State v. Cohen

• Decision Date: 02 November 2017
• Docket Number: S17A1265
• Citation: State v. Cohen, 302 Ga. 616, 807 S.E.2d 861 (Ga. 2017)
• Parties: The STATE v. COHEN et al.
• Court: Georgia Supreme Court

302 Ga. 616

807 S.E.2d 861

The STATE

v.COHEN et al.

S17A1265

Supreme Court of Georgia.

Decided: November 2, 2017

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Lyndsey H. Rudder, F. McDonald Wakeford, Assistant District Attorneys, for appellant.Brian Steel ; Finestone, Morris & White, Bruce H. Morris ; Jimmy D. Berry ; Reid Thompson, for appellees.

MELTON, Presiding Justice.

According to the briefs, Mye Brindle worked as a housekeeper and personal assistant to Joe Rogers, who was married.During her employment with Rogers, the two became involved sexually.¹In June 2012, Brindle hired attorneys David Cohen and John Butters to represent her on a potential claim of sexual harassment.On June 20, 2012, without Rogers' knowledge or consent to be video recorded, Brindle allegedly used a "spy" camera to secretly record video of Rogers naked in his bathroom and bedroom, as well as video of a sexual encounter between Rogers and herself inside his bedroom.The video recording was delivered to attorney Cohen, and Brindle resigned from her position with Rogers.On or about July 16, 2012, Rogers received a demand letter from attorney Cohen relating to the potential sexual harassment claim that he and Butters were prepared to file on Brindle's behalf.²

After extensive civil litigation between Rogers and Brindle that is not relevant to the current appeal, on June 17, 2016, Brindle and her attorneys (hereinafter collectively referred to as the "defendants") were charged in the Superior Court of Fulton County with conspiracy to commit extortion under OCGA § 16-8-16(Count 1), conspiracy to commit unlawful surveillance (Count 2), and conducting unlawful surveillance under OCGA § 16-11-62(Count 3).Brindle was also charged individually with one additional count of conducting unlawful surveillance under OCGA § 16-11-62(Count 4).³The indictment was largely based on the defendants' prior actions involving an alleged conspiracy to secretly video record and then actually record Rogers in the bathroom and bedroom of his home on June 20, 2012, and then sending Rogers the July 16, 2012 litigation demand letter.Through multiple motions filed on September 19, 2016 and October 19, 2016, the defendants filed a general demurrer to dismiss the indictment against them and to have OCGA §§ 16-8-16 (a)(3),⁴16-11-62 (2),⁵and16-11-66 (a)⁶ declared unconstitutional.Following a hearing, on November 30, 2016, the trial court issued an order granting the defendants' general demurrer to the indictment.After finding that the indictment failed to allege that the defendants had committed any crimes under the relevant statutes, the trial court went on to conclude that OCGA § 16-8-16 (a)(3) was unconstitutionally overbroad on its face, and further declared that OCGA §§ 16-11-62 (2)and16-11-66 (a) were unconstitutionally vague because "persons of ordinary intelligence [could not] be expected to determine what is permitted and prohibited by these [two]statutes."Accordingly, the trial court dismissed all counts of the indictment against all of the defendants.

The State appeals from this ruling, and, for the reasons that follow, we conclude that (1) while the trial court properly dismissed Count 1 of the indictment, the trial court erred by reaching the constitutional issue relating to OCGA § 16-8-16 (a)(3) in support of this result; and (2)the trial court erred in dismissing Counts 2, 3, and 4 of the indictment and in concluding that OCGA §§ 16-11-62 (2)and16-11-66 (a) are unconstitutionally vague.We therefore affirm the portion of the trial court's order dismissing Count 1 of the indictment, vacate the portion of the trial court order's finding OCGA § 16-8-16 (a)(3) to be unconstitutionally overbroad on its face, and reverse the portion of the trial court's order dismissing Counts 2-4 of the indictment.

1.The State contends that the trial court erred in granting the defendants' general demurrer to Count 1 of the indictment.We disagree.

"A general demurrer challenges the sufficiency of the substance of the indictment, whereas a special demurrer challenges the sufficiency of the form of the indictment.[Cits.]"Bramblett v. State, 239 Ga. 336, 337 (1), 236 S.E.2d 580(1977).

The true test of the sufficiency of an indictment that will withstand

a general demurrer is as follows: If all the facts which the indictment charges can be admitted [as true], and still the accused be innocent, the indictment is bad; but if, taking the facts alleged as premises, the guilt of the accused follows as a legal conclusion, the indictment is good.

(Citations and punctuation omitted.)Lowe v. State, 276 Ga. 538, 539 (2), 579 S.E.2d 728(2003).We"review[ ]a trial court's ruling on a general ... demurrer de novo in order to determine whether the allegations in the indictment are legally sufficient."(Footnote and punctuation omitted.)Smith v. State, 340 Ga. App. 457, 459, 797 S.E.2d 679(2017).

