Williams v. State

• Decision Date: 27 January 2020
• Docket Number: S19G0125
• Citation: 307 Ga. 778,838 S.E.2d 235
• Court: Georgia Supreme Court
• Parties: WILLIAMS v. The STATE.

307 Ga. 778

838 S.E.2d 235

WILLIAMS

v.The STATE.

S19G0125

Supreme Court of Georgia.

Decided: January 27, 2020

L. David Wolfe, Bingzi Hu, for appellant.

Daniel J. Porter, District Attorney, Samuel R. d'Entremont, Assistant District Attorney, for appellee.

Blackwell, Justice.

On January 23, 2013, the police searched Keith Williams's residence and seized several computers and disk drives containing digital images of child pornography. A Gwinnett County grand jury indicted Williams on 48 counts of sexual exploitation of children under OCGA § 16-12-100 (b) (8).¹ All counts in the indictment alleged that, on the day of the search, Williams "did knowingly possess and control a photographic image depicting a minor engaged in sexually explicit conduct." Each count separately described a different image possessed by Williams.

Before trial, Williams filed a "Motion to Dismiss Counts 2 through 48 of the Indictment" on the ground that these counts were "multiplicitous" because they all arose from a single criminal act. According to Williams, the simultaneous possession of multiple illicit images in a single location constitutes only one offense under OCGA § 16-12-100 (b) (8). Thus, Williams argued, the indictment subjected him to multiple punishments for the same offense, thereby exposing him to double jeopardy in violation of the United States Constitution, the Georgia Constitution, and statutory law.² After a hearing, the trial court agreed with Williams, granted his motion to dismiss, and ordered the State to consolidate all 48 counts in the indictment into a single count. The State appealed,³ and the Court of Appeals reversed, holding that OCGA § 16-12-100 (b) (8) allows "a charge and conviction on each and every image possessed."

State v. Williams, 347 Ga. App. 183, 183-184, 818 S.E.2d 256 (2018). We granted certiorari and now affirm the Court of Appeals's decision, but for an entirely different reason. We hold that, regardless of the merit of Williams's multiplicity claim, the trial court was not authorized to dismiss Counts 2 through 48 of his indictment at the pretrial stage of the proceedings.

1. The trial court's dismissal order was premised on the notion that the alleged multiplicity of Williams's indictment violated his right not to be exposed to double jeopardy. The doctrine of double jeopardy has two components: the "procedural" bar on double jeopardy, which places limitations on "multiple prosecutions for crimes arising from the same conduct," and the "substantive" bar, which protects against "multiple convictions or punishments" for such crimes. Stephens v. Hopper, 241 Ga. 596, 598-599 (1), 247 S.E.2d 92 (1978) ; Keener v. State, 238 Ga. 7, 8, 230 S.E.2d 846 (1976). See also Carman v. State, 304 Ga. 21, 26 (2) n.3, 815 S.E.2d 860 (2018). When a court is "presented with the question of whether a single course of conduct can result in multiple convictions and sentences under the same statute, the doctrine of substantive double jeopardy is implicated, and the ‘unit of prosecution,’ or the precise act criminalized by the statute, must be identified." Coates v. State, 304 Ga. 329, 330, 818 S.E.2d 622 (2018). See also State v. Marlowe, 277 Ga. 383, 383 (1), 589 S.E.2d 69 (2003) ("The question of multiple punishments (as opposed to multiple prosecutions ) for the same criminal conduct is addressed under the rubric of substantive double jeopardy." (Emphasis in original)).

Williams argues that his multiplicity claim invokes the procedural aspect of double jeopardy, but this clearly is not the case. Procedural protections against double jeopardy apply only to "multiple prosecutions," meaning multiple or successive indictments or criminal proceedings. See Stephens, 241 Ga. at 599 (1), 247 S.E.2d 92. These procedural protections do not apply to a single indictment that contains multiple counts, even if those counts are deemed multiplicitous. See Prater v. State, 273 Ga. 477, 481 (4), 545 S.E.2d 864 (2001) ("[P]rocedural Double Jeopardy protections ... forbid the State from prosecuting in a second action crimes that were omitted from the first prosecution."); Keener, 238 Ga. at 8, 230 S.E.2d 846 (the procedural aspect of double jeopardy refers to the bar on "successive prosecutions," and its rationale is "to prevent harassment of the accused"). See also United States v. Rosenthal, 793 F.2d 1214, 1234 (11th Cir. 1986) (a defendant "is subjected to multiple prosecutions in violation of the double jeopardy clause" where "a single offense is charged in separate charging instruments " (emphasis supplied)). Because Williams is not faced with multiple or successive prosecutions, the procedural bar on double jeopardy does not apply.⁴ Rather, to the extent double jeopardy provisions apply at all, Williams's claim must be analyzed under the rubric of substantive double jeopardy, which prohibits multiple punishments for the same offense. See Coates, 304 Ga. at 330, 818 S.E.2d 622 ; Marlowe, 277 Ga. at 383 (1), 589 S.E.2d 69.

