John J. Ellington

In Scott v. State, Dudley Scott III appealed the Superior Court of Laurens County’s denial of his motion to withdraw his 2008 guilty plea to armed robbery, arguing that the sentence failed to give him credit for time spent in jail on unrelated Baldwin County charges while the Laurens County case was pending. The Court of Appeals affirmed the trial court’s ruling. It held that Scott had entered his plea knowingly and voluntarily after being informed he would receive no credit for that period, and it rejected his statutory claim because OCGA § 17-10-11(a) applies only to confinement that would not have occurred but for the charges resulting in the sentence at issue; Scott would have remained incarcerated on the Baldwin County matters regardless. The court therefore found no error in denying the motion to withdraw the plea.

criminal lawprocedure

In Jones v. State, Robert Lee Jones was convicted by a Chatham County jury of impersonating a police officer, burglary, and armed robbery arising from an armed robbery at a supermarket and a related home invasion nearby on May 31, 2008; the evidence included witness identifications, items recovered from the scene and a white SUV linked to Jones (such as a badge holder, bandana, BB pistol, and receipt), and testimony from a co-participant. Jones appealed the denial of his motion for a new trial, claiming insufficient evidence (particularly the circumstantial nature of much of the proof), error in denying his motion to sever his trial from a co-defendant’s, and ineffective assistance of trial counsel for failing to call certain witnesses. The Georgia Court of Appeals affirmed the convictions, holding that the evidence, viewed in the light most favorable to the verdict, allowed a rational jury to find the elements of each crime beyond a reasonable doubt and that the circumstantial evidence excluded every reasonable hypothesis of innocence other than guilt. The court further found no abuse of discretion in the denial of severance and that Jones failed to demonstrate the required prejudice from counsel’s performance, including by not proffering what the uncalled witnesses would have said.

criminal lawprocedure

In Williamson v. State, a Walker County jury convicted Jamie Williamson of multiple sexual offenses, including rape, statutory rape, aggravated sodomy, child molestation, and aggravated child molestation, against two minor victims, L.P. and B.E., based on acts occurring in 2004–2005 and 2007–2008. Williamson appealed the denial of his motion for a new trial, claiming the evidence was insufficient because the victims’ testimony lacked corroboration, was inconsistent, and was unsupported by physical evidence in one case, and that the trial court erred in denying a mistrial after an investigator mentioned that he had not made a statement. The Georgia Court of Appeals affirmed the convictions, holding that the victims’ testimony, combined with outcry witnesses, forensic interview recordings, and limited physical findings for one victim, provided sufficient evidence for a rational jury to find guilt beyond a reasonable doubt under the Jackson v. Virginia standard. On the mistrial issue, the court found no abuse of discretion, as any reference to Williamson’s silence was not prejudicial in context, did not target his defense, and was promptly addressed by a curative jury instruction.

criminal lawprocedure

Eddie Bradberry appealed the denial of his post-conviction motion seeking forensic testing of a semen sample for condom lubricants (which he claimed would prove the victim framed him for rape) and a related motion for sentence modification; he did not challenge the sentencing ruling on appeal. The Court of Appeals of Georgia dismissed the appeal for lack of jurisdiction. Although a timely sentence-modification denial can sometimes support a direct appeal, the court held that Bradberry’s testing request did not qualify as a standalone DNA-testing motion under OCGA § 5-5-41(c) that would authorize direct review, nor did the collateral-order doctrine or any other provision provide an independent basis for a direct appeal. The court noted that, even if the motion were treated as an extraordinary motion for new trial, discretionary appeal procedures would still apply.

criminal lawprocedure

A Chatham County jury convicted Justin Redinburg of aggravated assault with a deadly weapon and possession of a firearm during the commission of a crime, based on testimony from two eyewitnesses who claimed he shot and killed Marcus Allen outside a church in June 2009. Redinburg appealed the denial of his motion for new trial, arguing insufficient evidence and errors in the exclusion of certain evidence, including a police-recorded phone conversation between the two witnesses. The Georgia Court of Appeals reversed the convictions, holding that the trial court improperly excluded the recording of the conversation between the eyewitnesses, which occurred after the shooting and could have been used to impeach their credibility or show possible collusion or motives to lie about Redinburg’s involvement. The court found this evidentiary ruling required a new trial, while noting that double jeopardy barred retrial on the murder charges of which Redinburg had been acquitted.

