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State Supreme Court redefines kidnapping

Decision could affect pending cases

POSTED: November 11, 2008 5:00 a.m.

When Christopher Joseph Emerson was accused last March of grabbing a woman’s elbow in a Flowery Branch supermarket parking lot and moving her toward his car, he was charged with kidnapping, though she never was forced into the car or carried away.

That’s because in Georgia’s courts, the term "kidnapping" has evolved to mean any movement, however slight, of a person against his or her will.

But a Georgia Supreme Court decision this week redefined kidnapping, and could have major implications for cases like Emerson’s, which remains pending.

In a 4-3 decision on an appeal from Lee County, the high court adopted a new legal standard for kidnapping, ruling that prosecutors must consider four factors before deciding a kidnapping charge is warranted.

Those factors include duration of movement of the victim, whether the movement occurred during the commission of a separate crime, whether the movement was part of that separate crime and whether the movement presented significant danger to the victim.

In the majority opinion, Justice Carol Hunstein wrote that under the kidnapping law as applied in recent years, "almost any crime in which a victim moves from the point of initial contact with the defendant would authorize a kidnapping charge," and noted the "greatly enhanced punishment" the charge carries — from 10 years to life in prison versus a range of one to 10 years for the lesser charge of false imprisonment.

Some attorneys applauded the high court’s decision, saying the interpretation of kidnapping in Georgia courts has strayed too far from the original intent of the legislature, which also sets the sentencing ranges.

Often domestic violence cases between couples have resulted in kidnapping charges when one person is moved by another, said Brad Morris, director of the Northeastern Circuit Public Defender’s Office.

"The problem with kidnapping is the sentencing ramifications are so tremendous," Morris said. "Jurors have no notion how serious it is, and the judges’ hands are tied as far as sentencing."

"It seems to me that if you’re charged with kidnapping, that should be the main point, not something tied into other allegations," Morris said. "It’s just so easy to charge someone with kidnapping, and it is a monster of a charge as far as the consequences."

Ron Carlson, a professor of law at the University of Georgia, said the high court’s reinterpretation of kidnapping fits more with what most jurors would think of when they hear the word.

"This is a little closer to the common understanding of the term, and to me it puts some common sense into the state’s notion of what is and what is not kidnapping," Carlson said.

Carlson said the kidnapping charge, and its serious penalties, has been a good tool for prosecutors to use as leverage in inducing guilty pleas to lesser charges.

"To a certain extent, this will remove an arrow from the quivers of some prosecutors," Carlson said.

Hall County District Attorney Lee Darragh said he agreed with Supreme Court Justice George Carley’s dissenting opinion. Carley wrote it was the legislature’s place, not the court’s, to revise the state’s kidnapping law.

Darragh said the state Prosecuting Attorney’s Council would file a supporting legal brief with Lee County District Attorney Cecilia Cooper’s motion for reconsideration.

But if the court’s opinion stands, "we will be evaluating all our pending cases involving kidnapping charges and will be determining whether they meet the new standards, and will act accordingly," Darragh said.

In some cases, that could mean deciding not to go forward with certain kidnapping charges, in other cases, it might mean reindicting a case, Darragh said.

As for those already convicted of kidnapping and serving prison sentences, few are likely to be granted new trials. A defendant would have had to raise the issue of insufficient evidence to support a kidnapping charge at trial in order to have it heard on appeal.

"It should not affect any convictions that are already finalized," Darragh said.



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