Harper v. State

• Decision Date: 11 February 2008
• Docket Number: No. S07A1460.,S07A1460.
• Citation: 657 S.E.2d 213,283 Ga. 102
• Parties: HARPER v. The STATE.
• Court: Georgia Supreme Court

657 S.E.2d 213

283 Ga. 102

HARPER v. The STATE.

No. S07A1460.

Supreme Court of Georgia.

February 11, 2008.

Christopher Wayne Adams, Atlanta; Ottrell L. Ferrell, Josh David Moore, Georgia Capital Defenders, Atlanta; Christopher Paul Twyman, Cox, Byington, Corwin, Niedrach, Smith & Twyman, Rome, for Appellant.

Leigh Ellen Patterson, Dist. Atty., Natalee Lyn Staats, Asst. Dist. Atty., Rome, Susan V. Boleyn, Senior Asst. Atty. Gen., Thurbert E. Baker, Atty. Gen., Dept. of Law, Atlanta, for Appellee.

CARLEY, Justice.

Richard Scott Harper was charged with the murder of Thad Reynolds and with related crimes, and the State gave notice of its intent to seek the death penalty. This Court granted interim review and directed the parties to address the following two questions: (1) whether the trial court erred in denying a challenge to the grand jury on the ground that someone other than the person intended to be summoned served on the grand jury; and (2) whether the trial court erred in denying a motion to suppress evidence seized during a search of Harper's desk at work.

1. The record shows that a grand jury summons was issued to "William A. Conner" at a certain address. The summons did not list a birth date. It was received by William A. Conner, Sr., who lived at the address on the summons, and he actually served on the grand jury. Both the grand jury list created by the jury commission and the list of jurors appended to the trial court's order to summon jurors for this case listed only a "William A. Conner" with the birth date of April 12, 1977, which is the birth date of William A. Conner, Jr. Testimony in the trial court showed that William A. Conner, Jr., had moved away from the county at least ten years earlier, but maintained a "permanent address" in the county at his sister's house, which had a different address than that to which the jury summons was directed. The testimony was clear that William A. Conner, Jr., had never lived at the address appearing in the jury commission's records, the order to summon jurors, and the jury summons. The director of the jury management office testified that she believed the wrong person had served on the grand jury. However, it is not completely clear from the record whether she was right, as it is possible that the address listed on the jury summons and in the jury commission's records was correct and that the birth date in those records was incorrect. The trial court's order addressing this issue assumed for the purpose of its analysis that the wrong person served on the grand jury. The trial court also found that the juror who served was otherwise qualified to serve. See OCGA § 15-12-60.

Assuming that the wrong person actually served on the grand jury, a timely challenge would be valid. Turner v. State, 78 Ga. 174, 180(2) (1886). The holding of Turner is consistent with Bazemore v. State, 28 Ga.App. 556, 112 S.E. 160 (1922), which held that reversal is required where a timely claim demonstrates that someone not on the grand jury list served on the grand jury. See also Estep v. State, 129 Ga.App. 909, 914(5), 201 S.E.2d 809 (1973) (citing Bazemore and Turner).

The State argues that service on the grand jury of someone not on the grand jury list created by the jury commission is a violation of merely directory aspects of the Code. See State v. Parlor, 281 Ga. 820, 642 S.E.2d 54 (2007) (holding that the statutory instruction to conduct a biennial revision of the grand jury list is merely directory); Sealey v. State, 277 Ga. 617, 618-619(2), 593 S.E.2d 335 (2004) (holding that the statutory instruction to select the most upright and intelligent citizens for the grand jury is merely directory). However, we have long held that "a disregard of the essential and substantial provisions of the [jury selection] statute will have the effect of vitiating the array." Pollard v. State, 148 Ga. 447, 453, 96 S.E. 997 (1918). See also Al-Amin v. State, 278 Ga. 74, 80(7), 597 S.E.2d 332 (2004). In this case, unlike those cited by the State, the defect was not in complying with the statutory directives governing how the jury commission should select grand jurors. Instead, the alleged defect was that someone never selected by the jury commission served. "The jury commissioners are, under our law, the judges of the qualifications of the citizens to be placed on the jury lists and in the jury boxes of the county." Pollard v. State, supra. Where this role of the jury commission has been entirely circumvented by the service of a grand juror it never selected for service, there has been an "essential and substantial" violation of the law. Pollard v. State, supra. This conclusion is supported by Turner, wherein this Court addressed the question of what defects in the composition of a grand jury concern merely directory aspects of the Code, and specifically stated that having the wrong person serve on the grand jury would be a sufficient reason to require a new indictment. Turner v. State, supra at 178-180(1, 2).

