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  1. #1
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    Default Aggravated Stalking

    My question involves criminal law for the state of: Georgia

    I'll make this as short as possible.

    My oldest brother is back in GA and is divorced, but they share the same property. There are two homes on it. One was a rental, the other their home.
    The property is in both their names. Slightly more than an acre, houses about 60ft apart.

    After the divorce, he moved to the rental, where he lives with his two sons, 17 & 18 years old.

    The ex got a new boyfriend and he lives in her home.Since he has moved in, there have been all sorts of problems between my brother and his ex, and he and the boyfriend. The boyfriend built a fence between the houses and my brother took it down as it was a crappy one made of old pallets and destroyed the property value as well as violated ordinances.

    I have been there on visits and have seen the boyfriend coming to my brother's house and starting problems with my brother, only for the ex to come over later and apologize because the boyfriend was drunk or argumentative.

    Anyway, last week, my brother was served with papers to attend a warrants hearing on two counts of aggravated stalking. Contention is he can see her and is violating a "good behaviour" warrant issued against him and goes to her house.The hearing is this Friday coming.

    Here are the questions I have:

    He has video tape of her coming over to his house several times as well as her boyfriend. Are these allowed at a warrants hearing??- or will those be considered evidence for trial?

    Since there is a warrants hearing and not an arrest at this point, wouldn't that indicate that her case is weak and the judge just wants to discover if there is enough evidence to continue?

    Agg stalking is a felony in GA. If it was a severe case as she claims it to be, wouldn't a warrant have been issued already without a hearing? Both have "good behaviour" warrants on each other now.



    A little history: There have been numerous run-ins with the law regarding those two. She has been arrested about 6 times for violence against him and her ex before him and was on probation and anger management because of it.
    It has been to the point that the cops have had enough of them they have told them one more time of coming out to their place and BOTH would go to jail. My brother has not been arrested, though. Only her.

    Neither of them have any money to speak of, nothing. They both are satisfied living under paycheck to paycheck, both are very very broke. Considering that, he cannot get an attorney. I asked if he contacted a PD and he said they won't touch it until he has been arrested, that defending during a warrants hearing is not their job, so he is going in with just his two boys and the video tape.

    Neither will move as there is no money for that and cannot buy each other out to have sole rights to the property.

    What could be used as a defense? What other suggestions can you make? I suggested everything I can think of. Anyone else want to throw in on this one???

  2. #2
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    Default Re: Aggravated Stalking

    Are you talking about a warrant application hearing?
    Quote Quoting OCGA § 17-4-40. Persons who may issue warrants for arrest of offenders against penal laws; warrants requested by others; persons who may issue warrants for arrest of law enforcement or peace officers or school teachers or administrators
    (a) Any judge of a superior, city, state, or magistrate court or any municipal officer clothed by law with the powers of a magistrate may issue a warrant for the arrest of any offender against the penal laws, based on probable cause either on the judge's or officer's own knowledge or on the information of others given to the judge or officer under oath. Any retired judge or judge emeritus of a state court may likewise issue arrest warrants if authorized in writing to do so by an active judge of the state court of the county wherein the warrants are to be issued.

    (b)
    (1) If application is made for a warrant by a person other than a peace officer or law enforcement officer and the application alleges the commission of an offense against the penal laws, the judge or other officer shall schedule a warrant application hearing as provided in this subsection unless the person accused has been taken into custody by a peace officer or law enforcement officer or except as provided in paragraph (6) of this subsection.

    (2) Except as otherwise provided in paragraph (6) of this subsection, a warrant application hearing shall be conducted only after attempting to notify the person whose arrest is sought by any means approved by the judge or other officer which is reasonably calculated to apprise such person of the date, time, and location of the hearing.

    (3) If the person whose arrest is sought does not appear for the warrant application hearing, the judge or other officer shall proceed to hear the application and shall note on the warrant application that such person is not present.

    (4) At the warrant application hearing, the rules regarding admission of evidence at a commitment hearing shall apply. The person seeking the warrant shall have the customary rights of presentation of evidence and cross-examination of witnesses. The person whose arrest is sought may cross-examine the person or persons applying for the warrant and any other witnesses testifying in support of the application at the hearing. The person whose arrest is sought may present evidence that probable cause does not exist for his or her arrest. The judge or other officer shall have the right to limit the presentation of evidence and the cross-examination of witnesses to the issue of probable cause.

    (5) At the warrant application hearing, a determination shall be made whether or not probable cause exists for the issuance of a warrant for the arrest of the person whose arrest is sought. If the judge or other officer finds that probable cause exists, the warrant may issue instanter.

