Brown v. State

• Decision Date: 02 June 2014
• Docket Number: No. S13G1612.,S13G1612.
• Citation: 295 Ga. 240,759 S.E.2d 489
• Court: Georgia Supreme Court
• Parties: BROWN v. The STATE.

295 Ga. 240

759 S.E.2d 489

BROWN

v.The STATE.

No. S13G1612.

Supreme Court of Georgia.

June 2, 2014.

John C. Butters, Law Office of John C. Butters, John E. Floyd, Bondurant, Mixson & Elmore, LLP, John Stuart Melvin, Asst. Dist. Atty., D. Victor Reynolds, Dist. Atty., Cobb Judicial Circuit Attorney's Office, Marietta, for appellee.

John Frank Salter, Jr., Roy E. Barnes, James Cameron Tribble, The Barnes Law Group, LLC, Marietta, Anthony Charles Talbott Lake, Thomas A. Withers, Craig A. Gillen, Gillen, Withers & Lake, LLC, Savannah, for appellant.

THOMPSON, Chief Justice.

Dwight T. Brown, a former President and CEO of Cobb Electric Membership Corporation (“Cobb EMC”), was indicted on January 6, 2011, on charges of theft by taking, filing false statements, conspiracy to defraud Cobb County and the Cobb County School District, and violations of the Georgia RICO statute. These charges stemmed from allegations that Brown stole millions of dollars in “ patronage capital” from Cobb EMC's members, including Cobb County and the Cobb County School District. On March 24, 2011, the trial court quashed the indictment on the ground that it was not returned in open court and the order was affirmed on appeal. State v. Brown, 315 Ga.App. 282, 726 S.E.2d 764 (2012), aff'd, 293 Ga. 493, 748 S.E.2d 376 (2013).

Meanwhile, anticipating a second indictment, Brown filed a motion to challenge the grand jury array on May 27, 2011, in an attempt to remove Cobb EMC members from the grand jury.¹ The State did not respond to the motion and no ruling was entered upon it. On July 7, 2011, the State obtained a new indictment against Brown setting forth the same charges alleged in the previous indictment, as well as additional charges of influencing and threatening witnesses.

Brown filed a motion to abate the second indictment on the ground the grand jury was composed in part of persons, i.e., Cobb EMC members, who were victims of the alleged crimes. The trial court denied Brown's plea in abatement and the Court of Appeals affirmed. Brown v. State, 322 Ga.App. 446, 745 S.E.2d 699 (2013). We granted Brown's petition for a writ of certiorari and posed this question: Did the Court of Appeals err in affirming the denial of the defendant's challenge to the impartiality of the grand jurors who returned his second indictment? Our straightforward answer to this question is “no.”

In determining whether or not grand jury proceedings are biased against an accused, it is an unquestioned rule of law that members of a grand jury may not be selected in a manner that discriminates against persons of a particular race or religion. However, “[t]he basic theory of the functions of the grand jury, does not require that grand jurors should be impartial and unbiased. In this respect, their position is entirely different from that of petit jurors. The Sixth Amendment to the Constitution of the United States expressly provides that the trial jury in a criminal case must be ‘impartial.’ No such requirement in respect to grand juries is found in the Fifth Amendment, which contains the guaranty against prosecutions for infamous crimes unless on a presentment or indictment of a grand jury. It is hardly necessary to be reminded that each of these Amendments was adopted at the same time as a part of the group consisting of the first ten Amendments. A grand jury does not pass on the guilt or innocence of the defendant, but merely determines whether he should be brought to trial. It is purely an accusatory body. This view can be demonstrated by the fact that a grand jury may undertake an investigation on its own initiative, or at the behest of one of its members. In such event, the grand juror who instigated the proceeding that may result in an indictment, obviously can hardly be deemed to be impartial, but he is not disqualified for that reason.” United States v. Knowles, 147 F.Supp. 19, 21 (1957).

Creamer v. State, 150 Ga.App. 458, 460–461, 258 S.E.2d 212 (1979). See also In re Hensley, 184 Ga.App. 625, 627–628, 362 S.E.2d 432 (1987) (“It is the statutory duty of grand jurors to examine or make presentments of offenses which come to their knowledge either before or after they have been sworn. OCGA § 15–12–74.”)

