Georgia case law updates and legal news
Edited By George Washington

The Atlanta Gleaner.

January 29, 2023.

Smoot-Lee v. Corizon Health, Inc., No. A22A1210, 2023 WL 385257 (Ga. Ct. App. Jan. 25, 2023)
#negligence #mental health services #criminal law
This is a negligence action brought by Wendy Smoot-Lee, a guard employed at the Chatham County Detention Center. Smoot-Lee alleged that medical provider “Corizon” failed to provide necessary psychiatric and medical treatment to a detention center inmate. As a result the inmate attacked her one day while being escorted through the halls. The trial court granted summary judgment in favor of Corizon. COURT OF APPEALS AFFIRMS.

The record shows that The Chatham County Detention Center (“CCDC”) contracted with Corizon, a private provider, to provide medical services at the prison. The agreement provided:

  1. Corizon was responsible for all medical care, including psychiatric care.

  2. Corizon had no responsibility for security at the CCDC or for the custody of any inmate at any time.

  3. The Chatham County Sheriff's Office (“CCSO”) was solely responsible for inmate custody and security.

  4. Both the CCSO and Corizon had joint responsibility for the identification, care and treatment of inmates who were ‘security risks’ or who presented a danger to themselves or others.

  5. The agreement stipulated that Corizon conduct inmate evaluations to identify mental health problems and whether the inmate exhibited “violent or disruptive behavior. Following this determination of need, the agreement required the inmate be referred to state mental health staff as clinically appropriate.

  6. However, the CCSO's decisions are final in non-medical matters and matters involving safety and security of the CCDC.

  7. Pursuant to the CCSO's policy manual, in the event that an inmate posed a serious threat to staff or other inmates, the CCSO could place the inmate in special segregated confinement.

In March 2014, the CCSO detained Danielle Burton at the CCDC. As part of the booking process, Corizon evaluated Burton and issued a mental health referral. The CCDC's intake form showed that Burton had a “medical problem” and a “mental health issue,” and that she had been referred to a counselor. Burton was detained again in May 2014, and Corizon again issued a mental health referral. This referral was marked “urgent,” indicating that she should be seen within the next 48 hours.

Still incarcerated a week later, on May 13, Corizon scheduled Burton for lice treatment and issued another mental health referral. Burton requested her psychiatric medications via a kiosk the same day. Corizon acknowledged the request, noting that her mental health appointment was pending. That week, Burton engaged in several instances of disorderly conduct, and during at least one occurrence, CCSO officers had to place Burton in a restraint chair. Corizon examined Burton on May 21 and issued another mental health referral.

By May 27 Burton had still not been seen by a psychiatrist. Corizon had scheduled Burton for lice treatment that day. The plaintiff, Smoot-Lee, was the guard escorting Burton to the medical wing. There Burton indicated she did not want the lice treatment. Smoot-Lee told Burton that she could tell the same to the nurses at the other end of the medical wing.

As they were walking down the hall, Burton wanted to stop at a water fountain. Smoot-Lee advised Burton to keep walking. When Burton refused, Smoot-Lee and other officers attempted to restrain her. Burton resisted, injuring Smoot-Lee. Smoot-Lee suffered long-term pain as a result of these injuries, eventually requiring surgery. Burton later wrote Smoot-Lee an apology letter, stating that she would not have attacked her if Burton had received her psychiatric medications.

Smoot-Lee sued Corizon and Burton, asserting a negligence claim against Corizon. She alleged that Corizon failed to provide adequate mental health treatment to Burton, resulting in the attack. The trial court granted summary judgment in favor of Corizon. Smoot-Lee appeals.

As a general rule, there is no duty to control the conduct of third persons to prevent them from causing physical harm to others. However, relevant to this case, the Supreme Court of Georgia in the seminal case Bradley Center v. Wessner established a two-part test for when a physician may be liable to a third party:

  • (1) the physician must have control over the mental patient; and

  • (2) the physician must have known or reasonably should have known that the patient was likely to cause bodily harm to others.

  • In these circumstances, the physician must “exercise that control with such reasonable care as to prevent harm to others at the hands of the patient.”

The Court has emphasized “control over the patient as the touchstone for imposing this duty” against the medical provider. Absent legal authority in the physician to place restraints on the liberty of his patient, the duty to control does not arise.

In this case, while Burton was not free to leave the jail, it was the CCSO who exercised this control over Burton — not Corizon. The agreement between the CCSO and Corizon provided that the CCSO was solely responsible for all for inmate custody and security. And it was the CCSO (of which Smoot-Lee was an employee) who actually restrained Burton and the other inmates.

