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Ga. Supreme Court rules on case of teachers reporting sexual relations involving former students

In other action: Ga. high court concludes that psychiatrist is not required to hand over  records to parents of young man who killed himself.



Published Monday, June 30, 2014

 Please note: Opinion summaries are prepared by the Public Information Office for the general public and news media. Summaries are not prepared for every opinion released by the Court, but only for those cases considered of great public interest. 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 ruled in favor of a Cherokee County high school teacher charged with failing to report that the school wrestling coach was having sex with a former 16-year-old student.

In today’s opinion, written by Justice Keith Blackwell, the high court has reversed the lower court’s refusal to drop criminal charges against the teacher and ruled that under Georgia statutory law, a teacher’s obligation to report child abuse – as well as the obligation of other mandatory reporters – is limited to children to whom they “attend.”

            According to the facts, 16-year-old P. M. had been a student at River Ridge High School in Cherokee County where Kristin Lynn May was at one time her teacher. Robert Leslie Morrow was a paraprofessional and wrestling coach at River Ridge. At the end of the fall 2010 semester, P. M. transferred to Roswell High School in adjacent Fulton County. During the Christmas break, she and Morrow began a sexual relationship. In January 2011, after starting at her new school, P.M. attended a basketball game at River Ridge. While there, she told May about her previous sexual relationship with Morrow.

According to briefs filed in the case, May was having an affair with Morrow at the time. May did not report the alleged abuse to her supervisor. In July 2011, P.M. made a report to the Woodstock Police Department about the sexual conduct with Morrow. Both May and Morrow were subsequently arrested and May was charged with failure to report sexual abuse. May filed an action in court, challenging the indictment, in part based upon her claim that she was not a mandatory reporter because she had no student-teacher relationship with P.M. at the time the girl told her what was going on. May also argued that because the statute did not require such a relationship, it was vague and arbitrary and violated her constitutional rights to due process and equal protection. The trial court ruled against her, finding that the State could make a criminal case against her by showing that May was employed as a teacher, suspected abuse, and failed to report it. The trial court concluded that a school teacher must report the abuse of any child, even one with whom the teacher has no relationship. May then asked the Georgia Court of Appeals for permission to appeal, which it denied. The state Supreme Court, however, agreed to review her case to determine whether under the state’s mandatory reporting statute (Official Code of Georgia § 19-7-5), the obligation to report abuse extends to all children or is limited to children to whom the reporter has a duty to attend.


            In today’s unanimous opinion, “we conclude that the obligation is limited, and school teachers and other reporters only have an obligation to report the abuse of children to whom they attend in connection with the profession, occupation, employment, or volunteer work by which they are identified [under the statute] as a mandatory reporter.”

            The statute says that mandatory reporters “having reasonable cause to believe that a child has been accused shall report or cause reports of that abuse to be made as provided in this Code section.”

            “If we stopped there, it would be easy enough to conclude – just as the trial court in this case did – that the obligation of a mandatory reporter extends to any child of whom the reporter learns of abuse.” However, other provisions of the statute direct how the report must be made. In general, a reporter must report suspected abuse to a child welfare agency or, in its absence, to police or the district attorney. There is a different reporting procedure, however, for reporters in an institutional facility. The statute says: “If a person is required to report child abuse pursuant to this subsection because that person attends to a child pursuant to such person’s duties as an employee or volunteer at a hospital, school, social agency or similar facility, that person shall notify the person in charge of the facility…and the person so notified shall report….”

            This provision “speaks of an employee or volunteer of an institutional facility having an obligation to make a report about the abuse of a child because she attends to that child at the facility,” today’s opinion says. Therefore, “the obligation necessarily must be limited to children to whom a mandatory reporter attends.”

            Considering the facts of May’s case, the Court finds: “By the time May learned of the sexual abuse, P.M. no longer was her student, no longer was enrolled in the school at which May taught, and no longer was enrolled at any school in the same school system. In these circumstances, we cannot conceive any set of facts by which the State might prove that May – when she learned of the sexual abuse – was attending to P.M. pursuant to her duties as a school teacher at River Ridge. Accordingly, May had no legal obligation to report the sexual abuse, and the trial court erred when it sustained the accusation.”

            The Court points out that its interpretation of the statute “fits comfortably with settled principles of the common law.” “The General Assembly properly can, of course, enact legislation that departs from the common law, but to the extent that statutory text can be as reasonably understood to conform to the common law as to depart from it, the courts usually presume that the legislature meant to adhere to the common law.”

