We have mentioned several times that prosecutors normally bring the most aggressive charges that the facts could possibly support. This approach gives the state more leverage during plea negotiations. If they reduce the charges to something reasonable, some defendants think they are getting a good deal.
Additionally, obtaining convictions in serious felonies is a good way to move up the corporate ladder. Supervisors aren’t impressed with assault convictions. But aggravated assault convictions are a different story.
This process begins at the intake level. Generally, prosecutors review police reports, and decide what charges to bring. During this process, prosecutors normally look for “red flags” which would allow them to intensify the criminal charges. Since the law on this point changed in 2014, prosecutors look for any mention of the defendant putting hands to face or around the alleged victim’s neck. Any such mention usually causes prosecutors to elevate ordinary assault charges to aggravated assault, even if there was no mention of a strangulation injury.
Consequences of Aggravated Assault
An aggravated assault conviction could mean up to twenty years in prison. So, it’s very important to work with the best Marietta criminal defense lawyer in these situations. There is simply too much at stake to leave this matter to chance.
Aggravated assault convictions have substantial indirect consequences as well. Assault is a crime of moral turpitude. As such, it usually has significant vocational and educational consequences. Aggravated assault is also a serious felony according to immigration law. Even if the defendant receives deferred disposition, the offense could have immigration and naturalization consequences.
Finally, an aggravated assault conviction puts a target on the defendant’s back. If any violent crimes occur in the area, officers naturally suspect people with aggravated assault records. This suspicion continues long after court supervision ends.
Elements of the Offense
Georgia’s aggravated assault law id a bit different from the law in some other states. In the Peachtree State, an aggravated assault is:
- Intent to Commit a Serious Felony: Any assault, no matter how bad, is an aggravated assault if the defendant intended to commit a robbery, murder, or sexual assault. Note that the intent alone is sufficient.
- Strangulation: Georgia law defines strangulation as “impeding the normal breathing or circulation of blood of another person by applying pressure to the throat or neck of such person or by obstructing the nose and mouth of such person.” So, the aforementioned hands to face/hands around neck only meets part of this definition. The state must also prove the defendant applied so much pressure that it impeded blood flow or breathing ability. And, the state must prove this element beyond a reasonable doubt.
- “Drive-By” Shooting: These offenses are not always like the ones in movies. First, the vehicle need not be in motion. Second, the defendant must only discharge the firearm “toward” a person or people. So, the intent level is more like recklessly, as opposed to intentionally or maliciously.
- Use of a Deadly Weapon: Almost any solid object could be a deadly weapon if used during an assault. That includes baseball bats, golf clubs, coffee mugs, frying pans, and almost anything else.
So much for the actus rea, or criminal act. In terms of the mens rea, or criminal state of mind, strangulation aggravated assault is a specific intent crime. The defendant must intend both the conduct (assaulting the alleged victim) and the result (seriously injuring the alleged victim via strangulation). This same analysis could apply to some other versions of aggravated assault.
In other words, the state must work twice as hard to establish intent, because there is twice as much to prove. Additionally, voluntary intoxication is usually a defense to specific intent crimes. That’s not the case with ordinary assault.
Generally, police officers do not personally witness aggravated assaults. They either arrive at the scene of a disturbance or conduct a lengthy investigation.
Lack of evidence in general, and lack of credible eyewitness testimony in particular, is usually a powerful defense in disturbance call cases. Police officers are professional witnesses who have usually testified in hundreds or thousands of court hearings. Alleged victims have usually never testified before in their lives. So, it’s easier for a Marietta criminal defense attorney to erode an alleged victim’s testimony.
The defendant need not “prove” anything, so it is not necessary to completely discredit the alleged victim’s story. Reasonable doubt is enough.
Moreover, by the time the trial comes around, many alleged victims have lost interest in the case and no longer want to press charges. The state can force these people to testify against their will, but most prosecutors do not want to go that far.
On a related note, after months of delay, many alleged victims relocate beyond the court’s subpoena power. Sometimes in these cases, the state can us the excited utterance loophole to admit part of the police report into evidence.
Criminal investigations usually have lots of moving parts. Any procedural error can cause a Cobb County judge to exclude key evidence. Miranda rights (you have the right to remain silent, etc.) are a good example. If police officers do not Mirandize defendants once custodial interrogation begins, anything they say could be inadmissible.
“Custodial interrogation” means the defendant does not feel free to leave (custody) and officers say anything designed to extract information (interrogation).
Criminal investigations also might have credibility problems. Lineups are a good illustration. Double-blind lineups, which means neither the administering officer nor the witness knows the suspect’s identity, are the most reliable kind of lineup. Otherwise, Most Cobb County lineups are only blind lineups. The witness doesn’t know who the suspect is, but the administering officer knows. As a result, officers often give witnesses subtle clues about which suspects to pick.
If the evidence is weak, a Marietta criminal defense attorney can usually either get the charges thrown out of court or get the charges reduced to ordinary assault. Additional resolutions, such as deferred disposition or pretrial diversion, might be available as well.
Assault by strangulation charges often do not hold up in court. For a free consultation with an experienced criminal defense attorney in Marietta, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.