criminal lawprocedure

In Willoughby v. State, the defendant, accused of vehicular homicide and related offenses after a fatal crash, moved to suppress medical records obtained through a search warrant, claiming the supporting affidavit lacked probable cause. The trial court denied the motion, finding the affidavit sufficient despite its limited details, but the Georgia Court of Appeals reversed that ruling on interlocutory appeal. The court held that the affidavit’s statements—that Willoughby “could possibly” have been driving, at fault for failing to maintain his lane, and under the influence—were purely conclusory and failed to provide specific underlying facts allowing a magistrate to determine there was a fair probability that evidence of a crime would be found in the records. Because the affidavit did not meet the legal standard for probable cause under OCGA § 17-5-21(a), the warrant was invalid and the seized records should have been suppressed.

criminal lawprocedure

In this ad valorem tax appeal, Calliope Properties challenged the Fulton County Board of Assessors’ $82,600 valuation of a residential parcel it purchased in January 2009, after the Board had initially assessed the property at $98,900 while it was owned by U.S. Bank. The Superior Court of Fulton County accepted the parties’ stipulation that the fair market value was $30,000 and, because that amount was less than 85 percent of the Board’s valuation, awarded Calliope attorney fees under OCGA § 48-5-311(g)(4)(B)(ii). The Board appealed, arguing that Calliope was not the proper party to pursue the appeal because it did not own the property on the January 1 lien date and that the statute did not authorize fees based on a stipulated value. The Court of Appeals affirmed, holding that the Board itself had certified Calliope as the taxpayer and plaintiff when transmitting the appeal to superior court, making Calliope a proper party from the outset, and that the fee award was supported by the evidence and within the trial court’s discretion.

taxespropertyprocedure

After a federal jury acquitted Michael Palmer of armed bank robbery and brandishing a firearm, Georgia indicted him on related state charges of armed robbery, aggravated assault, and firearms offenses arising from the same 2009 incident. Palmer moved to bar eight of those counts under OCGA § 16-1-8(c), which blocks state prosecution following a federal acquittal for the same conduct when the federal crime falls within Georgia’s concurrent jurisdiction. The trial court denied the motion, and the Court of Appeals affirmed. The court held that concurrent jurisdiction was absent because the federal statutes (18 U.S.C. §§ 2113 and 924(c)) contain essential elements—such as using interstate commerce facilities or brandishing a firearm during a federal crime of violence—that have no matching Georgia penal provisions encompassing every required fact. Without concurrent jurisdiction, the statute does not apply, regardless of overlap in the underlying conduct, so the state prosecution could proceed.

criminal lawfederal powerprocedure

In Thompson v. State, a Gwinnett County jury convicted Everet Thompson of kidnapping with bodily injury, armed robbery, and three counts of aggravated assault after he and an accomplice confronted Clifton White and his family in their garage at gunpoint, forced White through the house while striking him, and later took cash from him outside. Thompson appealed the denial of his motion for new trial, arguing that the evidence of asportation was insufficient to support the kidnapping conviction and that his armed robbery conviction should have merged with one of the aggravated assault convictions. The Court of Appeals affirmed the convictions, holding that the offenses did not merge because the aggravated assault (pointing a gun at White in the garage) was completed before the separate armed robbery (taking cash later outside the garage) and was proved by distinct facts. On the kidnapping claim, the court applied the four-factor Garza test and found the evidence sufficient, noting that moving White through the house was prolonged, involved additional beatings and isolation in a closet, was not inherent to the later robbery, and created independent danger by enhancing the perpetrator’s control.

criminal lawprocedure

In Carson v. State, the defendant entered a non-negotiated guilty plea in Douglas County Superior Court to armed robbery, three counts of aggravated assault with a deadly weapon, cruelty to children in the first degree, and possession of a firearm during the commission of a felony; the trial court imposed a sentence of 25 years imprisonment with 13 to serve. Carson moved to withdraw the plea, arguing it was not knowing and voluntary because he believed he could retract it if dissatisfied with the sentence, and he also claimed two convictions should have merged; the trial court denied the motion, and Carson appealed. The Court of Appeals affirmed, holding that the State met its burden of showing the plea was entered knowingly and voluntarily based on the plea hearing transcript, which documented Carson’s education, understanding of the maximum penalties including a possible life sentence without parole, waiver of rights, and confirmation that no promises had been made. On the merger issue, the court ruled that a knowing and voluntary guilty plea waives any claim that offenses should merge as a matter of law or fact.

