corrections web site indicates that 100 inmates are currently under death sentences:

    Andrews, James Douglas
    Arevalo, Joaquin E
    Arrington, Robert Oliver
    Barrett, Clay
    Bishop, Joshua Daniel
    Blankenship, Roy W
    Brannan, Andrew Howard
    Brockman, Ward Anthony
    Brookins, Brian Duane
    Brookshire, Kelly R
    Bryant, Nicholas Jason
    Burgess, Raymond
    Butts, Robert
    Clark, Cleveland
    Cohen, Michael A
    Collins, Roger
    Conner, John W
    Cook, Andrew Allen
    Cromartie, Ray Jefferson
    Davis, Troy Anthony
    Deyoung, Andrew Grant
    Drane, Leonard
    Edenfield, David H
    Ellington, Clayton Jerrod
    Esposito, John Anthony
    Ferrell, Eric L
    Finney, Eddie W
    Ford, Melbert Jr
    Foster, Timothy T
    Franks, David Scott
    Fults, Kenneth E
    Gary, Carlton
    Greene, Daniel
    Hammond, Emmanuel Fitzgera
    Heidler, Jerry Scott
    Henry, George R
    Hill, Warren L
    Hittson, Travis Clinton
    Holiday, Dallas B
    Holsey, Robert W
    Hulett, Donnie Allen
    Humphreys, Stacey Ian
    Jarrells, Jonathen
    Jefferson, Lawrence J
    Jenkins, Larry Leonardre
    Johnson, Marcus R
    Jones, Ashley Lyndol
    Jones, Brandon Astor
    Jones, Jerry W
    King, Warren
    Lamar, Cedrick
    Lance, Donnie
    Lawler, Gregory P
    Ledford, J W
    Ledford, Michael William
    Lee, James Allyson
    Lewis, Christopher K
    Loyd, Roger
    Lucas, Daniel A
    Mcpherson, Mark
    Meders, Jimmy Fletcher
    Miller, Michael
    Mitchell, Nelson Earl
    Morrison, Ernest U
    Morrow, Scotty G
    Nance, Michael W
    Okelley, Dorian Frank
    Pace, Lyndon Fitzgerald
    Palmer, Willie
    Perkins, David Aaron
    Perkinson, Eric Alexander
    Presnell, Virgil Delano
    Pye, Willie
    Raheem, Askia Mustafa
    Raulerson, Bill Daniel
    Rhode, Brandon J
    Rice, Lawrence
    Riley, William David
    Rivera, Reinaldo Javier
    Rogers, James Randall
    Sallie, William C
    Sealey, Richard
    Sears, Demarcus Ali
    Spears, Steven Frederick
    Speed, Norris U
    Stinski, Darryl Scott
    Stripling, Alfonzo
    Tate, Nicholas Cody
    Terrell, Brian Keith
    Tharpe, Keith L
    Thomason, Gary Chad
    Todd, William L
    Tollette, Leon
    Waldrip, Tommy L
    Walker, Artemus Rick
    Walker, Gregory
    Ward, Jamie R
    Wellons, Marcus A
    West, Keith
    Whatley, Frederick Ramone

    Nearly all of Georgia’s “death row” inmates are incarcerated at Georgia Diagnostic and Classification Prison in Jackson, Georgia. There is one woman sentenced to death, Kelly Brookshire. All but one of Georgia’s death row inmates have been convicted of murder; Demarcus Sears has been sentenced to death for kidnapping.

    January 26, 2010

    Court Reinstates Death Penalty Despite Defender’s Deficient Trial Preparation

    Filed under: attorneys, Carol Hunstein, criminal law, Death Penalty, murder — bce30064 @ 7:30 pm

    Lance

    Donnie Lance (Source: GA DOC)


    The Supreme Court of Georgia has reinstated the death sentences given to a Jackson County man for the 1997 murders of his former wife and her boyfriend.

    Donnie Cleveland Lance was convicted in 1999 of killing Sabrina “Joy” Lance and Dwight “Butch” Wood and sentenced to death for each murder. In 2002, the state Supreme Court unanimously affirmed the convictions and death sentences. But the following year, Lance filed a petition for a writ of habeas corpus – a civil proceeding that gives already convicted prisoners another chance to challenge their case in the county where they’re imprisoned. In April 2009, the habeas judge upheld Lance’s convictions but overturned his death sentences, finding that his trial attorney had provided “ineffective assistance of counsel” for failing to investigate claims that Lance had mental health problems. The state attorney general, representing the prison warden and on behalf of the State, appealed the ruling that threw out the death penalty, while Lance’s attorneys appealed the ruling that upheld his murder convictions.

