Robert Benham

Robert Dunlap was convicted of felony murder after he and accomplices robbed and fatally shot Tial Ceu during a planned robbery at a DeKalb County apartment complex in 2008. On appeal, Dunlap argued that his in-custody statement to police should have been suppressed because he had invoked his right to counsel, and that his trial counsel was ineffective for failing to have voir dire and opening and closing statements transcribed. The Georgia Supreme Court affirmed the conviction, holding that the evidence was sufficient to support the jury's verdict under the Jackson v. Virginia standard. It ruled that Dunlap's pre-interrogation question about counsel was equivocal, so police were not required to cease questioning after he received and waived his Miranda rights. The court also found that trial counsel's decision not to transcribe non-mandatory portions of the trial fell within the range of reasonable professional conduct and caused no prejudice, as no specific errors were shown.

criminal lawprocedure

In Williams v. State, Michael Eugene Williams, then age 20, pled guilty to malice murder and firearm possession after fatally shooting a restaurant owner during an attempted armed robbery; he challenged his resulting sentence of life without parole under OCGA § 16-5-1(d) as unconstitutional. Williams argued that the statute violated due process by failing to provide any mechanism or guidance for considering mitigating evidence, allowing arbitrary application, and that the sentence amounted to cruel and unusual punishment under the Eighth and Fourteenth Amendments because of his youth. The Georgia Supreme Court affirmed the trial court’s judgment and sentence. It reasoned that legislatures have wide latitude to define crimes and set punishment ranges, with no federal or state constitutional requirement for individualized mitigation findings in non-capital cases, and that existing precedent barring life without parole for juveniles in non-homicide cases does not apply to adult defendants convicted of murder.

criminal lawcivil rights

In White v. State, Darryl John White was convicted of felony murder based on aggravated assault and possession of a knife during a felony after an eyewitness identified him as the person who stabbed Ronald Price in the chest; the victim died two months later from a blood clot caused by his immobilization. White admitted the stabbing but claimed it was justified self-defense because the victim and others had “tortured” him by blowing cigarette smoke in his face. The Georgia Supreme Court affirmed the convictions, holding that the evidence was sufficient to support the jury’s findings. It also ruled there was no plain error in omitting a “no duty to retreat” instruction because the evidence did not raise the issue of retreat, and no error in accepting the felony-murder verdict because the jury had been properly instructed to consider voluntary manslaughter before returning a felony-murder guilty verdict.

criminal law

In Viskup v. Viskup, a father appealed a trial court’s rulings in a child custody modification case after the mother filed a petition in Cherokee County seeking primary physical custody and support of their son, who had been placed with the father following the parties’ 2006 divorce. The Georgia Supreme Court affirmed the trial court’s denial of the father’s motion to dismiss or transfer for improper venue, its award of primary custody and support to the mother, and its grant of attorney fees to the mother. On venue, the court held that evidence supported the finding that the father was a resident of Cherokee County when the petition was filed in October 2008, as his move back to Cobb County occurred later. On custody, the court upheld the determination of a material change in circumstances—primarily the mother’s improved stability and the child’s better emotional and social development under temporary custody with her—warranting modification in the child’s best interests. Attorney fees were properly awarded under OCGA § 19-9-3(g), which applies to custody modification actions and does not require consideration of the parties’ financial circumstances.

family law

In Cox v. Howerton, Holly Cox petitioned for habeas corpus relief after her 1998 guilty pleas to aggravated child molestation and related charges, claiming ineffective assistance because her trial counsel and the court had advised her she would be parole-eligible after ten years, when Georgia law in fact required her to serve the full thirty-year maximum sentence without any parole or early release. The Supreme Court of Georgia affirmed the habeas court's denial of relief, concluding that Cox had not satisfied the prejudice prong of the Strickland test for ineffective assistance of counsel. The court reasoned that, despite deficient performance in the parole advice, Cox had not shown a reasonable probability she would have rejected the plea and gone to trial, citing the overwhelming evidence of guilt (including her confession) and the lack of special circumstances indicating she placed particular emphasis on parole eligibility.

