[IN THE SUPERIOR COURT OF DEKALB COUNTY, DECATUR, GEORGIA, FRIDAY, JANUARY 20, 2017, STATE VS. JAMES EDWARD AVERY

***
IN THE STATE COURT OF DEKALB COUNTY
STATE OF GEORGIA



STATE OF GEORGIA

CRIMINAL  FILE NO.:
17S-2215795

V. 

JAMES EDWARD AVERY, 
DEFENDANT.

BENCH TRIAL



THE TRANSCRIPT OF THE PROCEEDINGS BEFORE THE HONORABLE JUDGE MATTHEW J.MCCOYD, REPORTED BY MARY K. MCMAHAN, CERTIFIED COURT REPORTER, ON THE 20TH DAY OF JANUARY, 2017, COMMENCING AT APPROXIMATELY 1:23 P.M.




APPEARANCES OF COUNSEL:

FOR THE STATE:

WYSTAN GETZ, ASST SOLICITOR GENERAL
DEKALB COUNTY SOLICITOR GENERAL'S OFFICE
556 NORTH MCDONOUGH STREET, SUITE 550
DECATUR, GEORGIA 30030

FOR THE DEFENDANT:

WHITNEY GIBBS, ESQUIRE
INGRID MCGAUGHEY, ESQUIRE
DEKALB COUNTY PUBLIC DEFENDER'S OFFICE
320 CHURCH STREET
DECATUR, GEORGIA 30030

MARY K. MCMAHAN
CERTIFIED COURT REPORTER
DUNWOODY, GEORGIA
(404)931-3511

TRANSCRIPT LEGEND

(SIC) - EXACTLY AS SAID.

(PHONETIC) - EXACT SPELLING UNKNOWN.

-- BREAK IN SPEECH CONTINUITY.

. . . INDICATES HALTING SPEECH, UNFINISHED SENTENCE OR OMISSION OF WORD(S) WHEN READING.

QUOTED MATERIAL IS TYPED AS SPOKEN.

(') - INDICATES PLURAL ACRONYMS, PLURAL LETTERS, PLURAL NUMBERS, AND POSSESSIVES.

G E N E R A L  I N D E X

Rule of Sequestration INVOKED ...............................15

County Rests ................................................47

Motion for Acquittal ........................................47

Defense Rests ...............................................49

Defense Closing Argument ....................................49

County's Closing Argument ...................................53

Court's Decision ............................................54

I N D E X  O F  E X A M I N A T I O N S

WITNESS: 

OFFICER  HOUSEWORTH 

                             

Direct Examination by Mr. Getz ..............................19

Cross-examination by Ms. Gibbs ..............................36

Redirect Examination by Mr. Getz ............................45

I N D E X  O F  E X H I B I T S

COUNTY'S EXHIBITS: BATES NUMBER: IDENTIFIED: ADMITTED:

County's Exhibit 60A ...........69.............33 ...........34

County's Exhibit 60B ...........70.............33 ...........34

County's Exhibit 60C ...........71.............33 ...........34

County's Exhibit 60D ...........72.............33 ...........34

County's Exhibit 60E ...........73.............33 ...........34

County's Exhibit 60F ...........74.............33 ...........34

County's Exhibit 60G ...........75.............33 ...........34

County's Exhibit 81A ...........76.............23 ...........24

County's Exhibit 81B ...........77.............23 ...........24

County's Exhibit 81C ...........78.............23 ...........24

County's Exhibit 81D ...........79.............23 ...........24

County's Exhibit 81E ...........80.............23 ...........24

County's Exhibit 81F ...........81.............23 ...........24

County's Exhibit 81G ...........82.............23 ..........24

County's Exhibit 88A ...........83.............27 ...........27

County's Exhibit 88B ...........84.............27 ...........27

County's Exhibit 88C ...........85.............27 ..........27

County's Exhibit 93A ...........86.............29 ...........30

County's Exhibit 93B ...........87.............29 ...........30

County's Exhibit 93C ...........88.............29 ...........30

County's Exhibit 95A ...........89.............25 ...........26

County's Exhibit 95B ...........90.............25 ...........26

County's Exhibit 95C............91.............25 .........26

DEFENDANT'S EXHIBITS:

Defendant's Exhibit 1 ..........92.............36 ...........37

Defendant's Exhibit 2 ..........93.............36 ...........37

Defendant's Exhibit 3 ..........94.............36 ...........37

Defendant's Exhibit 4 ..........95.............36 ...........37

Defendant's Exhibit 5 ..........96.............36 ...........37

Defendant's Exhibit 6 ..........97.............36 ...........37

Defendant's Exhibit 7 ..........98.............36 ...........37

Defendant's Exhibit 8 ..........99.............36 ...........37

Defendant's Exhibit 9 .........100.............36 ...........37

Defendant's Exhibit 10 ........101.............36 ...........37

[IN THE SUPERIOR COURT 

OF

DEKALB COUNTY, DECATUR, GEORGIA, 

FRIDAY, JANUARY 20, 2017, 

STATE VS. JAMES EDWARD AVERY, 

17S-2215795, 

JUDGE MATTHEW J. MCCOYD, PRESIDING.]

(FROM SPECIAL SET, 1:00 P.M.)

P R O C E E D I N G S

THE COURT: 

WE ARE HERE ON FRIDAY, JANUARY 20, 2017.  THIS CASE IS THE DEKALB COUNTY VS. JAMES EDWARD AVERY CASE. THIS CASE WAS ESPECIALLY SET FOR TRIAL. IT'S NOW 1:23 AND WE ARE ON THE RECORD.

FOR THE RECORD, I HAVE RECEIVED A MOTION TO NOLLE PROS A NUMBER OF THE CITATIONS AGAINST MR. AVERY FROM THE SOLICITOR, AND I NEED TO KNOW WHETHER THE DEFENDANT HAS ANY OBJECTION TO THE ENTRY OF THE NOLLE PROS.

MS. MCGAUGHEY: 

COUNSEL WOULD HAVE NO OBJECTION TO THE NOLLE PROS ORDER.

THE COURT: 

WELL, THAT IS GOOD BUT DOESN'T ANSWER THE QUESTION OF WHETHER THE DEFENDANT OBJECTS TO THE NOLLE PROS.

MS. MCGAUGHEY: 

YOUR HONOR, AND THIS WILL GO INTO WHY I'D LIKE TO ADDRESS THE COURT.

INGRID MCGAUGHEY WITH THE PUBLIC DEFENDER'S OFFICE.  I AM NOT ATTORNEY OF RECORD ON THIS CASE. MS. WHITNEY GIBBS IS. MS. WHITNEY GIBBS HAS ASKED ME TO ASSIST HER BECAUSE I AM ONE OF THE ATTORNEYS FOR THE PUBLIC

DEFENDER'S OFFICE WHO HANDLES THE CASES INVOLVING MENTAL HEALTH ISSUES.

THE COURT: 

YES, MA'AM.

MS. MCGAUGHEY:

 I HAVE SPOKEN TO MR. AVERY ON SEVERAL OCCASIONS, AND I KNOW THAT MR. AVERY WILL NOT AGREE WITH ME ON THIS -- TWO OCCASIONS, I BELIEVE IT WAS THAT I SAT DOWN WITH HIM. IN ADDITION, I HAVE BEEN PRIVY TO SOME OF HIS 

E-MAILS THAT HE HAS SENT MS. GIBBS. I HAVE VIEWED SOME OF THE VIDEOS THAT HE HAS ONLINE.

AND IN SPEAKING WITH MR. AVERY, MR. AVERY APPEARS TO BE A BRIGHT INDIVIDUAL. HE SEEMS TO KNOW WHAT THE MECHANICS OF THE COURT PROCEEDING ARE, HOWEVER, I DO NOT BELIEVE HE IS COMPETENT TO PROCEED. I KNOW THE COURT HAD INITIALLY ORDERED A COMPETENCY EVALUATION.  D.B.H.D.D. (Department of Behavioral Health and Developmental Disabilities) INFORMED THE COURT THAT THEY WOULD NOT BE DOING IT BECAUSE IT WASN'T WITHIN THEIR PREVIEW. AND AT THAT POINT IN TIME IT WOULD BECOME AN ISSUE FOR THE COURT, WHETHER THE COURT WAS WILLING TO HIRE A PRIVATE TO DO THAT EVALUATION.

MR. AVERY'S ISSUES FOR US QUESTIONING HIS COMPETENCY HAVE TO DO WITH HIS ABILITY TO ASSIST COUNSEL. WE ALSO QUESTION HIS ACTUAL UNDERSTANDING OF WHAT THIS FORUM IS FOR. WHILE WE HAVE GONE OVER THE MECHANICS OF A TRIAL AND WHAT TODAY ENCOMPASSES, IT SEEMS TO BE MR. AVERY'S BELIEF

THAT THIS IS A FORUM AND WHERE HE WILL BE ABLE TO TELL EVERYBODY WHAT HIS GRIEVANCES ARE TOWARDS THE COMMUNITY AND FOR THEM TO ENTER INTO SOME SORT OF MEANINGFUL DIALOGUE WITH HIM. IN REPEATEDLY SPEAKING TO HIM, HE DOES NOT APPEAR TO FULLY COMPREHEND THAT.

IN ADDITION, WHEN IT COMES TO ASSISTING IN THE DEVELOPMENT OF HIS CASE, HE IS -- HIS SPEECH PATTERN IS RAMBLING, IT'S TANGENTIAL. HE IS UNABLE TO FOCUS ON THESE ISSUES WITHOUT GOING INTO MULTIPLE UNRELATED ISSUES OR

MULTIPLE PERIPHERY ISSUES. WE THINK THAT IN GOING FORWARD WITH A TRIAL, WHERE HIS LIBERTY WOULD BE IN JEOPARDY, THAT THIS WOULD VIOLATE HIS DUE-PROCESS RIGHTS AND WE DO NOT BELIEVE HE IS COMPETENT.

THE COURT: 

SO, MS. MCGAUGHEY, I APPRECIATE YOUR STATEMENTS. THE PROBLEM I HAVE IS THAT I HAVE ASKED REPEATEDLY WHETHER YOUR OFFICE HAS COUNSEL FOR MR. AVERY.  I APPOINTED YOUR OFFICE AS COUNSEL FOR MR. AVERY EVEN THOUGH HE DOESN'T QUALIFY BECAUSE I WANTED TO MAKE SURE THAT HIS RIGHTS WERE PROTECTED. AND I HAVE ASKED REPEATEDLY WHETHER YOUR OFFICE WAS GOING TO FILE A MOTION SEEKING A COMPETENCY HEARING AND I HAVE BEEN  REPEATEDLY TOLD THAT YOU WERE NOT GOING TO DO THAT. AND I HAVE A

PROBLEM WITH HEARING THAT THE POSITION OF THE PUBLIC DEFENDER'S OFFICE IS THAT HE'S NOT COMPETENT 20 MINUTES AFTER A SPECIALLY SET TRIAL IS SET TO BEGIN. THIS HAS BEEN GOING ON NOW FOR EIGHT MONTHS.

MS. MCGAUGHEY: 

I UNDERSTAND THAT, YOUR HONOR.

THE COURT:

I BELIEVE THAT TO THE EXTENT THAT THERE IS AN ISSUE, IT'S BEEN WAIVED.

MS. MCGAUGHEY: 

WE WOULD RESPECTFULLY DISAGREE WITH THE COURT.

THE COURT: 

I UNDERSTAND.

MS. MCGAUGHEY: 

COMPETENCY IS ONE OF THOSE THINGS THAT ARE FLUID. I HAVE SPOKEN WITH MR. AVERY AT TIMES WHERE HE DID MAKE MORE SENSE. IN LIGHT OF SOME E-MAILS

THAT WERE SENT WITHIN THE LAST 24 HOURS, IN LIGHT OF MY CONVERSATION WITH HIM TODAY, IN LIGHT OF MY SOCIAL WORKERS' CONVERSATIONS -- WE HAVE HAD ALL THREE SOCIAL WORKERS TALK TO HIM TODAY -- I DO NOT BELIEVE HE IS

COMPETENT IN THE HEARING NOW.

THE COURT: 

BEFORE I ASK THE COUNTY WHAT THEIR POSITION IS, I'D LIKE TO KNOW EXACTLY WHAT IT IS YOU ARE ASKING ME TO DO.

MS. MCGAUGHEY: 

WE ARE ASKING THE COURT TO MAKE AN INQUIRY, BE IT THROUGH A DOCTOR, OF MR. AVERY'S COMPETENCY.

THE COURT: 

SO ARE YOU MOVING TO HAVE A COMPETENCY HEARING?

MS. MCGAUGHEY: 

YOUR HONOR, WE DO NOT HAVE A -- WE DO NOT HAVE A DOCTOR AT THIS POINT IN TIME. IF THE COURT WISHES TO GO FORWARD WITHOUT A DOCTOR, I BELIEVE THAT

MR. AVERY'S BEHAVIOR WOULD SPEAK FOR ITSELF QUITE FRANKLY.

THE COURT: 

SO WHAT IS IT YOU'RE ASKING ME TO DO?

MS. MCGAUGHEY: 

WE WOULD ASK THAT YOU EITHER CONTINUE THE CASE --

THE DEFENDANT: 

(GESTURING AT THE GALLERY)

THE DEPUTY: 

SIR.

THE COURT: 

HE NEEDS TO STOP THAT.

MS. MCGAUGHEY:

 -- FOR COMPETENCY EVALUATION. IF THE COURT IS NOT WILLING TO DO THAT, THEN WE COULD PROCEED WITH A COMPETENCY EVALUATION AND LET THE COURT MAKE THAT DECISION AS TO HIS COMPETENCY.

THE COURT: 

WE'RE GOING TO PROCEED WITH THE COMPETENCY EVALUATION NOW?

MS. MCGAUGHEY: 

WE DO NOT HAVE A DOCTOR TO PROCEED WITH THE AN EVALUATION AT THIS POINT IN TIME.

THE COURT: 

SO YOU'RE ASKING ME TO CONTINUE THE TRIAL SO THAT YOU CAN GO GET A DOCTOR TO HAVE --

MS. MCGAUGHEY: 

WE'RE --

THE COURT: 

-- A COMPETENCY HEARING.

MS. MCGAUGHEY: 

WE'RE ASKING THE COURT -- IT WAS MY UNDERSTANDING THIS WAS AN EVALUATION THAT WAS INITIALLY ORDERED BY THE COURT.

THE COURT:

 IT WAS INITIALLY ORDERED BY THE COURT,  BUT THEN WHEN THE COURT WAS TOLD THAT THE STATE DEPARTMENT WOULD NOT PERFORM THE EVALUATION, I INFORMED EVERYBODY OF THAT. AND AT THAT TIME, I ASKED WHETHER DEFENSE WAS GOING TO FILE A MOTION SEEKING A COMPETENCY EVALUATION, AND I WAS TOLD NO.

