Olsen v. State

• Decision Date: 16 October 2017
• Docket Number: S17A1014
• Citation: 806 S.E.2d 556,302 Ga. 288
• Parties: OLSEN v. The STATE.
• Court: Georgia Supreme Court

302 Ga. 288
806 S.E.2d 556

OLSEN
v.
The STATE.

S17A1014

Supreme Court of Georgia.

Decided: October 16, 2017

Garland, Samuel & Loeb, Donald F. Samuel, Amanda R. Clark Palmer, Donald C. English, for appellant.

Sherry Boston, District Attorney, Anna G. Cross, Christopher W. Timmons, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.

Benham, Justice.

302 Ga. 288

Appellant Robert Olsen was formerly a police officer who was indicted for felony murder and other charges related to the shooting death of an unarmed suspect. The shooting occurred when Olsen responded to a suspicious person report at a DeKalb County apartment complex and ultimately shot the individual who was the subject of the report. Olsen asserts he acted in self-defense. Olsen filed a motion to dismiss the indictment on the ground that unauthorized persons were present in the grand jury room during the prosecutor's presentation of evidence. After conducting a hearing, the trial court denied this motion in a detailed order setting forth the circumstances of the evidentiary proceedings before the grand jury and the applicable law, and then granted a certificate of immediate review. This Court granted appellant's request for interlocutory appeal in an order identifying the following questions as being of particular concern:

1. Whether the presence of witnesses, non-lawyer and lawyer spectators during the presentation of evidence to the grand jury during the proceedings leading to the defendant's indictment in this case violated the recognized need for grand jury secrecy and compromised the grand jury's independence from outside influence?

302 Ga. 289

2. Whether the defendant was prejudiced by the presence of these individuals such that the trial court erred in refusing to dismiss his indictment?

After reviewing the record and considering the parties' arguments, we affirm.

1. As Olsen points out, the subjects of grand jury proceedings usually have no insight into the conduct of the proceedings because, in most cases, the subject has no right to be present. At the time of the proceeding in question, however, former OCGA § 17–7–52 permitted law enforcement officers facing criminal charges arising out of the performance of their duties to be

302 Ga. 290

present during the presentation of evidence to the grand jury, along with counsel.¹ As a result, Olsen witnessed the presentation of evidence to the grand jury that ultimately returned an indictment against him, and observed the manner in which the proceedings were conducted. The parties stipulated at the motion hearing that as many as twelve to fourteen individuals were present during some or all of the presentation of evidence to the grand jury in this case: appellant and his three attorneys, who were permitted to be present two at a time; the then-serving DeKalb County district attorney who planned to try the case; five assistant district attorneys, one or more of whom were present at various times during the proceedings for the purpose, according to the State, of handling witnesses and observing testimony; several staff members of the district attorney's office who, according to the State, assisted with audio visual equipment and facilitated the orderly presentation of witnesses; a court reporter who was present for the duration of the proceedings but recorded only Olsen's testimony; and an expert retained by the State who observed the proceedings and testified after Olsen had testified.

Clearly, neither the district attorney nor members of the district attorney's staff may be present while the grand jury is deliberating or voting. See Colon v. State, 275 Ga. App. 73, 77 (3), 619 S.E.2d 773 (2005). The issue in this case, however, concerns the secrecy and confidentiality of the evidentiary stage of grand jury proceedings. While federal rules strictly specify what persons are authorized to be present during the presentation of evidence to the grand jury,² no such limitation exists pursuant to Georgia statutory law or procedural rules. Olsen urges that,

806 S.E.2d 558

even absent a statutory basis for such a limitation, this Court should look to the common law and the historical importance of grand jury secrecy and should impose a limit on the number of people who may be present during the presentation of evidence to the grand jury. At the least, Olsen asks this Court to hold that the indictment in this case should be set aside as a result of the number of individuals present during the proceedings.

Despite the absence of express rules in this state governing who may be present during the presentation of evidence to the grand jury, law does exist addressing the secrecy of grand jury proceedings, and we look to that law for guidance. "There is no doubt that the preservation of the secrecy of grand jury proceedings is a well-recognized principle in Georgia." (Citation and punctuation omitted.) In re Gwinnett County Grand Jury, 284 Ga. 510, 512, 668 S.E.2d 682 (2008) (reviewing a civil investigative matter of the grand jury, but noting that no distinction is drawn between the grand jury secrecy requirements applicable to its civil investigative role and its criminal accusatory role). Toward that end, Georgia common law clearly recognizes the secrecy of grand jury deliberations and, as noted above, establishes that no members of the prosecutorial staff may be present during this stage of the proceedings. See Colon, supra. Statutory law addressing the secrecy of grand jury proceedings, however, has changed over time. Commencing in 1812, the legislature provided an oath for grand jurors that required all matters presented to the grand jury to be kept secret. See Laws 1812, Cobb's 1851 Digest, p. 551. That law remained essentially intact until 1994, when the legislature substantially expanded the secrecy rule by enacting a law that required the prosecuting attorney as well as members of the grand jury to "keep secret anything occurring in the grand jury room ...." Ga. L. 1994, p. 874, § 1. In 1995, the current version of the grand jury secrecy statute, codified at OCGA § 15–12–67, was enacted which requires each member of the grand jury to take an oath to "keep the deliberations of the grand jury secret ...."³ Notably,

302 Ga. 291

the oath of secrecy no longer extends to the State's attorney, and even the grand jurors' oath encompasses only deliberations and...