Burns v. State

• Decision Date: 08 March 2022
• Docket Number: S21A0905
• Citation: 313 Ga. 368,870 S.E.2d 360
• Parties: BURNS v. The STATE.
• Court: Georgia Supreme Court

313 Ga. 368

870 S.E.2d 360

BURNS

v.The STATE.

S21A0905

Supreme Court of Georgia.

Decided: March 8, 2022

Drew Findling, Marissa Goldberg, Zachary James Kelehear, The Findling Law Firm, P. C., 3490 Piedmont Rd., N.E., Suite 600, Atlanta, Georgia 30305-4805, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Fani T. Willis, District Attorney, Lyndsey Hurst Rudder, Deputy D.A., Ruth M. Pawlak, A.D.A., Fulton County District Attorney's Office, 136 Pryor Street SW, 4th Floor, Atlanta, Georgia 30303, for Appellee.

Colvin, Justice.

In September 2018, a Fulton County grand jury returned an indictment charging James Burns, a police officer with the Atlanta Police Department, with crimes connected to a June 2016 on-duty shooting. Burns filed a "Plea in Abatement/Motion to Quash Indictment" arguing that the State failed to provide him his substantive rights under former OCGA §§ 17-7-52 and 45-11-4. The trial court denied the motion. We granted Burns's application for an interlocutory appeal to review whether the 2016 amendments to OCGA §§ 17-7-52 and 45-11-4 applied when an indictment was sought after the effective date of the amendments with respect to crimes allegedly committed prior to the effective date. While we disagree with the trial court's reasoning in denying Burns's motion, we agree that the 2016 amendments at issue apply to Burns's prosecution, so we affirm the judgment of the trial court.

1. Prior to July 1, 2016, OCGA §§ 17-7-52 and 45-11-4 provided public officials with certain special rights regarding grand jury proceedings. Former OCGA § 17-7-52 (a) provided that, before an indictment charging a peace officer with a crime could be returned by a grand jury, "the officer shall be notified of the contemplated action by the district attorney of the county wherein the grand jury shall convene and the officer shall be afforded the rights provided in Code Section 45-11-4." OCGA § 17-7-52 (a) (2001). In turn, former OCGA § 45-11-4 (f) required that a copy of the indictment be served on the accused officer at least 15 days before presentment to the grand jury. See OCGA § 45-11-4 (f) (2014). This former Code section further provided, in relevant part:

(g) The accused shall have the right to appear before the grand jury to make such sworn statement as he or she shall desire at the conclusion of the presentation of the state's evidence. The accused shall not be subject to examination, either direct or cross, and shall not have the right individually or through his or her counsel to examine the state's witnesses. The accused and his or her counsel shall have the right to be present during the presentation of all evidence and alleged statements of the accused on the proposed indictment, presentment, or accusation, after which the accused and his or her counsel shall retire instanter from the grand jury room to permit the grand jury to deliberate upon the indictment.

(h) At any time during the presentation of evidence or during deliberations, the grand jury may amend the indictment or instruct the district attorney to cause a new indictment to be drawn as in any other case. In such case, a copy of the amendment or new indictment, if it relates to the accused public official, shall be provided to the accused public official and his or her counsel.

Former OCGA § 45-11-4 (g), (h).

The General Assembly amended these statutes effective July 1, 2016. See 2016 Ga. L. pp. 190-193. The legislature removed subsections (f), (g), and (h) of OCGA § 45-11-4 and substantially amended OCGA § 17-7-52. Relevant here, the 2016 amendment to OCGA § 17-7-52 requires that a copy of the indictment be served on the accused officer at least 20 days before presentment to the grand jury. See OCGA § 17-7-52 (a). The officer must be given notice "[t]hat he or she may request, but cannot be compelled, to testify as a witness before the grand jury regarding his or her conduct." Id. § 17-7-52 (a) (3). If the officer chooses to testify, "[t]he prosecuting attorney shall, after consulting with the grand jury, inform the officer in writing of the date and time when he or she shall be present in order to testify and of the procedure that the grand jury will follow." Id. § 17-7-52 (b). The officer "will be permitted to [testify] at the conclusion of the presentation of the state's case-in-chief" and will also be further notified "that he or she may be questioned by the prosecuting attorney or members of the grand jury as are any other witnesses." Id. § 17-7-52 (a) (4).