MS. MCGAUGHEY:

 I UNDERSTAND THAT, YOUR HONOR. YOUR HONOR --

THE COURT: 

SO ARE YOU NOW FILING A MOTION ASKING FOR A COMPETENCY EVALUATION?

MS. MCGAUGHEY:

I'M ASKING FOR THE COURT TO PROVIDE THE FUNDS FOR THAT COMPETENCY EVALUATION SINCE GEORGIA REGIONAL WILL NOT DO IT.

THE COURT: 

WHAT SAYS THE COUNTY?

MR. GETZ: 

THE COUNTY IS READY, YOUR HONOR.

THE COURT: 

MS. MCGAUGHEY, I HAVE A GREAT DEAL RESPECT FOR YOU AND I UNDERSTAND THAT YOU'RE DOING YOUR JOB, BUT I'M NOT GOING TO CONTINUE THE TRIAL.

MS. MCGAUGHEY: 

THANK YOU, JUDGE.

THE COURT: 

MY POSITION IS THE ISSUE -- I'VE REPEATEDLY ASKED AND I'VE BEEN REPEATEDLY BEEN TOLD NO, AND SO WE'RE HERE, WE'RE GOING TO HAVE A TRIAL.

MS. MCGAUGHEY: 

AND WE WOULD JUST LIKE OUR OBJECTION NOTED FOR THE RECORD, YOUR HONOR.

THE COURT: 

YES, MA'AM.

MS. MCGAUGHEY: 

THANK YOU.

THE COURT:

SO NOTED. ALL RIGHT.

MS. GIBBS: 

YOUR HONOR, IS THERE A HEARING DEVICE FOR MR. AVERY AT THIS POINT?

THE COURT: 

IS THERE A WHAT?

MS. GIBBS:

 IS THERE A HEARING DEVICE AVAILABLE FOR MR. AVERY SO HE CAN HEAR THE COURT PROCEEDINGS?

THE COURT: 

THERE SHOULD BE.

SO, DEPUTY, THIS DEFENDANT HAS HEARING ISSUES. TO ADDRESS THE ISSUES, SO WE HAVE THE TECHNOLOGY TO ALLOW TO ASSIST HIM HEARING THE PROCEEDINGS. WE NEED TO INQUIRE ABOUT IT.

THE DEPUTY:

 WE HAVE IT?

THE COURT:

WE DO. WE DO HAVE IT.

THE DEPUTY: 

OKAY.

THE COURT: 

OKAY.

THE DEPUTY: 

I DON'T KNOW WHERE TO GET IT FROM.

(THE DEPUTIES CONFERRED.)

THE COURT: 

ALL RIGHT. WELL, I THINK WE'RE GOING TO HAVE A VERY BRIEF DELAY WHILE WE TRY TO MAKE SURE THAT THE TECHNOLOGY THAT CAN ASSIST THE DEFENDANT HEARING THE PROCEEDINGS IS BROUGHT DOWN. THEN WE'LL PROCEED.

IN THE MEANTIME, DOES THE DEFENDANT HAVE ANY OBJECTION TO THE ENTRY OF THE NOLLE PROS ORDER DISMISSING SOME OF THE CITATIONS, AS I BELIEVE THE SOLICITOR HAS ELECTED TO PROCEED ON SEVEN --

MR. GETZ: 

ELEVEN.

THE COURT: 

ELEVEN. I APOLOGIZE. ELEVEN.

(DEFENSE COUNSEL CONFERRED WITH THE DEFENDANT.)

MS. MCGAUGHEY:

 I'M WAITING, YOUR HONOR.

THE COURT:

 I UNDERSTAND YOU'RE WAITING.

(AT THIS TIME, A HEARING DEVICE WAS PROVIDED TO THE DEFENDANT.)

THE COURT: 

THE ISSUE THAT WE NEED TO TAKE UP IS WHETHER OR NOT THE DEFENDANT OBJECTS TO THE STATE -- I'M SORRY, THE COUNTY --

THE DEFENDANT:

 (INDISCERNIBLE) MORE. NOT -- OKAY (INDISCERNIBLE).

(TECHNICAL ADJUSTMENTS MADE TO HEARING DEVICE)

TECHNICAL STAFF: 

JUDGE.

THE COURT:

THE ISSUE THAT WE NEED TO TAKE UP IS WHETHER OR NOT THE DEFENDANT OBJECTS TO THE COUNTY'S MOTION TO NOLLE PROS --

MS. GIBBS:

IT'S STILL NOT WORKING, YOUR HONOR.

TECHNICAL STAFF:

I CAN ADJUST IT.

(TECHNICAL ADJUSTMENTS MADE TO HEARING DEVICE)

THE COURT: 

ALL RIGHT. WHILE WERE WAITING FOR THE ASSISTED TECHNOLOGY, MS. GIBBS, HAVE YOU BEEN ABLE TO DISCUSS WITH YOUR CLIENT WHETHER HE OBJECTS TO THE ENTRY OF THE NOLLE PROS MOTION BY THE COUNTY?

MS. GIBBS: 

I WAS JUST WRITING AND COMMUNICATING WITH HIM ON THAT MATTER RIGHT NOW, YOUR HONOR.

THE COURT: 

ALL RIGHT.

MS. GIBBS: 

SO IF I CAN CONTINUE, I CAN CERTAINLY ASK HIM --

THE COURT: 

YES, MA'AM. THANK YOU.

(TECHNICAL ADJUSTMENTS MADE TO HEARING DEVICE)

THE COURT: 

ALL RIGHT. SO THE ISSUE TO BE DECIDED IS WHETHER OR NOT THE DEFENDANT OBJECTS TO THE COUNTY'S MOTION TO NOLLE PROS -- 

THE DEFENDANT: 

(INDISCERNIBLE)

TECHNICAL STAFF: 

CAN YOU HEAR HIM?

THE DEFENDANT: 

NO.

(TECHNICAL ADJUSTMENTS MADE TO THE HEARING DEVICE)

THE COURT:

SO THAT IS THE ISSUE THAT I NEED TO HEAR FROM THE DEFENSE ON WHETHER OR NOT THE DEFENDANT OBJECTS TO THE COUNTY'S MOTION TO NOLLE PROS A NUMBER OF THE COUNTS.

IF THE DEFENDANT OBJECTS, THAT'S FINE. IF THE DEFENDANT DOESN'T OBJECT, THAT'S FINE TOO. I JUST NEED TO KNOW WHICH POSITION --

THE DEFENDANT: 

THAT'S FINE.

MS. MCGAUGHEY: 

CAN YOU HEAR?

MS. GIBBS: 

YOUR HONOR, IN THE DISCUSSION THAT I HAVE HAD WITH MR. AVERY --

THE DEFENDANT: 

THIS WON'T PICK UP RIGHT NOW, RIGHT?

MS. MCGAUGHEY: 

NO.

TECHNICAL STAFF: 

IF THEY TALK INTO THE MIC, THEN YES. IT PICKS UP EVERYTHING THROUGH THE MICROPHONE.

MS. GIBBS: 

CAN YOU HEAR ME, MR. AVERY? CAN YOU HEAR ME? YES?

THE DEFENDANT: 

NO. TELL YOU WHAT. JUST GET IT OVER WITH.

TECHNICAL STAFF: 

EVERYONE JUST PULL THE MICS CLOSER TO THEM.

THE DEFENDANT: 

JUST GET IT OVER WITH.

MS. GIBBS: 

YOUR HONOR, MR. AVERY DOES NOT OBJECT TO THE CITATIONS BEING DISMISSED.

THE COURT: 

ALL RIGHT. I'VE ENTERED THE NOLLE PROS ORDER.

SO JUST VERY BRIEFLY, LET ME JUST QUICKLY GET TO SOME HOUSEKEEPING MATTERS SO THAT I KNOW WHAT WE'RE DEALING WITH.

MR. GETZ, HOW MANY WITNESSES DO YOU ANTICIPATE CALLING?

MR. GETZ: 

THE COUNTY HAS ONE WITNESS, YOUR HONOR, OFFICER HOUSEWORTH, AND HE IS PRESENT.

THE COURT: 

ALL RIGHT. OFFICER HOUSEWORTH FOR THE COUNTY.

MS. GIBBS, HOW MANY WITNESSES DO YOU ANTICIPATE CALLING?

MS. GIBBS: 

AT THIS TIME, YOUR HONOR, I DON'T ANTICIPATE CALLING ANY WITNESSES.

MR. AVERY HAS -- I JUST NEED TO PUT ON FOR THE RECORD MR. AVERY IS NOT WEARING HIS HEARING DEVICE. HE SAYS IT DOES NOT WORK.

THE COURT: 

WELL, FOR THE RECORD, THE -- ONE OF THE --

MS. MCGAUGHEY: 

YOUR HONOR, HE'S RIGHT.

(DEFENDANT CONFERRED WITH DEFENSE COUNSEL.)

THE COURT: 

WHAT DO YOU MEAN HE'S RIGHT?

MS. MCGAUGHEY: 

ALL I HEAR IS STATIC.

THE COURT: 

OKAY.

(DEFENDANT CONFERRED WITH DEFENSE COUNSEL.)

MS. MCGAUGHEY: 

AND WHEN I TURN THE VOLUME UP, ALL IT IS IS A LOT OF STATIC.

THE COURT: 

I'LL BE RIGHT BACK.

MS. MCGAUGHEY: 

THANK YOU, JUDGE.

(PAUSE IN THE PROCEEDINGS, AFTER WHICH THE FOLLOWINGTRANSPIRED):

THE COURT: 

THEY HAVE GONE TO GET A NEWER VERSION OF IT FROM ANOTHER COURTROOM. THIS UNIT -- THESE UNITS APPARENTLY ARE THE ORIGINAL ISSUE THAT CAME WHEN DEKALB COUNTY PUT IN THE -- WHEN WE REMODELED. SO THEY ARE SUPPOSED TO BE GETTING SOME NEW SYSTEM FROM ANOTHER COURTROOM AND THEN THEY WILL BRING THAT AND WE WILL GET STARTED PROMPTLY, ALL RIGHT?

AND THEN, I'M SORRY, THIS IS A HOUSEKEEPING MATTER. ONE WITNESS FOR THE COUNTY.

MS. GIBBS, YOU'RE SAYING NO WITNESSES?

MS. GIBBS: 

AT THIS TIME, I DON'T ANTICIPATE ANY WITNESSES, YOUR HONOR.

THE COURT: 

OKAY. AND THEN WE HAVE A LARGE NUMBER OF PEOPLE IN THE GALLERY AND I JUST WANT TO MAKE SURE IF ANYBODY WAS PLANNING ON TESTIFYING AS A WITNESS, YOU'RE GOING TO NEED TO LEAVE THE COURTROOM. I AM INVOKING THE

RULE OF SEQUESTRATION. ANYBODY WHO IS GOING TO BE A WITNESS HAS TO LEAVE. THE CASE OFFICER OBVIOUSLY CAN REMAIN AND THE DEFENDANT MAY REMAIN. ANYBODY ELSE NEEDS TO EXIT.

SO THEN ANYBODY WHO STAYS, YOU'RE DISQUALIFYING YOURSELF FROM TESTIFYING AS A WITNESS. JUST WANT TO MAKE SURE WE ALL UNDERSTAND. OKAY.

WELL, AS SOON AS THE NEWER TECHNOLOGY, ASSISTIVE TECHNOLOGY GETS HERE, WE WILL MAKE SURE IT'S FUNCTIONING AND THEN WE WILL START.

ARE THE PARTIES GOING TO WANT TO MAKE BRIEF OPENING STATEMENTS OR DO YOU WANT TO JUST GO INTO EVIDENCE?

MR. GETZ: 

YOUR HONOR, THE STATE IS JUST GOING TO -- OR THE COUNTY IS GOING TO PROCEED WITH THE EVIDENCE IN THIS MATTER.

THE COURT:

DOES THE DEFENDANT WISH TO MAKE AN OPENING STATEMENT?

MS. GIBBS: 

JUST A BRIEF OPENING STATEMENT, YOUR HONOR.

THE COURT: 

BRIEF OPENING BY THE DEFENSE, ALL RIGHT.  WELL, AS SOON AS WE HAVE THE TECHNOLOGY, WE WILL PROCEED.

(AT THIS TIME, ANOTHER HEARING DEVICE WAS PROVIDED TO THE DEFENDANT AND TECHNICAL ADJUSTMENTS WERE MADE.)

THE COURT: 

WHAT WE'RE GOING TO DO IS -- IS HE ABLE TO HEAR ME --

THE DEFENDANT: 

I AM NOW, YES.

THE COURT: 

GOOD. SO WHAT WE'RE GOING TO DO, WE'RE GOING TO HAVE THIS SPAN FROM A SPEAKER SO IT'S PICKING UP WHAT'S BROADCAST IN THE COURTROOM.

MS. MCGAUGHEY: 

CAN WE TRY THAT TO MAKE SURE THERE'S NO FEEDBACK?

THE COURT: 

YEAH, OF COURSE WE CAN TRY IT. SURE.  ALL RIGHT, SO WHY DON'T YOU LISTEN TO IT SO YOU CAN TELL ME. I'M NOT ...

(DEFENSE COUNSEL CONFERRED WITH THE DEFENDANT.)

THE COURT: 

SO ARE YOU ABLE TO HEAR ME? ARE YOU ABLE TO HEAR THROUGH -- I'D LIKE YOU TO TRY. ARE YOU ABLE TO HEAR ME THROUGH THAT?

MS. MCGAUGHEY: 

NOT VERY WELL.

THE COURT: 

WELL, BUT YOU'RE --

MS. MCGAUGHEY:

 IT REALLY -- IT'S VERY, VERY, VERY FAINT. AND PART OF IT IS BECAUSE I KNOW YOU'RE SPEAKING.  I CAN HEAR YOU MUCH BETTER --

THE COURT: 

I UNDERSTAND.

MS. MCGAUGHEY: 

BUT YOU CAN HARDLY HEAR YOU THAT WAY.  THE OTHER WAY YOU WERE DOING IT, IT WAS CLEAR --

THE COURT: 

I UNDERSTAND --

MS. MCGAUGHEY: 

THIS WAY IT IS NOT CLEAR.

THE COURT: 

-- BUT THE PROBLEM THERE IS ALL HE'LL BE ABLE TO HEAR IS WHAT I SAY INTO THE SPEAKER.

MS. MCGAUGHEY: 

I DON'T --

THE COURT: 

OR WE CAN JUST PASS IT. WE'LL JUST PASS IT.

