State v. Dempsey

• Decision Date: 23 March 2012
• Docket Number: S11X1876.,Nos. S11A1875,s. S11A1875
• Parties: The STATE v. DEMPSEY. Dempsey v. The State.
• Court: Georgia Supreme Court

290 Ga. 763
727 S.E.2d 670
12 FCDR 1101

The STATE
v.
DEMPSEY.
Dempsey
v.
The State.

Nos. S11A1875, S11X1876.

Supreme Court of Georgia.

March 23, 2012.

[727 S.E.2d 671]

William L. Langley, Dist. Atty., Jeremy D. Clough, Asst. Dist. Atty., for appellant.

Swift, Currie, McGhee & Hiers, Bradley S. Wolff, Atlanta, Jeffrey L. Wolff, Dahlonega, for appellee.

HINES, Justice.

[290 Ga. 763]In Case Number S11A1875, the State appeals the trial court's order granting Lewis Dempsey's motion to quash indictment number 10–CR–003–DB. In Case Number S11X1876, Dempsey cross-appeals the trial court's earlier denial of his motion to quash indictment number 09–CR–325–MM. For the reasons that follow, we affirm in S11A1875, and reverse in S11X1876.

After a longstanding property dispute between Dempsey and Dillard Jewell Crane, Dempsey fatally shot Crane on September 7, 2009; Dempsey admitted the shooting, but claimed self-defense. On November 10, 2009, during the August 2009 term of the Lumpkin County grand jury, indictment number 09–CR–325–MM (“first indictment”) was returned, charging Dempsey with malice

[727 S.E.2d 672]

murder, felony murder, two counts of aggravated assault, and possession of a firearm during the commission of a felony. On December 17, 2009, [290 Ga. 764]Dempsey moved to quash this indictment because those persons who had been summoned for the August 2009 term of the Lumpkin County grand jury included Ralph Prescott, an elected member of the City Council of Dahlonega, who not only sat on the grand jury, but served as its foreman. In an order of January 4, 2010, the trial court denied Dempsey's motion to quash, but nonetheless ordered Prescott removed from future service on the grand jury.

The next day, January 5, 2010, the State sought to indict Dempsey for the same crimes; the grand jury, composed as before, but without Prescott and one other absent juror, returned indictment number 10–CR–003–DB (“second indictment”). The State also moved for an order of nolle prosequi as to the first indictment, which was granted on January 14, 2010. Dempsey then moved to quash the second indictment, which was granted.

1. In the cross-appeal, Dempsey contends that the trial court should have granted his motion to quash the first indictment. That is correct. As an elected local government officeholder, Prescott was ineligible to serve on a grand jury under OCGA § 15–12–60(b)(1).¹ And, it is uncontroverted that he nonetheless served on the grand jury that issued the first indictment against Dempsey.² This Court long ago recognized that “[i]f a grand juror is not qualified under the law to serve as such, his presence would vitiate the action of the body.” Betts v. State, 66 Ga. 508, 514(6) (1881). See also Reich v. State, 53 Ga. 73, 75 (1874), wherein a grand juror was ineligible to serve as he was not a citizen. “[I]t is now well settled that the incompetency of one grand juror renders an indictment void, no matter how many unexceptionable jurors join with him in finding the bill.” Crawford v. Crow, 114 Ga. 282, 284, 40 S.E. 286 (1901). See also Harper v. State, 283 Ga. 102(1), 657 S.E.2d 213 (2008) (Service on the grand jury by one never actually selected for that service would “require a new indictment.”).

[290 Ga. 765]Nonetheless, the trial court denied Dempsey's motion to quash the indictment, stating that it did so because Dempsey did not file his motion to quash before the indictment was returned, and did not show that he was without actual or constructive knowledge of the illegality of the grand jury's composition. Such was, for many years, a proper analysis under our law. See, e.g., Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975) (“In order for such a motion to be entertained by the trial court, it must be made prior to the return of the indictment or the defendant must show that he had no knowledge, either actual or constructive, of such alleged illegal composition of the grand jury prior to the time the indictment was returned; otherwise, the objection is deemed to be waived. [Cits.]”); Simmons v. State, 226 Ga. 110, 111(1)(a), 172 S.E.2d 680 (1970); Folds v. State, 123 Ga. 167, 168–169, 51 S.E. 305 (1905). However, that is no longer the case. In 2003, our General Assembly enacted what now appears as OCGA § 17–7–110. See Ga. L. 2003, p. 154, § 2. OCGA § 17–7–110 reads in toto: “All pretrial motions, including demurrers and special pleas, shall be filed within ten days after the date of arraignment, unless the time for filing is extended by the court.” It is uncontroverted that no arraignment had occurred when Dempsey filed his

[727 S.E.2d 673]

motion, and thus it was filed before the statutory deadline.

Despite the clear language of OCGA § 17–7–110, the State asserts that “all” does not mean “all” in this context, and there remain some motions which must be filed at a time earlier than that set forth in the statute. As authority for this proposition, the State cites cases decided after 2003 in which motions have been allowed after the time period set forth in OCGA § 17–7–110. See State v. Reid, 298 Ga.App. 235, 237–241(2), 679 S.E.2d 802 (2009) (violation of a constitutional right to speedy trial asserted after the time set forth in OCGA § 17–7–110); Atkins v. State, 291 Ga.App. 863, 663 S.E.2d 286 (2008) (motion in arrest of judgment challenging the sufficiency of the indictment); State v. Shabazz, 291 Ga.App. 751, 752(2), 662 S.E.2d 828 (2008) (demurrer asserting that the accusation failed to charge any offense permitted more than ten days after waiver of arraignment); State v. Barker, 277 Ga.App. 84, 87(3), 625 S.E.2d 500 (2005) (motion for directed verdict on the ground that the statute of limitation barred the prosecution was not bound by the time limit of OCGA § 17–7–110). While there may be a constitutional or other right to make a certain motion after the time period set forth in...