Supreme Court of Georgia
Jane Hansen, Public Information Officer
244 Washington Street, Suite 572
Atlanta, Georgia 30334
404-651-9385
[email protected]
SUMMARIES OF OPINIONS
Published Monday, October 6, 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 www.gasupreme.us .
TROP, INC. DOING BUSINESS AS “PINK PONY” ET AL. V. CITY OF
BROOKHAVEN ET AL. (S14A0931)
The City of Brookhaven has won the right to ban adult entertainment businesses that sell
alcohol under a ruling today by the Supreme Court of Georgia.
In this high profile case, the high court has unanimously upheld a DeKalb County
court’s dismissal of the Pink Pony strip club’s lawsuit against the new city government of
Brookhaven. The Atlanta area strip club had challenged as an unconstitutional violation of free
speech the City’s new ordinance that bans nude dancing in establishments where alcohol is
consumed.
But in today’s ruling, Justice Harold Melton writes for the Court that given “the
established record regarding the deleterious effects of alcohol coupled with nude dancing, the
trial court did not err by finding that, as a matter of law, Brookhaven’s sexually-oriented
business ordinance does not unconstitutionally infringe upon Pink Pony’s free speech rights.”
Brookhaven is a new Georgia city that became incorporated Dec. 17, 2012. The Pink
Pony strip club has been in business for 22 years, serving food and alcohol, along with nude
dancing, since licensed to do so by DeKalb County in November 1990. Trop, Inc. operates the
club, which has always been on Corporate Boulevard and is now located in the southernmost
area of newly incorporated Brookhaven. From 1991 to 2001, the Pink Pony and other adult
entertainment businesses filed several lawsuits against DeKalb County for enacting ordinances
like Brookhaven’s that prohibit total nudity and liquor in adult businesses. Eventually, a number
of the establishments entered into a Settlement and Release Agreement with DeKalb County in
which the businesses agreed to dismiss pending damages actions in exchange for the right to
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continue operations. The agreement was extended in 2007 for a minimum of 15 years. The
establishments also agreed to pay the County an increased, graduated licensing fee, which for
Pink Pony in recent years amounted to $100,000 a year.
On Jan. 14, 2013, less than a month after Brookhaven incorporated, its new City Council
passed its own “Sexually Oriented Business Code,” an ordinance that bans consumption of
alcohol combined with fully nude dancing. Of particular importance to Pink Pony, the ordinance,
in conjunction with Brookhaven’s Alcohol Code, prohibits the sale of alcohol in sexuallyoriented businesses and allows only semi-nudity (g-strings and pasties), not full nudity. The
Council found that sexually oriented businesses were associated with a wide variety of “adverse
secondary effects,” including crime, prostitution, public indecency, illegal drug use and
trafficking, urban blight and sexual assault. The Council further found that alcohol consumption
increased the risk of those effects.
In May 2013, Pink Pony sued the City, its Mayor, its City Council members and its City
Clerk, claiming that the sexually oriented business ordinance was unconstitutional and that Pink
Pony was exempt from the ordinance based on its settlement agreement with DeKalb County.
The City responded with a motion asking the court to dismiss the case and to issue a “Judgment
on the Pleadings,” or a ruling in the City’s favor based on its briefs and supporting documents.
The trial court ruled in Brookhaven’s favor, finding that the Code was constitutional and that the
agreement Pink Pony had with DeKalb County violated Georgia law (Official Code of Georgia §
36-10-3), which states that “[o]ne council may not, by an ordinance, bind itself or its successors
so as to prevent free legislation in matters of municipal government.” The court further found
that because Pink Pony was a sexually oriented business barred from serving alcohol, it was not
subject to the regulations of the Alcohol Code and therefore lacked any right to challenge them.
Pink Pony then appealed to the state Supreme Court.
Pink Pony’s attorneys argued that the trial court made a number of errors, but in today’s
opinion, the state Supreme Court has rejected them all. Pink Pony’s main argument is that the
trial court was wrong in concluding the ordinance passed the constitutional standards regarding
free speech laid out in the Georgia Supreme Court’s 1982 ruling in Paramount Pictures Corp. v.
Busbee. That decision posed three questions: “(1) Does the [legislation] further an important
governmental interest? (2) Is that interest unrelated to the suppression of speech? and (3) Is the
legislation an incidental restriction of speech no greater than essential to further the important
governmental interest?”
The opinion states that the ordinance passes all three prongs of the Paramount Pictures
test. “First, it furthers the important government interests of ‘attempting to preserve the quality of
urban life,’ and ‘reducing criminal activity and preventing the deterioration of neighborhoods,”
the opinion says. “These goals, in turn, are not related to any desire to suppress speech.” Finally,
“any incidental restriction of speech caused by the ordinance is no greater than essential to
further these important governmental interests.”
“Pink Pony’s contention that Brookhaven should be bound by the prior agreement
between Pink Pony and DeKalb County does not change this result,” today’s opinion says. “As
found by the trial court, this prior agreement cannot be used to bind the successively
incorporated City of Brookhaven.”
Attorneys for Appellants (Pink Pony): Cory Begner, Alan Begner, Linda Dunlavy
Attorneys for Appellee (Brookhaven): Scott Bergthold, Bryan Dykes
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DETOMA V. THE STATE (S14A0936)
The Supreme Court of Georgia has upheld the conviction and life prison sentence with no
chance for parole given to Gary DeToma for the murder of his 5-year-old son, Gary DeToma, Jr.
In this high-profile DeKalb County case, DeToma sought to withdraw his guilty plea,
which he had entered to avoid the death penalty. The trial court denied his motion to do so and
DeToma then appealed to the Supreme Court, arguing his guilty plea was not “freely and
voluntarily” given.
But in today’s unanimous ruling, written by Presiding Justice P. Harris Hines, the high
court has rejected his arguments, finding that the “record amply supports the trial court’s
determination that DeToma pled guilty ‘knowingly, voluntarily, intelligently and without
coercion.’”