MS. MCGAUGHEY:

I DON'T THINK WE CAN GET THIS HIGH ENOUGH.

THE COURT: 

NO, IT'S FINE. I GOT IT.

(THE COURT CONFERRED WITH TECHNICAL STAFF AND DEFENSE COUNSEL, AFTER WHICH THE FOLLOWING TRANSPIRED):

THE COURT: 

HERE'S WHAT WE'RE GOING TO DO. THIS IS GOING TO GET PLUGGED INTO AN EXTENSION CORD. IT'S GOING TO BE OVER THERE. THE WITNESS IS GOING TO TALK INTO IT AND THEN IT'S GOING TO BE PASSED. THE QUESTION WILL BE ASKED, THEN IT WILL BE PASSED TO THE WITNESS. THE WITNESS WILL ANSWER THE QUESTION.

SO THAT WAY MR. AVERY WILL BE ABLE TO HEAR EVERYTHING THAT HAPPENS.

MS. GIBBS: 

YES, YOUR HONOR.

THE COURT: 

THEY'RE GOING TO BRING AN EXTENSION CORD IN JUST A SECOND AND THEN WE CAN GET STARTED. AND IT WILL BE NECESSARY WE'LL HAVE TO PASS IT UP TO THE PODIUM --

MR. GETZ: 

WELL, WE CAN DO THE --

THE COURT: 

SO YOU CAN DO THE EXAMINATION FROM THERE.

SO THEN TO THE EXTENT YOU'RE MAKING A BRIEF OPENING STATEMENT --

MS. GIBBS: 

YOUR HONOR, IN THE INTEREST OF TIME, I'LL WAIVE OPENING IF WE CAN JUST GET STARTED.

THE COURT: 

ALL RIGHT. THEN LET'S DO THIS. LET'S GO AHEAD AND HAVE THE OFFICER COME ON UP.

THE DEPUTY: 

DO YOU WANT ME TO SWEAR HIM IN OR DO YOU WANT ME TO WAIT UNTIL THEY 

BRING --

THE COURT: 

WE'RE GOING TO WAIT UNTIL THEY BRING A CORD.

(THE COURT REPORTER CONFERRED WITH THE COURT.)

THE COURT: 

LET'S GET STARTED.

(THE WITNESS TOOK THE STAND.)

THE DEPUTY: 

OKAY. RAISE YOUR RIGHT HAND. DO YOU SWEAR OR AFFIRM THE TESTIMONY YOU GIVE TODAY WILL BE THE TRUTH, THE WHOLE TRUTH, AND NOTHING BUT THE TRUTH, UNDER THE PENALTY OF PERJURY?

THE WITNESS: 

I DO.

THE DEPUTY: 

STATE YOUR NAME FOR THE RECORD.

THE WITNESS: 

OFFICER HOUSEWORTH, DEKALB COUNTY CODE ENFORCEMENT.

THE DEPUTY: 

THANK YOU. 

OFFICER HOUSEWORTH, 

WAS CALLED AS A WITNESS HEREIN AND HAVING FIRST BEEN DULY SWORN WAS EXAMINED AND TESTIFIED AS FOLLOWS:

D I R E C T  E X A M I N A T I O N

BY MR. GETZ:

Q OFFICER HOUSEWORTH, SIR, HOW ARE YOU EMPLOYED?

A FOR DEKALB COUNTY CODE ENFORCEMENT DIVISION.

Q HOW LONG HAVE YOU WORKED THERE?

A APPROXIMATELY EIGHT YEARS.

Q ON THE 30TH OF APRIL 2016 DID YOU HAVE OCCASION TO GO

TO 1840 MASON MILL ROAD IN DECATUR?

A YES, I DID.

Q AND WHEN YOU ARRIVED AT THAT ADDRESS, WHAT DID YOU

ENCOUNTER THERE?

A THE NATURE OF THE CALL WAS THERE WAS SIGNAGE ISSUES,

AND WHEN I GOT THERE, I FOUND THE PROPERTY TO BE IN VIOLATION

OF SIGNS.

Q AND WHEN YOU SAY THAT THE PROPERTY WAS IN VIOLATION

OF SIGNS, SPECIFICALLY WHAT SORT OF VIOLATION OF SIGNAGE DID

YOU ENCOUNTER?

A MULTIPLE -- A MULTITUDE OF SIGNS OVER THE SQUARE

FOOTAGE THAT'S PERMISSIBLE BY THE COUNTY, WHICH IS 24 SQUARE

FEET.

MS. MCGAUGHEY: 

YOUR HONOR, MAY MR. AVERY MOVE CLOSER BECAUSE HE SAYS HE CAN'T GET THIS VOLUME HIGH ENOUGH --

THE DEFENDANT:

 NOT ENOUGH TO MAKE A DIFFERENCE.

THE COURT: 

SO I ASKED YOU WHETHER YOU WERE ABLE TO HEAR.

MS. MCGAUGHEY:

 I COULD HEAR. HE'S TELLING ME HE CAN'T GET THE VOLUME HIGH ENOUGH.

THE DEFENDANT:

 I CAN HEAR BETTER WITH A HEARING AID, BUT (INDISCERNIBLE).

THE COURT: 

OKAY.

MS. MCGAUGHEY: 

AND I --

THE WITNESS: 

I CAN SPEAK CLOSER INTO THE MIC.

THE COURT: 

HAVE HIM SIT AT THAT --

THE WITNESS: 

I CAN SPEAK CLOSER INTO THE MIC.

THE DEFENDANT: 

I CAN HEAR HIM SPEAKING, BUT I DON'T DON'T KNOW WHAT HE'S SAYING. HOW ABOUT IF I COME OVER THERE?

THE COURT: 

SO IT IS YOUR REQUEST THAT THE DEFENDANT BE ABLE TO RELOCATE SO HE CAN HEAR THE OFFICER'S TESTIMONY.

MS. MCGAUGHEY:

 DOES IT HELP IF YOU CAN SEE HIS LIPS.

THE COURT:

 I'M ABOUT --

THE DEFENDANT: 

(INDISCERNIBLE) --

MS. MCGAUGHEY: 

I'M ASKING --

THE DEFENDANT: 

-- (INDISCERNIBLE) --

THE COURT:

 -- BUT HE'S YOUR CLIENT.

MS. MCGAUGHEY:

YES, YOUR HONOR, IT IS MY -- IT IS MY REQUEST THAT HE RELOCATE SO HE CAN HEAR.

THE COURT: 

OKAY. THAT'S FINE. THEN WE'LL DO THAT, OKAY?

MS. MCGAUGHEY: 

THANK YOU, JUDGE.

THE COURT: 

OKAY. SO HE CAN MOVE HIS CHAIR DOWN HERE (INDICATING). HE CAN MOVE HIS CHAIR RIGHT DOWN THERE.

THE DEFENDANT: 

DOWN THERE?

MS. MCGAUGHEY: 

WHERE DO YOU NEED TO BE? WHERE CAN YOU HEAR? RIGHT HERE (INDICATING)?

THE DEFENDANT: 

NO. SHOULD I BE (INDISCERNIBLE) --

MS. MCGAUGHEY: 

NO. NO.

THE COURT: 

I WANT HIM RIGHT DOWN HERE. I DON'T WANT HIM (INDISCERNIBLE) -- RIGHT IN FRONT OF THE BENCH.

MS. MCGAUGHEY:

 ALL RIGHT. MR. AVERY, ALL RIGHT.  CAN YOU SPEAK.

THE WITNESS:

 YES.

MS. MCGAUGHEY: 

JUST SAY HAPPY BIRTHDAY.

THE WITNESS: 

HAPPY BIRTHDAY.

(MULTIPLE SPEAKERS IN THE GALLERY)

THE DEPUTY: 

EXCUSE ME. YOU GUY HAVE TO BE QUIET SO THEY CAN HEAR, OKAY?

THE DEFENDANT:

 I'LL SAY HI ANY TIME I DIDN'T HEAR ANYTHING.

THE WITNESS: 

HAPPY BIRTHDAY.

MS. MCGAUGHEY: 

CAN YOU HEAR HIM WELL?

THE DEFENDANT: 

YEAH.

MS. MCGAUGHEY: 

OKAY.

THE DEFENDANT: 

I'LL LET YOU KNOW WHEN I'M -- I'LL RAISE MY HAND WHEN I DON'T HEAR.

MS. MCGAUGHEY: 

NO. OKAY. RAISE YOUR --

THE COURT: 

NO (INDISCERNIBLE).

MS. MCGAUGHEY: 

I'M TRYING.

THE COURT: 

HE NEEDS TO TELL YOU IF HE CAN'T HEAR AND THEN YOU NEED TO SAY SOMETHING.

MS. MCGAUGHEY: 

WELL, THAT'S WHAT HE SAID, HE'D RAISE --

THE COURT: 

BUT WE'RE IN A SITUATION WHERE WE'VE ACCOMMODATED HIM. HE'S INDICATING HE CAN HEAR SO WE'RE GOING TO PROCEED.

MS. MCGAUGHEY: 

YES, YOUR HONOR.

THE COURT: 

GO AHEAD.

BY MR. GETZ:

Q ALL RIGHT. ALL RIGHT, SIR. ON APRIL 30, 2016, WHEN YOU GOT TO 1840 MASON MILL ROAD, WITH RESPECT TO SIGNAGE WHAT DID YOU SEE?

A I SAW EXCESS OF SIGNS.

Q WHEN YOU SAY EXCESS OF SIGNS, WHAT DOES THAT MEAN SPECIFICALLY?

A I SAW SIGNS OVER THE 24 SQUARE FEET.

Q HOW DID YOU DETERMINE THAT THE SIGNS WERE OVER 24 SQUARE FEET?

A I MEASURED THEM.

Q WHAT DID YOU MEASURE THEM WITH?

A A MEASURING TAPE.

(COUNTY'S EXHIBITS 81A THROUGH 81G MARKED FOR IDENTIFICATION)

BY MR. GETZ:

Q I'M GOING TO SHOW YOU WHAT I'VE PREVIOUSLY MARKED AS COUNTY'S EXHIBITS C81A THROUGH C81G. I'VE ALREADY SHOWN THESE TO COUNSEL.  OFFICER HOUSEWORTH, SIR, DO YOU RECOGNIZE THOSE PHOTOGRAPHS?

A (REVIEWING) YES, ALL ARE PHOTOGRAPHS.

Q WHAT ARE THOSE PHOTOGRAPHS?

A PHOTOGRAPHS OF THE SIGNAGE THAT I TOOK WHEN I WAS AT THE LOCATION SHOWING THE EXCESS OF SIGNAGE OVER 24 SQUARE FEET.

Q AND WHERE DO YOU TAKE THESE PHOTOS?

A TO THE -- THE FRONT, FROM THE CURBSIDE.

Q AT WHAT ADDRESS?

A 1840 MASON MILL ROAD.

Q IS THIS A FAIR AND ACCURATE REPRESENTATION OF THE CONDITIONS AT 1840 MASON MILL WHEN YOU WERE OUT THERE ON APRIL 30, 2016?

A YES, IT IS.

Q YOUR HONOR, AT THIS TIME, I TENDER THESE EXHIBITS INTO EVIDENCE.

THE COURT: 

ANY OBJECTIONS?

THE DEFENDANT:

 NO.

MS. GIBBS:

 NO OBJECTION, YOUR HONOR. I JUST NEED TO KNOW THE NUMBERS.

MR. GETZ:

C81A THROUGH C81C.

THE COURT: 

THEY'LL BE ADMITTED.

(COUNTY'S EXHIBITS 81A THROUGH 81G ADMITTED INTO EVIDENCE)

MR. GETZ: 

PASS THEM OVER TO THE COURT.

THE WITNESS: 

(COMPLIES)

BY MR. GETZ:

Q IN WHAT PORTION OF DEKALB COUNTY IS 1840 MASON MILL ROAD?

A IT'S IN UNINCORPORATED DEKALB.

Q DID YOU ISSUE A CITATION TO SOMEBODY AT 1840 MASON MILL ROAD?

A YES. I ISSUED TO THE OWNER OF RECORD WHO IS JAMES AVERY WHO STANDS HERE BEFORE US.

Q DO YOU SEE MR. AVERY IN COURT TODAY?

A YES. RUST-COLORED --

Q WHAT'S HE WEARING?

A RUST-COLORED SHIRT.

Q WHAT WAS THE CITATION THAT YOU GAVE HIM ON APRIL 30TH?

A I WROTE IT FOR THE ACCUMULATED -- AGGREGATE SIGNAGE, WHICH IS BASICALLY THE CODE SECTION OF 21-13(A). TALKS ABOUT THE RESTRICTION OF RESIDENTIAL SIGNAGE.

Q AND WHY DID YOU GIVE HIM THAT CITATION SPECIFICALLY?

A HE WAS IN VIOLATION THAT DAY.

Q HOW SO?

A HE HAD IN EXCESS OF 24 SQUARE FEET.

Q 24 SQUARE FEET OF WHAT?

A SIGNAGE.

Q ON JUNE 18, 2016, DID YOU HAVE OCCASION TO GO BACK TO 1840 MASON MILL ROAD IN DECATUR?

A YES, I DID.

Q AND WHEN YOU GOT OUT THERE, WHAT DID YOU SEE AT THAT LOCATION?

A I FOUND THE PROPERTY TO BE IN VIOLATION AGAIN OF EXCESS OF SIGNAGE.

Q WHEN YOU SAY EXCESS OF SIGNAGE, WHAT DO YOU MEAN?

A HE HAD 24 -- OVER 24 SQUARE FEET. HE HAD 48 SQUARE FEET ON THAT DAY. TOTAL SIGNAGE.

(COUNTY'S EXHIBITS 95A THROUGH 95C MARKED FOR IDENTIFICATION)

BY MR. GETZ:

Q I'M GOING TO SHOW YOU WHAT I'VE PREVIOUSLY MARKED AS C EXHIBITS 95A, 95B, AND 95C. DO YOU RECOGNIZE THOSE PHOTOGRAPHS?

A YES.

Q WHAT ARE THOSE PHOTOGRAPHS?

A PICTURES OF SIGNAGE AND HE GOT SOME STUFFED ANIMALS THAT'S HANGING.

Q DID YOU TAKE THOSE PHOTOGRAPHS?

A I DID.

Q ARE THEY A FAIR AND ACCURATE REPRESENTATION OF WHAT YOU SAW AT 1840 MASON MILL ROAD ON JUNE 18, 2016?

A YES.

MR. GETZ: 

AT THIS TIME, YOUR HONOR, THE COUNTY TENDERS THESE EXHIBITS INTO EVIDENCE.

MS. MCGAUGHEY: 

NO OBJECTION, YOUR HONOR.

THE COURT: 

THEY WILL BE ADMITTED WITHOUT OBJECTION.

