Appealing a Conviction in Georgia

There are countless bases on which a conviction can be appealed. Some of the more common issues are described in this section. However, for a discussion of the particular issues in your appeal, contact a Marietta Criminal Appeals Lawyer and Georgia Criminal Appeals Lawyer here. 

Denial of Motion to Suppress

A motion to suppress is asserted to dispute the admissibility of certain evidence at a criminal trial. It is a pretrial motion, and the State has the burden of proving the legality of the search or seizure that led to the discovery of the evidence in question. If the pretrial motion to suppress is denied by the trial court, the defendant can file an interlocutory application in an attempt to appeal the ruling before trial. Otherwise, the denial of the motion to suppress can only be appealed if the trial is conducted and the defendant is convicted.

The appellate court will analyze the denial of the motion to suppress in one of two ways. If there are any facts in dispute, the appellate court will give deference to (in other words, side with) the trial court judge, whose job it was to discern the facts. However, the appellate court will do its own analysis of the law applicable to those facts. They will reverse the trial court only if the denial of the motion was "clearly erroneous."

If the facts are undisputed, the appellate court will conduct what is called a "de novo" review of the law applicable to the ruling. For a defendant appealing the denial of a motion to suppress, this is a much more favorable standard of review.  

While motions to suppress are normally associated with drugs that were discovered, they can also apply to any other type of evidence that the State intends to introduce against the defendant. This includes, of course, incriminating statements or confessions.

The motion may be based on any number of asserted illegalities regarding the search or seizure. The stop of the vehicle may have been without reasonable suspicion. The search of the house may have been without a warrant and without any exigent circumstances justifying a warrantless search. The statement made by the defendant may have been without the benefit of the Miranda warnings. Or the statement made have been coerced. These are a just a few examples of commonly appealed issues asserted pretrial during a suppression hearing. 

Denial of Motion for Mistrial

Imagine that before your trial the judge ruled certain evidence was not admissible. Then, in the middle of trial a witness blurts out the evidence that was ruled out. The defense attorney stands up and objects and then, outside the presence of the jury, moves for a mistrial. When the court denies the motion, as long as the trial attorney sufficiently preserves the issue, this presents a basis for appeal.

Trial judges are vested with an enormous amount of discretion in such circumstances. Thus, the denial of the motion for mistrial will only present a basis for reversal of the conviction if the trial judge abused his or her discretion. This is a tough burden to overcome, but not insurmountable. 

If you work on appeals, you will oftentimes see arguments made by defense attorneys that "the bell can't be unrung." What this means is that no warning by the judge to the jurors to ignore the evidence in question could possibly be sufficient to make sure that they don't consider the evidence when they deliberate. For example, if the defendant made an incriminating statement but the trial court excluded it, and then a witness testifies that the defendant did make the statement, the damage has been done and no objections from the defense nor admonitions from the trial court could possibly cure the harm to the defendant. 

Certain situations are more likely to make the denial of a motion for mistrial reversible error. When a police officer, someone who the appellate courts consider "should know better," testifies to evidence that is clearly inadmissible, this is more likely to require a new trial.  When a prosecutor makes a closing argument that is clearly improper, this too presents a stronger argument for reversal.

Ineffective Assistance of Counsel

This section could be quite lengthy, but will instead only cover the basics. Ineffective assistance of counsel is one of the most common appellate issues, but it is also one of the toughest to prevail on. 

Criminal defendants are entitled, by both the Federal and Georgia Constitutions, to the effective assistance of counsel. Claims of ineffective assistance may be based on the following:

• failure to locate an exculpatory witness
• failure to object to inadmissible evidence
• failure to file certain pretrial motions
• failure to request a certain jury instruction
• failure to object to erroneous jury charges

The burden of proving that trial counsel was ineffective rests on the defendant, as do most appellate issues. There are two prongs to an ineffective assistance claim: that your trial lawyer's performance was deficient in some way, and that this deficiency prejudiced you at trial. The appellate court can reject your claim of ineffective assistance based on either of the two prongs. In other words, even if your trial lawyer performed deficiently, you will not be granted a new trial if the error did not harm you overall. Similarly, even if the decision made by trial counsel was harmful, you will not be granted a new trial if the decision was reasonable.

Deficient performance is generally defined as a decision made by the trial lawyer that no reasonable trial lawyer would have made. If the decision was reasonable under the circumstances, then the claim of ineffectiveness will fail. "Trial strategy" is a phrase often associated with this analysis, and any time a lawyer's decision to do or not do something is a reasonable trial strategy it is not deficient performance. Claiming trial strategy alone, however, does not automatically insulate a trial lawyer from a viable claim of ineffectiveness, but the defendant on appeal must establish that the strategy was one that a reasonable trial lawyer would not have had.

Prejudice in this analysis is synonymous with harm. The defendant must establish that, but for the trial counsel's deficient performance, there is a reasonable probability that the outcome of the trial would have been different. A trial lawyer's error or omission is not enough to win reversal; the defendant must prove by a preponderance of the evidence that he or she was actually harmed. Prejudice is also defined as harm sufficient to undermine confidence in the outcome of the trial.

While Georgia does not recognize the "cumulative error" rule that other states do, the appellate court is required to consider the "cumulative prejudice" caused to a defendant when his or her trial lawyer performs deficiently in more than one way. Therefore, the appellate court must "add up" the harm caused by each individual error or omission to determine whether the grand total of harm is sufficient to establish the prejudice prong.  