According to briefs filed in the case, Melanie and Gary DeToma were in the midst of a
contentious divorce when on Monday, July 12, 2010 Melanie called Decatur police after Gary
failed to return their two young sons, 5-year-old Gary, Jr., and 4-year-old William, following a
weekend visit. Officers went to Gary’s East Lake Drive apartment but left after getting no
response and finding nothing out of the ordinary. The same morning, a co-worker of Gary’s also
became concerned when he did not show up for work and he too went to the Oakhurst Place
Apartments to check. In response to his knock, 4-year-old William partially opened the chained
door. Concerned that the young child appeared to be alone in the apartment, the co-worker broke
the chain lock and entered. He found Gary, Sr., lying passed out on a bed alongside Gary, Jr.,
who had a plastic bag tied around his head. The co-worker grabbed the little boy and ran outside
where he tried to revive him, but Gary, Jr. was dead.
According to the State, DeToma planned to kill his sons and himself after it became
increasingly likely that he would lose custody of the boys. In the early morning hours of July 12,
he placed a pillow over Gary Jr.’s face. Not satisfied the child was dead after several minutes of
struggle, the father then duct taped a plastic bag over his head. Once the boy stopped breathing,
he also intended to kill “Will,” but passed out due to the sleeping pills and painkillers that he’d
taken. After police arrived, DeToma was transported to the hospital where he was treated for the
drugs he’d ingested, then transported back to the police department where he waived his rights
and confessed. In a video statement to police, he admitted suffocating Gary Jr. and said he
attempted to do the same to Will in retaliation for his wife’s wrongdoing.
On July 20, 2010, a DeKalb County grand jury indicted DeToma with one count of
malice murder and one count of criminal attempt to commit malice murder. On the same day, the
State announced it would seek the death penalty. As part of a negotiated plea agreement,
DeToma pleaded guilty May 15, 2012 to malice murder, the other charge was dead docketed,
and the court sentenced him to life in prison without parole. On June 26, 2012, DeToma filed a
formal motion to withdraw his guilty plea. Following a hearing, the trial court denied his motion
to withdraw his plea, and DeToma then appealed to the state Supreme Court.
In his appeal, DeToma argued he had not wanted to plead guilty and instead wanted the
case to go to trial, even though he recognized he likely would be sentenced to death. At the
hearing on his motion to withdraw his plea, he had described his attorneys as “bullying,”
“intimidating,” and said he had been “forced” to plead guilty.
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Today’s opinion points out that at the hearing, DeToma presented evidence that prior to
entering a guilty plea, “the advice of his attorneys and his family was that he plead guilty to
Gary’s murder and accept the offer of a recommendation of a life sentence without the
possibility of parole, as it was the best deal that could be secured, and that the advice to do so
was often strident.”
“Entering a guilty plea as a result of advice received does not amount to coercion,”
today’s opinion says, quoting the state Supreme Court’s 2012 decision in Walden v. State. “And
a guilty plea certainly may be freely and voluntarily entered, even though family pressure
persuades a defendant to make that decision. In deciding whether to go to trial, DeToma was
faced with a choice among very poor options, and of course, it is not uncommon for a defendant
to regret the choice to plead guilty.”
“But the State’s burden is to show that a guilty plea was entered intelligently and
voluntarily,” the opinion says. Here the record supports that it was, the Court concludes.
Attorney for Appellant (DeToma): Gerard Kleinrock
Attorneys for Appellee (State): Robert James, District Attorney, Anna Cross, Dep. Chief Asst.
D.A., Samuel Olens, Attorney General, Beth Burton, Dep. A.G., Paula Smith, Sr. Asst. A.G.,
Clint Malcolm (Asst. A.T.)
CITY VIEWS AT ROSA BURNEY PARK GP, LLC ET AL. V. MILLER (S13G1852)
AMBLING MANAGEMENT CO., LLC ET AL. V. MILLER (S13G1843)
Under a ruling today by the Supreme Court of Georgia, a young man’s lawsuit may
proceed to trial against an apartment complex, whose security guard – an off-duty Atlanta police
officer – shot him in the face while he was unarmed.
In this high profile case, Tramaine Miller claimed the complex and its management
company were liable for the actions of Officer Reginald Fisher, who shot Miller while he was
visiting his disabled aunt.
According to the facts of the case, City Views owned an apartment complex in Atlanta
called City Views at Rosa Burney Park and contracted with Ambling Management Co. (AMC) to
manage the property. Kelly Bunch, an AMC employee, worked as the on-site property manager
for City Views apartments, located just west of Turner Field in the Mechanicsville neighborhood
near downtown Atlanta. Paul Kennon, an owner of Kennon Properties, which held a stake in City
Views, was aware of criminal activity on the property, which is in a high-crime area, so he
contacted a supervisor at the Atlanta Police Department for recommendations about hiring offduty officers to provide security. The supervisor put Kennon in touch with Bryan French, an
active police officer, and Kennon asked French to provide 12 hours a week of patrol time. After
an unrelated shooting, Kennon asked French to hire additional officers to increase the patrol
hours on the property. French brought on Reginald Fisher, another officer at the Atlanta Police
Department. The off-duty officers were given an orientation to the property by Bunch and
advised that only disabled guests were allowed to park in handicapped parking spaces and that
they should monitor persons entering the high rise apartments to make sure they were supposed
to be there.
On, May 5, 2009, Fisher arrived for his first day working security in his police uniform
and armed with his service weapon around 6 p.m. and patrolled the apartments until about 9
p.m., at which time he sat in his car and ate dinner while watching the apartment buildings.
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While he was sitting there, Tramaine Miller drove into the apartment complex parking lot,
parked in a handicapped parking space and entered the high-rise apartment building. Fisher got
out of his car to check Miller’s vehicle, which did not have a handicapped parking permit, and
then returned to his car. When Miller returned, Fisher again got out of his car and approached
Miller to ask him what he was doing in the building and why he parked in a handicapped spot.
