State v. Bowman

• Decision Date: 05 October 2021
• Docket Number: A20A1873
• Citation: 361 Ga.App. 465,863 S.E.2d 180
• Parties: STATE v. BOWMAN.
• Court: Georgia Court of Appeals

361 Ga.App. 465

863 S.E.2d 180

STATE

v.BOWMAN.

A20A1873

Court of Appeals of Georgia.

October 5, 2021

Reconsideration Denied October 15, 2021

Donald R. Donovan, Douglasville, Anthony Brett Williams, Matthew Wayne Rollins, for Appellant.

Keegan Christian Gary, Hunter Joseph Rodgers, for Appellee.

Dillard, Presiding Judge.

Following a trial by jury, Logan Adam Bowman was convicted on one count of child molestation and one count of incest,¹ and he was ultimately sentenced to serve fifty years with the first fifteen years in confinement. Nearly five years later, Bowman's then-appellate counsel filed an amended motion for new trial, alleging that the petit jury was unsworn; and—with consent of the State—this motion was granted. Shortly thereafter, Bowman filed a motion for discharge and acquittal on the grounds that his statutory and constitutional rights to a speedy trial—which he properly asserted prior to trial—were violated by the nullified verdict. The trial court granted Bowman's motion, and it is from this grant that the State now appeals. In doing so, the State argues the trial court erred in concluding that Bowman was barred from retrial on statutory and constitutional speedy trial grounds. And for the reasons noted infra , we agree with the State and reverse.²

The record shows that Bowman was indicted on February 17, 2014, for the above-referenced offenses. Then, on September 18, 2014, Bowman filed both an assertion of his constitutional right to a speedy trial³ and a demand for a speedy trial under OCGA § 17-7-170. He was ultimately tried and convicted by a jury on December 5, 2014. On January 13, 2015, Bowman filed his initial motion for new trial, but the record reflects no ruling on this motion or any other action until a February 2019 order for production and rule nisi for a hearing on the still-pending motion for new trial.

Thereafter, prior to any hearing, new post-conviction counsel entered an appearance in May 2019 on Bowman's behalf and eventually filed an amended motion for new trial on September 27, 2019. In doing so, counsel asserted for the first time that, inter alia , the trial court committed structural error by failing to swear the petit jury prior to its deliberations. On November 1, 2019, the State consented to the grant of Bowman's motion for new trial, agreeing that the trial court failed to swear the petit jury, which resulted in reversible error.⁴

On November 19, 2019, yet another attorney entered an appearance on Bowman's behalf. And on November 27, 2019, Bowman filed a motion for discharge and acquittal, asserting that his right to a speedy trial was violated due to the trial court's failure to swear the petit jury. That same day, the State filed a motion for a declaratory order, seeking clarification as to whether Bowman's pre-trial motion for speedy trial was still in effect. The trial court ruled in Bowman's favor on March 30, 2020, concluding that the unsworn jury's verdict was a nullity and, thus, discharge was required on the statutory grounds. Additionally, the trial court determined that Bowman's constitutional right to a speedy trial was violated by the nullified verdict. This appeal by the State follows.⁵

1. For starters, the State argues the trial court erred by concluding that Bowman's statutory right to a speedy trial was violated by its failure to swear the petit jury. We agree.

The denial of a speedy-trial demand "presents a question of law which this Court reviews de novo. "⁶ And here, it is undisputed that Bowman filed a statutory speedy trial demand in compliance with OCGA § 17-7-170 (a).⁷ What is disputed is whether Bowman was "tried" or put on "trial" for purposes of OCGA §§ 17-7-170 (b) and (c).

OCGA § 17-7-170 (b) provides, in relevant part, that if the defendant "is not tried when the demand for speedy trial is made or at the next succeeding regular court term thereafter, provided that at both court terms there were juries impaneled and qualified to try the defendant, the defendant shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation."⁸ And OCGA § 17-7-170 (c) provides that a statutory speedy trial demand expires "at the conclusion of the trial or upon the defendant entering a plea of guilty or nolo contendere."⁹ In this regard, Bowman argued below—and now likewise contends on appeal—that because the jury was not sworn as required by OCGA § 15-12-139¹⁰ when he was tried in 2014, he was not "tried" or on "trial" for purposes of OCGA §§ 17-7-170 (b) or (c). But the State disagrees, arguing, inter alia , that "pursuant to the plain language" of these statutory provisions, Bowman's "only speedy trial demand in this case" expired after trial and sentencing.

