Kennedy v. State, A92A0537

• Decision Date: 09 July 1992
• Docket Number: No. A92A0537,A92A0537
• Citation: 205 Ga.App. 152,421 S.E.2d 560
• Parties: KENNEDY v. The STATE.
• Court: Georgia Court of Appeals

Page 560

421 S.E.2d 560

205 Ga.App. 152

KENNEDY v. The STATE.

No. A92A0537.

Court of Appeals of Georgia.

July 9, 1992.

Reconsideration Denied July 23, 1992.

Certiorari Denied Oct. 1, 1992.

McClure, Ramsay & Dickerson, John A. Dickerson, Toccoa, for appellant.

Lindsay A. Tise, Jr., Dist. Atty., Hartwell, Charles H. Frier, Smyrna, for appellee.

COOPER, Judge.

Timothy Kennedy as Commissioner of Roads & Revenues of Franklin County was indicted by the grand jury in September of 1990 on charges of theft by taking and malpractice in office, a violation of OCGA § 45-11-4. This indictment was quashed by the trial court and appealed by the State, but the appeal was dismissed when Kennedy was re-indicted. The second indictment, entered on March 19, 1991, charged Kennedy in two counts with theft by taking and theft by conversion; Count 3 charged him with malpractice in office in violation of Art. III, Sec. VI, Par. VI of the Georgia Constitution of 1983, based upon allegations that he provided labor, materials and equipment to pave a parking lot for the Veterans of Foreign Wars in Lavonia, Georgia, at the expense of the county. Robert Pruitt, a member of the Franklin County Advisory Board, was jointly indicted and just before trial pled nolo contendere and testified as a State's witness.

At trial, Pruitt testified that in November of 1989 when the paving work was done, he was the vice commander of the Lavonia post of the VFW. Kennedy was not a member of the VFW. Paving the parking lot had been discussed at VFW meetings, and Pruitt was asked to find out if the county could do it for them. Pruitt knew of other organizations in the area for which the county had provided labor and equipment to do such work, and eventually as a member of the County Advisory Board, he approved payment for the asphalt used in paving the lot. Pruitt gave the VFW a receipt from Kennedy for gravel and labor on the parking lot provided by the county. On December 1, 1989, Pruitt was given a check for $2,589 made out to "Franklin County Commissioner Tim Kennedy" by the treasurer of the VFW post in payment for the paving job. Pruitt gave the check to Kennedy, who cashed it on December 9, 1989, and divided the money with Pruitt. No money was deposited in the county account. After hearing rumors several months later that an investigation into the matter had been initiated, Kennedy told Pruitt they would have to return the money. Kennedy gave Pruitt half of the money, and Pruitt returned $2,589 to the VFW post president, who signed a receipt dated September 6, 1990, reciting that the money was being donated back to the VFW from the paving job. The VFW then received a bill from Kennedy as County Commissioner, backdated to December 3, 1989, for $4,409.89.

At the close of the State's case, the defense moved for a directed verdict on the malpractice charge contending the State failed to show that the alleged constitutional violation was a crime that would comprise malpractice as contemplated by OCGA § 45-11-4. The motion was denied. Kennedy testified in his own behalf that he accepted the check from the VFW and split it with Pruitt. He was not sure why the VFW had given him the check, but he cashed it and kept the money from December 1989 to September 1990 when he spoke to the county attorney, who advised him to give the money back to the VFW. Kennedy was convicted of all counts, and immediately after the verdict was returned, a presentence hearing was held. Kennedy was sentenced to four years on Count 1, one year to be served in confinement and a $3,000 fine; two years of concurrent probation on Count 3; and no sentence was imposed on Count 2.

