Counsel was appointed to represent defendant at a first appearance hearing Two

Counsel was appointed to represent defendant at a

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Counsel was appointed to represent defendant at a first appearancehearing.Two days after the hearing, a detective came to the jail and134.Id., 567 S.E.2d at 17.135.276 Ga. 559, 580 S.E.2d 528 (2003).136.Id.at 559-60, 580 S.E.2d at 529.137.Id.at 562, 580 S.E.2d at 731.138.Id.139.Id.at 563, 580 S.E.2d at 532.140.Id.141.Id.at 560, 580 S.E.2d at 529.142.256 Ga. App. 464, 568 S.E.2d 528 (2002).
136MERCER LAW REVIEW[Vol. 55interrogated defendant.Defendant was warned and signed a writtenwaiver of his Miranda rights.Defendant made a statement about hisinvolvement in the crime that was used against him at trial after thetrial court denied a motion to suppress.At the motion to suppresshearing, the trial court did not believe defendant’s testimony that he hadasked to speak with his attorney prior to the interrogation.143Thecourt of appeals reversed and held that although the record did notindicate clearly that defendant had requested an attorney at his firstappearance hearing, the appointment of an attorney made defendant’sattorney request a reasonable assumption.144Thus, the interrogationinitiated by the police was a clear violation of the Fifth and SixthAmendments and was not considered harmless error by the court ofappeals.145I.Constitutional PrivacyIn the noteworthy case ofIn re J. M.,146the supreme court appliedthe right to sexual privacy announced inPowell v. State.147Twosixteen-year-olds were found engaging in sexual intercourse in the younggirl’s bedroom. The two had attempted to block the bedroom door witha stool.The girl’s mother came in and caught them in the act.Theyoung boy jumped out of the window and fled. Although the parents didnot pursue charges against the boy, the State initiated delinquencyproceedings, and the boy was adjudicated a delinquent.148InPowellthe supreme court “held that the Georgia Constitution prohibits theState from criminalizing ‘private, unforced, non-commercial acts ofsexual intimacy between persons legally able to consent.’”149The courtinIn re J. M.held thatPowellcontrolled and reversed the juvenilecourt’s delinquency finding because sixteen-year-olds in Georgia arelegally able to consent.150The State argued that the boy had noprivacy right in someone else’s home, but the court held that argumentto be specious.151While the State might be able to assert a compellinginterest, such as restricting commercial sexual activity, no compellinginterest was present.152The State’s asserted interest in protecting143.Id.at 464-65, 568 S.E.2d at 529.144.Id.at 465-66, 568 S.E.2d at 529-30.145.Id. SeeU.S. CONST. amend. V; U.S. CONST. amend. VI.146.276 Ga. 88, 573 S.E.2d 441 (2003).147.Id.at 89, 573 S.E.2d at 443;seePowell v. State, 270 Ga. 327, 510 S.E.2d 18 (1998).148.In reJ.M., 276 Ga. at 88-89, 573 S.E.2d at 442-43.149.Id.at 89, 573 S.E.2d at 443 (quotingPowell, 270 Ga. at 336, 510 S.E.2d at 26).

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