State v. Wilson

• Decision Date: 19 October 2012
• Docket Number: No. A12A1122.,A12A1122.
• Citation: 318 Ga.App. 88,732 S.E.2d 330
• Parties: The STATE v. WILSON.
• Court: Georgia Court of Appeals

318 Ga.App. 88

732 S.E.2d 330

12 FCDR 3281

The STATE

v.WILSON.

No. A12A1122.

Court of Appeals of Georgia.

Sept. 25, 2012.

Reconsideration Denied Oct. 19, 2012.

George Herbert Hartwig III, Dist. Atty., Erikka Bettis Williams, Asst. Dist. Atty., for appellant.

Nicholas Earl White, Angela Marie Coggins, for appellee.

ELLINGTON, Chief Judge.

The State of Georgia indicted Terrell Wilson in Houston County, charging him as follows: Count 1—aggravated assault of a peace officer, OCGA § 16–5–21(c); Count 2—interference with child custody, OCGA § 16–5–45(b)(1) (A); Count 3—fleeing or attempting to elude a police officer, OCGA § 40–6–395(a); and Count 4—driving with a suspended or revoked license, OCGA § 40–5–121(a). At trial, Wilson made an oral motion to quash Counts 1 through 3 of the indictment, and the trial court granted the motion. ¹ The State appeals,² contending, inter alia, that the court erred in finding that Wilson timely raised his motion to quash and in granting that motion. For the following reasons, we agree and reverse the court's order.

The record shows that the State indicted Wilson in September 2010, and he was arraigned in February 2011. In Count 1 of the indictment, the State charged Wilson with “Aggravated Assault on [a] Peace Officer,” alleging that he “did unlawfully make an assault upon the person of Dep. Richard Slate Simons, a peace officer engaged in the performance of his official duties, with a motor vehicle, an object, which, when used offensively against a person, is likely to or actually does result in serious bodily injury[.]” (Emphasis supplied.) In Count 2, the State charged Wilson with “interference with custody,” alleging that he, “without lawful authority, did entice [S.J.], a child, from [N.J.], who has lawful custody of said child[.]” And, in Count 3, the State charged Wilson with “fleeing or attempting to elude” and alleged that he “did unlawfully and willfully fail to bring his vehicle to a stop after a pursuing police officer, Deputy Richard Slate Simons, gave a visual and audible signal, to wit: identifying himself as a police officer, holding up his hand and ordering the defendant to stop his vehicle[.]”

Wilson did not file a demurrer or a motion to quash the indictment before his December 2011 trial. Immediately after the jury was impaneled and sworn, however, Wilson's counsel made an oral motion to quash Counts 1 through 3 of the indictment, asserting that each count failed to allege at least one essential element of the crime charged therein.³The State objected to the motion, arguing that it was untimely and was not in writing. The trial court disagreed, however, and quashed Count 1 of the indictment because it failed to allege that Wilson “knowingly” committed an aggravated assault upon a police officer.⁴ The court quashed Count 2 because it failed to allege that Wilson “knowingly” or “recklessly” enticed the named child, S.J., from the legal custodian, N. J.⁵ And the court quashed Count 3, ruling that the indictment failed to charge the police officer was in uniform, was wearing an official badge, and was using a marked police vehicle.⁶ The court also denied the State's request to pursue convictions for lesser included offenses of the crimes charged in the indictment, ruling that to do so would essentially allow the State to make impermissible material alterations to the indictment.

1. On appeal, the State contends that the trial court erred in finding that Wilson timely filed his motion to quash the indictment, arguing that the alleged defects in the indictment were not fatal to its validity and, therefore, Wilson was required to file a written special demurrer raising the challenge before trial. We review this alleged error de novo.⁷

Due process of law requires that an indictment put the defendant on notice of the crimes with which he is charged and against which he must defend. An indictment apprises a defendant that he may be convicted in the crime named in the indictment, of a crime included as a matter of law in the crime named, and of a crime established by the facts alleged in the indictment regarding how the crime named was committed.

(Citation and punctuation omitted.) Stinson v. State, 279 Ga. 177, 178(2), 611 S.E.2d 52 (2005). Stated differently, an indictment not only charges the defendant with the specified crime, it also

embraces all lesser included offenses of the charged offense. An indictment places an accused on notice that he can be convicted of the crimes expressly charged as well as lesser crimes that are included in the charged offenses as a matter of law or fact. Indeed, if an offense is a lesser included offense as a matter of law or fact, an accused can be convicted of that offense even if the trial court directs a verdict on the offense expressly charged in the indictment.

