Brown v. State

• Decision Date: 27 June 2013
• Docket Number: No. A13A0182.,A13A0182.
• Citation: 322 Ga.App. 446,745 S.E.2d 699
• Parties: BROWN v. The STATE.
• Court: Georgia Court of Appeals

322 Ga.App. 446

745 S.E.2d 699

BROWN

v.The STATE.

No. A13A0182.

Court of Appeals of Georgia.

June 27, 2013.

John Frank Salter Jr., for Appellant.

John E. Floyd, Atlanta, D. Victor Reynolds, Marietta, John C. Butters, Patrick H. Head, John Stuart Melvin, for Appellee.

McMILLIAN, Judge.

We granted Dwight Brown's application for interlocutory review of the trial court's order denying his motion to quash a second indictment issued against him on the same charges asserted in an earlier indictment. Brown asserts that a pending appeal of the earlier indictment deprived the trial court of jurisdiction to consider the second indictment. He also contests the trial court's denial of his “Motion to Abate and/or Dismiss for State's Deliberate and Improper Use of Disqualified Grand Jurors to Obtain Indictment” and his “General and Special Demurrer to Counts 32 Through 35 of the Indictment.” For the reasons set forth below, we affirm the trial court's denial of Brown's motions to quash the indictment and for abatement, but we reverse the trial court's denial of his demurrers as to Counts 32 through 35.

Brown, the former president and CEO of Cobb Electric Membership Corporation (“Cobb EMC”), was first indicted on January 6, 2011 (the “First Indictment”). The trial court quashed the First Indictment on March 24, 2011, because it found that it was not returned in open court as required by Georgia law, and the State appealed (the “First Appeal”). This Court affirmed the trial court's order on March 29, 2012, in State v. Brown, 315 Ga.App. 282, 726 S.E.2d 764 (2012), but the Supreme Court of Georgia granted the State's petition for writ of certiorari and the matter remains pending before that Court. State v. Brown, 2013 Ga. LEXIS 99 (decided January 22, 2013).

On July 7, 2011, while the First Appeal was still before this Court, the State obtained a new indictment against Brown (the “Second Indictment”). The appellate record in this case does not contain a copy of the First Indictment; however, according to the trial court, the Second Indictment “contains the same charges as in the First Indictment, but in addition identifies by name many victims age sixty-five or older.” These charges include allegations of theft by taking, filing false statements and writing, conspiracy to defraud Cobb County, conspiracy to defraud the Cobb County School District, and violations of the Georgia RICO statute. In addition, the Second Indictment also contains four apparently new counts, Counts 32 through 35, which assert that Brown, individually and in concert with others, violated OCGA §§ 16–10–32 and 16–10–93 by conspiring to file a civil lawsuit against individuals who allegedly cooperated with the State to bring charges against him.

1. Brown moved to quash the Second Indictment, asserting that the pendency of the prior appeal deprived the trial court of jurisdiction to return an indictment charging the same or similar offenses.¹

The trial court found “no Georgia case in which Defendant's novel jurisdictional defense has been raised and addressed,” so the Court relied upon persuasive authority from another state in denying the order. See Irvin v. State, 276 Md. 168, 344 A.2d 418 (1975). But Brown's jurisdictional argument, in fact, has been raised and addressed by this Court, in Roberts v. State, 279 Ga.App. 434, 631 S.E.2d 480 (2006) (“Roberts II ”), overruled on other grounds, DeSouza v. State, 285 Ga.App. 201, 202, n. 2, 645 S.E.2d 684 (2007).²

In that case, Roberts was indicted on June 29, 2001 on charges of child molestation and aggravated child molestation. Roberts v. State, 263 Ga.App. 472, 473, 588 S.E.2d 242 (2003), aff'd, 278 Ga. 610, 604 S.E.2d 781 (2004) ( “Roberts I ”). Roberts subsequently filed a motion for acquittal as a matter of law on speedy trial grounds pursuant to OCGA § 17–7–170. On October 8, 2002, the trial court denied Roberts' motion for acquittal, id. at 473, 588 S.E.2d 242, and the same month it quashed the indictment after finding that Roberts had not received a statutorily mandated preliminary hearing. Roberts II, 279 Ga.App. at 435, 631 S.E.2d 480.

Roberts appealed the denial of his motion for acquittal, but the State apparently did not appeal the order quashing the indictment. Both this Court and the Supreme Court subsequently affirmed the trial court's denial of the motion for acquittal. Roberts I, supra. But due to the time required for resolving the matter in both appellate courts, the remittitur was not returned to the trial court until December 2, 2004. Roberts II, 279 Ga.App. at 435, 631 S.E.2d 480.

