Evans v. State

• Decision Date: 17 June 2021
• Docket Number: A21A0186
• Court: Georgia Court of Appeals
• Parties: EVANS v. The STATE.

360 Ga.App. 596

859 S.E.2d 593

EVANS

v.The STATE.

A21A0186

Court of Appeals of Georgia.

June 17, 2021

Reconsideration Denied July 13, 2021

Certiorari Denied January 11, 2022

Robert G. Rubin, Decatur, Joseph Scott Key, Kayci Nicole Timmons, for Appellant.

Fani T. Willis, Paul Howard, Kevin Christopher Armstrong, Atlanta, Linda Jeanne Dunikoski, for Appellee.

McFadden, Chief Judge.

After a jury trial with multiple co-defendants, Dana Evans was convicted of conspiracy to violate the Georgia RICO (Racketeer Influenced and Corrupt Organizations) Act, see OCGA § 16-14-1 et seq., and making false statements to a Georgia Bureau of Investigation ("GBI") agent, see OCGA § 16-10-20. She appeals, challenging the denial of her motion for a directed verdict of acquittal; but there was sufficient evidence supporting the jury's verdict. Evans also challenges the denial of her motion to dismiss the indictment, citing Garrity v. New Jersey , 385 U. S. 493, (87 S.Ct. 616, 17 LE2d 562) (1967), which bars evidence obtained from public employees by threatening their employment; but Garrity does not support her argument and the trial court did not abuse its discretion in denying the motion to dismiss. Evans further claims that the trial court erred in denying her severance motion; but she has not shown a denial of due process. She also claims two errors with regard to the jury; but her jury pool challenge fails because she did not meet her burden of providing sufficient evidence of the racial composition of the relevant jury list, and her claim that two jurors should have been excused for cause fails because she waived the claim as to one of the jurors and did not show an abuse of discretion as to the other. Evans has enumerated numerous other claims of error, including various evidentiary rulings; but several of the claims were not properly preserved for appellate review¹ and others do not amount to harmful error. Because Evans has failed to show reversible error, we affirm.

1. Facts and Procedural posture.

The state indicted 35 Atlanta Public School ("APS") employees, including Evans, for conspiracy to violate the Georgia RICO Act and other offenses arising out of alleged cheating on standardized testing of students.² Evans and 11 other defendants were jointly tried before a jury.³ After more than six months of trial, the jury found Evans guilty of conspiracy to violate the RICO Act and making false statements to a GBI agent, but found her not guilty of three other counts of making false statements or writings.⁴ The trial court sentenced Evans as a first offender, imposing a total sentence of five years, with one year to be served in confinement and four years to be served on probation. Evans moved for new trial, the motion was denied, and this appeal followed.

2. Directed verdict of acquittal.

Evans claims that the trial court erred in denying her motion for a directed verdict of acquittal. The claim is without merit.

The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction. When evaluating the sufficiency of evidence to support a conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. On appeal, this [c]ourt does not re-weigh the evidence or resolve conflicts in testimony, but instead defers to the jury's assessment of the weight and credibility of the evidence.

Doricien v. State , 310 Ga. 652, 653-654 (1), (853 S.E.2d 120) (2020) (citations and punctuation omitted).

So viewed, the evidence showed that Evans was the principal of Dobbs Elementary School and allowed cheating on standardized tests to take place at Dobbs in order to meet certain testing targets.

As with most other schools within APS, the pressure to meet [these] Targets at Dobbs was tremendous, and the principal would stress at every staff meeting that Targets had to be met by any means necessary. In fact, the principal was so adamant about meeting these goals that she would tell Dobbs's teachers that they should find new professions if they were unable to make Targets.

Cotman v. State , 342 Ga. App. 569, 576, (804 S.E.2d 672) (2017). The evidence showed that Evans failed to stop the cheating in order to meet the testing targets, prevented others from discussing it, threatened teachers, and retaliated against at least one person for speaking to the GBI about it. Evans herself falsely told GBI agents that she was unaware of any cheating at Dobbs.

In challenging the denial of a directed verdict of acquittal as to the offenses of which she was convicted, Evans has pointed to purported conflicts in the evidence supporting her defense. But "[a]ny conflicts or inconsistencies in the evidence [were] for the jury to resolve." Walker v. State , 348 Ga. App. 273 (1), 821 (S.E.2d 567) (2018) (citation omitted). The trial court did not err in denying Evans’ motion for a directed verdict of acquittal since the evidence did not demand a verdict of not guilty and "the evidence was sufficient to support [her] convictions[.]" Cotman , supra at 586, 804 S.E.2d 672 (2). See OCGA § 17-9-1 (a) (directed verdict of acquittal authorized where there is no conflict in the evidence and the evidence demands a verdict of not guilty).

