Georgia case law updates and legal news
Edited By George Washington

The Atlanta Gleaner.

January 22, 2023.

Montgomery v. State, No. S22A1302, 2023 WL 212552 (Ga. Jan. 18, 2023)
#criminal law #jury charges #capital crimes
The evidence at trial showed on Monday evening October 23, 2017 Justuss Rogers drove his friend Derrick Wheeler and a woman named Lakoaia Johnson in his Camaro to a cell phone store in Morrow, Georgia. Outside Johnson used her cell phone to record a video of herself with Rogers as he counted out a large amount of cash. She posted the video on Instagram.

Johnson was also in a group chat. For unknown reasons, members of the chat and Johnson devised a plan to lure Rogers to a cul-de-sac and rob him. Johnson advised in the chat she did not know whether Rogers was armed.

Johnson asked Rogers to drop her off at the cul-de-sac, but at first he refused. Johnson told Rogers that she needed to pick up her baby there. Rogers relented. Wheeler was in the back seat. 

When Rogers stopped his Camaro, Johnson opened the passenger-side door. She got out and Gregory Montgomery came from behind, grabbed the top of the door, pointed a black pistol inside – and opened fire. Rogers was hit four times on his right side as Wheeler slid down in the back seat as far as he could. Rogers had already shifted the car into reverse. When he hit the gas, he backed into a car that was parked behind him. Rogers managed to shift the car into drive and pull forward, but he hit another parked car, and his Camaro came to a halt.

Montgomery and Johnson ran away through some woods. They ran down a hill and through an adjacent apartment complex, where a security guard at the complex saw them. 

Meanwhile back on the cul-de-sac Wheeler climbed over the front seat of the Camaro, opened the driver-side door, crawled over Rogers, and got out. Rogers told Wheeler he had been shot and asked for help. Wheeler tried to keep Rogers conscious. As neighbors began to come out of their homes to see what had happened, Wheeler shouted to them to call 911. 

The police and emergency medical responders arrived within minutes of the shooting and Rogers was taken to a nearby hospital, where he soon died from his injuries.

The police recovered four .40-caliber shell casings and a black bookbag from the street near the Camaro, as well as a .40-caliber bullet on the driver's seat where Rogers had been sitting. The bookbag contained, among other things, Montgomery's cell phone and a gun magazine with nine .40-caliber rounds. 

On Montgomery’s cell phone, the police found pictures and a video made just hours before the shooting. They showed Montgomery pointing a pistol at the camera. Another picture showed the black bookbag with a pistol inside. The caption on the video started with the words “Big Boy 40 on me.”

A little more than a week after the shooting, the police brought Johnson in for questioning, and she said that S.D. sent her the address on the cul-de-sac where she was supposed to bring Rogers.

A week or so later, the police arrested S.D., who gave a statement implicating Montgomery as the shooter and Johnson as the person who set up the planned robbery. Within days, the police arrested Johnson. The following month, U.S. Marshals apprehended Montgomery at his sister's house, where they found him hiding under a pile of clothes in a bedroom.

At trial Johnson testified that Montgomery shot Rogers. S.D., who was not present at the shooting, testified that Montgomery told S.D. that he shot Rogers. The security guard from the adjacent apartment complex identified Montgomery as the man he saw running with Johnson from the sound of the gunfire with a gun in his hand seconds after the shooting. 

The defense theory was that the State failed to prove beyond a reasonable doubt that Montgomery was even present at the scene of the shooting, much less the shooter. Montgomery elected not to testify but called one defense witness, Charquita Cooper. Cooper testified that Johnson had confided in her that the father of Johnson's child shot Rogers; that Montgomery was not at the cul-de-sac at the time of the shooting; and that Johnson was going to testify falsely at Montgomery’s trial that he was the shooter. On cross-examination, Cooper acknowledged she and Johnson had physically fought in prison (implying ulterior motives for her testimony).

Almost two hours into deliberations, the jury sent the trial court a note that said: “Does the defendant need to have pulled the trigger in order to be guilty of felony murder? Or, does the defendant just need to be party to the felony?” The primary issue on appeal was a back-and-forth between counsel and the trial court about whether the court’s answer should include a re-charge on the definition of reasonable doubt, which the court ultimately declined to do.

Supreme Court of Georgia AFFIRMS. If the jury has specifically requested to be recharged on a particular issue, a trial court must recharge the jury on that issue. Absent such a request, the need for additional jury instructions, their breadth, and their precise formulation “are left to the sound discretion of the trial court.”

Nothing in the jury's questions suggested that it was confused or uncertain about the legal definition of reasonable doubt. Moreover, the trial court acted within its discretion in including in its recharge language regarding the presumption of innocence, the State's burden of proof, and the requirement that the State prove every essential element of the crimes charged beyond a reasonable doubt. The court did not abuse its discretion by declining to go further by recharging the jury on the definition of reasonable doubt.

And the evidence was sufficient to support conviction.

VICTORIA CARTER, Plaintiff-Appellant, v. WAL-MART STORES EAST, LP, JOHN DOES (1-3), ABC CORPORATION (1-3), Defendants-Appellees., No. 22-10174, 2023 WL 309034 (11th Cir. Jan. 19, 2023)
#slip and fall #Wal-Mart #reasonable notice #attorney misconduct
Victoria Carter sued Wal-Mart after she slipped and fell on a puddle of soda in the produce section. The district court granted summary judgment in Wal-Mart's favor and denied Carter's motion for sanctions against opposing counsel for submitting a false affidavit. Eleventh Circuit AFFIRMS.

