Criminal Law

• Publication year: 2012

Criminal Law

Franklin J. Hogue

Laura D. Hogue

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Criminal Law

by Laura D. Hogue^* and Franklin J. Hogue^**

I. Introduction

The Authors reviewed the most important criminal cases during this reporting period-from June 1, 2011 through May 31, 2012¹ -that will likely have an effect upon the way prosecutors and defense attorneys approach criminal cases in Georgia.

II. Bond

Section 17-7-50 of the Official Code of Georgia Annotated (O.C.G.A.)² requires that any arrested person who is denied bail have his or her case presented to a grand jury within ninety days of confinement.³ Bail must be set by the court should the accused fail to be indicted within

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this timeframe.⁴ In Tatis v. State,⁵ the defendant, in an attempt to avoid arrest, broke both of his ankles and found himself under arrest and handcuffed to a stretcher at Grady Memorial Hospital. Here, the defendant remained (handcuffed and guarded by sheriffs office personnel in an area of the hospital containing jail cells) for two days before he was transferred to the Fulton County Jail. Ninety-two days after police handcuffed Tatis to a stretcher and kept watch over him in the hospital, but within ninety days of his transfer to jail, Tatis was indicted by a Fulton County grand jury.⁶

Tatis filed a motion for a reasonable bond to be set pursuant to O.C.G.A. § 17-7-50, arguing that, for the purposes of the statute, the defendant's "confinement" began when police handcuffed him to the stretcher at the hospital. The State argued, and the trial court agreed, Tatis's confinement began when he arrived at the Fulton County jail.⁷ The Georgia Supreme Court agreed with the defense and held that the word "confinement" to mean "restraint" and to encompass a situation like that of the defendant in this case, where a person is handcuffed to a stretcher at a hospital and watched by a police guard.⁸ "'[C]onfinement' is a situation in which the defendant may not leave official custody of his own volition; a situation where one is under arrest and in a facility pursuant to governmental authority where he is guarded or restrained in some manner."⁹ Accordingly, the supreme court held that the defendant's confinement began ninety-two days before his indictment and that the trial court erred in failing to grant a reasonable bond.¹⁰ "[T]his case make[s] clear that while one who is incarcerated is in confinement under [O.C.G.A.] § 17-7-50, one need not be incarcerated to be confined under [O.C.G.A.] § 17-7-50."¹¹

III. Preservation of Evidence

In October 2007, Daniel Stephens died in a single-car accident. Police released the other occupant of the car, Avon Mussman, believing he was a passenger and, thus, not responsible for the accident. Police impounded the car, removed samples of biological material, and released the car

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to a towing company.¹² Through the evidence taken from the car, the medical examiner and investigating officer concluded the deceased, Stephens, was the passenger and Mussman was the driver. Mussman was indicted for vehicular homicide in July 2008. Mussman sought suppression of the evidence which was denied by the trial court.¹³

In Mussman v. State,¹⁴ the Georgia Court of Appeals reversed the trial court's denial of Mussman's motion to suppress evidence or dismiss the indictment, which Mussman made because the car had been sold and was no longer available for Mussman to inspect and independently examine. The court of appeals held that the State's failure to preserve the car for inspection by the defense was a constitutional violation of the defendant's due process rights and that the State had violated O.C.G.A. § 17-5-56(a).¹⁵ O.C.G.A. § 17-5-56(a) states, in effect, that governmental entities in possession of physical evidence containing biological material shall maintain that physical evidence.¹⁶ According to the court of appeals, law enforcement must not only maintain the biological samples but also the "container" or "source" of the material.¹⁷

The Georgia Supreme Court reviewed this holding in Mussman to determine (1) whether the court of appeals's interpretation of O.C.G.A. § 17-5-56(a) was in error, and (2) whether the court of appeals's holding that the State committed a due process violation for failure to preserve evidence was in error.¹⁸ The supreme court reasoned that the plain language of the statute does not require the State to maintain all "containers" and "sources" but rather simply the contents that, in the words of the statute, "relate to the identity of the perpetrator of the crime."¹⁹ The court noted, "[t]he evidence rooms maintained by law enforcement. . . would need to increase in capacity to unimaginable and unwieldy levels in order to accommodate the assortment of household objects, vehicles, and other 'sources' of biological evidence that might be of 'conceivable evidentiary significance' to the defense . . . ."²⁰ The

