Jackson v. State

• Decision Date: 19 March 1993
• Docket Number: No. A92A2079,A92A2079
• Citation: 430 S.E.2d 781,208 Ga. App. 391
• Parties: JACKSON v. The STATE.
• Court: Georgia Court of Appeals

Page 781

430 S.E.2d 781

208 Ga.App. 391

JACKSON v.The STATE.

No. A92A2079.

Court of Appeals of Georgia.

Decided March 19, 1993.

Reconsideration Denied April 2, 1993.

Michael J. Classens, for appellant.

R. Joseph Martin III, Dist. Atty., for appellee.

Mary E. Wyckoff, Gerald R. Weber, Elizabeth J. Appley, Richard L. Greene, amici curiae.

ANDREWS, Judge.

Sylvia Jackson brings this interlocutory appeal from the trial court's denial of her motions to dismiss the indictment and to suppress evidence.The indictment charges Jackson with possession of cocaine in violation of OCGA § 16-13-30(a).The trial court refused to suppress evidence supporting the State's case that a blood specimen of her stillborn fetus tested positive for a metabolite of cocaine.

Jackson, who was 24 weeks pregnant, was attacked by her boyfriend.She was struck repeatedly in the face and stomach by her assailant, who knew she was pregnant, and told her that he was going "to make her lose it."Two days later she experienced heavy vaginal bleeding and went to the hospital emergency room.She was "found to have no fetal heart tones and fetal demise."She related the beating to attending physicians and was admitted for further evaluation.The following day she delivered a stillborn fetus.The next day she was presented with and signed a form authorizing the hospital to dispose of the fetus rather than release it to a mortuary.On a different form, she was asked: "Would you like an autopsy done on the deceased?"She responded "no."

The coroner notified the medical examiner of the death and authorized an autopsy for the reason that the stillbirth occurred several days after a reported beating of the mother, which was detailed in a police investigative report.The autopsy was performed "under the provisions of The Georgia Death Investigation Act" and it was concluded from the physical examination of the body that the cause of death was stillbirth.The medical examiner ordered laboratory procedures, submitting to the laboratory the body's liver for toxicology and blood for toxicology and possible typing, pursuant to ascertaining the cause of death.The report of the forensic chemist and the chief toxicologist of the Division of Forensic Sciences of the GBI included the conclusion that the blood specimen was positive for a cocaine metabolite.

Based at least in part upon the evidence of cocaine found in the blood test performed on the stillborn fetus, the grand jury returned an indictment against Jackson, charging that "[she] did possess and have under her control, cocaine."

1.It was not error to refuse to dismiss the indictment, regardless of whether or not the evidence should have been suppressed.

Assuming that the evidence was correctly not suppressed, Jackson contends that she cannot be convicted of possession of cocaine, which possession is based on evidence of a cocaine metabolite having been found in her stillborn fetus' blood following an autopsy purportedly authorized by the Georgia Death Investigation Act and brought about when defendant was seeking maternal health care.

Her first argument is that this tenuous circumstantial evidence, found not even in her own body, could not constitute "possession" by her, citing Green v. State, 260 Ga. 625, 398 S.E.2d 360(1990).That is to say, the evidence is insufficient.Her second argument is that the evidence here does not establish criminal "possession" by her, as contemplated by the General Assembly in OCGA § 16-13-30(a).

The problem with these arguments is twofold.Number one, the indictment does not charge that she possessed cocaine by virtue of its metabolite's presence in the blood of a stillborn fetus delivered of her.It merely charges her with possession of cocaine.The motion to dismiss is essentially a general demurrer, which "challenges the very validity of the indictment."State v. Eubanks, 239 Ga. 483, 485, 238 S.E.2d 38(1977).The legal sufficiency of the pleading, not the evidence, is the issue.Id.The latter will not be inquired into.Buchanan v. State, 215 Ga. 791, 793, 113 S.E.2d 609(1960);Brown v. State, 121 Ga.App. 228, 173 S.E.2d 470(1970).

"The true test of the sufficiency of an indictment ... is found in the answer to the question: Can the defendant admit the charge as made and still be innocent?If he can, the indictment is fatally defective."State v. Eubanks, supra239 Ga. at 485, 238 S.E.2d 38.Obviously, if defendant admits that she possessed cocaine at any time within the period alleged, she would be guilty of the crime.