criminal lawprocedure

In this medical malpractice case, Barbara Ladner sued Northside Hospital for negligently credentialing a urologist to perform prostatic cryosurgery on her husband, alleging that the hospital’s failure to follow its own bylaws and standards allowed the surgeon to operate and caused her husband’s postoperative bleeding, rectal injury, extended hospitalization, and death. The trial court granted summary judgment to the hospital, and the Georgia Court of Appeals affirmed. The court held that summary judgment was proper because the record contained no evidence that the surgeon performed the cryosurgery negligently; without proof of negligent performance, Ladner could not establish that any deficiencies in the hospital’s credentialing process proximately caused her husband’s injuries or death. The court reached this conclusion without deciding whether expert testimony on causation was required, relying instead on the absence of a factual dispute over the quality of the surgery itself.

healthcareproceduretorts & liability

In Sands v. Lindsey, EMT David Sands sued homeowner Elizabeth Lindsey for premises liability after he was injured by colliding with her closed but unmarked glass storm door while responding to her 911 call for her brother in the pre-dawn hours. The trial court granted summary judgment to Lindsey, and the Court of Appeals affirmed. The court ruled that Sands was a licensee, not an invitee, because Georgia law treats emergency responders entering property in their professional capacity as licensees even when summoned by the owner. Lindsey therefore owed only a duty to avoid wilful or wanton injury, and the evidence showed no breach of that duty, as there were no hidden mantraps, known defects, prior incidents, or other indications of deliberate disregard for Sands’ safety. Summary judgment was therefore proper because no genuine issues of material fact existed for a jury.

propertyproceduretorts & liability

In Lawson v. State, Anthony Lawson was convicted after a jury trial of driving under the influence (per se) under OCGA § 40-6-391(a)(5), driving an uninsured vehicle, driving with a suspended registration, and violating a Clayton County open container ordinance, based on evidence that police found him asleep in the driver’s seat of a running car with its lights on, two nearly empty vodka bottles nearby, a blood-alcohol level of 0.157, and his admissions that he had been drinking and had driven to the location. Lawson appealed, arguing insufficient evidence that he had driven or been in actual physical control of the vehicle while intoxicated and that the open container charge was not properly proven. The Court of Appeals affirmed the DUI, uninsured vehicle, and suspended registration convictions, holding that the circumstantial evidence—including Lawson’s admissions, the officers’ observations, and the condition of the vehicle—permitted the jury to reasonably infer he had driven while intoxicated and that no other reasonable hypothesis existed. It reversed the open container conviction, however, because the State introduced only an incomplete copy of the local ordinance and thus failed to prove beyond a reasonable doubt that the conduct violated any cognizable criminal law.

criminal law

A Gwinnett County jury convicted Derek Pennington of false imprisonment, burglary, and aggravated assault arising from a nighttime attack on his neighbor, during which the victim identified him by sight and voice, he covered her face with a towel, took her phone and other items, and fled through her back door. Pennington appealed the denial of his motion for new trial, claiming the evidence was insufficient due to inconsistencies in the victim’s statements and identification, and that his trial counsel was ineffective for failing to invoke the rule of sequestration, which he argued allowed a key witness (the victim’s father) to hear prior testimony. The Court of Appeals of Georgia affirmed the convictions. It held that the evidence, viewed in the light most favorable to the prosecution, permitted a rational jury to find the elements of each offense beyond a reasonable doubt, as the victim’s identification and other corroborating details constituted competent evidence despite conflicts. On the ineffective-assistance claim, the court concluded there was no prejudice because the witness at issue was not identified until after opening statements and thus would not have been sequestered anyway, and the jury was properly instructed on credibility and had been informed of the father’s presence in the courtroom.

criminal lawprocedure

In Billington v. State, Ronald Billington was convicted by a Cobb County jury of aggravated assault with an offensive weapon after evidence showed he drove a Monte Carlo into his ex-girlfriend during a dispute over repossessing the car, causing her injuries. He appealed the denial of his motion for a new trial, arguing that his trial counsel provided ineffective assistance by failing to object to a police officer’s testimony that the victim had been struck by the vehicle, which he claimed improperly bolstered her credibility and addressed the ultimate issue for the jury. The Georgia Court of Appeals affirmed the conviction, holding that Billington failed to meet the Strickland standard because counsel’s decision not to object was a reasonable strategic choice aimed at avoiding emphasis on the testimony and preserving his defense that the victim fabricated the incident. The court also found no reasonable probability that the outcome would have differed absent the alleged error, given the other evidence presented at trial.

