Hanson v. State, 63028

• Decision Date: 17 February 1982
• Docket Number: No. 63028,63028
• Citation: 161 Ga.App. 536,287 S.E.2d 764
• Parties: HANSON v. The STATE.
• Court: Georgia Court of Appeals

Page 764

287 S.E.2d 764

161 Ga.App. 536

HANSON v. The STATE.

No. 63028.

Court of Appeals of Georgia.

Feb. 17, 1982.

Hardaway Young, III, Decatur, for appellant.

Robert E. Wilson, Dist. Atty., Decatur, for appellee.

BIRDSONG, Judge.

Transactional Immunity. Emmett Eugene Hanson was arrested in 1979 by DeKalb County Police for possession and selling methaqualone in violation of the Controlled Substances Act. In exchange for his cooperation in furnishing evidence against other dealers and drug related business in DeKalb County, the then-incumbent District Attorney prepared a letter addressed to Hanson granting him "...immunity from prosecution for any and all violations of law committed prior to September 8, 1980 within my jurisdiction. This grant of immunity is based upon information and assistance granted this office regarding drugs and gambling investigations." This letter was called to the attention of the DeKalb Superior Court and signed by a judge thereof. On the same date, the District Attorney entered a notation of dismissal on the file. It is uncontested that Hanson did cooperate with the District Attorney and furnish information and assistance pursuant to the letter of immunity. In 1980, the incumbent District Attorney was defeated in the election for that office. When the new District Attorney assumed office in January, 1981, in disregard of the earlier notation of dismissal, he submitted the information to a grand jury which indicted Hanson for possession and sale of methaqualone. Hanson filed a motion to abate and quash the indictments on the ground that he had been granted immunity from trial on those offenses. The state resisted the motion, arguing that transactional immunity does not fall within the parameters of Code Ann. § 38-1715. That code section, as aptly argued by the state, authorizes only a grant of use and derivative use immunity. Therefore, the state argues the immunity grant given in September, 1980 was not authorized by this section of the Code. See Corson v. Hames, 239 Ga. 534, 238 S.E.2d 75. The trial court denied the motion to abate and quash. Hanson filed an interlocutory appeal to this court which was granted. Held :

We first observe that this case does not involve use or derivative use immunity as that more limited form of immunity contemplates. The purpose of such immunity is to overcome a criminal defendant's Fifth Amendment protection against self-incrimination by granting that defendant use or derivative use immunity from any criminal misconduct disclosed by compelled testimony. In this case we are dealing with the more general grant of immunity by which the prosecutor may contract with a source of criminal information to give information in exchange for governmental forgiveness of specific acts or of any case of misconduct. In this case there was general forgiveness for all criminal acts of Hanson occurring prior to September 8, 1980 in DeKalb County in exchange for the volunteered assistance and information given by the defendant Hanson. Thus, we deal here with generally accepted principles of law enforcement and prosecutorial discretion; therefore, we are not limited by the procedural guideline of Code Ann. § 38-1715.

It is conceded by both parties to this appeal that in this state there is no statutory authorization for immunity other than the use immunity established in 1975 by Code Ann. § 38-1715. Thus, in order to gain an understanding of principles applying to "transactional" immunity, we must look to the antecedent principles of the common law. This court in Smith v. State, 74 Ga.App. 777, 41 S.E.2d 541 at p. 785, 41 S.E.2d 541, quoting with approval the case of Ingram v. Prescott, 111 Fla. 320, 149 So. 369 stated: "From the earliest times, it has been found necessary for the detection and punishment of crimes, for the State to resort to the criminals themselves for testimony with which to convict their confederates in crime. While such a course offers a premium to treachery, and sometimes permits the more guilty to escape, it tends to prevent and break up combinations, by making criminals suspicious of each other, and it often leads to the punishment of guilty persons who would otherwise escape. Therefore, on the ground of public policy, it has been uniformly held that a State may contract with a criminal for his exemption from prosecution...wh...