Smoot-Lee contends that Burton met the criteria for involuntary confinement, and thus Corizon had the legal authority to confine or restrain her. While under some circumstances the Court has recognized that the failure to commit may constitute a breach of the duty physicians owe patients, they have not done so with respect to third parties. Court of Appeals affirms summary judgment in favor of Corizon.

Torres-Toledo v. State, No. A22A1544, 2023 WL 385266 (Ga. Ct. App. Jan. 25, 2023)
#withdraw guilty plea #enforce plea agreement #merge convictions #crazy defendant
This case is about a defendant who alleged he and the prosecutor had a plea deal, turning on him withdrawing his guilty plea in another case, that the State reneged on.

In March 2021, a grand jury indicted Torres-Toledo for one count each of armed robbery and aggravated assault with a deadly weapon. The following January, Torres-Toledo filed a motion to enforce a plea agreement.

He alleged the State had made a bargain with him. In exchange for withdrawing his guilty plea in a separate case, they would reduce his charges to simple robbery, recommend a total sentence of “15 serve 8 years” and seek to modify the punishment in the other case to the same total sentence.

Torres-Toledo further alleged that, while he had fulfilled his obligation by withdrawing his motion to withdraw the guilty plea in the other case, it had become clear that the State was not going to hold up its end of the bargain. The appellate record contains neither a response to this motion nor a written order disposing of it.

During a court proceeding the day after the motion was filed, a negotiated plea was presented to the trial court, who actually rejected the plea based on the “facts of the case.” The appellate record contains no transcript of that proceeding and the terms of any such negotiated plea therefore are unclear.

One week later, Torres-Toledo filed a motion to reduce the armed robbery charge to simple robbery based on the parties’ alleged plea agreement. Later that day a plea hearing was held. During the hearing, Torres-Toledo argued the parties had entered into a “binding plea agreement,” pursuant to which any plea entered would be to a single count of a reduced charge of simple robbery. The State responded that it was under no obligation to allow Torres-Toledo to enter a plea to a reduced charge and asked the trial court to deny his request to do so.

The trial court orally denied Torres-Toledo's motion to reduce the armed robbery charge to simple robbery on the ground that no negotiated plea had been presented to the court before its “negotiated plea deadline of December 6th of 2021.” Torres-Toledo then entered non-negotiated guilty pleas to armed robbery and aggravated assault, and the trial court imposed a total sentence of 15 years in prison, to be followed by 25 years on probation. This appeal followed.

In his sole enumeration of error, Torres-Toledo contends that the trial court erred by allowing the State to breach its obligation under the alleged plea agreement to reduce the charges to a single count of simple robbery. Torres-Toledo has not met his burden of establishing reversible error.

A plea bargain agreement is a contract under Georgia law which binds both the prosecutor and defendant. State v. Harper, 271 Ga. App. 761 (2005). Public policy and the great ends of justice generally require the enforcement of plea agreements ....” Syms v. State ,331 Ga. App. 225 (2015). Nevertheless, “a trial judge has wide discretion to accept or reject a negotiated plea ....” Barber v. State, 316 Ga. App. 701 (2012).

On appeal, Torres-Toledo does not address the basis on which the trial court denied his request to reduce the armed robbery charge to simple robbery — i.e., that no negotiated plea agreement was presented to the trial court by the court's deadline.

Further, Torres-Toledo identifies no record evidence — “other than his own self-serving assertions” — establishing what terms, if any, the parties may have settled on as a part of any potential plea agreement.

Nor has he provided the evidence showing that he even withdrew a motion to withdraw a guilty plea in another proceeding, whether pursuant to plea negotiations or for any other reason. Even if he had, where a trial court announces that it does not intend to follow a sentencing recommendation included as part of plea negotiations, the State is authorized to withdraw any consent it may have given to a negotiated plea.

Remanded because the trial court should have merged Torres-Toledo’s convictions. Where the same assault is used to support a charge of aggravated assault and a charge of armed robbery, the aggravated assault and armed robbery convictions must merge. Young v. State, 272 Ga. App. 304 (2005).

Hightower v. State, No. S22A0870, 2023 WL 212509 (Ga. Jan. 18, 2023)
#criminal law #mistrial #double-jeopardy #COVID-19 #Ripley’s Believe It Or Not
This case concerns the murder trial of Michelle Antoinette Hightower in Fulton County in connection with the shooting death of Michael McGee on September 5, 2017. Hightower's trial began on Monday, March 9, 2020. Over the course of the week, the public health risk posed by COVID-19 reached a fever pitch. Based on fear of transmission, the Chief Judge of the Atlanta Judicial Circuit issued an order declaring a judicial emergency. This meant in part suspending jury trials. The trial court declared a mistrial in Hightower's case over defense counsel's objections. 

