The Right to Be Judged by What You Do, Not Who You Are

SHERRY F. COLB

Cornell law professor Sherry F. Colb considers the case for occasionally including status—“who you are”—in assigning blame in criminal matters. Colb explains that generally, our penal system prohibits “status offenses,” but sometimes, such as in the case of psychopaths, we are comfortable deciding how to punish a person based at least in part on who they are.

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Innovative Images, LLC v. Summerville et al.

Docket: S19G1026

Opinion Date: September 8, 2020

Judge: David E. Nahmias

Areas of Law: Arbitration & Mediation, Contracts, Legal Ethics, Professional Malpractice & Ethics

Innovative Images, LLC sued its former attorney James Summerville, Summerville Moore, P.C., and The Summerville Firm, LLC (collectively, the “Summerville Defendants”) for legal malpractice. In response, the Summerville Defendants moved to dismiss the suit and to compel arbitration in accordance with the parties’ engagement agreement, which included a clause mandating arbitration for any dispute arising under the agreement. The trial court denied the motion, ruling that the arbitration clause was “unconscionable” and thus unenforceable because it had been entered into in violation of Rule 1.4 (b) of the Georgia Rules of Professional Conduct (“GRPC”) for attorneys found in Georgia Bar Rule 4-102 (d). The Court of Appeals reversed, holding that the arbitration clause was not void as against public policy or unconscionable. The Georgia Supreme Court concluded after review that regardless of whether the Summerville Defendants violated GRPC Rule 1.4 (b) by entering into the mandatory arbitration clause in the engagement agreement without first apprising Innovative of the advantages and disadvantages of arbitration, the clause was not void as against public policy because Innovative did not argue, and no court has held, that such an arbitration clause could never lawfully be included in an attorney-client contract. For similar reasons, the Supreme Court held the arbitration clause was not substantively unconscionable, and on the limited record before it, Innovative did not show the clause was procedurally unconscionable. Accordingly, the Court affirmed the appellate court's judgment.

Barton-Smith v. Georgia

Docket: S20A0941

Opinion Date: September 8, 2020

Judge: Keith R. Blackwell

Areas of Law: Constitutional Law, Criminal Law

Khaleil Barton-Smith was tried by jury and convicted of murder and other crimes in connection with the 2014 fatal shooting of Alexander Hunter. Barton-Smith appealed, contending that the trial court erred when it denied his request to charge the jury on voluntary manslaughter as a lesser offense and when it interrupted his lawyer’s cross-examination of a witness. Finding no reversible error, the Georgia Supreme Court affirmed.

Butler v. Georgia

Docket: S20A0870

Opinion Date: September 8, 2020

Judge: Boggs

Areas of Law: Constitutional Law, Criminal Law

Appellant Patrick Butler challenged his 2011 convictions for malice murder and two firearms offenses in connection with the shooting death of Darryl Walden. Appellant argued on appeal: (1) that the evidence presented at trial was legally insufficient to support his convictions; (2) the trial court made several evidentiary errors, and (3) that he was denied the effective assistance of counsel. After review, the Georgia Supreme Court determined the evidence presented at trial was legally sufficient to support his convictions. However, the trial court applied the wrong standard in admitting evidence of Appellant’s 2005 felony conviction for obstructing a law enforcement officer during the first stage of the bifurcated trial, and the Supreme Court could not say that the admission of the evidence was harmless. Accordingly, the Court vacated Appellant’s convictions, and remanded the case to the trial court to apply the correct standard and determine whether the prior felony conviction should have been admitted. The Court did not address Appellant’s other enumerations of error at this time.

Ellison v. Georgia

Docket: S20A0984

Opinion Date: September 8, 2020

Judge: Peterson

Areas of Law: Constitutional Law, Criminal Law

Johnathan Ellison was convicted of malice murder for the stabbing death of Antwane Hyatte. Ellison appealed, arguing the trial court erred in admitting DNA evidence obtained from a buccal swab performed on him without a warrant while he was in custody. He argued that the admission of that evidence violated his constitutional rights because he did not knowingly and voluntarily consent to the buccal swab, and he was not given any Miranda-type warning. The Georgia Supreme Court determined the DNA evidence obtained from Ellison’s buccal swab did not match any of the DNA found at the crime scene or inculpate him in any other way, thus its admission was harmless beyond a reasonable doubt. The Court therefore affirmed.