Carter fell while shopping in a Georgia Wal-Mart one Saturday evening in June 2018. Wal-Mart had an official policy to prevent slip hazards on the floor: employees were supposed to conduct an hourly “safety sweep” to look for spills, continuously use a push mop to sweep the whole store and always look for spills as they walked down the aisles. 

But on the night Carter fell, nobody conducted the 7 p.m. safety sweep. Nobody was using the push mop, which leaned unmanned against a pole. And the nearest employee—Yvonne Simpson—had not been on the lookout for spills as she walked through the store.

A store camera captured the lead up to Carter's slip and fall. At 6:58 p.m., a young girl spilled some soda on the floor of the store's produce section. At 7:09 p.m.—not quite twelve minutes later—Carter slips, falls to the ground and hurts her knees. Simpson had walked through the produce section several minutes before the soda was spilled, but no employee saw or knew about the spill until Carter fell.

Carter sued Wal-Mart for negligently failing to maintain its premises. During discovery, one of Wal-Mart's attorneys contacted Simpson and got her her to sign a declaration saying that she had seen the video of Carter's accident, that she had inspected the floor of the produce section earlier that night and that she and other employees regularly “zoned” the floor to look for spills. 

Wal-Mart moved for summary judgment and submitted the declaration in support. They argued appropriate inspection procedures had been followed that night.

The district court reopened discovery so Carter could depose Simpson, who testified that she could not read well and had not understood the declaration she signed (although she hadn't told Wal-Mart's lawyer she couldn't read well). She also testified—contrary to the declaration—that she had never seen the video of the incident, that she had not looked for hazards when she walked through the store and that it was uncommon for Wal-Mart employees to zone the floor.

After the deposition, Wal-Mart's counsel withdrew Simpson's declaration. Carter filed a motion to sanction Wal-Mart by striking its answer to the complaint. She argued Wal-Mart had knowingly submitted a false declaration that formed a substantial basis for its motion for summary judgment. Wal-Mart obtained new counsel, and the law firm initially representing it instructed the associate involved in the declaration to report herself to the State Bar of Georgia.

The district court granted summary judgment and denied the motion for sanctions. AFFIRMED. The parties agree that Wal-Mart's employees did not have actual knowledge of the puddle of soda. Nor does Carter argue that a Wal-Mart employee was in the “immediate vicinity” of the spill. The only question is whether the twelve minutes between the soda's spilling and Carter's slipping was long enough for a reasonable jury to find that Wal-Mart would have “discovered and removed” the soda had it “exercised reasonable care.” Under Georgia law, it was not. The twelve minutes the soda was on the floor was insufficient as a matter of law to hold that Wal-Mart “should have discovered and removed the liquid prior to” Carter’s fall regardless of when the produce aisle was last inspected.

Nothing in the record indicated that Wal-Mart knew about the false affidavit, facilitated its submission, or otherwise acted in “subjective bad faith,” a prerequisite for inherent-power sanctions. Carter argues that the district court could have used its inherent power to sanction Wal-Mart for its counsel's bad faith. But that is incorrect. A district court may not sanction a party because of misconduct by its attorney that is not “fairly attributable” to the party.

City of Alpharetta v. Francis, No. A22A1533, 2023 WL 311338 (Ga. Ct. App. Jan. 19, 2023)
#premise liability #anti-litem #flooding #storm water drainage
Deanna Francis and her family filed suit against Fulton County and the City of Alpharetta, among others, claiming their negligent maintenance of storm water drainage systems caused flooding in her home. The City filed a motion to dismiss, arguing that the plaintiffs’ ante litem notice failed to comply with OCGA § 36-33-5 (e), which required them to provide the “specific amount of monetary damages being sought” from the City. The trial court denied the motion. Court of Appeals REVERSES. 

In October 2020 the plaintiffs’ home flooded with storm water originating from two sources: (1) sanitary sewer lines designed, maintained and operated by Fulton County, and (2) from a nearby storm water culvert designed, maintained, and operated by the City of Alpharetta. Two months later, plaintiffs submitted a letter to the City notifying it of their intent to sue. This letter purported to be an ante litem notice and provided: “Amount of Loss Claimed: Complete and total taking of the Subject Property in an amount to be proven at trial, but believed to total damages between $350,000 and $500,000. Medical damages between the amount of $75,000.00 and the limitations of any applicable insurance policies.” The letter also promised to supplement the ante litem notice with a “formal demand,” but no such demand was filed.

Plaintiffs ultimately filed suit against Fulton County and the City. The City filed a special appearance answer and a motion to dismiss, alleging plaintiff's’ ante litem notice was insufficient to comply with OCGA § 36-33-5 because it failed to include the specific amount of monetary damages being sought and instead set forth an open-ended estimate of damages. 

In March 2022, the trial court denied the City's motion to dismiss, finding that the amounts sought “substantially complied” with the ante litem notice statute. Court of Appeals disagrees. Because the plaintiffs’ ante litem notice merely provided an estimated range of potential damages and failed to identify which insurance policies they sought to recover under, the trial court erred when it concluded that the notice “substantially complied” with OCGA § 36-33-5 (e). An open-ended estimate of potential damages does not constitute a real offer of compromise which the City could have accepted.

Plaintiffs also argue the ante litem notice requirements of OCGA § 33-36-5 do not apply to their inverse condemnation cause of action. However because this argument was not raised before the trial court, Court of Appeals remands for further consideration.