criminal law

The Georgia Department of Community Health appealed a trial court order denying its motion to dismiss a lawsuit brought by Data Inquiry, LLC, which had performed computer and data-collection services for the Department in connection with a separate civil case. Data Inquiry asserted claims for breach of contract, unjust enrichment, and quantum meruit after the Department refused to pay its invoice, but the Department contended that sovereign immunity barred the suit because no written contract had been executed. The Court of Appeals reversed, holding that the unsigned proposed agreement, draft protective order, and related emails did not constitute a written contract under the Georgia Constitution. Because sovereign immunity may be waived only for actions based on written contracts, and because equitable claims such as unjust enrichment and quantum meruit do not trigger the waiver, the trial court should have dismissed the complaint.

business & regulatoryprocedure

In Bartlett v. McDonough Bedding Co., Lynwood Bartlett sued the bedding shop for premises liability after he fell down an interior stairwell connecting the main floor to a lower-level bookshop that customers were not permitted to use. The trial court granted McDonough’s motion for summary judgment, and the Court of Appeals affirmed. The undisputed evidence showed that a chain and surrounding merchandise blocked the top of the stairs, which were otherwise visible in adequate lighting; Bartlett admitted he was not looking for stairs and did not see the opening because he was examining merchandise and the items on the floor obstructed his view. Under Georgia premises-liability law, an invitee must exercise ordinary care for his own safety and may not voluntarily depart from designated areas into a static hazard without heightened caution; because Bartlett failed to do so, McDonough was entitled to judgment as a matter of law.

torts & liability

The case concerned a medical malpractice suit brought by William Rowland’s widow and estate against DeKalb Medical Center and Medical Staffing Network after nurse Peggy Howard (a Medical Staffing employee) allegedly failed to monitor Rowland’s vital signs, resulting in his death; the hospital cross-claimed for contractual indemnification and stipulated that Howard was its apparent agent. A jury apportioned 95% fault to Howard and 5% to a hospital nursing assistant, awarding over $3.8 million in damages, after which the trial court entered judgment for the plaintiffs and on the hospital’s cross-claim. Medical Staffing moved for a new trial on the ground that the plaintiffs and hospital had concealed a “Mary Carter” agreement, executed on the first day of trial, under which the hospital’s financial exposure would be capped or eliminated if it aggressively pursued its indemnification claim against Medical Staffing. The court held that the agreement’s secrecy was material and likely affected the verdict because it created undisclosed incentives for the hospital to shift blame, and therefore the trial court abused its discretion in denying a new trial under OCGA § 5-5-23; the opinion further noted that such agreements must be disclosed to non-settling parties and the court to avoid misleading the trier of fact.

healthcaretorts & liabilityprocedure

Adam Newman sued Elise Furse for premises liability after he fell and was injured when a metal awning attached to her house collapsed while he was cleaning pine straw from the roof as her invitee. The Georgia Court of Appeals reversed the trial court’s denial of summary judgment to the executors of Furse’s estate. The court held that an owner is liable to invitees only for hazards of which the owner has superior knowledge, actual or constructive. Here, no evidence showed Furse knew the awning had been reattached with nails rather than bolts decades earlier, or that any visible defect or prior problem put her on notice of the risk, so ordinary diligence did not require her to discover the hidden attachment method.

torts & liability

In this workers’ compensation case, Vanessa Stokes, a school head custodian, sought benefits after she tripped and severely injured her foot—later requiring amputation—while trying to stop her rolling car as she unlocked parking-lot gates before dawn in the rain. An administrative law judge awarded benefits, but the Board’s Appellate Division reversed and denied the claim, finding that Stokes had deviated from her employment; the superior court affirmed that denial. The Court of Appeals reversed, holding that Stokes’s instinctive effort to prevent damage to school property during an emergency was not a personal deviation but remained incidental to her job duties, and that the injury therefore arose out of and in the course of her employment. The court remanded the case for further proceedings under the correct legal standard.

labor & employment