Fisher v. Georgia

Docket: S20A1004

Opinion Date: September 8, 2020

Judge: David E. Nahmias

Areas of Law: Constitutional Law, Criminal Law

Upon retrial, appellant Ronald Fisher was found guilty of malice murder and related crimes in connection with the shooting death of Derek Cullins. In this appeal, Fisher contended the evidence presented at his retrial was insufficient to support his convictions because the only witness to identify him as the shooter, David Lewis, was an accomplice. Further, Fisher argued the trial court erred by allowing the lead detective to testify that Lewis was not an accomplice, and that his trial counsel provided ineffective assistance by failing to object to the prosecutor’s closing argument. Finding no reversible error, the Georgia Supreme Court affirmed.

Georgia v. Abbott

Docket: S20A0719

Opinion Date: September 8, 2020

Judge: Warren

Areas of Law: Constitutional Law, Criminal Law

In this case's previous trip before the Georgia Supreme Court, Dijon Abbott was indicted for the murder of Marques Eubanks and the assaults of Latrice Nelson and Jeremy Whitehead; the Supreme Court affirmed the suppression of custodial statements Abbott made before being given Miranda warnings. In that case, the Supreme Court clarified the legal standard for evaluating post-Miranda statements made after law enforcement used a “two-step interrogation technique”; and remanded the case for the trial court to apply that legal standard to Abbott’s post-Miranda statements. On remand, the trial court again suppressed the entirety of Abbott’s statements, concluding that Abbott had not knowingly and voluntarily waived his rights under Miranda. The State again appealed. Here, the Supreme Court vacated the trial court’s second suppression order and again remanded the case, holding that the trial court failed to adhere to the Supreme Court's remand instructions, which explicitly directed the trial court to determine the admissibility of Abbott’s post-Miranda statements under Justice Kennedy’s concurrence in Missouri v. Seibert, 542 U.S. 600 (2004), which was adopted in Georgia in Norwood v. Georgia, 810 SE2d 554 (2018) (the “Seibert/Norwood standard”). On remand, the trial court was re-directed to apply the Seibert/Norwood legal standard for the limited purpose of determining the admissibility of Abbott’s post-Miranda statements.

Harrison v. Georgia

Docket: S20A0856

Opinion Date: September 8, 2020

Judge: Boggs

Areas of Law: Constitutional Law, Criminal Law

In 2009, Appellant Richard “Paul” Harrison was tried on charges of murder and felony murder in connection with the shooting death of Dewey Johnson, but the trial ended in a mistrial when the jury was unable to reach a verdict. Appellant was retried in 2011 before another jury and found guilty of murder and felony murder. He was sentenced to life in prison; his amended motion for new trial was denied, and he appealed. Appellant asserted five enumerations of error: four claims of ineffective assistance of counsel and a merger error in sentencing. After review, the Georgia Supreme Court affirmed the judgment of conviction and sentence on the malice murder count. The felony murder conviction and sentence the trial court erroneously imposed and then purported to “merge” with the malice murder conviction were vacated as a matter of law.

Long v. Georgia

Docket: S20A0785

Opinion Date: September 8, 2020

Judge: David E. Nahmias

Areas of Law: Constitutional Law, Criminal Law

Appellant Jennifer Long was convicted of malice murder and first-degree child cruelty in connection with the death of her 18- month-old daughter, Alexis. After they could not conceive a child, Appellant and her husband, Timothy Long, worked with the Division of Family and Children Services (DFCS) to adopt a child. Alexis was born in June 2010, and came to live with the Longs in Columbus around June 2011, after her biological mother died and her biological father surrendered his parental rights. Between June and November, DFCS case managers visited the Longs’ home about every two weeks to check on Alexis, and the Longs took her for regular checkups by her pediatrician. The Longs adopted Alexis in November 2011. After that, DFCS stopped its visits, and the Longs missed Alexis’s scheduled 90-day pediatrician checkup in January 2012. One day after church, Alexis ate and played around the church. On the way home, Alexis became a little fussy. When they got home and Appellant took Alexis out of her car seat, Alexis had a tantrum, and Appellant took the child into the house to change her diaper. While he was at the car, Timothy heard a loud noise that sounded like furniture being moved; the noise seemed to come from the direction of Alexis’s room. Alexis was lying on the floor of her room, and it looked like she had vomit in her mouth. She was taken to the hospital and pronounced brain dead the next day, having suffered from blunt force trauma. On appeal, Appellant contended the evidence was insufficient to support her convictions and that her trial counsel provided ineffective assistance. Finding no reversible error, the Georgia Supreme Court affirmed Appellant's convictions.

