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State high court rules on texted nude photo



Published Monday, February 24, 2014

From Public Information Officer

Supreme Court of Georgia


 Opinion summaries are not to be considered as official opinions of the Court. The full opinions are available on the Supreme Court website at .



            The Supreme Court of Georgia has unanimously reversed a Cherokee County court ruling and thrown out the criminal charge against a man who texted to a woman an unsolicited picture of his penis.

            Charles Leo Warren, III argued that the trial court erred because the act that was alleged in the indictment –sending a nude image of his genitals from his cell phone to the victim’s cell phone – is not prohibited by Official Code of Georgia § 16-12-81. “We agree,” Chief Justice Hugh Thompson writes in today’s unanimous opinion.

            According to the State, in October 2012, Warren allegedly sent a photo of his tattooed penis in a text message from his phone to the phone of a woman. The tattoo allegedly said, “STRONG E nuf 4 A MAN BUT Made 4 A WOMAN,” according to state prosecutors. The woman, who is married and has young children, complained to police, and Warren was arrested. In the indictment, Warren was formally charged with Distribution of Material Depicting Nudity for sending “a picture and digital image of said accused’s genitals, without the notice of contents as required by Official Code of Georgia § 16-12-81.”


Under that statute, a “person commits the offense of distributing material depicting nudity or sexual conduct when he sends unsolicited through the mail or otherwise unsolicited causes to be delivered material depicting nudity or sexual conduct to any person or residence or office unless there is imprinted upon the envelope or container of such material in not less than eight-point boldface type the following notice: ‘Notice --- The material contained herein depicts nudity or sexual conduct. If the viewing of such material could be offensive to the addressee, this container should not be opened but returned to the sender.’” Punishment for violating the statute is one to three years in prison or a fine up to $10,000, or both. Warren’s attorneys filed several pre-trial motions to get the charge thrown out, arguing that the statute does not apply to electronic images on a cell phone; that his due process rights were violated because the statute is unconstitutionally vague; and that the statute is unconstitutionally overbroad and violates his right to free speech. The trial court denied his challenges in June 2013, and prior to his case going to trial, Warren appealed to the state Supreme Court.


            “To start, we note that Official Code of Georgia § 16-12-81 is not inapplicable to electronic text messaging merely because that form of communication did not exist when § 16-12-81 was enacted in 1970,” today’s opinion says. However, the statute contemplates that the “material” that is prohibited “has an envelope or container that can have the notice imprinted on it.” Given the ordinary meaning of the words in the statute, the prohibition applies to “tangible material that has a tangible envelope or container on which the required notice can be imprinted,” the opinion states. “This conclusion is reinforced by the fact that the imprinted notice on the envelope or container must be in ‘eight-point boldface type’ and must say that the ‘container’ should be ‘returned’ to the sender if the addressee does not want to ‘open’ it. We thus conclude that the general prohibition of the statute does not apply to the text message that appellant sent in this case.” The statute “does not criminalize his conduct,” and the “trial court therefore erred,” the opinion says. “Because the indictment must be dismissed for this reason, we need not address appellant’s constitutional challenges to the statute.”

Attorneys for Appellant (Warren): T. Jess Bowers, III, Donald Roch, II

Attorneys for Appellee (State): Shannon Wallace, District Attorney, Patricia Hull, Asst. D.A., Cliff Head, Asst. D.A.




            The Georgia Supreme Court has ruled in favor of Georgia’s Department of Natural Resources and reversed a decision by the Georgia Court of Appeals that would have allowed an environmental lawsuit to go forward involving development along the Georgia coast.

            In today’s unanimous decision, Justice Carol Hunstein writes that sovereign immunity bars the claims in this case “and only the General Assembly has the authority to waive the State’s sovereign immunity.”

            The Center for a Sustainable Coast is an environmental organization devoted to safeguarding Georgia’s tidal marshes. In April 2011, the Center, along with David and Melinda Egan, filed a lawsuit in Glynn County Superior Court against the Department of Natural Resources, its Coastal Resources Division, and the division’s director, A.G. “Spud” Woodward. The complaint alleged that the Coastal Resources Division was violating the state’s Shore Protection Act by issuing “letters of permission” for construction activities which, under the Act, require a permit. The law states: “No person shall construct or erect any structure or construct, erect, conduct, or engage in any shoreline engineering activity or engage in any land alteration which alters the natural topography or vegetation of any area within the jurisdiction of this part, except in accordance with the terms and conditions of a permit….” To obtain a permit, an applicant must comply with multiple requirements, including providing the names and addresses of all landowners whose property abuts the parcel of land at issue. The permit application is submitted to a Shore Protection Committee, made up of the department’s commissioner and four others. Interested parties and landowners must be provided notice of the proposed action before any permit is granted. Among the factors the committee must consider before granting a permit are whether the project will interfere with the conservation of marine life or wildlife, and whether it will interfere with public access and enjoyment of public properties. Although the law does not contain any provision for circumventing the permit process, the Coastal Resources Division often issues letters of permission for certain requests without requiring the applicant to formally seek a permit. Such letters have allowed actions ranging from the rebuilding of houses and drainage systems to the construction of a film set.