Attorneys for Appellant (May): J. Wickliffe Cauthorn, Bettina Davies, T.E. Cauthorn

Attorney for Appellee (State): Barry Hixson, Chief Assistant Solicitor General




            In a 5-to-2 decision, the Supreme Court of Georgia has ruled in favor of a psychiatrist of a young man who killed himself.

With today’s majority decision, the high court has reversed a Cobb County court ruling and concluded that under Georgia law, the psychiatrist is not required to hand over all his treatment records to the young man’s parents. The parents had sought the records to determine whether they should sue the psychiatrist for malpractice and wrongful death.

“Having reviewed the record and applicable law, we conclude that the trial court erred to the extent it exercised its equitable powers to order the production of information protected from disclosure by Georgia law,” Chief Justice Hugh Thompson writes for the majority.

According to the facts, 22-year-old Christopher Michael Landry had been under the care of Crit Reon Cooksey, M.D., a practicing psychiatrist, for eight years. Christopher had signed a consent form allowing his parents, Michael and Lisa Landry, to attend his sessions with Cooksey, which they did whenever their son did not drive himself. In August 2012, Cooksey prescribed for Christopher the psychotropic drugs, Seroquel and Cymbalta, which contain a warning by the U.S. Food and Drug Administration of possible side effects that include worsening depression and suicidal thoughts, particularly among young people. On Sept. 30, 2012, Christopher committed suicide. The Landry’s, who said they were never informed of the drugs’ potential side effects, hired an attorney experienced in investigating psychiatric malpractice cases involving suicide. In February and August, 2013, the attorney sent letters to Cooksey requesting his records. The attorney included an authorization signed by Christopher’s parents allowing Cooksey to disclose to them protected health information, as well as a copy of the court order appointing Christopher’s father as Administrator of his son’s estate. Cooksey refused to produce the records, stating he was prohibited to disclose them under Georgia law.

            In October 2013, the Landry’s sued Cooksey, seeking a permanent injunction that directed Cooksey to release to them all of Christopher’s records. Cooksey opposed the complaint, arguing that disclosure of Christopher’s mental health records was prohibited because Georgia law provides that such records are privileged and may not be disclosed to the representative of a deceased patient’s estate. Following a hearing, in January 2014, the trial judge – without reviewing Cooksey’s files – ruled against Cooksey, requiring him to turn over “all records pertaining to the medical treatment and history of Christopher Michael Landry” within 20 business days. The trial court ruled that denying the Landry’s access to Cooksey’s records would “insulate Defendant and all mental health professionals from the possibility of any litigation concerning wrongful death actions.” Cooksey then appealed to the state Supreme Court.

            “While we agree with appellees [the Landry’s] that a civil action arising out of Christopher’s suicide may be authorized under Georgia law, and agree with the trial court that application of the protections afforded psychiatrist-patient communications by [Official Code of Georgia] § 24-5-5-1 (a) may pose a hardship to appellees in the investigation of potential claims against Dr. Cooksey, neither of these factors authorized the trial court to require the production of privileged communications contrary to § 24-5-5-1 (a),” today’s majority opinion says. “As a matter of public policy, Georgia law ‘has long provided for the confidentiality of communications between a [psychiatrist] and patient.’ The primary purpose of the privilege ‘is to encourage the patient to talk freely without fear of disclosure and embarrassment, thus enabling the psychiatrist to render effective treatment of the patient’s emotional or mental disorders.” That privilege “remains inviolate even though the patient’s care and treatment or the nature or extent of the patient’s injuries are put in issue in a civil proceeding.”

            Of primary importance in this case, the majority opinion says, “is the fact that unlike other recognized privileges, the psychiatrist-patient privilege survives the death of the patient. Consistent with the protections afforded psychiatrist-patient communications even after a patient’s death, our legislature has determined that a deceased patient’s representative cannot waive the psychiatrist-patient privilege.”

            “Because under Georgia law confidential communications between a psychiatrist and patient may not be disclosed absent waiver by the patient, and a trial court may not utilize its equitable powers to afford relief contrary to the law, we conclude the trial court erred to the extent its order granting injunctive relief requires the disclosure of privileged information.”

            While the high court has reversed that portion of the trial court’s order, it has affirmed the trial court’s order “to the extent it requires disclosure of any non-privileged records or information.”

            The high court is sending the case back to the trial court to review Cooksey’s files and determine whether they contain any non-privileged information or a waiver from Christopher of the privileged information. If they do, the trial court is directed to require disclosure of the non-privileged records and the information for which the privilege has been waived.