    In a unanimous January 25, 2010 decision, Chief Justice Carol Hunstein (data), wrote “we reverse and reinstate Lance’s death sentences.” In response to Lance’s cross appeal, “we affirm” Lance’s convictions.

    According to evidence at trial, Lance had a history of violence against his wife, including electrocuting her with a car battery, beating her with his fist, a belt and a handgun and threatening her with flammable liquid and a chain saw. Joy’s father testified that just before midnight on Nov. 8, 1997, Donnie had called looking for Joy, and he told him she wasn’t there. Lance went to Wood’s trailer home, kicked in the front door and shot Wood twice with a shotgun, killing him. He then beat Joy with a shotgun with such force that the gun broke into pieces and her face was “utterly unrecognizable.” Lance later told a friend that his ex-wife, whom he called a derogatory name, would not be coming that day to clean the house and that both Joy and her boyfriend were dead. After his arrest, Lance bragged to an inmate that “he hit Joy so hard that one of her eyeballs stuck to the wall.”

    In a 29-page decision, the high court agreed that Lance’s trial attorney “performed deficiently in failing to prepare for Lance’s trial by investigating Lance’s background.” Had the attorney investigated, he would have learned that Lance had a history of alcohol abuse, had ingested gasoline as a child, was once exposed to toxic fumes while cleaning an oil tank, had been shot in the head and had been injured in car crashes, one of which when he was fleeing police while drunk. He’d also been treated at Georgia Regional Hospital for depression. However, “[g]iven Lance’s long history of contemplating the murder of Joy Lance and Butch Wood, the manner in which he finally carried out their murders, and his utter disregard for their suffering and deaths afterward, we conclude that the new evidence of Lance’s subtle neurological impairments, even when considered together with the other mitigating evidence that was or should have been presented at trial, would not in reasonable probability have changed the outcome of the sentencing phase if it had been presented at Lance’s trial,” the decision states. “We also conclude, contrary to Lance’s arguments in his cross-appeal, that the new evidence of subtle neurological impairments would not have significantly affected the jury’s deliberations during the guilt/innocence phase.”

    More Information: Georgia Supreme Court Database: HALL, WARDEN V. LANCE (S09A1536) and LANCE V. HALL, WARDEN (S09X1538) : Full Text and Visual Summary

    Summary by Georgia Supreme Court Public Information Office

    Attorneys for Appellant (State): Thurbert Baker, Attorney General, Mary Beth Westmoreland, Dep. A.G., Beth Burton, Sr. Asst. A.G.
    Attorneys for Appellee (Lance): L. Joseph Loveland, James Boswell

    December 28, 2009

    Convicted Murderer Gets New Trial Because of Withheld Impeachment Evidence

    Filed under: criminal law, evidence, murder — bce30064 @ 3:59 pm

    A man convicted of murder and sentenced to life in prison will get a new trial as a result of a decision by the Georgia Supreme Court.

    Richard Gonella

    Richard Gonella


    The high court has reversed the denial by a Richmond County court of Richard Anthony Gonnella’s motion for new trial on the ground that state prosecutors failed to reveal that the main witness against him had worked out a plea arrangement that could have gotten him a lighter sentence.

    Gonella was convicted of felony murder for the 2002 shooting death of John Henry Williams. According to evidence at trial and briefs filed in the case, the night of Sept. 6, 2002, Christopher Evans drove Gonnella to Williams’ apartment, where the two hoped to buy some marijuana. After arriving at the Ramblewood Apartment Complex in Augusta, Gonnella waited in the car while Evans knocked on Williams’ door and asked if he could purchase marijuana. Williams, known as “Red,” said he had no pot, but he told Evans he did have $500 and asked Evans to bring him some marijuana if he found any. Evans and Gonnella resumed looking for drugs. But when Evans told Gonnella what Williams had said, Gonnella replied, “if he has $500, we’re going to go back over there.” So they returned, and this time Evans waited in the car while Gonnella went to Williams’ apartment. Soon after, Evans heard a gunshot, and Gonnella ran down the hill from the apartment and jumped into the car. When he asked Gonnella about the gunshot, Gonnella said, “yeah man, the dude reached for the gun and it went off.” They then went back to the apartment of Evans’ brother where Gonnella said that he’d “just killed someone.” Evans later dumped the gun into the woods.

