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Thursday, February 2, 2012


Roger C. Wilson obtained a reversal by the Georgia Court of Appeals of the criminal conviction and 20-year sentence of a Firm client.  The man had been convicted in a DeKalb County jury trial of breaking into a largely abandoned building in a blighted part of DeKalb County and stealing from the building two used vacuum cleaners allegedly worth approximately twenty dollars.  The man, an older local denizen of modest means and hard times, was harshly sentenced under the Georgia recidivism statute because of the existence of multiple prior convictions over a number of earlier years, all for minor, non-violent offenses.

At trial no direct evidence was presented of the client’s having broken into the building or stolen the vacuum cleaners. The principal evidence used to convict him was self-inculpatory statements that he was alleged to have made to a policeman who detained and interrogated him.  The client denied making the statements.  But at trial the policeman was permitted to testify about the alleged statements, even though the policeman, when detaining and interrogating the client, had never informed him of his Constitutional rights (to remain silent, to have an attorney present before questioning) as is required by the Georgia and U.S. Constitutions and the U.S. Supreme Court’s Miranda opinion.  With that testimony of the policeman, the client was convicted, and sentenced to 20 years, to serve 10. 

Wilson did not handle the case at trial but was engaged to represent the man post-conviction in an attempt to obtain an amelioration of the conviction or sentence.  Wilson first filed and pursued a motion for new trial with the trial court in which the man was convicted, arguing that a new trial was necessary because of the improper police interrogation of the man which rendered inadmissible any testimony regarding the confession allegedly obtained during that interrogation. When the trail judge denied the motion, Wilson filed and pursued an appeal in the Georgia Court of Appeals. 

After full briefing of the case, the Court of Appeals agreed with Wilson and reversed the man’s conviction in its entirety, including the sentence. Thompson v. State, No. A11A1798, 313 Ga.App.844 (2012).

The Court of Appeals began its opinion by pointing out the substantial hurdles faced by those appealing a criminal conviction:

At the outset, we note that after a defendant has been convicted, “we view the evidence in the light most favorable to the jury's verdict, and the defendant no longer enjoys the presumption of innocence.  And we do not weigh the evidence or determine witness credibility, “but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.”
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[W]e note that “[u]nless clearly erroneous, a trial court's findings as to factual determinations and credibility relating to the admissibility of the defendant's statement at a Jackson-Denno hearing will be upheld on appeal.”  And in conducting our review, “we may consider trial testimony in addition to the testimony submitted during the motion to suppress hearing.

However, despite these hurdles, the three-judge Court of Appeals panel considered the arguments made by Wilson and unanimously agreed with them.  It stated that, although the client

was not handcuffed or told that he was under arrest, the officer confiscated the contents of his pockets by placing the items on the patrol car before continuing to detain him.  Under these circumstances . . . a reasonable person would certainly perceive himself to be in police custody.  Additionally, the accusatory nature of Officer Findley's question required the benefit of Miranda warnings, because although officers may make initial on-the-scene inquiries without Miranda warnings to ascertain the nature of the situation at hand, “[t]he questioning must not be aimed at obtaining information to establish a suspect's guilt.”  Officer Findley's question, which came after a witness identified Thompson as the suspect, was clearly aimed at establishing his guilt.  Accordingly, Thompson's admission regarding the vacuum cleaners should have been suppressed.

The Court then found as is required for a reversal, that the error in admitting the faulty testimony must be viewed as having been prejudicial to the client at trial:

Having determined that the trial court erred in admitting [the] statement, we must now determine whether “there is a reasonable possibility that the improperly admitted evidence contributed to the conviction....”   In this regard, the record reflects that the jury deliberated for some time and requested direction on the witness testimony and a lesser-included offense of criminal trespass;  there was testimony that the daycare center was located in a neighborhood subject to high crime and drug activity and that the owner had previously—and since—had trouble with burglaries; the witnesses gave inconsistent descriptions concerning the color of the vacuum cleaners and the suspect's clothing; and one eyewitness repeatedly referred to [the client[ by another person's name. Accordingly, we conclude that there is a reasonable possibility that the improperly admitted evidence contributed to the jury's verdict.

The case and reversal demonstrate that even notwithstanding the substantial hurdles facing one on appeal who has been convicted of a crime, sometimes erroneous trial rulings and results, and violations of Constitutional rights, can be vindicated and corrected on appeal.

The reversal also supports the proposition that Constitutional rights must be protected, and violations of them vindicated, whether the defendant is a CEO, CFO, or government official (whom Wilson also has represented in state and federal cases) or a local vagabond of extremely modest means improperly interrogated about an alleged theft of old vacuum cleaners from an abandoned ghetto building.  If the Constitution and Constitutional rights (all of them) are not vigorously protected at both ends of that social spectrum, then no one can have confidence that his or her rights (under whichever numerations in the Bill of Rights) will be respected at any point in between.