(COUNTY'S EXHIBITS 95A THROUGH 95C ADMITTED INTO EVIDENCE)

BY MR. GETZ:

Q AND, SIR, DID YOU ISSUE A CITATION ON JUNE 18, 2016?

A I DID.

Q AND TO WHOM DID YOU ISSUE THAT CITATION?

A TO THE OWNER OF RECORD, JAMES AVERY.

Q DO YOU SEE HIM IN COURT?

A YES. HE'S STANDING BEFORE ME WITH THE RUST-COLORED SHIRT.

Q AND WHY DID YOU ISSUE HIM A CITATION THAT DAY?

A HE WAS IN VIOLATION OF COUNTY CODE 21-13(A).

Q AND WHAT DOES THAT PROHIBIT?

A IT PROHIBITS ACCUMULATIVE SIGNS OVER 24 SQUARE FEET.

Q SIR, ON AUGUST 20, 2016, DID YOU HAVE OCCASION TO RETURN TO 1840 MASON MILL ROAD?

A YES.

Q AND WHEN YOU GOT OUT THERE, WHAT DID YOU SEE?

A MORE SIGNAGE VIOLATIONS.

Q WHAT SORT OF SIGNAGE VIOLATION?

A IT WAS ACCUMULATED SIGNAGE AGAIN OVER -- THAT EXCEEDED THE 24 SQUARE FEET RULE UNDER THE 21-13 CODE SECTION.

Q HOW DID YOU FIGURE OUT THAT THERE WERE -- THAT THE FIRST SQUARE FOOTAGE OF SIGNAGE WAS IN EXCESS OF 24 SQUARE FEET?

A I MEASURED THE SIGNS.

(COUNTY'S EXHIBIT 88A THROUGH 88C MARKED FOR IDENTIFICATION)

BY MR. GETZ:

Q I'M GOING TO SHOW YOU WHAT I HAVE MARKED AS COUNTY'S EXHIBITS 88A THROUGH 88C. DO YOU RECOGNIZE THOSE EXHIBITS?

A YES.

Q ARE THESE PHOTOGRAPHS A FAIR AND ACCURATE REPRESENTATION OF THE CONDITIONS AT 1840 MASON MILL ROAD ON AUGUST 20, 2016?

A IT IS.

MR. GETZ: 

YOUR HONOR, AT THIS TIME, I TENDER THESE EXHIBITS INTO EVIDENCE.

MS. MCGAUGHEY: 

NO OBJECTION.

THE COURT: 

THEY WILL BE ADMITTED WITHOUT OBJECTION.

(COUNTY'S EXHIBIT 88A THROUGH 88C ADMITTED INTO EVIDENCE)

BY MR. GETZ:

Q SIR, DID YOU RETURN TO 1840 MASON MILL ROAD ON SEPTEMBER 3, 2016?

A I DID.

Q AND WHAT DID YOU ENCOUNTER WHEN YOU RETURNED TO THAT LOCATION ON THAT DAY?

A MORE VIOLATIONS OF SIGNAGE.

Q AND SPECIFICALLY WHAT SIGNAGE VIOLATION DID YOU SEE?

A MR. -- WELL, THE PROPERTY WAS IN VIOLATION OF SIGNAGE OVER THE 24 SQUARE FEET. APPARENTLY IT WAS -- HE HAD -- CAN'T READ THIS -- 13 SIGNS.

Q WOULD IT REFRESH YOUR RECOLLECTION --

A YES.

Q -- TO SEE A COPY OF YOUR TICKET?

A YES.

Q ALL RIGHT. WANT TO TAKE A LOOK AT THAT AND SEE IF THAT REFRESHES YOUR RECOLLECTION AS TO THE NATURE OF THE SIGN VIOLATION?

A IT SAYS 15 SIGNS, 30 SQUARE FEET TOTAL.

Q WHEN YOU ARRIVED AT THAT LOCATION ON SEPTEMBER 3RD, DO YOU REMEMBER THERE BEING A SIGNIFICANT NUMBER OF SIGNS IN THE YARD?

A YES.

Q HOW DID YOU ASCERTAIN THAT THOSE SIGNS -- THAT THE SIGNAGE WAS IN EXCESS OF 24 SQUARE FEET?

A I MEASURED THE SIGNS. HE HAS THE SAME SIGNS ALL THE TIME MOSTLY.

Q ON SEPTEMBER 10, 2016, DID YOU HAVE OCCASION TO GO BACK TO 1840 MASON MILL ROAD?

A YES.

Q WHAT DID YOU ENCOUNTER WHEN YOU ARRIVED ON SEPTEMBER 10, 2016?

A VIOLATION OF SIGNS AGAIN, EXCEEDING THE SQUARE FOOTAGE OF 24 SQUARE FEET, 22 TOTAL SIGNS.

Q AND WHEN YOU ARRIVED AT THE LOCATION ON THAT DAY, HOW DID YOU FIGURE OUT THAT THERE WAS AN EXCESS OF 24 SQUARE FEET OF THE SIGNAGE?

A THEM SIGNS ARE MEASURED -- THE SAME SIGNS, SAME SIZE SIGNS, MEASURE THE SAME THREE-BY-TWO, TWO-BY-THREE, WHICH IS SIX SQUARE FEET. HE HAD 22 OF THEM.

(COUNTY'S EXHIBITS 93A THROUGH 93C MARKED FOR IDENTIFICATION)

BY MR. GETZ:

Q AND, SIR, I'M GOING TO SHOW YOU WHAT I'VE MARKED AS COUNTY'S EXHIBIT C93, A THROUGH C. DO YOU RECOGNIZE THOSE?

A YES.

Q AND IS THAT A FAIR AND ACCURATE REPRESENTATION OF SOME OF THE SIGNAGE AT 1840 MASON MILL ROAD WHEN YOU WERE OUT THERE ON SEPTEMBER 10TH?

A YES.

MR. GETZ: 

THE COUNTY MOVES THESE EXHIBITS INTO EVIDENCE, YOUR HONOR.

MS. MCGAUGHEY: 

NO OBJECTION, YOUR HONOR.

THE COURT: 

THEY'LL BE ADMITTED WITHOUT OBJECTION.

(COUNTY'S EXHIBITS 93A THROUGH 93C ADMITTED INTO EVIDENCE)

BY MR. GETZ:

Q DID YOU ISSUE A TICKET ON SEPTEMBER 10, 2016?

A I DID.

Q WHY DID YOU ISSUE A TICKET ON SEPTEMBER 10, 2016?

A FOR THE VIOLATION OF BEING OVER THE SQUARE FOOTAGE UNDER THE SIGN CODE.

Q DID YOU RETURN TO 1840 MASON MILL ROAD ON SEPTEMBER 30, 2016?

A I DID.

Q AND WHEN YOU ARRIVED AT THE LOCATION ON SEPTEMBER 30TH, WHAT DID YOU ENCOUNTER?

A VIOLATIONS OF SIGNAGE OVER THE 24 SQUARE FEET.

Q AND HOW MANY SIGNS WERE THERE APPROXIMATELY WHEN YOU WERE OUT THERE?

A APPROXIMATELY --

Q IF IT WOULD REFRESH YOUR RECOLLECTION, TAKE A LOOK.

A (REVIEWING) SEVENTEEN SIGNS, APPROXIMATELY.

Q AND HOW DID YOU ASCERTAIN THAT THOSE SIGNS WERE OVER THE 24 SQUARE FEET?

A SAME SIZE SIGNS. HE ALWAYS HAS THREE-BY-TWO OR TWO-BY-THREE SIGNAGE AND THE COUNT ACCUMULATED COME UP TO THE 102 SQUARE FEET.

Q AND DID YOU ISSUE A CITATION ON THAT DAY?

A YES.

Q AND TO WHOM DID YOU ISSUE A CITATION FOR?

A THE OWNER OF RECORD, JAMES AVERY.

Q AND ON OCTOBER 14, 2016, DID YOU AGAIN GO TO 1840 MASON MILL ROAD?

A YES.

Q AND WHEN YOU ARRIVED AT THAT LOCATION, WHAT DID YOU ENCOUNTER ON THAT DAY?

A MORE VIOLATIONS OF SIGNAGE.

Q AND WHICH SPECIFIC VIOLATION WAS IT YOU NOTICED THAT DAY?

A EXCESS OF SIGNS OVER THE 24 SQUARE FEET. APPARENTLY HE HAD 22 SQUARE -- 22 SIGNS ON THAT DAY.

Q AND HOW DID YOU FIGURE OUT THAT THAT WAS OVER THE SQUARE FOOTAGE ALLOTMENT?

A WELL, THE CODE -- THE SIGN CODE SAYS 24 SQUARE FEET.   IT MEASURED IN THREE-BY-TWOS 86 SQUARE FEET. YOU MULTIPLY THAT OUT AND YOU COME UP WITH THE ACCUMULATIVE AVERAGE OF A HUNDRED THIRTY-TWO SQUARE FEET THAT DAY.

Q DID YOU ISSUE A CITATION ON OCTOBER 14, 2016?

A YES.

Q AND TO WHOM DID YOU ISSUE THAT CITATION?

A TO MR. AVERY, JAMES AVERY.

Q AND WHY DID YOU GIVE HIM THAT CITATION?

A VIOLATION OF THE SIGN CODE ORDINANCE.

Q ON NOVEMBER 1, 2014, DID YOU AGAIN GO TO 1840 MASON MILL ROAD IN DECATUR?

A YES.

Q AND WHEN YOU ARRIVED AT THAT LOCATION, WHAT DID YOU OBSERVE?

A VIOLATION OF SIGNS OVER 24 SQUARE FEET.

Q AND HOW DID YOU FIGURE OUT THAT THERE WERE MORE THAN 24 SQUARE FEET OF SIGNS THAT DAY?

A WELL, EACH SIGN IS THREE-BY-TWO OR TWO-BY-THREE AND HE HAD 29 SIGNS. SO APPARENTLY 29 SIGNS OVER THE LIMIT ON THAT DAY.

Q DID YOU ISSUE A CITATION ON NOVEMBER 1, 2016?

A I DID.

Q TO WHOM DID YOU ISSUE A CITATION?

A TO JAMES AVERY.

Q AND WHY DID YOU ISSUE A CITATION TO JAMES AVERY?

A HE WAS IN VIOLATION OF THE SIGN CODE ORDINANCE, 21-13.

Q NOVEMBER 12, 2016, DID YOU AGAIN GO TO1840 MASON MILL ROAD, DECATUR?

A I DID.

Q AND WHEN YOU GOT OUT THERE, WHAT DID YOU ENCOUNTER?

A VIOLATION OF SIGNS AGAIN.

Q AND DO YOU RECALL HOW MANY SIGNS WERE OUT THERE AT THAT TIME?

A TOTAL OF 27 SIGNS.

Q AND HOW DID YOU FIGURE OUT THAT THAT WAS IN EXCESS OF 24 SQUARE FEET?

A THE THREE-BY-TWO AND TWO-BY-THREE, AND YOU CAN ONLY HAVE FOUR SIGNS TO BE IN COMPLIANCE WITH THE CODE.

Q AND DID YOU ISSUE A CITATION ON NOVEMBER 12, 2016?

A YES.

Q TO WHOM DID YOU ISSUE A CITATION?

A OWNER OF RECORD, JAMES AVERY.

Q AND WHY DID YOU GIVE HIM THAT CITATION ON THAT DAY?

A HE WAS IN VIOLATION OF THE SIGN ORDINANCE, 21-13.

Q AND ON NOVEMBER 19, 2016, DID YOU AGAIN GO TO 1840 MASON MILL ROAD IN DECATUR?

A I DID.

Q WHEN YOU GOT THERE, WHAT DID YOU SEE?

A SIGN VIOLATIONS OVER THE 24 SQUARE FEET.

Q HOW DID YOU FIGURE OUT THAT THERE WERE EXCESS SQUARE FOOTAGE OF SIGNAGE ON THAT DAY?

A SAME SIGNS. THREE-BY-TWO, TWO-BY-THREE SIGNS. HE HAD 19 SIGNS ON THAT DAY.

(COUNTY'S EXHIBITS 60A THROUGH 60G MARKED FOR IDENTIFICATION)

BY MR. GETZ:

Q I'M GOING TO SHOW YOU WHAT I'VE PREVIOUSLY MARKED AS COUNTY'S EXHIBITS 60A THROUGH 60G. DO YOU RECOGNIZE THOSE PHOTOGRAPHS?

A YES. ALL THE SIGNS.

Q IS THIS A FAIR AND ACCURATE REPRESENTATION OF THE SCENE AT 1840 MASON MILL ROAD ON NOVEMBER 19, 2016?

A IT IS. 

MR. GETZ: 

YOUR HONOR, AT THIS TIME WE TENDER COUNTY'S EXHIBITS 60A THROUGH 60G INTO EVIDENCE.

MS. MCGAUGHEY:

 NO OBJECTION, YOUR HONOR.

THE COURT: 

THEY WILL BE ADMITTED WITHOUT OBJECTION.

(COUNTY'S EXHIBITS 60A THROUGH 60G ADMITTED INTO EVIDENCE)

BY MR. GETZ:

Q DID YOU ISSUE A CITATION ON NOVEMBER 19, 2016?

A I DID.

Q TO WHOM DID YOU ISSUE THAT CITATION?

A THE OWNER OF RECORD, JAMES AVERY.

Q AND WHY DID YOU ISSUE A CITATION THAT DAY?

A HE WAS IN VIOLATION OF THE SIGN ORDINANCE, 21-13?

Q JUST TO BE CLEAR, OFFICER HOUSEWORTH, YOU WENT TO 1840 MASON MILL ROAD ON APRIL 30, 2016; IS THAT CORRECT?

A YES, THAT'S CORRECT.

Q AND YOU WENT BACK OUT THERE AGAIN ON JUNE 18, 2016; IS THAT CORRECT?

A THAT'S CORRECT.

Q AND YOU WENT BACK OUT THERE AGAIN ON AUGUST 20, 2016.

A THAT'S CORRECT.

Q AND SEPTEMBER 3, 2016?

A THAT'S CORRECT.

Q AND AGAIN SEPTEMBER 10, 2016.

A THAT'S CORRECT.

Q AND SEPTEMBER 30, 2016; IS THAT ACCURATE?

A THAT'S CORRECT.

Q AND THEN OCTOBER 14, 2016; IS THAT CORRECT?

A THAT'S CORRECT.

Q AND NOVEMBER 1, 2016; IS THAT CORRECT?

A THAT'S CORRECT.

Q NOVEMBER 12, 2016, AGAIN YOU WENT OUT TO THAT SAME LOCATION; IS THAT CORRECT?

A THAT'S CORRECT.

