Roberts v. State

• Decision Date: 08 November 2004
• Docket Number: No. S04G0219.,S04G0219.
• Citation: 278 Ga. 610,604 S.E.2d 781
• Parties: ROBERTS v. The STATE.
• Court: Georgia Supreme Court

604 S.E.2d 781

278 Ga. 610

ROBERTS v. The STATE.

No. S04G0219.

Supreme Court of Georgia.

November 8, 2004.

Brian Steel, Atlanta, for appellant.

Paul L. Howard, Jr., Dist. Atty., Anna E. Green, Asst. Dist. Atty., for appellee.

BENHAM, Justice.

We granted James Earl Roberts' petition for a writ of certiorari to the Court of Appeals to determine whether the doctrine of judicial estoppel was applicable in criminal cases and, if it were, whether it could be successfully invoked against the State in this case. We conclude judicial estoppel is not applicable in criminal cases. Accordingly, we affirm the judgment of the Court of Appeals.

Roberts filed a direct appeal to the Court of Appeals from the trial court's denial of Roberts's motion for discharge and acquittal based on Georgia's statutory speedy trial provision, OCGA § 17-7-170. The trial court denied the motion after finding that Roberts's demand for trial had been filed the day before he was indicted and was therefore fatally premature. See Majia v. State, 174 Ga.App. 432(1), 330 S.E.2d 171 (1985) ("[A] demand for speedy trial pursuant to ... OCGA § 17-7-170 may not be made until an indictment has been returned or an accusation preferred."); Day v. State, 187 Ga.App. 175(2), 369 S.E.2d 796 (1988) (a premature demand for trial "is a nullity"). Roberts contended his motion for discharge and acquittal should be granted despite the prematurity of his demand for trial because he had filed the demand the day the prosecuting attorney announced at Roberts's preliminary hearing that the hearing, required in the absence of an indictment, was no longer needed because Roberts had been indicted. On the same day the prosecution announced Roberts had been indicted, defense counsel filed the demand for trial even though no bill of indictment returned against Roberts could be located in the superior court clerk's office. No indictment could be found because the true bill was not returned until the day following the prosecutor's announcement that Roberts had been indicted.

When the trial court denied the motion for discharge and acquittal because the statutory demand was null and void due to its prematurity, Roberts invoked the doctrine of judicial estoppel, asserting that the State should be estopped from relying on the actual date of indictment in light of the prosecutor's statement in open court that Roberts had been indicted the day the demand for trial was filed. The trial court denied the motion for discharge and acquittal, but quashed the indictment returned against Roberts since he had not received the preliminary hearing to which he had been statutorily entitled. The Court of Appeals affirmed the trial court's denial of the motion for discharge and acquittal, declining to apply the doctrine of judicial estoppel on the ground that it was an equitable defense "`unavailable against the State where its application would thwart a strong public policy, such as the enforcement of criminal law.' Stinson v. State, 256 Ga.App. 902(1), 569 S.E.2d 858 (2002)." Roberts v. State, 263 Ga.App. 472(2), 588 S.E.2d 242 (2003). We granted the petition for a writ of certiorari.

The rule known as judicial estoppel was described by the United States Supreme Court in New Hampshire v. Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001), thusly:" `Where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.' [Cit.]." The purpose of judicial estoppel is "`to protect the integrity of the judicial process' [cit.] by `prohibiting parties from deliberately changing positions according to the exigencies of the moment....' [Cit]." Id., 532 U.S. at 749-50,121 S.Ct. 1808. Because it is "intended to prevent `improper use of judicial machinery,' [cit.], judicial estoppel `is an equitable doctrine invoked by a court at its discretion.' [Cit.]." Id., 532 U.S. at 750,121 S.Ct. 1808. See also IBF Participating Income Fund v. Dillard-Winecoff, 275 Ga. 765, 766, 573 S.E.2d 58 (2002).¹ It is a common-law doctrine (U.S. v. McCaskey, 9 F.3d 368, 378 (5th Cir.1993)), and there is no indication it is constitutionally mandated. Nichols v. Scott, 69 F.3d 1255, 1272 (5th Cir.1995).

State and federal appellate courts throughout the United States vary in the degree to which they endorse application of judicial estoppel in criminal cases. Compare State v. Towery, 186 Ariz. 168, 183, 920 P.2d 290, 304 (1996) ("Judicial estoppel is no less applicable in a criminal than in a civil trial."); Smith v. State, 765 N.E.2d 578 (Ind.2002) (judicial estoppel has not been successfully applied against the prosecution in a criminal case due to the unique status of the government as a litigant); Whitacre Partnership v. Biosignia, 358 N.C. 1, 30, 591 S.E.2d 870, 889 (N.C.2004) (application of judicial estoppel limited to civil proceedings); State v. Abbott, 64 N.J.Super. 191, 203, 165 A.2d 537, 543 (1960), rev'd on other grounds, 36 N.J. 63, 174 A.2d 881 (1961) (application of judicial estoppel against the State is particularly inappropriate in criminal prosecutions "where the welfare and safety of the community are paramount considerations."). See also Winbush, Judicial Estoppel in Criminal Prosecution, 121 ALR5th 551 (2004).

After reviewing the various positions by appellate courts throughout the country and recognizing that the U.S. Supreme Court's decision in New Hampshire v. Maine did not address the applicability of the doctrine in criminal proceedings,² we conclude that the recent decision of the Supreme Court of North Carolina in Whitacre Partnership v. Biosignia, supra, 358 N.C. 1, 591 S.E.2d 870, most closely...