            “We conclude by emphasizing that it is no small matter for a court, given its focus on the pursuit of truth and justice, to hold that potentially relevant evidence is shielded from disclosure,” the majority opinion says. “Our legislature, however, has determined that the public policies supporting the creation of a mental health privilege necessitated enactment of a nearly absolute privilege, one without exception if the patient is deceased or the nature of the patient’s mental condition is put at issue.”

            In the dissent, Justice Robert Benham writes that he rejects “the majority’s conclusion that to permit disclosure of such communications to an estate representative under the specific circumstances of this case would eviscerate the effectiveness of the privilege. Instead, it would permit the estate representative to pursue the patient’s interest in obtaining effective and appropriate treatment. Otherwise, because of the patient’s death, there may be no effective recourse for the failure to provide such treatment.”

            The dissent acknowledges that there is no Georgia law authorizing the waiver of the psychiatrist-patient privilege by a deceased patient’s representative. However, “I am of the opinion that this Court should hold as a matter of public policy that, at least in the factual scenario presented in this case, the representative of the deceased patient should have the authority to act on behalf of the deceased to waive the psychiatrist-patient privilege where that representative is asserting a claim on behalf of the survivors or the patient’s estate against the very health care professional who is asserting the privilege as a shield to such a claim,” says the dissent, which is joined by Justice Carol Hunstein. The purpose of the privilege is “to protect the patient, along with the public interest in promoting mental health care, not the doctor.”

            “Just as our courts have been willing to recognize limited exceptions to the attorney-client privilege, we should also be willing to forego a rigid application of the psychiatrist-patient privilege in limited circumstances, where the application of that privilege operates only as an impediment to the pursuit of justice on behalf of the very individual it was intended to protect,” the dissent says.

Attorney for Appellant (Cooksey): R. Page Powell, Jr.

Attorney for Appellees (Landrys): Philip Henry



            The Supreme Court of Georgia has upheld a Paulding County court’s validation of a $3.6 million bond to fund the expansion of a taxiway at the Paulding County Airport.

The purpose of the expansion is to accommodate commercial passenger jets, and residents who opposed a second commercial airport in the metro Atlanta area had appealed the ruling on several grounds, including their contention that the contract between Paulding County and the Airport Authority was an unenforceable intergovernmental agreement.

But in today’s unanimous opinion: “We disagree,” Justice Harold Melton writes for the Court.

According to the facts, in September 2013, the Paulding County Airport Authority authorized a bond resolution to fund the expansion of the airport’s taxiway, which runs parallel to the landing strip and is used by planes to taxi to and from the terminal. Paulding County and the Airport Authority, which together own the property, planned to enter into an intergovernmental agreement to allow the joint use of the property to expand the taxiway. Under the agreement, the Authority agreed to provide and operate the airport facilities and services related to the taxiway, and the County agreed to pay the principal and interest payments on the bond. The payments were intended to serve as the bond’s security. If additional funds were to become necessary to fund the County’s payment obligations under the agreement, the County agreed to use its taxing power to raise the funds.

            On Oct. 9, 2013, the State of Georgia filed a petition for validation of the Series 2013 Bond and the judge ordered a hearing. The required notice of the public hearing mistakenly identified as security for the bond a contract between the County and the “Industrial Building Authority,” rather than the Airport Authority. While the bond’s validation was pending, the Authority entered into an additional agreement on Oct. 22 with Silver Comet, LLC, a private company involved in the proposed overall transformation of the airport into a regional hub for commercial flights. The parties disputed, however, Silver Comet’s involvement in the taxiway expansion project.

            On Oct. 28, 2013, Anthony Avery and Susan Wilkins, residents of Paulding County, filed a motion to intervene in the case and raised five objections as to why the bond should not be validated. Some residents complained that the advent of commercial air traffic in Paulding County would destroy their tranquil rural setting. The trial court allowed the residents to intervene as parties. Following a hearing, the trial court ruled against the residents and validated the Series 2013 Bond, finding in response to their objections that 1) the bond and its security – the County’s agreement to service the debt of the bond – satisfied the Intergovernmental Contracts Clause of the Georgia Constitution and the Revenue Bond Law; 2) the bond did not violate the Gratuities Clause or the Lending Clause of the Constitution; 3) notice of the validation hearing had been provided as legally required; and 4) approval of the bond resolution had been discussed and made in public meetings as required by state law. Avery and Wilkins then appealed to the state Supreme Court.

