State v. Pruiett

• Decision Date: 18 November 2013
• Docket Number: No. A13A1293.,A13A1293.
• Parties: The STATE v. PRUIETT.
• Court: Georgia Court of Appeals

324 Ga.App. 789

751 S.E.2d 579

The STATE

v.PRUIETT.

No. A13A1293.

Court of Appeals of Georgia.

Nov. 18, 2013.

Herbert E. Franklin, Dist. Atty., Matthew Christopher Brown, Asst. Dist. Atty., for Appellant.

Cook & Connelly, Rex Barron Abernathy, Summerville, Steven Alexander Miller, for Appellee.

BRANCH, Judge.

Shortly after Debra Pruiett pled guilty to possessing an unspecified amount of Xanax on a particular day, she was charged with four counts of possessing drugs, including another unspecified amount of Xanax, on that same day. Pruiett filed a double jeopardy plea in bar, which the trial court granted. We affirm the grant of the bar as to the second charge for possession of Xanax, but reverse as to the charges for possession of the remaining three drugs named in the second accusation.

On appeal from the grant or denial of a double jeopardy plea in bar, we review the trial court's oral and written rulings as a whole to determine whether the trial court's findings support its conclusion. Where the evidence is uncontroverted and witness credibility is not an issue, our review of the trial court's application of the law to the undisputed facts is de novo.

(Footnote omitted.) Etienne v. State, 298 Ga.App. 149, 150, 679 S.E.2d 375 (2009).

The State did not introduce any evidence at the hearing on Pruiett's plea; accordingly, the evidence introduced by Pruiett at that hearing was uncontroverted. On July 30, 2010, a police officer from Trion, Georgia received information that Pruiett was going to be delivering some methamphetamine at a specific location in the Trion area. When Pruiett appeared at the appointed place, the officer searched Pruiett's car and found an unspecified quantity of one-milligram pills of Xanax, a controlled substance, inside. The officer arrested Pruiett for possession of the drug without a prescription. At the time of her arrest, Pruiett told the officer that she had more of the drug at her house. While Pruiett was on her way to the county jail, the arresting officer called a Chattooga County ¹ narcotics investigator, who interviewed Pruiett at the jail. Pruiett told the investigator that she had obtained the pills from her sister and that she kept them at her home. The investigator obtained and executed a warrant to search Pruiett's house, where the investigator found, among other things, a spoon and baggie bearing methamphetamine residue, six two-milligram alprazolam tablets, one-and-a-half clonazepam tablets, and a bag of marijuana. During the search, Pruiett's live-in companion, Carlton Day, arrived home from work. He was also arrested.

On the same day that the Xanax was found in Pruiett's car and in her home, the police officer charged Pruiett with possession of alprazolam, and the narcotics investigator charged her with possession of methamphetamine and unspecified Schedule IV controlled substances. On October 26, 2010, Pruiett was formally accused of possessing an unspecified amount of alprazolam “on the 30th day of July, 2010,” an accusation to which she pled guilty on February 14, 2011. On March 1, 2011, approximately two weeks after Pruiett's plea, Pruiett and Day were both formally accused of possessing unspecified amounts of methamphetamine, alprazolam, and clonazepam, as well as less than one ounce of marijuana, “on the 30th day of July, 2010.” The second accusation against Pruiett did not distinguish the alprazolam discovered in her home from that found in her car and at issue in the first accusation (to which she had already pled guilty). On August 5, 2011, Pruiett filed a double jeopardy plea in bar under OCGA §§ 16–1–7 and 16–1–8, seeking to dismiss all four counts of the second accusation. Pruiett's plea in bar was heard on August 22, 2012. On February 4, 2013, the trial court granted Pruiett's plea in bar.

1. On appeal, the State argues that the trial court erred when it granted Pruiett's plea in bar under OCGA §§ 16–1–7 and 16–1–8. We agree in part.

The double jeopardy clause of the Fifth Amendment to the United States Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The Georgia Constitution also contains a double jeopardy clause which provides that “no person shall be put in jeopardy of life or liberty more than once for the same offense.” Ga. Const., 1983, Art. I, Sec. I, Par. XVIII. Further, OCGA §§ 16–1–6, 16–1–7, and 16–1–8 also provide limitations on multiple prosecutions, convictions, and punishments for the same criminal conduct.

(Citation omitted.) Nolen v. State, 218 Ga.App. 819, 820, 463 S.E.2d 504 (1995).