    Two days after the shooting, Evans turned himself into police. The next day, Gonnella also turned himself in. After Evans told police where to find the gun, tests revealed that the bullet that had killed Williams matched the recovered handgun. There was blood on Gonnella’s shirt from the night of the shooting, but not enough to obtain a DNA sample.

    Christopher Evans

    Christopher Evans



    In 2005, Gonnella was convicted of felony murder and a firearm charge and sentenced to life plus five years. In exchange for pleading guilty to the lesser charge of voluntary manslaughter, Evans was sentenced to 15 years in prison plus five on probation.

    In his appeal, Gonnella’s lawyer argued that the prosecution failed to reveal to the defense that Evans, who pleaded to a reduced charge and agreed to a specific sentence, was actually allowed to retain his right to later seek a lighter sentence after testifying against Gonnella. The State argued that the information was immaterial and would not have changed the outcome of the trial. “However, this ignores the importance of the ability to impeach the State’s primary witness,” says today’s unanimous opinion, written by Justice P. Harris Hines.

    “By failing to provide Gonnella with a crucial detail regarding Evans’s plea agreement, the State deprived Gonnella of the ability to impeach Evans by demonstrating a motive for him to lie; i.e., that in testifying in such a way so as to secure Gonnella’s conviction, Evans would gain an avenue, provided by the State, by which he might possibly arrange for a lighter sentence for himself.” Although Evans ultimately failed to get his sentence reduced, “it is the deprivation of Gonnella’s ability to fully cross-examine Evans based upon the State’s agreement with him that constitutes the denial of due process,” the opinion states. Furthermore, it’s not necessarily so that Gonnella would have still been convicted had the information been known. “Accordingly, the denial of Gonnella’s motion for new trial must be reversed.”

    Attorney for Appellant (Gonnella): Tanya Jeffords
    Attorneys for Appellee (State): Ashley Wright, District Attorney, Charles Sheppard, Asst. D.A., Thurbert Baker, Attorney General, Mary Beth Westmoreland, Dep. A.G., Paula Smith, Sr. Asst. A.G. Sara Sahni, Asst. A.G.

    Download Full Opinion: Gonnella v. The State (S09A0985)

    December 17, 2009

    Baby Killer’s Conviction Upheld Despite Claims of Racist Prosecution

    Filed under: criminal law, murder — bce30064 @ 4:53 pm

    The Georgia Supreme Court has upheld the conviction and life prison sentence given to a Cobb County woman for murdering her girlfriend’s 4-month-old baby boy by shaking him to death.

    In a unanimous opinion written by Justice David Nahmias and released on November 23, 2009, the high court has rejected all of Baretta Harold Pierce’s claims that she made in her appeal, including that her attorney was ineffective for failing to object to what she alleged was the State’s racially discriminatory use of its peremptory strikes to pick an all-white jury. Pierce is black.

    Baretta Pierce (Source: Georgia DOC)



    In graphic detail, the Court’s opinion lays out Pierce’s role in the infant’s short life and death. According to the evidence at trial, Pierce became romantically involved with Candis West when West was three months pregnant. The two moved in together. Throughout West’s pregnancy, Pierce abused West verbally and physically. Eventually, West gave birth prematurely to a baby boy, named Donte, who weighed less than four pounds. After they brought Donte home from the hospital, “Pierce would yell and curse at the infant for crying, pick him up by his pajama collar, spank him on the leg, and shake him,” the opinion says. She wouldn’t allow West to hold or nurture her baby, saying that would spoil him and turn him into a “punk.”

    On the morning of Jan. 24, 2004, Donte was especially fussy and Pierce demanded that West “shut him up.” After dropping West off at work, Pierce drove the baby to drop him off at a daycare home. The woman who owned the home saw Pierce drive into the parking lot, but about five minutes later, Pierce called to the woman, saying the baby would not wake up. The woman later testified that when she went out to the car, Donte was “just limp” and “gasping for air.” But Pierce did not call 911, and instead expressed concern that the child welfare agency would be called. Eventually, the woman’s daughter called 911, and the baby was rushed to Scottish Rite Hospital. The medical staff found that Donte had suffered severe brain damage. “There was bleeding in his head, around the brain, and in all three layers of his retina,” the opinion recounts. “He also had extensive and severe optic nerve edema, or swelling. Both his legs were broken. Donte died two-and-a-half weeks later when life support was withdrawn. He was just four months old.” After an autopsy, the medical examiner concluded the baby had been killed by shaken baby syndrome.