criminal lawprocedure

In Davis v. State, appellant Mark Davis was convicted of felony murder after stabbing and killing Roy Robinson during a drunken fight at an apartment on Thanksgiving 2008; Davis claimed self-defense, testifying that Robinson attacked him with broken glass after striking him with a drinking glass, but two eyewitnesses described Davis chasing and stabbing the unarmed victim. The Georgia Supreme Court affirmed the conviction and denial of a new trial, holding that the evidence was sufficient for a rational jury to reject self-defense and find guilt beyond a reasonable doubt. The court rejected claims of ineffective assistance of counsel, finding that trial counsel's decisions not to call a defense expert on wound causation and to introduce a police interrogation video were reasonable strategic choices within professional norms. It also held that Davis waived any objection to the trial court's handling of a juror's medical emergency by failing to raise concerns at the time. The judgment was affirmed.

criminal lawprocedure

In Smith v. State, Thomasina Beverly Mack and Dentario Steven Smith were jointly tried and convicted of malice murder in the 2008 death of Mack’s 30-month-old daughter, who suffered fatal blunt-force head trauma and strangulation while in their care; both received life sentences. Mack appealed the denial of a directed verdict, arguing insufficient circumstantial evidence, and the denial of her motion to sever the trials, while Smith raised claims of ineffective assistance of counsel and errors in denying a continuance and access to dental evidence. The Georgia Supreme Court affirmed both convictions, holding that the evidence—including medical testimony on injuries, witness accounts of the defendants’ conduct, and their inconsistent statements—was sufficient under the Jackson v. Virginia standard to support the jury’s verdict beyond a reasonable doubt. The court further ruled that the trial judge did not abuse its discretion in denying severance, as Smith’s testimony would have been admissible in a separate trial and did not deny Mack due process, and found no merit in Smith’s remaining claims regarding counsel’s performance or evidentiary rulings.

criminal lawprocedure

Demetrius Ford was convicted in 2009 of malice murder and firearm possession charges after a jury found he fatally shot Scottie McCombs in Atlanta in 2007, based on eyewitness testimony, statements from Ford’s family members, and stipulations about his felon status. On appeal, Ford argued prosecutorial misconduct in questioning about a prior gun incident, erroneous admission of testimony that he had shot a witness with a pellet gun years earlier, improper introduction of jailhouse phone recordings that allegedly reflected on defense counsel, and ineffective assistance of trial counsel. The Georgia Supreme Court affirmed the convictions, holding that the evidence was constitutionally sufficient, the prosecutor’s inquiry was halted without prejudice after a sustained objection, the pellet-gun testimony properly rehabilitated an impeached witness, the recordings did not impugn counsel and were properly limited, and counsel’s decisions fell within the range of reasonable professional conduct.

criminal lawgunsprocedure

In Powell v. State, Rickey Powell appealed his convictions for multiple crimes, including malice murder, felony murder, robbery, theft, financial card offenses, and concealing a death, all tied to the September 2009 killing of his landlord Herta Bailey in Muscogee County; he challenged only whether the evidence was legally sufficient. The Georgia Supreme Court held that the evidence—Bailey’s missing credit card found on Powell after he used it for his bills, his direction to police leading to her body in the trunk of her car, witness accounts of him driving her car shortly after her last known appointment with him, and the pathologist’s findings of manual strangulation plus acid poured on the body—was sufficient under the Jackson v. Virginia standard to support convictions on all counts except aggravated battery. The court reversed the aggravated battery conviction because the acid was applied after death, and no evidence showed the victim was alive when it occurred, as required by precedent. It also noted that the trial court’s merger of the malice murder conviction into felony murder for sentencing purposes caused no harm to Powell, since a life sentence was authorized for either. The judgment was therefore affirmed in part and reversed in part.

criminal lawprocedure

In Tatis v. State, the Georgia Supreme Court reviewed the denial of a motion for bond under OCGA § 17-7-50 filed by Brian Tatis, who was arrested on November 23, 2010, for murder and armed robbery, spent two days restrained at Grady Memorial Hospital for injuries, and was then booked into the Fulton County jail. The grand jury indicted him on February 22, 2011—92 days after arrest and 90 days after jail booking—and the trial court denied bond on the ground that confinement for the statute’s 90-day clock began only upon incarceration in jail. The Court reversed, ruling that “confinement” under the statute is plain and unambiguous and includes any situation of arrest with official physical restraint where the defendant may not leave of his own volition, so the period began in the hospital and entitled Tatis to bond once the grand jury failed to act within 90 days.

