Olsen v. State

• Decision Date: 16 October 2017
• Docket Number: S17A1014
• Citation: Olsen v. State, 302 Ga. 288, 806 S.E.2d 556 (Ga. 2017)
• 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.

AppellantRobert 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?

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 present during the presentation of evidence to the grand jury, along with counsel.¹As 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.SeeColon 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, 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.SeeColon, 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.SeeLaws 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 ...."³Notably, the oath of secrecy no longer extends to the State's attorney, and even the grand jurors' oath encompasses only deliberations and not all things occurring in the grand jury room.⁴

We have identified no limitation in Georgia law on the number of persons in the prosecutor's staff that may be present during the evidentiary stage of proceedings.The legislature's change in the oath of secrecy with respect to the grand jury, however, bears significance to the inquiry of whether the law of Georgia requires such a limitation.When this Court considers the meaning of a statutewe"presume that the General Assembly meant what it said and said what it meant."(Citation and punctuation omitted.)Deal v. Coleman, 294 Ga. 170, 172 (1)(a), 751 S.E.2d 337(2013).Accordingly, had the General Assembly intended to provide a new limitation on the number of people who could be present at the evidentiary stage of a grand jury proceeding it could have done so, but it did not.It did, however, change the law to make the secrecy requirement less restrictive than was previously the case.Additionally, we note that the oath of secrecy applicable to court reporters who attend grand jury proceedings requires the court reporter to keep secret all things coming to that person's knowledge as a result of grand jury attendance.SeeOCGA § 15–12–83 (a).⁵The legislature clearly knew, at the time of this proceeding, how to make explicit its intent to require secrecy of persons attending the evidentiary stage of a grand jury proceeding, but it did not impose that requirement on either the grand jurors or the prosecuting attorney.We must presume the legislature's failure to impose such a requirement "was a matter of considered choice."Pandora Franchising, LLC v. Kingdom Retail Group, LLLP, 299 Ga. 723, 726 (1)(a), 791 S.E.2d 786(2016).Given that presumption, we decline to extend the requirement of secrecy applicable to grand jury proceedings in Georgia beyond that which is currently imposed by statute.The expansion of grand jury secrecy requirements, if an expansion is to be made, is properly the domain of the legislature or the appropriate procedural rule-making body.We similarly conclude that any strict limitation on the number of persons who may be present during the presentation of evidence to the grand jury is an issue for the legislature, not the courts.

We are not convinced that the presence of a state expert witness, along with lawyer and non-lawyer members of the district attorney's staff, during the presentation of evidence to the grand jury in this case violated the need for grand jury secrecy or compromised the grand jury's independence from outside influences.The United States Supreme Court has noted several interests served by the confidentiality of grand jury proceedings.

First, if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony.Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements.There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment.Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.

Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219 (II), 99 S.Ct. 1667, 60 L.Ed.2d 156(1979).⁶...