Hammond v. State
289 Ga. 142
| Ga. | 2011Background
- Hammond was convicted in 2006 in Georgia of sexual battery, aggravated sodomy, kidnapping with bodily injury, two counts of aggravated assault, two counts of burglary, and false imprisonment.
- On appeal, the Court of Appeals affirmed; the Georgia Supreme Court granted review to address retroactivity of Garza v. State and potential reversible error from the denied asportation instruction.
- Garza v. State (2008) overruled the prior requirement of only slight movement for asportation and announced a four-factor test.
- The Georgia General Assembly amended the kidnapping statute, effective July 1, 2009, reinstating slight movement not incidental to another offense.
- The Court held Garza applies retroactively and the trial court’s failure to instruct under Garza was harmless under the high-probability standard.
- As applied, Hammond’s movements were short in duration and not inherent to other offenses, yet nonetheless presented significant danger and thus Garza-based assessment supports harmless error finding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Retroactivity of Garza’s rule on asportation | Hammond: Garza should apply retroactively | State: Garza not retroactive | Garza applies retroactively |
| Whether failure to give Garza-based asportation instruction was reversible | Hammond entitled to Garza-based instruction | State: error harmless | Error not reversible; harmless |
| Effect of 2009 kidnapping statute amendment | Garza-based rule governs regardless of amendment | Amendment affects applicability | Garza retroactively applied; instruction consistent with Garza |
Key Cases Cited
- Garza v. State, 284 Ga. 696 (2008) (overruled slight movement standard and set four-factor test for asportation)
- Government of Virgin Islands v. Berry, 604 F.2d 221 (3d Cir. 1979) (four-factor approach cited for asportation analysis)
- Henderson v. State, 285 Ga. 240 (2009) ( Garza factors applied; movement may be minimal yet still constitute asportation)
- Tate v. State, 287 Ga. 364 (2010) (Garza factors used to find asportation where movements were not inherent or did not increase danger)
- Felder v. State, 266 Ga. 574 (1996) (highly probable standard for nonconstitutional error)