Georgia criminal lawyer successful in reversing a criminal conviction based on prosecutorial misconduct

Recently, the Georgia Court of Appeals was asked to determine if the introduction of a prior independent act which places a defendant’s character at issue should result in a mistrial when the defendant does not induce error nor open the door to the independent act. The court ruled that a mistrial should be granted in such cases.

In Smith v. State, the defendant, Michael G. Smith, was convicted by a jury of kidnapping, aggravated assault, and burglary. The conviction stems from three intruders entering an apartment which was occupied by the owner. One intruder put a gun to the head of the owner and asked for a man by the name of “Rod” as well as for information about where the “dope” was located. The owner managed to escape and saw the men leaving in a white Dodge Intrepid. The owner was friends with a man named Rodney Milledge who was the man the intruders were looking for. Milledge contacted the police and told them he believed Michael Smith committed the invasion. It was also discovered that Smith’s girlfriend owned a white Dodge Intrepid, and that Smith had taken it on the night in question.

On redirect examination of Smith’s girlfriend, the prosecutor showed that Milledge went to her residence looking for Smith while carrying a gun two weeks prior to the invasion. Smith hid in a closet at the time. The prosecutor then asked her why Smith thought Milledge was upset. The defense objected arguing that the question was irrelevant and that the defense did not open the door to any prior bad acts. The judge allowed the girlfriend to answer the question. It was revealed that Smith had stolen cocaine from Milledge. The defense then moved for a mistrial which the trial court denied.

The appellate court determined that the evidence showing that Smith had stolen Milledge’s cocaine was a similar but independent offense. The general rule is that a defendant is to be tried only for the offense charged in the indictment. Court rules state that if the state wishes to introduce such independent acts it must give notice and a hearing by the trial court must be held. At the hearing, the state must make three showings for the evidence to be admissible. The court found no such notice or hearing to exist in this case. As a result, the court concluded that a mistrial should have been granted, since the defense did not induce error and it did not open the door to the prior act.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia’s “Super Lawyers”, and included among Georgia’s “Legal Elite” by Georgia Trend Magazine. Our firm is also listed in the Bar Register of Preeminent Lawyers by Martindale-Hubbell.


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