*1 5 B. Attorney, Conroy, Barbara Gwendolyn Fleming, District Keyes Grant, MacNamara, District Assistant Attor- G. Leonora Elisabeth neys, appellant. & Jean appellee.
Campano Sperling, Sperling-Cavaliero, C. THE v. MAYZE.
S05A1225. STATE
(622 836) SE2d CARLEY, Justice. 2003, County, Lloyd, Clayton Owanna who resides mis- contained in County. Using wallet in Fulton
placed his wallet, allegedly Lloyd’s history accessed Mr. credit Mayze Willie Eventually, charged was arrested and County. Mayze in DeKalb two fraud in violation of County with counts of Clayton 16-9-125, 16-9-121. In accordance with OCGA§ OCGA§ Clayton Lloyd’s on Mr. prosecution predicated residence County. indictment, asserting filed to the
Mayze a demurrer as it venue of an was unconstitutional insofar authorized 16-9-125 § where the victim “resides or prosecution fraud found,... of whether the defendant was ever regardless demurrer, hearing, trial court sustained county.” such After a appeal from that order. brings and the State creating at crime of We note the outset where the prosecution for venue providing number Georgia alone. A growing resides or is is not victim comparable including fol provisions, other states have enacted (C.G.S.A. 13A-8-196); Code Connecticut lowing: (Ala. Alabama § Florida (1)); Code 22-3227.06 (c)); (DC District of Columbia 54-1d § § (s)); Iowa (West’s (15), (720ILCS F.S.A. 817.568 Illinois 5/1-6 (16)); § Maryland (MD Kentucky (5)); 715A.8 514.160 (I.C.A. (5)); (KRS § § Law, 762.10c Code, (m) (2)); Michigan (M.C.L.A. 8-301 Criminal § § 609.527, (1)); (V.A.M.S. 6 Missouri (M.S.A. Minnesota Subd. (1) (c)); § 347), 13 (2)); (2005 (S.B. (2) Nevada Laws Ch. 485 541.033 Nevada § § (effective (N.H. New Stat. 1,2005)); Hampshire 638:27); October Rev. § (N.M.S.A. (G)); (NC Mexico North Carolina New 30-16-24.1 § 2005-414, 2 North (effective 1,2005)); Laws December Dakota Sess. § Pennsylvania (e.l)); Pa.C.S.A. 4120 Utah 12.1-23-12); (18 (NDCC § (7)); (Va. 1953 Code Ann. 18.2-186.3 (U.C.A. Virginia (5)). Washington (West’s precise RCWA 9.35.020 issue (D)); constitutionality in this presented for resolution case is be tried in our statute. 11criminal cases shall “[A] VI, II, ....” Art. Sec. Par. county where the crime was committed VI of the Constitution of 1983. The General provision, certainly providing enact a bound and cannot law for the of a crime in other than that wherein “ equally Nevertheless, it was committed. it is clear that ‘[t]he legislative.’ prescribe punishment to create crimes and to therefor is omitted.) (1) (Emphasis Knight State, v. Ga. [Cit.]” *2 182) (1979). “identity Thus, fraud,” if SE2d the offense of as defined by is in one which occurred impedi- the victim or is then there is resides no constitutional trying ment to the defendant there. VI, II,
Art. Sec. Par. VI of our Constitution does not limit venue provides in a county case to one It for trial in criminal whatever ongoing A was committed. be continuing, appropriate any county which case venue would be in (577 Kell, wherein the offense occurred. See v. 276 State Ga. 423 crime SE2d 551) (2003). Mayze continuing theory contends that the does apply fraud, OCGA§ 16-9-121, because as defined can only be committed in a the defendant wherein obtained or identifying recorded tempted information victim accessed or at- interpretation
to access the resources of the victim. That scope presumably the limited of the offense is based on the so-called whereby appear test,” “verb the verbs which in a criminal statute and proscribed relate to the conduct are determinative factor in identifying the substantive “[studying ‘the nature the offense. It is true that
key verbs which define the criminal offense in the helpful determining statute is doubtful cases.’ [Cit.]”State supra Supreme Kell, However, Court, v. at 425. like the Court of States, the United has
never that before held... verbs the sole consideration in identifying the conduct that constitutes an offense. While certainly interpretative tool, test” “verb has value applied rigidly, it cannot be to the exclusion other relevant statutory language. unduly inquiry The test limits into thereby danger nature offense and creates a that prohibited by certain conduct statute will be missed. Rodriguez-Moreno, (119 (II) 275, United v. States 526 U. S. 280 SC 388) (1999) (interpreting 1239, Ill, 143 LE2d Art. Sec. 3 of Cl. provides Constitution, Federal Trial “[t]he ofall Crimes... be shall held the State where the said Crimes shall have been virtually compa- is, therefore, committed” and which identical to our provision). Thus, rable state constitutional exclusive reliance on the considering constitutionality provi- test” “verb when of a venue Assembly inappropriate. sion enacted is “[0]ther determining statutory language” must be considered in relevant prohibition imposed scope and, OCGA 16-9-121 conse- permissible quently, venues for under location that statute. pari must, and 16-9-125 are in materia and §§