Q AND THEN ON NOVEMBER 19, 2016, YOU WENT OUT TO THAT LOCATION AGAIN; IS THAT ACCURATE?

A THAT'S ACCURATE.

Q AND EACH TIME THAT YOU WERE OUT AT THAT LOCATION, WHAT SORT OF SIGN VIOLATION DID YOU ENCOUNTER OUT THERE?

A EXCESS SIGNAGE OVER 24 SQUARE FEET.

Q WAS THE CONDITIONS APPROXIMATELY THE SAME EACH TIME THAT YOU VISITED?

A MORE OR LESS. WITH THE SIGNAGE TOTALS, HE HAD MORE SIGNS SOME DAYS, LESS SIGNS OTHER DAYS.

Q AND WHY DID YOU ISSUE -- DID YOU ISSUE ALL OF THESE CITATIONS THAT WE'VE BEEN DISCUSSING TODAY TO THE SAME INDIVIDUAL?

A HE'S THE OWNER -- HE'S THE OWNER OF RECORD.

Q AND WHO IS THAT AGAIN?

A JAMES AVERY.

Q AND IN WHAT COUNTY DID YOU ISSUE ALL OF THOSE CITATIONS IN?

A DEKALB COUNTY.

MR. GETZ: 

AT THIS TIME, YOUR HONOR, THE COUNTY HAS NO ADDITIONAL QUESTIONS.

THE COURT: 



CROSS-EXAMINATION.

MS. GIBBS: 

YES, YOUR HONOR. THANK YOU.

(DEFENSE COUNSEL CONFERRED WITH COUNTY COUNSEL.)

MS. MCGAUGHEY: 

DO YOU WANT TO COME UP ON THAT SIDE?

THE COURT:

YEAH. THAT'S FINE.

MS. MCGAUGHEY:

YEAH. LIKE RIGHT AROUND THERE?

THE COURT: 

YEAH. SHE CAN STAND ON THE CORNER. I DON'T THINK SHE'S GOING TO INTIMIDATE ...

(DEFENSE EXHIBITS 1 THROUGH 10 MARKED FOR IDENTIFICATION)

MS. GIBBS: 

FOR THE RECORD, I'M SHOWING OPPOSING COUNSEL DEFENSE EXHIBITS 1 THROUGH 10.

BY MS. GIBBS:

Q OFFICER HOUSEWORTH, CAN YOU TAKE A LOOK AT THOSE AND TELL ME IF YOU RECOGNIZE THOSE.

A (REVIEWING) YES.

Q AND WHAT ARE THOSE, OFFICER HOUSEWORTH?

A COPIES OF CITATIONS I WROTE.

Q OKAY. AND ARE THESE CITATIONS FOR THE RESIDENCE AT ISSUE, 1840 MASON MILL ROAD?

A YES.

Q OKAY. AND DO THESE REPRESENT -- OR DO THEY SEEM TO BE A FAIR AND ACCURATE REPRESENTATION OF THE CITATIONS THAT YOU WROTE ON THE RESPECTIVE DATES FOR THESE CITATIONS?

A YES.

Q OKAY. AND TO YOUR KNOWLEDGE, DOES IT LOOK LIKE THEY HAVE BEEN CHANGED IN ANY WAY?

A TO MY KNOWLEDGE, NO.

Q OKAY.

MS. GIBBS: 

YOUR HONOR, AT THIS TIME, I WOULD MOVE TO TENDER DEFENSE EXHIBITS 1 THROUGH 10 INTO EVIDENCE.

MR. GETZ: 

NO OBJECTION, YOUR HONOR.

THE COURT: 

THEY'LL BE ADMITTED WITHOUT OBJECTION.

MS. GIBBS: 

THANK YOU, YOUR HONOR.

(DEFENDANT'S EXHIBITS EXHIBIT 1 THROUGH 10 ADMITTED INTO EVIDENCE)

BY MS. GIBBS:

Q OFFICER HOUSEWORTH, ON THE DATES THAT YOU WENT OUT TO MR. AVERY'S HOME, YOU DIDN'T MEASURE EACH SIGN EACH TIME THAT YOU WENT OUT TO THE HOME; IS THAT CORRECT?

A NOT PHYSICALLY MEASURED, BUT HE HAD THE SAME SIGNS.

(DEFENDANT CONFERRED WITH DEFENSE COUNSEL)

MS. MCGAUGHEY: 

YOUR HONOR, EXCUSE ME.  

WHITNEY, COULD YOU SPEAK UP.

BY MS. GIBBS:

Q SO YOU ONLY MEASURED THE SIGNS THE FIRST TIME YOU WENT OUT TO THE HOME OR FOR THE CITATION ON APRIL; IS THAT CORRECT?

A NO, THAT IS NOT CORRECT.

Q OKAY. BUT YOU DIDN'T MEASURE THE SIGNS EACH TIME YOU WENT OUT TO THE HOME; IS THAT CORRECT?

A THAT'S CORRECT.

MS. MCGAUGHEY: 

CAN YOU COME CLOSER.

MS. GIBBS: 

(COMPLIES)

BY MS. GIBBS:

Q SO THE TIMES THAT YOU DID NOT MEASURE THE SIGNS, YOU WERE APPROXIMATING THE SIZE OF THE SIGN.

A THEY WERE THE SAME SIGNS.

Q BUT YOU DIDN'T MEASURE THEM.

A CORRECT.

Q SO YOU HAD NO WAY OF VERIFYING FOR SURE THAT THE SIGNS WERE THREE-BY-TWO, CORRECT? BECAUSE YOU DIDN'T MEASURE THEM.

A CORRECT.

Q NOW, THE CITATIONS THAT YOU GIVE MR. AVERY ARE SUPPOSED TO CONTAIN ALL PERTINENT INFORMATION REGARDING THE CITATION
.

A I'M NOT SURE WHAT YOU'RE SAYING.

Q THE CITATION THAT YOU WROTE FOR MR. AVERY, IT'S SUPPOSED TO CONTAIN ALL OF THE IMPORTANT PERTINENT INFORMATION ABOUT THE WAY HE'S ALLEGEDLY VIOLATED THE CODE ORDINANCE; IS THAT CORRECT?

A YES.

Q OKAY. SO LET'S GO THROUGH THE CITATIONS ONE BY ONE.  THE FIRST ONE, APRIL 30 OF 2016. DO YOU HAVE A COPY OF THAT IN FRONT OF YOU?

A YES.

Q IN THE REMARKS SECTION YOU'VE WRITTEN: "THE ACCUMULATIVE AGGREGATE SIGNAGE EXCEEDS 24 SQUARE FOOT IS PROHIBITED; IS THAT CORRECT?

A CORRECT.

Q YOU DIDN'T WRITE DOWN THE NUMBER OF SIGNS IN THE YARD.

A I DID NOT.

Q YOU DIDN'T WRITE DOWN THE TOTAL SQUARE FOOTAGE OF THE SIGNS IN THE YARD ON THAT DATE.

A I DID NOT.

Q BUT THE TICKET IS SUPPOSED TO -- THE CITATIONS IS SUPPOSED TO CONTAIN ALL PERTINENT INFORMATION, CORRECT?

A I EXPLAINED IT TO THE DEFENDANT.

Q THE NEXT CITATION IS JUNE 18, 2016. DO YOU HAVE THAT CITATION IN FRONT OF YOU OR A COPY OF THAT CITATION?

A JUNE 16TH? NO.

Q JUNE 18TH, I'M SORRY, OF 2016.

A YES.

Q OKAY. AND IN YOUR REMARKS SECTION, YOU DON'T STATE HOW MANY SIGNS ARE IN THE YARD, CORRECT?

A CORRECT, BUT IT DOES HAVE THE TOTAL SQUARE FEET.

Q OKAY. IF WE CAN MOVE TO THE NEXT CITATION AUGUST 20, 2016. ON THE SECTION -- ON THE PORTION OF THE CITATION WHERE YOU'VE WRITTEN THE CODE SECTION, YOU HAVE 21-13, RIGHT?

A YES.

Q AND YOU ARE AWARE THAT THERE ARE NUMEROUS SUBSECTIONS OF THAT --

MR. GETZ: 

YOUR HONOR, I'M GOING TO OBJECT TO THE RELEVANCE OF THAT PARTICULAR QUESTION CONCERNING THE SUBSECTIONS OF THE TICKET.

MS. GIBBS: 

YOUR HONOR, OFFICER HOUSEWORTH HAS TESTIFIED THAT ALL PERTINENT INFORMATION GOES ON THE CITATION. THIS WOULD GO TO SHOW THAT THERE IS NO SPECIFIC CODE REFERENCE SUBSECTION REFERENCED ON THE CITATION.

MR. GETZ: 

THAT'S NOT A QUESTION FOR OFFICER HOUSEWORTH.

THE COURT: 

I'LL SUSTAINED THE OBJECTION.

MS. GIBBS:

 I'LL MOVE ON, YOUR HONOR.

BY MS. GIBBS:

Q OKAY. SO THE CITATION FOR AUGUST 20TH READS: "THE ACCUMULATIVE SIGNAGE EXCEEDS AND/OR EXCEEDING THE RESIDENTIAL ZONING DISTRICT PROHIBITED;" IS THAT CORRECT?

A WAIT, SAY THAT AGAIN. I DIDN'T -- I DIDN'T --

Q I'M JUST SIMPLY READING THE REMARKS THAT YOU WROTE.  CAN YOU READ THE REMARKS THAT YOU WROTE?

A NO. IT'S FAINT. I CAN'T HARDLY READ IT.

Q OKAY. DO YOU NEED TO SEE A COPY OF THE --

A YES.

Q CAN YOU READ THE REMARKS THAT YOU WROTE ON AUGUST 20TH.

A "THE ACCUMULATIVE SIGNAGE EXCEEDS AND/OR EXCEEDING THE RESIDENTIAL ZONING DISTRICT PROHIBITED."

Q OKAY. AND HERE YOU HAVE NO RECORDING OF THE SQUARE FOOTAGE AMOUNT, CORRECT?

A CORRECT.

Q NO RECORDING OF THE NUMBER OF SIGNS IN THE YARD, CORRECT?

A CORRECT.

Q MOVING ON TO SEPTEMBER 3, 2016, DO YOU HAVE THAT CITATION IN FRONT OF YOU?

A YES.

Q OKAY. CAN YOU TELL ME WHAT THE FIRST WORD IN YOUR REMARKS SECTION IS.

A I CAN'T SEE IT.

Q (HANDING DOCUMENT)

A SAYS SINGLE SIGNS -- IT HAS SIGN AND HAS AN "S" IN PARENTHESES -- IN RESIDENTIAL ZONING DISTRICT.

Q SO THE FIRST WORD IS SINGLE?

A YES.

Q WELL, ON THIS PARTICULAR COPY, THE CODE SECTION THAT YOU HAVE WRITTEN THAT MR. AVERY WAS ALLEGEDLY IN VIOLATION  OF IS 21-13, SUBSECTION 6; IS THAT CORRECT? IS THAT WHAT'S WRITTEN ON YOUR COPY?

MR. GETZ: 

AGAIN, YOUR HONOR, I'M GOING TO OBJECT TO THE PHRASEOLOGY OF THE CODE SECTION ON THE TICKETS BECAUSE THAT'S NOT REALLY THE QUESTION FOR OFFICER HOUSEWORTH.

MS. GIBBS: 

WELL, YOUR HONOR, HE WROTE THE TICKET.  THAT SUBSECTION IS NOT -- DOES NOT POINT TO THE AGGREGATE SIGNAGE CODE ORDINANCE.

THE COURT: 

SO I'M GOING TO ALLOW YOU TO ESTABLISH WHAT HE WROTE ON THE TICKET. THE TICKET'S IN EVIDENCE THOUGH. SO AT SOME LEVEL IS IT CUMULATIVE?

I MEAN, THE TICKET'S IN EVIDENCE. IT SAYS WHAT IT SAYS.

MS. GIBBS: 

YES, YOUR HONOR
.

THE COURT: 

SO YOU CAN HAVE HIM ADMIT THAT THAT'S WHAT IT SAYS BUT I THINK THAT'S ABOUT AS FAR AS IT GOES.  HE'S NOT -- I DON'T THINK IT'S APPROPRIATE TO QUESTION HIM

ABOUT THE SUFFICIENCY OF IT OR WHAT THE CORRECT CODE SECTION IS. I THINK THAT'S A QUESTION OF LAW.

MS. GIBBS: 

OKAY, YOUR HONOR. IF YOU CAN GIVE ME JUST ONE MOMENT.

THE COURT: 

YES, MA'AM.

MS. GIBBS: 

(REVIEWING)

BY MS. GIBBS:

Q OKAY, OFFICER HOUSEWORTH, LET'S MOVE TO THE CITATION

FOR SEPTEMBER 10, 2016.

A OKAY.

Q IN THE REMARKS SECTION IT READS: "THE ACCUMULATIVE

SIGNAGE EXCEEDS AND/OR EXCEEDS THE RESIDENTIAL ZONING DISTRICT

IS PROHIBITED. TWENTY-TWO TOTAL SIGNS." DOES THAT LOOK RIGHT?

A YES.

Q OKAY. YOU DID NOT LIST THE SQUARE FOOTAGE THERE ON THE TICKET FOR SEPTEMBER 10; IS THAT RIGHT?

A YES.

Q YES, YOU DID? OR YES, THAT'S RIGHT, THAT YOU DID NOT?

A I SAID I DIDN'T.

Q YOU DIDN'T LIST THE SQUARE FOOTAGE?

A NO, I DIDN'T. PUT 22 TOTAL SIGNS.

Q OKAY. AND YOU DIDN'T LIST THE NUMBER OF THE OVERAGE FOR THE SQUARE FOOTAGE EITHER; IS THAT CORRECT?

A CORRECT.

Q OKAY. IF YOU CAN LOOK AT THE CITATION FOR OCTOBER 14, 2016. DO YOU HAVE THAT IN FRONT OF YOU?

A NO, I DON'T.

Q OCTOBER 14TH?

A IT'S FADED. I CAN'T REALLY SEE THE DATES ON IT.

Q OKAY. WELL, LET ME READ IT OUT LOUD WHAT YOU'VE WRITTEN IN THE REMARKS SECTION: "FAILURE TO COMPLY WITH THE COUNTY ORDINANCE IN REFERENCE TO EXCESSIVE SIGNS, SIGNS OVER 24 SQUARE FEET IS PROHIBITED. TWENTY-TWO TOTAL SIGNS EQUALS A HUNDRED THIRTY-TWO SQUARE FEET IN SIGNAGE FOR RESIDENTIAL. PROHIBITED."  WHAT DID YOU MEAN BY THAT OFFICER HOUSEWORTH?

