Duncan v. State
| Decision Date | 16 July 1982 |
| Docket Number | No. 63754,63754 |
| Citation | 163 Ga.App. 148,294 S.E.2d 365 |
| Parties | DUNCAN v. The STATE. |
| Court | Georgia Court of Appeals |
Barnee C. Baxter, Jr., Augusta, for appellant.
Sam B. Sibley, Jr., Dist. Atty., Michael C. Eubanks, Gayle B. Hamrick, Asst. Dist. Attys., Augusta, for appellee.
Appellant was charged with public drunkenness, simple battery and obstruction of an officer in connection with a scuffle with an off-duty deputy sheriff. Appellant was tried and acquitted on the public drunkenness and simple battery charges and convicted on the obstruction of an officer charge. He was sentenced to twelve months probation and ordered to pay a fine of $100 or serve thirty days.
Appellant here appeals the conviction for obstruction of an officer, raising three grounds: (1) That the deputy was not performing his official duties at the time of the incident and therefore an action for obstruction of an officer cannot lie; (2) That the trial court should have granted his motion for judgment n.o.v. because conviction on the obstruction of an officer charge was inconsistent with the acquittal on the other charges; and (3) That the court erred in refusing to allow defense counsel to see a prior written and signed statement made by a state's witness.
The scuffle between appellant and the deputy sheriff occurred at a motel bar. Appellant was a customer and the deputy was serving as a bouncer. The deputy was off-duty at the time, but was in full uniform. At closing time the deputy cleared the bar, as were his instructions. Because appellant would not leave on his own accord, the deputy first escorted him out and then, after appellant returned, physically ejected him. After being ejected appellant struck the deputy in the face and a scuffle followed. The deputy subdued appellant and handcuffed him. Appellant continued to struggle after he was down and handcuffed. The deputy held him until a patrol car arrived and then appellant was taken away.
1. Appellant's first contention is that the deputy was not performing official duties while moonlighting as a bouncer for a private establishment. Code Ann. § 26-2505 provides: "A person who knowingly and wilfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor." Appellant is correct in asserting that a person cannot violate this section unless the law enforcement officer is performing official duties at the time of the obstruction or hinderance. We, however, do not believe "official duties" should be interpreted so narrowly as to exclude the actions of the deputy in this case.
In addition to specified duties, all law enforcement officers have the general duty to enforce the law and maintain the peace. They carry this duty twenty-four hours a day, on and off duty. It is true that the deputy in this case was discharging the duties of his private employment when he escorted appellant from the establishment, but we believe that when appellant became unruly and threatened to breach the peace, the deputy had an official duty, in addition to his private employment duty, to take action.
We find strong public policy reasons in support of our holding. The practice of municipalities which allows law enforcement officers to serve, while off duty and in uniform, as peace-keepers in private establishments open to the general public is in the public interest. The presence of uniformed officers in places susceptible to breaches of the peace deters unlawful acts and conduct by patrons in those places. The public knows the uniform and the badge stand for the authority of the government. The public generally knows that law enforcement officers have the duty to serve and protect them at all times. A holding that law enforcement officers have no official duty to maintain the peace under these circumstances would be in contravention of the policy we seek to further. Therefore, we refuse to adopt the limited interpretation of the term "official duties" espoused by appellant. In this regard, appellee has referred us to, and we cite with approval, the case of State v. Kurtz, 78 Ariz. 215, 278 P.2d 406 (1954). Law enforcement officers must, of course, discharge their official duties lawfully, and we find this limitation to be sufficient to prevent or remedy any potential abuses. See generally Chambers v. State, 127 Ga.App. 196(2), 192 S.E.2d 916 (1972).
2. Appellant's next contention is the conviction on the obstruction of an officer charge is inconsistent with the acquittal on the remaining charges. We disagree. A verdict is inconsistent if an acquittal on one charge necessarily includes a finding against a fact essential to a conviction on another charge. See Kramer v. Hopper, 234 Ga. 395, 397, 216 S.E.2d 119 (1975); Jackson v. State, 230 Ga. 640, 198 S.E.2d 666 (1973); Kuck v. State, 149 Ga. 191, 99 S.E. 622 (1919). The essential elements of obstruction of an officer are "knowingly and wilfully obstructing or hindering...." Code Ann. § 26-2505. The acquittal of the public drunkenness charge clearly does not necessarily include a finding against these elements. The acquittal on the simple battery charge shows that the jury was not convinced beyond a reasonable doubt that appellant intentionally made physical contact of an insulting or provoking nature with the deputy or that appellant physically harmed the deputy intentionally. Code Ann. § 26-1304. It does not show that the jury necessarily found that appellant did not obstruct or hinder the deputy in performing his duty. Therefore, we find no inconsistency in the verdict and hold that the motion for judgment n.o.v. was properly overruled.
3. Appellant's final contention is that it was reversible error for the state and the court to refuse his request at trial to see a prior written statement by a state's witness. We note that appellant did not request the information prior to trial. No Brady motion was made. Appellant discovered the existence of the statement during cross examination of the witness and desired the statement for potential impeachment purposes. He asserted to the court that the statement might contain inconsistencies that would aid him in further attempts to impeach the witness. Appellant did not request an in camera...
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