Woodward v. State
| Decision Date | 05 December 1995 |
| Docket Number | No. A95A0903,A95A0903 |
| Citation | 465 S.E.2d 511,219 Ga.App. 329 |
| Parties | WOODWARD v. The STATE. |
| Court | Georgia Court of Appeals |
Leslie J. Cardin, Atlanta, for appellant.
Daniel J. Porter, District Attorney, George F. Hutchinson, III, Assistant District Attorney, Lawrenceville, for appellee.
Glenda Jo Woodward was indicted for felony obstruction of a law enforcement officer under OCGA § 16-10-24(b). She appeals the judgment of conviction and sentence and the denial of her motion for new trial. For reasons which follow, we reverse.
The evidence at trial showed that during the day of July 8, 1993, Woodward called the Gwinnett County Sheriff's Department several times to arrange for personal delivery of certain papers to Sheriff James Carsten. Eventually she spoke with Deputy J. Forest who advised her that Sheriff Carsten could not receive the papers personally and that per Carsten's orders, Woodward could either deliver them to Deputy Forest on the second floor of the building housing the sheriff's department, or leave them at the desk in the lobby of the administrative offices of the sheriff's department. The record shows that Woodward's manner during the calls devolved into belligerence.
When Woodward arrived at the sheriff's department to deliver the papers, Deputy Edward Marsden was on duty. Marsden testified he went looking for Woodward because he heard she was in the building. Woodward was writing a note to the sheriff when she was approached by Marsden and arrested. She was writing the note after the clerk at the window asked "[m]ay I help you?" Marsden himself admitted that when he arrived Woodward was simply "at the window writing on an envelope." Shortly thereafter, Deputy Marsden arrived and insisted that Woodward immediately leave the paperwork with him and exit the building. Woodward subsequently produced identification as Marsden requested but did not leave, even after a second order by Marsden to do so. Marsden again demanded that Woodward leave and told her she would be arrested if she did not. Woodward then asked Marsden to call Sheriff Carsten before arresting her to confirm that she was simply following the sheriff's instructions. Although Marsden testified that his grounds for arresting Woodward at that point would have been criminal trespass or disorderly conduct, he admitted and the clerk testified that the disorderly conduct occurred after Marsden put his hands on Woodward and arrested her. We note parenthetically that Marsden refused to answer Woodward's question about the grounds for her arrest.
When Woodward did not leave, Marsden arrested her and attempted to physically remove her from the lobby window. Woodward resisted the arrest and an altercation ensued during which she kicked and bit Marsden. Woodward was cited for disorderly conduct and indicted for obstruction of a law enforcement officer.
1. Woodward contends the trial court erred in denying her motion for new trial because the evidence was insufficient to show that she obstructed a law enforcement officer in the lawful discharge of his duties. We agree.
An essential element of the offense of obstruction of an officer is that the State prove beyond a reasonable doubt that the obstruction occurred while the officer was in "the lawful discharge of his official duties." OCGA § 16-10-24(b). See Powell v. State, 192 Ga.App. 688(3), 385 S.E.2d 772 (1989). "[A] police officer is not discharging his lawful duty when he arrests an individual without reasonable or probable cause." Brown v. State, 163 Ga.App. 209, 212(4)(c), 294 S.E.2d 305 (1982). If there is probable cause to believe a person committed a crime, if a crime is committed in the officer's presence or within his knowledge, or if there is a likely failure of justice, an arrest without a warrant is authorized; otherwise it is not. OCGA § 17-4-20. See Smith v. State, 84 Ga.App. 79, 65 S.E.2d 709 (1951).
Here, there is no evidence that Deputy Marsden was in the lawful discharge of his duties when he arrested Woodward. Marsden testified that there was no sign warning of a restricted area which would have prevented Woodward from entering the sheriff's department and that with the exception of one secured area, the facility is a public building. It is undisputed that the administrative offices and the lobby of the sheriff's department are public areas of a county facility to which access is not limited. Nor was there a criminal trespass warrant prohibiting Woodward's entry.
Although the State contends that Marsden was in the lawful discharge of his duties when he arrested Woodward because security of the building was one of his responsibilities, there was no evidence at trial that Woodward presented a security threat, that it was unlawful for her to be in the building, or that Deputy Forest had instructed her not to enter the second floor. Nor did the State show that Marsden had the authority to demand that she leave. Compare Powell, supra.
Moreover, a lawful arrest was not in progress when Woodward resisted Marsden for disorderly conduct. A belligerent telephone call earlier in the day, without more, is not disorderly conduct and does not constitute probable cause for an arrest. In order for the jury to determine whether there was sufficient evidence to convict Woodward of obstruction of a law enforcement officer, it had to determine if there was sufficient evidence to prove that Woodward's arrest for disorderly conduct was lawful. This the jury could not do because Smith v. State, supra 84 Ga.App. at 82, 65 S.E.2d 709. Although the jury was charged on the content of Gwinnett County's disorderly conduct ordinance, a jury charge is not evidence. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, 2d ed., p. 11, which sets forth those items constituting evidence. The jury's concern about why Woodward was arrested was evidenced by the note it sent the court asking: "May we have, in writing, a legal description of a lawful arrest?" In response, the court instructed the jury to "rely on the instructions read to you as the complete body of law applicable to the case...."
As there is no evidence showing Woodward's arrest was lawful, she Smith v. State, supra, at 81. Accordingly, Brooks v. State, 206 Ga.App. 485, 489(2), 425 S.E.2d 911 (1992).
2. Given our holding above, we need not address Woodward's remaining enumerations of error.
Judgment reversed.
I first note that the transcript does not record the circumstances of the court's written answer to the jury question, but the record contains the court's written response, indicating that the court had discussed the jury's question with counsel before responding that the jury should rely on its collective recollection of the court's charge as the complete body of law applicable to the case.
The question is whether defendant was committing the crime of disorderly conduct in violation of the Gwinnett County ordinance in deputy sheriff Marsden's presence when he arrested her. Whether she was committing criminal trespass, given the evidence, is not relevant at this stage, because that is not what he arrested her for and charged her with, and the jury was only charged with the elements of disorderly conduct. The deputy did testify that when he finally advised her that she would have to leave the building or be placed under arrest, at that point he would have arrested her for criminal trespass or disorderly conduct. Defendant asked for a jury charge on criminal trespass, which was not given, but did not seek a charge on disorderly conduct.
The record does not contain a certified copy of the ordinance, but it is set out in the state's Request to Charge No. 2 and identified as Section 9-1005 of the Code of Gwinnett County. The court gave this charge, and it was not objected to by either counsel except that defense counsel noted that an immaterial portion of it had been left out. A copy of the citation, which referenced this Code section, was admitted into evidence at trial. See Mayor, etc., of Savannah v. TWA, Inc., 233 Ga. 885, 886, 214 S.E.2d 370 (1975); Williamson v. City of Tallapoosa, 238 Ga. 522, 525, 233 S.E.2d 777 (1977).
The court charged: "Disorderly conduct is defined as follows: It shall be unlaw [sic] for any person or persons to create any disturbance that is contrary...
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