The substantive bar on double jeopardy, however, is of no help to Williams at this stage of the proceedings because he has not yet been convicted and sentenced on any of the counts that he claims are multiplicitous. We have made clear that the doctrine of substantive double jeopardy—concerned as it is with multiple convictions and sentences —does not come into play until after the defendant has been found guilty on multiplicitous counts. See Keener, 238 Ga. at 8, 230 S.E.2d 846 (where "several crimes arising out of one criminal transaction are tried at the same time," the bar against multiple convictions "does not operate until after the verdicts"). See also Perkins v. State, 279 Ga. 506, 507 (1), 614 S.E.2d 92 (2005) (addressing a procedural double jeopardy issue in a pretrial appeal and stating that "[a]ny issues of substantive double jeopardy that may arise if [defendant] is convicted in superior court are not properly before us today"); State v. Boyer, 270 Ga. 701, 703-704 (2), 512 S.E.2d 605 (1999) (explaining that, just because a defendant "may not be sentenced for more than one crime based on the same criminal act does not mean that the State must choose to charge her with only a single crime" (emphasis in original)).

The post-trial nature of substantive double jeopardy protections is further evidenced by our longstanding practice of "merger," in which courts merge multiple counts into one for sentencing purposes. As we recently explained, "merger" applies generally to "situations in which a defendant is prosecuted for and determined by trial or plea to be guilty of multiple criminal charges but then, as a matter of substantive double jeopardy law, can be punished—convicted and sentenced—for only one of those crimes." Scott v. State, 306 Ga. 507 (2), 832 S.E.2d 426 (2019). We routinely resolve merger issues on direct appeal, after the defendant's conviction and sentencing. See, e.g., Donaldson v. State, 302 Ga. 671, 674 (4), 808 S.E.2d 720 (2017) (the "two aggravated assault counts," which were based on a single shooting incident, "both should have merged into felony murder for sentencing purposes"); Nazario v. State, 293 Ga. 480, 491-492 (3) (d), 746 S.E.2d 109 (2013) (holding that defendant's five convictions for concealing the death of another "merged into one" because defendant's course of conduct constituted only one violation of the applicable statute). Because the substantive bar on double jeopardy applies only after the defendant is found guilty, it does not warrant the pretrial dismissal of the charges against Williams, even if those charges are multiplicitous.⁵

Williams relies heavily on the United States Supreme Court's decision in United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260 (1952), which involves a pretrial "unit of prosecution" analysis. This case, he contends, refutes any suggestion that the trial court lacked authority to consolidate or dismiss the multiplicitous charges. But Universal C.I.T. is inapposite because it is fundamentally about the statutory interpretation of the federal Fair Labor Standards Act; nowhere does it suggest that the Double Jeopardy Clause prohibits a trial on a multiplicitous indictment. See id. at 226, 73 S.Ct. 227 ("All we now decide is that the district judge correctly held that a single course of conduct does not constitute more than one offense under § 15 of the Fair Labor Standards Act."). Indeed, the Supreme Court observed that "a draftsman of an indictment may charge crime in a variety of forms to avoid fatal variance of the evidence" and "may cast the indictment in several counts whether the body of facts upon which the indictment is based gives rise to only one criminal offense or to more than one." Id. at 225, 73 S.Ct. 227. And, "by an indictment of multiple counts the prosecutor gives the necessary notice and does not do the less so because at the conclusion of the Government's case the defendant may insist that all the counts are merely variants of a single offense." Id. See also Ohio v. Johnson, 467 U.S. 493, 500, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) ("While the Double Jeopardy Clause may protect a defendant against cumulative punishments for convictions on the same offense, the Clause does not prohibit the State from prosecuting respondent for such multiple offenses in a single prosecution.").

2. Williams also asserts that his motion to dismiss was in the nature of a pretrial "special demurrer" which, he argues, is the proper vehicle for challenging an indictment based on multiplicity. We disagree. A special demurrer is a pretrial remedy that allows the defendant to challenge the form of the indictment (as opposed to its substance) and to seek greater specificity or more information about the charges. See Kimbrough v. State, 300 Ga. 878, 880-881 (2), 799 S.E.2d 229 (2017) ("By filing a special demurrer, the accused claims ... that the charge is imperfect as to form or that the accused is...