“Meanwhile, in November 2002, after Roberts filed his notice of appeal [and two years before the remittitur was returned], a grand jury indicted [him] a second time for the same offenses.” Id.And “[i]n March 2003, Roberts moved to quash the second indictment, arguing that the State could not indict him while the denial of his motion for acquittal was on appeal.” Id. Following a hearing in May 2003, the trial court denied the motion, and Roberts again appealed. Id. at 435–436, 631 S.E.2d 480.

In considering Roberts' second appeal, this Court found that

[f]iling a notice of appeal divests the trial court of jurisdiction in some matters, but not in all. In a criminal case, the filing of a notice of appeal merely deprives the trial court of its power to execute the sentence. Generally a trial court may not alter a judgment or order while an appeal of that particular judgment or order is pending before the appellate court, nor may a trial court initiate proceedings that require a ruling on the exact matter being appealed.

(Citation and punctuation omitted; emphasis supplied.) Id. at 437(1), 631 S.E.2d 480. Although a trial court is forbidden from taking actions “that directly affect an issue on appeal[,] ... such loss of jurisdiction is limited to only those proceedings which either requires a ruling on the matters on appeal or directly or indirectly affect such matters.” (Citation and punctuation omitted.) Id. Thus, in a criminal case, “[f]iling a notice of appeal may deprive a court of its power to execute the sentence but it does not supersede every other activity of a trial court.” (Citation and footnote omitted.) Strickland v. State, 258 Ga. 764, 765–766(1), 373 S.E.2d 736 (1988).

As the Roberts opinion noted, for example, in Strickland,³ the Supreme Court found that the filing of a notice of appeal does not deprive the trial court of jurisdiction to “amend an order denying a plea of former jeopardy, nunc pro tunc, to find the plea dilatory and frivolous,” even though the pending appeal involved the same order the court amended. (Punctuation omitted.) 279 Ga.App. at 437(1), 631 S.E.2d 480. And as Roberts further noted,

[a] trial court also retains jurisdiction to rule on a motion for withdrawal and substitution of defense counsel, Elrod v. State, 222 Ga.App. 704, 705(1), 475 S.E.2d 710 (1996); to appoint appellate counsel, Spear v. State, 271 Ga.App. 845, n. 1, 610 S.E.2d 642 (2005); to dismiss an appeal and to assist in preparing the record, State v. James, 211 Ga.App. 149, 150(2), 438 S.E.2d 399 (1993); and to consider the State's petition to nolle prosequi a second indictment after the defendant filed a notice of appeal from the court's former jeopardy ruling on the second indictment. State v. Lejeune, 276 Ga. 179, 184–185(4), 576 S.E.2d 888 (2003); Waters v. State, [174 Ga.App. 438, 439(1), 330 S.E.2d 177 (1985) ].

Id. Based upon that authority and “considering the peculiar facts and circumstances of [Roberts ],” this Court concluded that “the trial court did not err in finding that ‘the State had the ability to bring the [second] indictment against [Roberts].’ ” Id. at 437–438, 631 S.E.2d 480.

The real issue, therefore, is whether the return of the Second Indictment required the trial court to issue a ruling on the exact matter being considered in the First Appeal, or whether it directly or indirectly affected such matters. We conclude that it did not. The First Appeal concerns the issue of whether the First Indictment was read in open court as required under Georgia law. The Second Indictment initiated a completely separate prosecution on the same charges,⁴ and no contention is raised that the Second Indictment suffered from the same infirmity as the First Indictment. Thus, the trial court's acceptance of the Second Indictment had no effect on the issue of whether the First Indictment was valid, and the trial court thus had jurisdiction to consider the Second Indictment.⁵

The cases Brown cites in support of his argument are factually and procedurally distinguishable as none of them involve two indictments, i.e., two separate proceedings, addressing the same charges in the same court. The cases of Scroggins v. State, 288 Ga. 346, 703 S.E.2d 622 (2010), and Chambers v. State, 262 Ga. 200, 201–202(2) & (3), 415 S.E.2d 643 (1992), each involved a single proceeding and addressed the trial court's lack of jurisdiction to take further action on the matters pending on appeal in that proceeding.

And the case of Griffin v. State, 266 Ga. 115, 464 S.E.2d 371 (1995), ⁶ involved two indictments for the same murder in the superior courts of two separate counties. Our Supreme Court first addressed the issue of the counties' concurrent jurisdiction, holding that the first county to take jurisdiction over the charges retained it, preempting jurisdiction in other counties for all crimes arising out of the same conduct. Griffin, 266 Ga. at 115(1), 464 S.E.2d 371. The Court further found that while an appeal on double jeopardy grounds was pending on the first indictment in the first county, the State, which is considered “a single sovereign” for purposes of double jeopardy could not prosecute Griffin in either county. Griffin, 266 Ga. at 116(1), 464 S.E.2d 371. “To do so would deny Griffin protection from being forced to ‘run the gauntlet’ a second time before his claim of double jeopardy can be reviewed.”...