            In its lawsuit, the Center claimed the letters effectively exempted the recipients from the stringent permitting procedures required under the Shore Protection Act, which was passed by the legislature to protect environmentally sensitive elements of Georgia’s coast. The Center sought “injunctive relief,” such as a temporary restraining order, to halt the issuance of the letters, and a “declaratory judgment,” or a declaration by the court that the letters of permission were unauthorized under the Act. In response, the State filed a motion to dismiss the complaint, in part based on its claim that it was protected by sovereign immunity. According to the State, the crux of the Center’s claim was its request for a declaratory judgment, and all the other counts in the complaint flowed from its contention that the letters of permission were unauthorized acts. However, the State argued, the Center was not entitled to a declaratory judgment because there was no “justiciable controversy” – a conflict the courts needed to decide – because the Center was not seeking guidance with respect to actions it might take in the future; rather it sought a declaration that past actions by the state Coastal Resources Division were unauthorized. The trial court granted the state’s motion and dismissed the case, finding that the Center’s claims were barred by sovereign immunity and there was no justiciable controversy. The Center then appealed to the Court of Appeals, which upheld the lower court’s dismissal of the Center’s claim for a declaratory judgment based on the lack of a justiciable controversy. However, it reversed the dismissal of the Center’s claim for injunctive relief, finding that “the Center is able to bring such a claim without running afoul of sovereign immunity.” Specifically, the Court of Appeals’ decision says, appellate courts have “long recognized an exception to sovereign immunity where a party seeks injunctive relief against the state or a public official acting outside the scope of lawful authority,” quoting the state Supreme Court’s 1995 decision in International Business Machines (IBM) Corp. v. Evans. “This is so because a governmental entity cannot cloak itself in sovereign immunity while performing illegal acts to the detriment of its citizens.” The Department of Natural Resources then appealed to the Georgia Supreme Court.

            In today’s 22-page decision, the high court has overruled its decision in IBM Corp. v. Evans, upon which the Court of Appeals relied “heavily” in reaching its decision in this case.

            “The history of sovereign immunity in our State shows that the 1991 amendment [to the Georgia Constitution] intended to expressly reserve the power to waive sovereign immunity exclusively to the legislature,” the opinion says. “In IBM v. Evans, we minimized the effect of the 1991 amendment….” “Second, the straightforward text of the 1991 amendment does not allow for exceptions. IBM v. Evans wrongly recognized an exception to sovereign immunity for suits seeking injunctive relief to restrain an illegal act.” “Third, in IBM v. Evans, we misconstrued a proper waiver of sovereign immunity as an exception to sovereign immunity.” “Fourth, IBM v. Evans was wrongly decided because many of the cases it relied upon predate the constitutional ratification of sovereign immunity in 1974.”

            “Accordingly, because we overrule IBM v. Evans, we conclude that the Court of Appeals erred when it reversed the trial court’s dismissal of the Center’s claim for injunctive relief based on sovereign immunity,” the opinion says. “We hold that sovereign immunity bars the Center’s claim for injunctive relief against the State in this case….”

            “Our decision today does not mean that citizens aggrieved by the unlawful conduct of public officers are without recourse. It means only that they must seek relief against such officers in their individual capacities.”

Attorneys for Appellants (DNR): Samuel Olens, Attorney General, Nels Peterson, Solicitor General, Isaac Byrd, Dep. A.G., John Hennelly, Sr. Asst. A.G., James Coots, Sr. Asst. A.G.

Attorneys for Appellees (Center): Donald Stack, Jenny Culler



            In this high-profile case, the Supreme Court of Georgia has upheld a Wayne County court decision and rejected a man’s argument that his retrial would violate his constitutional right against double jeopardy and his right to a speedy trial. Larry L. Jenkins, Jr. was convicted in 1995 and originally sentenced to death for the 1993 murders of a laundromat owner and her 15-year-old son. Jenkins was 17 years old at the time of the murders.

According to the evidence at trial, the evening of Jan. 8, 1993, 37-year-old Terry Ralston and her teenage son, Michael, left their home in her white Chevy Lumina van for the family-owned laundromat in Jesup to collect coins from the machines and close the store. Two hours later, when they failed to return home, a family member went to the laundromat and discovered it locked but only partially cleaned. The next day, the bodies of Terry and Michael Ralston were found lying face down in a ditch near the railroad tracks. Michael had been shot six times from behind at close range, including once in the back of the head. His mother had been shot once at the base of the skull. A piece of fresh onion was found next to the bodies. A witness who lived nearby testified she heard shots fired between 9 and 10 p.m. on Jan. 8.