Either Miller ignored or didn’t hear Fisher, because he got into his car, locked the doors, and
retrieved something from the center console and put it in his mouth. Fisher, believing it was
crack cocaine Miller had put in his mouth, knocked on the window and ordered Miller to stop,
but Miller put the car in reverse and started to back out of his space. Fisher attempted to block
Miller with his body, continuing his orders to stop. Ultimately, when Miller allegedly did not
heed his warnings, Fisher broke Miller’s window with his baton, and as Miller reached for what
Fisher believed was a weapon, Fisher fired his service weapon, hitting Miller in the face.
Authorities later determined that Miller, who was unarmed and had no drugs, had been at the
apartments to assist his paraplegic aunt, who had called him and asked him to come help with her
medications.
Miller sued City Views, AMC, Bunch, French and Fisher for damages, seeking to impose
individual liability on Fisher for the wrongful shooting, and “vicarious liability” on City Views,
AMC, and Bunch for Fisher’s alleged assault, battery, intentional infliction of emotional distress,
false imprisonment and invasion of privacy. Vicarious liability is the liability an employer or
supervisor bears for the bad conduct of a subordinate. In response, City Views, AMC and Bunch
filed a motion for “summary judgment,” asking the Clayton County court to rule in their favor.
(A judge grants summary judgment after determining there is no need for a jury trial because the
facts of a case are undisputed and the law falls squarely on the side of one of the parties.)
Following a hearing, the trial court granted the motion and ruled in favor of City Views
and the other defendants regarding Miller’s claims of vicarious liability and punitive damages.
Miller then appealed to the Georgia Court of Appeals, arguing that the trial court erred by ruling
that summary judgment was proper as to Miller’s vicarious liability theory of recovery. The
Court of Appeals partially reversed the trial court’s decision and said a jury should decide
whether City Views and AMC were liable for the off-duty officer’s shooting of Miller. The
Court of Appeals concluded there was some evidence that Fisher was performing duties directed
by City Views and concluded that summary judgment was therefore inappropriate. City Views
and AMC then appealed to the state Supreme Court, arguing the Court of Appeals erred by
focusing on Fisher’s conduct and intent when he first approached Miller about parking in a
handicapped spot rather than focusing its analysis on Fisher’s conduct and intent at the time he
tried to stop Miller’s car and wound up shooting him.
“Despite the fact that the Court of Appeals’ analysis was erroneously limited in focus and
scope, its ultimate decision reversing the trial court’s grant of summary judgment to City Views
and AMC must be upheld,” Justice Robert Benham writes in today’s opinion. As the Georgia
Supreme Court has stated in previous rulings, “whether a special officer is acting in the capacity
as a servant, acting in the capacity as a public officer, or acting in a dual capacity is generally a
question for the jury to decide.”
City Views and AMC argue the evidence is undisputed because Fisher has stated that he
intended to arrest Miller for having illegal drugs at the time he broke Miller’s car window and
that he shot Miller because he believed he saw Miller reach for a weapon. “Officer Fisher’s
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credibility on this issue, however, is disputed by Miller’s testimony and other evidence that
Miller had no drugs or weapons and complied with Officer Fisher’s commands,” the opinion
says. And “the credibility of a witness is a question for the jury, not the appellate court.”
“Even if the jury ultimately finds Fisher to be credible, there is some evidence that City
Views directed patrol officers to make arrests in order to curb illegal activity on the property.
Such evidence is for the jury to consider along with the other evidence to make a determination
as to the capacity in which Officer Fisher was acting at the time the causes of action arose.”
Attorneys for Appellant (City Views, AMC): Bruce Taylor, Jr., Emily Shuman, John Hall, Jr.,
James Standard, Jr., Duane Cochenour
Attorneys for Appellee (Miller): Leighton Moore, Darren Summerville, Robert Bozeman,
Mawuli Davis, Hezekiah Sistrunk, Jr., Jane Sams, Shean Williams, M. Gino Brogdon, Sr.
FREEMAN V. THE STATE (S14A0880)
A man convicted of murder for his role in killing a man during a dispute over the price of
illegal drugs is entitled to a new trial, under a decision today by the Georgia Supreme Court.
In a unanimous ruling, Presiding Justice P. Harris Hines writes that a Richmond
County Superior Court judge improperly commented on the evidence in front of the jury, and as
a result, a new trial is necessary.
According to briefs filed in the case, on Sept. 12, 2006, Eddie Lee Freeman, who was
armed with a .38 caliber revolver, went with two other men to a motel room at the Red Carpet
Inn in Augusta to buy the illegal drug, Ecstasy. Terrance Devaris Moore was in the motel room
with at least two other men. An argument ensued over the price of the Ecstasy pills and when
Moore locked the door to the motel room and placed his hand in his pocket, as if to remove a
handgun, shooting broke out and the lights went out. Freeman fired his revolver several times
and was himself struck twice in his legs. He was subsequently taken to the hospital. Moore was
also struck twice by two bullets and died en route to the hospital.
In June 2008, a Richmond County jury found Freeman guilty of malice murder and a
gun possession charge and he was sentenced to life plus five years in prison. He then appealed to
the state Supreme Court.
The issue in this appeal stems from three oral statements Freeman made to investigators –
one in the hospital emergency room shortly after the shooting; one at the sheriff’s office several
hours later; and the third two days later. The only time Freeman was read his Miranda rights (the
right to remain silent, etc.) was before he gave the third statement. Prior to trial, Freeman’s
attorney argued that evidence contained in the first two statements should be excluded because
Freeman believed he was in custody at the time and therefore, investigators were required to read
him his Miranda rights before questioning him.
At trial, when State prosecutors sought to introduce a recording of the first interview,
Freeman’s attorney objected, and the State responded that the trial judge had already determined
that “the statement was freely and voluntarily given and as well that no Miranda warnings were
necessary as the defendant was not a suspect at that time.” The trial judge overruled the
objection. When the State sought to introduce a recording of the second interview, again
Freeman’s attorney objected and again the prosecutor responded. The judge then said: “All right.
I find that the statement was freely and voluntarily given as previously ruled. I’ll admit it over
the objection of the defense.” On appeal, Freeman’s attorney argued that the judge’s comment
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was an improper comment by the court in violation of Official Code of Georgia § 17-8-57.
