Rader v. State
| Decision Date | 08 October 2009 |
| Docket Number | No. A09A1552.,No. A09A1553.,A09A1552.,A09A1553. |
| Citation | 685 S.E.2d 405,300 Ga. App. 411 |
| Parties | RADER v. The STATE. Cooke v. The State. |
| Court | Georgia Court of Appeals |
Cook, Noell, Tolley & Bates, Edward D. Tolley, Ronald E. Houser, Athens, for Appellant (case no. A09A1552).
Brian Steel, Frank C. Winn, for Appellant (case no. A09A1553).
David McDade, Dist. Atty., J. Brown Moseley, Asst. Dist. Atty., for Appellee.
Attorneys Candace Rader1 and Valerie Cooke were indicted for theft by taking and theft by receiving in connection with a client's transfers of property to them. They filed various motions to dismiss the indictment, which the trial court denied in a single order. In that order, the court held the indictment sufficient on its face to survive dismissal, but found that factual questions existed that prevented the court from determining the merits of a statute of limitation defense asserted by Rader and Cooke in pleas in bar. The court also denied motions to dismiss the indictment based on an earlier decision in a civil action that arose from the same property transfers.
In this interlocutory appeal, Rader and Cooke contend that the trial court erred in not dismissing the indictment based on the statute of limitation defenses they raised in pleas in bar. Rader also contends that the court erred in not dismissing the indictment based on the earlier civil action. For reasons that follow, we find that the court erred in reserving for the jury a ruling on the statute of limitation defenses asserted in the pleas in bar; accordingly, we vacate that part of the court's order and remand this case for further consideration consistent herewith. We find no error, however, in either the court's ruling that the indictment was sufficient on its face or its denial of the motions to dismiss based upon the earlier civil action; accordingly, the remainder of the order is affirmed.
In October 2002, Debra Post retained Rader and Cooke to defend her against charges that she had murdered her husband, Jerry Post. On October 2, 2002, Post conveyed to Rader and Cooke real property belonging to her husband's estate, of which she was the primary beneficiary and for which she served as executrix; later that fall she also conveyed other estate assets to Rader and Cooke. In 2003, Rader and Cooke sold the real property to another party. Later that year, Post pled guilty to the murder, thereby forfeiting her right to inherit from the estate.2
The state indicted Rader and Cooke on October 7, 2008. In various motions, Rader and Cooke sought to dismiss their indictment, arguing, among other grounds, that the statute of limitation and an opinion in a related civil action3 barred their prosecutions. The court held an evidentiary hearing. The court then entered a single order in which it declined to dismiss the indictments and held that any questions of fact raised by the various motions were to be decided by the jury.
1. Rader asserts that the trial court should have granted her plea in bar because the indictment showed on its face that the statute of limitation had run and did not sufficiently allege an exception to the statute.4 Whether the indictment sufficiently alleged the statute of limitation exception is a legal question that we review de novo.5
(a) The state must commence prosecutions for felony theft by taking and theft by receiving within four years of the commission of these offenses.6 The four-year limitation period, however, does not include any period in which the crimes were unknown to the state.7 Knowledge of the prosecution, of someone interested in the prosecution, or of someone injured by the offense may be imputed to the state for purposes of determining if this exception to the limitation period applies.8 Where the state seeks to rely on an exception to the statute of limitation, it must allege the exception in the indictment.9
Rader's and Cooke's indictment revealed that their prosecution commenced more than four years after the alleged offenses were committed. But the indictment also alleged that "the commission of the said crime[s] was unknown to Brian Post, the natural son of Jerry Post, and a lawful beneficiary of the estate of Jerry Post, until October 8, 2004." Although this date fell within four years of the commencement of prosecution, Rader contends that the indictment did not sufficiently allege the statute of limitation exception because the state may have had imputed knowledge of the crimes from someone other than Brian Post.
The indictment informed Rader and Cooke that the state intended to prove that the statute of limitation was tolled until October 8, 2004, when an interested party (Brian Post) learned of the crime and his knowledge was thereby imputed to the state. This language was sufficient to apprise Rader and Cooke of what they "must be prepared to defend against."10 The state's potential inability to prove at trial that it lacked knowledge of the alleged crime before October 8, 2004,11 because of earlier knowledge imputed from another source, did not render this language insufficient.