    In October 2005, a jury convicted Pierce of felony murder, aggravated battery and child cruelty, and she was sentenced to life plus 15 years in prison. She then appealed to the state Supreme Court.

    “Viewed in the light most favorable to the verdict, the evidence presented at trial was sufficient to authorize a rational jury to find Pierce guilty beyond a reasonable doubt of the crimes for which she was convicted,” the Georgia Supreme Court opinion says. In a 15-page opinion, the high court rejects all her other contentions.

    Attorneys for Appellant (Pierce): Jack J. Menendez
    Attorneys for Appellee (State): Patrick H. Head, District Atttorney, Amelia Pray, Asst. D.A., Dana J. Norman, Asst. D.A., Thurbert E. Baker, Attorney General, Reggie Allen Lampkin, Asst. A.G.
    Summary by Georgia Supreme Court Public Information Office

    Download Full Opinion: Pierce v. The State (S09A0663)
    Cobb County Superior Court Docket Information

    Technical Error Dooms Appeal of 1981 Murder Conviction

    Filed under: appellate procedure, criminal law, murder — Tags: , — bce30064 @ 3:18 am


    In a 4-to-3 decision released November 23, 2009, the Georgia Supreme Court dismissed the appeal of a man convicted of murder 27 years ago in DeKalb County, and in doing so, overruled one of its own previous decisions as “wrongly decided.”

    Richard James Harper (Source: GA DOC)



    At issue in this case is what legal means criminal defendants can use to challenge their convictions. The case involves the 1981 murder of Larry Green, a security guard who worked nights at Overnite Transportation Co. According to evidence at trial, after Green left for work one night, Richard James Harper became angry when he realized his sawed-off shotgun was in Green’s car. Harper and another man went to Green’s place of business to retrieve the gun, and Green was later found in the guardhouse, shot to death.

    In 1982, Harper was convicted of Green’s murder, and in 1983, the state Supreme Court upheld his conviction. Last year, in May 2008, Harper filed a “motion to vacate void judgment,” arguing that the DeKalb County trial court had lacked jurisdiction to hear his case because the murder had occurred in Fulton County and therefore the DeKalb judgment was void. The court denied his motion and he then appealed to the state Supreme Court.

    In today’s majority opinion, Justice Hugh Thompson writes: “We dismiss Harper’s appeal and hold that a motion to vacate a conviction is not an appropriate remedy in a criminal case,” thereby overruling part of its 2008 decision, Chester v. State. According to the majority, prior to the Chester decision, once a conviction had been appealed and affirmed, there were only three ways a criminal defendant could challenge his or her conviction: (1) by filing a “petition for a writ of habeas corpus,” (2) a “motion in arrest of judgment,” or (3) an “extraordinary motion for new trial.” Under Chester, however, the state Supreme Court added that criminal defendants could also challenge their conviction by filing a motion alleging the conviction is void. A number of cases filed in the year since Chester was decided, including the Harper case, “have exposed the deficiencies of that opinion and we find it was wrongly decided,” the majority opinion says. “Its ruling, creating a new post-appeal procedure for challenging a criminal conviction, marked an improvident departure from more than a century of precedent, significantly undermined the finality of criminal judgments, and has proved unworkable inasmuch as Georgia law is silent as to the procedural framework and rules applicable to this newly created remedy.” The majority is joined by Presiding Justice George Carley and Justices P. Harris Hines and David Nahmias.

    In a dissent, Justice Harold Melton writes that he disagrees that Chester created “a new post-appeal procedure” and should be overruled. Rather, “our decision in Chester was based on a straightforward analysis of the plain language of [Official Code of Georgia] § 17-9-4 – an analysis completely ignored by the majority – and was specifically designed to make our overall case law more consistent with the plain language of OCGA § 17-9-4, rather than less so, as our case law prior to Chester had been.” Joining in the dissent are Chief Justice Carol Hunstein and Justice Robert Benham.