“This is correct,” today’s opinion says.
The statute says: “It is error for any judge in any criminal case, during its progress or in
his charge to the jury, to express or intimate his opinion as to what has or has not been proved or
as to the guilt of the accused.”
Once a judge has determined outside the presence of the jury that a defendant’s statement
was voluntary, that statement “is admitted for the jury to make the ultimate determination as to
its voluntariness…,” the opinion says.
In today’s opinion, the Court finds that the “evidence was sufficient to prove beyond a
reasonable doubt that Freeman was guilty of the crimes of which he was convicted.” However,
due to the judge’s improper comment on the evidence, “a new trial is necessary.” The Court has
rejected Freeman’s other arguments.
Attorneys for Appellant (Freeman): Katherine Mason, Circuit Public Defender, H. Lee
Prescott, Jr., Asst. P.D.
Attorneys for Appellee (State): Rebecca Wright, District Attorney, Madonna Little, Asst. D.A.,
Samuel Olens, Attorney General, Beth Burton, Dep. A.G., Paula Smith, Sr. Asst. A.G., Meghan
Hill, Asst. A.G.
THE STATE V. ABERNATHY (S14A0855)
The Supreme Court of Georgia has reversed a White County judge’s decision and ruled
that a man who was convicted of murder and sentenced to life in prison does not deserve a new
trial.
In today’s unanimous opinion, written by Justice Harold Melton, the Court has
determined that new evidence showing that a state’s witness told one story to his attorney and a
different story later at trial speaks to the witness’s credibility, but “is insufficient by itself to
warrant the granting of an extraordinary motion for new trial.”
According to the facts of the case, in January 2008, Samuel Mitchell Abernathy and John
Geren went to the Southside Bar in Helen, Georgia to play pool. Abernathy, who had been
drinking several hours, had previously been banned from the premises, and shortly after they
arrived, the bartender told them to leave. While Abernathy was arguing with her, Darren Ramey
and his friend, Luther Mize, approached and reiterated the bartender’s order that Abernathy and
Geren leave. Geren turned to go, urging Abernathy to go with him, but Abernathy suggested to
Ramey and Mize that they “take this out in the parking lot.” As Ramey followed Abernathy
outside, Abernathy turned around, withdrew a knife from his pocket, and stabbed Ramey in the
chest. Abernathy and Geren then ran to their truck and sped off but were apprehended a short
time later. Ramey later died from his wound, which was inflicted with such force that, according
to the medical examiner, the victim’s sternum was bisected. When arrested shortly after,
Abernathy said he’d been jumped by Ramey and had stabbed him in self-defense. Both
Abernathy and Geren were charged with murder, although the State eventually dropped charges
against Geren who testified for the State against Abernathy.
Following a jury trial, in November 2008, Abernathy was convicted of malice murder
and sentenced to life in prison. He immediately filed a Motion for New Trial and in April 2010,
added an “Extraordinary Motion” for New Trial, alleging he had discovered new evidence since
his conviction. The trial court granted his motion for new trial on the sole ground that his public
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defender had a conflict of interest in representing him because the person arrested with him and
who testified against him, Geren, was represented by the same public defender’s office. In July
2011, however, the Supreme Court of Georgia unanimously reversed the White County judge’s
decision granting Abernathy a new trial. “While we agree with the trial court that Abernathy and
Geren’s interests in the case were adverse to one another’s and would thus…give rise to a
conflict, we disagree with the conclusion that Abernathy need not show any actual harm to prove
a Sixth Amendment violation in these circumstances,” the high court found. However, the
Supreme Court sent the case back to the trial court to consider Abernathy’s Extraordinary
Motion for New Trial. Such a motion allows the defendant to challenge his conviction based on
newly discovered evidence. Abernathy claimed that Geren’s statements to his attorney were
inconsistent with later statements he made at trial and in a pre-trial interview with the District
Attorney’s office. At trial, and when interviewed by prosecutors before trial, Geren stated that
Ramey had not said anything to Abernathy before he was stabbed. But according to notes the
State was able to obtain from Geren’s interview with his first attorney, the attorney wrote down
that Geren had told him: “Ramey said as they were reaching the parking lot, I’m going to kill
both of you faggots.” Abernathy claimed the inconsistency in Geren’s statements was significant
as Abernathy had argued self-defense at his trial. The trial judge agreed, and in June 2013,
granted Abernathy’s Extraordinary Motion for New Trial. The State again appealed to the
Georgia Supreme Court, arguing that the discovery of Geren’s pre-trial statement to his attorney
was not new evidence sufficient to authorize a new trial.
In today’s opinion, the state Supreme Court agrees. “Abernathy cannot show that his new
evidence does anything more than impeach the trial testimony of Geren, which is insufficient by
itself to warrant the granting of an extraordinary motion for new trial,” the opinion says. “The
fact that Geren said one thing to his attorney but then told a different story to police and at trial
goes strictly to Geren’s credibility,” and that “is an insufficient basis for granting an
extraordinary motion for new trial.”
Attorneys for Appellant (State): Jeffrey Langley, District Attorney, Jeremy Clough, Sr. Asst.
D.A.
Attorney for Appellee (Abernathy): Douglas McDonald, Sr.
UNIFIED GOVERNMENT OF ATHENS-CLARKE COUNTY V. STILES
APARTMENTS, INC. (S14A0932)
The government of Athens-Clarke County has lost its appeal of a Clarke County court
ruling that certain parking spaces in the busy Five Points business district are reserved for a
private apartment complex and not for the general public. The government had appealed the
ruling to the Georgia Supreme Court, calling it “devastating to the public’s interests.”
But in today’s majority opinion, written by Justice Robert Benham, the high court finds
that according to an agreement signed 60 years ago by the local government and apartment
complex, “the parties never intended that the parking area be kept open for the public.”