OCGA 16-9-121 together. generally therefore, Griffin, State v. construed See 340) (1997). Looking beyond the verbs SE2d Ga. giving to the addi- 16-9-121 and consideration contained OCGA language 16-9-125, Assem- tional bly contained OCGA clearly fraud as a has into the the victim resides offense which extends expressly located. OCGA 16-9-125 states: The General finds that fraud involves uniquely personal use of information which is fraud and the consumer or business victim of posses- to be in the which information considered lawful the con- or business victim wherever sion sumer or business victim consumer found. resides or is Accordingly, involves the fraudulent use of purposes is, the fraudulent use ofinformation that ofthis *3 county the or article, found the consumer within where the resides found. business victim of or is statutory clearly language” indicates re- This “other relevant physically gardless located, of the victim’s records where personal protection nature ofthe offense of fraud is Moreover, is deemed therein. that information contained information possession victim, so that a defendant to be in the lawful when by engaging access to in an unauthorized violates OCGA 16-9-121 thereby engages records, in fraudulent of information he use the located county resides or is found. Since the in the where victim fraud, thus OCGA 16-9-121 and §§ crime of county pari place materia, in the where in takes 16-9-125 when read personal located, there is no and her the victim his or trying in that bar to defendant constitutional “identity Therefore, the crime of the “act” which constitutes county residence, because that does occur in the the victim’s fraud” personal use of information. act is the unauthorized the victim’s accessing records and the act of There is a valid connection between Regardless where the contained therein. the use of information accessed, therefrom the use of the information obtained records were There is not the victim lives. is consummated in the where authority Assembly impediment to the of General provide that a defendant’s a in such a manner as to to define crime place jurisdiction in takes one culminates in an conduct which occurring or, case, unauthorized act as in this an unauthorized use example another. As another of the breadth of the constitutional legislate Assembly context, that the we note provide could that the venue a murder case is in the where place. regardless occurred, the death the fatal act took Roach (1864) (holding State, that “at v. 34 Ga. common law the jurisdiction occurred; attached death jurisdiction statute, the attaches where the mortal blow given.”). This was tionally shows that is constitu- legislatively test,” can
bound the “verb and establish whether the crime of murder occurred where the defendant commit- ted act or where the victim died. If the “verb test” not a limit Assembly’s authority to define the murder crime of so as compel prosecution occurred, where the accused’s act it cannot authority legislative constitute a limit on “identity define crime of provide fraud” so as to use an unauthorized of infor- prosecuted mation can be residence the victim privacy whose was invaded. passes that OCGA§ conclusion constitutional mus- supported by I,
ter is further recent Alabama decision. Art. Sec. VI virtually comparable of Alabama Constitution is identical to the provision provides prosecu- Constitution, in our that criminal tions that state are to be held in or “the district which the offense was committed . . . .” The relevant of Alabama “identity “identity comparable theft” statute is to our law, also fraud” provides defendant, that the if committed permission authorization, consent,
without the victim, and with the intent to defraud his or her own person,... benefit records, benefit of a third [o]btains, or accesses information that would assist accessing obtaining resources, financial docu- identification obtaining ments, benefits of the victim. *4 (a) (1). legislative
Ala. Code § 13A-8-192 accordance with a enact- analogous prosecu- 16-9-125, ment that is tion for to of our OCGA venue violating the Alabama theft statute is any part place, in regardless the of crime took present
ofwhether the defendant was ever county, person that ofresidence ofthe who subject is the of the identification documents information. against that As the assertion
Ala. Code 13A-8-196. Appeals unconstitutional, of of the Court Criminal
Alabama held Legislature . believe . . defined of we [Cit.] . in a theft offense. . . “Venue as requires though case, matter, a constitutional criminal proscribes.” “(A) inquiry [Cit.] into what conduct the statute that there is no review of relevant authorities demonstrates single policy test to consti- or mechanical determine Rather, the best as a sub- tutional venue. test is described into account a number rule that takes of stantial contacts — acts, of the defendant’s the elements factors site crime, of the effect of the criminal nature locus suitability conduct, and each district for accurate factfinding the effects of a crime are .... Places suffer purposes. entitled to consideration Such districts litigation in their have an obvious contact with the interest