Strickland v. State

• Decision Date: 25 January 2019
• Docket Number: A18A1829
• Citation: 349 Ga.App. 673,824 S.E.2d 555
• Court: Georgia Court of Appeals
• Parties: STRICKLAND v. The STATE.

349 Ga.App. 673

824 S.E.2d 555

STRICKLAND

v.The STATE.

A18A1829

Court of Appeals of Georgia.

Decided January 25, 2019

Reconsideration Denied March 25, 2019.

The Patterson Firm, Jackie G. Patterson, Atlanta; Brandon D. Dixon, for appellant.

Tasha M. Mosley, Solicitor-General, for appellee.

Brown, Judge.

Antonio Strickland was charged by uniform traffic citation with following too closely in violation of OCGA § 40-6-49. At the close of evidence during his bench trial, Strickland made an oral motion to quash the charge, which the trial court denied. Strickland now appeals his conviction of following too closely, contending that the trial court erred in denying his motion to quash the charge because the citation fails to allege the essential elements of the offense. For the reasons explained below, we agree and reverse.

1. General or special demurrer. At the outset, we address whether Strickland's motion was in the nature of an untimely special demurrer, as argued by the State.¹

A special demurrer is waived if not raised before pleading to the merits of the indictment. On the other hand, because a general demurrer attacks the legality of an indictment, it is permissible to raise this ground after verdict by a motion in arrest of judgment even if there was no earlier objection. A motion in arrest asserts that the indictment contains a defect on its face affecting the substance and real merits of the offense charged and voiding the indictment, such as failure to charge a necessary element of a crime. Likewise, an oral objection or motion to quash based upon the same grounds as a general demurrer can be asserted anytime during the trial.

(Citations and punctuation omitted.) McKay v. State , 234 Ga. App. 556, 559 (2), 507 S.E.2d 484 (1998). As previously stated, Strickland orally moved to quash the citation at the close of evidence during his trial. Thus, if Strickland's motion to quash was in the nature of a special demurrer, it was untimely. 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."). And the failure to file a timely special demurrer seeking additional information constitutes a waiver of the right to be tried on a perfect indictment. See Carter v. State , 155 Ga. App. 49, 50 (1), 270 S.E.2d 233 (1980).

Here, Strickland argues that the citation is deficient because it fails to set out all of the essential elements of the crime, and that he could admit all of the allegations in the citation and not be guilty of a crime. And as the State explains in its brief, a challenge to the sufficiency of an indictment because it fails to set forth all of the essential elements of the charged crime is properly considered a general demurrer. See Coleman v. State , 318 Ga. App. 478, 479 (1), 735 S.E.2d 788 (2012) ("A general demurrer ... challenges the sufficiency of the substance of the indictment, such as an allegation that an indictment contains a defect on its face affecting the substance and merits of the offense charged, like a failure to charge a necessary element of a crime."); Newsome v. State , 296 Ga. App. 490, 491, 492-493 (1), 675 S.E.2d 229 (2009) (trial court erred in denying defendant's general demurrer to count in accusation, charging defendant with "unlawfully violat[ing] the provisions of a family violence order, in violation of OCGA § 16-5-95," because the accusation failed to set out the essential elements of the crime charged or to apprise defendant of the charges against him) (punctuation omitted); McKay , 234 Ga. App. at 559 (2), 507 S.E.2d 484 (a failure to charge a necessary element of a crime is subject to a general demurrer, motion to quash, or motion in arrest of judgment). Accordingly, Strickland has not waived his right to challenge the sufficiency of the citation by not filing a timely special demurrer.

2. Sufficiency of the citation. Having determined that Strickland's motion was in the nature of a general demurrer, we now turn to whether the trial court erred in denying his motion to quash the citation. As we have previously explained,

[t]he true test of the sufficiency of an indictment or accusation or citation is not whether it could have been made more definite and certain (or, for that matter, perfect,) but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.

(Citations and punctuation omitted.) Thomason v. State , 196 Ga. App. 447, 448 (2), 396 S.E.2d 79 (1990). "This presents a question of law that we review de novo." (Citation omitted.) State v. Wright , 333 Ga. App. 124, 125, 775 S.E.2d 567 (2015).