Other witnesses testified that after 10:30 p.m. that night, they saw Jenkins driving the Ralstons' white van around Jesup, picking up friends. Jenkins told the friends that the van, which contained a duffle bag with more than $600 in quarters, belonged to his mother. The next day, Jenkins told one of the friends he had robbed a laundromat and shot and killed a lady and her son with a .22 Grendel magnum pistol along some railroad tracks after the boy “started to buck” and the woman began screaming. Later, Jenkins and his friends returned to Jesup where they tried to cash in the quarters. When police spotted the Ralstons’ van and pulled it over, the four young men escaped on foot. Police found rolls of quarters, a clip and cartridges from a .22 automatic weapon, and two onion peels in the van. When Jenkins was arrested later that day, police found Michael Ralston's learner's permit in his pocket.

Jenkins’ friends were questioned separately and each gave corroborating statements about Jenkins' actions and comments. The police concluded that none of the men had been with Jenkins before 11:30 p.m. the night of the murders. While Jenkins was incarcerated prior to conviction, inmate Curtis Mathis saw Jenkins arguing with another prisoner. According to Mathis, Jenkins told the other prisoner that he had “already killed two [people] and it wouldn't bother him again if he killed another one.”

In September 1995, Jenkins was convicted of malice murder, armed robbery, kidnapping, and other crimes. He was sentenced to death for both murders, and in 1998, the Supreme Court of Georgia upheld his convictions and sentences. In 1999, Jenkins’ attorney filed a petition for a “writ of habeas corpus” – a civil proceeding that allows already convicted prisoners to challenge their conviction on constitutional grounds in the county where they’re incarcerated. In 2005, the habeas court in Butts County threw out his death sentences and ordered a new trial, finding that the United States Supreme Court had declared the death penalty unconstitutional for persons under the age of 18 and that Jenkins had received “ineffective assistance” of legal counsel. In 2006, the state Supreme Court upheld the habeas court’s decision granting a new trial based on the ineffective assistance claim. In June 2011, Jenkins’ attorney filed a motion to bar the retrial on the ground that it would violate the double jeopardy clauses of the U.S. and Georgia constitutions, and in 2012, Jenkins filed a motion to dismiss the case, arguing that his constitutional right to a speedy trial had been violated. In January 2013, a Wayne County Superior Court judge denied both motions. Jenkins then appealed to the state Supreme Court.

In today’s opinion, written by Presiding Justice P. Harris Hines, the high court has upheld the lower court’s denial of Jenkins’ motions to dismiss the indictment against him. “As a general rule, a post-conviction reversal or grant of a motion for new trial which is not based on insufficiency of the evidence does not preclude retrial,” the opinion says. “However, double jeopardy does prohibit the retrial of a criminal defendant when the State does not produce sufficient evidence at the initial trial to sustain a conviction.”

 But the state Supreme Court determined in 1998 that the evidence at Jenkins’ initial trial was “sufficient to enable a rational trier of fact to find Jenkins guilty of the crimes charged beyond a reasonable doubt.” Double jeopardy “also precludes retrial when the defendant is granted a mistrial or a reversal on appeal of his or her conviction in the case of intentional prosecutorial misconduct, which is ‘purposefully designed to secure an opportunity to retry the case.’”

The habeas court had found that there was “overwhelming evidence” that “the prosecution committed intentional misconduct.” However, “there is no showing that the State’s conduct was aimed at aborting the trial and securing an opportunity to retry the case,” today’s opinion states. “In fact, quite the contrary. Jenkins acknowledges in his argument to this Court that ‘[t]he evidence is clear that the State was not trying to induce a mistrial,’ but rather was trying to obtain his convictions. Thus, the trial court properly concluded that double jeopardy does not bar Jenkins’ retrial.”

“There is likewise no merit to Jenkins’ further claim that the trial court erred when it denied his plea alleging that the State had violated his Federal and State Constitutional rights to a speedy trial.” The opinion analyzes each of the four factors outlined in the U.S. Supreme Court’s 1972 decision in Barker v. Wingo before determining there was no violation of Jenkins’ right to a speedy trial.

“Simply, there was no abuse of the trial court’s discretion in applying the test of Barker v. Wingo and ultimately denying Jenkins’ motions and pleas to bar his retrial on the basis of the violation of his constitutional right to a speedy trial.”

Attorney for Appellant (Jenkins): Jonathan Lockwood

Attorneys for Appellee (State): Jackie Johnson, District Attorney, Andrew Ekonomou, Asst. D.A., Samuel Olens, Attorney General, Patricia Burton, Dep. A.G., Paula Smith, Sr. Asst. A.G.



