Froelich v. State

Decision Date26 October 1993
Docket NumberNo. A93A1396,A93A1396
Citation437 S.E.2d 358,210 Ga.App. 647
PartiesFROELICH et al. v. The STATE.
CourtGeorgia Court of Appeals

McKenney & Froelich, Jerome J. Froelich, Jr., Atlanta, for appellants.

Thomas J. Charron, Dist. Atty., Debra H. Bernes, Nancy I. Jordan, Asst. Dist. Attys., for appellee.

McMURRAY, Presiding Judge.

On February 23, 1993, Jerome J. Froelich, Jr., Fred Tokars, Tim Huhn, Andy Pennington and Kirk Walsh (petitioners) filed a motion to quash subpoenas directing Huhn, Pennington and Walsh to appear before the Cobb County Grand Jury. Petitioners alleged that Tokars is a suspect in a police investigation; that Froelich is Tokars' attorney; that Froelich hired Huhn, Pennington and Walsh to conduct an investigation on behalf of Tokars and that subpoenas issued for Huhn, Pennington and Walsh to appear before the grand jury for the improper purpose of uncovering information that is subject to the attorney-client privilege.

On February 23, 1993, the State's attorney affirmed at a hearing on the motion to quash that subpoenas had issued for Huhn, Pennington and Walsh to appear before the grand jury at 4:00 p.m. on February 24, 1993. At 10:41 a.m. on the day Huhn, Pennington and Walsh were to appear before the grand jury, the trial court entered an order denying petitioners' motion to quash "with the condition that questioning by the State be limited to the names and addresses of witnesses the investigators have interviewed." This direct appeal was filed at 11:24 a.m. on the day Huhn, Pennington and Walsh were to appear before the grand jury. Held:

Relying on Patterson v. State, 248 Ga. 875, 287 S.E.2d 7, this court held in In re Hall County Grand Jury Proceedings, 175 Ga.App. 349, 333 S.E.2d 389, that a direct appeal is authorized from an interlocutory order compelling testimony of a witness before the grand jury. Id. at 350(1), 333 S.E.2d 389, supra. In Patterson, the primary reason for allowing direct review of the interlocutory order denying a defendant's plea of double jeopardy was that the defendant's rights would be significantly undermined if appellate review was postponed until final disposition of the underlying criminal action. Patterson v. State, 248 Ga. 875, 876, 287 S.E.2d 7, supra. In the case sub judice, the record indicates that the trial court's denial of petitioners' motion to quash is not an interlocutory matter requiring immediate review so as to protect petitioners. Specifically, the record is silent as to disposition of the February 24, 1993, grand jury proceedings that inspired issuance of grand jury subpoenas to Huhn, Pennington and Walsh. Consequently, this court ordered the parties to submit "briefs regarding the issue of mootness and this Court's power to rule on issues raised in this appeal."

In supplemental briefs, the parties affirmed that the grand jury proceeding which spawned the case sub judice adjourned after indictment of individuals who are not parties to this appeal. 1 Thus, any decision regarding the denial of petitioners' motion to quash would be of no benefit to petitioners, thereby rendering the issues raised in this appeal moot. In re Hall County Grand Jury Proceedings, 255 Ga. 241, 338 S.E.2d 864; Brown v. Taylor, 193 Ga.App. 134, 387 S.E.2d 25. 2 Nonetheless, petitioners contend the issues raised in the case sub judice are not moot because the State "can attempt to obtain the same undiscoverable, privileged material sought in the grand jury subpoenas at the trial of the defendants by use of similar subpoenas." This contention is without merit.

There is no indication in the record that Huhn, Pennington or Walsh will be summoned to testify in the underlying criminal proceedings. However, assuming the contrary, petitioners "ask this court to do what it is not authorized to do: to render an advisory opinion on hypothetical and legal questions that have not arisen but which [petitioners] fear may arise at a future date. Board of Commrs. of Walton County v. Dept. of Public Health, 229 Ga. 173(2) (190 SE2d 39) (1972)." Cheeks v. Miller, 262 Ga. 687, 689, 425 S.E.2d 278.

Alternatively, petitioners appear to concede that the denial of their motion to quash is moot, arguing that appellate review is necessary because the alleged error is capable of repetition and is likely to perpetually evade appellate review. See Citizens for Ethical Government v. Gwinnett Place Associates, L.P., 260 Ga. 245(1), 392 S.E.2d 8; Multimedia WMAZ v. State, 256 Ga. 698, 699(1), 353 S.E.2d 173; R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 578(1), 292 S.E.2d 815. We do not agree.

Although procedural circumstances similar...

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13 cases
  • I.B., In Interest of
    • United States
    • United States Court of Appeals (Georgia)
    • 1 Diciembre 1995
    ...Ga. 432, 339 S.E.2d 241, and the United States Supreme Court opinion in DeFunis. 4 This court followed suit in Froelich v. State, 210 Ga.App. 647, 649, 437 S.E.2d 358 (1993), where it conceded that the issue was moot as to petitioners, applied the test, and concluded: "We therefore cannot s......
  • Thompson v. State, No. S03G0176.
    • United States
    • Supreme Court of Georgia
    • 15 Septiembre 2003
    ...motions, and briefs. [Cits.]" Bannister v. State, 202 Ga. App. 762, 766(1)(b), 415 S.E.2d 912 (1992). See also Froelich v. State, 210 Ga.App. 647, 648, fn. 1, 437 S.E.2d 358(1993). Here, Thompson, acting through his attorney of record in this case, filed a Request For Bond Reduction/Reconsi......
  • State v. Wood
    • United States
    • United States Court of Appeals (Georgia)
    • 30 Junio 2016
    ...bind the defendant. Bannister v. State , 202 Ga.App. 762, 766 (1) (b), 415 S.E.2d 912 (1992) ; see also Froelich v. State , 210 Ga.App. 647, 648 at n. 1, 437 S.E.2d 358 (1993). Wood's admission that the federal government filed an extradition request is binding on him for purposes of resolv......
  • Kappers v. DeKalb County Bd. of Health
    • United States
    • United States Court of Appeals (Georgia)
    • 25 Julio 1994
    ...or in open court as to the existence of facts indicating mootness are treated as solemn admissions in judicio. Froelich v. State, 210 Ga.App. 647, 648, fn. 1, 437 S.E.2d 358. In the case sub judice, the Board submitted the affidavit of Lawrence L. Sanders, M.D., the Deputy Director of the D......
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