Georgia Court of Appeals Roundup
The Georgia Court of Appeals issued a steady fare of opinions this week -- 5 civil and 13 criminal cases.
Starting with the civil cases, the court issued an interesting pair of cases involving Dwain Lee Kirkland. The facts of each case shed some light on the other. The overall picture is this: Kirkland, now 49, accuses his parents of abusing him to the point where he claims to have PTSD (just diagnosed in 2004). At the age of 22, he moved away from home, although it appears he has returned to the state, and his father has died. His cousin allegedly said false things about him to Dwain's father, such as that he wrote a book so violent that it will never sell, and that he spends all his money on strippers and doesn't have a girlfriend, and also menacing things like "what goes around comes around" (in a "murderous tone" of voice). Also, unnamed persons called him and told him his criminal and psychological records had been filed in probate court.
In Kirkland v. Tamplin, 2007 WL1202958, in which Dwain sued his cousin and other relatives for interference with business relations (with his own father -- the one who allegedly abused him), breach of an unspecified contract, and intentional infliction of emotional distress (due to the menacing comments), the Court of Appeals affirmed summary judgment against Dwain because he did not have any evidence, besides hearsay, of what anyone said that caused the alleged torts, and otherwise did not have evidence of "improper means" or outrageous behavior.
One can imagine that Dwain may no longer be all that popular at family reunions...
In Young v. Williams, 2007 WL 1121740, a legal malpractice case, we learn that lawyers can have duties to third party beneficiaries, such as intended legatees in a will, and they lose when they admit they violated their own standard of care. In this case, the attorney knew that the client intended to leave his million dollar house to his wife. When reviewing the will with the client, he told the client he was surprised that he was not leaving more cash and other property for his wife, but the client said it was fine because she would be receiving the house. The attorney testified that he meant to include provisions for disposition of real estate, inadvertently omitted them, and violated his own standard of care in doing so. (If only all malpractice defendants were so honest!) Accordingly, the trial court granted partial summary judgment in favor of the wife, and the Court of Appeals affirmed.
Also in the world of civil cases, the Court of Appeals affirmed a trial court's determination that a former prisoner could not sue the state (for state tort claims or a sec. 1983 violation) for failing to release him until three months after his release date in Watson v. GDOC, 2007 WL 1121727. And, in domestic cases, In the Interest of I.G. affirmed termination of parental rights over a sufficiency of the evidence claim, 2007 WL 1191705.
In the criminal realm, there was, mixed in with the usual affirmances (Jones and McCoy -- sufficiency of identity evidence, improper closing argument; Gregoire -- probable cause and sufficiency; Jones -- merger; Brown -- withdrawal of guilty plea; Simmons -- sufficiency; McHugh -- DUI motion in limine; Donnell -- sufficiency, ineffective assistance of counsel; Cartledge -- sufficiency), were a few more noteworthy cases.
First, in Anderson v. State, 2007 WL 1191703, the Court of Appeals affirmed a trial court's dismissal of charges because "the prosecutor's conduct violated one of the most basic rules of prosecutorial procedure." Specifically, at the first trial, the prosecutor asked the officer who arrested Anderson whether he attempted to take a statement, and what he did in that regard. The officer responded that he read Anderson his rights, and Anderson refused to talk and instead asked for a lawyer -- violating the well-established rule that exercising one's rights in response to a Miranda warning cannot be commented on at trial. The defense moved for a mistrial, which was granted by the trial court. Anderson then filed a plea in bar, contending that because the prosecution goaded the defendant into moving for a mistrial, he could not be retried. The trial court -- a different judge this time -- agreed, and the Court of Appeals affirmed, noting that the prosecution's case was not very strong, so it was plausible that the prosecutor intended the mistrial.
Also in the world of prosecutorial screwups is State v. Hitchcock, 2007 WL 1121722, part of Fulton County's ongoing speedy-trial woes. The defendant filed his speedy trial notice. Fulton Superior put the case on the calendar, and gave notice to the state on a Friday that it intended to try the case the following Tuesday. On the day of trial, the state said it was not ready, and that it had not received the 7 days notice required under Uniform Superior Court Rules. The judge gave the prosecutor a chance to try to work out a deal with the defendant, but otherwise stated its intent to proceed with trial. When the parties failed to work out a deal, the trial court dismissed the case. The Court of Appeals also affirmed here, agreeing that the superior courts are permitted to refuse a continuance even when 7 days notice was not given, where speedy trial is at issue. The prosecutor, having received a speedy trial notice, is expected to be prepared to try the case at any time.
Two substantive rulings also deserve mention. In State v. Gray, 2007 WL 1112998, the Court of Appeals held evidence was properly excluded because it violated the 4th Amendment. The police stopped a car belonging to Angela Gray, but which was being driven by some other individuals. The police asked consent to search the car, which was refused, but the police used a drug dog anyway, and it alerted in response to the outside of the car. The police then searched the car and found drug paraphernalia. Next, the occupants of the car led police to Ms. Gray's home. Yet another acquaintance came to the door, but Ms. Gray was nowhere to be found. Again, police asked consent to search, which was refused by the occupant. Having seen objects consistent with methamphetamine manufacture when the occupant answered the door, however, the police decided it was necessary to "secure" the premises before seeking a warrant. The police then used that information in obtaining a search warrant. The Court of Appeals affirmed the exclusion of this evidence, because the police did not obtain consent to search the car, were therefore illegally on the premises when they knocked on the door and saw the drug paraphernalia in the house, and in any event, there were no exigent circumstances requiring police to secure the premises. Proof, it seems, that "no means no."
Finally, in Brown v. State, 2007 WL 1113007, the Court of Appeals overturned a conviction of a man for drug trafficking where he was simply standing in the front yard of a house that had cocaine inside -- even though he was neither an occupant or an owner of the house (which belonged to a relative), did not have a key to the house, and did not have permission to enter the house at will. The evidence cited by the state that it must have been the defendant's cocaine was that, when police started to pat him down, he fled (and was later recaptured). Just imagine how many trafficking convictions prosecutors could rack up on these facts!
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