            Today’s opinion quotes the Georgia Constitution, which states: “The state, or any institution, department, or other agency thereof, and any county, municipality, school district, or other political subdivision of the state may contract for any period not exceeding 50 years with each other or with any other public agency, public corporation, or public authority for joint services, for the provision of services, or for the joint or separate use of facilities or equipment….”

            The opinion states that the “prerequisites for such an intergovernmental contract are satisfied in this case.” The agreement is between appropriate governmental entities, its term does not exceed 50 years, and it relates to the provision of services and the joint use of facilities. The Airport Authority agrees to manage the expanded taxiway, and in turn, Paulding County agrees to provide funding and manage the debt. “In addition, the expansion itself allows Paulding County to reap the benefit of commercial flight service,” the opinion says, which includes “a safer airport and economic benefits along with new jobs.”

            While the plaintiffs argue the bond issuance provides an improper benefit to Silver Comet in violation of both the Lending Clause and the Gratuities Clause of the Georgia Constitution, “[t]here is no violation of either clause,” the opinion states. “Contrary to Avery’s characterization of the facts of this case, Paulding County and the Airport Authority have not extended a gratuity to Silver Comet.”

            The high court disputes Avery’s contention that the trial court erred in determining sufficient notice was given for the bond validation hearing, “as the record supports a finding of substantial compliance.” And it disputes Avery’s contention that the Airport Authority violated the Georgia Open Meetings Act by entering into an executive session on Sept. 18, 2013 to discuss the bond. “The bond was not discussed during the executive session,” the opinion notes in a footnote.

Attorneys for Appellants (Avery): Charles McKnight, Jr., Gary Toman

Attorneys for Appellees (County): W. Thomas Cable, J. Jayson Phillips, James Woodward, Norman Fletcher, Lee Carter




            The Supreme Court of Georgia has ruled in favor of Kennestone Hospital in its quest to build a new outpatient surgical center in East Cobb County, which is opposed by Northside Hospital.

Under today’s unanimous decision, written by Justice Harold Melton, the high court has reversed a decision by the Georgia Court of Appeals denying Kennestone Hospital, Inc. the Certificate of Need it must have to build the center, and the plan now may go forward.

Kennestone Hospital, Inc., a subsidiary of WellStar Health System, Inc., operates two acute care hospitals in Cobb County: WellStar Kennestone Hospital, a 633-bed hospital, and WellStar Windy Hill Hospital, a 115-bed long-term care hospital. Both are located in Marietta. Northside Hospital, Inc. operates two acute care hospitals located in Atlanta and Alpharetta. In 2010, Kennestone submitted an application for a Certificate of Need to the Georgia Department of Community Health to develop an ambulatory surgery center in Marietta, called the East Cobb Surgery Center. The Department of Community Health is the lead health planning agency for the state. Under Georgia law, anyone proposing to develop a new health care facility must obtain a Certificate of Need. The purpose is to ensure that health care services are “provided in a manner that avoids unnecessary duplication of services, that is cost effective, and that is compatible with the health care needs of the various areas and populations of the state.” Kennestone proposed locating its surgical center about seven miles from WellStar Kennestone and about eight miles from WellStar Windy Hill Hospital. It its application, it said the surgical center would be hospital-based, operate as a department of Windy Hill Hospital, and result in the transfer of three operating rooms from Windy Hill Hospital to the new location. Kennestone identified the center’s primary service area as East Cobb County with a secondary service area that included the rest of Cobb County plus Cherokee, Bartow, and Paulding counties. Northside Hospital, which is located about eight miles from the proposed surgical center and whose primary service area would overlap with the new surgical center, opposed granting the Certificate of Need to Kennestone.

            At issue in this case is the Department’s administrative Rule 111-2-2-.40 (1) (a), which states: “If the ambulatory surgery service is or will be provided as ‘part of a hospital,’ the hospital’s provision of such service is not subject to Certificate of Need review under this rule. For purposes of this rule, the following are always considered to be ‘part of a hospital:’ a) if the service is located within a hospital; or b) if the service is located in a building on the hospital’s primary campus and that building, or relevant portion thereof, is included within the hospital’s permit issued by the State’s licensing agency, subject to determination by the Department.” Specifically, it is the next and last sentence in the administrative rule that is at the center of this dispute. It says: “The Department also will make a determination of reviewability on a case-by-case basis in other situations involving hospitals.”

