State v. Evans, s. A89A0491

• Decision Date: 26 June 1989
• Docket Number: A89A0739,Nos. A89A0491,s. A89A0491
• Parties: The STATE v. EVANS. EVANS v. The STATE.
• Court: Georgia Court of Appeals

Page 404

384 S.E.2d 404

192 Ga.App. 216

The STATE v. EVANS.

EVANS v. The STATE.

Nos. A89A0491, A89A0739.

Court of Appeals of Georgia.

June 26, 1989.

Rehearing Denied July 11, 1989.

Michael H. Crawford, Dist. Atty., for appellant.

Claude S. Beck, for appellee.

BIRDSONG, Judge.

The State appeals the trial court's order granting appellee/cross- appellant Keith Evans' motion in autrefois convict as to Counts 1, 2, 3, and 4 of a certain Union County indictment, No. 88-UR-90. Appellee/cross-appellant filed a cross-appeal to the trial court's order denying cross-appellant's motion to suppress.

In April 1987, Keith Evans entered a plea of guilty to criminal attempt to commit interstate interference with custody (OCGA § 16-5-45(c)), contributing to the delinquency of a minor (OCGA § 16-12-1), and interstate interference with custody (OCGA § 16-5-45(c)). These offenses all stem from conduct by Keith Evans in regard to a teenage male, M.H. The interstate interference with custody charge specifically was averred to have occurred on September 13, 1986. The other two charges specifically were averred to have occurred on October 7, 1986.

In October 1988, based on what the State in essence claims was newly discovered information, Keith Evans was indicted as follows: (a) Count 1, sexual exploitation of children, specifically M.H., on September 30, 1986 (OCGA § 16-12-100); (b) Count 2, sodomy, specifically with M.H., on September 30, 1986 (OCGA § 16-6-2(a)); (c) Count 3, aggravated child molestation, specifically by performing sodomy on M.H., on August 31, 1986 (OCGA § 16-6-4(c)); (d) Count 4, distributing obscene materials, on September 30, 1986 (OCGA § 16-12-80); and, (e) three other counts not here relevant.

I. A89A0491. THE STATE v. EVANS

The State asserts that the trial court erred in granting appellee Evans' motion in autrefois convict and thereby dismissing Counts 1, 2, 3, and 4 of Indictment No. 88-UR-90.

The State first contends that appellee Evans did not adequately raise a Fifth Amendment double jeopardy claim, as in his motion in autrefois convict appellee relied solely upon his rights under the Sixth and Fourteenth Amendments to the Constitution of the United States. Suffice it to observe that the Fifth Amendment guarantee against double jeopardy is enforceable against the states through the Fourteenth Amendment. Brown v. Ohio, 432 U.S. 161, 164, 97 S.Ct. 2221, 2224, 53 L.Ed.2d 187; North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656.

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." "The Double Jeopardy Clause 'protects against a second prosecution for the same offense after ... conviction. And it protects against multiple punishments for the same offense.' " Brown, supra 432 U.S. at 165, 97 S.Ct. at 2225. "The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U.S. 299, 304 [52 S.Ct. 180, 182, 76 L.Ed. 306] ...: 'The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not....' " (Emphasis supplied.) Brown, supra 432 U.S. at 166, 97 S.Ct. at 2225. If two or more offenses are the same under this test, "they necessarily will be the same for purposes of barring successive prosecutions." Id. But, " ' "[a] single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other." ' " (Emphasis supplied.) Pryor v. State, 238 Ga. 698, 700, 234 S.E.2d 918.