In 1954, Stiles Apartments, Inc. and the City of Athens entered into an agreement to
create a drive-in parking area and new sidewalk on the western side of South Lumpkin Street in
Athens. The purpose was to relieve traffic congestion due to cars parking parallel to the raised
sidewalk along the street. With Stiles Apartments paying all construction costs, the public
sidewalk was relocated onto its private property, and a parking lot was created that contained 22
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spaces. About two thirds of each space lies on land owned by Stiles Apartments and the other
third lies on what was the old public sidewalk. The agreement provides that the parking spaces
and sidewalk will be maintained by the Unified Government of Athens-Clarke County. In 2003,
Stiles’ commercial tenants, including the now-closed Five Points Deli, began complaining about
non-customers using the parking area, with some leaving their cars for days. Stiles Apartments
attempted to tow the vehicles, but was forced to stop when its president, Barry Stiles, was
threatened with arrest by the county attorney, William Berryman, according to briefs filed in the
case. Berryman took the position that the parking area was created for use by the public, not just
Stiles’ tenants, and therefore Stiles Apartments did not control who could park there.
After losing several tenants due in part to the parking problems, in 2010, Stiles sued the
local government, asserting ownership over the parking area and asking the court to grant an
“interlocutory” – or temporary – injunction and prohibit the city and county government from
exercising any control over the spaces while the case was being litigated. Athens-Clarke County
counterclaimed and following a hearing, the trial court issued an order in May 2011granting the
requested injunction against the government’s attempt to assert control over the parking area.
Athens-Clark County then appealed to the state Supreme Court, which on March 19, 2012
upheld the temporary injunction. The question that still needed to be answered was whether the
parties to the 1954 agreement intended to reserve public property rights in the land owned by
Stiles Apartments. Following a January 2013 trial, on July 31, 2013, the trial court entered a final
order, concluding that under the agreement, the parties did not intend for the parking area to be
available to the public. The trial court noted it would be unlikely for a landowner to give up
control over property for which it paid taxes. Once again, Athens-Clarke County appealed to the
state Supreme Court.
In today’s opinion, the high court points out that a “plain reading” of the 1954 agreement
“makes it clear that the parties’ ultimate intent was to relieve traffic congestion on South
Lumpkin Street.” Creation of the parking area and relocation of the sidewalk was the agreedupon means to accomplish this. “Therefore, unlike [Athens-Clarke County] urges, the creation of
a dedicated parking area for the general public was not the purpose of the agreement.” The local
government contends that the trial court erred in failing to find that the 1954 agreement
constituted an unlawful dedication of public property to a purely private interest. But the
agreement “served the interests of the public by relieving the traffic congestion on South
Lumpkin Street and by providing a new sidewalk on which the public could continue to traverse
alongside the street,” the opinion says. “As such…there was no abandonment of the public rightof-way for a purely private use.” The government also argued that the agreement is illegal
because it violates the prohibition under state law which says that one council cannot “bind itself
or its successors so as to prevent free legislation in matters of municipal government.” “This
Court has held, however, that the prohibition generally applies to a municipality’s government
functions and not its proprietary functions,” the opinion states. And this Court has also held that,
“the construction and maintenance of a street in a safe condition for travel are
corporate/proprietary functions not subject to the prohibition against binding successor
councils.” Therefore, given the purpose of the agreement to relieve traffic congestion on a public
street, it “was not subject to the prohibition against binding successor councils,” the Supreme
Court concludes.
Attorney for Appellant (Athens): Thomas Mitchell
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Attorneys for Appellee (Stiles): Regina Quick, Barry Fitzpatrick
LEVIN V. MORALES, WARDEN (S14A0691)
The Supreme Court of Georgia has thrown out a man’s life prison sentence and reversed
his conviction for kidnapping his ex-wife during a hostage standoff in Douglas County.
Under today’s unanimous ruling, written by Justice Robert Benham, the Court finds
that the State failed to prove “asportation,” which is the degree and type of movement of the
victim that is required to prove the crime of kidnapping.
According to briefs filed in the case, Gregory Alan Levin, who was jailed several months
for defying a court order related to his divorce, became convinced that corruption pervaded the
court system and the county hospital where his ex-wife worked. Allegedly to draw attention to
this corruption, on Aug. 13, 1993, Levin broke into the duplex apartment of his remarried and
pregnant ex-wife’s home where Sandra and Tom Bielawski lived with her 12-year-old daughter.
The record shows that Sandra Bielawski was asleep in the rear master bedroom when her
daughter ran to her mother’s room after hearing Levin banging on the back door of the residence.
While Bielawski called 911, her daughter locked the bedroom door. After battering in the back
door with a sledgehammer, Levin punched through the bedroom door holding a gun while
Bielawski was still on the line with 911. Levin took the phone from her and hung up. After the
911 operator called back, Levin stomped the phone, disabling it. He told the girl to leave the
house, which she did. Levin then pointed the gun at Bielawski’s head, told her it was “over with”
and she had “done it now,” and he began slapping her. He picked up a mirror and hit her on the
back of the head, jumped on the bed, stomping and kicking her, and hit her in the head with the
gun. Police outside used a public address system, instructing Levin to call them by phone.
Having smashed the phone in the bedroom, Levin then dragged Bielawski into the living room
with the gun, retrieved the phone, and dragged her back to the master bedroom. He left her there
while he returned to the front door, where he barricaded the entrance by pushing a TV against it.
He barricaded the back door with a table and chairs. According to prosecutors, Levin destroyed
as many things as possible with a hammer, particularly those things belonging to his ex-wife’s
husband, according to the State. Using the gun, he forced her to move from room to room, at one
point dragging her into the kitchen where he slammed her against the refrigerator. He threatened
her life and periodically beat her.
After a 12-hour standoff, the SWAT team broke in through the back door and grabbed
Bielawski after breaking the headlock Levin had on her by hitting him twice in the head.