            A man sentenced to life in prison for numerous crimes, including aggravated sexual battery and kidnapping, has had his kidnapping convictions thrown out under a decision today by the Georgia Supreme Court.

            Justice Harold Melton writes for the Court that prosecutors failed to prove “asportation” – or the act of moving a person – which was required to prove kidnapping under the state Supreme Court’s 2008 decision in Garza v. State.

Lenzie A. Wilkerson was tried and convicted in 2003 by a Bulloch County jury in a joint trial with co-defendant, Courtney Dickerson, who was also convicted. Wilkerson’s younger brother and another co-defendant pleaded guilty. In 2006, the Georgia Court of Appeals upheld Wilkerson’s convictions and sentences.

But under today’s unanimous opinion, the high court finds that, “the evidence was insufficient to show asportation under Garza, and Wilkerson’s convictions for kidnapping must be vacated.”

According to the Court of Appeals’ decision, the facts are as follows: Late Nov. 26, 2001, a group of friends had gathered at the Towne Club Apartments in Statesboro, GA when two men knocked at the door and asked to buy marijuana. Fifteen minutes later, the two men returned, one of whom carried a pistol, and charged into the apartment. They were accompanied by three other men who wore masks, and another of whom had a shotgun. Three of the victims testified that the intruders covered their eyes with duct tape, tied their hands behind their backs, piled them on top of each other on the floor and placed a coffee table on top of them. Another victim testified that the perpetrator with the pistol found him in the kitchen and ordered him to the floor, then bound his hands and feet with duct tape before the men stole his money, keys and camcorder. One of the friends was in bed with his girlfriend when “a young, black, skinny male walked into the room and threw the bedcover over their heads.” Some of the other intruders came into the room and used duct tape to bind his hands and cover his eyes before throwing him to the floor. One of the men put a gun to the back of his head while another dared him to shoot. The victim testified he heard the gun being cocked. They then stole his cell phone and $400. He testified that while lying on the floor he heard the bed moving and his girlfriend crying. She testified that one of the intruders fondled and licked her breast, penetrated her with his fingers, removed her underwear and dragged her by her ankles to the side of the bed where he penetrated her with a lava lamp. She recalled that one of the men repeatedly struck the lamp to drive it into her, then rolled her onto her stomach and taped her hands behind her back before the men left. Following the assault, the victims escaped to another apartment and called police. A sergeant with the Statesboro Police Department testified he found the victims distraught and disheveled with duct tape on various parts of their body. One was bleeding profusely from his nose and mouth.

            Following Wilkerson’s trial and unsuccessful appeal, in 2010 he filed a petition for a “writ of habeas corpus” in Ware County, where he was in prison. Habeas corpus is a civil proceeding that allows already convicted prisoners to challenge their case on constitutional grounds. They generally file the action against the prison warden, who in this case was Joshua Darrell Hart. Wilkerson raised two grounds in his petition: (1) “all convictions and life sentences for kidnapping with bodily injury fail to prove the essential element of asportation” and (2) his attorney provided “ineffective assistance of counsel” because he did not know that the law allowed him two hours to make his closing argument. In 2012, the habeas court denied Wilkerson relief, and Wilkerson appealed to the state Supreme Court.

            In today’s decision, the high court has upheld the habeas court’s ruling denying Wilkerson relief on the basis that he received ineffective legal assistance, but it has reversed the ruling denying him relief related to his asportation argument. Under Garza, this Court ruled that the movement necessary to establish asportation must be more than “merely incidental” to other criminal activity, and it created four factors that a court must consider before concluding that more than slight movement occurred. The factors a court must consider are: how long the movement lasted; whether it occurred during the commission of a separate crime; whether it was an inherent part of that separate offense; and whether the movement itself presented a significant danger to the victim. (Garza is only applicable to cases within a limited period of time because the legislature passed a statute that overruled the decision for offenses occurring after July 1, 2009.)

“In the present case, however, the record does not support the conclusion that enough of the Garza factors were met to warrant a finding of asportation,” the opinion says. “In this case, the movement of the victims, which was mainly to subdue them with duct tape, was inherent in the manner in which the crimes were committed in this situation and did not expose any of the victims to danger independent of the crimes already in progress. In the case of each victim, the movement was merely incidental to the other crimes being committed, and, in fact, was an inherent part of the other crime.”

Also in today’s decision, the high court states that because the Garza decision announced a “new substantive rule of law,” it applies retroactively to Wilkerson’s case, which occurred seven years earlier. “[T]he substantive change to the interpretation of the asportation requirement set forth in Garza is cognizable in habeas corpus proceedings,” the opinion says.

Attorney for Appellant (Wilkerson): Brian Steel

Attorneys for Appellee (Warden): Samuel Olens, Attorney General, Beth Burton, Dep. A.G., Paula Smith, Sr. Asst. A.G., Ryan Kolb, Asst. A.G.