Marshall v. Georgia

Docket: S20A0697

Opinion Date: September 8, 2020

Judge: Carla Wong McMillian

Areas of Law: Constitutional Law, Criminal Law

Terry Marshall appealed his convictions for the malice murder of Marshal Tucker, the attempted murder of Latonia Patterson, and other related crimes. Marshall contended on appeal that: (1) the trial court improperly sentenced him as a three-time recidivist; (2) the trial court plainly erred by relying on two of his out-of-state convictions in sentencing him as a recidivist; and (3) the trial court committed two merger errors at sentencing. Because the Georgia Supreme Court concluded that the trial court committed several merger errors, it vacated Marshall’s conviction for aggravated assault of one victim. Otherwise, the Court affirmed his convictions.

Parker v. Georgia

Docket: S20A0826

Opinion Date: September 8, 2020

Judge: Peterson

Areas of Law: Constitutional Law, Criminal Law

Vraimone Parker appealed his convictions for malice murder and other offenses, following the shooting death of his aunt’s boyfriend, Kwame Chubbs, and the non-fatal shooting of his aunt, Eva Robinson. At trial, the jury rejected Parker’s defense that he was not guilty by reason of insanity and also rejected the option of finding him guilty but mentally ill. Parker argued on appeal that: (1) the trial court erred by failing to grant a mistrial after a detective commented on Parker’s silence; (2) failing to grant a mistrial after the trial court’s own expert witness testified that Parker knew what he was doing at the time of the shooting; and (3) imposing a discovery sanction that precluded Parker’s expert witness from offering particular testimony. He also argued his trial counsel was ineffective in handling issues related to Parker’s status as a convicted felon. After review, the Georgia Supreme Court concluded the trial court did not abuse its discretion in denying the motions for mistrial; Parker did not show harmful error as a result of the discovery sanction; and Parker did not demonstrate that he was prejudiced by any deficient performance of counsel, even where counsel’s performance was considered along with the effect of the discovery sanction.

Perez v. Georgia

Docket: S20A0632

Opinion Date: September 8, 2020

Judge: Ellington

Areas of Law: Constitutional Law, Criminal Law

Jesus Perez was convicted by jury of malice murder, armed robbery, and concealing the death of another in connection with the bludgeoning death of Boydrick Powell. On appeal, he contended the trial court erred in denying his motion for a new trial, and that the evidence was insufficient to support his convictions. Perez also contended the trial court erred in admitting into evidence his custodial statement and the pre-autopsy photographs of Powell’s injuries and in allowing the prosecutor to discuss the law of conspiracy during closing argument. Finding no reversible error, the Georgia Supreme Court affirmed.

Robinson v. Georgia

Docket: S20A0812

Opinion Date: September 8, 2020

Judge: Ellington

Areas of Law: Constitutional Law, Criminal Law

James Robinson was convicted by jury of the felony murder of four-year-old Lalia Hawthorne and of other crimes committed against Lalia and her younger sister, N. H. Lalia was found unresponsive at her home. Taken to the hospital, doctors initially suspected that Lalia had been infected with meningococcemia. The medical examiner, who found extensive bruising on Lalia’s body, determined that the actual cause of her death was blunt force injury to the abdomen. At trial, the medical examiner testified that internal lacerations can cause a child to appear ill and lethargic and can lead to nausea, vomiting, and a fatal loss in blood pressure. On appeal, Robinson contended the evidence was insufficient to support his convictions. He also argued the trial court erred in admitting evidence that he committed a prior act of violence upon Summer Sanchez, his then-girlfriend and the mother of the two victims, and by allowing an expert witness to testify to an ultimate issue in the case. After review, the Georgia Supreme Court vacated Robinson’s conviction for Count 9, one of his convictions for cruelty to children in the first degree upon N. H., to correct a sentencing error, but the Court otherwise affirmed.