If the officer requests to testify as a witness before the grand jury, "he or she shall only be present in the grand jury room while he or she is testifying. Such officer may be questioned by the prosecuting attorney or members of the grand jury as are any other witnesses." Id. § 17-7-52 (d). Prior to testifying, the prosecuting attorney is required to advise the officer that: (1) his or her "appearance before the grand jury is voluntary, and he or she cannot be compelled to appear as a witness"; (2) by agreeing to testify "he or she will be asked to testify and answer questions and may be asked to produce records, documents, or other physical evidence"; (3) the officer can refuse to answer questions or produce documents or evidence if doing so "would tend to incriminate the officer or would tend to bring infamy, disgrace, or public contempt upon the officer"; (4) "[a]ny testimony given by the officer may be used against him or her by the grand jury or in a subsequent legal proceeding"; and (5) the officer's attorney "shall have the right to be present in the grand jury room" during the officer's testimony. Id. § 17-7-52 (d) (1) – (5). The officer may make a sworn statement before being asked any questions, but "[t]he officer's attorney shall not propound questions to the officer nor object to questions propounded to the officer on evidentiary grounds." Id. § 17-7-52 (e). Finally, "[a]t the conclusion of the officer's testimony, if any, the prosecuting attorney may present rebuttal evidence and advise the grand jury on matters of law." Id. § 17-7-52 (f).

2. By way of background, Burns was on duty as a police officer on June 22, 2016, when he allegedly shot and killed Deravis Rogers in Fulton County. On August 5, 2016, the District Attorney provided Burns notice under former OCGA §§ 17-7-52 and 45-11-4 of the D.A.’s intent to present evidence to a grand jury of offenses arising out of the June 2016 shooting incident. The notice included the date and time of the grand jury hearing, as well as a copy of the proposed indictment charging him with felony murder predicated on aggravated assault, aggravated assault, false statements, and two counts of violation of oath by public officer. Burns exercised his rights to be present with counsel during the grand jury presentation, and to give sworn testimony not subject to cross-examination. On August 31, 2016, the grand jury returned a true bill of indictment against Burns on all proposed charges.

In July 2018, on the State's motion, the trial court entered an order of nolle prosequi on the initial indictment. The State then sought to re-indict Burns. On August 15, 2018, the District Attorney provided Burns with a copy of the new indictment and notice of the D.A.’s intent to proceed with a grand jury hearing on September 5, 2018, pursuant to the 2016 versions of OCGA §§ 17-7-52 and 45-11-4. Burns filed an "Emergency Petition for a Writ of Mandamus" against the Fulton County District Attorney, requesting that the superior court prevent the D.A. from proceeding to the grand jury without complying with the D.A.’s statutory responsibilities under the former versions of OCGA §§ 17-7-52 and 45-11-4. After a hearing, the superior court denied the mandamus petition. Burns then did not request to testify before the grand jury.

On September 5, 2018, the grand jury returned a true bill of indictment charging Burns with felony murder, aggravated assault, and two counts of violation of oath by public officer. Burns subsequently filed a "Plea in Abatement/Motion to Quash Indictment," arguing that, because the shooting incident occurred before the July 1, 2016 effective date of the amendments to OCGA §§ 17-7-52 and 45-11-4, the State was required to follow the prior version of the statutes. In particular, Burns asserted that he had a right to be present during the presentation of the evidence to the grand jury and to make a statement without being subjected to cross-examination. He further alleged that the District Attorney's application of the 2016 amendments to Burns's 2018 grand jury proceedings retroactively violated his substantive rights under former OCGA §§ 17-7-52 and 45-11-4, the Ex Post Facto provisions of the United States and Georgia Constitutions, and Georgia case law. After a hearing, the trial court denied Burns's motion on December 15. The trial court concluded that, although the statutes at issue included substantive rights, they were public rights that did not vest pursuant to Deal v. Coleman , 294 Ga. 170, 751 S.E.2d 337 (2013), and therefore could be applied retroactively. This Court granted Burns's application for an interlocutory appeal.

3. Burns argues that the trial court erred by failing to properly analyze the issue of retroactivity pursuant to Deal . Specifically, Burns argues that former OCGA §§ 17-7-52 and 45-11-4 created substantive, private rights, rather than substantive, public rights, as found by the trial court. Further, Burns argues that applying the 2016 amendments to the grand jury proceedings for a criminal offense that is alleged to have occurred prior to the amendments’ effective date violates the constitutional prohibition against retroactive laws. See Ga. Const. of 1983, Art. I, Sec. I, Par. X. We disagree with both Burns and the trial court that former ...