A THAT HE HAD TWENTY-TWO TOTAL SIGNS.

Q WELL, YOU'VE GOT A LOT MORE WORDS THERE. WHAT ELSE DID YOU MEAN BY THAT?

A THAT HE WAS OVER THE 24 SQUARE FEET, WHICH IS THE ACTUAL MAXIMUM YOU CAN HAVE FOR A RESIDENTIAL, AND HE HAD 22 SIGNS AND IT CAME UP TO A HUNDRED AND THIRTY SQUARE FEET.

Q OKAY. AND IF YOU COULD LOOK AT THE CITATION FOR NOVEMBER 12TH. YOUR REMARKS THERE: "SIGNS EXCEEDING 24 SQUARE FEET IN RESIDENTIAL IS PROHIBITED. TWENTY-SEVEN SIGNS TOTAL."  YOU DIDN'T LIST SQUARE FOOTAGE, RIGHT?

A WHAT -- WHAT DAY ARE YOU ON?

Q NOVEMBER 12, 2016.

A "SIGNS EXCEEDING 24 SQUARE FEET IN RESIDENTIAL IS PROHIBITED. TWENTY-SEVEN SIGNS."

Q OKAY. YOU DIDN'T LIST THE SQUARE FOOTAGE FOR THAT CITATION?

A NO.

Q DIDN'T LIST THE SQUARE FOOTAGE -- THE OVERAGE OF THE SQUARE FOOTAGE EITHER, CORRECT?

A CORRECT.

Q AND LASTLY, THE CITATION FOR NOVEMBER 9TH -- 19TH, EXCUSE ME, OF 2016. YOU DIDN'T LIST TOTAL SQUARE FOOTAGE FOR THAT CITATION EITHER, CORRECT?

A "SIGNS EXCEEDING 24 SQUARE FEET IS PROHIBITED. NINETEEN SIGNS ERECTED IN FRONT YARD. FIFTEEN SIGNS OVER THE LIMIT."

Q OKAY. NO MENTION OF THE SQUARE FOOTAGE?

A RIGHT.

Q AND YOU DON'T MENTION THE SQUARE FOOTAGE OVERAGE EITHER, CORRECT?

A CORRECT.

MS. GIBBS: 

THAT'S ALL I HAVE, YOUR HONOR.

THE COURT: 

ANY REDIRECT?

R E D I R E C T  E X A M I N A T I O N

BY MR. GETZ:

Q OFFICER HOUSEWORTH, SIR --

A YES.

Q -- YOU TESTIFIED EARLIER THAT THE INDIVIDUAL SIGNS IN THE YARD EACH TIME YOU WERE OUT THERE WERE ABOUT THE SAME SIZE; IS THAT CORRECT?

A THAT'S CORRECT.

Q AND WHAT WAS THE APPROXIMATE SIZE OF EACH OF THE SIGNS?

A SIX SQUARE FEET.

Q AND EACH OF THE TIMES THAT YOU WERE OUT TO 1840 MASON MILL ROAD IN DECATUR, THE INCIDENTS THAT WE'VE BEEN TALKING ABOUT, THERE WERE -- WERE THERE MULTIPLE SIGNS OR ONE BIG SIGN IN THE YARD?

A THERE WERE MULTIPLE INDIVIDUAL SIGNS.

Q MULTIPLE INDIVIDUAL SIGNS --

A THAT'S CORRECT.

Q -- IS THAT WHAT YOU SAID?

A YES.

Q AND EACH TIME THAT YOU WOULD GO OUT THERE IN THE MATTERS THAT WE'VE BEEN TALKING ABOUT, WOULD THE AGGREGATE SIGNAGE BE ABOUT 24 SQUARE FEET OR BELOW THE 24 SQUARE FEET?

A ABOVE EACH TIME I WENT OUT.

MR. GETZ: 

THAT'S ALL I'VE GOT.

THE COURT:

 ALL RIGHT. ANY RECROSS?

MS. GIBBS: 

NOTHING FURTHER, YOUR HONOR.

THE COURT: 

ALL RIGHT. MAY THIS WITNESS STEP DOWN?

MR. GETZ: 

YES, YOUR HONOR.

THE COURT: 

ALL RIGHT. THANK YOU, OFFICER.

(THE WITNESS LEFT THE STAND.)

THE COURT: 

DOES THE COUNTY HAVE ANY OTHER EVIDENCE?

MR. GETZ: 

NO, YOUR HONOR. THE COUNTY RESTS.

THE COURT: 

ALL RIGHT, THANK YOU.

(TECHNICAL ADJUSTMENTS MADE TO THE MICROPHONES AND HEADSET.)

THE COURT: 

ALL RIGHT. THE COUNTY HAS RESTED.  DOES THE DEFENSE HAVE ANYTHING IT WISHES TO PRESENT?

MS. GIBBS: 

THE DEFENSE DOES NOT WISH TO PRESENT ANY WITNESSES AT THIS TIME, YOUR HONOR.

THE COURT: 

OKAY. DOES THE DEFENSE HAVE ANY MOTIONS OR ANYTHING ELSE FOR THE COURT TO CONSIDER?

MS. GIBBS: 

YES, YOUR HONOR. I GUESS AT THIS POINT I WOULD MOVE FOR A JUDGMENT OF ACQUITTAL ON ONE OF THE CITATIONS. MR. AVERY WAS CHARGED WITH 11 TOTAL CITATIONS.

ONE -- THERE WAS NO EVIDENCE PRESENTED FOR ONE CITATION ON SEPTEMBER 17TH AND I WOULD MOVE FOR A JUDGMENT OF ACQUITTAL ON THAT CITATION AS NO EVIDENCE WAS PRESENTED THAT HE WAS OVER THE SQUARE FOOTAGE SIGNAGE FOR THAT DATE.

MR. GETZ: 

THAT'S CORRECT, YOUR HONOR. THAT'S CITATION 028257 AND THE COUNTY DID NOT PRESENT ANY EVIDENCE ON THAT MATTER. SO THERE NO EVIDENCE ON THAT

BEFORE THE COURT, SO THAT MOTION IS PROPER.

THE COURT: 

ALL RIGHT. SO I WILL DIRECT THE JUDGMENT OF ACQUITTAL AS TO CITATION 028257 RELATED TO THE DATE OF SEPTEMBER 17, 2016.

MS. GIBBS: 

THANK YOU, YOUR HONOR.

THE COURT: 

YES, MA'AM.   ALL RIGHT. IS THERE ANYTHING ELSE?

(NO RESPONSE)

THE COURT: 

ALL RIGHT. AND NOW, JUST SO THAT WE DO IT IN THE RIGHT SEQUENCE, DOES THE DEFENDANT HAVE ANY EVIDENCE THAT IT WISHES TO PRESENT?

MS. GIBBS:

 IF YOU CAN GIVE ME ONE MOMENT, YOUR HONOR.

THE COURT: 

YES, MA'AM.

(DEFENSE COUNSEL CONFERRED WITH DEFENDANT.)

THE COURT: 

HERE'S WHAT I'M GOING TO DO. I'M GOING TO LET YOU HAVE FIVE MINUTES TO TALK TO YOUR CLIENT.

MS. MCGAUGHEY: 

THANK YOU, YOUR HONOR.

THE COURT: 

ALL RIGHT. WE'LL BE IN RECESS FOR FIVE MINUTES. ALL RIGHT. THANK YOU.

(RECESS WAS TAKEN, AFTER WHICH THE FOLLOWING TRANSPIRED):

THE COURT: 

HAVE YOU HAD A CHANCE TO SPEAK TO YOUR CLIENT?

MS. GIBBS:

 I HAVE, YOUR HONOR, AND HE DOES NOT WISH TO TESTIFY, SO THE DEFENSE WILL REST AT THIS TIME.

THE COURT: 

ALL RIGHT. THE DEFENSE HAS RESTED.  I ASSUME THAT MEANS THERE'S NO REBUTTAL EVIDENCE.

MR. GETZ: 

CORRECT.

THE COURT: 

SO THEN I WILL HEAR ARGUMENT. AND I THINK SO THAT MR. AVERY CAN HEAR THAT, I WILL PASS THE MICROPHONE. I BELIEVE I CAN DO THIS WITHOUT GETTING

ELECTROCUTED. AND IT APPEARS THAT THIS IS NOT CHARGED, SO I'M GOING TO HAND IT DOWN, AND THAT WAY YOU CAN HEAR THE ARGUMENT.

COULD YOU, I THINK, PUT IT AT THE PODIUM.

MR. GETZ: 

YOUR HONOR, WE'LL RESERVE.

THE COURT: 

ALL RIGHT.

DEFENSE CLOSING ARGUMENT

MS. GIBBS: 

YOUR HONOR, THIS CASE IS IN PART -- SEEMS TO BE KIND OF TWO BIFURCATED ISSUE FOR THIS -- OR ISSUES FOR THIS TRIAL.

THERE IS THE -- ON THE ONE HAND, THE ARGUMENT OR ISSUE OF MR. AVERY'S RIGHT TO HIS SPEECH, TO HIS FREE SPEECH, YOUR HONOR. IT'S BEEN TESTIFIED HERE TODAY THAT MR. AVERY PUTS THE SIGNS OUT IN HIS YARD. HE CREATES THE

SIGNS, PLACES THEM IN HIS YARD TO EXPRESS HIS OPINION. YOU KNOW, HE USES HIS -- USES HIS PROPERTY AS A PULPIT, IF YOU WILL, TO EXPRESS HIS OPINIONS ABOUT -- ABOUT THE --

MR. GETZ: 

YOUR HONOR, THAT'S NOT REALLY APPROPRIATEARGUMENT BECAUSE THE CONTENTS OF THE SIGNS ARE NOT AT ISSUE FOR THESE VIOLATIONS.

THE COURT: 

I WOULD TEND TO AGREE. THERE HAS BEEN NO -- THE CITATIONS THAT ARE ISSUED DON'T APPEAR TO RELATE IN ANY WAY TO THE CONTENT OF THE SPEECH CONTAINED IN THE SIGNS, AND YOU WOULD HAVE TO BE MAKING AN ARGUMENT THAT THE PARTICULAR RESTRICTION, LIMITING IT TO NO MORE THAN 24 SQUARE FEET, IS ESSENTIALLY A DENIAL OF THE FIRST AMENDMENT RIGHT TO FREE SPEECH. THAT'S A CONSTITUTIONAL ISSUE THAT WOULD NEED TO HAVE BEEN RAISED AND IT WASN'T.

SO I WOULD UNDERSTAND THAT ISSUE'S NOT BEFORE THE COURT.

MS. GIBBS: 

YES, YOUR HONOR.

OKAY. SO LET'S TALK ABOUT THE ACTUAL CODE SECTION IN THE CODE -- ORDINANCE CODE. SO IF WE LOOK TO THE ORDINANCE CODE, MR. AVERY IS ALLEGED TO HAVE VIOLATED SECTION 21-13 OF THE DEKALB COUNTY ORDINANCE CODE.   AND THAT STATUTE READS THAT LOTS -- EXCUSE ME, THIS 21-13, 

SUBSECTION 1:" "LOTS FOR RESIDENTIAL PURPOSES OTHER THAN FOR APARTMENTS, CONDOMINIUM, MOBILE HOME, OR TOWNHOUSE DEVELOPMENTS SHALL NOT HAVE AN AGGREGATE SIGN AREA GREATER THAN 24 SQUARE FEET PER LOT." SO IN LOOKING AT THAT, ONE COULD EASILY INTERPRET AGGREGATE SIGN AREA GREATER THAN 24 SQUARE FEET IN A LOT OF DIFFERENT WAYS.

IF WE MOVE TO THE DEFINITION SECTION OF THE DEKALB COUNTY ORDINANCE CODE, THERE ARE SEVERAL DEFINITIONS THAT WOULD SEEM TO HOPEFULLY HELP OUR UNDERSTANDING OF THAT CODE. ONE INCLUDES THE AGGREGATE SIGN AREA, AND THAT IS DEFINED IN THE STATUTE AS THE SUM TOTAL OF SIGN AREA FOR ANY AND ALL SIGNS FOR A GIVEN LOT.

AND THEN IF YOU GO ONE LEVEL FURTHER, YOUR HONOR, TO THE AREA -- THE DEFINITION FOR THE SIGN AREA, THAT DEFINITION IS DESCRIBED AS: "A SIGN AREA SHALL BE THE TOTAL AREA UPON THE MESSAGE -- "UPON WHICH A MESSAGE IS

DISPLAYED ON ANY SIGN CONSISTING OF THE SMALLEST SQUARE, RECTANGULAR, TRIANGLE, CIRCLE, OR COMBINATION THEREOF, WHICH ENCOMPASSES THE ENTIRE SIGN, INCLUSIVE OF ANY BORDER AND TRIM, BUT EXCLUDING THE BASE, APRON, SUPPORTS, AND OTHER STRUCTURAL MEMBERS."

SO GIVEN ALL OF THAT, YOUR HONOR, IT IS VERY CONFUSING LOOKING AT THE CODE AND TRYING TO FIGURE OUT WHAT EXACTLY IS REQUIRED OR NOT REQUIRED BY THE CODE IN TERMS OF SIGNAGE THAT IS ALLOWED IN THE LOT. AND I THINK IT'S -- THE DEFENSE WOULD ARGUE IS OPEN TO INTERPRETATION FOR WHAT WOULD BE CONSIDERED EXCEEDING THE SQUARE-FOOTAGE REQUIREMENT.

GIVEN THE CONFUSING AND SOMEWHAT VAGUE NATURE OF THE STATUTE, YOUR HONOR, I WOULD ARGUE OR SUBMIT TO THE COURT THAT THAT WOULD LEND ITSELF TO REASONABLE DOUBT AS TO WHETHER MR. AVERY WAS IN FACT IN VIOLATION OF THE CODE SECTION ON THE TEN SEPARATE DATES THAT WERE AT ISSUE TODAY.

ALSO, IF YOU ARE LOOKING AT THE CITATIONS THAT MR. AVERY WAS ISSUED, OFFICER HOUSEWORTH TESTIFIED THAT THE CITATIONS SHOULD INCLUDE ALL PERTINENT INFORMATION REGARDING THE ALLEGED VIOLATION. AND ON MANY OF THE CITATIONS THERE WAS NO RECORD OF THE SQUARE FOOTAGE AMOUNT FOR THE PARTICULAR DATES OR THE AMOUNT THAT WAS ALLEGED TO HAVE BEEN OVERAGES FOR THE SQUARE-FOOTAGE AMOUNT.

