Budhani v. State

• Decision Date: 28 June 2019
• Docket Number: S18G0976
• Citation: 306 Ga. 315,830 S.E.2d 195
• Parties: BUDHANI v. The STATE.
• Court: Georgia Supreme Court

306 Ga. 315

830 S.E.2d 195

BUDHANI

v.The STATE.

S18G0976

Supreme Court of Georgia.

Decided: June 28, 2019

Brian Steel, The Steel Law Firm, P.C., 1800 Peachtree Street, N.W., Suite 300, Atlanta, Georgia 30309, Miguel Marc Debon, The Debon Law Group, PC, 306 S. Perry Street, Lawrenceville, Georgia 30046, for Appellant.

Jillian Rachael Hall, Layla Hinton Zon, District Attorney, Alcovy Judicial Circuit District Attorney's Office, 1132 Usher Street, Suite 313, Covington, Georgia 30014, for Appellee.

Warren, Justice

In 2014, Mahemood Budhani was convicted of possessing and selling XLR11, a Schedule I Controlled Substance. Budhani appealed his convictions to the Court of Appeals, claiming (among other things) that the indictment was void and that his statements to police were involuntary and therefore should not have been admitted at trial. The Court of Appeals rejected Budhani’s claims and affirmed his convictions. Budhani v. State , 345 Ga. App. 34, 812 S.E.2d 105 (2018), overruled on other grounds by Willis v. State , 304 Ga. 686, 706 n.3, 820 S.E.2d 640 (2018). We granted certiorari to consider (1) whether the Court of Appeals erred in holding that the indictment was not fatally defective; and (2) whether a promise of no additional charges constitutes a "slightest hope of benefit" under OCGA § 24-8-824. For the reasons that follow, we affirm—but for reasons that differ from those offered by the Court of Appeals. Specifically, we hold that (1) Budhani’s indictment was not void and (2) a promise made by law enforcement to bring no additional charges against a defendant does constitute the "slightest hope of benefit" under OCGA § 24-8-824, although such a promise may not always render a subsequent confession inadmissible. We further conclude that although investigators’ promises of no additional charges during Budhani’s recorded, custodial interview constituted a hope of benefit under OCGA § 24-8-824, any error the trial court made by admitting the portions of Budhani’s interview after investigators’ promises of no additional charges was harmless based on this record in this case.

The record here shows that Mahemood Budhani worked as a cashier at a gas station in Newton County, Georgia. In late 2014, law enforcement officers arranged three controlled buys of XLR11, a type of synthetic marijuana, from Budhani at the gas station.¹ For each purchase, investigators met with an informant at a pre-designated location to provide audio and video surveillance equipment, thus allowing investigators to listen to the transactions in real time and review the video recordings thereafter. Investigators also provided the informant with cash to purchase the XLR11 and recorded the serial numbers of the bills they provided. The informant then drove to the gas station on each date and purchased XLR11 from Budhani with the cash provided, all while under surveillance by investigators. After each sale, the informant met investigators at the same pre-designated location and turned over the packets of XLR11 purchased from Budhani. On the same date as the last sale, officers obtained and executed a warrant to search the gas station. During the search, they seized additional packets of XLR11, at least some of which were labeled "not for human consumption." They also arrested Budhani, who had marked bills from the last controlled buy in his pocket and several hundred dollars in cash behind the counter and in his vehicle.

After law enforcement transported Budhani to the police station, and after being advised of his rights under Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Budhani waived his rights and spoke with Investigators Al Miller and Mike Tinsley in a recorded interview. In the interview, Budhani immediately admitted to selling "the synthetic" for "like a couple weeks," then said he started selling "two, three weeks ago." After being pressed further by the investigators, who indicated that they had been investigating him for about two months, Budhani admitted that it had been "like month, three weeks, month." Because investigators had been monitoring Budhani for almost two months before the interview, they conveyed to Budhani that they knew he was being dishonest about how long he had been selling.² In continued efforts to convince Budhani to admit with accuracy how long he had been selling XLR11, investigators then said, "[i]f you said, Lieutenant Miller, I’ve been selling for five years ... Just, there aren’t anymore charges ... What you’re charged with now ... [i]s what you’re charged with ... I’m not going back and charging you." Budhani continued to claim that he had started selling "not even like weeks [ago]," and after investigators again told Budhani that they knew "for a fact" that he had been selling for longer than a couple of weeks, Budhani said that he had been selling for "a month, maybe longer," and then responded "Yeah," when asked if it had been "[l]onger than a month." Shortly afterward, Investigator Tinsley again told Budhani to be honest and said, "there aren’t any more charges coming. If you was to say I’ve been selling for ten years .... You’re not going to get any more charges, okay." Investigators continued, "we’ve got to prove you a credible person here ... we can’t sit here and promise you a hope or give you a hint that you’re going to get out .... But we want people to be honest with us, and tell us the truth about stuff." After being asked again when he started selling, Budhani responded, "I just started maybe month, couple month, okay. That’s the most you know. The longest .... Longest, maybe now a couple months." Investigators told Budhani that if he said he had "been doing that for six months[,] if that’s what the truth is then tell us. We’re not giving you more charges ... I’m not going to charge with it." Budhani then claimed that he had been selling "[j]ust a month, month and a half .... Most longest was two months maybe." The investigators, apparently unsatisfied with that answer, ended the interview.