    (6) Nothing in this subsection shall be construed as prohibiting a judge or other officer from immediately issuing a warrant for the arrest of a person upon application of a person other than a peace officer or law enforcement officer if the judge or other officer determines from the application or other information available to the judge or other officer that:
    (A) An immediate or continuing threat exists to the safety or well-being of the affiant or a third party;

    (B) The person whose arrest is sought will attempt to evade arrest or otherwise obstruct justice if notice is given;

    (C) The person whose arrest is sought is incarcerated or otherwise in the custody of a local, state, or federal law enforcement agency;

    (D) The person whose arrest is sought is a fugitive from justice;

    (E) The offense for which application for a warrant is made is deposit account fraud under Code Section 16-9-20, and the person whose arrest is sought has previously been served with the ten-day notice as provided in paragraph (2) of subsection (a) of Code Section 16-9-20; or

    (F) The offense for which application for the warrant is made consists of an act of family violence as defined in Code Section 19-13-1.
    In the event that the judge or officer finds such circumstances justifying dispensing with the requirement of a warrant application hearing, the judge or officer shall note such circumstances on the face of the warrant application.

    (7) No warrant shall be quashed nor evidence suppressed because of any irregularity in proceedings conducted pursuant to this subsection not affecting the substantial rights of the accused under the Constitution of this state or of the United States.
    (c) Any warrant for the arrest of a peace officer, law enforcement officer, teacher, or school administrator for any offense alleged to have been committed while in the performance of his or her duties may be issued only by a judge of a superior court, a judge of a state court, or a judge of a probate court.

  3. #3
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    Default Re: Aggravated Stalking

    Never heard of a warrant hearing. Does it only apply to those positions?

  4. #4
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    Default Re: Aggravated Stalking

    We may eventually get clarification. He appears to be talking about the hearing where a judge swears out warrants on cases authorized by the prosecutor. They're rather pro forma.

  5. #5
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    Default Re: Aggravated Stalking

    Quote Quoting aaron
    View Post
    We may eventually get clarification. He appears to be talking about the hearing where a judge swears out warrants on cases authorized by the prosecutor. They're rather pro forma.
    A warrants hearing is where one person acts as prosecutor against another for the purpose of securing a warrant for arrest against another. This also serves as a preliminary hearing. Once the warrant is secured, the county prosecutor takes over as it turns from civil to criminal. THe one securing the warrant shows that there is just acuse for the warrant and the defendant can show why there isn't. From my understanding, this is done because there are no police witnesses to represent the state and give evidence; its kinda like a "he said-she said" thing.

    I spoke with my brother today at length about this and he gave me more info.

    According to him, back on June 27th, she went and got a restraining order against him, citing harrassment. But, then, on three seperate occassions, after that, she went to his house, sent someone to give him a message and the last time they had contact, she approached him as he was street side waiting for a ride.

    When she went to his house, it was to apologize for getting the restraining order. He ran her off.

    Then, she sent her boyfriend over to give my brother a message that she wanted to talk outside at the pallet fence the guy put up. My other brother was there and video taped he giving day, date and time of the recording and stating that she wanted to talk to my oldest brother and she did not want the police involved.

    The last time was while waiting for a ride in front of his house, she came out wanting to talk and the guy that picked my brother up saw and met her then.

    Out of nowhere, came the warrants hearing papers accusing him of stalking her. Because of the exsisting restraining order, it went from misd.stalking to felony agg stalking, FVA. FVA because she told the judge that she was in danger. She fears him.

    The PD won't offer any help as this is a "technical" matter. Once the warrant is issued, it is criminal and they can help then.

    In talking with my brother, I have learned that twice she called the police to have him arrested for small stuff. They refused to do anything as there was no evidence to support her claims.

    Another important point is that she has been arrested for beating a ex husband { before my brother} twice.Her kids were taken from her for violence against them, by her. She has also been charged a total of four times for beating my brother, three of which times, he was beat so bad, he required stitches and had welts all over his body from her beating him with a wire coat hanger. Each of her arrests resulted in her pleading guilty and doing probation, community service and attending anger management classes.

    My brother has never been charged nor arrested for such stuff. He is too passive. After each event, she claims she's changed, he believed her and it was a repeat.

    I explained to him today that he needed to show a pattern of behaviour to the court that she is violent and aggressive. He also needs to have his boys in court as witnesses to her approaching him after the restraining order was issued, he needs to have the guy giving him a ride in court to show she was at his pickup point, and he needs to show the tape recording of her after the restraining order was issued. Furthermore, he needs to bring in all police reports where the cops have been to their house{s} in reference to her abuse, hospital records documenting the abuse and severety of injuries and the police reports showing malicious prosecution.