OFFICER HOUSEWORTH ALSO TESTIFIED THAT HE DID NOT MEASURE THE SIGNS EACH AND EVERY TIME THAT HE GAVE A CITATION, SO WE DON'T EVEN KNOW HOW MANY TIMES HE APPROXIMATED VERSUS HOW MANY TIMES THAT HE ACTUALLY DID GO OUT AND MEASURE THE SIGNS. SO THERE'S SOME QUESTION, SOME 

REASONABLE DOUBT AS TO WHETHER MR. AVERY WAS IN VIOLATION OF THESE CITATIONS EACH AND EVERY DATE THAT WAS GIVEN AND THAT'S BEEN PLACED BEFORE THE COURT.

ALSO SOME OF THE CITATIONS AS THEY ARE WRITTEN ARE ALSO CONFUSING THEMSELVES. DEFENSE EXHIBIT 7 FROM OCTOBER 14TH THAT OFFICER HOUSEWORTH TESTIFIED THAT HE WROTE READS DIRECTLY: "FAILURE TO COMPLY -- AND I QUOTE: "FAILURE TO COMPLY WITH THE COUNTY ORDINANCE IN REFERENCE

TO EXCESSIVE SIGNS. SIGNS OVER 24 SQUARE FEET IS PROHIBITED. TWENTY-TWO TOTAL SIGNS EQUALS A HUNDRED THIRTY-TWO SQUARE FEET.  SQUARE FEET IN SIGNAGE FOR RESIDENTIAL PROHIBITED."

YOUR HONOR, IT'S NOT EVEN A COHERENT SENTENCE. SO IF YOU HAVE SOME CITATIONS THAT YOU CAN'T EVEN FOLLOW AND DON'T EVEN MAKES SENSE, SOME CITATIONS THAT ARE MISSING SQUARE-FOOTAGE REQUIREMENTS OR SQUARE-FOOTAGE OVERAGES, YOU KNOW, THERE IS REASONABLE DOUBT AS TO WHETHER

MR. AVERY HAS BEEN IN OR OUT OF COMPLIANCE OR OUT OF COMPLIANCE WITH THOSE -- WITH THE STATUTES WITH THE CODE -- COUNTY CODE ORDINANCES BECAUSE THE CITATIONS AREN'T EVEN CLEAR THEMSELVES.

SO GIVEN THE CONFUSING NATURE OF THE ACTUAL CODE ITSELF, GIVEN THE CONFUSING AND LEFT OUT INFORMATION ON THE CITATIONS, YOUR HONOR, I WOULD ARGUE THAT THERE IS REASONABLE DOUBT BECAUSE OF THESE FACTORS AND WE WOULD RESPECTFULLY REQUEST THAT THE COURT FIND MR. AVERY NOT

GUILTY.

THE COURT: 

ALL RIGHT. THANK YOU.

COUNTY'S CLOSING ARGUMENT

MR. GETZ: 

YOUR HONOR, WITH RESPECT TO VAGUENESS OF THE DEFINITIONS, ANY CHALLENGE TO VAGUENESS IN THE LAW SHOULD'VE BEEN ADDRESSED THROUGH A DEMURRER PRIOR TO TRIAL. THAT WAS NOT DONE. WITH RESPECT TO INSUFFICIENCY OR ANY ISSUES WITH RESPECT TO THE FORM OF THE CITATIONS,

THAT SHOULD'VE ALSO BEEN ADDRESSED THROUGH A DEMURRER PRIOR TO TRIAL. AND THAT AGAIN WAS NOT DONE.

THE COUNTY'S POSITION IS THAT THE TESTIMONY OF OFFICER HOUSEWORTH WAS THAT THE SIGNAGE IN EACH CASE WAS ABOUT THE SAME, THAT EACH SIGN THAT HE SAW OUT THERE WAS APPROXIMATELY THE SAME SIZE, THAT ON EACH OF THE TEN TIMES THAT HE WENT OUT THERE THAT THERE WERE INDIVIDUAL SIGNAGE,

THE AGGREGATE SQUARE FOOTAGE OF WHICH WAS IN EXCESS OF 24 FEET.

IT'S THE COUNTY'S POSITION THAT OFFICER HOUSEWORTH'S TESTIMONY ALONG WITH THE PHOTOGRAPHS THAT WE'VE TENDERED INTO EVIDENCE AND ALONG WITH THE NOTES ON THE CITATIONS THEMSELVES, THAT THAT ADDS UP TO PROOF BEYOND A REASONABLE DOUBT IN THIS CASE, AND WE'D ASK THE COURT TO FIND THE DEFENDANT GUILTY OF THE TEN CITATIONS.

COURT'S DECISION

THE COURT: 

ALL RIGHT. SINCE I'VE HEARD FROM BOTH OF THE PARTIES IN CLOSING, I'M READY TO RENDER A DECISION.

I FIND -- MR. AVERY, IF YOU WOULD STAND.

AND, ACTUALLY, HAND ME THE MICROPHONE BACK.

THE DEPUTY: 

(COMPLIES)

THE COURT: 

ALL RIGHT. AFTER CONSIDERING ALL OF THE EVIDENCE AND HEARING THE ARGUMENTS BY BOTH COUNSEL, I'VE REACHED A DECISION. I FIND MR. AVERY GUILTY ON ALL TEN COUNTS.

I WILL HEAR FROM THE COUNTY AS TO SENTENCING.

MR. GETZ: 

YES, YOUR HONOR. THIS IS AN ISSUE --

THE COURT: 

HOLD ON ONE SECOND. LET'S GIVE THIS BACK SO THAT MR. AVERY CAN HEAR. THANK YOU.

(MICROPHONE ADJUSTED)

MR. GETZ: 

YOUR HONOR, THIS HAS BEEN AN ISSUE THAT HAS BEEN ONGOING FOR -- SINCE THE CODE ENFORCEMENT OFFICE HAS BEEN INVOLVED IN THIS CASE, SINCE APPROXIMATELY THE BEGINNING OF APRIL. YOUR HONOR, IN FACT, CODE WAS BACK

OUT THERE YESTERDAY AND THERE CONTINUED TO BE A NUMBER OF SIGNS AND DISPLAYS AT 1840 MASON MILL.

WE HAVE A GALLERY FULL OF PEOPLE WHO VIEW THE SIGNAGE AS BEING  DIRECTED TOWARDS THEM, AS BEING OF A HARASSING NEIGHBOR -- HARASSING NATURE.

WE HAVE FOUR LETTERS FROM PEOPLE IN THE COMMUNITY THAT I WOULD LIKE TO HAVE THE COURT CONSIDER WHEN IT PASSES ITS SENTENCE IN THIS CASE.

I WILL GIVE A RECOMMENDATION AND THEN THERE'S SOMEBODY FROM THE COMMUNITY WHO WOULD LIKE TO SPEAK ON BEHALF OF THE GROUP. I'D LIKE THE COURT TO HEAR FROM THEM.

THE COURT: 

YES, SIR.

MR. GETZ: 

THE COUNTY'S RECOMMENDATION IS GOING TO BE AN AGGREGATE SENTENCE OF 24 MONTHS OF PROBATION. SO THAT WOULD REQUIRE AT LEAST FOUR COUNTS TO RUN CONCURRENT OR CONSECUTIVE TO EACH OTHER BECAUSE THE MAXIMUM PENALTY FOR EACH OF THE INDIVIDUAL CITATIONS IS A HUNDRED AND EIGHTY

DAYS.

THE COUNTY WOULD ASK THAT THE COURT IMPOSE A $1,000 FINE, THAT THAT FINE BE IMPOSED. THE COUNTY WOULD THEN ASK THAT $9,000 IN FINES BE SUSPENDED UPON COMPLIANCE WITH THE LAW AND ALSO THAT THE COURT AS A CONDITION OF

PROBATION PRECLUDE ANY SIGNAGE OR ANY SUCH DISPLAYS FROM BEING PRESENT IN THE YARD AT 1840 MASON MILL AVENUE (SIC).  THAT WOULD BE A CONDITION OF PROBATION THAT'S REASONABLY RELATED TO REMEDYING THIS ONGOING SITUATION, AND THE LAW WOULD GIVE THE COURT THE ABILITY TO IMPOSE SUCH A RESTRICTION ON SIGNAGE AND OTHER SUCH DISPLAYS IN THE YARD UNDER THAT THEORY. IT WOULD BE EQUIVALENT, YOUR HONOR, TO, SAY, A FOURTH AMENDMENT WAIVER IN A DRUG CASE, WHICH THE COURTS HAVE SAID IS REASONABLE BECAUSE IT IS DESIGNED TO REMEDY A SITUATION WHICH CREATES AN ONGOING PROBLEM.

YOUR HONOR, WE WOULD ASK THAT THE $9,000 IN SIGNAGE (SIC), THAT THAT BE SUSPENDED UPON COMPLIANCE, AND WE WOULD ASK THAT THERE BE PERIODIC STATUS CHECKS ON THIS CASE AND THAT EACH 90 DAYS THAT -- WHAT WOULD THAT BE -- THAT EACH 90 DAYS A THOUSAND DOLLARS OF THAT FINE BE 

SUSPENDED TO GIVE THE DEFENDANT AN INCENTIVE TO DO WHAT HE IS SUPPOSED TO DO UNDER THE LAW AND TO STOP THIS BEHAVIOR THAT'S CAUSING PROBLEMS FOR THE FOLKS OUT IN THE COMMUNITY.

THE DEFENDANT: 

WHAT BEHAVIOR?

MR. GETZ:

 (TO THE GALLERY): 

WHO IS IT THAT WOULD LIKE TO -- IT'S MISS HINKLE; IS THAT CORRECT?

MISS HINKLE: 

YES.

MR. GETZ: 

MA'AM, IF YOU WOULD PLEASE COME FORWARD.

MISS HINKLE:

 (COMPLIES)

MR. GETZ: 

JUST STATE YOUR NAME FOR THE COURT AND LET THE JUDGE KNOW WHAT YOU WOULD LIKE HIM TO CONSIDER.

THE WITNESS: 

MARY HINKLE. AS YOU CONSIDER SENTENCING MR. AVERY, I HOPE YOU WILL REVIEW THE STATEMENTS THAT MR. GETZ HAS MADE AVAILABLE TO YOU FROM OUR NEIGHBORHOOD AND CONSIDER THAT OUR NEIGHBORHOOD HAS ENDURED MR. AVERY'S SIGNAGE AND DISRESPECTFUL BEHAVIOR FOR THE PAST SIX YEARS. THROUGH HIS SIGNAGE, BEHAVIORS, E-MAILS, AND BLOGS, HE HAS SHOWN US CONTEMPT, VILLIFIED OUR LEADERS, AND THREATENED OUR NEIGHBORHOOD.

WE DO NOT COME BEFORE YOU IN A CAPRICIOUS OR LIGHTHEARTED MANNER BUT WITH A HEAVY HEART. WE CAN NO LONGER DEAL WITH OUR NEIGHBOR BY OURSELVES. WE NEED YOUR HELP AND SO DOES HE.

SINCE THIS IS A CODE-VIOLATION TRIAL, OUR VIEW IS THIS. WHEN PEOPLE CHOOSE TO BECOME PROPERTY OWNERS IN DEKALB COUNTY, THEY INHERENTLY ASSUME THE RESPONSIBILITY OF LIVING WITHIN THE RULES AND REGULATIONS OF THE COUNTY.  THIS CODE SETS FORTH JUST THE MINIMUM STANDARDS THAT WE AS

PROPERTY OWNERS ARE EXPECTED TO FOLLOW FOR PROPERTY USE AND HEALTH AND SAFETY ISSUES IN THE MINIMUM STANDARDS THAT WE EXPECT OUR NEIGHBORS TO FOLLOW. EVEN IF, AS IN THE CASE OF MR. AVERY, WE BECOME ANGRY AT COUNTY GOVERNMENT, COMMUNITY INSTITUTIONS --

THE DEFENDANT: 

(INDISCERNIBLE)

MISS HINKLE: 

-- OR OUR NEIGHBORS, WE ARE EXPECTED TO ADHERE TO THESE ORDINANCES AND CONDUCT OUR BEHAVIOR ACCORDINGLY.

FOR THE PAST SIX YEARS, MR. AVERY HAS VIOLATED THE CODE CONTINUOUSLY TO THE DETRIMENT OF OUR NEIGHBORHOOD.  HIS SIGNAGE AND BEHAVIORS HAVE HAD A NEGATIVE IMPACT ON OUR RESIDENTS' PROPERTY VALUES AND OUR EMOTIONAL HEALTH AS DESCRIBED IN THE STATEMENTS. MOREOVER, HE HAS FLAUNTED HIS COMPLETE DISREGARD FOR OUR NEIGHBORHOOD AND THE JUSTICE SYSTEM BY CONTINUALLY MOUNTING AN EXCESSIVE NUMBER OF SIGNS AND INFLATABLES ON A DAILY BASIS IN SPITE OF RECEIVING NUMEROUS CITATIONS.

HIS BLOG AND E-MAILS SUGGEST THAT HE FINDS ALL OF THIS HUMOROUS AND THAT HE IS, QUOTE, "PLAYING A GAME WITH US." WELL, WE DO NOT VIEW HIS SADISTIC AND ANTAGONISTIC BEHAVIOR AS A GAME NOR DO WE FIND IT HUMOROUS. WE ASK

THAT THE COURT SENTENCE HIM IN SUCH A MANNER THAT WILL ENSURE HIS ADHERENCE TO THE CODE --

THE DEFENDANT: 

SHE'S GOING TO KILL ME.

THE WITNESS: 

-- AND PROTECT OUR NEIGHBORHOOD. WE ALSO ASK FOR A SENTENCE THAT WILL GUARANTEE HIS FACING MORE SERIOUS CONSEQUENCES IF HE CONTINUES TO VIOLATE THE CODE AND THREATEN OUR RESIDENTS.

(APPLAUSE FROM THE GALLERY)

THE DEFENDANT: 

(INDISCERNIBLE)

(DEFENDANT GESTURED TO THE GALLERY.)

THE DEFENDANT: 

DON'T FORGET CHARLES DUCK BECAUSE THAT'S PAID BY TAXPAYER'S EXPENSE IN JAIL IN (INDISCERNIBLE) TENNESSEE.

MS. MCGAUGHEY: 

ALL RIGHT.

THE DEFENDANT: 

THAT'S IT.

THE COURT: 

ALL RIGHT. I'LL HEAR FROM THE DEFENSE.

MS. GIBBS: 

YES, YOUR HONOR. WHILE WE MAINTAIN THAT MR. AVERY IS NOT COMPETENT TO STAND TRIAL, WITH RESPECT TO YOUR HONOR'S FINDING THAT HE HAS BEEN FOUND GUILTY OF THESE CITATIONS, WE WOULD ASK THE COURT TO CONSIDER THAT MR. AVERY IS CURRENTLY UNEMPLOYED AT THIS TIME.