Budhani was thereafter indicted for three counts of unlawful sale of a Schedule I Controlled Substance, XLR11, in violation of OCGA § 16-13-30 (b), and one count of unlawful possession of a Schedule I Controlled Substance with the intent to distribute in violation of OCGA § 16-13-30 (b). At trial, the State played video recordings of the three controlled buys and the video recording of the interview for the jury. The parties stipulated that the contents of the seized packets were submitted to the Georgia Bureau of Investigation (GBI) for scientific evaluation, and that a GBI expert in forensic chemistry found that each packet contained a substance identified as XLR11. Investigators and the confidential informant testified at trial and identified Budhani as the person who sold XLR11 to the informant on the dates of the controlled buys as alleged and as depicted in the video recordings. The jury found Budhani guilty of all four counts for which he was indicted. Budhani appealed to the Court of Appeals, which affirmed his convictions. Budhani , 345 Ga. App. at 34, 812 S.E.2d 105.

1. Did the Court of Appeals err in holding that the indictment was not fatally defective?

(a) At trial, Budhani argued in an oral demurrer that the indictment was void because it failed to allege all essential elements of the crime, and therefore did not allege a crime at all, because the possession or sale of XLR11 is not per se illegal. He argues the same on appeal.

Budhani was indicted for three counts of Sale of a Schedule I Controlled Substance. Each of those three counts alleged that Budhani did "unlawfully sell [1-(5-fluoropentyl)indole-3yl]-(2,2,3,3-tetramethylcyclo-propyl) methanone (XLR11), a Schedule I Controlled Substance, in violation of OCGA § 16-13-30 (b)."³ He was also indicted for one count of possession with intent to distribute; that count alleged that Budhani "did unlawfully possess with the intent to distribute [1-(5-fluoropentyl)indole-3yl]-(2,2,3,3-tetramethylcyclo-propyl) methanone (XLR11), a Schedule I Controlled Substance, in violation of OCGA § 16-13-30 (b)."

OCGA § 16-13-30 (b) prohibits (among other things) possession and manufacturing of controlled substances and provides that "[e]xcept as authorized by this article, it is unlawful for any person to manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance." OCGA § 16-13-25, in turn, lists Schedule I controlled substances, and at the time of Budhani’s trial provided:

The controlled substances listed in this Code section are included in Schedule 1:

...

(12) Any of the following compounds, derivatives, their salts, isomers, and salts of isomers, halogen analogues, or homologues, unless specifically utilized as part of the manufacturing process by a commercial industry of a substance or material not intended for human ingestion or consumption, as a prescription administered under medical supervision, or research at a recognized institution , whenever the existence of these salts, isomers, and salts of isomers, halogen analogues, or homologues is possible within the specific chemical designation

... (N) [1-(5-fluoropentyl)indole-3yl]-(2,2,3,3-tetramethylcyclopropyl) methanone (XLR11).

OCGA § 16-13-25 (12) (N) (2014) (emphasis added).

This Court " ‘review[s] a trial court’s ruling on a general ... demurrer de novo in order to determine whether the allegations in the indictment are legally sufficient.’ " State v. Cohen , 302 Ga. 616, 618, 807 S.E.2d 861 (2017) (citation omitted). "A general demurrer challenges the sufficiency of the substance of the indictment," and asks whether it is capable of "supporting a conviction." Kimbrough v. State , 300 Ga. 878, 880-881, 799 S.E.2d 229 (2017) (citation and punctuation omitted). These principles are "founded upon the constitutional guaranty of due process ... [which] requires that the indictment on which a defendant is convicted...