1. Kennedy contends that Count 3 failed to allege a criminal act in violation of OCGA § 45-11-4 for malpractice in office as a matter of law, relying on State v. Burrell, 189 Ga.App. 812, 377 S.E.2d 898 (1989). "The crime 'malpractice in office' is not statutorily defined. See OCGA § 45-11-4. The Supreme Court, however, stated that the term 'malpractice in office' as used in the statute, 'means a wrongful or unjust doing of an act which the doer has no right to do, or failure to do what the law makes it his duty to do, with evil intent or motive or due to culpable neglect.' [Cit.] ... [T]he Supreme Court ruled that the statute 'was made sufficiently definite by construing the statute in connection with the laws defining the official's duties....' [Cits.]" Id. at 812-813, 377 S.E.2d 898. The constitutional provision Kennedy was accused of violating states that except as otherwise provided therein, "the General Assembly shall not have the power to grant any donation or gratuity or to forgive any debt or obligation owing to the public, and ... shall not grant or authorize extra compensation to any public officer, agent, or contractor after the service has been rendered or the contract entered into." Const. of Ga.1983, Art. III, Sec. VI, Par. VI(a). It is conceded that this provision applies to cities and counties. Grand Lodge, etc., of Odd Fellows v. Thomasville, 226 Ga. 4(3b), 172 S.E.2d 612 (1970). The indictment alleged that Kennedy donated and gave a gratuity to the VFW Post, a private association, in the form of asphalt, labor from county employees, and the use of county equipment in the grading and preparation of the parking lot "for which Franklin County was not compensated or reimbursed therefore and from which said county received no substantial benefit...." In Burrell, supra, the alleged malpractice was described only as an act "unauthorized by law and in violation of [the defendant's] duties as County Commissioner." Because the statutes outlining the defendant's duties did not forbid the use of public property for private use, this court held that the indictment did not clearly inform the defendant of a law that made his actions criminal and was thus subject to dismissal. Here, Kennedy was fully apprised of his obligations under the State Constitution, which he had taken an oath to uphold, and of the prohibited acts he was alleged to have committed. See OCGA § 45-3-1.

2. Kennedy enumerates as error the trial court's failure to conduct a presentence hearing as required by OCGA § 17-10-2, claiming this omission necessitates a remand for resentencing in accordance with that Code section. However, as pointed out by the State, his citation to the trial transcript shows that such a hearing was in fact held approximately an hour after the verdict was filed in the clerk's office. By reply brief, Kennedy complains that a one-hour lunch break did not afford him adequate time to prepare his witnesses and evidence for the presentence hearing and that he was not informed the State was going to seek the maximum sentence to be imposed. Defense counsel neither requested a continuance nor responded when the trial judge twice asked at the close of the hearing if there was "anything else" to be raised. Moreover, "[o]n appeal an enumeration of error cannot be enlarged by brief to give appellate viability to an issue not contained in the original enumeration. [Cit.]" Chezem v. State, 199 Ga.App. 869(2), 406 S.E.2d 522 (1991).

3. Kennedy contends the trial court committed reversible error by denying his oral motion in limine and allowing the State to present the testimony of a woman who served on the first grand jury that indicted Kennedy in September of 1990, without showing a necessity therefor in violation of OCGA §§ 15-12-73 and 24-9-21. The witness testified that in a sworn statement before the grand jury, she remembered Kennedy stating that Pruitt had given Kennedy a check made out to Kennedy, which Kennedy kept, but that six months later Kennedy had "gotten to feeling bad about keeping it," and returned the money. Defense counsel's renewed objections after direct and cross-examination of this witness were denied. Kennedy argues that the testimony was not necessary to resolve the issues being tried, and its prejudicial nature was so harmful a new trial is required.

Both OCGA §§ 15-12-72 and 24-9-21(3) exclude admissions and communications "among" grand jurors on public policy grounds. In Womble v. State, 183 Ga.App. 727(3), 360 S.E.2d 271 (1987), this court noted that OCGA § 15-12-72 "apparently makes an exception to [OCGA § 15-12-73] by providing that grand jurors shall disclose everything which occurs in their service whenever it becomes necessary in any court of record in Georgia...." Id. at 728, 360 S.E.2d 271. However, because the Supreme Court has held that grand jurors could not be sworn and examined as witnesses to impeach their findings (Turner v. State, 57 Ga. 108(1) (1876)), it was concluded in Womble that the trial court did not err in sustaining the State's objections to the admission of certain testimony introduced for the purpose of impeaching the finding of the true bill. We also determined that the trial court did not find that disclosure of the evidence was necessary to resolve the issues before the court. Id. Since impeachment was not the purpose for which the testimony was introduced, in the instant case, the only issue is whether the trial court's failure to make an express finding that the testimony of the former grand juror was "necessary" renders its admission reversible error.

We conclude that it does not. Not only was the witness competent to testify (Fite v. Bennett, 142 Ga. 660(3), 83 S.E. 515 (1914...