Griffin v. State, S95A1093

• Decision Date: 04 December 1995
• Docket Number: No. S95A1093,S95A1093
• Parties: GRIFFIN v. The STATE.
• Court: Georgia Supreme Court

Page 371

464 S.E.2d 371

266 Ga. 115

GRIFFIN v. The STATE.

No. S95A1093.

Supreme Court of Georgia.

Dec. 4, 1995.

Reconsideration Denied Dec. 20, 1995.

Thomas L. Kirbo, III, Jon V. Forehand, Kirbo & McCalley, Moultrie, for Michael David Griffin.

H. Lamar Cole, Dist. Atty., Valdosta, James E. Hardy, Mark E. Mitchell, Asst. Dist. Attys., Thomasville, for State.

HUNSTEIN, Justice.

Michael David Griffin was indicted in 1992 in McIntosh County for the murder of Jenny Rhames. The State did not seek the death penalty. After Griffin's trial ended in a mistrial, he was reindicted for Rhames' murder. The State again declined to seek the death penalty. The trial court denied Griffin's plea of former jeopardy as to the second indictment and Griffin appealed to this court. While that appeal was pending, Griffin was indicted in Thomas County in a two-count indictment charging Griffin with kidnapping with bodily injury and murder of Rhames. The State announced its intention to seek the death penalty in that case. We granted Griffin's application for interim appeal pursuant to OCGA § 17-10-35.1. We hold that the murder count of the Thomas County indictment must be quashed because at the time of his indictment in Thomas County, that county lacked the right to exercise jurisdiction. We uphold the indictment for kidnapping in Thomas County. We further hold that the State may reindict Griffin for the murder of Rhames in Thomas or McIntosh County and may seek to have Griffin sentenced to death.

1. Griffin first contends that the trial court erred by denying his motion to quash the Thomas County murder indictment. We agree.

Where two or more courts have concurrent jurisdiction of the same offense, the court which first acquires jurisdiction of the prosecution retains it to the exclusion of others while that case is pending, thereby preempting jurisdiction for all offenses originating in the same course of criminal conduct. See McAuliffe v. Outz, 139 Ga.App. 62, 64, 227 S.E.2d 807 (1976); Nobles v. State, 81 Ga.App. 229, 230, 58 S.E.2d 496 (1950). McIntosh County held exclusive jurisdiction of the offense at issue when the State indicted Griffin in Thomas County. Therefore, when Griffin was indicted for murder in Thomas County, that county had no authority to exercise jurisdiction, and the murder count of that indictment must be quashed.

Our holding is not affected by the fact that charges currently are pending against Griffin only in Thomas County. The appeal that was pending at the time Griffin was indicted in Thomas County was resolved in Griffin v. State, 264 Ga. 232, 443 S.E.2d 612 (1994), in which we held that the McIntosh County Superior Court did not abuse its discretion in declaring a mistrial and that jeopardy did not attach so as to bar a retrial. After this Court remitted the case to the McIntosh County Superior Court, the McIntosh County indictment was dismissed through nolle prosequi. Hence, because McIntosh County Superior Court, the court first acquiring jurisdiction, has voluntarily and legally dismissed the prosecution, the Thomas County Superior Court now has the opportunity to obtain for the first time the right to exercise its jurisdiction as to the murder charge, since an accused has no vested rights to be tried in any particular court. Nobles, supra. However, the Thomas County Superior Court lacked the right to exercise jurisdiction at the time this case began due to the pendency of proceedings on the same offense in McIntosh County. The error of proceeding initially without the right to exercise jurisdiction is not cured by the subsequent dismissal of the McIntosh County case. See 22 C.J.S. 215, Criminal Law, § 176 ("jurisdiction of a court depends on the state of facts existing at the time it is invoked"). To permit this action to proceed under the present indictment would erode the protection of criminal defendants from having to defend themselves simultaneously in two State courts for the same alleged offense.

The Thomas County indictment must be quashed for a further reason. The day before Griffin's indictment in Thomas County, Griffin had filed an appeal with this Court of the denial by the McIntosh County Superior Court of his plea of former jeopardy. While that appeal was pending, the State clearly could not continue to prosecute Griffin in McIntosh County. See Chambers v. State, 262 Ga. 200, 202, 415 S.E.2d 643 (1992). To do so would deny Griffin protection from being forced to "run the gauntlet" a second time before his claim of double jeopardy could be reviewed. See Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 2041, 52 L.Ed.2d 651 (1977); Patterson v. State, 248 Ga. 875, 876, 287 S.E.2d 7 (1982). Prosecutions of the same defendant in different counties of the same state "must be viewed as the acts of a single sovereign under the Double Jeopardy Clause." Brown v. Ohio, 432 U.S. 161, 164 n. 4, 97 S.Ct. 2221, 2224 n. 4, 53 L.Ed.2d 187 (1977). Therefore, the State as one sovereign may not circumvent the clear rule barring it from proceeding in one county by simply reindicting Griffin in another.