            In September 2010, the Department gave initial approval to Kennestone’s application for a Certificate of Need to develop the ambulatory surgery center in Cobb County. Under the Rule’s provision for a “case-by-case determination,” the Department determined the center would be “part of a hospital” and therefore subject to less stringent criteria and a less stringent review by the Department than if it were a free-standing center. Northside sought administrative review of the Department’s initial decision, but an appeal panel and the Department’s Commissioner upheld it. Northside then filed a petition for judicial review in the Fulton County Superior Court. That court reversed the decision, finding that the “case-by-case” language in the rule was “unconstitutionally vague.” On appeal, the Court of Appeals upheld the lower court’s decision, finding that “the lack of ascertainable standards to guide the Department’s ‘case-by-case’ review under Rule 111-2-2-.40 (1) (a) gives the agency unfettered discretion and fails to provide fair notice to prospective applicants.” The Department of Community Health and Kennestone then appealed to the state Supreme Court, which agreed to review the case to determine whether the Court of Appeals was wrong in concluding that the Rule was unconstitutionally vague.

            In today’s opinion, the high court finds that “contrary to Northside’s contentions, the Rule is not unconstitutionally vague on its face, and the Court of Appeals was incorrect to conclude otherwise.”

            Northside argued that the last sentence of the Rule was unconstitutionally vague because it did not provide fair notice or sufficient guidance to determine when an ambulatory surgery service will be considered “part of a hospital.”

“We disagree,” the opinion says.

            “The gist of the Rule is to afford a less stringent review for ambulatory surgery service proposals that are ‘part of a hospital.’” Subparts (a) and (b) of the Rule provide the specific circumstances when ambulatory surgery service will always be considered part of a hospital, and that is when the service is within the hospital building or located on the hospital grounds. But the Rule acknowledges that subparts (a) and (b) do not identify the full range of possibilities for what it means to be “part of a hospital,” allowing all other circumstances to be reviewed on a “case-by-case” basis. “For example, although an ambulatory surgery service might not be ‘located within’ a particular hospital or be ‘located in a building on the hospital’s primary campus,’ it could still be sufficiently close to that hospital or connected to that hospital in order for the Department of Community Health to reach a reasonable conclusion that the service is still ‘part of’ that hospital,” the opinion says.

“Accordingly, the Rule at issue in this case must be reasonably read to mean that an ambulatory surgery service is ‘part of a hospital’ where (1) it is part of an entity defined as a ‘hospital,’…and (2) the Department of Community Health makes an independent determination that the ambulatory surgery service is part of that ‘hospital’ after considering factors including…the location of the proposed surgery service in relation to the hospital and whether or not the proposed surgery service would be included within the hospital’s permit. We conclude that this straightforward construction of the Rule provides ‘fair notice to those to whom [it] is directed and its provisions…enable them to determine the legislative intent.’” 

Attorneys for Appellant (Department): Samuel Olens, Attorney General, Isaac Byrd, Dep. A.G., Daniel Walsh, Sr. Asst. A.G., Brittany Jones, Asst. A.G., Laronica Lightfoot, Asst. A.G.

Attorneys for Appellant (Kennestone): Armando Basarrate, Ashley Hoffman

Attorneys for Appellee (Northside): George “Buddy” Darden, Kathlynn Polvino, Robert Rozier



            The Supreme Court of Georgia has upheld a man’s murder conviction and sentence to life without parole for the high-profile murder of a mother of four who was engaged to a DeKalb County police sergeant.

According to the facts, Luis Alberto Porras met Jameelah Qureshi’s daughter through an online chat room in 2005 when he was 20 years old and the daughter was only 14. He became obsessed with the girl, and when Qureshi learned Porras and her daughter were having sex, she went to police. In 2008, Porras pleaded guilty to statutory rape and was sentenced to eight years of probation. A condition of his probation prohibited Porras from having any communication with the girl, but he continued to contact her through text messages and emails, once sending her a picture of a tattoo of her name that he had put on his chest. In 2009, after Porras convinced her daughter to go to Stonecrest Mall with him, Qureshi went to the mall and confronted Porras, warning him: “Stay away from my daughter. If you don’t, I’ll kill you.” Soon after, her daughter decided she was tired of lying to her mother and she cut off the relationship with Porras, although he continued to try to see her.