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supreme court also held that the loss of the car did not violate the defendant's due process rights because, contrary to the opinion below, the loss was not the result of "bad faith."²¹ The court determined that police released the car pursuant to established policy, and there was no police conduct suggesting bad faith.²²

IV. Grand Jury Indictments

In a case of first impression, the Georgia Court of Appeals concluded that the Georgia legislature never intended for a special purpose grand jury to have the power to return a criminal indictment, thereby vacating the indictment returned by a Gwinnett County special purpose grand jury.²³ In Kenerly v. State,²⁴ the trial court, upon a petition from the Gwinnett County District Attorney, impaneled a special purpose grand jury to investigate the acquisition of real property by the Gwinnett County Board of Commissioners.²⁵ The special purpose grand jury was properly impaneled pursuant to the authority set forth in O.G.G.A. § 15-12-100,²⁶ which specifically authorizes the impaneling of a special purpose grand jury "for the purpose of investigating any alleged violation of the laws of this state or any other matter subject to investigation by grand juries as provided by law."²⁷

After conducting more than a year-long investigation, the special purpose grand jury returned an indictment against Kenerly, a Gwinnett County commissioner, charging him with one count of bribery and two counts of failing to disclose financial interest. Kenerly objected to the indictment; however, the trial court upheld the special purpose grand jury's authority to return it.²⁸

The Georgia Court of Appeals analyzed the language of the statute governing special purpose grand juries and O.C.G.A. § 15-12-71,²⁹ the statute setting forth the authority and responsibilities of a regular grand jury.³⁰ The appellate court noted, first, that O.C.G.A. § 15-12-100 had no language "giving a special purpose grand jury the power to return a

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criminal indictment."³¹ Second, the court of appeals relied upon "the venerable principle of the maxim 'expressum facit cessare taciturn,'" that the legislature's deliberate omission of the special grand jury's authority to return indictments-which is expressly conferred upon the regular grand juries in O.C.G.A. § 15-12-71-required the court to conclude that such authority cannot be exercised by the special purpose grand jury.³² The indictment could not stand.³³

The two-bite rule saved the day in State v. Dempsey.³⁴ Pursuant to O.C.G.A. § 17-7-53.1,³⁵ the State has the proverbial "two-bites" in grand jury presentation.³⁶ This statute directs that if two true-bills pertaining to the same offense are returned by a grand jury and are quashed by motion or demurrer, this "shall be a bar to any future prosecution of [the] defendant" for that offense.³⁷ Dempsey was indicted for murder and a number of accompanying charges arising out of his having shot Crane following a longstanding property dispute between the two.³⁸ The defense argued a motion to quash this indictment because the grand jury foreman was an elected member of the city council, and under O.C.G.A. § 15-12-60(b),³⁹ any elected local government official is prohibited from serving on a grand jury.⁴⁰

The trial court, erroneously, did not grant the motion to quash but did order the city councilman be removed from the grand jury.⁴¹ The next day, the district attorney presented the case again to the grand jury-this time without the city councilman on the panel and without presenting any evidence. Relying entirely upon the evidence the grand jury heard in support of their first consideration of the matter, they returned a second indictment, charging Dempsey with the same offenses for which he was previously indicted.⁴²

A second motion to quash was filed, which the trial court granted, because the "grand jury has no right to find any bill . . . except upon the

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testimony of a witness . . . ."⁴³ The defense argued the trial court's failure to properly grant its first motion to quash was a critical error because the two-bite rule would mean the State was precluded from a third shot at grand jury presentation. The trial court's rationale for denying the first motion to quash was based solely upon timing.⁴⁴ Relying upon the rule that prevailed for many years, a challenge to the composition of the grand jury had to be made "before the indictment was returned," unless the defendant could show he was without actual or constructive knowledge of the illegality of the grand jury's composition.⁴⁵

The defense, relying upon the 2003 amendment to O.C.G.A. § 17-7-100,⁴⁶ which reads, "[a]ll pretrial motions, including demurrers and special pleas, shall be filed within ten days after the date of arraignment," necessarily expanded the timeframe for the filing of a motion to quash predicated upon the composition of the grand jury.⁴⁷ The Georgia Supreme Court agreed, and, in doing so, overruled the line of cases holding onto the timing exception that had been carved out for challenges to the composition...