occurring. preventing To some extent such effects from overlaps definition and nature this factor with the crime____” seq., 13A-8-190, et Section Ala. Code [Cits.] Identity very Act,” entitled, “The Protection Consumer protect Alabama citizens from defen- name was enacted to seeking their identities. Section 13A-8-196 dants to steal proper specifically provides that venue is victim issue has no merit. [Cit.] resides. This 2004). parte Egbuonu, (Ala. App. Crim. Ex 911 S2d compelling although and, court is This Alabama controlling, authority persuasive our for the construction of provisions. contrary statutory analogous A own constitutional upon rigid holding to the “verb test” would have based adherence pro- depriving effect the residents of unfortunate Assembly sought provide them tection which against who to steal their identities. A victim those seek any protection against one who fraud in this state not have would identity by to records his or her unauthorized access located stole Georgia. state, in this Even when the records located outside expense traveling put to the the victim would be time and testify his her records were maintained duty prosecution. undisputed It is that this Court has to safe- right guard constitutional defendant’s county responsibility However, also where the crime was committed. we have passes upholding when legislation protect of this state citizens *5 authorizing prosecution as a criminal in their counties residence against personal those would make fraudulent use of the infor- who located in those counties. mation
Notwithstanding protestations contrary, the dissent’s today’s actually extremely is decision an narrow one. The extent of holding exercising that, when our is constitutional to create Assembly crimes, in is authorized to define way regardless that, such of where the defendant have actually records, accessed the the offense constitutes an unautho- personal pro- therein, use of the rized information contained which occurs in scribed conduct where the information and the subject underlying thereof, individual who is the rather than the misrepresents themselves, Thus, are records located. the dissent our holding by asserting page 16 that have “overlooked] we undisputed fact that no element of the offense of fraud as set in forth OCGA occurred resolving that, defendant tried in this case.” truth is appeal, erroneously we have limited our consideration to OCGA properly 16-9-121, but we have taken instead into account that provisions pari statute all other which are in is materia. What clearly provides overlooked the dissent that OCGA 16-9-125 personal an element the offense is the use of unauthorized information, which element occurs in the where the victim language denoting identity lives. The fact involving fraud as an offense possessory personal the victim’s interest his or her own appears § 16-9-125, rather than OCGA 16-9- significance. 121, does not have constitutional Essentially, acknowledge the dissent fails to the fundamental distinction between location where a defendant commits an act require and the site where crime occurs. The Constitution does not Assembly provide prosecution that the General that venue of a shall only physical where the accused committed a act. So long occurred, as venue is set where the crime as crime is defined is satisfied. The dissent does not of the constitutional mandate
suggest any why, purposes reason protecting the citizens of this state from unauthorized use of their personal Assembly constitutionally information, the cannot determine that the locus of the crime is victim resides or is regardless of the fortuitous location where the defendant containing accessed the records the information. Unlike homicide against person, identity against other crimes fraud is an offense possessory personal the victim’s her interest his or information. Establishing the victim’s residence as the venue of a through possessory a crime committed the invasion of that interest certainly completely concepts.” p. is not Dissent, “based on fictional commodity. intangible Therefore, Personal information is jurisdictions from other the numerous statutes
evidenced entirely provide analogous ours, it is reasonable to personal information is deemed to be located whatever that information resides. owner of predicated apparently
The dissent believes that its holding upon However, the our Constitution. a strict construction of principle separation proposes that powers, would violate authority of General invade *6 judiciary’s as crimes, and substitute the determination to to create proper legislative principle decision. strict to be used a tool achieve unconstitutional construction cannot as result. complies
Accordingly, with hold that OCGA 16-9-125 we the venue of a criminal case be set constitutional mandate that alleged it committed. Because was identity County by Mayze Clayton fraud in committed crime of using personal possession was in the lawful of a which county, proper. venue of the There- resident fore, sustaining the indict- the trial court erred in his demurrer to ment.
