Creamer v. State, 57995

• Decision Date: 22 June 1979
• Docket Number: No. 57995,57995
• Citation: 258 S.E.2d 212,150 Ga.App. 458
• Parties: CREAMER v. The STATE.
• Court: Georgia Court of Appeals

Page 212

258 S.E.2d 212

150 Ga.App. 458

CREAMER v. The STATE.

No. 57995.

Court of Appeals of Georgia.

Argued May 30, 1979.

Decided June 22, 1979.

Morgan & Morgan, David E. Morgan, III, Abbeville, J. Laddie Boatright, Hazlehurst, for appellant.

D. E. Turk, Dist. Atty., for appellee.

DEEN, Chief Judge.

Jimmy Creamer was indicted, tried and convicted of burglary. He brings this appeal following the denial of his motion for a new trial.

1. In his first three enumerations of error, appellant contends that the trial court erred in overruling his challenge to the array of grand jurors and motion that any further action by the state to procure an indictment against him be continued until the next term of court, and in denying his motion to quash the indictment.

Appellant was first indicted on November 27, 1978. The trial court subsequently granted his motion to quash the indictment because he was an on-duty police officer at the time of the alleged offense and was not served with a copy of the proposed indictment, given notice of the contemplated action by the district attorney, or given notice and opportunity to appear before the grand jury. At the district attorney's request, the grand jury was reconvened on December 7, 1978. A copy of the proposed indictment, however, was served on appellant's counsel of record on December 5, 1978, and he agreed to have the accused present at the grand jury considerations on December 7. The district attorney claims that appellant was personally served a few minutes before appearing before the grand jury. After the evidence was presented, appellant and his counsel were excused, and the district attorney testified that no further evidence was presented from the time appellant left until he left a few minutes later. This testimony was corroborated by the foreman of the grand jury.

Code Ann. § 27-706 provides: "Before an indictment against a peace officer charging such officer with a crime which is alleged to have occurred while he was in the performance of his duties shall be returned by a grand jury, the rights provided in section 89-9908, relating to certain officials, shall be afforded such officer and such officer shall be notified of such contemplated action by the district attorney of the county wherein the grand jury shall convene." Code Ann. § 89-9908 provides: "A proposed indictment, presentment, or accusation under the preceding section shall specially set forth the merits of the complaint, and a copy thereof shall be served on the accused before it is laid before the grand jury. The accused shall have the right to appear before the grand jury and make such statement, sworn or unsworn, as he 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 counsel to examine witnesses; the accused and his counsel shall have the right to be present during the presentation of all evidence and statements of the accused on the proposed indictment, presentment, or accusation, after which he and his counsel shall retire from the grand jury room."

Appellant's contention that he did not have adequate notice of the proposed indictment is without merit. There is no statutory time requirement set forth in § 89-9908 and the five-day rule required under Code Ann. § 81A-106 is not applicable as that rule applies to court hearings on motions and an appearance before a grand jury is not a hearing on a motion. See Knowles v. Knowles, 125 Ga.App. 642, 188 S.E.2d 800 (1972). Any defect that might have existed in the service of the motion was waived by his attorney's agreement to the December 7 date and his appearance. There was no evidence to show that appellant was deprived of his right to be present when all the evidence was presented. Both the district attorney and the grand jury foreman testified that no evidence was presented after he left the grand jury room.

Appellant's challenge to the array of grand jurors and his motion to continue appear to be based on the premise that because he was not present when the grand jury considered the first indictment and heard the testimony of GBI agent Dan Rakestraw who did not testify at the second consideration of the indictment, the grand jury was biased against him and he should have had the opportunity to have the proposed indictment considered by a different grand jury who had not previously heard any evidence.

In determining whether or not grand jury proceedings are biased against an accused, it is an unquestioned rule of law that members of the 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 a 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...