Is the indictment flawed?

Asked almost 3 years ago - Atlanta, GA

If someone is indicted with aggravated assault 'shooting at, toward or in the direction of alleged victim with a deadly weapon'(end of wording). Now, at jury trial, evidence was adduced that alleged victim was actually shot and injured. Isn't this a variance? (georgia). If state is going to evidenced injury, shouldn't defendant be properly notified by the wording of the indictment? 6th amendment.

Attorney answers (3)

  1. Johnetta Renee Boston

    Contributor Level 9

    Answered . When I was in Georgia, the DA's office would generally take a kitchen sink approach to indicting cases. They would charge multiple counts and see what stuck at trial. Is there not another count for aggravated assault for the actual bullet-body contact?

    I have seen this argued on motion for directed verdict, but not for a shooting. Also be careful if the state was allowed to amend the indictment (i've seen that done, too).

    The answer(s) given a merely a suggestion. In no way do these answer(s) create an attorney-client agreement or any... more
  2. Hugh Michael Ruppersburg

    Contributor Level 3

    Answered . No. In Georgia, an aggravated assault can be committed in several ways. One of them - as alleged by the indictment - is shooting at another person with intent to injure them.

    The fact that the indictment does not charge the defendant with actually shooting and injuring the victim does not prevent the prosecution from proving that. The prosecution can show that the defendant shot and injured the victim to prove that the defendant shot "at, toward, or in the direction" of the victim.

    Actually shooting and injuring the victim could even be a separate count of aggravated assault or aggravated battery.

  3. Timothy P. Flynn

    Pro

    Contributor Level 15

    Answered . Not necessarily. If the defendant in this case received the benefit of a reduced charge (usually because the prosecutor does not believe they can make out the higher case), then these facts do not affect his constitutional rights.

    Sometimes, when something like this happens at the stage of the preliminary examination, the prosecutor, with evidence to support a higher charge now a matter of record, will amend the charging instrument (the complaint, the information, or the indictment) to include the higher charge.

    All that has happened in this case is that damaging evidence supporting the elements of the charged crime, and then some, has been admitted into the case. On such facts, the prosecutor can now argue to the jury at closing that he or she has satisfied their burden.

    Ouch.

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