            The Supreme Court of Georgia has unanimously reversed the decision by a lower court, which found that the statute used to convict a man of impersonating a child welfare worker was unconstitutional.

            Lewis Alan Carlton, who was convicted in Cobb County of three counts of impersonation of a public employee, argued that Official Code of Georgia § 16-10-23 was unconstitutionally vague and ambiguous. But in today’s decision, Presiding Justice P. Harris Hines writes that the lower court erred, and its judgment “cannot stand.”

            According to the facts, Carlton made several phone calls to three neighbors of Elizabeth Kraus, the foster mother of Carlton’s three children. Representing himself as an investigator with the Department of Family and Children Services and using aliases, he asked the neighbors’ knowledge about the three children living at the Kraus residence. He was particularly interested in “any abuse or other activities that would be unbecoming to the foster family and would be to the detriment of the children.” One of the neighbors sent one of her children to the Kraus household to get Kraus to come over and listen in on Carlton’s call. Kraus identified the caller as Carlton, called police, and he was subsequently arrested.

            Carlton was indicted on 13 separate counts but in a plea bargain, he eventually pleaded guilty only to the three counts charging him with “impersonation of public employee” in violation of § 16-10-23. In October 2012, he was sentenced to 15 years, with the first five in prison followed by 10 on probation. In February 2013, Carlton filed a petition for a “writ of habeas corpus” – a civil proceeding that allows already convicted prisoners to challenge their conviction on constitutional grounds in the county where they’re incarcerated. They generally file the action against the prison warden, who in this case was Kathleen Kennedy. On June 11, 2013, the habeas court ruled in Carlton’s favor, finding that § 16-10-23 did not provide Carlton with the appropriate notice that he could be criminally charged for impersonating a Department of Family and Children Services “employee,” as the statute was vague and ambiguous regarding the definition of “employee” and whether it was interchangeable with the term, “officer.”

            In today’s opinion, however, “the Warden is correct that the habeas court erred in finding that Official Code of Georgia § 16-10-23 is vague and ambiguous in this regard.” The statute is captioned, “Impersonating a public officer or employee,” and consists of a single sentence that states: “A person who falsely holds himself out as a peace officer or other public officer or employee with intent to mislead another into believing that he is actually such officer commits the offense of impersonating an officer….” “Thus, the statute forthrightly and plainly states that it applies to public employees, as well as peace and other public officers,” the opinion says. “Furthermore, the obvious intent and purpose of the General Assembly in enacting the statute is to protect the people of this State from intimidation and other potential abuses and dangers at the hands of an individual misrepresenting himself or herself as one cloaked with the authority and power which may attend public office or employment. The circumstances of this case, involving the welfare of minor children, well illustrate the potential perils of permitting one to falsely represent employment by a governmental agency to further a personal agenda.”

            “The statute provided Carlton with appropriate notice that his actions would constitute a violation of the law,” the opinion says. “Thus, the habeas court erred in determining that the statute failed to provide Carlton with sufficient notice that he could be criminally responsible for impersonating a [Department of Family and Children Services] employee.”

Attorneys for Appellant (State): Samuel Olens, Attorney General, Beth Burton, Dep. A.G., Paula Smith, Sr. Asst. A.G., Andrew Sims, Asst. A.G.

Attorney for Appellee (Carlton): Rodney Zell



            The Supreme Court of Georgia has ruled that a lawsuit can go forward against an emergency room doctor and a physician assistant.

With today’s unanimous decision, written by Chief Justice Hugh Thompson, the high court has determined that the medical providers’ actions constituted emergency care under Georgia’s emergency medical care statute, which places a higher burden of proof on those asserting health care liability claims against emergency care providers than against non-emergency care providers. However, a question of fact remains as to whether their actions showed “gross negligence,” which means the case must be decided by a jury.

 According to the facts of the case, the night of Dec. 10, 2005, Ryan Dailey, an aircraft mechanic for Delta Air Lines, inadvertently shot paint thinner into his left-middle finger as he was cleaning a paint spraying device. He and his wife, Cindy Dailey, went to the emergency room at Spalding Regional Hospital in Griffin, GA, arriving shortly after midnight. Dailey was examined by Mark Epps, a licensed physician assistant who worked in the emergency department. Based on Dailey’s high-pressure injection injury, Epps concluded he needed an immediate referral to a hand surgeon. Epps told Dailey and his wife that his hospital did not have a hand surgeon on call, that the on-call orthopedic surgeon it did have on call did not like to be disturbed during the night, and it was likely Dailey’s surgery would have to wait until morning. Sometime before 1:00 a.m., Epps reviewed the patient’s condition with Dr. Gihan Abdel-Samed, a board certified emergency physician, who agreed Dailey needed an immediate referral to a hand surgeon.