(Citations omitted.) Morris v. State, 310 Ga.App. 126, 129(2), 712 S.E.2d 130 (2011). See also OCGA § 16–1–6 (“An accused may be convicted of a crime included in a crime charged in the indictment or accusation.”).⁸

Thus, if an indictment alleges the facts necessary to establish the elements of a lesser included offense to the charged crime, then a defendant may be convicted of the lesser included offense pursuant to that indictment, as long as the evidence presented at trial is sufficient to sustain the conviction. See Morris v. State, 310 Ga.App. at 129–130(2), 712 S.E.2d 130.⁹

If a defendant decides to challenge the validity, specificity or form of an indictment, he or she must file a general and/or special demurrer seeking to quash the indictment. A general demurrer challenges the validity of an indictment by asserting that the substance of the indictment is legally insufficient to charge any crime.¹⁰Stinson v. State, 279 Ga. at 180(2), n. 3, 611 S.E.2d 52; State v. Meeks, 309 Ga.App. 855, 856, 711 S.E.2d 403 (2011). In other words, a general demurrer is essentially a claim that the indictment is fatally defective and, therefore, void, because it fails to allege facts that constitute the charged crime or any other crime, including a lesser included offense of the charged crime. McDaniel v. State, 298 Ga.App. 558, 559–560, 680 S.E.2d 593 (2009); see OCGA § 16–1–6; Morris v. State, 310 Ga.App. at 129(2), 310 Ga.App. 126.

Thus, “[t]he true test of the sufficiency of an indictment to withstand a general demurrer ... is found in the answer to the question: Can the defendant admit the charge as made and still be innocent [of any crime]? If he can, the indictment is fatally defective.” (Citation and punctuation omitted.) State v. Meeks, 309 Ga.App. at 856, 309 Ga.App. 855. See Stinson v. State, 279 Ga. at 179(2), 611 S.E.2d 52 (accord). On the other hand, if the defendant cannot admit all of the facts in each count of the indictment and still be innocent of committing any crime, the indictment is legally valid and will survive a general demurrer. Harris v. State, 258 Ga.App. 669, 671–672(1), 574 S.E.2d 871 (2002) (“[I]f, taking the facts as alleged in the indictment, the guilt of the accused follows as a legal conclusion, the indictment is good.”) (citations and punctuation omitted). ¹¹

In contrast to a general demurrer, a special demurrer merely objects to the form of an indictment and seeks more information or greater specificity about the offense charged. Stinson v. State, 279 Ga. at 180(2), n. 3, 611 S.E.2d 52; McDaniel v. State, 298 Ga.App. at 559–560, 680 S.E.2d 593; Jones v. State, 240 Ga.App. 484, 486(2), 523 S.E.2d 73 (1999). A defendant must file a special demurrer in writing within ten days after arraignment. Stinson v. State, 279 Ga. at 180(2), n. 3, 611 S.E.2d 52; see OCGA § 17–7–110 (“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.”). Once a defendant has timely filed a special demurrer, he or she is entitled to an indictment perfect in form and substance. State v. Corhen, 306 Ga.App. 495, 498, 700 S.E.2d 912 (2010). However, “[t]he failure to file a timely special demurrer seeking additional information constitutes a waiver of the right to be tried on a perfect indictment.” (Citations omitted.) McDaniel v. State, 298 Ga.App. at 560, 680 S.E.2d 593. See Stinson v. State, 279 Ga. at 180(2), 611 S.E.2d 52 (accord).

(a) With these principles in mind, we turn to the record in the instant case, which shows that, after the jury was impaneled and sworn, Wilson's counsel made an oral motion to quash Counts 1 [318 Ga.App. 93]through 3 of the indictment, asserting that each count failed to allege at least one essential element of the crime charged therein. However, “[a]n allegation that an indictment was deficient because it did not contain all the essential elements of the crime is, in essence, a special demurrer seeking greater specificity.” (Citation omitted; emphasis supplied.) McDaniel v. State, 298 Ga.App. at 560, 680 S.E.2d 593. See Stinson v. State, 279 Ga. at 180(2), 611 S.E.2d 52 (accord).¹² Therefore, because Wilson failed to raise this challenge to the indictment in a timely written special demurrer, it was waived. As a consequence, the trial court erred in setting aside Counts 1 through 3 of the indictment on the basis that they failed to allege every essential element of the crimes charged.¹³

(b) Further, a challenge to an indictment that is based upon an alleged variance between the offense named in the indictment and the facts alleged in the indictment goes only to the form of the indictment, so that such challenge must be brought by special demurrer. Jones v. State, 240 Ga.App. at 486(2), 523 S.E.2d 73(It is axiomatic that it is not the name given to a crime in the indictment, but the indictment's description of the facts that constituted the crime, that establishes the offense charged.); see Morris v. State, 310 Ga.App. at 131(3), 712 S.E.2d 130 (“It is immaterial what the offense is called in the indictment as...