Secondly, defendant is attempting to use the motion to dismiss as though it were a motion for summary judgment, which does not exist in criminal procedure because, for one thing, the parties cannot be compelled to reveal the evidence on which their positions are based.If by defendant's argument she means that the grand jury could not have indicted her based on this evidence, the record does not disclose what was presented to the grand jury.Even assuming the fetus' blood metabolite evidence was illegal, the burden is on a defendant seeking to quash an indictment to overcome the presumption that it was returned on legal evidence by showing that there was no other competent evidence upon which it could lawfully have been returned.Meriwether v. State, 63 Ga.App. 667, 11 S.E.2d 816(1940);see alsoBrown v. State, supra.

2.As to Jackson's claim that the blood test results from the stillborn fetus should have been suppressed, the state correctly asserts that no search warrant or consent from Jackson was required for the medical examiner to conduct the autopsy and blood test on the stillborn fetus."[T]here is no constitutionally protected right in a decedent's body.Rather, the courts have evolved the concept of quasi property in recognition of the interests of surviving relatives in the possession and control of decedents' bodies.We do not find this common law concept to be of constitutional dimension."(Emphasis in original.)Georgia Lions Eye Bank v. Lavant, 255 Ga. 60, 61, 335 S.E.2d 127(1985).Jackson's quasi-property interest in the stillborn fetus will not support a privacy claim sufficient to implicate the search and seizure provisions of the United States Constitution.A search within the meaning of the Fourth Amendment occurs when a reasonable expectation of privacy has been infringed by state action.Thomas v. State, 203 Ga.App. 529, 531, 417 S.E.2d 353(1992)."The principal purpose of these constitutional provisions is to protect privacy not property interests.Warden v. Hayden, 387 U.S. 294(87 SC 1642, 18 LE2d 782)(1967)."Lowe v. State, 203 Ga.App. 277, 280, 416 S.E.2d 750(1992).

Moreover, in light of Jackson's report that she had been severely beaten prior to the stillbirth, the state had a compelling interest in investigating the cause of death.SeeOCGA § 16-5-80(offense of feticide).Under the Georgia Death Investigation Act(OCGA § 45-16-20 et seq.)"[w]hen any person dies in any county in this state ... [a]s a result of violence ... it shall be the duty of any law enforcement officer or other person having knowledge of such death to notify immediately the coroner or county medical examiner....A coroner or county medical examiner who is notified of [such death] shall order a medical examiner's inquiry of that death."OCGA § 45-16-24(a)(1), (b).A medical examiner's inquiry is an investigation into the circumstances surrounding such death, and may include an autopsy and other tests and examinations to determine the cause of death.OCGA §§ 45-16-21(1), (10);45-16-22(c);45-16-25(c).The blood testing was done as part of the autopsy performed on the stillborn fetus to determine the cause of death.There is no evidence that the death investigation, autopsy, or testing pursuant thereto was a subterfuge to investigate Jackson for possession of cocaine.

Citing State v. Luster, 204 Ga.App. 156, 157, 419 S.E.2d 32(1992), Jackson contends that the Death Investigation Act does not apply because it refers to the death of a "person" rather than a fetus.Luster, supra, ¹ Division 1(physical precedent) held that "the word 'person' in a criminal statute may not be construed to include a fetus unless the legislature has expressly included it, since at common law a fetus was not considered a person."This principle has no application here for two reasons.First, the Death Investigation Act is civil not criminal legislation, and an unborn fetus has been included within the definition of "person" in various types of civil actions.SeeBillingsley v. State, 183 Ga.App. 850, 851, 360 S.E.2d 451(1987).Secondly, the Act was applied here to authorize the autopsy and blood test on the body of a stillborn fetus.Obviously, the Legislature intended for the Act to apply to a stillborn fetus to enable the state to fully investigate the cause of death, especially in cases which may result in a prosecution for feticide.An unborn fetus when stillborn becomes a deceased person within the meaning of the Death Investigation Act.

Assuming, without deciding, that Jackson had a privacy interest in the body of the stillborn fetus sufficient to invoke Fourth Amendment search and seizure protections, this would provide no basis to suppress the blood test results.The exclusionary rule used to suppress evidence seized in illegal search and seizures applies only to Fourth Amendment violations involving law enforcement officers.State v. Young, 234 Ga. 488, 489, 216 S.E.2d 586(1975).The autopsy and testing done on the fetus, although performed at the state crime lab, was part of the medical examiner's investigation under the Death Investigation Act."[A]lthough a coroner's inquest [or a medical examiner's investigation] may uncover facts that lead to the prosecution of a person for homicide, OCGA § 45-16-35, a coroner [or medical examiner] has no law enforcement authority such as that given to the Georgia Bureau of Investigation,...