Following a June 1994 trial, Levin was found guilty but mentally ill of kidnapping with bodily
injury, aggravated assault with a deadly weapon, aggravated battery, burglary, possession of a
firearm, and harassing phone calls. He was sentenced to life in prison on the kidnapping charge
and a consecutive term of 48 years for the other crimes. On appeal, the Georgia Court of Appeals
threw out the aggravated assault and firearm possession convictions on the ground that the jury
instructions had permitted the jury to convict Levin of both crimes in a manner not alleged in the
indictment. It also threw out the misdemeanor conviction for harassing phone calls, finding it
was error to permit the jury to consider a verdict of guilty but mentally ill for this misdemeanor
offense. However, the appellate court affirmed the remaining convictions and sentences.
In January 2012, Levin, representing himself “pro se,” filed a petition for a “writ of
habeas corpus.” Habeas corpus is a civil proceeding that allows already convicted prisoners to
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challenge their conviction on constitutional grounds in the county where they’re incarcerated.
They generally file the action against the prison warden, who in this case was Jose Morales. In
his petition, Levin challenged his kidnapping with bodily injury conviction in light of the
Georgia Supreme Court’s intervening decision in 2008 in Garza v. State. Under Garza, the high
court overruled prior law regarding the need for only slight movement to establish the
“asportation” element required of kidnapping. The decision created four factors to consider in
determining whether the asportation element was met: the duration of the movement, whether it
occurred during a separate offense, whether it was an inherent part of that separate offense, and
whether the movement itself posed a significant danger to the victim independent of the danger
caused by the separate offense. Assessment of these four factors, the Court said in Garza, will
assist prosecutors and the courts in determining “whether the movement in question is in the
nature of the evil the kidnapping statute was originally intended to address, i.e., movement
serving to substantially isolate the victim from protection or rescue – or merely a ‘criminally
insignificant circumstance’ attendant to some other crime.” The habeas court ruled against Levin,
finding that because the movement of the victim, “although of minimal duration,” was not an
inherent part of a separate offense and created an additional danger to the victim, Levin’s
conviction for kidnapping satisfied the Garza standard.
But in today’s opinion, the high court disagrees, finding that “based on the facts of this
case, there was insufficient evidence of asportation per Garza.”
“As an initial matter, it is undisputed that the movement in this case was of a short
duration,” the opinion says. Regardless of whether the second and third prongs of the Garza test
were met, “the movement in this case was not in the nature of the evil the kidnapping statute was
designed to protect against as per prong four of the test. Specifically, appellant’s movement of
the victim did not allow him to exercise more control over her, did not place her in more danger,
and did not isolate her from protection or rescue.”
“Appellant’s conviction for kidnapping with bodily injury must be reversed and the life
sentence vacated,” today’s opinion says.
In a concurrence, Justice Keith Blackwell agrees with the opinion, but writes to point
out that at some point, this Court may need to resolve the question of when a retrial in a case
such as this would constitute double jeopardy and be prohibited. “When the State tried Levin for
kidnapping – fourteen years before our decision in Garza – the prosecuting attorneys, of course,
had no reason to think that anything more than proof of a slight movement would be necessary to
prove asportation,” he writes. “When the State can know what proof the law requires, but fails to
offer such proof at trial, the State ought not have another chance to convict the accused. But
when the State relies on a longstanding and settled understanding of the law, and it offers
evidence sufficient to carry its burden consistent with that understanding – only to have that
understanding suddenly upended years later by an appellate court undertaking a course
correction – it is not so clear that the State should be denied a second chance.”
“I can find no precedent in Georgia, however, that speaks to this question, and for us, the
answer for now is uncertain,” the concurrence says. “I write separately only to note that the
question appears under Georgia law to be an open one.”
Attorney for Appellant (Levin): Gregory Alan Levin, pro se
Attorneys for Appellee (State): Samuel Olens, Attorney General, Beth Burton, Dep. A.G.,
Paula Smith, Sr. Asst. A.G.
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HEISKELL, COMMISSIONER ET AL. V. ROBERTS (S14A0779)
The Georgia Supreme Court has reversed a lower court’s decision and ruled that Walker
County and its sole commissioner do not need to pay nearly $80,000 to a former state court
judge who claimed they had illegally reduced his salary during his term of office.
In today’s unanimous opinion, Justice David Nahmias writes for the high court that the
trial court erred in concluding that Bruce E. Roberts was entitled to the same compensation his
predecessor received because he had been appointed to the previous judge’s “unexpired term.”
“Unlike persons appointed to fill vacancies in most other public offices, appointees to
state, superior, and appellate judgeships do not serve out the ‘unexpired term’ of their
predecessors,” the opinion says.
According to the facts of the case, in 2010, Judge C. Donald Peppers, Sr. was reelected to
the State Court of Walker County for a term of office from Jan. 1, 2011 through Dec. 31, 2014.
Peppers decided to retire after the term began, effective June 30, 2011. He had been a judge for
26 years. On Oct. 3, 2011, the governor appointed Roberts to “fill the vacancy created with the
resignation of the Honorable C. Donald Peppers.” On Sept. 30, 2011, prior to taking office,
Roberts met with Bebe Heiskell, the sole Commissioner of Walker County, to discuss his salary.
Heiskell explained that $60,000 was the minimum salary set by local statute but she didn’t want
him to make less than he was presently earning. She asked Roberts what he currently made; he
said $94,000; and she said she would start him at $100,000. He asked for $110,000 but she said
budget constraints would prevent that. Roberts claims he never agreed to this salary and objected
to it several times, recognizing that Peppers had earned $172,102.80. Roberts was sworn into
office on Oct. 3, 2011 and had to run for election in the nonpartisan primary in July 2012, but he
lost, meaning that his term of office would end Dec. 31, 2012.