Count 1 of the indictment states that the defendants were being charged

with the offense of CONSPIRACY TO COMMIT A FELONY O.C.G.A. § 16-4-8,^[7] for the said accused, in the County of Fulton and State of Georgia, on the 6th day of June, 2012, did unlawfully, together, conspire to commit the crime of EXTORTION O.C.G.A. § 16-8-16, and at least one of those persons did an overt act to effect the object of said conspiracy, to wit:

OVERT ACTS

1.

On or about the 3rd day of June, 2012, JOHN BUTTERS, an attorney authorized to practice law in Georgia, contacted Thomas Hawkins, a private investigator, to arrange a meeting to discuss making a covert video recording of a wealthy individual without that person's knowledge or consent.

2.

On or about the 4th day of June, 2012, attorneys JOHN BUTTERS and DAVID COHEN met with private investigators Michael Deegan and Thomas Hawkins at the offices of Hawk Private Investigations ("Hawk P.I.") in Fulton County to discuss making a covert video recording of a wealthy person inside his residence without that person's knowledge or consent.BUTTERS and COHEN did not reveal the name of the wealthy person.

3.

At the conclusion of this meeting, Michael Deegan and Thomas Hawkins agreed to help JOHN BUTTERS and DAVID COHEN purchase the spy camera even after expressly stating to BUTTERS and COHEN that it would be illegal to covertly record someone in their residence without that person's knowledge or consent.

4.

On or about the 6th day of June, 2012, attorneys JOHN BUTTERS and DAVID COHEN met with investigator Michael Deegan a second time at the offices of Hawk P.I. in Fulton County.Accompanying BUTTERS and COHEN to this meeting was a person they identified as their client "Sam" and another person they identified as "Sam's mother."The purpose of this meeting was to further discuss the making of a covert video recording of a wealthy individual without that person's knowledge or consent.

5.

At the conclusion of the meeting at the offices of Hawk P.I. in Fulton County, DAVID COHEN purchased a spy camera made to look like a cell phone and designed to create covert video recordings.

6.

On or about the 11th day of June, 2012, Michael Deegan delivered the spy camera to MYE BRINDLE, the person previously identified as "Sam," and showed her how to use it.

7.

On or about the 20th day of June, 2012, MYE BRINDLE secretly videotaped the victim, later identified as JOE ROGERS, without his knowledge or consent, naked in the bathroom of his residence at [his home address] in Fulton County.

8.

On or about the 20th day of June, 2012, MYE BRINDLE secretly videotaped JOE ROGERS, without his knowledge or consent, naked in the bedroom of his residence.

9.

On or about the 20th day of June, 2012, MYE BRINDLE secretly videotaped a sexual encounter between her and JOE ROGERS, without his knowledge or consent, which took place in the bedroom of his residence....

10.

On or about the 22nd day of June, 2012, MYE BRINDLE delivered the spy camera and the video recordings referenced in Overt Acts 7 through 9 to Michael Deegan.

11.

On or about the 22nd day of June, 2012, Michael Deegan had the video recording made by MYE BRINDLE of JOE ROGERS on June 20, 2012 placed on DVD(s) and then delivered the DVD(s) to DAVID COHEN in Marietta, Georgia.

12.

On or about the 16th day of July, 2012, DAVID COHEN sent a letter to JOE ROGERS threatening a lawsuit on behalf of MYE BRINDLE.Said letter stated that there were "[n]umerous audio and video recordings" of sexual harassment and abuse by ROGERS upon BRINDLE.This letter sought to settle the matter before public litigation so that Joe Rogers may avoid potential "media attention ... intrusive governmental investigations, Department of Justice, Attorneys General or SEC involvement, as well as civil and criminal charges...."

13.

On or about the 2nd day of August, 2012, JOHN BUTTERS, DAVID COHEN, and Hylton Dupree, attorneys for MYE BRINDLE met with Robert Ingram and Jeffrey Daxe, attorneys for JOE ROGERS, to discuss the claims listed in the July 16, 2012 letter addressed to ROGERS.COHEN played an edited video of the sexual encounter that was secretly recorded by MYE BRINDLE on June 20, 2012, in the bedroom of Joe Rogers' residence, without his knowledge or consent, at [his home address] in Fulton County.BUTTERS informed Robert Ingram and Jeffrey Daxe that MYE BRINDLE wanted "millions" of dollars to settle her claim.

14.

On or about the 2nd day of August, 2012, DAVID COHEN told attorneys Robert Ingram and Jeffrey Daxe that he possessed videos of other sexual encounters between JOE ROGERS and MYE BRINDLE.Said statements made by COHEN furthered the extortion plot by asserting that there was another embarrassing video of ROGERS, which would tend to subject ROGERS to even more contempt and ridicule.

15.

On or about the 14th day of September, 2012, mediation was held in which, JOHN BUTTERS, DAVID COHEN, and Hylton Dupree asked for twelve million dollars to settle MYE BRINDLE'S claims which they argued were supported by the June 20, 2012 video of JOE ROGERS taken without

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