AND REGARDING THE STATE'S REQUEST THAT THE COURT PRECLUDE ANY SIGNS BEING POSTED IN HIS YARD, YOUR HONOR, WE WOULD ASK THAT THE SIGNS NOT -- IF THERE WAS A CONDITION IMPOSED BY THE COURT, THAT IT WOULD BE ONE THAT

WAS IN ACCORDANCE WITH CODE ORDINANCE WHICH STATES THAT THEY CAN'T BE OVER THE SIGNAGE LIMIT, THE 24 SQUARE FEET.  BUT TO RULE OR TO STATE THAT MR. AVERY DOESN'T HAVE -- OR CANNOT POST ANY SIGNS IN HIS YARD IS CERTAINLY INTRUSIVE UPON HIS RIGHTS TO EXPRESS HIMSELF AND CERTAINLY NOT 
ANALOGOUS TO A FOURTH AMENDMENT WAIVER WHICH HAS TO DO WITH SEARCH AND SEIZURE OF A PERSON'S PLACE AND PROPERTY AND IT HAS NOTHING TO DO WITH MR. AVERY'S RIGHT TO -- FIRST AMENDMENT RIGHT TO EXPRESS HIMSELF.

SO, YOUR HONOR, WE WOULD ASK THAT YOU WOULD KEEP ALL OF THOSE FACTORS IN MIND AS YOU ARE MAKING YOUR DECISION ON SENTENCING.

THE COURT: 

OKAY. THANK YOU. I WILL. Y'ALL CAN SIT DOWN. IT'S GOING TO TAKE A MINUTE. I THINK THAT THE SENTENCE HAS TO BE STRUCTURED IN SUCH A WAY TO PROVIDE MR. AVERY WITH SUFFICIENT INCENTIVE TO COMPLY WITH THE ORDINANCE. AS SUCH --

MS. MCGAUGHEY: 

YOUR HONOR, MAY WE APPROACH? MAY WE STAND UP THERE SO HE CAN HEAR?

THE COURT: 

OH, YEAH. I'LL SPEAK INTO THAT. I'M SORRY. I MEANT --

MS. MCGAUGHEY: 

HE'S NOT ABLE TO HEAR.

THE COURT:

 -- TO GET THAT. I MEANT TO GET THAT. I APOLOGIZE. I'LL START OVER. SORRY ABOUT THAT.

(DEFENDANT CONFERRED WITH DEFENSE COUNSEL.)

THE COURT: 

SO AS I WAS SAYING, I BELIEVE THE SENTENCE HAS TO BE STRUCTURED IN SUCH A WAY AS TO PROVIDE MR. AVERY WITH --

MS. MCGAUGHEY: 

YOUR HONOR, IF WE MAY MOVE CLOSER?

THE COURT: 

OKAY.

THE DEFENDANT: 

DO I BRING THIS WITH ME OR --

MS. MCGAUGHEY: 

NO. JUST COME UP RIGHT HERE.

THE DEFENDANT:

 I THINK THE BATTERY'S GONE ON THIS ONE.

THE COURT: 

WE HAVE TO PROVIDE MR. AVERY WITH SUFFICIENT INCENTIVE SO THAT HE WILL COMPLY WITH THE COUNTY ORDINANCE. SO IN ORDER TO DO THAT, I AM GOING TO

RUN ALL TEN CITATIONS CONSECUTIVE. THAT CREATES A PERIOD OF 60 MONTHS.

A SPECIAL CONDITION OF THAT SENTENCE WILL BE THAT MR. AVERY DOES NOT VIOLATE THE DEKALB COUNTY ORDINANCE CODE IN ANY RESPECT. SO TO THE EXTENT THAT THERE ARE SECTIONS OF THE DEKALB COUNTY ORDINANCE THAT ADDRESS THE CONTENT OF SIGNAGE AND THE SECTIONS OF THE DEKALB COUNTY

CODE THAT ADDRESS THE SIZE OF TOTAL SIGNAGE, AND ANY OTHER SECTIONS OF THE DEKALB COUNTY ORDINANCE, MR. AVERY WILL BE REQUIRED TO NOT VIOLATE ANY OF THOSE SECTIONS. THAT WILL BE A SPECIAL CONDITION.

THE DEFENDANT:

 IT'S SO VAGUE, IT'S GOING TO BE EASY TO VIOLATE.

MS. MCGAUGHEY:

 I'LL EXPLAIN IT TO YOU.

THE COURT: 

THAT WILL BE A SPECIAL CONDITION OF THE SENTENCE, SUCH THAT IF HE VIOLATES IT, ANY PERIOD OF THAT REMAINS CAN BE REVOKED IN TOTAL. IT IS CLEAR TO ME THAT MR. AVERY HAS NOT BEEN TAKING THE OBLIGATION TO BE IN COMPLIANCE SERIOUSLY AND SO PART OF THE SENTENCE IS GOING TO INVOLVE JAIL TIME.

THE DEFENDANT: 

YOU DON'T HAVE TO WORRY ABOUT THAT.

THE COURT: 

MR. AVERY IS GOING TO BE TAKEN INTO CUSTODY NOW. MR. AVERY IS GOING TO SPEND A WEEK IN THE DEKALB COUNTY JAIL. AFTER HE'S SPENT A WEEK IN THE DEKALB COUNTY JAIL, MR. AVERY WILL HAVE 30 DAYS, A 30-DAY PERIOD OF TIME TO REMOVE THE SIGNAGE FROM HIS PROPERTY AND TO BE IN COMPLIANCE WITH THE DEKALB COUNTY ORDINANCE. 

IF AT THE END OF THE 30 DAYS, MR. AVERY HAS NOT REMOVED THE SIGNAGE AND IS NOT IN COMPLIANCE WITH THE ORDINANCE PROVISIONS, HE WILL SPEND TWO  WEEKS IN THE DEKALB COUNTY JAIL. AT THE END OF THAT TWO WEEKS IN THE

DEKALB COUNTY JAIL, MR. AVERY WILL HAVE 30 DAYS TO BRING HIS PROPERTY INTO COMPLIANCE.

IF HE DOES NOT BRING HIS PROPERTY INTO COMPLIANCE WITHIN THAT 30-DAY PERIOD OF TIME, MR. AVERY IS GOING TO SPEND A MONTH IN THE DEKALB COUNTY JAIL. AFTER THAT MONTH IN THE DEKALB COUNTY JAIL, MR. AVERY WILL HAVE A ONE-MONTH PERIOD OF TIME TO BRING HIS PROPERTY INTO COMPLIANCE.

THE DEFENDANT:

IF I DIDN'T OWN --

THE COURT:

 IF HE FAILS TO BRING HIS PROPERTY INTO COMPLIANCE AT THE END OF THAT 30-DAY PERIOD, MR. AVERY WILL SPEND A MONTH IN THE DEKALB COUNTY JAIL. I'M SORRY, TWO MONTHS IN THE DEKALB COUNTY JAIL. IT GOES ONE WEEK, TWO WEEKS, ONE MONTH, TWO MONTHS, AND HE'S GOT A 30-DAY PERIOD OF TIME IN BETWEEN EACH OF THOSE WITHIN WHICH TO BRING HIS PROPERTY INTO COMPLIANCE.

AFTER THE TWO MONTHS IN THE DEKALB COUNTY JAIL, MR. AVERY WILL HAVE A PERIOD OF 30 DAYS TO BRING HIS PROPERTY INTO COMPLIANCE. IF HIS PROPERTY IS NOT IN COMPLIANCE AT THE END OF THAT 30 DAYS, MR. AVERY IS GOING TO SPEND FOUR MONTHS IN THE DEKALB COUNTY JAIL.

AT THE END OF THAT FOUR-MONTH PERIOD OF TIME IN THE DEKALB COUNTY JAIL, MR. AVERY WILL HAVE ONE FINAL 30-DAY PERIOD OF TIME TO BRING HIS PROPERTY INTO COMPLIANCE. IF HE DOES NOT, THEN HE WILL SPEND THE BALANCE OF THE

SENTENCE, TO THE EXTENT THAT IT IS -- WE HAVE THE SITUATION WHERE ONLY A PERIOD OF EACH OF THE PROBATED -- PROBATIONARY PERIODS CAN BE INCARCERATED, BUT HE WILL SPEND THE BALANCE OF THE POSSIBLE  INCARCERATION IN THE DEKALB COUNTY JAIL.

HE WILL BE ASSESSED A $10,000 FINE.

(DEFENDANT CONFERRED WITH DEFENSE COUNSEL.)

THE COURT: 

THE FINE WILL BE SPREAD OVER THE 60 MONTHS AND IT WILL BE FOR EVERY MONTH THAT MR. AVERY -- I'M SORRY, FOR EVERY SIX-MONTH PERIOD OF TIME THAT

MR. AVERY IS IN COMPLIANCE, THE FINE WILL BE SUSPENDED SUCH THAT IF MR. AVERY COMES INTO COMPLIANCE, HE WILL NOT HAVE TO PAY THE FINE AND HE WILL NOT HAVE TO GO BACK TO JAIL AFTER HE SPENDS THE WEEK IN THE DEKALB COUNTY JAIL.

BUT IF MR. AVERY DOESN'T GET INTO COMPLIANCE, HE WILL HAVE TO PAY THE $10,000 AND HE'S GOING TO HAVE TO SPEND TIME IN JAIL.

AND SO IF HE DOESN'T GET INTO COMPLIANCE, IT'S A CHOICE BY HIM.

MS. MCGAUGHEY: 

SO, YOUR HONOR, IF HE'S IN COMPLIANCE FOR SIX MONTHS, IS THERE A PERCENTAGE OF THE FINE THAT IS FORGIVEN OR ...

THE COURT: 

SO IF HE'S IN COMPLIANCE FOR SIX MONTHS, THEN THAT THOUSAND DOLLAR IS -- SO THERE'S A THOUSAND DOLLARS FOR EACH SIX MONTH PERIOD OF TIME. THERE'S A THOUSAND-DOLLAR FINE THAT IF HE'S IN COMPLIANCE WILL BE

SUSPENDED. BUT HE'S GOING TO SPEND A WEEK IN JAIL TO START.

MS. MCGAUGHEY: 

YOUR HONOR, COULD IT BE POSSIBLE THAT MR. AVERY EITHER REPORT LATER ON TONIGHT OR REPORT TOMORROW MORNING. HE HAS CATS.

THE DEFENDANT: 

A CAT. I'M DOWN TO ONE. JUST A CAT.

MS. MCGAUGHEY: 

AND HE LIVES ALONE AND DOES NOT HAVE ANYONE TO FEED THEM. SO IT WOULD BE IN ORDER TO FEED THE CAT.

THE DEFENDANT: 

(INDISCERNIBLE) LIVED ALONE.

MS. MCGAUGHEY: 

HE'S NEVER FAILED TO APPEAR IN COURT.  HE'S NOT A RISK OF FLIGHT, YOUR HONOR.

(DEFENDANT CONFERRED WITH DEFENSE COUNSEL.)

MS. MCGAUGHEY: 

AND IF THE COURT WOULD LIKE TO SUSPEND SOME ADDITIONAL JAIL TIME ON THE CONDITION THAT HE APPEAR.

MR. GETZ: 

YOUR HONOR, THE STATE HAS SOME CONCERNS AND THE STATE WOULD LIKE THE SENTENCE TO BE EFFECTUATED IMMEDIATELY. EVEN THOUGH THE STATE DID NOT SEEK THIS, THE STATE WANTS THIS EXECUTED IMMEDIATELY. WE JUST DON'T

BELIEVE THAT UNDER THE CIRCUMSTANCES THAT THE DEFENDANT IS A GOOD CANDIDATE TO DO WHAT HE SUPPOSED TO DO. WE WOULD LIKE THIS CONSEQUENCE TO BE IMPOSED NOW.

THE COURT:

 I AM NOT GOING TO GIVE HIM A LATE TURN-IN. I'M SURE THAT MR. AVERY CAN PROVIDE A KEY TO HIS RESIDENCE TO SOMEBODY IN YOUR OFFICE AND YOU GUYS CAN GO OVER THERE AND FEED THE CAT OR LET THE CAT OUT. HE'S GOING INTO CUSTODY NOW AND SERVING A WEEK IN JAIL.

MS. MCGAUGHEY: 

THANK YOU, JUDGE. IF I MAY HAVE A MOMENT TO TALK TO MR. AVERY BEFORE HE'S TAKEN DOWN.

THE COURT: 

YES, YOU MAY.

THE DEPUTY: 

JUST GO IN THAT ROOM. SIR.

MS. MCGAUGHEY: 

WE'RE GOING TO TALK.

THE DEPUTY: 

GO INTO THE ROOM RIGHT THERE.

THE DEFENDANT: 

OVER THERE? UH-HUH.

(DEFENDANT WAS ESCORTED FROM OF THE COURTROOM.)

THE DEFENDANT: 

YOU DIDN'T WIN. YOU JUST HAVE TO WATCH ME.

(HEARING CONCLUDED AT 3:32 P.M.)

CERTIFICATE

STATE OF GEORGIA                                                    )

COUNTY OF DEKALB                                                 )

I, MARY K. MCMAHAN, CERTIFIED COURT REPORTER IN AND FOR THE STATE OF GEORGIA AT LARGE, CERTIFY THAT THE FOREGOING PAGES, 4 THROUGH 66, LINE NUMBER 5, CONSTITUTE, TO THE BEST OF MY ABILITY, A COMPLETE AND ACCURATE
TRANSCRIPTION OF THE PROCEEDINGS OF THE COURT AND WERE ACCURATELY REPORTED AND TRANSCRIBED BY ME OR UNDER MY DIRECTION.

I FURTHER CERTIFY THAT I AM NEITHER RELATED TO OR COUNSEL TO ANY OF THE PARTIES HEREIN; NOR HAVE ANY INTEREST IN THE OUTCOME OF THE ABOVE-STYLED PROCEEDINGS.

THIS CERTIFICATION IS EXPRESSLY DENIED UPON THE DISASSEMBLY AND/OR PHOTOCOPYING OF THE FOREGOING TRANSCRIPT, OR ANY PORTION THEREOF, UNLESS SUCH DISASSEMBLY/PHOTOCOPYING IS DONE BY THE UNDERSIGNED AND
ORIGINAL SIGNATURE AND OFFICIAL SEAL ARE ATTACHED THEREON.

WITNESS MY HAND AND OFFICIAL SEAL IN DUNWOODY, DEKALB COUNTY, GEORGIA, THIS THE 30TH OF MARCH, 2017.

MARY K. MCMAHAN
CERTIFICATE NO. 2757

STEVEN RAY GREEN COURT REPORTING, LLC
(404)733-6070

*Mary K McMahan*

***