            At about 1:00 a.m., before she examined Dailey, Abdel-Samed contacted Dr. John G. Seiler, a hand surgeon at Piedmont Hospital in Atlanta, about transferring another patient she was already treating who had cut his hand with a power saw. Seiler agreed to the transfer. While she was talking to Seiler about that patient, Abdel-Samed learned Dailey might also need the services of a hand surgeon, so she mentioned to Seiler she might need to transfer Dailey if the hospital could not find a closer facility. Seiler responded he would take and treat Dailey. At about 1:30 a.m., Abdel-Samed examined Dailey, confirmed that his injury represented a surgical emergency, and informed the Daileys she would attempt to transfer him to another hospital that had an available hand surgeon. Nevertheless, according to the Daileys, Abdel-Samed told them surgery would have to until the morning when the on-call orthopedic surgeon arrived. She encouraged Dailey’s wife to go home and wait, moved Dailey into a small storage room, and turned off the lights.

            Abdel-Samed testified that she then instructed the emergency room’s unit secretary to find a hospital with an available hand surgeon that would accept Dailey. The unit secretary was unable to remember which hospitals, if any, were called, but she testified that her normal practice was to call the Atlanta Medical Center in Macon and the Medical Center of Central Georgia. Abdel-Samed testified that based on hospital protocol, she believed both hospitals had been called but neither had a hand surgeon available. There is evidence, however, showing that the second hospital was never called and it had a hand surgeon who was available.

            Hours later, Abdel-Samed again spoke with Seiler at Piedmont who agreed to accept Dailey “right away,” and at 7:33 a.m. – 7.5 hours after Dailey arrived at the Spalding Regional Medical Center – Dailey was officially accepted for transfer to Piedmont Hospital. An ambulance arrived at Spalding hospital about an hour later and delivered Dailey to Piedmont Hospital at approximately 9:45 a.m. Seiler subsequently performed surgery on Dailey, amputating the tip of his finger.

The Daileys sued Abdel-Samed, Epps and ACS Primary Care Physicians Southeast, P.C. in Spalding County Superior Court, alleging they were grossly negligent by not transferring Dailey to another hospital in a timely manner. In response, the defendants filed a motion for “summary judgment,” which a trial judge grants if the judge determines a jury trial is unnecessary because the facts are undisputed and the law falls squarely on the side of one of the parties. Abdel-Samed and the others argued that under Official Code of Georgia § 51-1-29.5, the Daileys could not prove they had been grossly negligent. The statute says: “In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department…, no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence.” Gross negligence, according to court decisions, has been defined as the absence of even “slight diligence.”  The trial judge granted summary judgment, concluding that the statute applied and that Abdel-Samed and Epps exercised more than “slight diligence” in caring for Dailey. Dailey and his wife then appealed to the Court of Appeals which reversed the decision, finding the case should be decided by a jury because there was a question of fact as to whether the health care providers’ delay in transferring Dailey could be considered “emergency medical care” under the statute. Abdel-Samed and the others then appealed to the state Supreme Court, which agreed to review the case to determine whether the Court of Appeals erred by reversing the grant of summary judgment that had been in favor of the medical providers.

In today’s decision, the high court has upheld the Court of Appeals’ decision that the medical providers were not entitled to summary judgment. But the Court of Appeals erred in reaching its decision based on the conclusion that § 51-1-29.5 did not apply because the actions of Abdel-Samed and Epps did not constitute emergency care. Emergency medical care is defined in the statute as “bona fide emergency services provided after the onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. The term does not include medical care or treatment that occurs after the patient is stabilized….”

“Because the evidence on summary judgment establishes without dispute that Dr. Abdel-Samed’s and Epps’ actions were taken after the onset of a medical or traumatic condition causing severe pain such that the absence of medical attention could reasonably be expected to result in placing Ryan’s health in serious jeopardy or in serious dysfunction to his hand, we find the Court of Appeals erred by finding a question of fact as to the applicability of § 51-1-29.5,” the opinion says.

Nevertheless, the medical providers are not entitled to summary judgment because there is a question of whether their actions showed gross negligence, which is defined as the absence of even slight diligence or “that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances.”

Here, the Daileys allege that Abdel-Samed placed Dailey in a storage room with the intention of waiting until the next morning for surgery, and she waited 5.5 hours to contact Seiler after learning that no other hand surgeon was available. “Even applying the heightened evidentiary burden imposed by § 51-1-29.5 (c), from this evidence a jury could find clear and convincing evidence that defendants acted with gross negligence in their efforts to transfer [Dailey] to a hand surgeon,” the opinion says.