Hightower subsequently filed a plea in bar and motion to dismiss the indictment asserting that further prosecution of her case was barred by the double jeopardy clauses of the state and federal constitutions. Trial court denied the Plea in Bar on May 21, 2021. SUPREME COURT OF GEORGIA AFFIRMS. Mistrial was justified by manifest necessity of COVID-19. Retrial is not barred.

Voir dire in Hightower's trial began on the morning of Monday, March 9, 2020. By Wednesday, March 11, the State had presented five witnesses and qualified an expert to rebut Hightower’s defense of battered wife syndrome. The trial court recessed the trial proceedings for the next day, Thursday, to allow the State's expert to interview Hightower and allow the parties to prepare and exchange expert reports on the battered-person defense.

That evening, Christopher S. Brasher, chief judge of both the Atlanta Judicial Circuit and the Superior Court of Fulton County, sent an email notifying all Fulton County superior and state court judges, the Fulton County District Attorney's office, and the county's Public Defender's office, among others, of his intention to issue an order declaring a judicial emergency effective Monday, March 16, which would “suspend the calling and empaneling of all jurors and the conduct of all jury trials” in Fulton County.

Chief Judge Brasher sent another email at 8:20 a.m. on Friday, March 13, attaching a copy of his order, which was entered about an hour later, at 9:23 a.m. The order, citing OCGA § 38-3-61, declared a judicial emergency in the Atlanta Judicial Circuit, which “is composed of the County of Fulton.” OCGA § 15-6-1 (3). The order defined the nature of the emergency as “the continued transmission of Coronavirus/COVID-19 throughout Fulton County and the potential infection of those who are required to appear in our courts and interact with large groups due to jury service.” 

The order provided that:

  • The undersigned makes this declaration of a judicial emergency affecting all courts and clerk's offices in Fulton County as it relates to jury service, including grand jury service and any non-essential matters, unless they can be conducted via video or teleconferencing.

    Accordingly, IT IS THE ORDER of the Court that no jurors shall report and no jury trials shall be held for a period of thirty (30) days from the date of the entry of the Order (the “Fulton County Order”).

The proceedings in Hightower's case later recommenced at 9:51 a.m. Outside the presence of the jury, and after addressing preliminary evidentiary matters, the trial court announced it would be taking judicial notice of the Fulton County Order and that it was also anticipating a similar statewide order from then-Chief Justice Harold D. Melton. As a result, the trial court said it anticipated declaring a mistrial in Hightower's case and asked counsel if they wanted to “place something on the record.”

The State had no objections, but Hightower's counsel objected to the mistrial and asked the court to consider less drastic alternatives: (1) holding the trial over the weekend to be completed “before the judicial emergency has been declared” on Monday, March 16, and (2) ordering a continuance until “the judicial emergency is over” when the trial could be reset before the same jury. After the jurors returned to the courtroom, the trial court informed them of the Fulton County Order declaring a judicial emergency, and announced that it was declaring a mistrial based on the judicial emergency. They were released from further service.

Hightower filed her Plea in Bar over one year later with the trial court, on April 7, 2021. Denied. Hightower asserts on appeal the trial court erred in declaring a mistrial sua sponte over her objection without carefully exercising sound discretion, without considering less drastic alternatives, and without a manifest necessity. She asserts that the trial court based its mistrial decision, not on any problem with her trial, but rather on the Fulton County Order and its underlying concerns for “community safety.”

SUPREME COURT OF GEORGIA AFFIRMS. Even after jeopardy has attached, trial courts may declare a mistrial over the defendant's objection, without barring retrial, whenever in their opinion taking all the circumstances into consideration, there is a manifest necessity for doing so. Rios v. State, 311 Ga. 639 (2021). See also U.S. v. Dinitz, 424 U.S. 600 (1976). In considering the issue of double jeopardy, the United States Supreme Court has recognized that considering the health of trial participants can be integral to conducting a criminal trial.

At the time the trial court declared a mistrial in this case, the COVID-19 pandemic had created an unexpected and unprecedented global health crisis, which posed a potential threat to the health of the parties, including the defendant, witnesses, jurors, counsel, and court personnel required to appear in court. Hightower's trial took place early in the pandemic, when very little was understood about the nature or spread of the COVID-19 virus, understandably prompting caution by public officials in addressing the crisis based on the circumstances in the surrounding area. The Fulton County Order fairly declared that an emergency existed based on “the continued transmission of Coronavirus/COVID-19 throughout Fulton County.”