criminal lawprocedure

In Pollman v. Swan, homeowners sued the builder, developer, real estate agents, and related parties for defects in a townhome purchased in 2004, alleging breach of contract, negligence, fraud, and violations of Georgia’s RICO statute based on purported mail and wire fraud. The trial court granted summary judgment to the defendants on the contract, negligence, and RICO claims, and the Court of Appeals affirmed. The Georgia Supreme Court reversed the affirmance on the RICO claim, holding that the lower courts had incorrectly required proof of the plaintiffs’ reliance on misrepresentations, contrary to the federal mail fraud statute incorporated into Georgia RICO law. It affirmed summary judgment on the contract and negligence claims because the plaintiffs failed to present evidence from which a factfinder could calculate damages, such as repair costs or the property’s diminished value at the time of the alleged injury in 2004. The case was remanded for further proceedings on the RICO claim.

propertytorts & liabilitycriminal lawprocedure

In this case, Yonlenon DeLeon was convicted of felony murder, aggravated battery, reckless conduct, tampering with evidence, and firearm possession after fatally shooting Servando-Duron Nieto and wounding bystander Almanida Murilla in a Georgia restaurant, following a prior altercation involving DeLeon's friend. The Georgia Supreme Court affirmed the felony murder and related convictions, finding the evidence sufficient under Jackson v. Virginia and rejecting claims of error regarding witness testimony on threats, jury instructions on self-defense and manslaughter, and a failure to charge on the duty to retreat. It vacated the felony tampering sentence, holding that throwing away the gun in his own case supported only a misdemeanor under White v. State, and vacated the reckless conduct conviction because it merged as a matter of fact into the aggravated battery charge, which required additional proof of malice and disfigurement. The court remanded for resentencing consistent with these holdings.

criminal law

In Rafi v. State, Muhammad Omar Rafi was convicted of malice murder and related charges after an eyewitness testified that he pistol-whipped and fatally shot Bryan Evans outside a house following a dispute over Evans’s use of a counterfeit bill to buy drugs. The Georgia Supreme Court affirmed the convictions, holding that the evidence was sufficient to support the jury’s verdict and that Rafi was not denied his constitutional right to a speedy trial. Although the nine-year delay between arrest and trial was presumptively prejudicial, the court applied the Barker v. Wingo balancing test and found that most of the delay stemmed from Rafi’s bond forfeiture, failure to update his address, and nonappearance at arraignment rather than intentional state action; that Rafi never asserted his speedy-trial right until after indictment reinstatement; and that he showed no actual prejudice from the delay. The trial court therefore did not abuse its discretion in denying the speedy-trial claim.

criminal lawprocedure

In Glass v. State, Ernest Glass was convicted of malice murder, three counts of aggravated assault, and four firearm possession counts arising from the fatal shooting of Lisa Odell Mosby on a front porch and the wounding of three companions, allegedly from the passenger seat of a car driven by a co-defendant. The Georgia Supreme Court affirmed the convictions, holding that the evidence was sufficient for a rational jury to find guilt beyond a reasonable doubt despite conflicts over bullet trajectories and return fire. The court found no abuse of discretion in denying severance, because the defendants’ familial and personal relationships went to motive, any antagonistic testimony was admissible and subject to cross-examination in a joint trial, and Glass failed to show prejudice. It likewise found no abuse of discretion in denying a continuance for two witnesses whose identities were disclosed late, noting that one did not testify for the State and Glass had an opportunity to interview the other.

criminal lawgunsprocedure

In Culpepper v. State, Alvenio Johnny Culpepper was convicted of malice murder, aggravated assault, armed robbery, and possession of a knife during the commission of a felony after stabbing Jenny Neville to death and taking her ATM card and car. On appeal, Culpepper argued that his aggravated assault and armed robbery convictions merged into the malice murder conviction under Georgia law and should be vacated. The Georgia Supreme Court held that the aggravated assault conviction merged into the malice murder conviction and must be vacated, but the armed robbery conviction did not merge and remained valid. Applying the “required evidence” test from Drinkard v. Walker, the court reasoned that aggravated assault as charged did not require proof of any fact beyond those needed for malice murder, whereas armed robbery required proof of taking property that malice murder did not. The court therefore affirmed the convictions for malice murder, armed robbery, and knife possession, vacated the aggravated assault conviction, and remanded for resentencing.