            In August 2009, Porras contacted Amanda Dove, another young woman he had previously met online. According to Dove, who later testified against Porras, on Aug. 15, 2009, Porras picked up Dove in his green Dodge pickup truck and drove her to Lithonia. When they reached the entrance to Qureshi’s neighborhood, Porras pulled out a bag containing black stockings, a pink woman’s shirt and a black shoulder-length wig. After dressing up as a woman, Porras pulled from the bag a gun and a wig for Dove to wear. He then had Dove drive his truck to Qureshi’s home. When they saw Qureshi pull into her driveway, Porras jumped out of the truck, approached Qureshi’s car, and as she started to get out, shot her multiple times. Qureshi received at least 13 gunshot wounds, which killed her. Dove and Porras then returned to a friend’s apartment in Social Circle. A witness saw a green Dodge pickup truck speed away from the scene. The day after the shooting, Porras asked Dove to go with him to the police station to help fabricate an alibi. Based on information Dove later provided to police, investigators searched Porras’s home and found in the tank of a toilet handwritten scripts, which evidently were to be used to place calls to the “Crime Stoppers” hotline and the DeKalb County Police Department. The scripts were to be used by a female caller to claim responsibility for killing Qureshi. They contained information about the killing that had not been released to the public.

            Both Porras and Dove were arrested and indicted for murder and gun charges. In a plea bargain, Dove pleaded guilty to several lesser crimes, including accessory to murder after the fact, and she agreed to testify against Porras in exchange for a lighter sentence.

            In February 2011, following a trial, the jury convicted Porras of murder and gun charges and he was sentenced to life without parole. He then appealed to the Georgia Supreme Court, arguing among other things that the trial court erred when it instructed the jurors on the various ways they could determine whether a witness was not credible, or could be “impeached.”

            The trial judge instructed the jurors that to “impeach a witness is to prove that a witness is unworthy of belief. Now, a witness may be impeached by disproving the facts to which the witness has testified; proof that the witness has been convicted of a crime involving dishonesty or making a false statement; proof of contradictory statements previously made by the witness about matters relevant to the witness’s testimony and to the case.” However, the trial court failed to instruct the jury, despite a request by Porras’s attorney, that a witness may also be impeached by proof that the witness had been convicted of a felony, whether or not it involved a false statement. Two of three “jailhouse informants” called by the prosecution to testify against Porras had past felony convictions that did not involve dishonesty or a false statement.

            In today’s unanimous opinion, Justice Keith Blackwell writes that “it was error for the trial court to fail to charge that a witness may be impeached by proof of a prior felony conviction.” However, “such an error sometimes may be harmless, and it is no basis for reversal if it is highly probable that the error did not contribute to the verdict.”

            Given the circumstances of this case, “we conclude that it is highly probable that the failure of the trial court to charge on impeachment by a prior felony conviction did not contribute to the verdict of the jury,” the opinion says.

Attorney for Appellant (Porras): Steven Phillips

Attorneys for Appellee (State): Robert James, District Attorney, Anna Cross, Dep. Chief D.A., Samuel Olens, Attorney General, Beth Burton, Dep. A.G., Paula Smith, Sr. Asst. A.G., Christian Fuller, Asst. A.G.



            In a 5-to-2 decision, the Supreme Court of Georgia has upheld a Gwinnett County judge’s refusal to suppress evidence of marijuana found in a woman’s car during a traffic stop when her case goes to trial.

The woman had appealed to the Georgia Court of Appeals, which upheld the trial court’s ruling. But in today’s majority opinion, the state Supreme Court has thrown out the decision by the Court of Appeals and ruled that the lower appellate court never should have issued a judgment in the matter. That court was evenly split, with six judges voting to uphold the trial court’s decision, and six judges dissenting. And under the state Constitution, when the Court of Appeals is evenly divided, jurisdiction is automatically transferred to the state’s highest court.

            “We now conclude that the Court of Appeals never should have rendered any decision in this case and instead should have transferred the appeal to this Court,” Justice Keith Blackwell writes for the majority in today’s opinion. “About the merits of the appeal, we see no error in the denial of the motion to suppress. Accordingly, we vacate the decision of the Court of Appeals, we affirm the judgment of the trial court, and we remand for the Court of Appeals to transmit a remittitur to the trial court consistent with this opinion.” (A “remittitur” in this context means  judgment.)