OCGA § 16–1–7 provides in relevant part:

(a) When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if: (1) [o]ne crime is included in the other; or (2) [t]he crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.

(b) If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution ....

(Emphasis supplied.) OCGA § 16–1–8 provides in relevant part:

(a) A prosecution is barred if the accused was formerly prosecuted for the same crime based upon the same material facts, if such former prosecution ... [r]esulted in either a conviction or an acquittal....

(b) A prosecution is barred if the accused was formerly prosecuted for a different crime or for the same crime based upon different facts, if such former prosecution: ... [r]esulted in either a conviction or an acquittal and the subsequent prosecution [i] is for a crime of which the accused could have been convicted on the former prosecution, [ii] is for a crime with which the accused should have been charged on the former prosecution (unless the court ordered a separate trial of such charge), or [iii] is for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required on the other prosecution or unless the crime was not consummated when the former trial began.

(Emphasis supplied.)

OCGA §§ 16–1–7(a) and 16–1–8(a) codify the principle of “substantive double jeopardy” in that they preclude multiple convictions or prosecutions “for crimes arising from the same criminal conduct.” (Citation omitted.) Teal v. State, 203 Ga.App. 440, 441–442(1), (2), 417 S.E.2d 666 (1992). By contrast, and as the Supreme Court of Georgia has noted, OCGA § 16–1–8(b) “embraces the concept of res judicata and is not constitutional double jeopardy, but is protection against subsequent prosecution where the defendant could have been, and under ... OCGA § 16–1–7(b), should have been prosecuted on a former prosecution.” (Emphasis supplied.) McCannon v. State, 252 Ga. 515, 517, 315 S.E.2d 413 (1984). “[A] plea of guilty to an indictment or complaint with its entry on the record and acceptance by the trial judge constitutes jeopardy for purposes of OCGA §§ 16–1–7(b) and 16–1–8(b).” State v. Smith, 185 Ga.App. 694, 696, 365 S.E.2d 846 (1988).

(a) Pruiett's prosecution for possession of the Xanax found at her house is not barred under the substantive double jeopardy provisions of OCGA §§ 16–1–7(a) and 16–1–8(a) because it did not arise out of the “same conduct” as the possession of the drug in her car on the same day that formed the basis of her guilty plea.

The phrase “the same conduct” in [OCGA § 16–1–7] has been used interchangeably with the phrase “the same transaction.” In determining whether two offenses arise from the same conduct or transaction, Georgia courts have considered whether the two crimes involve the same parties, circumstances, locations, and times. The courts also consider whether evidence of the other offenses could be presented without permitting evidence of the first offense or vice versa.

(Citations and punctuation omitted.) Morgan v. State, 220 Ga.App. 198, 199, 469 S.E.2d 340 (1996).

Here, the two accusations against Pruiett arose from the discovery of one-milligram pills of Xanax in her car by the Trion police officer on July 30, 2010, and the discovery of two-milligram pills of the same drug, as well as methamphetamine, clonazepam, and marijuana, by the county investigator at Pruiett's home later on the same day. Although these discoveries were made on the same day, and although Pruiett was the common possessor in both cases, they occurred under different circumstances: Pruiett possessed the one-milligram doses in her car while traveling to an appointed drug deal, but shared possession of the two-milligram doses found later on July 30 at the home she shared with Day before beginning the trip culminating in her arrest. As we held in another case involving the discovery of drugs both at a failed drug deal and at the defendant's residence later on the same day, “[t]he incidents forming the basis of the two charges ... occurred on the same date, but at different times and locations,” such that “each offense required proof of different facts and the offenses were not the same in law or fact.” Poole v. State, 175 Ga.App. 374, 375(2), 333 S.E.2d 207 (1985); see also Kinchen v. State, 265 Ga.App. 474, 475–476, 594 S.E.2d 686 (2004) (following Poole and denying motion for acquittal as to convictions for possession of marijuana that a defendant attempted to sell to an undercover officer and for possession of the same drug later discovered in a warranted search of his home); Davis v. State, 287 Ga.App. 535, 536–537, 652 S.E.2d 177 (2007) (affirming denial of plea in bar as to subsequent prosecution where two sets of charges “involved different victims, locations, and times”). Compare York v. State, 242 Ga.App. 281, 294–295(8), 528 S.E.2d 823 (2000) (two counts of cocaine trafficking could not both...