Russell v. Georgia

Docket: S20A0910

Opinion Date: September 8, 2020

Judge: Carla Wong McMillian

Areas of Law: Constitutional Law, Criminal Law

Michael Russell was convicted of malice murder and other crimes in connection with the death of his girlfriend, Christy Waller. Russell argued on appeal: (1) the trial court erred in denying his motion to suppress his statements to police; (2) the trial court erred in failing to properly instruct the jury in its preliminary jury charge; (3) he received constitutionally ineffective assistance of trial counsel when his counsel failed to object to that charge; and (4) the trial court erred in failing to merge his remaining aggravated assault conviction under Count 4 into his conviction for malice murder. Russell also noted his sentence contained a scrivener’s error, sentencing him under Count 5 for aggravated assault, when he was actually charged with aggravated battery. Although the Georgia Supreme Court agreed that the trial court committed sentencing errors and accordingly vacated Russell’s sentence under Count 4 and remanded for correction of the scrivener’s error in Count 5, the Supreme Court otherwise affirmed.

Scott v. Georgia

Docket: S20A0880

Opinion Date: September 8, 2020

Judge: Peterson

Areas of Law: Constitutional Law, Criminal Law

Jonathan Scott appealed his convictions for malice murder and other offenses in relation to the 2016 shooting death of Gerald Daniels. Daniels sold drugs out of his apartment; Scott, a convicted felon, also lived in the same apartment complex. Scott went to Daniels’s apartment and purchased 3.5 grams of marijuana. Scott returned sometime later, complaining that Daniels had shorted him on the weight. Scott asked for more marijuana to make up for the alleged shortage on weight, and Daniels agreed. Daniels wrapped the marijuana in two small sacks and handed Scott the sacks along with some money. Scott dropped one of the sacks and asked Daniels to pick it up. When Daniels bent down to pick up the sack, Scott pulled out a gun; seconds later, Scott shot Daniels multiple times. Scott argued on appeal the evidence was insufficient to support his convictions and that there was a fatal variance between the indictment charging him with attempt to purchase marijuana and the evidence presented at trial. Scott also argued his trial counsel was ineffective. After review, the Georgia Supreme Court affirmed because it found the trial evidence was sufficient to establish Scott’s guilt, and Scott did not establish that he was affected by any variance or that his trial counsel was ineffective.

Snipes v. Georgia

Docket: S20A0934

Opinion Date: September 8, 2020

Judge: Carla Wong McMillian

Areas of Law: Constitutional Law, Criminal Law

Chiquita Snipes was convicted of the malice murder of Ty’Qwan Edge, a two-year-old child in her care. She appealed her conviction, arguing: the trial court erred in denying her motion for a new trial; the evidence presented against her was insufficient to sustain her conviction; and her trial counsel rendered insufficient assistance. When 911 was called, Snipes testified she heard "a loud bump," allegedly from the child falling from the toilet and striking his head on the bathtub. The medical examiner opined at trial that the injuries to the child were not consistent with a single fall in a bathroom, and that there was no indication of natural disease. An internal examination revealed ten areas of hemorrhaging under the child's scalp, some older and some recent. His brain was significantly swollen with minor areas of bleeding on the surface and other denser areas of bleeding and blood clots. There was also hemorrhaging in and around the optic nerves of both eyes, indicating severe trauma to the head. The Georgia Supreme Court found no reversible error in the trial court's judgment, and affirmed Snipes' conviction.

Subar v. Georgia

Docket: S20A0942

Opinion Date: September 8, 2020

Judge: Harold D. Melton

Areas of Law: Constitutional Law, Criminal Law

Desean Subar was convicted by jury of various offenses, including malice murder, in connection with crimes he committed against Justin Bryant, Bettie Stoddart, and Gary Kimber at a 2016 house party. Subar appealed, arguing he was denied constitutionally effective assistance of counsel and that the trial court erred by admitting improper character evidence. Finding no reversible error, the Georgia Supreme Court affirmed Subar's convictions.

Wallace v. Georgia

Docket: S20A1186

Opinion Date: September 8, 2020

Judge: Keith R. Blackwell

Areas of Law: Construction Law, Criminal Law

Antonio Wallace was tried by a jury and convicted of the murder of Leroy O’Hara. Wallace appealed, claiming: (1) the evidence was insufficient to sustain his conviction; (2) the trial court erred when it denied his motion for new trial on the general grounds; and (3) that he was denied the effective assistance of counsel. The Georgia Supreme Court found no merit in these claims, and affirmed.