The trial court was also aware that health issues already had arisen among the participants in Hightower's trial. On Tuesday, March 10, one juror informed the court that she was concerned she had “strep” as she had a sore throat that had “progressively gotten worse,” and the State informed the trial court that one of its witnesses called to report that she had “flu-like” symptoms that were “getting worse.” These circumstances, demonstrate that, contrary to Hightower's argument, community health concerns potentially arising from COVID-19 presented a problem for Hightower's trial.

The trial court acted within its discretion in determining that there was a manifest necessity for a mistrial.

January 26, 2023.

BUCHANAN v. HANNON., No. A22A1650, 2023 WL 369325 (Ga. Ct. App. Jan. 24, 2023)
#wills and estates #will construction #family feud
This case involves the interpretation of a will. Specifically whether decedent intended to bequeath his entire residence to his daughter or divide it between his daughter and niece.

The record shows that in 2017 Gloster L. Buchanan executed his last will and testament. At the time, Gloster's wife, Celia Buchanan, was alive, as were his only child, Carol Ramona Buchanan, and three grandchildren. Gloster also had a niece, Samille Hannon. 

In Item XVIII of the will, titled Specific Devise of Homeplace, Gloster bequeathed his residence as follows:

  1. I give and devise to CELIA M. BUCHANAN, if she shall survive me, any interest which I own at the time of my death in the house and lot which I occupy as my residence at the time of my death.

  2. If she shall not survive me, then I give and bequeath said property to CAROL RAMONA BUCHANAN, provided she survives me.

  3. If she shall not survive me, then I give, devise and bequeath all the property to CAROL RAMONA BUCHANAN and SAMILLE HANNON, provided they survive me.

  4. If my said daughter or niece fail to survive me, but have living lineal descendants who survive them, such descendants shall take per stirpes the share their parent would have taken had she survived me.

Celia died in March 2019. Gloster died in June 2019. Later that year Carol as executor of Gloster's estate probated her father's will.

In January 2021, the niece Samille Hannon filed this declaratory judgment action against Carol, in her capacity as executor, alleging that Lines 2 and 3 of Item XVIII in Gloster's will are in conflict regarding distribution of his homeplace. The parties filed cross-motions for summary judgment asking the trial court to construct the will as a matter of law. The ultimate issue is who Gloster was referring to by the first use of “she” in Line 3. If that “she” refers to Celia, as Hannon claims, then Line 2 and Line 3 paradoxically provide for Carol to receive the homeplace 100% in the first instance and split the property 50/50 with Hannon in the second.

If it seems obvious that “she” in Line 3 refers to the potential of a deceased Carol, it also seems strange that Line 3 would name Carol as inheriting half of the property, versus her heirs or descendants, since Line 4 makes that designation.

Hannon argued Line 2 and Line 3 were merely a direct conflict that under principles of will construction must be resolved by giving effect only to the later sentence. Arguing ambiguity in Item XVIII, Carol argued the court should consider parol evidence to determine Gloster's intent. Carol submitted affidavits from herself and Gloster's lawyer averring that Gloster intended to bequeath the residence solely to Carol. Hannon maintained no ambiguity, but submitted her own affidavits stating that Gloster meant to devise the residence to Carol and her equally. 

The trial court agreed with Hannon's interpretation of the will, ruling that “the second and third sentences are not ambiguous, but contradictory devises that cannot be reconciled.” Accordingly, the court resolved the contradiction by only giving effect to Line 3. Carol appealed.

Court of Appeals REVERSES. The first “she” in Line 2 refers to Celia. Carol inherits the property if Gloster’s wife predeceases him and Carol survives him. The first “she” in Line 3 refers to Carol. Therefore Line 3 only comes into play if Carol predeceases Gloster (never).

Court of Appeals held this is the most reasonable interpretation of Item XVIII:

  • First it is the grammatically preferable construction. The first “she” in the third sentence must refer to Carol because Carol is the female identified by name immediately before that pronoun.

  • Second this interpretation gives effect to both the second and third sentences: the second sentence sets forth what happens if Celia fails to survive Gloster (Carol inherits), and the third sentence explains what happens if Carol also fails to survive Gloster (Carol and Hannon inherit). 

  • Third this interpretation honors the principle that, in construing a will, courts should look to that interpretation which carries out the provisions of the statute of distribution, rather than that which defeats them; that, in the absence of anything in the will to the contrary, the presumption is that the ancestor intended that his property should go where the law of intestacy carries it, which is supposed to be the channel of natural descent. To interrupt or disturb this descent or direct it in a different course should require plain words to that effect.