    Attorney for Appellant (Harper): Richard James Harper, representing himself (pro se)
    Attorneys for Appellee (State): Gwendolyn Keyes Fleming, District Attorney, Leonora Grant, Dep. Chief Asst. D.A.
    Summary by Georgia Supreme Court Public Information Office

    Download full text of Opinion: Harper v. State (S09G0870)

    Court Upholds Sex Offender Registration Law: Dunn v. The State

    Filed under: criminal law, sex offenders — bce30064 @ 3:05 am


    The Georgia Supreme Court has rejected a man’s challenge of the sex offender registry law as unconstitutional.

    Derrick Todd Dunn (Source: GBI)



    In 1996, Derrick Todd Dunn was convicted of statutory rape. Under state law, convicted sex offenders must register with the local sheriff within 72 hours of changing their address. On Jan. 17, 2009, Dunn moved temporarily into the Calhoun Lodge, a motel in Gordon County, before moving on Jan. 23rd into a new permanent home. Three days later, he went to the Gordon County Sheriff’s Office to register his new address, and he was promptly arrested for failing to register the motel address, where he remained less than a week. The State subsequently filed a motion to revoke his probation and return him to prison. Dunn had also failed once before to obtain prior permission from his probation officer before moving.

    In response, Dunn’s lawyer filed a motion to strike down the registry law as unconstitutional “as applied to registered sex offenders living at a temporary address.” But the trial court rejected his constitutional attacks and revoked his probation. In his appeal, Dunn’s lawyer argued that the law violates Dunn’s due process rights because the requirements for notification of a change of address are vague.

    The Georgia Supreme Court, in an opinion written by Justice P. Harris Hines, disagreed with Dunn. The law specifically requires registration of any “change of residence address” and states that the information required includes “any current temporary residence.” “[U]nder common understanding of the term, ‘temporary residence’ is not unconstitutionally vague,” the opinion says. The Supreme Court has also rejected Dunn’s argument that the state law violates the right to equal protection by requiring a Georgia sex offender to register a change of address within 72 hours, while giving an offender from another state 14 days to register after moving here. “But his argument is based on a misreading of the statute,” the opinion says. The law defines a “nonresident sexual offender” as one who comes to Georgia for 14 days or longer, but such a person is also required to register within 72 hours of a change of address, the high court states in today’s opinion.

    In a concurrence, Chief Justice Carol Hunstein writes that she agrees that the statute is not unconstitutionally vague. “The facts in this case clearly established that Dunn, after departing his prior domicile, took up temporary residency in the motel but failed to register his address change with the Gordon County Sheriff’s Office within 72 hours,” the concurrence says. And under the law, that behavior is constitutionally prohibited.

    Attorney for Appellant (Dunn): Christopher Paul
    Attorneys for Appellee (State): Thomas Campbell, District Attorney, Sharon Fox, Asst. D.A
    Summary by Georgia Supreme Court Public Information Office

    Download Full Text of Court Opinion: Dunn v. The State (S09A1369)

    Stealing Lawn Mower not Motor Vehicle Theft, Ga. Supreme Court Holds

    Filed under: criminal law, theft — Tags: , , — bce30064 @ 3:00 am


    The Supreme Court of Georgia reversed the conviction of a man sentenced to 10 years in prison for stealing a lawn mower with a 4-3 opinion released November 23, 2009.

    At issue in this Whitfield County case is whether a riding lawn mower is considered a “motor vehicle” under the state’s motor vehicle theft law. The Georgia Court of Appeals concluded it was. But in a decision written by Justice David Nahmias, the high court ruled that the Court of Appeals was wrong, and sent the case back for resentencing.

    “The General Assembly may of course expressly define ‘motor vehicle’ more broadly, but we are not at liberty to do so,” the majority opinion says. “For these reasons, we hold that a riding lawn mower is not a ‘motor vehicle’ as that term is used in the motor vehicle theft statute.” The term motor vehicle “is commonly understood to mean a self-propelled vehicle with wheels that is designed to be used…to transport people or property on roads,” the majority opinion states. And that is how a number of Georgia statutes define the term. “To be sure, a riding lawn mower is capable of transporting people or property and of driving on the street for short stretches, but that is not what the machine is designed for or how it is normally used…,” the opinion says. Rather, the purpose of a riding lawn mower is to cut grass.