“In summary, although we find no question of fact pertaining to the applicability of § 51-1-29.5 to the Daileys’ claims, the Daileys have shown facts sufficient to raise a jury question as to gross negligence on the part of the defendants,” today’s opinion concludes. “Accordingly, the evidence presented was sufficient to preclude the grant of summary judgment in favor of the defendants on this ground, and the decision of the Court of Appeals is affirmed.”

Attorneys for Appellants (Abdel-Samed): Thomas Carlock, Eric Frisch

Attorneys for Appellees (Daileys): W. Carl Reynolds, Bradley Survant




            In a case filed by a high-profile convicted murderer, the Georgia Supreme Court has underscored the right of prison inmates to have access to prison libraries and to legal help.

            In September 2012, Waseem Daker was convicted by a Cobb County jury of stabbing and strangling to death Karmen Smith, a Delta flight attendant, and stabbing her 5-year-old son multiple times. Nickolas Smith survived and testified at the age of 22 at Daker’s trial. Daker was sentenced to life plus 47 ½ years in prison and is currently incarcerated in the “Special Management Unit” of the Georgia Diagnostic and Classification Prison in Butts County. Since his conviction, Daker has filed a motion requesting a new trial and has said he intends to take additional legal action, which includes appealing his conviction to the state Supreme Court. Daker complained several times to prison officials that he has no access to a law library or legal materials. On Jan. 10, 2013, Daker tried to file a petition for a “writ of mandamus” in Butts County Superior Court to force the warden to provide him access to a law library. He also filed a motion to proceed as indigent. However, the trial judge concluded Daker’s mandamus petition was frivolous and ordered the court clerk not to allow its filing. The judge also denied Daker’s motion to proceed “in forma pauperis,” (Latin for “in the form of a pauper”) so that he would be exempt from having to pay any filing fees for his legal actions. Daker then filed an application asking the state Supreme Court to review his case, which the high court granted to determine whether the trial court erred in not allowing Daker to file his mandamus petition.

            In today’s decision, the high court has ruled that the trial court erred.

“Prisoners have a constitutional right of access to the courts,” Justice Robert Benham writes for the Court. Under the U.S. Supreme Court’s 1977 decision in Bounds v. Smith, this right of access “requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” “Meaningful access to the courts includes the right to contest the legality of a conviction.”

            In this case, Daker has several matters pending in the courts and contends he has no access to a law library. “When an inmate claims that he was denied all access to a jail law library or jail legal resources during the course of litigation…, the claim is a serious one and should be carefully considered by the trial court,” the opinion says, quoting the Georgia Court of Appeals 2006 decision in Portee v. State.

            “Accordingly, the trial court’s decision to deny filing of appellant’s mandamus petition is reversed and the matter is remanded to the trial court for it to allow filing of the mandamus petition and for it to revisit appellant’s attached pauper’s affidavit.”

Attorney for Appellant (Daker): Waseem Daker, pro se

Attorneys for Appellee (State): Samuel Olens, Attorney General, Paula Smith, Sr. Asst. A.G., Angelique McClendon, Asst. A.G.



            The Supreme Court of Georgia has ruled against Ford Motor Company and upheld a lower court’s decision, granting a woman who sued the company a new trial after a jury returned a verdict in favor of Ford.

In today’s opinion, written by Justice David Nahmias, the high court agrees with the lower court that Ford “intentionally misled” the woman about its insurance coverage and, as a result, met the high standards required to grant an “extraordinary motion for new trial.”

The facts show that Renee Conley filed a product liability lawsuit in Cobb County State Court against Ford following a single-car rollover accident in which her child, Jordan, was severely injured and her mother, a passenger, was killed. As part of the discovery process, in which the parties are required to share documents and information with each other so they can prepare their case, Conley’s attorneys made two requests of Ford:

* They asked Ford to state whether or not it carried casualty or liability insurance to insure against the “Subject Incident,” and if so, to name the insurers and amounts of coverage.

* They asked for “[a]ll insurance agreements or policies under which any person or entity carrying on an insurance business may be liable to satisfy part or all of a judgment which may be rendered in this action….” 

            To each request, Ford gave the same response: “Subject to and without waiving its objections, Ford states it has sufficient resources to cover any judgment which could be reasonably rendered in this case, if any. Ford objects to this Interrogatory as it is overly broad and seeks information that is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. To the extent this Interrogatory asks for more information, Ford objects as it seeks the discovery of confidential or proprietary information or documents.”

            After receiving Ford’s response, Conley’s attorneys wrote a letter in March 2008 asking Ford to “answer the questions posed instead of providing self-serving answers that do not respond to the question posed.” Ford responded by asking Conley to provide the “specific grounds for your complaints” as to each of the challenged discovery responses.