(b) Rader contends that the indictment showed on its face that certain of the alleged offenses were barred by the two-year statute of limitation applicable to misdemeanor theft by taking. For the reasons set forth in Division 4,12 we find no error.
2. Rader contends that the trial court erred in not granting her plea in bar after hearing evidence. On appeal from a ruling on a plea in bar seeking to dismiss an indictment based on the statute of limitation, we accept the trial court's findings on disputed facts and witness credibility unless those findings are clearly erroneous, but we apply the law to the facts de novo.13 Here, however, the court did not make any findings on disputed facts or witness credibility. Instead, the court stated in its order:
[The issue] is appropriate for jury consideration. The court therefore declines to make a pretrial factual determination which is what would be required for the court to grant this motion. The plea in bar based upon the alleged running of the statute of limitation[] is therefore reserved for jury determination.
(a) Rader asserts that the hearing evidence demonstrated the state's knowledge of the alleged criminal acts before October 8, 2004. The evidence showed that, before Debra Post's 2003 guilty plea, Brian Post knew that she had assumed control over estate assets, was receiving property from the estate, and had placed real property belonging to the estate for sale. Brian Post believed during that time that Debra Post was not entitled to receive anything from the estate. He therefore had wished to recover estate assets from Debra Post and stop the property sale, and he had discussed this with the district attorney's office, which had advised him to seek legal counsel.
This evidence demonstrated the state's knowledge (including knowledge imputed from Brian Post) that Debra Post had assumed control over and was disposing of estate assets. But it did not demand a finding that the state had actual knowledge, prior to October 8, 2004, that estate assets had been transferred to Rader and Cooke.14 Both Brian Post and the district attorney testified that they did not know Rader and Cooke had received estate assets until October 8, 2004 at the earliest. The trial court did not err in finding that a factual question existed concerning when the state had actual knowledge of the acts constituting the alleged offenses.
(b) Rader asserts, however, that the court erred in declining to make a factual finding upon the evidence presented at the pretrial hearing, instead reserving the statute of limitation issue for the jury. We agree.
In State v. Tuzman,15 we held that, in ruling on a statute of limitation defense raised in a plea in bar, a court either could receive evidence at a pretrial hearing and make a pretrial determination on the merits of the plea, or reserve the issue for jury determination.16 Subsequently, in Jenkins v. State,17 the Supreme Court of Georgia disapproved this second option, holding Although the Court of Appeals in Tuzman suggested that the trial court could refuse to hold a pretrial hearing on the plea in bar and submit the statute of limitation[] issue to the jury, we believe that the proper procedure for litigating a plea in bar based upon the statute of limitation[] should be analogous to a pretrial Jackson v. Denno hearing. . . . If a defendant prevails on a pretrial plea in bar on the statute of limitation[], the charge should be dismissed; if the [s]tate prevails on this issue before trial, the defendant may still require the [s]tate to prove at trial that the charge is not barred by the statute of limitation[].18
Thus, Jenkins required the court, in ruling on Rader's plea in bar, to employ a procedure analogous to a Jackson v. Denno19 hearing. Under Jackson v. Denno, a court must conduct a pretrial hearing to "determine whether, based on the totality of the circumstances, a preponderance of the evidence demonstrates that [a defendant's] statement was made freely and voluntarily."20 This determination necessarily requires the court to resolve factual disputes; a mere ruling by the court that the issue is in dispute and will go to the jury is insufficient.21
The trial court erred in expressly declining to make such a determination here; accordingly, we vacate that part of the court's order reserving the statute of limitation issue for the jury and remand the case for the trial court to make a determination of the factual issues necessary for ruling on the statute of limitation defense presented by the plea in bar.22
3. Rader contends that the trial court erred in denying her motion to dismiss the indictment with prejudice, in which she asserted that Debra Post had lawful title to the property when she transferred it to her counsel. This claim of error presents a question of law, which we review de novo.23
(a) "A...
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