In Georgia, our approach to grand jury challenges depends on whether the challenge is propter defectum or propter affectum. See generally Farrar v. State, 187 Ga. 401, 403, 200 S.E. 803 (1939). If propter defectum, i.e., if a grand juror lacks the capacity to serve, a timely filed plea in abatement will lie. See, e.g., State v. Dempsey, 290 Ga. 763, 764(1), 727 S.E.2d 670 (2012) (plea in abatement sustained because elected member of city council not qualified to serve as grand juror); Reich v. State, 53 Ga. 73 (1874) (plea in abatement successful because grand juror was alien and, therefore, incompetent to serve). A claim of disqualification propter affectum, on the other hand, i.e., for favor or bias in a particular case, provides no ground for a plea in abatement. See Sallie v. State, 276 Ga. 506, 514(14), 578 S.E.2d 444 (2003) (grand jury is purely accusatory body and grand juror is not incompetent to serve because he heard or read about the case or formed or expressed an opinion about guilt); In re Hensley, 184 Ga.App. 625, 627(2), 362 S.E.2d 432, supra (grand juror need not be impartial and unbiased). Compare Lowman v. State, 197 Ga.App. 556, 398 S.E.2d 832 (1990) (member of electric membership corporation disqualified from serving as petit juror in case in which corporation had interest) (decided prior to the 2009 enactment of OCGA § 15–12–137.1) with Simpson v. State, 100 Ga.App. 726, 112 S.E.2d 314 (1959) (member of electric membership corporation could serve as grand juror in case in which corporation had interest).

In this case, Brown's plea in abatement claimed four grand jurors were members of Cobb EMC and presumably biased. Because this was a challenge propter affectum, Brown's motion in abatement was properly denied. See, e.g., Black v. State, 264 Ga. 550, 551(2), 448 S.E.2d 357 (1994) (motion to quash indictment properly denied even though sister-in-law of sheriff, who was victim of aggravated assault committed by defendant, was a grand juror); Fisher v. State, 93 Ga. 309, 20 S.E. 329 (1893) (plea in abatement was not successful where defendant accused of breaking and entering railroad company car and grand juror was agent of company); Lascelles v. State, 90 Ga. 347, 372–375, 16 S.E. 945 (1892) (plea in abatement denied where member of grand jury related by affinity to prosecutor); Simpson v. State, supra (plea in abatement failed even though grand jurors were members and stockholders of Satilla Rural EMC from which wire was allegedly stolen); Garnett v. State, 10 Ga.App. 109, 72 S.E. 951 (1911) (plea in abatement unsuccessful where grand juror was member of firm whose store was alleged to have been burglarized).

Relying upon dicta in Bitting v. State, 165 Ga. 55, 139 S.E. 877 (1927), Brown asserts it was incumbent upon the trial court to remove members of the Cobb EMC from the grand jury. In this regard, Brown points to this language:

It would seem that the main reason why the court should remove partial grand jurors from the panel before the inquiry begins is the inexpediency of putting the public to the trouble and expense of trying an alleged defendant, unless those who are impartial are willing to accuse him on the testimony which the prosecution, or State's counsel, is able to produce against him; and further, there is incidentally the other reason that an injustice is done to the individual citizen when he is subjected to accusation of crime by those who would be more than normally willing to exalt bare unsupported suspicion into a reasonable ground for indictment and trial. For this reason it is proper that the court should in advance of the grand jury's action receive information from the defendant, from an amicus curiae, or from any other legitimate source, tending to show that certain of the grand jurors would likely be biased, and that he should purge the panel so as to make it impartial.

Id. at 63–64, 139 S.E. 877, quoting Hall v. State, 7 Ga.App. 115, 66 S.E. 390 (1909). However, the Bitting Court continued:

But when the grand jury has acted, when the formal charge has been made and published, when the trouble and expense of the preparation for trial has been incurred, when the defendant has been arraigned and asked, ‘Are you guilty or not guilty?’—when the injury that would result from the unjust accusation, if it is unjust, has been consummated, and there can be no vindication of the defendant except upon looking to the merits of the transaction, there is but a small quantum of justice, and less of expediency, in allowing him to say, ‘Delay the trial, because the State is prosecuting me on the information of prejudiced persons.’ If the accusation against the defendant is unjust and untrue, that fact can be established much more surely, satisfactorily, and quickly under the plea of not guilty than it can be by quashing the indictment, and ordering a new preliminary and inconclusive inquiry before another grand jury. Largely for these reasons, as well as for others, the courts of the country have been disinclined to allow defendants, by plea in abatement, to urge that one or more of the grand jurors who acted upon the indictment were disqualified. The tendency has been to cut off collateral inquiry, and to allow the main issue to proceed.

Id.

Thus, placed in context, it is clear that Bitting made no attempt to formulate or promulgate a precept requiring courts to remove grand jurors upon a showing of likely bias. Rather, a proper reading of Bitting and similar cases ² demonstrates that any suggestion that a court should purge potentially partial panel members was primarily to avoid the trouble and expense associated with trying a defendant who may have been indicted without a proper legal foundation. These cases...