According to the facts, on Aug. 18, 2010, Officer Kyle Cornett of the Norcross Police Department was using an automatic license plate recognition (LPR) system while patrolling the area of Mitchell Road in Norcross, GA. The LPR system uses cameras mounted on an officer’s police car to record images of each license plate that passes within 15 feet. The images are transmitted to a computer that automatically compares them to a Georgia Bureau of Investigation database of outstanding arrest warrants. When a white Chevrolet Impala passed his vehicle, Cornett received an active warrant alert that an Enrique Sanchez, born in 1987, was wanted on an outstanding arrest warrant for failure to appear in court on traffic citations he’d been issued while driving the Impala. Cornett initiated a traffic stop while he radioed for backup, and the Impala pulled into a Shell gas station. The officer ran a computer check on the license plate, which showed that the vehicle was registered to Sonia Rodriguez. He approached the car and observed two women, the driver and a front-seat passenger. He asked both women for identification and the driver presented her driver’s license, which was in the name of Sonia Rodriguez. The passenger had no identification but gave him the name of Ereka Williams and her date of birth. Cornett explained he had made the stop based on information that Enrique Sanchez had failed to appear in court, and Rodriguez told him Sanchez was her son and in prison. The officer noticed that Rodriguez did not look at him as they spoke, and he asked whether there were any weapons or contraband in the car. Both women appeared nervous and responded no. The officer also observed an “unusually strong” odor of air freshener coming from the car, which he knew was frequently associated with attempts to mask the odor of narcotics. The officer then ran a computer check on the women and, four minutes into the stop, discovered that Williams had an outstanding warrant on a traffic citation from Florida and her license was suspended for a drug conviction. While waiting to determine whether Florida wanted to extradite Williams, he and the back-up officer obtained consent from the women to search Rodriguez’s car and Williams’ purse. The search uncovered four to five ounces of marijuana in the car and Williams’ purse. The women were arrested, although this appeal only involves Rodriguez, who was charged with one count of possession of marijuana with intent to distribute.

After her indictment, her attorney filed a pre-trial motion to suppress evidence of the marijuana. The trial court denied her motion, and she then appealed to the Georgia Court of Appeals, arguing that the search of her car was illegal because (1) there was no valid basis for the initial vehicle stop, and (2) even if the stop was valid, the search was an impermissible expansion of its scope and duration. The Court of Appeals wrote an opinion stating that the majority upheld the trial court’s denial of Rodriguez’s motion. However, six judges of the appellate court voted to affirm the judgment while six dissented. Rodriguez then asked to appeal to the Georgia Supreme Court, which agreed to review the case to determine whether the trial court erred in denying the motion to suppress and whether the Court of Appeals should have automatically transferred the case to the high court, as required by the state Constitution when there’s an even split between the 12 judges.

Today’s opinion deals first with the court jurisdiction issue. “There was an equal division in this case, the Court of Appeals ought not have rendered any decision, and it instead should have immediately transferred the case to this Court,” the opinion says, “Accordingly, we vacate the decision of the Court of Appeals.”

But the trial court made the right decision in denying Rodriguez’s motion to suppress the evidence of the marijuana when her case goes to trial, the majority opinion says. Rodriguez herself conceded the officer had reason to stop her car and determine whether Sanchez was in it. Only four minutes into the stop, the officer discovered the outstanding warrant on Williams. “The only question presented in this case, therefore, is whether the detention was unreasonably prolonged by the inquiry into the identities of Rodriguez and Williams, the question about weapons or contraband in the car, the verification of their identities, and the check for warrants,” the opinion says.

 “Ascertaining and verifying the identities of the women in the car were minimally intrusive means of confirming that neither was the ‘Enrique Sanchez’ for whom the officer was looking,” the majority opinion says. “Equally important, inquiring about the identities of Rodriguez and Williams, inquiring about weapons in the car, verifying their identities, and checking for warrants are activities reasonably directed toward officer safety.” Toward this end, “courts throughout the country have held that an officer generally may reasonably inquire about the identities of person detained at the scene of a traffic stop and take reasonable steps to quickly verify their identities and to check their criminal histories and for warrants.”

The “detention as a whole was reasonable in duration,” the majority concludes. “The trial court did not err when it denied Rodriguez’s motion to suppress, and the judgment of the trial court is affirmed.”

In a partial dissent, Justice Robert Benham writes that he agrees the Court of Appeals was not authorized to issue a judgment in the case, but “I respectfully disagree that any detainment of Rodriguez was lawful. Otherwise, with this ruling, we have given police the authority to detain persons who are lawfully operating their vehicles for being associated with persons who have outstanding warrants, for failing to make eye contact and for using air freshener in their vehicles, none of which is criminal conduct.”

The officer “could have easily completed his investigation of the Sanchez warrant with a simple search of his computer or a call to dispatch and without existing his vehicle.” A simple search of the Georgia Department of Corrections database would have shown him Sanchez was in prison and no longer at-large. Once the officer determined Sanchez was not in the vehicle and was in prison “was the moment the encounter should have ended,” says the dissent, joined by Justice Carol Hunstein. “Because I believe the police went well beyond their authority in this case, I would reverse the trial court’s denial of Rodriguez’s motion to suppress and direct that the motion be granted upon return of the remittitur to the trial court.” 