Before applying the Blockburger test to the charges involved in this case, we must first factually determine whether the charges arise from the same act or transaction. "The question as to whether the transaction[§ were] the same as a matter of fact can hardly be said to admit of much elucidation. It is true that this question may arise in the class of cases involving an offense which in its very definition and essential nature is continuous in character. In dealing with the question as to whether the offense be of that character, it is sometimes necessary to distinguish between one continuous, uninterrupted single act and a series of distinct and separate acts. [Cits.] It is also true that the question of identity in fact may be involved in that class of cases where the State by the generality of the indictment may not be confined to proof of any specific date or transaction within the period of limitation, with the result that a prosecution for a particular crime will usually operate as a bar for any such offense committed within the period of limitation previously to the indictment." (Emphasis supplied.) Harris v. State, 193 Ga. 109, 117, 17 S.E.2d 573. In this instance, examination of all charges in toto, together with the available evidence pertaining thereto, reveals that each of these statutory offenses was committed as a distinct and separate criminal act, and not as part and parcel of one continuous, uninterrupted criminal transaction. Further, the original accusation and the subsequent indictment both averred that each transaction occurred on a specific date, and thus while some of the general averment language contained within the charges of the original accusation may have been broad enough, when viewed in isolation, to encompass certain of the averments contained within the charges of the later indictment, when the charges are read as a whole such clearly is not the case. Compare Harris, supra at 117, 17 S.E.2d 573, and cases therein cited with the charges averring specific dates in both the accusation and indictment in this case.

Assuming arguendo that the offenses charged in the original accusation and the pertinent charges contained in the subsequent indictment had arisen as part of the same act or transaction, we further find that each of the statutory offenses originally charged requires proof of a fact which the other subsequently charged statutory offenses do not require. We further find that the facts of Brown v. Ohio, supra, clearly are distinguishable from the facts in this case. Moreover, assuming arguendo that the offenses in Charges 1, 2, and 3 of the subsequent indictment had stood in the relationship of "greater and lesser included" offenses to one or more of the offenses charged in the original accusation, this case nevertheless would pose an exception to Brown. An exception to Brown exists, so that prosecution for a lesser offense does not prevent subsequent prosecution for a greater offense, whenever "the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence." See Brown, supra 432 U.S. at 169, n. 7, 97 S.Ct. at 2227, n. 7, and cases cited therein; Garrett v. United States, 471 U.S. 773, 796-797, 105 S.Ct. 2407, 2420-2421, 85 L.Ed.2d 764 (O'Connor, J., concurring). We find no evidence that the State failed to exercise such due diligence in this case notwithstanding its apparent inability to obtain initially all the facts relevant to appellee Evans' separate acts of criminal misconduct with M.H.

Appellee next asserts that these charges violate the State's statutory prohibitions against multiple prosecution and conviction. OCGA §§ 16-1-6; 16-1-7; 16-1-8. The State asserts appellee has waived these issues. A properly crafted plea of autrefois acquit or convict is sufficient to raise a double jeopardy issue, "whenever the proof shows the second case to be the same transaction with the first." (Emphasis deleted.) Day v. State, 163 Ga.App. 839, 840, 296 S.E.2d 145. Appellee Evans' written motion in autrefois convict, however, did not raise any issue regarding the violation of these statutory provisions. "If not made in writing at the proper time [upon arraignment and before pleading on the merits], a plea of former jeopardy is waived." McCutchen v. State, 177 Ga.App. 719, 722(4), 341 S.E.2d 260; Holmes v. State, 120 Ga.App. 281(1), 170 S.E.2d 312; see Hooks v. State, 138 Ga.App. 539(3), 226 S.E.2d 765. However, this court further held in McClure v. State, 179 Ga.App. 245(1), 345 S.E.2d 922, that while "the procedural bar against double jeopardy can, at least in some circumstances, be waived by failure to assert it in writing prior to trial ... the applicability of the substantive bar may not even become apparent to an accused or his counsel until after the state has presented its case.... [M]ore recent decisions make it clear that the failure to file a written plea of former jeopardy prior to trial will not defeat an accused's right to be free of multiple convictions for the criminal act." Applying the precedent of McClure, we find that appellee Evans has waived any appellate claim of procedural double jeopardy, but has not waived any issue of substantive double jeopardy arising from the application of pertinent statutory law to the facts of this case.

In the seminal case of State v. Estevez, 232 Ga. 316, 206 S.E.2d 475, the Supreme Court held that to apply the expanded statutory proscriptions against double jeopardy, "we must recognize that the proscription has two aspects. First, there are limitations upon multiple prosecutions for crimes arising from the same criminal conduct. Second, there are limitations upon multiple convictions or punishments that may be imposed for such crimes. The former is generally referred to as the procedural aspect of double jeopardy and the latter as the substantive...