Erroneous Jury Instructions

The jury charges are arguably the most important aspect of a criminal trial. This is because the law that the jury applies to the facts of the case will determine whether the defendant will be found guilty or not guilty. With this in mind, it is no surprise that errors in the jury instructions are the frequent basis for reversals. This issue generally takes one of two forms: the judge giving an inapplicable jury charge, or the judge refusing to give an applicable charge requested by the defense.

A vigilant trial lawyer will scrutinize the charges that the judge intends to provide. Most jury charges are found in the pattern jury instructions manual that is provided to all state-level judges. But even these charges need to be tailored to the facts of the case. Otherwise, there is a risk that the jury could convict the defendant based on a manner of committing the alleged offense that is inconsistent with what the indictment spells out. 

For example, aggravated assault can be committed in several different ways. If an indictment alleges that the defendant committed that offense with a deadly weapon, but the trial court charges the jury that aggravated assault is an assault with the intent to murder, this is problematic if there is evidence that the assault was done with the intent to murder because the jury may convict the defendant based on a manner not alleged in the indictment. This would relieve the prosecutor of his or her burden to prove that the defendant committed the offense in the manner alleged. 

A vigilant trial lawyer will also carefully prepare the defendant's requests to charge to ensure that all of the law favorable to the defendant gets charged to the jury. If the evidence supports a jury instruction that the defendant was merely present at the scene of the crime but did not take part in it, it is vital that the jury is instructed on the law of mere presence alone being insufficient to convict. If the evidence is wholly circumstantial, it is vital for the jury to learn that the prosecutor has to therefore disproof all reasonable hypotheses other than the defendant being guilty. If the defendant refused to submit to the breathalyzer test, it is vital for the jury to know that they may not infer that he or she was intoxicated based on the refusal. 

Some charges must be given by the trial judge even if not requested by any party. For example, if a defendant's sole defense is that he or she acted in self-defense, the trial court is required to provide that jury instruction even if if the defense lawyer does not request it. If the trial fails to provide the jury an instruction on the defendant's sole defense, this is automatic reversible error.

In order to preserve any appellate issues based on the jury instructions, a trial lawyer must make their specific "exception," or objection, following the charge of the court to the jury. Otherwise, any objection has been waived and the defendant on appeal will therefore have to prove ineffective assistance or establish that the jury charge issue constitutes "plain error," a high burden to meet. 

Sufficiency of the Evidence

One of the "general grounds" of appeal is sufficiency of the evidence, or insufficiency of the evidence. The argument is that the State failed to present enough evidence for any reasonable juror to find you guilty. This is one of the very few appellate grounds that, if successful, the defendant walks free.

Normally, this ground is asserted if the State's proof was lacking regarding one of the essential elements of the offense. For example, the defendant was charged with statutory rape and the State failed to introduce any evidence that the alleged victim was under the age of 16. Maybe the defendant was charged with burglary and the State failed to prove that the defendant did not have consent to enter the building. In a drug trafficking case, the State failed to prove the weight or amount of the drugs.

One commonly appealed issue is the State's failure to prove venue, that is that the crime was committed in the County where the case is being tried. The State can typically meet its burden of proving venue by asking one simple question: "did this event take place in Cobb County?" Believe it or not, sometimes this question does not get asked. If the State fails to prove venue, the conviction will be reversed. However, unlike other sufficiency grounds, the State can retry the defendant under these circumstances.

Jury Selection Issues

Selecting the jury at trial is a hugely important part of a case. The jurors selected will listen to all the evidence and testimony before deciding whether to find the defendant guilty or not guilty. Although this is called jury selection, this is really more a process of jury de-selection; the parties don't get to choose who sits on the jury, they get to choose who does not sit on the jury. The actual jury is comprised of those jurors who were not struck by either party.

In a felony trial, each party gets to exercise nine peremptory strikes, excusing jurors for any reason under the sun other than on racial or gender grounds. Each party may also move for any number of strikes for cause when a juror's answers during voir dire reflect that the juror would be unable to be a fair and impartial juror. Strikes for cause may also be made on other bases. 

If the trial court denies a defendant's motion to strike a biased juror for cause, this could be grounds for reversal of the conviction. This is particularly harmful to the defendant when he or she is forced to use a peremptory strike on a juror that should have been stricken for cause. 

One other common jury selection issue is when the defendant believes that the State exercised its peremptory strikes against jurors solely because of their race or gender. If properly objected to, the State is required to establish that its strikes were made for race or gender-neutral reasons. If the State is unable to make a sufficient explanation of its reasons for the strikes, any conviction later obtained will be reversed. 

The defendant in a criminal case is statutorily permitted to question the prospective jurors about anything that may make them biased in the particular circumstances of the individual case. If the judge curtails the defendant's right to explore bias, this may be reversible error. Further, if any juror, based on the totality of his or her answers, is "substantially impaired" in their ability to be fair and impartial, this juror must be struck for cause by the trial judge even if neither party requests it. 

Self-representation, while a right in Georgia under our Constitution, is not an option when appealing a conviction. Just like you wouldn't want a non-doctor to perform surgery on you, you don't want to risk a non-lawyer handling your appeal. If you have been convicted of a crime and wish to appeal that conviction, call a Georgia Criminal Appeals Lawyer and Marietta Criminal Appeals Lawyer at 404-985-9772.