criminal lawprocedure

In Collins v. State, Leroy Collins was convicted of malice murder, aggravated assault, and firearm possession after he fired multiple shots from his white Cadillac into a green Monte Carlo in DeKalb County, fatally wounding three-year-old Mitchell Smalls IV, the passenger and son of a man with whom Collins had a prior business dispute. Collins admitted the shooting at trial but claimed self-defense, asserting that the driver had fired first, and the incident was recorded on a passing motorist’s dashboard camera. On appeal, he argued that the trial court erred by denying a mistrial after the prosecutor improperly questioned him on cross-examination about his failure to immediately approach police and assert self-defense between the shooting and his surrender two days later, which violated Georgia precedent against commenting on pre-arrest silence. The Georgia Supreme Court held that the questioning was improper and the objection should have been sustained, but it affirmed the convictions because overwhelming evidence—including multiple eyewitness accounts of shots fired only from Collins’s vehicle, his own admissions, and the video—refuted the self-defense claim and rendered the error harmless.

criminal lawprocedure

In Highsmith v. Highsmith, a divorce case, the trial court equitably divided the parties’ assets after designating the wife’s Scottrade account—containing funds from a premarital home sale—as marital property, while classifying portions of the husband’s office building and adjacent land as his separate property under the source-of-funds rule and awarding the wife a larger share of the overall marital estate. The Georgia Supreme Court affirmed in part and reversed in part the denial of the wife’s motion for a new trial. It held that the Scottrade account was the wife’s separate property because it originated before the marriage, received no marital contributions, and fluctuated only with market forces, requiring remand for re-division of the marital estate without its inclusion. The court rejected the wife’s remaining challenges to property valuations and application of the source-of-funds rule, as the parties had agreed to rely on county tax records for valuations and the trial court had properly calculated the husband’s non-marital equity in the other assets.

family lawproperty

In Cook v. NC Two, L.P., the plaintiff filed a post-judgment garnishment action against assets held by a bank for judgment debtor Kenneth Cook and mailed notice of the action to Cook eight business days after serving the garnishee, rather than within the three business days required by OCGA § 18-4-64(a)(7). The trial court dismissed Cook's traverse challenging the late notice, and the Court of Appeals affirmed on the ground that the plaintiff substantially complied with the statute. The Georgia Supreme Court reversed, holding that the statute's plain and unambiguous language mandates strict compliance with the three-business-day deadline when the plaintiff chooses that method of notice, as the requirement stems from constitutional due process protections for the debtor's property interest. The Court rejected arguments for substantial compliance under general statutory construction rules or prior precedents that did not address this specific notice provision.

procedurecivil rights

The case involved a dispute over the administration of Edgar Hollis's estate, where trustee Fred Blackwell sued executor Mayo Royal for an accounting, removal, and damages after Royal distributed $1.5 million in estate funds to a local foundation rather than following the will's succession provisions once the City of Newnan declined a bequest for a museum. The trial court granted summary judgment to Blackwell and the intervening temporary administrator, construing the will to require offering the bequest next to the Newnan-Coweta Historical Society, finding Royal had repeatedly breached his fiduciary duties under OCGA § 53-7-54, denying him compensation, ordering repayment of fees received, and awarding attorney fees and expenses. On appeal, the Georgia Supreme Court affirmed the will's construction and the breach finding as a basis for damages but reversed in part on other matters while upholding the estate's intervention.

propertyproceduretorts & liability

The case concerned Emily Davenport's conviction for driving under the influence per se, based on Intoxilyzer 5000 results showing a blood alcohol content above the legal limit. Davenport sought to obtain the machine's source code by requesting a court order under Georgia's Uniform Act to Secure the Attendance of Witnesses from Without the State to compel the appearance of an out-of-state witness employed by the device's Kentucky manufacturer. The trial court denied the motion, and the Court of Appeals affirmed, holding that Davenport had not sufficiently demonstrated the witness was necessary and material. The Georgia Supreme Court reviewed whether this application of the Uniform Act comported with the statutory requirements and constitutional guarantees of compulsory process for out-of-state witnesses in criminal cases, analyzing the Act's scope to include production of documents and the standards for materiality and necessity.

criminal lawprocedure