    I also believe that he should file a civil suit against her for bring about false charges to have him arrested with malice and harrassment.

    The tape documents her stating that her boyfriend wants my brother off the property and that by arresting him and having him in prison, was the only way of removal. Then, she apologizes for having to put him through this.

    Again, keep in mind, neither can afford an attorney so it will be a "he said, she said" thing in court. My brother went to get an attorney and the lowest price he could find was around $2500, which he does not have nor can get.

    She cliams to have 2 witnesses, her boyfriend's daughters,aged around 10-12 years old. I feel certian they will be coached as to what to say about the events. During the hearing for the restraining order, my brother tried to give evidence, but the judge told him he did not want to hear it, therby refused to allow any defense.

    So, given this info, and considering there will be no attorneys there, I thought of a game plan. Tell me if I am on the right track, please.

    During the hearing, have the court recorder there to document everything.

    Sequester the witnesses. Once she has pled her case, he should be allowed to cross examine her and her witnesses, one by one, to break apart any claims they make. Being one cannot know the fine details of what the other has said, it should be pretty easy to do.

    Then, he pleads his case, presents witnesses and video tape to support his claims.

    If the judge refuses him any defense, the the recorder will document that, too. I told my brother of what you posted, Aaron, and that he does have the right to do so. If still refused, then that would be basis for a lawsuit plus appeal. Am I correct?

    Am I thinking right about this? Is this how you would handle a case of this sort? Is there a flaw { or few} that I am overlooking? What would you do differently?

    We are taking this very very seriously as a warrant issued would see him locked up awaiting a trial date that could take months or longer. He has two boys to care for, and he his the sole supporter of them. No, he isn't the brightest crayon in the box, but I can honestly say I firmly believe him. I have run this woman off from my house because of her aggressions. He never called the cops about the other beating, I did. I reported them. he just doesn't have the heart to see anyone in trouble or hurt regardless of what they do to him. He always forgives and forgets.

    Thanks for your time, please advise anyway you can, offer suggestions, or ask more questions to help guide you through this.

    His hearing is coming up this Friday. I am going to be back there for a week next month, I was thinking about a continuance until then. This way, I can testify to her behaviour. Is this a good idea? It would also allow me to make sure she doesn't talk him into just letting the warrant be issued.

  6. #6
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    Default Vacating a Restraining Order

    My question involves restraining orders in the State of: Georgia


    If you have read my other thread about my brother and his ex, then you'll understand my question:

    His hearing is this coming Friday at 930am. At the hearing, he going to show that his ex violated her own restraining order against him. At that time, can he request the restraining order be vacated on the basis she cannot and will not abide by it's terms?

    Also, being as she repeatedly violated her own restraining order, is it not conceivable that she should be charged with the agg stalking as she wants him to be?

    I am just trying to get him some information so he has something to work with.

  7. #7
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    Default Re: Aggravated Stalking

    He can request it, but of course you know that it might not be granted.

    My friend down the street had a restraining order slapped on her a few months ago by a whack-job neighbor with a massive persecution complex. The neighbor accused my friend of lying in wait to try to kill her, among other crazy, made up crap. After the initial ex parte order, but before the hearing, the whack-job kept driving past my friend's house, walking her dog past my friend's house and following her around the neighborhood.

    When my friend stepped onto her porch and yelled at the whack-job for being there, the whack-job said she didn't have a choice, it was the only way to get out onto the main street.

    So the hearing came around. My friend had taken pictures of the neighborhood and had shown that because of the way the neighborhood is laid out, the whack-job could in fact go another way.

    My friend asked for mutual restraining orders. It was granted.

    (Mind, my friend had a lawyer, which reduced the whole process to five minutes. It would do your brother well to find a lawyer, any lawyer, to be there with him for the hearing, but if he can't, his documentation should be sufficient.)

  8. #8
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    Default Re: Aggravated Stalking

    My brother got the continuance I told to go for. Don't know yet if it will a week or two before the next hearing.

    He did speak with an attorney that took the case without raping him, so I'll send down some money to help cover it. So, maybe things aren't gonna be so bad. But, I'll keep you posted.

    Thank you all for your input

  9. #9
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    Default Re: Aggravated Stalking

    Today my brother had the hearing and apparently, everything was dismissed, RO included.

    I wish I were there as I would question why the ex is permitted with violating a restraining order. The law states that neither party shall violate, yet, she soes and walks.

    Don't get me wrong, I am glad things turned out for the best for my brother, but I still can't help but question that aspect.

    Also, considering how much she tortures him, do you think it would be worthwhile for him to persue any civil suit for malicous prosecution, defamation, or harrassment??

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