Judgment except Sears, concur, J.,C. reversed. All the Justices Melton, JJ., Hines and who dissent. dissenting.
MELTON, Justice, damages Today, majority reconsideration, on motion palatable longstanding out- law in favor of the most constitutional doing effectively VI, II, come, and, so, Art. Par. VI of overrules Sec. majority opinion greatly Georgia such, As Constitution. authority, dangerous a the bounds of our creates exceeds precedent allowing both to rewrite the constitution Court involving regarding interpretation case of a venue and cases impinges on the of either this Assembly. Court or constitutionally- represents
This case an instance which required holding only can be called an unfortunate leads what exactly Nonetheless, it is such unfortunate cases we result. fight safeguard our constitution and avoid the must hardest temptation bad in order reach the that is to create law outcome majority satisfying. Nevertheless, constitu- most muddies our unnecessary completely it is do so. tional waters when computers, majority yet This is case about focuses its not a by computer. This is not case committed authority that does not exceed the without constitutional solution Assembly. the immediate Court The solutions to ofthis or General problem surely they exist, but must be discovered Assembly, not created this Court based on factual scenarios not through longstanding precedent. Finally, before us and alteration of Assembly’s this is not a case about the General is, It discretion. placed instead, a case about constitutional limitations on the General majority limitations which the removes, of this Court now opening floodgate logically that cannot be closed in all future cases regarding venue. growing many doubt,
Without a crime, fraud is a analogized plague computer-driven society. have it as a on our As the dealing evolves, our manner of with it well, but, must evolve as always, legal evolution should occur within the framework of majority wholly stepped our constitution. The has outside of this all-important might prefer majority’s framework, and while I strongly outcome, I must dissent to it because it is derived unconstitutional means. requires statutory This matter us to determine whether the provisions set forth for the crime of fraud in OCGA satisfy
§ 16-9-125 the mandate of the Constitution of 1983 that a criminal case must be tried in the where the crime was committed. OCGA 16-9-125 as it is drafted is unconsti- provides tutional to the limited extent that it that venue for proper fraud is where the victim resides or is irrespective of whether the defendant obtains or records *7 attempts information of the victim or accesses or to access the resources of the victim in the of the victim’s residence. Georgia VI, provides: II, Art. Sec. Par. VI of the Constitution “[A]llcriminal cases shall be tried in the where the crime was except superior committed, judge in cases courts where the impartial jury county.”1 satisfied that an cannot be obtained in such requirements generally cases, criminal venue are for the benefit of jurisdictional defendant, “[v]enue is a fact that must be proved by prosecution beyond a reasonable doubt.” Graves v. (1) (504 679) (1998). State, 269 Addressing Ga. 773 SE2d venue identity for the crime of fraud, OCGA states, 16-9-125 in turn: identity The General finds that fraud involves the identifying uniquely personal use of information which is identity the consumer or business victim of that fraud and posses- which information is considered to inbe the lawful sion of the consumer or business victim wherever the con- sumer or business victim resides or is found. [1] This constitutional mandate is codified at OCGA 17-2-2 (a).