In Jackson v. State , 301 Ga. 137, (800 S.E.2d 356) (2017), the Supreme Court of Georgia emphasized that withstanding a general demurrer or motion to quash "requires more than simply alleging the accused violated a certain statute." Id. at 140 (1), 800 S.E.2d 356. Thus, a legally sufficient indictment must either "(1) recite the language of the statute that sets out all the elements of the offense charged, or (2) allege the facts necessary to establish violation of a criminal statute." Id. at 141 (1), 800 S.E.2d 356. "[I]f the accused can admit all the indictment or accusation or citation charges and still be innocent of having committed any offense, the indictment or accusation or citation is defective." (Citation and punctuation omitted.) Thomason , 196 Ga. App. at 448 (2), 396 S.E.2d 79. Finally, "[a]n indictment is to be strictly construed against the [S]tate when a demurrer has been filed against it." (Punctuation omitted.) Wright , 333 Ga. App. at 126, 775 S.E.2d 567, quoting Jack Goger, Daniel's Ga. Criminal Trial Practice, § 13-4 (2014-2015 ed.).

The uniform traffic citation is composed of five sections: Violator, Violation, Location, Summons, and Officer Certification. Within the Violation section, there are three subsections. Subsection one seems to apply when the cited violation is speeding, and includes blanks for the speed at which the car was traveling, the applicable speed limit, whether the speed was clocked by a patrol vehicle, and how the speed was detected. Subsection two clearly applies to citations for driving under the influence, asking the officer to check which type of test was administered, who administered the test, and what the test results were. The last subsection is titled "OFFENSE (other than above)" and asks the officer to specify the name of the offense and the violated Code section. Additionally, a portion of this subsection is titled "REMARKS" and offers two blank lines where an officer can include additional information. Below the REMARKS section, a table sets forth a number of options to check under the headings Weather, Road, Traffic, Lighting, and Commercial Vehicle Information. Thus, the officer is able to specify the conditions at the time of the citation.

Here, both the speeding and DUI subsections of the citation are left blank. In the third subsection, the "OFFENSE" is specified as "Following to[o] closely" and the Code section specified is "[ OCGA §] 40-6-49." The "REMARKS" section is blank. Checkmarks in the table indicate "clear weather," "dry, concrete" road, "medium traffic," and "daylight." Within the Violator section, it is indicated by checkmark that an accident occurred.

The cited Code section, OCGA § 40-6-49, provides:

(a) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.

(b) The driver of any motor vehicle which is drawing another vehicle when traveling upon a roadway outside of a business or residential district and which is following another motor truck or motor vehicle drawing another vehicle shall, whenever conditions permit, leave sufficient space so that an overtaking vehicle may enter and occupy such space without danger, except that this shall not prevent a motor truck or motor vehicle drawing another vehicle from overtaking and passing any like vehicle or other vehicle.

(c) Motor vehicles being driven upon any roadway outside of a business or residential district in a caravan or motorcade whether or not towing other vehicles shall be so operated as to allow sufficient space between each such vehicle or combination of vehicles so as to enable any other vehicle to enter and occupy such space without danger. This subsection shall not apply to funeral processions, parades, or other groups of vehicles if such groups of vehicles are under the supervision and control of a law enforcement agency.

(d) Vehicles which approach from the rear any other vehicle or vehicles stopped or slowed to make a lawful turn shall be deemed to be following for purposes of this Code section.

(e) This Code section shall not apply to the operator of any non-leading vehicle traveling in a coordinated platoon. For purposes of this subsection, the term "coordinated platoon" means a group of motor vehicles traveling in the same lane utilizing vehicle-to-vehicle communication technology to automatically coordinate the movement of such vehicles.

As stated above, in order to survive a general demurrer, or motion to quash, the citation must either (1) recite the language of OCGA § 40-6-49 that sets out all the elements of the offense charged, or (2) allege the facts necessary to establish a violation of OCGA § 40-6-49. Jackson , 301 Ga. at 141 (1), 800 S.E.2d 356.

(a) Whether the citation sets out the elements of the offense charged. We find it clear that the citation fails to recite the language of OCGA § 40-6-49 setting out all the elements of the offense. In fact, the citation does not recite...