3. Motion to dismiss indictment.

Evans contends that the trial court erred in denying her motion to dismiss the indictment because her statements to investigators were not voluntary and were obtained in violation of Garrity v. New Jersey , supra. We disagree.

Garrity bars evidence obtained from public employees by threatening their employment.

In Garrity , New Jersey police officers were investigated for allegedly fixing traffic tickets. The officers were informed that they could exercise their Fifth Amendment privilege against self-incrimination if they wished, but doing so would cost them their jobs under a New Jersey statute which required all public employees to cooperate with investigations or forfeit their positions. The officers cooperated with the investigation but were prosecuted. They moved to suppress their statements as involuntary and coerced. The Supreme Court held that statements obtained under threat of removal from office cannot be used in subsequent criminal proceedings and reversed the New Jersey Supreme Court's decision allowing the officers’ statements into evidence.

State v. Stinson , 244 Ga. App. 622, 624, (536 S.E.2d 293) (2000) (citation and punctuation omitted). Our state Supreme Court has "held that trial courts should apply a ‘totality of the circumstances’ analysis to the question whether [such] statements made under threat of termination should be excluded in a criminal proceeding." Georgia Peace Officers Standards & Training Council v. Anderson , 290 Ga. App. 91, 93 (1), (658 S.E.2d 840) (2008). See State v. Thompson , 288 Ga. 165, 167-169, (702 S.E.2d 198) (2010) (affirming grant of defendant's motion to suppress statements due to Garrity violation); Zeigler v. State , 350 Ga. App. 716, 719-723 (1), (830 S.E.2d 256) (2019) (reversing trial court's denial of motion to suppress statements obtained in violation of Garrity ); State v. Stanfield , 290 Ga. App. 62, 66 (2), (658 S.E.2d 837) (2008) (under Garrity , coerced statements could not be used at trial).

Here, Evans claims protection under Garrity that the case does not afford. Rather than claiming that her statements should have been suppressed at trial, Evans argues that the indictment should have been dismissed. But "[d]ismissal of an indictment is an extreme sanction, used only sparingly as a remedy for unlawful government conduct." Olsen v. State , 302 Ga. 288, 294 (2), (806 S.E.2d 556) (2017) (citation and punctuation omitted). See Wilcox v. State , 250 Ga. 745, 755-756 (4), (301 S.E.2d 251) (1983) (dismissal of indictment is generally disfavored as the remedy for government misconduct should be tailored to the injury suffered); Robinson v. State , 200 Ga. App. 515, 517 (1), (408 S.E.2d 820) (1991) (dismissal is an extreme sanction which should be infrequently utilized). Evans has failed to show that the extreme sanction of dismissal of the indictment was an appropriate remedy tailored to the alleged injury of a Garrity violation.

In arguing for dismissal as an appropriate remedy, Evans has conflated involuntary statements under Garrity with immunized testimony. Garrity does not hold, as Evans suggests, that coerced statements by public employees are treated as formal immunized statements for use and derivative use immunity. Garrity makes no mention of use or derivative use immunity and holds only that statements obtained from public officers under threat of removal from office are involuntary and inadmissible. See Garrity , supra at 500, 87 S.Ct. 616 ; State v. Aiken , 282 Ga. 132, 134 (1), (646 S.E.2d 222) (2007) (Supreme Court in Garrity concluded that the threat of a job loss was sufficient to render the statement involuntary and inadmissible at subsequent criminal proceeding). Indeed, the Court in Garrity expressly stated that "[n]o immunity was granted, as there is no immunity statute applicable in these circumstances." Garrity , supra at 495, 87 S.Ct. 616.

Evans also cites other federal cases as support for her assertion that the indictment in this case is subject to dismissal for the purported Garrity violation. But her reliance on those cases is misplaced since they did not involve involuntary statements under Garrity and instead involved immunized testimony before grand juries that had been compelled by the grant of immunity. See Kastigar v. United States , 406 U. S. 441, (92 S.Ct. 1653, 32 LE2d 212) (1972) (government could compel grand jury testimony from witnesses who had invoked privilege against self-incrimination by giving them immunity from use and derivative use of the compelled...