The trial court concluded that Harper's claim should fail because he has not taken the "substantive step" of showing that the grand juror in question was not qualified to serve. Dawson v. State, 166 Ga.App. 515, 517(2), 304 S.E.2d 570 (1983). In Dawson, however, the "substantive step" was "the presentation of the alleged illegality with supporting facts, argument and citation of authority." Dawson v. State, supra. The grand juror in question in Dawson was shown to have been qualified for service on the grand jury because she had been selected for service in the previous term and her service had been deferred until the following term. See OCGA § 15-12-1(a)(1) (authorizing deferral of jury service to the next term). In contrast, at least under the facts as assumed in the trial court's order, Harper has made a sufficient "presentation of . . . illegality" in the composition of the grand jury by showing that someone never selected for service by the jury commission served on the grand jury. Dawson v. State, supra.

However, because a finding that the wrong person served on the grand jury was neither demanded by the record nor actually made by the trial court, we vacate the judgment in part and remand the case for a ruling on that issue. See Bibbins v. State, 280 Ga. 283, 285, 627 S.E.2d 29 (2006); Height v. State, 278 Ga. 592, 596(1), 604 S.E.2d 796 (2004). Contrary to the dissent's suggestion, we should not simply reverse the trial court's ruling. "[A]lthough a court may exercise its inherent discretion to resolve matters in the interest of judicial economy, [cit.], the goal of judicial economy cannot justify sacrificing the rights of the parties. [Cit.]" Cincinnati Ins. Co. v. Reybitz, 205 Ga.App. 174, 179(1)(c), 421 S.E.2d 767 (1992). Nor can it justify an appellate court in usurping the role of the trial court. "An appellate court should not . . . substitute itself as the initial finder of fact to reach an issue not properly before it. . . ." Bibbins v. State, supra. 34;[R]esolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court.' [Cit.]" Walker v. State, 281 Ga. 157, 158(1), 635 S.E.2d 740 (2006). In the portion of the order quoted in the dissent, the trial court recognized the conflict in the evidence and only assumed for purposes of its ruling that the jury manager was correct. Thus, the trial court did not ever draw an inference from her testimony or make any determination of her credibility, Permitting the trial court to do so on remand, since the record does not demand a finding that William A. Conner, Sr. was the wrong grand juror, could possibly allow the case to proceed under the current indictment. Therefore, not only is remand mandatory, it is the appellate remedy which actually promotes judicial economy. See Monteith v. Story, 255 Ga. 528, 529, 341 S.E.2d 1 (1986).

2. Law enforcement officers seized items in a bag from Harper's desk at work pursuant to a warrant. The trial court denied the motion to suppress the items seized, finding that the warrant was valid. As the State now concedes, the warrant was invalid and the seized items must be suppressed.

The lead investigator, Dallas Battles, sought the search warrant based on a telephone call he received from a police officer, Rodney Bailey. Bailey informed Battles that he had received a telephone call from a third party who claimed to be a member of Bailey's church and who claimed to have attended "a close-knit family meeting" in which Harper admitted his guilt. Bailey testified that the caller remained completely anonymous, but Bailey assumed that the unidentified informant was credible based on the fact that the informant had called "with a conscience." Battles prepared an affidavit with which to seek a search warrant. The affidavit referred to Bailey as a "concerned citizen." However, Battles testified that he gave oral testimony to the magistrate identifying Bailey as a police officer. The affidavit stated that the "concerned citizen" had "received information from a third party who is a family member of Scott Harper . . . that Scott Harper committed the murder of Thad Reynolds." The affidavit asserted that "the concerned citizen stated that the third party is a truthful person and has no reason to falsify the information and has nothing to gain by falsifying the information." Finally, the affidavit stated that the third party told the concerned citizen that "Harper admitted to family members that he committed the murder and has hidden the murder weapon and bloody clothing that he wore during the commission of the crime at Floyd Medical Center." The defect in the affidavit is that it presents the third party informant as being a family member, a truthful person, and someone without a motive to lie when the person who spoke to the informant had absolutely no way of knowing to whom he was speaking. In this case, unlike other...