Nevertheless, before reaching this claim of error, we must first address the State's suggestion that we are at liberty to disregard well-established, binding precedent that the complete failure to swear a petit jury prior to deliberations demands a new trial. Although the State goes to great lengths to provide citations from foreign authorities holding otherwise, we are bound by the precedent established by the Supreme Court of Georgia,¹¹ which has long made clear that a complete failure by the trial court to swear the petit jury—as the State concedes occurred in this case—requires retrial.¹² And this cannot be waived by the defendant's failure to object at trial.¹³

Indeed, both this Court and the Supreme Court have previously explained that the complete failure to swear a jury results in a conviction that is a nullity,¹⁴ noting that "jeopardy does not attach in a jury trial until the jury is impaneled and sworn [.]"¹⁵

But just because an unsworn jury renders a conviction a nullity such that it requires a retrial,¹⁶ this does not mean the first trial is rendered a nullity such that a defendant is entitled to a discharge and acquittal under OCGA § 17-7-170 (b). As the Supreme Court of Georgia has explained, " OCGA § 17-7-170 was enacted to implement the constitutional provision for a speedy trial," ¹⁷ and it does not provide any substantive right but, rather, establishes a procedure for securing the existing constitutional right.¹⁸ Indeed, our Supreme Court has compared the concerns shared by defendants in terms of receiving a speedy trial or being twice placed in jeopardy, as follows:

In the absence of a right to a speedy trial the accused might suffer uncertainty, emotional stress, and the economic strain of a pending prosecution indefinitely. These values are of a magnitude similar to the values at stake in double jeopardy claims. The Supreme Court [of the United States] has pointed out that, in addition to the concern of being twice convicted, a double jeopardy claimant is concerned with ‘embarrassment, expense and ordeal and compelling him to lie in a continuing state of anxiety and insecurity.’ "¹⁹

Put another way, in double-jeopardy claims, "the accused is saying, ‘I may not now be tried because I have previously been placed in jeopardy.’ "²⁰ And in a claim based on OCGA § 17-7-170 the accused is saying, "I may not now be tried because the time during which I must have been placed on trial has passed."²¹ But as also recognized by our Supreme Court:

Unlike the protection afforded by the Double Jeopardy Clause, the Speedy Trial Clause does not, either on its face or according to the decisions of this Court, encompass a "right not to be tried" which must be upheld prior to trial if it is to be enjoyed at all. It is the delay before trial, not the trial itself, that offends against the constitutional guarantee of a speedy trial.²²

With this in mind, our Supreme Court has concluded that when a defendant makes a statutory request for a speedy trial, "a mistrial resulting from other than inevitable accident such as the death or sickness of the judge or one or more of the jury ... does not constitute a trial that satisfies the State's obligation under the demand for trial statutes."²³

But this case does not involve a mistrial. Instead, the trial court failed to swear the petit jury and that failure went entirely unnoticed by everyone involved—including the trial court. So, as far as all involved were concerned, Bowman was in fact tried (or had a trial ) and then convicted of the crimes for which he was indicted, resulting in his post-trial incarceration. And while the trial court's failure to swear the petit jury renders Bowman's conviction a nullity, there is no statutory or precedential basis for concluding that he was not tried within the meaning of OCGA §§ 17-7-170 (b) or (c). To the contrary, the ordinary signification of "trial" supports our determination that he was tried within the meaning of those statutes: "[t]he examination and determination of a cause by a judicial tribunal; determination of the guilt or innocence of an accused person by a court"²⁴ or "[a] formal judicial examination of evidence and determination of legal claims in an adversary proceeding."²⁵

Unfortunately, until Bowman filed his amended motion for new trial nearly five years later, the reversible error committed in his trial went undiscovered. To be sure, the failure to swear a petit jury is no small matter, as the caselaw we have highlighted supra reflects. And this is why Bowman's motion for new trial was correctly granted by the trial court. But until the error was noticed by the trial court, Bowman, or the State, there was no way to rectify the situation. And as lamentable as the post-conviction delay in discovering this error may be, it does not implicate or trigger the protections of OCGA § 17-7-170 (b).²⁶ Bowman was "tried" or placed on "trial" within the plain meaning of OCGA §§ 17-7-170 (b) and (c),²⁷ and the fact that his conviction²⁸ was subsequently (and rightly) declared a nullity²⁹ is of no consequence in determining whether his speedy trial demand was satisfied. Thus, although the failure of the trial court to swear the petit jury unquestionably rendered Bowman's...