13 Accordingly, involves fraudulent of that information use purposes is, of information that for the the fraudulent use article, or found where the consumer within found. victim of the fraud resides or is business Accordingly, proceeding article, in under this the crime will any county been committed in where be considered to have person or financial infor- whose means identification any appropriated or is or in mation was county resides part place, any other took which offense regardless the defendant was ever whether such definition, it must be whether
Given this then determined OCGA VI, II, Art. Sec. Par. VI of the satisfies the mandate of 16-9-125 accurately places describes Constitution and identity fraud is committed.
The crime of fraud occurs when: permission person or of a with without intent authorization appropriate physi- unlawfully resources of or cause person, person, any or of to his or her cal harm that other party (1) use or to the use of a third he or she: Obtains own or records identifying person would information of which person any accessing other assist resources of (2) person; attempts to access the resources Accesses person through the use of information. OCGA§ 16-9-121. specific element have some situs. With
Each will places any county properly mind, “in venue this in place.” any part words, took In other other appropriately portion read due the statute to indicate ongoing crime, as an venue would be fraud’s nature any appropriate in which act in furtherance of (577 551) e.g., Kell, See, v. 276 Ga. SE2d is committed. State fraud); (2003) (regarding ongoing Calla venue for crime medicaid 596) (2000) App. (2) way State, v. SE2d Ga. way, placed fraud). (regarding insurance In this any portion has committed. of the crime been *8 places venue in extent, however, 16-9-125 To the irrespective county or is of the where the victim resides identifying information of the obtains or records whether defendant attempts of victim or accesses or to access resources victim county residence, violates the constitutional in the statute county it where that a must be tried mandate crime show, specific identity committed. As the facts of this case the crime residence, fraud always will not occur the victim’s as contemplated by language the current OCGA 16-9-125. issues, In must not confuse the where considering these one situs place act of fraud is committed with the the results are strongly Identity most manifested. fraud can be county; manifestations, however, be any strong- committed will est at home the victim. Unless the manifestations itself,2 precipitated by part an act constitute of the crime occurs, must placed nonetheless be not where its Furthermore, consequences although identity may felt. fraud crime, a continuing constitute this classification does not automati- cally to be tried in the allow victim’s residence. For a offense, generally may appropriate any be continued, begun, where the or completed.3 beginning, crime was middle, end identity fraud, of the crime of as does always occur residence, victim’s as in this case. hand, all of
Applying these rules considerations to the case at Mayze’s venue for crimes of fraud does not Clayton lie in Mayze did County, not obtain or record the victim or attempt access or to access the resources of the victim there. trial Accordingly, ruling court’s on this should issue affirmed. that,
2. Both the State and
majority argue
unless OCGA
is upheld, Georgia
citizens will
be vulnerable
may
committed
individuals
come
who
never
to this state.
I
certainly
that,
share this
complexities
concern
due to the
of modern
technology,
largely
fraud has
a computer-based
become
crime in
perpetrators
from other states
computer
access
data-
containing
bases
the identifying
Georgia.
information of victims in
case,
computer,
which does not involve the use of a
there is no
assertion that
element of
underlying
offense occurred
residence,
county of the victim’s
was ultimately
case
tried.
Therefore,
above,
Court,
as discussed
under
the proper consti-
analysis,
tutional
has no discretion
its determination
to commerce).
where child
(violation
Child
act
causing
3 See,
For
place
Support Recovery
example,
of federal Hobbs Act
e.g.,
where interstate commerce has
resides,
United States v.
effect
some acts which
as that
occurred.