Attorney for Appellant (Rodriguez): Eric Crawford

Attorneys for Appellee (State): Daniel Porter, District Attorney, Ayanna Sterling, Jones, Asst. D.A.



The Supreme Court of Georgia has upheld as constitutional the state’s methamphetamine trafficking statute that carries a mandatory minimum punishment of 10 years in prison and a fine of $200,000 for an amount of less than 200 grams.

With today’s unanimous decision, written by Justice Carol Hunstein, the high court has reversed a Columbia County judge’s dismissal of the trafficking charge and 10-year-sentence against Thomas Benjamin Nankervis, Jr. The trial judge sentenced him instead to eight years for manufacturing meth. After the jury returned a guilty verdict on meth trafficking, the trial court concluded that the meth trafficking statute was unconstitutional and that under the “rule of lenity,” Nankervis should have been sentenced only to eight years in prison under the statute that outlaws manufacturing controlled substances. (The rule of lenity says that ambiguities in criminal statutes relating to penalties for the same conduct must be resolved in favor of the defendant.)

But in today’s opinion, “we now hold that the methamphetamine trafficking statute is constitutional and that the rule of lenity does not apply in this case. Accordingly, we reverse the trial court’s ruling, vacate the judgment in part, and remand.”

            According to the facts, early on April 26, 2011, a law enforcement officer stopped Nankervis for driving erratically and weaving across lanes. Upon questioning, officers noticed an open beer can on the console, and upon questioning, Nankervis admitted there was a marijuana cigarette in the van as well. Upon searching the van, officers found a variety of items used to produce meth, including coffee filters, a funnel, a can of Coleman fuel, muriatic acid and drain cleaner. They also found scales, syringes, a spoon, and straws, which are used in selling and ingesting drugs, as well as a bag containing less than one gram of meth.”  

            Under the state’s meth trafficking statute (Official Code of Georgia § 16-13-31 (f) and (g)) a judge may reduce the sentence of a defendant who assists the State in identifying and convicting others involved in illegal drugs. The trial judge reasoned that all persons convicted under the statute are similarly situated but that Nankervis was treated differently because he was in no position to provide assistance and therefore was ineligible for a reduced sentence, in violation of his constitutional rights to due process and equal protection.

            “However, even assuming that defendants convicted of methamphetamine trafficking who provide substantial assistance are similarly situated and treated differently than those who cannot provide assistance, we find that there is a rational basis for doing so: The legislature intended to reward individuals with a reduced sentence in exchange for information that is useful in assisting law enforcement officials with identifying, arresting, or convicting other individuals involved with illegal drugs and shutting down networks,” today’s opinion says. “Accordingly, we conclude that Official Code of Georgia § 16-13-31 (f) (1), (g) (1), and (g) (2) do not violate Nankervis’ substantive due process or equal protection rights because these provisions bear a rational relationship to a legitimate objective of the government.”

            As to the rule of lenity, Nankervis was indicted for manufacturing meth under the statute which states that “[a]ny person who knowingly manufactures methamphetamine…commits the felony offense of trafficking methamphetamine” and sets the punishment to a mandatory 10 years for under 200 grams. A more general statute, however, (Official Code of Georgia § 16-13-30 (b) and (d)) makes it illegal to “manufacture, deliver, distribute, dispense, administer, sell or possess with intent to distribute any controlled substance,” and sets the punishment at imprisonment of five to 30 years.

            The “most reasonable interpretation of the legislative intent” in enacting the meth trafficking statute, today’s opinion says, was to supplant the punishment provision of the general statute with “a specific and potentially more harsh punishment provision for [trafficking] methamphetamine.”

            “Thus, because a more specific law applies to trafficking methamphetamine, the general provisions of § 16-13-30 (b) for manufacturing controlled substances do not apply.”

            The high court finds the evidence was “sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that Nankervis was guilty of trafficking in methamphetamine, failure to maintain lane, and violation of the open container law,” and the trial court “erred by sentencing Nankervis for manufacturing a controlled substance rather than for trafficking methamphetamine.” The Supreme Court has thrown out the judgment and sentence on Count 1, and is remanding the case to the trial court “with direction to enter judgment on Count 1 for trafficking methamphetamine and to sentence Nankervis accordingly.”

Attorneys for Appellant (State): R. Ashley Wright, District Attorney, Joshua Smith, Asst. D.A.

Attorney for Appellee (Nankervis): Kurt Worthington



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