The Court noted this interpretation arguably renders Line 3 problematic, as it would require Carol to inherit one-half of the property if she were no longer living. However because the event of Carol predeceasing Gloster did not occur, the Court did not reach this issue.

Wright v. State, No. S22A1117, 2023 WL 210508 (Ga. Jan. 18, 2023)
#criminal law #capital crimes #bizarre
The evidence at trial showed the following. On May 13, 2017 at 12:50 a.m. a Coffee County 911 operator received a “hang-up” call and called the number back. It rang four times before the defendant Walter Russell Wright answered. Wright told the operator that Oletha Brady had shot herself with his gun. Wright said he didn’t know how she got it because he wore it “by his foot.” 

Sheriff's deputies responded to the home within 10 minutes of the 911 call. When Wright opened the door, the deputies saw Brady lying face-up on the living room floor with a gunshot wound to her torso. Taurus .38 Special revolver on the floor near her body. The .38 Special contained four live rounds and one fired shell.

Wright told one of the deputies that he and Brady were having sex on the couch when the gun in his ankle holster “went off.” The deputy observed the empty gun holster strapped to Wright’s ankle. Wright also gave a second version of the events at the scene to deputies. That while he and Brady were having sex on the couch, Brady got his gun and shot herself. A bullet was later recovered from a blood-stained couch cushion.

At trial, a paramedic who arrived at the home shortly after the deputies arrived testified that Brady was wearing a nightgown and that her body was cold to the touch, her skin was turning gray, she had no pulse, and she was not breathing. The paramedic further testified that she had never seen a body that was cold to the touch and with graying skin within 15 minutes after an injury had occurred. A GBI forensic firearms examiner testified that the .38 Special found next to Brady's body would not fire “without the trigger being pulled and held to the rear.”

The medical examiner who performed the autopsy on Brady was admitted as an expert in forensic pathology and testified at trial as follows. The cause of death was a gunshot wound to the torso, which entered the center of Brady's chest just below the breastbone and exited through her back. When the gun was fired, it was anywhere from a few inches to three feet away. The medical examiner concluded that the manner of death was homicide rather than accident or suicide, based on her experience as a medical examiner and her examination of multiple gunshot wound cases involving homicide, accident, and suicide.

After being taken into custody, Wright waived his rights under Miranda v. Arizona and was interviewed twice by law enforcement officers. The interviews were video-recorded and played for the jury. According to Wright, he and Brady lived next to each other and had been in an on-and-off relationship for six years, but the relationship had ended. On the evening of the shooting, Wright was outside his home when Brady walked by and invited him over. The two began drinking — and talking about Wright’s relationships with other women. According to Wright, he was involved with three other women and these relationships were “causing issues.”

Wright then provided three conflicting accounts of Brady's death. In one version, Brady wanted to have sex, but he declined because he was involved with someone else. He went to the bathroom and when he came out, he heard a pop and saw Brady lying on the living room floor with a gunshot wound. In the second version, he and Brady were having sex on the couch when the gun in his ankle holster discharged. In Wright’s final version, he was sitting on the floor in the living room taking his shoes off when he removed the gun from his ankle holster and he saw that the gun was cocked. He attempted to lower the hammer, but the gun accidentally discharged. Brady, who was standing in the kitchen behind him, was struck by the bullet. Wright elected not to testify at trial, but he called three witnesses who testified that he had a reputation for peacefulness, honesty, and abiding by the law.

Wright was convicted of felony murder. Georgia Supreme Court AFFIRMS. On appeal, Wright argued the trial court erred in its instruction on good character evidence because it failed to inform the jury that good character is a substantive fact that in and of itself may create a reasonable doubt as to a defendant's guilt and lead to an acquittal.

The trial court instructed the jury as follows, substantially tracking the current pattern instruction:

  • “You have heard the evidence of the character of the defendant for particular traits, more specifically, honesty, peacefulness, and being law-abiding in an effort to show the defendant likely acted in keeping with such character or trait at pertinent times or with reference to issues in this case. This evidence has been offered in the form of opinions of other witnesses and their testimony as to the defendant's reputation. You shall consider any such evidence, along with all the other - other evidence in deciding whether or not you have a reasonable doubt about the guilt of the defendant.”

Georgia Supreme Court applied the plain error analysis because Wright did not object at trial. The Court has previously rejected the contention that omitting the “substantive fact” language renders the good-character instruction inadequate. Nor could Wright establish that the alleged error was clear and beyond reasonable dispute. Accordingly, Wright’s claim that his counsel was ineffective for failing to object to the charge also failed. And the evidence was sufficient to support conviction.