Following his defeat, Roberts sued Heiskell and Walker County, seeking a “writ of
mandamus” to force the County to pay him $89,881.88 for the difference between what it would
have paid Peppers and what it had paid him. He argued that under Article VI of the Georgia
Constitution: “An incumbent’s salary, allowance, or supplement shall not be decreased during
the incumbent’s term of office.” Roberts also asked the court to award him attorney’s fees so he
could be reimbursed for his legal costs. Roberts filed a motion for “summary judgment,” which a
court grants only after deciding a jury trial is unnecessary because the facts of the case are
undisputed and the law falls squarely on the side of one party or the other. In response to
Roberts’ lawsuit, Heiskell and the County countersued, claiming several things, including breach
of contract, intentional infliction of emotional distress, and attorney’s fees and costs. After a
hearing, the trial judge ruled in favor of Roberts, granting his petition for mandamus and finding
he was entitled to $78,878.55 as “salary due and unpaid,” and further finding him entitled to his
legal costs in defending himself against the County’s counterclaims. The judge dismissed the
counterclaims, stating that each was “so clearly barred by judicial immunity that each is
frivolous and each possesses such a complete absence of any justiciable issue of fact or law that
it could not be reasonably believed that a court would accept the asserted claim or defense.”
Heiskell and the County then appealed to the state Supreme Court.
In today’s opinion, the high court concludes that “the trial court erred in granting
summary judgment on the mandamus claim to Roberts instead of to [Heiskell and Walker
County], in dismissing [Heiskell’s and Walker County’s] counterclaim for reimbursement, and in
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granting attorney fees to Roberts based on these erroneous rulings.” Therefore, the high court has
reversed those parts of the trial court’s ruling, but it has upheld the dismissal of other
counterclaims made by Heiskell and Walker County. “Accordingly, we affirm the trial court’s
judgment in part and reverse it in part, and we remand the case for the entry of a more limited
attorney fees award and to allow [Heiskell and Walker County] the opportunity to pursue their
counterclaim for reimbursement.”
The opinion explains that, “[l]ike the trial court, Roberts relies on cases involving the
salaries of magistrate judges who were appointed to fill vacancies. This reliance is misplaced.”
Under the 1983 Georgia Constitution, judges appointed to fill vacancies on appellate, superior
and state courts “do not serve out the ‘unexpired term’ of their predecessors.” As the Georgia
Supreme Court made clear in its 2004 decision in Perdue v. Palmour, an appointee to the state
court “is appointed to a new term which will extend to the next general election which is more
than six months from the date of the appointment.”
“Thus, there is no longer such a thing as an appointment to serve out the ‘unexpired
term’ of an appellate, superior or state court judge,” the opinion says.
“In short, Roberts did not become the incumbent serving Judge Peppers’ term of office;
he served his own 15-month-long term. And it is undisputed that Roberts was paid the same
salary for the entire 15 months. Thus, there was no violation of the [Georgia Constitution]
provision that prevents an incumbent judge’s salary from being decreased during his term of
office, and we therefore reverse the trial court’s grant of summary judgment to Roberts and its
denial of summary judgment to [Heiskell and Walker County] on the mandamus claim.”
However, the Court has upheld the trial court’s dismissal of the County’s counterclaims
against Roberts for breach of contract, “intentional infliction of monetary damages,” and
intentional infliction of emotional distress. Those claims were based on Roberts’ dismissal of
about 60 traffic cases, and the “trial court correctly concluded that Roberts was exercising a
judicial function when he dismissed the traffic cases,” because judges are “immune from liability
in civil actions for acts performed in their judicial capacity.”
But judicial immunity did not bar the County’s counterclaim to recover alleged salary
overpayments to Roberts because “receiving an incorrectly calculated paycheck plainly is not a
judicial function,” the opinion says.
“It follows that the court erred in awarding Roberts attorney fees incurred in defending
against that counterclaim, and we therefore reverse the award made…to the extent that it was
based on the reimbursement counterclaim. On remand, the trial court should enter an award
based solely on Roberts’ reasonable attorney fees and litigation expenses incurred in defending
against the other three counterclaims.”
Attorneys for Appellants (County): William David Cunningham, Benjamin Bradford, Donald
Oliver
Attorney for Appellee (Roberts): Archibald Farrar, Jr.
BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GA V. MYERS (S14G0431)
In a 6-to-1 decision, the Supreme Court of Georgia has reversed a Georgia Court of
Appeals decision and ruled that a young woman’s lawsuit against the Georgia Board of Regents
must be dismissed because she failed to include in her formal notice the amount of her loss.
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In today’s majority decision, written by Justice Carol Hunstein, the high court has ruled
that the young woman’s notice did not comply with state law “because it failed to state the
amount of the loss claimed to the extent of the claimant’s knowledge and belief as was
practicable under the circumstances. Accordingly, we reverse” the Court of Appeals ruling.
At issue in this case is something called an “ante litem notice.” Before someone may sue
another, he or she is required to notify in writing the person or entity that it is about to be sued.
On June 28, 2010, Kimberly A. Myers arrived for class at Dalton State College and allegedly
stepped on the edge of an unrepaired pothole in the parking lot and was injured. She received
emergency medical treatment that day, had follow-up orthopedic doctor visits, and began
physical therapy. On Oct. 11, 2010, Myers sent an ante litem notice to the Georgia Department
of Administrative Services, stating she intended to sue the Board of Regents for negligence
based on the allegedly unsafe condition of the parking lot that led to her fractured left ankle and
torn tendons. Under a provision of the Georgia Tort Claims Act (Official Code of Georgia § 5021-26), the State government may not be sued in a civil action without first being given notice of
the claim. Under the statute, the notice must be given “within 12 months of the date the loss was
discovered.” That notice, the statute says, “shall state, to the extent of the claimant’s knowledge
and belief and as may be practicable under the circumstances,” six pieces of information,
including the name of the state government entity being sued, the time and place of the
occurrence, the nature of the loss suffered, and “the amount of the loss claimed.” In her ante
litem notice, Myers’ attorney provided details of what had happened to her and stated: “The
amount of Ms. Myers’ loss is yet to be determined as she is still incurring medical bills and does
not yet know the full extent of her injury.” The question in this case is whether the language in
the ante litem notice was a sufficient statement of the amount of loss claimed.