Act
is the
properly
failure to
See,
Muench,
place
criminally
e.g.,
tried in
where the act is
pay
United
The solutions to crafted through Assembly, this not created Court strained General analysis addressing In which circumvents our constitution. instances perpetrated by located fraud individuals outside statutory provisions Assembly to State, the General wish to look (4) The OCGA 16-9-94 to address this situation.4 General such as Assembly might also choose to broaden the means which causing certain § Although is committed in 16-9-121 to include impact Assembly to the victim. the General could economic impact by edict, dictate where the occurs economic harm the county likely profoundly he or occur most she victim will proper county might therefore, Venue, be because an resides. there, not Assem- element of the crime occurred because General irrespective bly unconstitutionally assigned there of the facts venue involved. reaching majority recognizes conclusion, its that the prescribe Assembly power holds the crimes and to
General create punishment majority “Thus, if these The then states: crimes. ‘identity fraud,’ is one General occurred in the where the victim resides or which then impediment trying there is the defendant no constitutional there.” logic, though superficially appealing, least
This omits at two important constitutionally foremost, considerations. First majority’s interpretation of the law renders the constitutional man- majority regarding wholly meaningless. The fails to to date venue although Assembly power recognize that, has the prescribe punishment, crimes it does not have the create by dictating in which the crime was to create venue regard any part committed, to whether the crime took without place in that majority’s opinion on circular conclu- rests Assembly anywhere indicates, exists
sion irrespective completely based of whether its choice of situs is negates adopted, wholly concepts. precept the consti- If fictional tutional mandate is be in the where the crime venue shall anywhere committed, will committed because the crime nication.” made, Under this whether from which, which, by wires, electromagnetic provision, venue for a through computer waves, microwaves, any use crime under OCGA 16-9-93 computer other means of commu computer network was lies in “any Assembly says example, majority’s General analysis, it is. For under the legislate could that murder is the taking (or identity) life, of a victim’s that this life exists in the always residence, and, therefore, victim’s exists undisputed residence, ofthe victim’s even if it were that no act Despite in furtherance of the murder occurred there. the heinous Assembly recognized murder, nature of our General that it had to place place physical venue in a where there was at least some (c). evidence that the crime occurred. See OCGA 17-2-2 We cannot apply any different set of rules to this case. majority undisputed
Second, the overlooks the fact that no element of the offense of fraud as set forth in OCGA 16-9- *10 occurred in the where the defendant was tried in impact upon defined, this case. As it is the victim is not an identity element of the offense of fraud as set forth in § OCGA 16-9- fully considering any language analysis therein. This is not dependent wholly test,” on the “verb a doctrine irrelevant to the required constitutional outcome in this case. What is relevant here is identity the fact that no element of the crime of fraud occurred in the county of the victim’s Moreover, residence. where our Constitution specifically mandates a determination of venue based on where the question looking “committed,” to the location where making up place only the acts required. the offense took reasonable, is not but though requires
This remains true even it this Court to meaning Wholly concepts consider the of of verbs. fictional of the situs “identifying information” in OCGA 16-9-125 cannot heal this majority’s statute’s breach, and the characterizations simply speak matter before in us terms of the “verb test” do not problem. to this such, fundamental case, As in this venue cannot be proper violating the of the victim’s residence without the constitution. opinion, majority
In its the relies on an Alabama Court’s recent parte Egbuonu, (Ala. App. decision 2004)5 in Ex Crim. 911 S2d 748 compiled quotation wholly separate parts In its Egbuonu, majority from two the omits largely the fact that regarding Alabama Court continuing based its venue for following Johnson, crimes on 273, 275 statement from United States v. 323 U. S. SC 236) (1944) (analyzing 89 LE2d Act): “By venue utilizing under the Federal Denture offense, continuing sure, Congress may, provide doctrine of locality to be that the of a crime shall through propelled extend over operates.” the whole area which force an offender Neither the majority provide quote, Alabama Court nor the the full which states: By utilizing continuing offense, Congress may, sure, the doctrine of a provide to be locality that the through a crime shall extend over the whole area which force propelled by Thus, operates. illegal an offender use of the mails or of other may subject instruments of commerce the user to in the district where goods, arrival, he sent the or in the intervening district of their or in district. Plainly enough, leeway only opens such hardship the door to needless to an comparable passed have and notes that number other states identity meaningless. provisions a recitation is fraud. Such judge constitutionality surveying own of our laws We do not other statutes. states’ contrary, examining the venue
