Mohamed v. State, 276 Ga. 706

583 S.E.2d 9 (2003) · Supreme Court of Georgia · June 30, 2003 · No. S03A0083

Summary

The Supreme Court of Georgia held that OCGA § 16-9-31(d), which made possession of two financial transaction cards prima facie evidence of theft, created an unconstitutional mandatory presumption that impermissibly shifted the burden of proof. The court severed subsection (d), reversed Mohamed's convictions, and held that he could be retried because the remaining evidence was legally sufficient. The court also upheld the Terry pat-down and related seizure of the cards, rejected the cross-examination claim, and disapproved the trial court's unanimity instruction.

Holdings

  1. OCGA § 16-9-31(d) created an unconstitutional mandatory presumption of guilt because it allowed possession of two qualifying financial transaction cards to establish the offense even though the offense contained additional elements.
  2. The unconstitutional instruction was not harmless because Mohamed disputed knowing withholding of the cards and the evidence of guilt was not overwhelming.
  3. OCGA § 16-9-31(d) was severable from the remainder of the financial transaction card theft statute, which remained effective.
  4. The evidence, even without the invalid presumption, was sufficient for a rational trier of fact to find Mohamed guilty, so he could be retried.
  5. The officer's exterior pat-down was constitutionally permissible, and removal of the cards from Mohamed's pocket was lawful under the circumstances.
  6. The trial court properly curtailed questions asking the officer to determine whether the search satisfied legal requirements because that legal determination was for the court, not the jury.
  7. The trial court did not commit harmful error by failing to give Mohamed's requested instructions in the exact language requested because the principle was adequately covered by the charge as a whole.
  8. The trial court should not have instructed the jury on the consequences of failing to reach unanimity because that instruction had been disapproved.

Questions Presented

  1. Whether OCGA § 16-9-31(d), which made possession of two or more specified financial transaction cards prima-facie evidence of financial transaction card theft, impermissibly shifted the burden of proof to the defendant.
  2. Whether instructing the jury under OCGA § 16-9-31(d) was harmless error.
  3. Whether the officer's pat-down and removal of the credit cards violated the Fourth Amendment.
  4. Whether the trial court improperly limited cross-examination of the officer concerning the legality of the search.
  5. Whether the trial court erred by refusing requested instructions concerning the State's burden to prove deliberate withholding of the cards.
  6. Whether the trial court erred by instructing the jury on the consequences of a failure to reach unanimity.

Disposition

reversed

Cases Cited (15)

  • Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979)(followed)
  • Isaacs v. State, 259 Ga. 717, 734-735(35)(b), 386 S.E.2d 316 (1989)(followed)
  • Williams v. Kemp, 255 Ga. 380, 383, 338 S.E.2d 669 (1986)(followed)
  • Bridges v. State, 268 Ga. 700, 706(2)(f), 492 S.E.2d 877 (1997)(applied)
  • Wilson v. State, 212 Ga. App. 325, 326(2), 441 S.E.2d 808 (1994)(overruled)
  • Nixon v. State, 256 Ga. 261, 264(3), 347 S.E.2d 592 (1986)(followed)
  • Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)(followed)
  • Dinning v. State, 267 Ga. 879, 485 S.E.2d 464 (1997)(applied)
  • Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)(followed)
  • Edwards v. State, 264 Ga. 615, 616(2), 449 S.E.2d 516 (1994)(followed)

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