The rule we articulate today imposes no undue burden upon the State. Nothing bars the State from reindicting Griffin for murder in Thomas County or in McIntosh County. If Griffin is reindicted for murder in Thomas County, either party may move to incorporate the pre-trial record accumulated under the present indictment.

2. Under the facts in this case, venue over the murder charge may lie in either Thomas or McIntosh Counties, OCGA § 17-2-2, but venue over the kidnapping charge

lies solely in Thomas County. See Potts v. State, 261 Ga. 716, 720(2), 410 S.E.2d 89 (1991); Krist v. State, 227 Ga. 85(4), 179 S.E.2d 56 (1970). Based on these facts, Griffin argues that the State violated the "single prosecution" requirement in OCGA § 16-1-7(b) when it initially brought the murder charge alone in McIntosh County rather than bringing the murder charge together with the kidnapping charge in Thomas County. Hence, Griffin contends that count two of the present indictment, charging him with kidnapping with bodily injury, is procedurally barred by OCGA § 16-1-7(b). We do not agree.

OCGA § 16-1-7(b) (formerly Code Ann. § 26-506) requires all crimes arising from the same conduct to be prosecuted in a "single prosecution" provided they are in the same jurisdiction and are known to the prosecutor, unless the court in the interest of justice orders separate trials. ¹ State v. Estevez, 232 Ga. 316, 318-319, 206 S.E.2d 475 (1974). OCGA § 16-1-7 expands the proscription of double jeopardy beyond that provided for in the United States and Georgia Constitutions, State v. Estevez, supra, because it "protects a defendant from multiple prosecutions arising from the same conduct in situations where constitutional double jeopardy would not be a defense." McCannon v. State, 252 Ga. 515, 516-517, 315 S.E.2d 413 (1984). We have recognized that OCGA § 16-1-7(b) embodies the procedural aspect of double jeopardy, ² State v. Estevez, supra, in that it "prevent[s] an accused from being unduly harassed by or threatened by successive criminal prosecutions." Id. at 319, 206 S.E.2d 475.

It is very rare that a situation arises in which venue over a criminal charge can be had in more than one county. Even under such rare circumstances, however, nothing in the plain language of OCGA § 16-1-7(b) and the case law interpreting it ³ requires that prosecution of a "dual venue" criminal charge must occur in that one county where other criminal charges arising out of the same multi-county crime spree must be prosecuted. As recognized in Henderson v. State, 227 Ga. 68, 75, 179 S.E.2d 76 (1970), "the legislature used language in subsection (b) making the prosecution together of multiple charges mandatory where rules relating to venue permit and the crimes are known to the proper prosecuting officer." (Emphasis supplied.) OCGA § 16-1-7(b) is a "single venue" rule which expanded procedural due process in this State to bar multiple prosecutions only within the same jurisdiction. We will not construe it as an expansion of procedural due process that unduly restricts the State's method of prosecuting multi-county crime sprees involving these rare, "dual venue" crimes.

While the murder charge cannot be brought in both Thomas and McIntosh Counties, see Div. 1, supra, insofar as OCGA § 16-1-7(b) is concerned, the kidnapping charge in Thomas County is not affected by the fact that the State sought to prosecute Griffin on the murder charge initially in McIntosh County because McIntosh County is a separate jurisdiction. Should the State decide to proceed with the murder charge in Thomas County, there is, statutorily speaking, no procedural double jeopardy bar to Thomas County also prosecuting Griffin for the kidnapping charge, so long as Thomas County comports with the requirement that there be a "single prosecution." ⁴

Finally, contrary to Griffin's argument, prosecution of the kidnapping charge in Thomas County does not constitute vindictiveness of any kind. See Potts v. State, supra, 261 Ga. at 716(1), 410 S.E.2d 89, in which this Court upheld Potts' death sentence in Cobb County for the kidnapping of Michael Priest even though Potts had also been sentenced to death in Forsyth County for Priest's murder. Here, as in Potts, the kidnapping and murder charges are not the "same" for double jeopardy purposes; ⁵ hence, absent any unartfulness in the drawing of the McIntosh murder indictment, there is no statutory or constitutional bar to the Thomas County prosecution for the kidnapping of Jenny Rhames.

3. Griffin contends the trial court erred by denying his plea in bar to prevent the State from seeking the death penalty in Thomas County, because the State specifically waived seeking the death penalty for the same murder charged here both in the original prosecution in McIntosh County and upon subsequent reindictment there. This issue...