    A Toro Tiding Lawn Mower



    The case stems from the 2006 arrest of Franklin Lloyd Harris, who was charged with stealing a Toro riding lawn mower from the Home Depot Store in Dalton. According to evidence at trial, he and two others pulled his father’s red Ford Aerostar van to the front of the store, loaded the lawn mower into the back and drove away. Harris went to trial on two charges: a felony count of motor vehicle theft, based on the fact that the object was a riding lawn mower, and a felony count of theft by taking, because the lawn mower was worth more than $500. During the trial, Harris’ public defender moved to have the first count thrown out on the ground that stealing a lawn mower is not considered motor vehicle theft under state law, and Harris should not be punished as if he’d stolen a car. The trial court denied his motion, a jury found Harris guilty, and because he was a repeat offender, he was sentenced under the motor vehicle theft law to 10 years in prison. On appeal, the Georgia Court of Appeals upheld the conviction and sentence, ruling that a riding lawn mower is a “motor vehicle” under state law.

    “We hold that the Court of Appeals did err and that appellant’s conviction for theft of a motor vehicle should be reversed and the case remanded for resentencing,” the Georgia Supreme Court majority opinion says. However, although Harris’s conviction for motor vehicle theft must be reversed, he was also convicted of theft by taking, and on remand, he should be sentenced for that, the opinion states. “Because the value of the stolen lawnmower exceeded $500, Harris still will face a sentence of up to 10 years, and so he may receive the same sentence, particularly given his recidivist status, but we leave that decision to the trial court on remand.”

    The majority is joined by Chief Justice Carol Hunstein, Presiding Justice George Carley and Justice Robert Benham.

    In a dissent, Justice Harold Melton writes that “the legislature has specifically defined the term ‘motor vehicle’ broadly enough to encompass a riding lawn mower. The majority, however, erroneously relies on inapplicable ‘motor vehicle’ definitions that apply to the use of a vehicle on the roads…, as opposed to the theft of a vehicle, in order to reach its intended conclusion that a riding lawn mower is not a ‘motor vehicle’ for the purposes of sentencing for theft.” The dissent points out that in the state’s “chop shop” statute, the term motor vehicle includes any devices “which are self-propelled but which are not designed for use upon a highway, including, but not limited to, farm machinery and construction equipment.” “This definition of ‘motor vehicle’ is obviously broad enough to encompass a riding lawnmower,” the dissent says. “Thus, if a riding lawn mower were stolen and taken to a ‘chop shop,’ it would be a ‘motor vehicle’ for purposes of its theft and storage or dismantling at a chop shop. Under the majority’s analysis, however, a riding lawnmower would not be a ‘motor vehicle’ if simply stolen, but would magically transform into a ‘motor vehicle’ once taken to a chop shop for dismantling or sale.” Instead of discerning the legislature’s intent, “the majority has interpreted the statute in a manner that creates conflict and leads to an absurd result,” the dissent says. “As such, the majority’s interpretation cannot stand.” The dissent is joined by Justices Hugh Thompson and P. Harris Hines.

    Attorney for Appellant (Harris): Michael McCarthy
    Attorneys for Appellee (State): Kermit McManus, District Attorney, John Helton, Asst. D.A.
    Summary by Georgia Supreme Court Public Information Office

    Download Full Text of Court Opinion, Harris v. The State (S09G0870)

    December 16, 2009

    Georgia Supreme Court Vacates $100 Fine Against Unruly District Attorney

    Filed under: attorneys, murder, prosecutors — Tags: , , — bce30064 @ 5:48 pm


    The primary issue before Georgia Supreme Court in The State v. Murray was how to handle a contempt order against a prosecutor, Assistant District Attorney Linda Dunikoski, for improper conduct in murder case.  The majority concluded that the Court may assert jurisdiction over a seemingly collateral matter before final judgment because the contempt order was issued in a murder case. 

    Fulton County ADA Linda Dunikoski



    According to the opinion, on October 6, 2009, the trial court found Dunikoski in contempt of court rules regarding attorney conduct and decorum and ordered her to pay a $100 fine. Dunikoski did not pay the fine, apparently at the direction of the District Attorney, and the trial court also ordered that Dunikoski be taken into custody. In response to this order, the District Attorney’s office filed an emergency motion in the Georgia Supreme Court.

    Majority Opinion: Thompson
    Concurring Opinion: Carley
    Dissenting Opinions: Hines, Melton and Nahmias

    Full text of court opinion: The State v. Murray (S10M0390)

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