To safeguard duty fraud, it is this Court’s solemn this state’s consti- tried mandate that all crimes shall be tutional Assembly’s committed. It is evident from crime is place language in it desired to venue in the OCGA 16-9-125 that place that is where the of the victim’s residence because major impact however, ofthe crime will occur. The General failed define the crime of fraud 16-9-121in such impact, way part itself, that this is a of the crime committed. In part present underlying actually crime, defined, case, no residence. Under these circum- occurred victim’s stances, OCGA 16-9-125 is unconstitutional in the limited in- places of the victim’s residence stances where part irrespective underlying of the fact that no crime regarding drafting the current statutes occurs there. Based on identity expressed by fraud, the re- desires overriding give way requirements garding our venue must constitution. continuing dispute no fraud is a crime of a
There is beginning, across nature, middle, and end stretch more remembered, however, It than must be one taken in crime because acts furtherance of *11 majority argues, may not, as the occur in different counties. It is impact simply because it creates some to lingers her after last victim in the ofhis or residence which every complete. true, then element of the crime is If this were continuing crime, on an individual would be a which has some effect anything any murder, fraud, Likewise, theft, be it else. and brought every in the of the victim’s such crime could be prosecu- might residence, that be at the time of wherever residence longer construction, has real a result of such a venue no tion. As activity question. Undoubtedly, the situs the criminal nexus to this the To not the result that the framers of our constitution intended. contrary, exactly they trying it is this result were to avoid. appropriate remote from and from facilities for accused home abuses, abuses, appearance if not to defense. It also leads to the selection prosecution. what be deemed a tribunal favorable to fraud, and, such, least, concept very distinguishable At Id. Johnson is from Egbuonu. supports majority nor neither I am to state Chief authorized Justice Sears and Justice join Hines this dissent. 21,
Decided November Scott, Attorney, C. District Naugle, Jewel Todd E. C. Tiffany Boulware, White, Attorneys, Anece B. District Assistant appellant. for Gill, Dillon, Angela
Brown & B. appellee.
S05A1368. v. THE STATE. BREWER 348) SE2d Hines, Justice. Scott Brewer appeals
James his conviction for malice murder Smith, connection with the fatal of Elbert shooting “Butch” Eugene evidence, challenges Jr. He of the sufficiency admission certain and testimony, the effectiveness of trial counsel. For follow, challenges merit, reasons which are without and we affirm.1
The evidence construed in favor verdict showed that on evening 28, 2001, of February Smith and Couch doing Michael were on a construction work house in Whitfield County belonging girlfriend. Brewer’s Brewer at the and arrived house the three men dinner ate and snorted and/or methamphetamine. smoked Couch returned to the floor top work, of the house to and leaving Brewer Smith alone. month,
Earlier purchased Brewer had .40a caliber dock pistol. Brewer Smith in face bashed with the handle pistol. 28, 2001, February 26, The murder and related crimes on occurred 2001. On June County grand jury murder, felony Whitfield indicted malice Brewer for murder while assault, aggravated assault, aggravated trafficking methamphetamine, commission of (VGCSA)by possessing methamphetamine violation of the Controlled Substances Act 11, 2003, February pled guilty trafficking with the intent On distribute. Brewer methamphetamine, agreed prosequi and it was of nolle would an order be entered on charge. jury remaining charges February 11-13,2003; VGCSA Brewer tried before verdict, prior felony aggravated charges murder and assault were removed from jury’s jury 2003, guilty February consideration. The found Brewer malice murder. On prison twenty-five years, years Brewer was sentenced to life in murder for malice ten probation, trafficking methamphetamine; which were to be served on orders nolle prosequi remaining charges. were A entered on the motion for trial was filed new on March *12 2003, 18,2005, 25,2005.Anotice appeal on amended March and denied on March to the Court 6, 2005, Appeals April appeal May was filed on was transferred this Court on May 10, 2005, appeal case 2005. The was docketed this Court on and the submitted July decision