In December 2010, the Department of Administrative Services, which is the only state
agency with the authority to settle damage claims, requested copies of Myers’ “medical bills,
reports and verification of any wage loss.” Myers did not respond. On Aug. 2, 2011, the
department sent a follow-up letter requesting the same documentation and a demand for
settlement within 30 days. On April 23, 2012, Myers’ attorney sent a demand seeking $110,000
to settle her claims. The department responded with a settlement offer of $10,128.24. The
following month, Myers sued the Board of Regents in Whitfield County Superior Court,
seeking damages for past and future medical expenses, pain and suffering and mental anguish, as
well as loss of earning capacity. In response, the Board filed a motion asking the trial court to
dismiss her lawsuit because her ante litem notice had failed to include “the amount of the loss
claimed” in violation of Georgia law. The trial court granted the Board’s motion and dismissed
her case. But on appeal, the Court of Appeals reversed the decision, finding that Myers’ “notice
stated the amount of loss she claimed to the best of her knowledge as was practicable under the
circumstances.” The Board of Regents then appealed to the state Supreme Court.
In today’s opinion, the majority points out that ante litem requirements “ensure that the
State receives adequate notice of the claim to facilitate settlement before the filing of a lawsuit,”
and, “[a]s we have recognized, strict compliance with these ante litem notice requirements is
necessary, and substantial compliance is insufficient.”
“This case turns on the meaning of the statutory language requiring that a claimant must
state the ‘amount of the loss claimed’ ‘to the extent of the claimant’s knowledge and belief and
as may be practicable under the circumstances,’” the opinion says. Although the ante litem notice
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did state that Myers was still incurring medical bills and she did not yet know the full extent of
her injury, “she had actually incurred medical expenses at the time she gave notice. Thus, the
extent of her knowledge and belief at the time of notice included, at a minimum, the medical
expenses she had incurred thus far. As the trial court correctly recognized, Myers ‘failed entirely
to comply with a requirement despite having knowledge.’”
As a result, the majority opinion states: “We hold that Myers’ notice failed to strictly
comply with this ante litem notice requirement because it did not state any amount of loss
whatsoever.”
In the dissent, Justice Robert Benham writes that he agrees with the Court of Appeals
that Myers’ notice was adequate and the dismissal of her lawsuit was improper. Her ante litem
notice “was served at a time before she knew or could have known of the full extent of her
losses,” the dissent says. “Nevertheless, her ante litem notice described the physical injury she
sustained, gave notice that her loss had yet to be determined because she was still incurring
medical bills, and stated that she did not yet know the full extent of her injury. In my opinion,
then, Myers’s notice met the requirement of [Georgia statutory law] that a notice of claim state
the amount of loss claimed ‘to the extent of the claimant’s knowledge and belief and as may be
practicable under the circumstances.’”
Attorneys for Appellant (State): Samuel Olens, Attorney General, Kathleen Pacious, Dep.
A.G., Loretta Pinkston, Sr. Asst. A.G., Kirsten Daughdril, Sr. Asst. A.G., Ron Boyter, Asst. A.G.
Attorneys for Appellee (Myers): Brian Wright, Barton Solomon, Jay McCurdy
******************************************************************************
IN OTHER MURDER CASES, the Supreme Court of Georgia has upheld the convictions and
life prison sentences for:
* Rickey Brown (Fulton Co.)
* Mecco McKinney (Fulton Co.)
* Alton Hooks (Fulton Co.)
* Gregory Dwayne Miller (Bibb Co.)
* Geoffrey Len Prince (Richmond Co.)
* Phillip Scruggs (Clarke Co.)
BROWN V. THE STATE (S14A0800)
MCKINNEY V. THE STATE (S14A0801)
(Brown and McKinney were convicted of murder
for their participation in a 2004 gun battle in which
4-year-old Sedriana Rosser was shot and killed
while playing outside at the Jonesboro South
apartments.)
HOOKS V. THE STATE (S14A0997)
MILLER V. THE STATE (S14A0597)
PRINCE V. THE STATE (S14A0749)
SCRUGGS V. THE STATE (S14A1422)
******************************************************************************
IN DISCIPLINARY MATTERS, the Georgia Supreme Court has disbarred the following
attorneys:
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* Clark Jones-Lewis
IN THE MATTER OF: CLARK JONES-LEWIS (S14Y1759)
* Robert Anthony McDonald IN THE MATTER OF: ROBERT ANTHONY MCDONALD
(S14Y1413, S14Y1414, S14Y1415, S14Y1416)
* Ted Webster Wooten, III
IN THE MATTER OF: TED WEBSTER WOOTEN, III
(S14Y1518, S14Y1519)
The Court has accepted petitions for voluntary surrender of license – tantamount to disbarment
– from attorneys:
* Gregory Bartko
IN THE MATTER OF: GREGORY BARTKO (S15Y0004)
* Ashley A. Davis
IN THE MATTER OF: ASHLEY A. DAVIS (S14Y1321)
* Lauren Gordon Garner
IN THE MATTER OF: LAUREN GORDON GARNER
(S14Y1476)
* Michael Shankle
IN THE MATTER OF: MICHAEL SHANKLE (S14Y1454)
The Court has ordered the 3-year suspension with conditions of attorney:
* Laxavier Reddick-Hood
IN THE MATTER OF: LAXAVIER REDDICK-HOOD
(S14Y0692) (Justice Robert Benham has written a dissent, joined by
Justice Harold Melton, saying the discipline is “too harsh” and a 2year suspension would be more appropriate.)
The Court has accepted a petition for voluntary discipline and ordered the 12-month suspension
of attorney:
* William S. Vincent
IN THE MATTER OF: WILLIAM S. VINCENT (S13Y1747)
The Court has accepted a petition for voluntary discipline and ordered the public reprimand of
attorney:
* David P. Hartin
IN THE MATTER OF: DAVID P. HARTIN (S14Y1723)
The Court has rejected as “inadequate” a petition for voluntary discipline recommending a one
or two-year suspension of attorney:
* Rand J. Csehy
IN THE MATTER OF: RAND J. CSEHY (S14Y1458)
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The Court has ordered the reinstatement to practice law in Georgia of attorney:
* Michael Rory Proctor
IN THE MATTER OF: MICHAEL RORY PROCTOR
(S14Y1645)
17