            In a 2009 jury trial, prospective jurors were not asked any questions about their possible connection to Ford’s insurers during jury selection. Following a two-week trial, the jury returned a verdict in favor of Ford. It was later found that since 1999, Ford had maintained insurance to cover product liability claims like the Conleys’ but, “as a general corporate practice, in all jurisdictions, does not disclose any insurance when responding to discovery.” In 2011, after learning about a similar case involving Ford and questions involving its insurance coverage, Conley filed an “extraordinary motion,” requesting a new trial on the ground that jurors should have been qualified only after being questioned about any possible connection they might have to Ford’s insurers. The trial court granted the motion for new trial, ruling that Ford “intentionally misled” Conley about the existence of insurance and that Conley had not waived her right to qualify the jury as to Ford’s insurers by failing to raise the issue during jury selection because she “had no reason to know, or even suspect, that insurance coverage existed at the time of trial.” The trial judge also ruled that “under Georgia law, the harm is presumed when there is a failure to qualify a jury as to a Defendant’s insurance carriers.” Ford then appealed to the Georgia Court of Appeals, which split evenly between its judges with five ruling in favor of Ford, and five ruling in favor of Conley (two of the 12 appellate judges recused themselves.) This is the third in a series of cases that has reached the Court of Appeals involving Ford’s responses to questions regarding its insurance coverage. In the first, the trial court granted a mistrial, and in the second, a different trial court granted a new trial. Due to the Court of Appeals’ split decision, the appeal in this case was transferred to the Georgia Supreme Court as required by the state Constitution.

            “The core issues in this case are the alleged discovery violation involving Ford’s responses to requests about its insurance coverage and the effect of that alleged violation on the qualification of the jury that decided the Conleys’ case at trial,” says today’s 59-page decision. Before granting an extraordinary motion for new trial, a trial court must find that the alleged error being asserted “(1) could not have been discovered and raised in a timely manner if the party had acted with due diligence and (2) materially harmed the party.” In this case, the Conleys neither “knew of the ground for qualifying the jury that they now raise, [n]or could have discovered that ground by the timely exercise of ordinary diligence, before the jury was empaneled,” today’s opinion says. In addition, under the Georgia Supreme Court’s 1934 decision in Atlanta Coach Co. v. Cobb, “[i]t is the longstanding rule in Georgia that, to ensure the right of trial by an impartial jury, a party to a civil case is entitled to have the jury qualified by the court as to any insurance carrier with a financial interest in the case,” the opinion says. “It is an equally longstanding Georgia rule that where a civil jury was not properly qualified in this way…prejudice to that party will be presumed, and in the absence of proper rebuttal, a new trial must be ordered.”

“Because the Conleys acted with due diligence to raise their claim that the jury should have been qualified as to Ford’s insurers, because the jury should have been so qualified, and because the failure to do so raises an unrebutted presumption that the Conleys were materially harmed, the trial court did not abuse its discretion in granting the Conleys’ extraordinary motion for new trial on this ground.”

            The high court ends its decision with an admonishment. “If this case is to teach any lesson, it is that the civil discovery process is supposed to work to allow the parties to obtain the information they need to prove and defend their cases at trial before impartial juries. Discovery is not supposed to be a game in which the parties maneuver to hide the truth about relevant facts, and when a party does intentionally mislead its adversary, it bears the risk that the truth will later be revealed and that the judgment it obtained will be re-opened to allow a new trial based on the truth.”

            In a concurrence, Justice Harold Melton writes that although he agrees with the outcome of this opinion, he wants to emphasize that the presumption of harm raised by the failure to qualify a jury with regard to insurance is one that could be refuted. “For example under circumstances in which a trial is conducted from start to finish with no mention of any insurance carrier, harm would appear to be highly unlikely, given the fact that the jurors could not be adversely affected by information never disclosed to them,” the concurrence says. “Under such circumstances, the presumptive harm associated with the lack of qualification might be properly rebutted.”         

Attorneys for Appellant (Ford): Michael Bowers, Michael Boorman, Audrey Berland, C. Allen Garrett, Jr., Christopher Anulewicz, Adam Charnes

Attorneys for Appellee (Conley): Robin Frazer Clark, Benjamin Baker, Jr., Dana Taunton, Andrew Jones


+1 #1 SadSak 2014-02-24 23:21
Re: Warren vs State

Disturbingly sad when the highest court in the state unanimously lets obsolete words of law overrule common decency.

The door in Georgia is now open to all to send whatever, whenever to whoever, via electronic means till the law gets updated to the current world.
pinto colvig
-1 #2 pinto colvig 2014-02-25 17:23
Warren v. the state - kudos to the state Supreme Court for not caving to the right-wing interests and their police-state enablers who constantly want to limit free speech, which is a God given right no matter what the GOP tries to say. the correct charge in this case would have been "harassing communications" which prohibits annoying people but not free speech...
-3 #3 angelmary406@gmail.c 2014-03-31 09:50
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